[Senate Hearing 109-397]
[From the U.S. Government Publishing Office]
S. Hrg. 109-397, PT. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
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NOVEMBER 1 AND NOVEMBER 15, 2005
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PART 2
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Serial No. J-109-4
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 109-397, PT. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1 AND NOVEMBER 15, 2005
__________
PART 2
__________
Serial No. J-109-4
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
29-838 WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa 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
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, 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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TUESDAY, NOVEMBER 1, 2005
STATEMENT OF COMMITTEE MEMBER
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 151
PRESENTERS
Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky
presenting Gregory F. Van Tatenhove, of Kentucky, Nominee to be
U.S. District Judge for the Eastern District of Kentucky....... 5
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska
presenting Timothy Mark Burgess, of Alaska, Nominee to be U.S.
District Judge for the District of Alaska...................... 37
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Eric Nicholas Vitaliano and Joseph Frank
Bianco, of New York, Nominees to be U.S. District Judges for
the Eastern District of New York............................... 2
Stevens, Hon. Ted, a U.S. Senator from the State of Alaska
presenting Timothy Mark Burgess, of Alaska, Nominee to be U.S.
District Judge for the District of Alaska...................... 1
STATEMENTS OF THE NOMINEES
Bianco, Joseph Frank, of New York, Nominee to be U.S. District
Judge for the Eastern District of New York..................... 6
Questionnaire................................................ 105
Burgess, Timothy Mark, of Alaska, Nominee to be U.S. District
Judge for the District of Alaska............................... 67
Questionnaire................................................ 68
Van Tatenhove, Gregory F., of Kentucky, Nominee to be U.S.
District Judge for the Eastern District of Kentucky............ 37
Questionnaire................................................ 39
Vitaliano, Eric Nicholas, of New York, Nominee to be U.S.
District Judge for the the Eastern District of New York........ 7
Questionnaire................................................ 8
QUESTIONS AND ANSWERS
Responses of Joseph F. Bianco to questions submitted by Senator
Schumer........................................................ 129
Responses of Timothy M. Burgess to questions submitted by Senator
Schumer........................................................ 131
Responses of Gregory F. Van Tatenhove to questions submitted by
Senator Schumer................................................ 133
Responses of Eric Vitaliano to questions submitted by Senator
Schumer........................................................ 134
SUBMISSIONS FOR THE RECORD
American Bar Association, Stephen L. Tober, and E. Osborne
Ayscue, Jr., Standing Committee on Federal Judiciary,
Washington, D.C., prepared statement........................... 136
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York, prepared statement................................... 149
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky,
prepared statement............................................. 152
United States Senate, Committee on the Judiciary, conference call
regarding the nomination of Gregory F. Van Tatenhove........... 157
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TUESDAY, NOVEMBER 15, 2005
STATEMENT OF COMMITTEE MEMBER
Page
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 169
PRESENTERS
Durbin, Hon. Richard, a U.S. Senator from the State of Illinois
presenting Virginia May Kendall, Nominee to be U.S. District
Judge for the Northern District of Illinois.................... 173
Obama, Hon. Barack, a U.S. Senator from the State of Illinois
presenting Virginia Mary Kendall, Nominee to be U.S. District
Judge for the Northern District of Illinois.................... 172
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama:
presenting Kristi Dubose, Nominee to be U.S. District Judge
for the Southern District of Alabama....................... 171
presenting W. Keith Watkins, Nominee to be U.S. District
Judge for the Middle District of Alabama................... 175
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama
presenting W. Keith Watkins, Nominee to be U.S. District Judge
for the Middle District of Alabama............................. 170
STATEMENTS OF THE NOMINEES
Watkins, W. Keith, of Alabama, Nominee to be U.S. District Judge
for the Middle District of Alabama............................. 176
Questionnaire................................................ 178
Dubose, Kristi, of Alabama, Nominee to be U.S. District Judge for
the Southern District of Alabama............................... 210
Questionnaire................................................ 211
Kendall, Virginia Mary, of Illinois, Nominee to be U.S. District
Judge for the Northern District of Illinois.................... 234
Questionnaire................................................ 235
SUBMISSION FOR THE RECORD
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama,
prepared statement............................................. 271
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ALPHABETICAL LIST OF NOMINEES
Bianco, Joseph Frank, of New York, to be U.S. District Judge for
the Eastern District of New York............................... 6
Burgess, Timothy Mark, of Alaska, to be U.S. District Judge for
the District of Alaska......................................... 67
Dubose, Kristi, of Alabama, Nominee to be U.S. District Judge for
the Southern District of Alabama............................... 210
Kendall, Virginia Mary, of Illinois, Nominee to be U.S. District
Judge for the Northern District of Illinois.................... 234
Van Tatenhove, Gregory F., of Kentucky, Nominee to be U.S.
District Judge for the Eastern District of Kentucky............ 37
Vitaliano, Eric Nicholas, of New York, Nominee to be U.S.
District Judge for the the Eastern District of New York,....... 7
Watkins, W. Keith, of Alabama, Nominee to be U.S. District Judge
for the Middle District of Alabama............................. 176
NOMINATION OF ERIC NICHOLAS VITALIANO, OF NEW YORK, TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK; GREGORY F. VAN TATENHOVE,
OF KENTUCKY, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY;
JOSEPH FRANK BIANCO, OF NEW YORK, TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF NEW YORK; AND TIMOTHY MARK BURGESS, OF ALASKA, TO BE
DISTRICT JUDGE FOR THE DISTRICT OF ALASKA
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TUESDAY, NOVEMBER 1, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 1:35 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles
Schumer, presiding.
Present: Senator Schumer.
Senator Schumer. We are going to call the hearing to order.
We are under unusual circumstances. So our candidates, their
friends and family, and all others understand, we have called a
special session, which is a closed session, to discuss
intelligence matters on the floor of the Senate. It was
unexpected. I am going to have to be on the floor very quickly,
so I may have to suspend the hearing until we can get someone--
Senator Kyl was supposed to be here, but he had to stay there,
and Senator Specter, in an act of bipartisanship, asked me to
be here or asked me to chair it since I was here because of our
two New York judges.
I will save my opening statement for a minute because I
know that Senator Stevens has a statement and has another
Committee hearing. So I will recognize Senator Stevens first
for his statement.
PRESENTATION OF TIMOTHY MARK BURGESS, OF ALASKA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF ALASKA, BY HON. TED STEVENS,
A U.S. SENATOR FROM THE STATE OF ALASKA
Senator Stevens. Well, thank you very much, Mr. Chairman,
and it is an honor to be here today and an honor to present to
the Committee Tim Burgess, who is the nominee to be district
judge in Alaska.
Tim came to our State 30 years ago to play basketball at
the University of Alaska-Fairbanks, and he never left Alaska.
He now lives in Anchorage with his wife, Joanne Grace, and four
children, one of whom is with him here today.
I first met Tim in 1982 when he served as legislative
assistant to then-Senator Frank Murkowski. In 1989, he joined
the U.S. Attorney's Office for the District of Alaska as
Assistant U.S. Attorney working on criminal prosecution and
civil litigation. In 2001, President Bush nominated Tim to be
the U.S. Attorney for the District of Alaska, and he has served
as our State's chief Federal law enforcement officer with great
distinction. As a former U.S. Attorney, I do appreciate his
service there.
As a U.S. Attorney, Tim also serves as a co-Chair of
Alaska's Rural Justice and Law Enforcement Commission, which
the Congress created at my request in 2004 to improve the
quality of justice in rural Alaska. Tim has demonstrated
exceptional leadership on rural justice issues. He has been
instrumental in organizing the process and moving it forward.
The commission recently produced a draft report of suggestions,
which has been distributed for comment across our State. This
milestone is in part a reflection of Tim's ability to serve as
a unifying force among many differing points of view. Tim is a
devoted public servant and a talented legal mind. His
commitment to the rule of law led President Bush to nominate
him to the position of U.S. District Court Judge for Alaska.
I am confident Tim will approach this new position with the
same dedication which he has fulfilled his other assignments,
and I urge this Committee to act quickly on this nomination.
And I thank you for the courtesy of taking the Chair.
Senator Schumer. Senator, you have always extended courtesy
to me and the people of New York, so it is a pleasure to
reciprocate in a small way.
OK. Now I will read my opening statement on behalf of two
New Yorkers.
PRESENTATION OF ERIC NICHOLAS VITALIANO AND JOSEPH FRANK
BIANCO, OF NEW YORK, NOMINEES TO BE DISTRICT JUDGES FOR THE
EASTERN DISTRICT OF NEW YORK, BY HON. CHARLES E. SCHUMER, A
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. It is great to have two New Yorkers
nominated for positions both on the Eastern District, which
covers my home borough of Brooklyn and Queens, Nassau County,
Suffolk County, a very large judicial district. I think it may
be the largest. It has 7 million people in one judicial
district. And so I want to thank the Chairman for scheduling
this hearing and for considering the nomination of both Eric
Vitaliano and Joseph Bianco to the Federal Court for the
Eastern District of New York.
I would say that this comes at an opportune time. It is a
singular week for Italian-Americans in the judiciary, and
overlooked in all the attention to Judge Samuel Alito's
nomination to the Supreme Court--which I will have more to say
about in a different forum, not today--we are considering the
nomination of two outstanding Italian-Americans nominated to
the Federal District Court in the Eastern District.
Now, one of the things that is hard to believe, but there
are no Italian-Americans sitting in the Eastern District,
despite a large Italian-American population. And I have to be
honest, the Columbian Society and other Italian-American
organizations came to me, pointed that out, and I agreed with
them. And we have had in the past, but because of retirements
we do not right now.
And so I have been committed to correcting it, and if all
goes well here--and we expect that it will--we will be
increasing the ranks of Italian-Americans in the Eastern
District of New York by infinity. And for the young children
here, the Vitaliano children, the Bianco children, that is
because anything from zero to something, it goes up by
infinity. I think.
[Laughter.]
Senator Schumer. In any case, first I want to introduce to
my colleagues and to the entire U.S. Senate Eric Vitaliano. I
have known Eric Vitaliano for close to two decades, and he is
just a class act. And everything he has done, he has been a
class act. He has had an impressive career in the legal
profession. He is a true lifelong New Yorker. And, frankly,
another thing to his benefit, he is from Staten Island. And I
always want to see Staten Island recognized--it is also part of
the Eastern District--on the bench and everywhere else. I have
worked hard.
First, let me say in New York we have worked out a
wonderful system for nominating judges to the district court
and the circuit courts. With all the back-and-forth on judges
at the national level and in other districts, we have worked it
out. The President, Governor Pataki, and I worked together to
name highly qualified consensus candidates to the Federal
bench. There is often rancor when it comes to judges from other
parts of the country, but none when it comes to New York. And
that is because in New York the candidates we select are
mainstream, consensus candidates. Some may be a little more
conservative. Some may be a little more liberal. But they are
all within the broad mainstream that defines America.
