[Senate Hearing 111-695, Part 8]
[From the U.S. Government Publishing Office]
S. Hrg. 111-695, Pt. 8
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
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SEPTEMBER 29, and NOVEMBER 17, 2010
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PART 8
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Serial No. J-111-4
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 111-695, Pt. 8
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 29, and NOVEMBER 17, 2010
__________
PART 8
__________
Serial No. J-111-4
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
66-817 WASHINGTON : 2011
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matthew S. Miner, Republican Staff Director
C O N T E N T S
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WEDNESDAY, SEPTEMBER 29, 2010
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 324
Franken, Hon. Al, a U.S. Senator from the State of Pennsylvania.. 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 327
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 2
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting James E. Graves, Jr., Nominee to be U.S. Circuit
Judge for the Fifth Circuit.................................... 7
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Diana Saldana, Nominee to be U.S. District Judge for
the Southern District of Texas................................. 5
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Diana Saldana, Nominee to be U.S. District
Judge for the Southern District of Texas....................... 4
Lincoln, Hon. Blanche, a U.S. Senator from the State of Alamaba
presenting Paul K. Holmes, III, Nominee to be U.S. District
Judge for the Western District of Arkansas..................... 3
Pryor, Hon. Mark, , a U.S. Senator from the State of Arkansas
presenting Paul K. Holmes III, Nominee to be U.S. District
Judge for the Western District of Arkansas..................... 8
Wicker, Hon. Roger, a U.S. Senator from the State of Mississippi
presenting James E. Graves, Jr., Nominee to be U.S. Circuit
Judge for the Fifth Circuit.................................... 7
STATEMENTS OF THE NOMINEES
Battaglia, Anthony J., Nominee to be U.S. District Judge for the
Southern District of California................................ 137
Questionnaire................................................ 138
Davila, Edward J., Nominee to be U.S. District Judge for the
Northern District of California................................ 195
Questionnaire................................................ 196
Graves, James E., Jr., Nominee to be U.S. Circuit Judge for the
Fifth Circuit.................................................. 9
Questionnaire................................................ 16
Holmes, Paul K., III, Nominee to be U.S. District Judge for the
Western District of Arkansas................................... 96
Questionnaire................................................ 97
Saldana, Diana, Nominee to be U.S. District Judge for the
Southern District of Texas..................................... 239
Questionnaire................................................ 241
QUESTIONS AND ANSWERS
Responses of Anthony J. Battaglia to questions submitted by
Senators Coburn and Sessions................................... 292
Responses of Edward J. Davila to questions submitted by Senators
Coburn and Sessions............................................ 298
Responses of James E. Graves, Jr. to questions submitted by
Senators Coburn and Sessions................................... 304
Responses of Paul K. Holmes, III to questions submitted by
Senators Coburn and Sessions................................... 311
Responses of Diana Saldana to questions submitted by Senators
Coburn and Sessions............................................ 316
SUBMISSION FOR THE RECORD
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
prepared statement............................................. 321
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WEDNESDAY, NOVEMBER 17, 2010
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 806
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota,
prepared statement............................................. 815
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 817
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 342
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 331
PRESENTERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Michele M. Leonhart, Nominee to be
Administrator of the Drug Enforcement, Department of Justice... 332
Franken, Hon. Al, a U.S. Senator from the State of Minnesota
presenting Michele M. Leonhart, Nominee to be Administrator of
Drug Enforcement, Department of Justice........................ 334
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota
presenting Michele M. Leonhart, Nominee to be Administrator of
Drug Enforcement, Department of Justice........................ 334
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon
presenting Marco A. Hernandez, Nominee to be U.S. District
Judge for the District of Oregon and Michael H. Simon, Nominee
to be U.S. District Judge for the District of Oregon........... 335
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia
presenting Steve Jones, Nominee to be U.S. District Judge for
the Northern District of Georgia............................... 337
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina presenting Max O. Cogburn, Nominee to be U.S. District
Judge for the Western District of North Carolina............... 339
Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina
presenting Max O. Cogburn, Nominee to be U.S. District Judge
for the Western District of North Carolina..................... 340
Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon
presenting Marco A. Hernandez, Nominee to be U.S. District
Judge for the District of Oregon and Michael H. Simon, Nominee
to be U.S. District Judge for the District of Oregon........... 341
STATEMENTS OF THE NOMINEES
Cogburn, Max O., Nominee to be U.S. District Judge for the
Western District of North Carolina............................. 344
Questionnaire................................................ 345
Hernandez, Marco A., Nominee to be U.S. District Judge for the
District of Oregon............................................. 387
Questionnaire................................................ 388
Hylton, Stacia A., Nominee to be the Director of the U.S.