Now, I am especially proud to introduce Judge Vitaliano,
because he was my recommendation for a seat on the Eastern
District. The administration agreed with my assessment of his
integrity, credentials, and excellence, and formally nominated
him a few weeks ago. And so I am heartened by the strong
bipartisan support that you have received, Eric. Eric's
nomination is the product of a real consultation process and a
strong commitment to choosing moderate, diverse, and well-
qualified judges in New York.
Judge Vitaliano is joined today by many members of his
family, and I know they are all proud. I am not going to
introduce his brother who moved to New Jersey, but a few of the
others I will, just his immediate family. Helen is here, who
has been by Eric's side for so long and has played such a great
role in the success that the Vitaliano family has had, and the
four children: Michael, who is 15; Emma, who is 12; Abigail,
who is 9; and Halle, who is 6. And I have known them since they
have been very, very little. One of my great--I really say
this. My greatest regret in life, which shows you God has been
good to me, is that Iris and I did not have more children. We
have two beautiful girls. I wanted four. She wanted two. Guess
what?
[Laughter.]
Senator Schumer. We have two.
Also with Judge Vitaliano, aside from his wayward brother,
are his sister-in-law, Dorothy Hurley; her husband, John;
nephew, Terence; and, finally, I want to make mention of
somebody who is a close friend of mine who was always
whispering in my ear, Eric, ``Eric Vitaliano, Eric Vitaliano.
Come on, Chuck, Eric would be a great judge.'' And that is
someone who worked for me for many years and now has gone on to
much greater things: Michael Cusick. Mike is the Assemblyman
from one of the four districts on Staten Island, and just a
wonderful person, and I am sure he is as proud as the Vitaliano
family as he sits here today, particularly knowing that there
have been so many judges, including his later father, in the
Cusick family.
Let me just give a brief biography. Judge Vitaliano grew up
on Staten Island, attended Fordham University in the Bronx, NYU
Law School in Manhattan. He clerked for Judge Costantino, one
of the Italian-Americans on the Eastern District, who, of
course, is no longer there. And that is the court he has been
nominated to.
Apart from a brief stint in Washington, he spent his entire
life in New York. He graduated cum laude from NYU, spent
several years with one of the most prestigious law firms in New
York--Simpson, Thacher & Bartlett--and then was chief of staff
to Congressman John Murphy before beginning his own law
practice.
After that, he spent two decades as a distinguished member
of the New York State Assembly, representing first the 59th and
then the 60th Assembly Districts. Redistricting changed the
numbers--same place. And he has more recently been a civil
court judge and, since 2004, an acting Supreme Court judge in
the State of New York.
Here is what the well-read local newspaper and well-
respected local newspaper, the Staten Island Advance--for those
of you not from Staten Island, it is not the ``Ad-VANCE''; it
is the ``AD-vance''--has said about Eric Vitaliano: ``Eric
Vitaliano is the epitome of the most often misused description
of proper judicial temperament.''
This is continuing the quote, but that is a quote in a
quote. `` `He is one of the most intelligent and analytical
public officials we have ever had the pleasure to meet. He is
fair and reasonable almost to a fault.' ''
I have known Eric--as I said, he is a class act. He is
smart. He has integrity. He is decent. He is honorable. He will
just be a great judge. And he is achieving something that he
has dreamed about for a long time. I am very pleased that the
President acted on my suggestion in nominating Judge Vitaliano,
and I hope the Senate will move expeditiously to confirm him.
Now, second, I would like to introduce to the Committee
Joseph Bianco. He was nominated by the President as well,
another great, great guy from New York, and he is joined today
by his wife, Melissa, who I saw outside with their little one.
I guess she is still outside. Nicholas was his name, but he
didn't give me a high five. But his other children are here,
another family of four children, making me even more envious.
There is Joey, who is 11; Davey, who is 8; Stephanie, who is 6;
in addition to Nicholas; and a full complement of law clerks.
Joe Bianco was born in Flushing, but we will forgive him
for this fact because he saw the error of his ways and moved to
Brooklyn, and he has lived there since he has been 11. I am a
Brooklynite, first Senator from Brooklyn in 140 years. He
graduated as a member of Phi Beta Kappa from Georgetown
University here in Washington, went on to earn his degree from
Columbia Law School, and then clerked for another very fine
judge, Justice Leisure of the Southern District in New York.
After a brief stint in private practice, Mary Jo White
hired him to be an Assistant U.S. Attorney in the Southern
District of New York, one of the strongest and toughest
districts--when you work there, you learn everything--from 1994
to 2003. And while at the U.S. Attorney's Office, Mr. Bianco
prosecuted mobsters, terrorists, violent gang members, and
other criminals.
After a short time, his supervisors, who included David
Kelly, until very recently the acting U.S. Attorney, and a name
that has been in the news lately, Patrick Fitzgerald, promoted
him to the position of Deputy Chief of the unit responsible for
investigating and prosecuting organized crime and terrorism.
And, in fact, Mr. Bianco replaced Patrick Fitzgerald as the
chief of the Organized Crime and Terrorism Unit, I guess when
Patrick Fitzgerald went over to Chicago to the U.S. Attorney's
Office in Illinois.
In the U.S. Attorney's Office, he supervised, among other
people, my chief counsel, Preet Bharara--it is one happy family
here in New York--who tells me that Mr. Bianco was among the
most beloved and respected prosecutors in that office. And
since Preet no longer works for Joe Bianco, you can be sure he
means those words, and Preet's recommendation is second to none
as far as I am concerned.
He has since gone on to be Deputy Assistant Attorney
General in the Criminal Division of the Justice Department
where he now serves. I am proud--I did not nominate him
originally, but I am proud to support someone as outstandingly
qualified and well respected as Mr. Bianco.
We have two great nominees from New York, high quality, and
I am proud to be here.
With that, I see that my colleague Senator Bunning--we are
sort of going on the fly here because of the closed session. So
instead of--we will break out of the regular order, ask Senator
Bunning to come forward so he can give his statement on behalf
of Greg Van Tatenhove. Senator Bunning?
PRESENTATION OF GREGORY F. VAN TATENHOVE, OF KENTUCKY, NOMINEE
TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY, BY
HON. JIM BUNNING, A U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator Bunning. Thank you, Senator Schumer. It is a
privilege to help introduce Greg Van Tatenhove to this
Committee. By sending his nomination to the Senate, the
President is presenting a top-notch candidate for the Federal
bench in the Eastern District of Kentucky.
A quick look at Greg's resume shows me his strong
qualifications. Although Greg is not originally from Kentucky--
and that is a rare bird that gets nominated to the judiciary if
they were not born there--he made a very smart decision by
making a permanent move to our Commonwealth.
Greg is a graduate of Kentucky's Asbury College and the
University of Kentucky College of Law. He has worked two stints
for members of Kentucky's Federal Congressional delegation:
Senator Mitch McConnell and Representative Ron Lewis.
Greg has served as a judicial law clerk in the U.S.
district court, and he served in the U.S. Department of
Justice's Civil Division as a trial attorney.
Finally, over the last 4 years, Greg has served admirably
as the U.S. Attorney for the Eastern District of Kentucky.
Clearly, Greg possesses the wisdom and character to sit on the
Federal bench.
His time on Capitol Hill, in the Department of Justice, and
within our judicial system gives Greg a wealth of knowledge and
experience which can only make him a better judge. I hope swift
progress can be made toward his confirmation, and I appreciate
the Chairman's scheduling this hearing.
I want to thank you, Senator Schumer, for filling in and
doing such an admirable job, and I am very happy, along with my
colleague Senator McConnell, who is obviously stuck on the
floor of the U.S. Senate right now, to support the nomination
of Greg Van Tatenhove for U.S. District Judge for the Eastern
District of Kentucky.
Senator Schumer. Thank you, Senator Bunning, and we
appreciate your being here, and obviously your recommendation
means a great deal to the Committee.
OK. We are now going to call our four nominees: Eric
Nicholas Vitaliano, to be U.S. District Judge for the Eastern
District; Gregory F. Van Tatenhove, to be U.S. District Judge
for the Eastern District of Kentucky--Vitaliano, of course, is
for New York--Joseph Frank Bianco, to be U.S. District Court
Judge for the Eastern District of New York; and Timothy Mark
Burgess, to be U.S. District Judge for the District of Alaska.
Well, we are going to have to improvise since they do not
have the sheet here. Please raise your right hands, gentlemen.
Do you solemnly swear to tell the whole truth and nothing but
the truth, so help you God?
Judge Vitaliano. I do.
Mr. Van Tatenhove. I do.
Mr. Bianco. I do.
Mr. Burgess. I do.
Senator Schumer. Please be seated. They said I did it all
right.
OK. Now, we do not have many members here, and all of you
have not raised many questions of this Committee. So I don't
think we are going to do too many questions since there is the
closed session. I will ask all of you--let's see here. I am
going to ask you, tell us--I will ask you each--because you
have each had different experiences. Tell us what are the
reasons that you seek to become a Federal judge. We will start
with Mr. Vitaliano and work our way over.
STATEMENT OF ERIC NICHOLAS VITALIANO, OF NEW YORK, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Judge Vitaliano. Thank you, Mr. Chairman. It's certainly an
honor and a privilege to be here, to be before you and the
members of this Committee. As you so eloquently put in your
remarks on my behalf at the beginning of the hearing, I have
dedicated most of my adult life to public service. I was
privileged to begin my public service in the Eastern District
of New York, first as a Temporary Deputy United States Marshal,
and then later as a law clerk to Staten Island's first Federal
judge, Mark Costantino. My public service continued as a member
of the New York State Assembly, and now as a trial judge in the
New York State court system. It has allowed me to develop a
very broad, deep, rich experience, diverse experience in the
law, to hone the skills that are necessary to be a trial judge
in the United States district court.
By being a judge for now 4 years, I have been able to
understand in a very palpable way the awesome power of the
judiciary, to understand the importance of continuing public
service in a way that benefits real people with real
controversies, to have the temperament to administer justice
not only fairly in fact but fairly in appearance. Those are the
skills that I have developed over these years, and I look
forward to being granted the opportunity and the privilege to
continue that kind of service as a United States District Judge
in the Eastern District of New York.
[The biographical information of Judge Vitaliano follows:]
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Senator Schumer. Thank you, Judge Vitaliano. They are now
calling me over there, so I am going to ask each of our
prospective nominees to be quick. But I see that Senator
Murkowski is here on behalf of Mr. Burgess. Senator Stevens was
here already. We are under real time constraints, but I want to
recognize Senator Murkowski to say a few words on behalf of Mr.
Burgess. And your entire statement will be read into the
record.
PRESENTATION OF TIMOTHY MARK BURGESS, OF ALASKA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF ALASKA, BY HON. LISA
MURKOWSKI, A U.S. SENATOR FROM THE STATE OF ALASKA
Senator Murkowski. Thank you. I so appreciate that.
I want to welcome a colleague of mine. In fact, Mr. Burgess
and I were actually sworn in to the Alaska Bar together, so we
have not only a longstanding professional relationship, but I
think it is fair to say a longstanding personal relationship.
Our kids are participants in YMCA basketball, and Tim is a
coach there. I see him out on the soccer field. I see him in
the real world, being a dad, being a community leader, being a
participant.
I want to commend Tim for the acts that he has done as our
U.S. Attorney General working on drug education initiatives
like Red Ribbon, something that I am very involved in, in our
State; working on programs like Weed and Seed; and more
recently the Interagency Terrorist Threat Task Force that we
have seen some incredible successes, working with the Federal,
the State, the local to really bring together those that are
involved to make a difference in our State. Tim is a leader at
the community level, at the State level, and I am delighted to
stand with him and recommending him for this judgeship.
I appreciate the opportunity to speak here today and to
endorse him. Thank you.
Senator Schumer. Thank you, Senator Murkowski, and I
appreciate your being here.
I ask unanimous consent--which I guess if I say it is OK,
it will be.
[Laughter.]
Senator Schumer [continuing]. For Senator Leahy's and
Senator McConnell's statements to be entered into the record.
Now I do have to go to this session, so what we are going
to do--and this is no--in fact, the fewer questions you are
asked, the better, gentlemen. We are going to leave the record
open for 1 week for any Senator to submit written questions,
which you will be required to answer.
With that, do any of you want to say anything in
particular? Do you, Mr. Van Tatenhove and Mr. Burgess, want to
introduce your families briefly? I introduced Mr. Bianco's
already.
STATEMENT OF GREGORY F. VAN TATENHOVE, OF KENTUCKY, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY
Mr. Van Tatenhove. Mr. Chairman, I appreciate the
opportunity to do that, and I appreciate the courtesy of the
hearing. We certainly understand the unusual circumstances that
we are under today.
You asked about my qualifications. The one that I am
proudest of is that as a husband and father, so I will quickly
introduce my family that is here today.
First of all, my daughter, Catherine, who is a first grader
at the Lexington School in Lexington, Kentucky; my son, Cooper,
who is fifth grader at the Lexington School. I am pleased also
to have my wife of over 21 years, Jane, who is with me here
today; and I am particularly pleased to have my sister, who I
describe as the smartest lawyer in my family, Jana, who is here
with her husband, Rick. I am also pleased to have my brother-
in-law, David Cooper, who is here with his friend, Chris
Koosher. And I have a number of other friends here. It is a
privilege to have them here.
Thank you, Mr. Chairman.
[The biographical information of Mr. Van Tatenhove
follows:]
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Senator Schumer. And how about you, Mr. Burgess? Would you
do us the honor of introducing your family?
STATEMENT OF TIMOTHY MARK BURGESS, OF ALASKA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF ALASKA
Mr. Burgess. Thank you, Senator. My son, Foster Burgess, is
right over here. He was the only one able to make the long trip
with me for this.
Senator Schumer. We understand. There is no shuttle every
half-hour, as I understand it, the way there is to New York.
[Laughter.]
Mr. Burgess. No, there is not. But I also have four
children, and I also have with me three of my Washington family
from my many years of working here when I was much younger:
Mary Maguire, Donna Murray, and John Devore.
[The biographical information of Mr. Burgess follows:]
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[The biographical information of Mr. Bianco follows:]
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Senator Schumer. Thank you.
With that, I want to thank all of you gentlemen for the
great service that you have done, both in public and private
careers, and we will see if there are any written questions,
and the Committee is going to do everything to move, to
expedite the process so that you can assume a position on the
bench, which I am confident each of you will receive from the
Senate.
Thank you, and with that, the hearing is adjourned.
[Whereupon, at 2:20 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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CONFERENCE CALL REGARDING NOMINATION OF GREGORY VAN TATENHOVE
----------
FRIDAY, NOVEMBER 18, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3:06 p.m., in
room SD-240, Dirksen Senate Office Building.
Participants: Senator Sessions, Cornyn, Schumer, Stephen
Tober, Esq., American Bar Association, Ozzie Ayscue, Esq.,
American Bar Association, Robert Evans, American Bar
Association, Denise Cardman, American Bar Association and
Senate Staff present Peter Jensen, Chip Roy and Bob Schiff.
P R O C E E D I N G S
Senator Sessions. I think we are all here. Steve Tober, who
is the Chair of the Standing Committee on Judiciary for the ABA
for New Hampshire; and Ozzie Ayscue, who did the work up on
Tatenhove. He is in Charlotte.
We have Joe Biden's staffer and John Cornyn, and a couple
of--Bob Evans and Denise Cardman with the ABA staff people. I
would just say this. Chairman Specter asked that I conduct this
conference call to discuss the ABA's rating of Greg Van
Tatenhove, who has been nominated for the District Court Judge
for the Eastern District of Kentucky. I understand that
representatives are here, Tober and Ayscue.
Mr. Tober, I appreciate your presence.
Senator Schumer. Jeff, could I just interrupt? This is
being transcribed by a reporter just like at a hearing, right?
Senator Sessions. Yes, that is correct.
Senator Schumer. And when will we get the transcription, a
couple of days?
Senator Sessions. Maybe the reporter who is here--
Mr. Jensen. Senator, this is Pete Jensen. I work for
Chairman Specter. We have requested that we get it back later
today.
Senator Sessions. OK, very quick turnaround.
Senator Schumer. OK, great, thanks. Go ahead, Jeff. Sorry
to interrupt.
Senator Sessions. Mr. Tober, do you have a statement that
you would like to make at this time? We would be glad to hear
any thoughts you have on it.
Mr. Tober. I do, Senator, and I appreciate the opportunity
to do that. I know everybody has a very busy schedule. I will
try to be very brief.
First of all, I want to thank the Senate Judiciary
Committee for the opportunity to be heard on this important
nomination, and I do want to express the hope, the concern, the
belief that by doing this by teleconference is an isolated and
singular event and not some precedent that will go on in the
future for reasons that as I talk further I think will become
self evident.
We take the role we play in judicial nominations extremely
importantly, and I do not think there is any substitute for the
regular process within the normal course. And I think you all
know, the ABA process has been something that has developed
over generations of time and effort, and it is a very well-
thought-out and very good one, and I hope that we can restore
the way we were doing things.
Very quickly, I just want to point out that with respect to
Mr. Van Tatenhove, the nomination, as I understand it, was
formally announced on September 13th. The evaluation was
started upon our receipt of the signed waiver forms. That is
our regular practice, and that occurred on October 5th. The
investigation was completed within the requisite time and
circulated before November 5th, so within 1 month, between
October 5th and November 5th, the investigation was conducted,
written and circulated. And then our vote was taken and the
rating was released within the next 5 days on November 10th. So
that is the 30 days plus 5 that we try to adhere to rigorously
in our process.
Ozzie Ayscue was good enough to stand in and do this
evaluation for us. Ozzie served on this Committee as the Fourth
Circuit representative from 2001 to 2004. He, in that
timeframe, had the opportunity to review, vote on and
participate in well over 230 evaluations. Ozzie is one of the
most premier and seasoned individuals that served on this
committee, and I was pleased that he could stand in because the
regular sitting Committee representative from the Fourth
Circuit was involved at that time in another process, and that
was the evaluation of Harriet Miers. So Ozzie was kind enough
to help us with this.
There is no question that the evaluation that he conducted
was thorough. It was thoughtful. It was comprehensive. He
maintained, as we always do, the confidences of the individuals
with whom we speak, and during the course of his investigation
he contacted 40 judges, lawyers, other people in the legal
community who would have contact the nominee, Mr. Van
Tatenhove, and he received substantial material information
from 30 of those 40 contacts within that timeframe.
Let me get to the point of what the evaluation
demonstrated. With respect to positive things, Mr. Van
Tatenhove presented no issues whatsoever with respect to
integrity or his potential for judicial temperament. He was
found through the investigation to be a very bright, capable
and honest man, and he is collegial, gracious, and has a very
good personality from all indications in this investigation.
What arose, however, was substantial concern regarding his
professional competence. I think you are familiar with what we
call ``the backgrounder'', which is our printed standards that
we adhere to, The backgrounder talks in terms of professional
competency encompassing qualities of intellectual capacity,
judgment, writing and analytical ability, and most particularly
in this case, knowledge of the law and breadth of professional
experience.
Some of the sample comments that came from the
investigation were as follows: ``He hasn't tried very many
cases, is not necessarily the most experienced.'' ``His lack of
trial experience is troubling.'' Those are not isolated
comments. They lace throughout the investigation from
enumerable individuals among the folks who--
Mr. Schiff. Bob Schiff, with Senator Feingold.
Mr. Tober. Who were able to pass comment along to Ozzie
Ayscue in the investigation.
The backgrounder also has something that we call, if you
will, the 12-year rule. It is a flexible rule. It is not a hard
and fast rule. What that means is we have a rule in which we
look for at a minimum 12 years of legal experience, practical
legal experience as a floor, as a base for somebody's
experience in the law, as something that we would hope to see
when they are nominated to the Federal District Court. This 12-
year-rule, if you will, has been around for quite a period of
time. It shows up in our printed backgrounder at least back in
1977, and in fact, Senator, back then it was something on the
order of 12 to 15 years as a floor. It was revised over the
course of time to bring it to 12 years, but in reality that
rule, that standard, if you will, has been around for a lot
longer than that.
Senator Sessions. As a written standard?
Mr. Tober. Yes, sir. It is in our backgrounder. It is in
the glossy material that we hand out to everybody who is
involved, the nominee, the individuals with whom we speak. It
is on our web page. It is our bible, if you will, of how we try
to do things.
And it refers, Senator, when we talk about this 12-year-
rule, there are a couple of comments tied around it that I want
to bring to the attention of this Committee.
One of the things we look for in determining this 12-year-
rule, is substantial courtroom and trial experience as a lawyer
or a trial judge. It is very important for nominees, for both
the appellate and the trial courts. Now, there are people,
Senator, who do not necessarily have exactly 12 years. They may
have less than that. They may have more than that. It is not
meant to be any kind of a litmus test, it is meant to be a
generalized standard. So we recognize in our backgrounder that
there may be, and I am quoting, ``significant evidence of
distinguished accomplishment in the field of law which may
compensate for a nominee's lack of substantial courtroom
experience.''
But let me underscore that in this nomination of Mr. Van
Tatenhove, he is being nominated for life to the Federal trial
bench, and so it became very important to see what kind of
trial experience Mr. Van Tatenhove would be bringing to this
job, keeping in mind that we have no issue with integrity or
his potential for judicial temperament.
What we found was this: Mr. Van Tatenhove has been--
Senator Schumer. Is this in writing, as if you are reading
from something, Steve?
Mr. Tober. I just have notes I have written to myself.
Senator Schumer. OK.
Mr. Tober. We are going to--in fact, thank you for that. We
would like to submit a written statement after the fact.
Senator Schumer. Please. That would be great.
Mr. Tober. Which will cover all this. But these are my
notes that I am just looking at.
Senator Schumer. OK, sure.