Marshals Service............................................... 652
Questionnaire................................................ 653
Jones, Judge Steve, Nominee to be United States District Judge
for the Northern District of Georgia........................... 477
Questionnaire................................................ 478
Leonhart, Michele M., Nominee to be Administrator of Drug
Enforcement, Department of Justice............................. 554
Questionnaire................................................ 555
Saris, Patti B., Nominee to be a Member and Chair of the U.S.
Sentencing Commission.......................................... 612
Questionnaire................................................ 613
Simon, Michael, Nominee to be U.S. District Judge for the
District of Oregon............................................. 432
Questionnaire................................................ 433
QUESTIONS AND ANSWERS
Responses of Max O. Cogburn to questions submitted by Senators
Coburn and Sessions............................................ 692
Responses of Marco A. Hernandez to questions submitted by
Senators Coburn and Sessions................................... 699
Responses of Stacia A. Hylton to questions submitted by Senator
Sessions....................................................... 705
Responses of Steve Jones to questions submitted by Senators
Coburn and Sessions............................................ 707
Responses of Michele M. Leonhart to questions submitted by
Senators Grassley, Kohl, and Sessions.......................... 713
Responses of Patti B. Saris to questions submitted by Senator
Sessions....................................................... 742
Responses of Michael H. Simon to questions submitted by Senators
Coburn and Sessions............................................ 762
SUBMISSION FOR THE RECORD
American Bar Association, Kim J. Askew, Chair, Washington, DC,
July 15, 2010, letter.......................................... 779
American Federation of Government Employees, AFL-CIO, John Gage,
National President, J. David, National Secretary-Treasurer and
Augusta Y. Thomas, National Vice President for Women and Fair
Practices, Washington, DC, November 16, 2010, joint letter..... 781
Americans for Safe Access, National Office, Washington, DC.,
letter......................................................... 783
Aron, Nan, Alliance for Justice; Andrea Black, Detention Watch
Newtwork; Donna Red Wig, Grassroots Leadership; Paul Wright,
Human Rights Defense Center; Charlie Sullivan, International
CURE; Tracy Velazquez, Justice Policy Institute, Heidi
Boghosian, National Lawyers Guild; Ken Kopczynski, Private
Corrections Working Group and Craig Holman, Public Citizen,
November 30, 2010, joint letter................................ 792
Aron, Nan, Alliance for Justice; Silky Shah, Detention Watch
Newtwork; Donna Red Wig, Grassroots Leadership; Paul Wright,
Human Rights Defense Center; Charlie Sullivan, International
CURE; Tracy Velazquez, Justice Policy Institute, Heidi
Boghosian, National Lawyers Guild; Ken Kopczynski, Private
Corrections Working Group and Craig Holman, Public Citizen,
November 15, 2010, joint letter................................ 794
Bevier-Thiem, T. Alessandra, letter.............................. 797
Brooks, Ronald E., President, National Narcotic Officers'
Associations Coalition, West Covina, California:
October 1, 2010, letter...................................... 798
November 17, 2010, letter.................................... 800
Brown, Hon. Scott P., a U.S. Senator from the State of
Massachusetts, November 17, 2010, letter....................... 801
Carpino, Louise, President, American Federation of State, County
and Municipal Employees (AFSCME), Local 810, Philadelphia,
Pennsylvania, November 16, 2010, letter........................ 802
Epstein, Jerry, President, Drug Policy Forum of Texas, Dallas,
Texas, letter.................................................. 803
Federal Law Enforcement Officers Association, J. Adler, National
President, Washington, DC, November 15, 2010, letter........... 805
Franklin, Major Neill, Law Enforcement Against Prohibition,