Mr. Tober. He was licensed in 1990, and of those 15 years
in which he has been continuously licensed, eight of them
constitute, in the opinion of the committee, the practice of
law. And those eight were 4 years with the Department of
Justice at the beginning of his career, and then 4 years as
United States Attorney for the Eastern District of Kentucky. He
has a 7-year period, much more contemporaneous period, in which
he was working for Congress. Even he admitted in his interview
with Ozzie Ayscue that he was not practicing law in a formal
sense while he was working in Congress. And so the Committee
drew the judgment, as did the investigator, that Mr. Van
Tatenhove presented with 8 years of legal experience.
So that means that we had to look around for that other
significant evidence of distinguished accomplishment. What we
did is, for one place, we look at his trial work, what did he
do for those 8 years that would have brought him to a
courtroom?
And here is the troubling part. As you all know, when they
fill out Senate questionnaires nominees indicate their 10 most
significant cases. Mr. Van Tatenhove did that. Of his 10 most
important cases, first of all, all of them were civil and all
of them go back to his time at the Department of Justice, which
puts them back 11, 12 years in time at a minimum. Of those 10
cases--
Senator Schumer. So it is a fair guess he did not try any
cases as U.S. Attorney.
Mr. Tober. He tried--that is correct. He did not try any
cases as U.S. Attorney, Senator. He was--and I believe he
admits to this--he was an administrator for most of his time,
if not all of his time as U.S. Attorney. And then Ozzie Ayscue
can weigh in on that.
But of the 10 cases, five of them were still pending when
he left the Department of Justice and moved on. Two of the 10
were dismissed on motion; two were settled before they ever
were adjudicated; and one he tried. And the one he tried was a
2-day evidentiary hearing to a Federal Magistrate. So we have
an extremely limited capacity for experience in the courtroom.
The bottom line that this Committee determined is that this
nominee, while a very nice gentleman of no question integrity
and no question temperament, has the experience of one 2-day
trial 12 years ago in the process of the practice of law, and
that was a civil case. He has never tried a criminal case. He
has never been before a jury. He has never done anything along
those lines other than that one trial.
Senator Cornyn. Mr. Tober, may I ask a question at this
point? This is John Cornyn.
Mr. Tober. Sure, Senator.
Senator Cornyn. Just so I am clear, so the ABA does not
credit any time that a lawyer works on Congressional staff. For
example, each of us have lawyers who work to advise us on the
Senate Judiciary Committee on everything from nominations to
legislation, you name it, but would it be correct to say that
the ABA would not credit any of that kind of experience either
as time served as a lawyer that would meet the ABA's standard?
Mr. Tober. No, Senator. That would not be a fair statement
of a general nature. It may well be a fair statement in this
particular case. And the reason I say that--and Ozzie Ayscue
talked to Mr. Van Tatenhove about that very issue--is that Mr.
Van Tatenhove's personal particular experience working for
Congress was not of the type that would have exposed him to the
kind of trial experience that one was looking for when you are
nominated to the trial bench. While he did talk in terms,
Senator, of having worked on Congressional--excuse me--
constitutional issue and some other parts that were component
parts of the practice of law--we do not deny that--it was not
within the setting of having a command of rules of evidence, of
rules of civil procedures, of rules of criminal procedure, of
having to rule on objections. None of that really would have
come from his experience working within the context of
Congress.
Senator Cornyn. Just to followup on that real quickly and
then we can move on, just so we are clear, none of our counsel
who would advise us on nominations, legislation, constitutional
amendments and the like would have that kind of experience
either. The day-to-day procedural matters, ruling on matters of
evidence, or arguing cases to juries, so it is not clear to me
how Mr. Van Tatenhove's experience would be distinguished,
let's say, from the staff of the Senate Judiciary Committee in
terms of crediting time for this purpose.
Mr. Tober. Well, I cannot speak to what others may do or
not do, Senator. Obviously, you can do that with far more
understanding than I can, but I want to underscore, we take
these one case at a time, and we look at the individual as they
present himself or herself. And we talk to them about our
concerns, and this is one of the things that indeed we did do.
Senator Cornyn. Thank you.
Senator Schumer. Let me ask this. Are you finished, Steve,
with your--
Mr. Tober. I just wanted to do one more thing.
Senator Schumer. Go ahead. Why don't you finish?
Mr. Tober. One more thing. The vote, as you know from our
letter, was a majority ``not qualified'' and minority
``qualified.'' And I guess I wanted to say that I want the
Senate Committee to understand that every member of my
Committee recognizes that there is a very real person on the
receiving end of a ``not qualified'' rating. It is not anything
we miss, that in fact these nominations have faces. I asked my
committee, and I have asked my committee, and I will continue
to ask my committee, to vote their conscience when they in fact
have one like this, to look very hard at it, particularly if it
is going to be a ``not qualified'' result in their mind,
because it obviously affects people's lives.
Having said that, this Committee came up with a majority
``not qualified.''
Senator Schumer. Can you tell us the vote, Steve, number?
Mr. Tober. I can only tell you, Senator, that it was a
majority ``not qualified,'' but I can also tell you--I do not
mean to be disingenuous--our backgrounder defines it, and it
says that ``when the nominee receives a specific rating from a
majority (8 or 9 members), or a substantial majority (10 to 13
members).'' This was a majority.
Senator Schumer. OK, got it. And there are 13 total?
Mr. Tober. There are 14 members on the Committee plus me,
but I take my role to be the vote in the case of a tie.
Senator Schumer. So you do not vote?
Mr. Tober. Only in a tie.
Senator Schumer. OK. So it could have been 8-6 or 9-5.
Mr. Tober. That is correct.
Senator Cornyn. Mr. Tober, may I ask one other question
about this standard. The mentioned the 12 years trial
experience standard would apply for both a Federal District
Court and a Circuit Court; is that correct?
Mr. Tober. The 12 years is the practice of law, but--
Senator Cornyn. It is practice of law, OK.
Mr. Tober. Yes.
Senator Cornyn. Now, would this also apply to a nominee for
the U.S. Supreme Court?
Mr. Tober. Well, I do not know why it would not. The
Committee believes--I am reading from our backgrounder,
Senator--''The Committee believes that ordinarily a nominee to
the Federal bench should have been admitted to the bar and
engaged in the practice for at least 12 years.'' But if I can
continue to finish the paragraph?
Senator Cornyn. Sure.
Mr. Tober. ``In evaluating the experience of a nominee the
court recognizes that opportunities for advancement in your
profession for women and members of minority groups may have
been limited. Substantial courtroom and trial experience as a
lawyer or a trial judge is important for nominees for both the
appellate and the trial courts. Additional experience that is
similar to in-court trial work, such as appearing before or
serving on administrative agencies, or arbitration boards, or
teaching trial advocacy or other clinical law school courses,
is considered by the Committee in evaluating a nominee's trial
experience. Significant evidence of distinguished
accomplishment in the field of law may compensate for a
nominee's lack of substantial courtroom experience.''
Senator Cornyn. So just one last question in that vein. If
you are a law professor, let's say, would that qualify as the
kind of legal experience that would satisfy the 12-year rule?
Mr. Tober. I think Louis Brandeis probably thought it did
but--I do not mean to be cute about it--I would think if
someone was teaching law it would be in a related sense, and it
could well be considered as the distinguished accomplishment in
the field of law that would compensate for the lack of trial
experience.
Senator Cornyn. OK, thank you very much.
Senator Schumer. Just following up on John's, I have a few
more myself. I understand this is not a rigid rule but sort of
a guideline. Do you look for more trial experience for a person
in the district court level than at the appellate court level?
It seems to me a professor of law is better suited at the
appellate--who has never practiced and never been on trial--
might be better for the appellate law than at the district
court level.
Mr. Tober. Senator, I can say for myself, having been on
this Committee for 3 years before chairing it, I gave that
active consideration. I thought that someone who was going to
be sitting on a trial bench should understand the smell of the
courtroom, so to speak, and that someone who is going to be
sitting on an appellate bench could perhaps have come there
from a slightly different place in their life's experience.
Senator Schumer. OK. My other questions, if I might
continue, Jeff, if you do not mind?
Senator Sessions. Chuck, go ahead. I have a few, but you
can go ahead while you are at it.
Senator Schumer. How often do you recommend people
positively without the 12-year experience? I mean are there
five examples in the time you have been--how long have you been
chairman, Steve?
Mr. Tober. For about 3 months, Senator.
Senator Schumer. So you have been on about three and a half
years.
Mr. Tober. That is correct.
Senator Schumer. And Mr. Ayscue--am I pronouncing that
right?
Mr. Ayscue. Correct.
Senator Schumer. How long have you been on?
Mr. Ayscue. I was on the Committee for 3 years. I am an
alumnus who was called back to active duty in the Van Tatenhove
case.
Senator Schumer. And did your 3 years overlap, each of you?
Mr. Ayscue. Yes.
Mr. Tober. Yes.
Senator Schumer. OK. So how many times in that time did you
give someone a positive recommendation who did not have the 12
years, out of how many? There may have been very few people
recommended without the 12 years.
Mr. Tober. Anecdotally, I know we have done it. I do not
know that I can come up with the numbers. Ozzie, do you have
any sense?
Mr. Ayscue. I do recall several who were obviously
outstanding and had substantial trial, intense trial
experience, who did not have that many years in the practice,
plus with respect to whom the Committee did not bat an eyelash
about.
Senator Schumer. So in other words, if someone got out of
law school, went to the U.S. Attorney's Office, started off
doing trials, became a Bureau Chief and did that and got great
recommendations for 8 years or 9 years, that would not stand in
their way, just hypothetically, somebody like that who had done
lots of trials, was a Bureau Chief and trial lawyer before
that.
Mr. Tober. I am trying to think. I did the evaluation of
Jeffrey Howard for the Circuit Court of Appeals in the First
Circuit, and I believe that was sort of similar to his
background. That is on a trial bench, obviously, but I think if
you totaled up his active years in practice it was probably
below 12, but he had many other things of a distinguished
nature going for him, and he was found qualified.
Senator Schumer. Right. And how often have you found people
not qualified at least in your experience, who did not have the
12 years in addition to Mr. Van Tatenhove?
Mr. Tober. I would say that it was a very low number, but
again, Senator, I do not know--we can probably get this
information for you.
Senator Schumer. You know, since you are going to do a
written statement, if you could, that would be great.
Mr. Tober. Let me suggest that I will ask our staff to come
up with numbers from both of the questions you asked.
Senator Schumer. Great. I think that is it.
Senator Sessions. That is good. I remember Bonnie Campbell,
that it had come up, from Iowa, and had never tried a case at
all. But I do feel like this individual was involved pretty
significantly in some litigation.
First let me ask you, did you count the year--you did not
mention it, but did you count the year that he was a clerk to a
Federal District Judge?
Mr. Tober. Ozzie, you want to answer that?
Mr. Ayscue. I can answer that. After having four years, the
Federal clerkship, first year, 4 years at Department of
Justice, between 11 to 15 years ago, a 7-year hiatus when he
was not actually practicing law, and the 4 years in the U.S.
Attorney's Office in which he was a supervisor and not trying
cases. I brought this to his attention, urged him to suggest
avenues of inquiry that might help me evaluate any experience
he had that might be considered a surrogate for actual trial
experience. I looked at his exposure, his judicial clerkship
for a trial judge, his work as a Congressional staffer, a
member of the Attorney General's Advisory Committee, all of
which seemed to enhance the overall gravatus of his resume, but
none of these experiences other than what he observed during
his clerkship, which was from 1989 to 1990, the first year
after he finished law school, really involved anything that
appeared to qualify as a surrogate for trial experience.
Senator Sessions. But you would normally count, do you not,
clerking for a Federal judge as just one of the 12 years?
Mr. Ayscue. Yes, I would.
Senator Sessions. That would make it nine, as I would add
up here, four DOJ, four as a United States Attorney, and one.
Let me just say this in general. I respect you for having
standards. We do hope that you will try to apply them equally
across the board whatever nominee comes forward. But I respect
that, and it definitely provides valuable information to us as
we evaluate nominees. I am one who believe that a nominee for a
district judge should have some trial experience unless they
have extraordinary other capabilities that they could bring to
the office. So I do not dispute how particularly how you
calculate it. But we in the Senate obviously have a different
standard. We are charged with trying to determine whether or
not this person would make a good Federal judge, and as you
noted, there are a lot of positive qualities that he has been
noted for.
With regard to his trial record, it should not be, I think,
diminished too much. We had a hearing yesterday or the day
before, and we found that only 1.6 percent of civil cases go to
trial.
There has been a real change in the work of a Federal
judge. They manage litigation, they manage discovery, pre-trial
motions on summary judgment and those kinds of things. And
cases are being disposed of well over 95 percent, and I think
over 95 percent of Federal cases disposed of by plea.
So he was in this Attorney General's honors program, in a
Federal programs branch that was noted for handling especially
complex and even precedent-setting cases. And he won the
Department of Justice Special Achievement Award and he handled
quite a number of cases; that a number of them settled, I don't
think might be as significant, Mr. Ayscue, as maybe it would
have been for a practicing attorney 20 years ago, 30 years ago,
when I was starting out.
But will you comment on that? I mean, he represented the
Army-Air Force Exchange Service in a Title VII case, which is
good experience for what they do in Federal court today. He
represented the FBI in a large and complex Freedom of
Information case, which tends to come up a lot, those
regulatory matters.
The Department of State he represented in a complex matter
involving historic preservation regulations, the Foreign
Missions Act, demolition of property owned by the Republic of
Turkey. The Corps of Engineers he represented in a recreational
use of property condemned as part of a waterway project for the
region.
So he listed ten cases, but I don't think those were the
only ten cases he ever handled, is that correct? I mean, these
were just ten he listed as significant cases.
Mr. Ayscue. He was asked to list the ten most significant
litigated matters which he personally handled.
Senator Sessions. Yes.
Senator Schumer. And how many did he actually have trial
experience on on that? You said that before, one or two, I
think.
Mr. Ayscue. One.
Senator Schumer. One, right.
Senator Sessions. Well, yes, a trial, but when you--
Senator Schumer. Jeff, I understand that. I mean, we are
not here making the arguments.
Senator Sessions. Sure.
Senator Schumer. We just want to hear what the ABA has to
say and then let each person read the transcript and evaluate
it for him or herself.
Senator Sessions. I think that--
Senator Schumer. I mean, I am not going to get up and argue
with you on this.
Senator Sessions. All right.
Senator Schumer. But let me say this: I mean, I would just
ask, I guess, you, Jeff, and Senator Specter's staff person
that the record be kept open so we can get other members who
might wish to submit questions, and that this transcript be
distributed to people.
I just want to let you all know that I am not going to let
this go through this afternoon. I mean, I think this is enough
of an issue--I am not sure how I come down on it, but it is
enough of an issue that we ought to wait until we come back in
December. I don't think that does any undue harm, and so I
would like the record to be kept open, members to submit
questions, the ABA to submit a written statement. And then we
will distribute it and dispose of this on the 12th of
December--
Senator Sessions. All right.
Senator Schumer [continuing]. When we return, or whenever
it is, the 13th or whatever it is.
Mr. Tober. Can I just ask a clarifying question?
Senator Schumer. Yes.
Mr. Tober. Would you like us to be submitting our present
statement in advance of the questions or all at once?
Senator Schumer. Probably do it, yes, as soon as you can.
The written statement should be as soon as you can and the
answers to the questions anytime up to December 12th, I guess.
Mr. Tober. We would be happy to do that.
Senator Schumer. OK.
Senator Sessions. One final question I would ask and that
is with regard to the role of a United States Attorney in the
Eastern District of Kentucky. As a United States Attorney, you
also are responsible for everything that occurs in the office
and are, by necessity, drawn into the plea negotiations, the
settlement negotiations, the legal issues that are pending and
how they may come out and how that may affect the strategy that
the attorneys may have.
Did you consider that, that even though he may not have
been a trial United States Attorney that he gained sometimes
broader experience by being responsible for supervising a wide
variety of cases that came before him?
Mr. Tober. Do you want me to answer that, Ozzie, or would
you like to answer it?
Mr. Ayscue. The answer is we certainly did. That is part of
the mix. One of the things I found was that whether or not his
predecessors tried cases depended on whether they had been
trial lawyers before they became the United States Attorney,
because he had some predecessors who were well known for cases
as the U.S. Attorney and others who were administrators. But we
did take that into consideration very much so.
Senator Sessions. Well, it is a just a factor, I think,
that we can all give evaluation to.
Chuck, on written questions, why don't we try to have those
questions in within 1 week? Otherwise, we wouldn't be able to
get the answers back probably in time for the 12th.
Mr. Tober. Senator Sessions, could I just offer one other
thought?
Senator Sessions. Yes.
Mr. Tober. And I think it comports with what you are asking
us. In our backgrounder we define professional competence in a
very broad, embracing way. It encompasses--and I am reading
from it--''such qualities as intellectual capacity, judgment,
writing in the analytical ability,'' and then on it goes,
``through knowledge of the law and breadth of professional
experience.''
We don't necessarily say you have to be a trial lawyer to
be a trial judge. I want to make that clear if it wasn't.
Senator Sessions. I know you haven't in the past.
Mr. Tober. I mean, someone could be a real estate lawyer or
a probate lawyer. If they bring special talents to this and
they are going to serve a lifetime on the bench and they are
fair and honest and open, I mean you can't ask for much more.
But this one caught the attention of this committee, with the
understanding that it was a difficult vote, because--
Senator Schumer. Hello. I am sorry.
Mr. Tober. I am sorry--just because of the nature of the
experience demonstrated in the report.
Senator Sessions. Thank you for the time that you give. It
is a public service. The insight of the bar is a valuable to
us. Obviously, we have our own ultimate responsibility under
the Constitution to vote aye or nay to the President's nominee,
and we will consider that carefully.
So we will have any questions in by December 5th. Then we
will be in shape to close this out, I think.
Senator Schumer. Well, I just wanted to go over that. I had
to drop off for a second because I had to take another call. So
we are saying the ABA report--your written report gets to us by
next Friday. Is that what we were saying?
Mr. Tober. You give me a deadline, Senator, and we will
make it.
Senator Schumer. OK. Well, how about by Wednesday, is that
all right? I mean, Thursday and Friday are--is Friday better
for you? I don't care.
Mr. Tober. We will have it to you by Wednesday, by the end
of the day.
Senator Schumer. By Wednesday, and then let's have the
questions submitted by the following Monday. And that way you
can have a week to answer them and that will still give people
a week to look at it all by the time the 12th rolls around.
Does that sound OK, Jeff?
Senator Sessions. The questions that I am referring to, I
think, are the questions from any of the Senators--
Senator Schumer. Yes, me, too.
Senator Sessions [continuing]. To the nominee by December
5th--I mean the ABA.
Senator Schumer. Yes, that is right.
Senator Sessions. OK.
Senator Schumer. So in other words--I don't have a calendar
in front of me, but by Wednesday the report comes out. Senators
submit questions by the following Monday, the 28th.
Senator Sessions. Yes.
Senator Schumer. And your answers come back the 5th and
that gives people a week before the 12th.
Senator Sessions. It makes good sense.
Senator Schumer. OK, great.
Senator Sessions. Thank you. We appreciate your--
Senator Schumer. Mr. Tober and Mr. Ayscue, thank you very
much for taking the time here. And I just want to tell you, Mr.
Tober, I completely agree with you that we should not do this
this way. We had unusual circumstances, but I am going to try
to make sure we do it the normal course henceforth.
Mr. Tober. I appreciate that very much, Senator. Thank you.
Senator Sessions. Thank you all.
Senator Cornyn. Thank you, gentlemen.
Senator Schumer. Thanks, everybody.
[The conference call was concluded at 3:39 p.m.]
NOMINATIONS OF VIRGINIA MARY KENDALL, OF ILLINOIS, TO BE UNITED STATES
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; KRISTI DUBOSE, OF
ALABAMA, TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT
OF ALABAMA; AND W. KEITH WATKINS, OF ALABAMA, TO BE UNITED STATES
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA
----------
TUESDAY, NOVEMBER 15, 2005,
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:32 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff
Sessions, presiding.
Present: Senators Sessions and Durbin.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator Sessions. The meeting will come to order.
I am delighted to welcome and chair this panel of
outstanding judicial nominees, two from my home State of
Alabama. I will defer my opening remarks until other Senators
arrive, and they may want to speak also.
With the appearance of Senator Shelby, our senior Senator
from Alabama, I would like to recognize him at this time, and
would just note that Senator Shelby is a skilled attorney who
has practiced law in his career before his governmental
experience. He understands the importance of the Federal
Judiciary. He understands what it is like for a lawyer to
practice before a judge, and he takes these matters very, very
seriously.
Richard, it is a pleasure for me to have you here ando
receive your remarks at this time.
PRESENTATION OF W. KEITH WATKINS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA, BY HON. RICHARD
SHELBY, A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Shelby. Thank you, Mr. Chairman. Senator Sessions,
I appreciate working with you as my colleague, and I also
appreciate the work you do on the Judiciary Committee. We are
on different committees. You are a Chairman of a Subcommittee
on the Armed Services Committee, Chairman of the Subcommittee,
and of course a member of the Judiciary Committee. I am on the
Appropriations Committee and the Banking Committee, but we
cannot serve on the same Committees. So I think overall we try
to work together.
I am here today, I am just going to focus on Keith Watkins,
if I can, because I do not think Kristi needs any introduction
to you or to the Judiciary Committee. But she has got my
blessing, as you well know, both of us.
I want to thank you for allowing me to be here today and to
introduce Keith Watkins. Keith has been nominated by President
Bush to serve as a judge on the U.S. District Court for the
Middle District of Alabama. I am also proud to support his
nomination. I have known him for many, many years, since he
basically was in law school, and I knew he was practicing some
in Tuscaloosa.