Medford, Massachusetts, statement.............................. 808
Fox, Steve, Director of Government Relations, Marijuana Policy
Project, Washington, DC, November 16, 2010, letter............. 810
Health Professionals for Responsible Drug Scheduling, Sunil
Aggarwal, Founder, San Francisco, California, letter........... 811
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
November 17, 2010, letter...................................... 813
Kerry, Hon. John F., a U.S. Senator from the State of
Massachusetts, statement....................................... 814
National Fraternal Order of Police, Chuck Canterbury, National
President, Washington, DC, November 17, 2010, letter........... 820
National Sheriffs' Association, Sheriff B. J. Roberts President,
Aaron D. Kennard, Executive Director, Alexandria, Virginia,
October 27, 2010, letter....................................... 821
Noorani, Ali, Executive Director, National Immigration Forum,
Washington, DC, November 17, 2010, letter...................... 823
National Organization for the Reform of Marijuana Laws (NORML),
Allen F. St. Pierre, Executive Director, Washington, DC,
November 16, 2010, letter...................................... 824
Private Corrections Working Group & Prison Legal News, November
9, 2010, article............................................... 827
Steenstra, Eric, President, Vote Hemp (VH), Brattleboro, Vermont,
July 23, 2010, letter.......................................... 831
Webb, Hon. Jim, a U.S. Senator from the State of Virginia,
prepared statement............................................. 835
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon,
prepared statement............................................. 836
ALPHABETICAL LIST OF NOMINEES
Battaglia, Anthony J., Nominee to be U.S. District Judge for the
Southern District of California................................ 137
Davila, Edward J., Nominee to be U.S. District Judge for the
Northern District of California................................ 195
Graves, James E., Jr., Nominee to be U.S. Circuit Judge for the
Fifth Circuit.................................................. 9
Hernandez, Marco A., Nominee to be U.S. District Judge for the
District of Oregon............................................. 387
Holmes, Paul K., III, Nominee to be U.S. District Judge for the
Western District of Arkansas................................... 96
Hylton, Stacia A., Nominee to be the Director of the U.S.
Marshals Service............................................... 652
Jones, Judge Steve, Nominee to be United States District Judge
for the Northern District of Georgia........................... 477
Leonhart, Michele M., Nominee to be Administrator of Drug
Enforcement, Department of Justice............................. 554
Saldana, Diana, Nominee to be U.S. District Judge for the
Southern District of Texas..................................... 239
Saris, Patti B., Nominee to be a Member and Chair of the U.S.
Sentencing Commission.......................................... 612
Simon, Michael, Nominee to be U.S. District Judge for the
District of Oregon............................................. 432
NOMINATIONS OF JAMES E. GRAVES, JR., NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; PAUL K. HOLMES, III, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS;
ANTHONY J. BATTAGLIA, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF CALIFORNIA; EDWARD J. DAVILA, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA;
AND, DIANA SALDANA, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF TEXAS
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WEDNESDAY, SEPTEMBER 29, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:03 p.m., SD-
Room 226, Dirksen Senate Office Building, Hon. Al Franken,
presiding.
Present: Senators Whitehouse, Franken, Sessions, and
Cornyn.
OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Senator Franken. Good afternoon. This hearing will come to
order.
Today we will consider five judicial nominations. First, we
will hear from Justice James Graves, Jr., who is nominated for
circuit judge for the fifth circuit.