I believe he will make an outstanding Federal judge. He is
a native of Alabama. He received his undergraduate degree from
Auburn University, his law degree from the University of
Alabama. He has been in private practice of law, practicing
law, Senator Sessions, every day since 1976, and is currently a
partner at the firm of Calhoun, Faulk, Watkins and Faircloth in
Troy, Alabama.
He has represented his clients, everybody believes, in a
fair and deliberate manner, and I believe he is an intelligent
and honest man who will serve our Nation well.
I encourage my colleagues to treat him fairly, and to give
him an opportunity to show you that he will interpret the law
and not make the law. I believe he will also prove to this
Committee and to the Senate and to the people of Alabama on his
ability to be fair and impartial in hearing cases before him,
should he be allowed to serve on the U.S. District Court for
the Middle District of Alabama.
Again, I want to thank you for holding this hearing today,
and I hope that you will vote him out of this Committee and
allow the full Senate to consider his nomination.
Mr. Chairman, I also want to recognize his family. He is
joined here by his wife, Terri, his two children, Scott and
Emily, as well as his parents, Harold and Joanne Watkins.
I am glad to support him, and I believe I am allergic to
something here.
[Laughter.]
Senator Shelby. Thank you very much.
Senator Sessions. Very good, Senator Shelby. I know you
have to chair the hearing for the new Federal Reserve Chairman.
What a special event that is also, very important nomination. I
think we have a good nominee, and I know your Committee will
delve into that deeply.
Thank you very much for your comments.
Senator Shelby. Thank you.
PRESENTATION OF KRISTI DUBOSE, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA, BY HON. JEFF
SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. I also am pleased to share with Senator
Shelby his remarks about Keith Watkins, but I would like to say
that welcoming Judge Kristi DuBose to the Committee marks one
of the best days of my Senate career. In most instances when
you introduce a nominee, you know his or her reputation and
legal acumen based upon recommendations by others, but with
Judge Lee, I have firsthand experience. From my experience, I
know that she is first rate in all issues across the board.
She graduated magna cum laude from my alma mater,
Huntingdon College, where she remains active in the Alumni
Association, I am pleased to see, with a double major in
history and business. In 1986 she graduated from the Emory
University School of Law with distinction in the top 10 percent
of her class.
After law school she clerked for a Federal District Judge
in New Orleans, Judge Beer, for the Eastern District of
Louisiana, which is very good experience for the job she holds
today, since she worked for the very kind of judge she would
now be.
Then in August 1990, I made the wise decision to hire her
to be an Assistant United States Attorney in the Criminal
Division in the Southern District of Alabama. During her 3
years of service in the United States Attorney's Office, Judge
Lee excelled in every capacity. I know that during that period,
she tried close to, if not more, than 20 jury criminal cases,
filed an equal number of appeals before the Eleventh Circuit
Court of Appeals, writing those briefs herself. So she has been
exposed to a great deal of the aspects of Federal practice as
an attorney.
Remember in 1991 when she successfully prosecuted, at the
time, one of the largest marijuana cultivating cases in the
United States. She also prosecuted bank fraud cases, conspiracy
cases and public corruption cases. In one case she prosecuted
as a sole prosecutor six defendants on the charge of
manufacturing and distributing methamphetamine.
After spending a brief stint in a District Attorney's
office in Covington County, Alabama--a good experience to have
that perspective--in 1994, when I was elected to the Attorney
General's job of the State of Alabama, she joined me as one of
my Deputy Attorney Generals. She served there for 2 years,
focusing primarily on important public corruption cases and
working with the State legislature to implement a Speedy Trial
Act, a General Fraud Statute, and to revamp the State ethics
law.
When I was fortunate enough to be elected to the Senate, I
brought Kristi with me to serve as my Chief Counsel on this
Judiciary Committee, and she also served as my counsel on the
Senate Ethics Committee. And by the way, there is no one I know
that has any higher standards of probity and ethics than Judge
Lee. I know that in this capacity, as Senate Judiciary
Committee staffer, she won the respect of colleagues on both
sides of the aisle. In fact, when I mentioned to Senator Leahy,
our Ranking Member, that she might be under consideration for
this appointment, he told me he would be pleased to lend his
support.
In January of 2000, Judge Lee was appointed a Magistrate
Judge in the Southern District of Alabama, so for the past 5
years she has been doing the actual job of judging, and doing
it well. In the Southern District of Alabama, the Magistrate
Judges, pursuant to an agreement by the parties, can actually
try a case and carry it all the way through the trial process.
She has full experience as a Federal Judge. She will be able to
hit the ground running, once confirmed.
I have talked to the judges in the Southern District, and I
know that they look forward to Judge DuBose joining them in
this new capacity. They tell me that she has the proper
judicial temperament, is faithful to the rule of law, and a
pleasure to work with. Of course, they did not have to tell me
those things because I know it firsthand.
Judge DuBose will do well on the Southern District. Her
integrity is impeccable. She has a keen intellect, a respect
for the rule of law, and I look forward to supporting her
nomination.
Senator Obama, it is great to have you with us. I know you
have a busy schedule. I have some remarks I would like to make
about our nominee, Keith Watkins, from Alabama, but I will
withhold those at this time, and would be delighted to hear
from you on nominee Virginia Kendall. Thank you for sharing
your time with us.
PRESENTATION OF VIRGINIA MARY KENDALL, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, BY HON.
BARACK OBAMA, A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Obama. Thank you so much, Senator Sessions. I very
much appreciate the opportunity. Senator Durbin is waylaid. He
will be here soon, but I wanted to go ahead and take the
opportunity to introduce Virginia Kendall, who is the nominee
to the U.S. District Court for the Northern District of
Illinois.
I would like to first of all acknowledge that our hopefully
soon-to-be judge has her family here today, her daughter and
her son, two of Virginia's three children, if I am not
mistaken. We have her husband, mom and brother, and a sister,
so we have got the full complement here.
Ms. Kendall. is a native of the great State of Illinois.
She spent her entire career working in the State. She received
her bachelor's and master's degree from Northwestern
University, her law degree from Loyola University.
It is extraordinarily fitting that Ms. Kendall has been
nominated to the Northern District since she severed as an
intern for District Court Judge George Marovich while in law
school, and after graduation worked in his office as a clerk.
After he clerkship, Ms. Kendall joined the U.S. Attorney's
Office in Chicago, where she has dedicated herself to
representing the interests of some of the most vulnerable
members of our society, namely our children. As Deputy Chief of
the Criminal Division, she coordinates Federal and State
investigations of child exploitation cases, and as Senator
Durbin I am sure will mention, she has prosecuted some of the
ground-breaking cases around the Nation on this issue,
including the Nation's first Internet kidnapping case. Not only
has Ms. Kendall distinguished herself as an outstanding lawyer
and public servant, she is an outstanding member of the
community. She has been active in community service activities,
experiences that I believe will inform her work as a judge and
will benefit both plaintiffs and defendants appearing in her
courtroom.
Ms. Kendall. brings to the bench what she has brought to
her long legal career, boundless energy, a sense of fairness,
and a strong commitment to the rule of law.
Just to make mention, Mr. Chairman, of how we came about
this decision, Senator Durbin and myself interviewed a number
of candidates. We have a wonderful tradition in Illinois of
bipartisanship in trying to select appropriate judicial
nominees. I think it is fair to say that Senator Durbin and I
were both extraordinarily impressed with not only Ms. Kendall's
wonderful resume, but more importantly I think, her enormous
passion for the issues that she has worked on. She is a true
advocate, in the best sense of the word, and I think her
temperament is one that will be very well suited to the bench.
I am just so proud that she is here with us today, and I
know Senator Durbin shares my pride.
Let me just thank the Committee for holding this hearing,
and I look forward to Ms. Kendall's swift confirmation.
Senator Sessions. Thank you, Senator Obama, for those good
words. We hear good reports on Ms. Kendall, and look forward to
the hearing proceeding, and I am sure to confirmation. We would
be glad to have you stay, but if you have to go, we will
understand.
I will recognize Senator Durbin to make some comments, and
he is a skilled attorney himself, a passionate advocate for the
legal system in this country, and I am always pleased to work
with him.
PRESENTATION OF VIRGINIA MARY KENDALL, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, BY HON.
RICHARD DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you, Senator Sessions. I want to
thank you for chairing this, and especially thank Senators
Specter and Leahy. We are near the end of the session. Any
excuse will do not to have a hearing, and yet they were kind
enough to give us this hearing for these judicial nominees. I
think it reflects the fact that they are people of quality,
they are nominees that come to us without political
controversy, and we feel confident that the Senate, when
hearing your qualifications, will join us in supporting them.
I also want to join with Senator Obama, and thanking him
personally, for his role in this process. And, Senator
Sessions, I would like to tell you that we had House input as
well. Speaker Dennis Hastert, because he is the ranking
Republican on the House side, was an important part of the
process. Most of you know that the President approves nominees
for the court, and usually the highest Ranking Member of his
party is part of that process. I had agree long ago with
Senator Fitzgerald, a Republican, my Republican colleague for 6
years, that we would share this task, and that every fourth
nomination would go to the minority Senator, a Senator not
likely to have a nomination otherwise. Senator Fitzgerald
appointed several people when there was a Democrat in the White
House, and I appointed several with a Republican in the White
House, with his concurrence.
And so I turned to Speaker Hastert and said, ``Now you are
the ranking Republican. Shall we carry on in this tradition?''
He said yes. I noted to him that the next vacancy was mine, so
it was a real test as to whether it would be bipartisan. It was
completely. From start to finish, through all the nominees,
Speaker Hastert was involved in reviewing their background,
preparing questions, having the final word on the names that
were submitted.
The White House asked--and this was a little unusual--that
we submit two names so that they could choose between them at
the White House level. We sent the names of two extremely
qualified people. I felt confident either one could do this job
and do it well. And the White House made the decision to choose
Virginia Kendall. I could not be happier.
She is an exceptional person. You have heard about her
background. You certainly heard about her family, and I hope
you heard about her mom, who is here today, and I had a chance
to meet with her earlier and her wonderful family, and as she
said, the only regret is that her dad could not be with us, and
I wish he could be, but I bet he is looking down and smiling
that his daughter has reached this level of achievement.
She has done such a great job, not only in working with her
family and doing things that are necessary in her community and
neighborhood, but also becoming someone highly respected in the
legal community. It is amazing all of the accolades that poured
in when she was nominated, and they came from so many different
levels. The first I heard of her was from some of her former
students in law school, who thought she was the best professor
they had. That speaks very well of Virginia Kendall's ability
not only to understand the law, but to teach it, which is part
of this learning experience.
She and her husband have been involved in Cristo Rey Jesuit
High School in Chicago, which is an amazing success story of a
high school in the area of Pilson, low income, Hispanic area
that has just been a dramatic success, and it speaks well of
her family commitment to them.