Our second panel will consist of district court nominees,
Judge Diana Saldana of Texas, Paul Holmes of Arkansas, Judge
Anthony Battaglia of California, and Judge Edward Davila, also
of California.
We are fortunate to have some of these nominees' home State
Senators here to introduce them, and we will turn to them
shortly.
Before we do, I will turn the floor over to my friend, the
Ranking Member, Senator Sessions, for his opening remarks.
Senator.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. It is good to be
with you, and have enjoyed serving with you on the Committee.
You have taken a great interest in these important matters,
spend time on them, and that speaks well of your approach to
law and justice in America; and, have had the good judgment to
correct me on occasion when I have been wrong.
Senator Franken. Very, very, very rarely.
Senator Sessions. You are very, very nice and kind.
Senator Franken. Thank you.
Senator Sessions. We have had, I think, a good Committee
and we try to do our job right. It is the only real opportunity
the American people have in a public forum to have the nominees
answer questions and discuss the issues.
I have looked at the record of the nominees. I have some
concerns. We will discuss some of those today. But we try to be
supportive of good nominees, and I have voted for an
overwhelming number of those. And most have received unanimous
votes out of the Committee.
I would like to take a moment to address the notion, that I
think is mistaken, that district court nominees that the
President has submitted have been treated unfairly or in an
unprecedented manner. On average, Senators have had only 55
days this year to prepare for hearings, that is, from
nomination to hearing of district court nominees.
By contrast, during the Bush Administration, Senators had
an average of 120 days before the district court nominees had a
hearing.
Last week, one of our colleagues raised the question of
whether or not we are violating tradition when two home State
Senators approve a nominee, and he felt that they should get a
straight up or down vote without delay. But that has not been
the tradition, as many have suggested.
Fourteen of President Bush's district court nominees had
the support of their home State Senators, but did not get an up
or down vote, because they were delayed mostly in committee.
Thomas Farr of North Carolina had the support of both Senators
Burr and Dole and waited 757 days and never got a hearing. He
was rated unanimously well qualified by the ABA, and no
concerns were ever raised about his nomination.
Richard Honaker of Wyoming had the support of both Senators
Enzi and Barrasso and waited 655 days for an up or down vote in
the Senate, but it never came. He was rated unanimously well
qualified, the highest rating by the ABA. And the only concerns
raised were his co- sponsorship of a pro-life bill in 1991,
while serving as a Democratic member of the Wyoming House of
Representatives.
Gus Puryear of Tennessee had the support of Senators
Alexander and Corker and waited 569 days for an up or down vote
on the Senate floor, but never got it. The ABA rated him
unanimously qualified, and none of the concerns raised were
significant.
Richard Barry of Mississippi had the support of Senators
Wicker and Cochran and waited 155 days just for a hearing, but
it never came. He was rated well qualified by the ABA, and no
concerns were raised.
So I just wanted to make that point. We are in a lot of
give-and-take and fussing here. So we do have a responsibility,
I think all of us in the Senate, to make sure the nominees are
well treated and we do take seriously the support of home State
Senators.
Thank you.
Senator Franken. Thank you. Thank you, Mr. Ranking Member.
Senator Cornyn, you are going to speak for your nominee. So
I guess what we are going to do now is go to my colleagues, who
are going to speak on behalf of the nominees from their state,
and we will start with Senator Lincoln.
PRESENTATION OF PAUL K. HOLMES, III, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS BY HON.
BLANCHE LINCOLN, A U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Lincoln. Well, thank you, Mr. Chairman and to the
members of the Judiciary Committee. I certainly want you all to
know I appreciate the opportunity to appear before you today to
introduce an enormously well qualified candidate and nominee,
Paul K.--we call him P.K.--Holmes, III, who has been nominated
to serve on the U.S. District Court in the Western District of
Arkansas.
First, I would also like to thank Chairman Leahy for
granting my request that Mr. Holmes receive a hearing so that
the Judiciary Committee can learn about P.K. and why he is such
an outstanding candidate for the Federal bench.