One of her biggest supporters is her boss, Patrick
Fitzgerald, well known to most as a U.S. Attorney in the
Northern District of Illinois, in addition to a few other
assignments. He has written about her, and I want to quote,
``Virginia Kendall,'' he says, ``I can also assure you that
Ginny is a warm and compassionate person who is very attentive
to the human needs of those she works with and supervises.
Ginny's combination of legal talents, experience as a
prosecutor, supervisor and instructor, and commitment to
bettering the communities most in need of help, would stand her
in great stead if she were selected as a Federal Judge in this
district.'' That is from her boss, and you expect kind words
from a boss or she might not be working there.
But we also heard some great words from her opposing
counsels, attorneys who were on the other side in a lawsuit,
and what they had to say, some of them, was just nothing short
of amazing. One of her opposing counsels described her as,
quote, ``honorable, decent, ethical, someone with an ideal
temperament.'' As an attorney who has practiced before judges,
I love to hear that last phrase, ideal temperament.
Another opposing counsel said Virginia was, quote, ``down
to earth, honest, straightforward, reliable and full of
integrity.''
Mr. Chairman, it does not get much better than that. I am
honored to join Senator Obama and Speaker Hastert in presenting
her nomination to the Senate Judiciary Committee. Thank you.
Senator Sessions. Thank you, Senator Durbin.
PRESENTATION OF W. KEITH WATKINS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA, BY HON. JEFF
SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. I am also pleased to introduce to the
Committee, Keith Watkins, a native of Pike County, Troy,
Alabama, and an individual destined to be an outstanding
jurist. He graduated from Auburn University in 1973--had a
pretty good game this weekend. Got his law degree from
University of Alabama in 1976--which was not so good for
Alabama this weekend.
Dick, you watched the Auburn game Saturday, I believe you
told me.
Senator Durbin. Yes.
Senator Sessions. I dare say there are few people who bring
more wealth of actual legal and human experience to the
District Court than will be brought by Keith Watkins. He is
more than a practitioner, which he has done exceedingly well
for many years. He is an arbitrator and a mediator. This
alternative dispute resolution experience is the kind of
experience I believe that could be helpful to the District
Court, and I have no doubt it will be an asset to the parties
and other judges in the Middle District of Alabama.
Since graduating from law school in 1976, Mr. Watkins has
been in the private practice of law except for a 3-year stint
when he served as a public defender for the city of Troy
between the years of `80 and `83. That practice has panned the
spectrum of legal issues. He has represented criminal
defendants, filed cases on behalf of plaintiffs, defended
businesses from lawsuits, engaged in real estate law, as well
as business and estate planning, drafted wills, handled
domestic cases and represented foundations, churches,
businesses and political organizations.
In short, he is a super legal practitioner. In recent times
Mr. Watkins has placed an emphasis on mediation and has
mediated more than 200 cases. I believe that this experience is
something that will help him help parties resolve disputes
quickly without unnecessary delay and cost.
He has done more than his share of community service, both
locally and abroad, from building houses for Habitat for
Humanity and working to start a local Boys and Girls Club, to
doing carpentry work on the Jamaica Baptist Women's Union
Orphanage in Jamaica. I believe he has made a number of trips
outside the country to assist others. His pro bono record is
very impressive.
When I first met him, he told me he had just completed a
will codicil for an elderly lady, and that her payment was in
the form of baking him a pie.
[Laughter.]
Senator Sessions. I have been impressed with Mr. Watkins
since Senator Shelby brought his record to my attention. I have
talked to judges and lawyers in the Middle District, and they
tell me he will do an outstanding job. He has a reputation for
character and integrity and hard work. I have not met anyone
that has made any complaint against him.
So I am pleased to add my strong support to Mr. Watkins. He
comes from the heart of the Middle District of Alabama. I know
he is excited about the opportunity of this position.
Both of the Alabama nominees, from my experience and
investigation are hard working; they are intelligent; they have
great integrity; they can manage a caseload; and I think they
both can make a decision, which is an important thing in a
judge. So I am pleased to have them here.
We would ask that the three of you, if you would, step
forward, and before you sit down, if you would raise your right
hand, I will administer the oath.
Do you swear or affirm that the testimony you are about to
give will be the truth, the whole truth, and nothing but the
truth, so help you God?
Ms. Kendall. I do.
Judge Dubose. I do.
Mr. Watkins. I do.
Senator Sessions. Thank you. Please take your seats.
I know Senator Durbin had a number of things on the floor,
but I will recognize him at this time to go first.
Senator Durbin. Thank you very much, Senator Sessions. It
is going to be tough to ask hard questions of Virginia Kendall,
because I have asked her these questions and I know her
answers, and so I will direct them to the panel, just kind of
general statement of your feelings about the role of a judge. I
mentioned earlier the question of temperament. Senator Strom
Thurmond used to always make a point of raising that question
when people were about to take a lifetime position on the
Federal bench. What he was looking for, and I think we all look
for, is some sort of indication of your feeling about your role
in this judgeship and how treating clients and attorneys is an
important part of it.
Mr. Watkins, as the man who received the pie as your
compensation, I know that you are a humble man, so let me ask
you to start off if you would, please.
STATEMENT OF W. KEITH WATKINS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA
Mr. Watkins. Thank you, Senator Durbin. I do appreciate the
President's confidence in me to nominate me for this position,
and the Committee having this hearing, and thank you for your
question.
I think temperament is the key ingredient for the running
of a courtroom and for engendering respect for the Judicial
Branch among the folks who come forward. A former partner of
mine sent me an e-mail a couple of weeks ago, and he said that,
remember, should I be confirmed, that people will remember
being mistreated long after they have forgotten being ruled
against. And I believe that is the truth, and as a practicing
attorney for 29 years, in I cannot tell you how many
courthouses, with few exceptions I have been treated the way I
needed to be treated and wanted to be treated as an attorney,
and I would do likewise. I can appreciate that situation with
attorneys and litigants. They will receive fair treatment from
me and equal justice under the law.
[The biographical information of Mr. Watkins follows:]
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Senator Durbin. Judge DuBose?
STATEMENT OF KRISTI DUBOSE, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF ALABAMA
Judge Dubose. Thank you, sir. For the last 6 years it's
been my job to try to provide a place for the litigants and the
attorneys to be able to come and get a fair and equitable
hearing. And they leave the courtroom, I hope--my goal--when
they leave the courtroom is they understand that I have applied
the law the way the legislature intended me to apply the law.
[The biographical information of Judge DuBose follows:]
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Senator Durbin. Thank you.
Ms. Kendall?
STATEMENT OF VIRGINIA MARY KENDALL, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Ms. Kendall. Thank you, Senator, and thank you for your
kind introduction.
It is foundation for our system that people have access to
the courts and that they feel that they can address their
grievances to the court, and that can only be done if they are
assured that their rights will be protected, that they are
assured that they will be treated with respect when they appear
before the judiciary, and that is the type of judge that we
need in the judiciary, the type of judge that is only
appropriate in this system. Thank you.
[The biographical information of Ms. Kendall follows:]
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Senator Durbin. Let me just ask one other question if I can
in the short time remaining.
Senator Sessions knows that one of my heroes is an Alabama
Federal Judge by the name of Frank Johnson, and when I visited
Alabama with John Lewis, Congressman from Atlanta, Georgia, and
he took me to Montgomery and Birmingham and Selma and talked
about that stormy period of civil rights emergence in America.
He said one person who does not receive enough credit is Frank
Johnson, who had the courage to rule that we could have a march
in Selma.
For his courage, Judge Johnson was ostracized by many in
his community, faced threats on his life, threats on his
family. Courage is an element which we all like to believe we
have when it is needed, but I would like you to address that
element because there are times when a judge has to do what is
right even if it is unpopular.
Ms. Kendall?
Ms. Kendall. Thank you, Senator. Well, certainly as a judge
you're always addressing every issue from the perspective of
the precedent that came before you. And so in most instances
you will have the ability to rely on that precedent and feel
comfortable with a decision. And in those unique circumstances,
those very unique areas where for once there is an issue that
you need to address probably by first impression, for example,
I think courage will come into play to apply the law, to look
to the legislative intent, determine what was necessary and to
make that correct decision.
Senator Durbin. Judge DuBose?
Judge Dubose. Well, it's been my experience that I had to
learn that I had to give up the hope of popularity back in high
school, and that I have to have the courage to apply the law
the way you intended, and that's what I have been doing, and
that is what I intend to continue if I am fortunate enough to
be confirmed.
Senator Durbin. Mr. Watkins?
Mr. Watkins. Senator, I am a witness to that era. I lived
in the Middle District at the time, and actually,
Representative Lewis is from my county. I don't know him
personally, but I know his brothers who live in Troy.
I have to say that I admire that level of courage, and that
I think that is an absolute prerequisite to a judge at this
level. And I would give you my word that I have the courage to
do exactly what I believe is right.
Senator Durbin. Thank you.
Thank you, Mr. Chairman.
Senator Sessions. Good questions, Senator Durbin.
Oftentimes the choices become difficult, and it will be a
lonely time for you, but we believe you have those qualities of
integrity and character and strength of conviction to do the
right thing. It is interesting that we have discussed Rosa
Parks and her death in the last week or so, and gone through
that, and talk about Judge Frank Johnson's role in that first
case, and the courthouse that he presided in so long, Judge to
be--we think--Watkins will be serving in.
I forgot to ask you to identify your families. Ms. Kendall,
would you take a moment to identify for us and introduce us
those that are with you?
Ms. Kendall. Thank you, Senator. I appreciate that. I have
a large contingent from Illinois. I have my husband, Preston,
almost 25 years; and my son, Preston; my daughter, Maeve, who
came down from Madison, Wisconsin; and I have another son,
Connor, who is studying hard up at Marquette today, and is here
in spirit; my mother, Marie Cowhey; and my brother, Jim Cowhey;
and one of my sisters, Cathy Cowhey; and two good friends, John
and Kris, Krasnodebski and Boyaris.
Thank you for having us.
Senator Sessions. Very good.
Judge DuBose?
Judge Dubose. Thank you. I have with me my daughter,
Hannah, who turned 13 yesterday; and my husband, Ben Hatfield
of 48 hours; friend Chuck Diard--
Senator Sessions. Making a number of lifetime commitments.
[Laughter.]
Judge Dubose. In 1 week. Gail Linkins, Sheila Jacoby and
Lisa Welch.
Senator Sessions. Very good.
And Mr. Watkins?
Mr. Watkins. Yes, sir. I have my wife, Teresa; and my
daughter, Emily from Nashville; son, Scott Watkins and his
fiancee, Jenny Webb; my nephew Jacob Watkins--stand up, Jacob--
and his father, my brother, John Watkins; and my father, Harold
Watkins, a Navy veteran and a member of the greatest
generation; and my mother, Joanne Watkins; and my uncle, T. Bob
Davis; and good friends Sam and Jill Casey from up here; and
Todd and Pam Perlstein from Troy, Alabama.
Senator Sessions. Very good. Thank you for introducing
those for us.
I would like to pursue a little bit more about the first
question that Senator Durbin had, and to seek a commitment from
you that as Judge Thomas in Mobile used to say, ``Remember, you
are appointed, not anointed.'' And each of you, we hope, will
serve quite a long time. Have you given thought to your role as
a servant; yes, a courageous tough decisionmaker managing the
court, but also as a individual who serves the public and the
parties that come before it, and would you share some thoughts
about that?
Ms. Kendall. Thank you, Senator. I have been privileged to
serve only in the public sector in the Northern District of
Illinois, in Chicago, for my entire career. And I have been
privileged to serve as an Assistant United States Attorney. And
each day when I--even on the most hectic of days, when I am
running from courtroom to courtroom, there are moments when I
sit back and I look out at the courtroom and I think, This is
remarkable, this is really remarkable that the Founders thought
of this and it is really working and it's playing out. Every
day, little justices and very significant justices every day.
And I can only think that it would be the greatest of honor
to serve as a judge within that system, and I believe that over
the years working in the prosecutor's office of service that I
will have the next level of service in that position if the
Committee and the Senate would be so kind as to move me to that
next level of service.
Senator Sessions. Well, good.
Judge DuBose?
Judge Dubose. I certainly made the commitment to continue
what I hope I've been doing for the last 6 years. I practiced
in the Southern District of Alabama in front of some very fine
judges, and I appreciated the way I was treated, and I tried to
extend the same respect to the attorneys as well as the
parties.
I realize every day when a party appears in front of me,
they, too, have families--daughters, husbands, wives--and this
affects their life. This is probably the most important thing
that is happening in their life, and I should pay them
attention and I should pay them the respect that they deserve.
And that is what I hope to continue to do, and I make that
commitment to you.
Senator Sessions. Good. Mr. Watkins?
Mr. Watkins. Thank you, Senator. I echo the remarks of my
colleagues. The only thing I would add would be that there is a
model of leadership called servant leadership, and that is a
model I subscribe to. I think that's the best form of
leadership. And I think by serving, that engenders respect for
the system and for the court and for the decisions of the
court. And I give you my commitment to be a servant leader.
Senator Sessions. Judge DuBose, we are going to have a
hearing later this week on the Federal judiciary and the
caseload that they carry. And one of the things we will discuss
is the role of the magistrate judge. You have been a magistrate
judge now over 5 years. What thoughts have you to share with us
about how you might use a magistrate judge or how the
magistrate judges are used in the Southern District of Alabama?
Judge Dubose. Well, in the Southern District of Alabama, I
have had the opportunity to be what we call fully utilized. We
are allowed to participate in all cases. I handle all discovery
in all civil cases that are assigned to me. I am often--if they
consent to me, I even try the civil cases.
Senator Sessions. If both parties consent, then you
sometimes try those cases as a Federal district judge would.
Judge Dubose. I sit as a district judge to try those cases.
In criminal cases, we handle from the arrest, search warrants,
arrest warrants, from arrest all the way through sitting,
presiding over the jury selection, the natural jury selection.
Then it goes to the district judge. And I have handled summary
judgments, motions to remand, motions to dismiss on what we
call a report and recommendation, where basically we do the
legal research and we write the opinion and we give that report
and recommendation to the district judge.
The parties are allowed an opportunity to object or further
comment, and the district judges often adopt the report in full
without revision.
So I have been given a lot of opportunities. It is very
helpful. In the Southern District, as you well know, we only
had one district judge for a time period, and the magistrate
judges were allowed to participate fully in the system.
Senator Sessions. Are you a believer in that? Do you
recommend that other Federal judges use magistrate judges more?
Judge Dubose. I think it's the most efficient way to move
the court docket and to give the parties--we're able to give
most of our parties a trial within a year, which is probably a
record. I need to ask my clerk of court here, but we move the
cases and it is because of the magistrate judges and their help
that we are able to do so.
Senator Sessions. Ms. Kendall, have you done much work
before a magistrate? Have you got any thoughts--well, first of
all, I understand when you say ``full utilization,'' in the
Southern District magistrates are allowed to do almost
everything that----
Judge Dubose. Everything that the statute and the
Constitution allows us to do.
Senator Sessions. I don't know how broadly they are used in
Northern Illinois, but do you have any thoughts on that?
Ms. Kendall. Yes, Senator. We have a very talented
magistrate judge group in Chicago. The only difference, it
appears to me, from what Judge DuBose said is that we don't
have magistrate judges do jury selection. That would be only
for the district court judge, if it was a felony case. Other
than that, all of the other issues that she mentioned are
issues that we also present, and in my clerking years, I know
that it was a wonderful thing to be able to rely on some of
these very seasoned civil litigators to resolve discovery
disputes and other matters and write the reports and
recommendation, and they always moved the case along at a
faster pace. So they are very efficient and helpful to the
district court judge.
Senator Sessions. I tend to agree. We do not want to have
an exponential increase in the number of Article III judges.
One way to do that is to allow some of the work to be done by
the magistrate judges, also providing ultimately that right of
every litigant to be before an Article III, senatorially
confirmed, lifetime-appointed Federal judge.
Mr. Watkins, you have been a senior partner in a firm, and
you have had lots of different works and clients and demands on
your time. I believe that case management is an important
aspect of a good judge. You have practiced before probably
hundreds of judges, appeared before a hundred or more, probably
several hundred judges in your career. What are your thoughts
and what commitment can you give us that you will manage your
docket, make sure that people have a prompt ruling when
appropriate, and that justice is dispensed as speedily as
possible?
Mr. Watkins. Thank you, Senator. I have had the experience
in court, as I shared with you before, of a case being delayed
many years for a decision after it was tried. And I think not
to be just trite, but justice delayed is justice denied, in
criminal cases and in civil cases.
You don't make it in a small-town practice if you don't
manage your work. I don't have law clerks. I don't have
paralegals. The witnesses, I interview the witnesses, I write
the briefs, I do the pleadings, I try the case, handle the
appeals, whatever comes up.
So I have 29 years of surviving by managing my own personal
docket. I can't tell you how delighted I am to think, should I
be confirmed, that I would have a staff to help with that.
[Laughter.]
Mr. Watkins. Including law clerks. And so I give you my
commitment to keep the docket current. I understand there are a
lot of cases already there for refer to Judge ``X.'' There are
over 250 already assigned to Judge ``X.''
Senator Sessions. And be sure that all the dogs will be
assigned to Judge ``X,'' too, when each of you get there. That
is part of the ritual, I think.
Tell us, Mr. Watkins, about your observations on mediation
that maybe our other nominees would benefit from, and also we
will be thinking about that perhaps as we go forward this week
to discuss the Federal judiciary's caseload.
What are your observations and insights from your extensive
mediation experience?
Mr. Watkins. First, I will note that our judges in the
Middle District do encourage mediation, and it's a very active
practice. I have mediated several Federal cases. Probably a
majority of my cases have been State cases.
Mediation is assisted settlement negotiation. Senator, 98
percent of cases in the Federal system, civil jury cases, are
not tried. A lot of them go out on summary judgment. But only 2
percent of the cases, according to current statistics, are
tried; in Alabama State courts, only 3 percent.
Unfortunately, a lot of cases settle on the courthouse
steps after expense, time, delay, aggravation, tempers, and
those kinds of things. And I like to tell litigants that that
is not an atmosphere of the courthouse that you would buy an
old pick-up truck in. Why would you settle a major case in that
kind of an atmosphere?
Mediation takes you into a private office, usually, or into
private rooms in the courthouse, separate the parties, and do
the Henry Kissinger back-and-forth to convince them of why it
is necessary--or why it is appropriate to settle a case.
Each side has a good advocate. As a mediator I advocate,
too. I advocate settlement because that is the probabilities on
the case. It is a good thing, and Alabama was actually late
coming to a lot of use of mediation, but it will help
tremendously keep the dockets clear.
Senator Sessions. Is there time in the process when a
Federal judge could initiate the appointment of a mediator? Do
you have any thoughts on that?
Mr. Watkins. Yes, sir, the magistrate judges handle that in
our district, and private mediators like myself do likewise,
usually by agreement of the parties, and they are paid
privately by the parties. But at some point in mediation or at
a point when the parties can agree to it--I'm sorry, at some
point in discovery or at a point when the parties can agree to
it is when it should be done. When discovery is relatively,
roughly complete, if the plaintiff has survived the motion for
summary judgment, then it's a good time for mediation at that
time. The parties should be encouraged prior to that to cut
expense in the judicial system and in the private litigation
system.
Senator Sessions. Ms. Kendall, you, like Judge DuBose, had
the honor of standing up in court and representing the United
States of America, which is a thrill to be able to do. But you
also, I noticed, have become an expert and have written on
child abuse problems. Would you share some of your thoughts on
that problem?
Ms. Kendall. Certainly, Senator, and I believe I share your
background, as well, as a prosecutor someplace, right? It is
such a privilege to serve as a Federal prosecutor and stand up
and say that you represent the people.
The work that I have done in the area of child exploitation
started happenstance, really, by a case that came on a duty
day. But over the years, I have had to explore how to
investigate and initiate prosecutions primarily that have
involved the Internet and that have involved that class of
children that is between 12 and 18 years of age, which is an
at-risk group. And I have had the pleasure of working with the
Department of Justice in helping them to look at the statutes
that we had in the past that may not have addressed that group,
and I have had the pleasure of working with victims and trying
to show them all of the statutory rights that Congress passed
for them to aid them in the process. And it has been an
absolute honor to be able to say that there is some change in
that area and that the victims in these cases are being helped.
Senator Sessions. Good. Well, I would just say this to you:
You have gotten the nomination of the President of the United
States. You have had extensive support in your home districts.
You have won the respect of your fellow practitioners and those
who have known your professionally. And each of you have a
tremendous background of public service and a commitment to
helping and serving others. So I think those are qualities that
are important.
I guess most of all we pay you for your judgment. That is
what you will be dispensing, judgment, but I am impressed with
all of you. I think that the Senate will be also. As we wrap up
this year's session, I am not sure how it will develop, but if
there is a way, maybe there will be an opportunity to move you
through before we recess for the year.
Do any of you have anything else that you would like to
say, any complaints that you would like to offer?
[Laughter.]
Senator Sessions. I will ask you--a ``yes'' would be
sufficient--do you know the salary that you will be paid and
are you willing to work for it?
Ms. Kendall. Absolutely.
Judge Dubose. Yes, sir.
Mr. Watkins. I don't know the salary, but I'm willing to
work.
[Laughter.]
Senator Sessions. Well said. Well, you will probably
receive some raises, but perhaps not as many as some on the
bench would like. But it is a demanding job. We look forward to
your service, and we will conclude the hearing at this time. I
look forward to chatting with you for a few moments after we
conclude.
If there is nothing else to come before the Committee, we
will be adjourned.
[Whereupon, at 3:16 p.m., the Committee was adjourned.]
[A submission for the record follows.]
[GRAPHIC] [TIFF OMITTED] T9838.231