I would also like to recognize P.K.'s wife, Kay, who is
also here with us today, and we appreciate always having family
with our nominees when they come. It is a great opportunity for
us to show that you get teamwork in Arkansas. And that is what
you get out of the Holmes, that is for sure.
P.K. is very well known and very well respected as a lawyer
from Fort Smith, Arkansas, with a wealth of experience in both
the public and the private sector. He is currently a partner at
Warner, Smith & Harris in Fort Smith, where he also started out
as an associate in 1978.
From 1993 to 2001, P.K. left the firm when President Bill
Clinton appointed him and the Senate confirmed him as the U.S.
Attorney for the Western District of Arkansas. So he has got
great experience and, again, very well qualified, and certainly
well respected.
P.K. is a 1973 graduate of Westminster College in Fulton,
Missouri and received his J.D. from the University of Arkansas
in Fayetteville in 1978. He is also known as a leader in his
community. P.K. has been named Lawyer of the Year for the
Arkansas Volunteer Lawyers for the Elderly.
He is on the board of trustees for Lyon College in
Batesville, which is one of our very esteemed liberal arts
colleges in Arkansas. And he is an elder and trustee at the
First Presbyterian Church of Fort Smith.
Much of that is to tell you that I know P.K. not only as an
incredibly professional lawyer, attorney, and certainly a great
U.S. Attorney from the Western District, but, also, from a
family standpoint, we have a tremendous connection.
My brother-in-law and P.K. were undergraduates together. He
served as an attorney for my husband's grandmother, who passed
away a year ago, a year ago last week, a week shy of 112. So
you not only know that he is a good lawyer, he has got great
patience and stamina, as well.
He received an outpouring of support for his candidacy from
Arkansans, who know him both professionally and personally. And
the dozens of letters and calls that we have received all
expressed confidence that P.K. has the experience, the
intelligence, the character, and fairness that qualify him for
a Federal judgeship, and many other exemplary qualifies one
would hope to find in a nominee, as well. I think you can see
that from all of the activities that he is engaged with.
In closing, I would like to thank, again, Chairman Leahy
and the Judiciary Committee, all of the members here, for
allowing P.K. Holmes to receive a hearing, and request your
full attention, careful consideration of his nomination, and
know that he has all of my confidence in terms of the
incredible job that he can do serving on the Federal bench.
So thank you, Mr. Chairman and Ranking Member Sessions. I
appreciate your attention, and certainly want to welcome P.K.
Holmes to the Judiciary Committee and tell him how proud we are
in Arkansas of him.
Thank you.
Senator Franken. Thank you. I hope he can live up to that
introduction.
After my distinguished colleagues make their introductions,
feel free to go back to your other duties. All of us, I know,
have very busy schedules.
So, Senator Lincoln, if you would like to leave us now--you
are welcome to stay, of course.
I would now like to recognize the distinguished Senators
from Texas. Senator Hutchison, thank you for joining us, and
Senator Cornyn, to introduce Judge Saldana.
PRESENTATION OF DIANA SALDANA, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you very much, Mr. Chairman. It is
my pleasure to introduce Diana Saldana, who has been nominated
to serve as a Federal judge for the Southern District in Texas,
Laredo, to sit in Laredo.
Judge Saldana received a B.A. in history and government
from the University of Texas and then received her J.D. degree
from the University of Texas Law School.
Judge Saldana's career has given her a breadth of
experience, and I believe she will serve well on the Federal
bench.
She was born in Carrizo Springs, Texas, only a stone's
throw from where she is currently serving as U.S. Magistrate in
Laredo. Prior to being selected to serve as a magistrate, Judge
Saldana served 4 years as an assistant U.S. attorney. She
handled as many as 350 active Federal criminal cases, ranging
from immigration to narcotics to health care. It was in this
capacity that she was selected court coordinator for Judge
Kazen.
Before her work in the U.S. Attorney's office, Judge
Saldana spent time as a lawyer for the U.S. Department Justice
in the Civil Rights Division and the U.S. Department of
Agriculture in the General Counsel's office. She also served as
a law clerk to Chief Judge George Kazen in the Southern
District of Texas.
Judge Saldana has a solid academic foundation, with
impressive professional experience, and is very respected in
the south Texas community. I believe she is well qualified and
highly competent and would be an effective Federal district
judge in south Texas.
I recommend Judge Saldana to the Committee. Senator Cornyn
and I interviewed her and we feel that she is the best
qualified nominee for this bench.
Thank you, Mr. Chairman.
Senator Franken. Thank you very much, Senator Hutchison.
And, again, feel free to--thank you for appearing and feel free
to go back to your duties, unless you feel some obligation to
listen to your junior Senator, which my senior Senator never
seems to feel.
[Laughter.]
Senator Franken. No, she sometimes enjoys listening to me.
Senator Cornyn.
PRESENTATION OF DIANA SALDANA, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS BY HON. JOHN CORNYN, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Mr. Chairman, I wondered how you were going
to get your way out of that one, but you did very well.
Senator Franken. Thank you.
[Laughter.]
Senator Cornyn. Mr. Chairman, I am pleased to join Senator
Hutchison in welcoming Judge Diana Saldana of Laredo, Texas, to
the Senate and to the Judiciary Committee. We want to welcome
her two sons, who I think are here, Thomas and Luke. Are they
present? Would you mind if they stood? They are next door.
As well as her mother, Blanca Hernandez Rodriguez. And
there she is. Welcome. We are glad you are here.
We also want to acknowledge Diana's husband, Robert. There
is Robert. Thank you, Robert. Robert serves as a police officer
in the city of Laredo, Texas. Robert, we thank you for your
service, as well.
Senator Hutchison has detailed why we believe Judge Saldana
is the best qualified candidate for this position and why we
recommended her to the President. And we are glad we have had a
meeting of the minds with the President on that and he has
nominated her.
I want to take just a couple of minutes to talk about why
she is such a remarkable person and why she is an inspiration
and role model to so many people, because her story really
represents the American dream.
Throughout the selection process, the more I learned about
Judge Saldana's story, the more I grew to admire not only what
she has accomplished, but what she stands for and how she
represents our Nation, which is a beacon of opportunity for
all.
At the age of 10, she began traveling with her mother and
siblings from their home in Carrizo Springs, Texas, to
Minnesota and to North Dakota to work as migrant farmers in the
soybean, sugar beet and potato fields. Because of the seasonal
nature of that work, Diana and her siblings would often leave
South Texas before school had ended and return after the next
school year had begun, which, of course, made keeping up with
school all the more difficult.
She traveled the 1,500 miles north and worked with her
family in the fields every summer through high school and
college. She even worked in the fields during her first year of
law school.
Despite these challenges, she was the first in her
immediate family to earn a college degree. She has recalled to
others that while working in the fields, her mother had told
her that an education was the only way of not being a farm
worker and working in those fields anymore.
Diana was once asked what person had the greatest impact on
her life, and, not surprisingly, she answered, without
hesitation, her mother. Diana explained, ``My mother has a
third grade education, but she was able to raise six children
by working hard and having a deep faith in God. I remember her
working up to three jobs at one time, taking naps in the family
car, when our finances were especially tight, to make ends
meet. My mother instilled in us a strong work ethic and
encouraged us to dream of a better life.''
Today, Judge Saldana mentors young people using her own
story as inspiration and stressing that anything is possible if
you are willing to work hard and sacrifice and stay focused.
Let me conclude with this, Mr. Chairman. Diana has been
nominated to fill the vacancy left by her mentor, Judge George
Kazen, who is taking senior status. Judge Kazen knows Diana
well. She served as his law clerk, appeared before him as a
Federal prosecutor, and presided over many of his cases as a
Federal magistrate judge.
He described Diana as, quote, ``One of the finest law
clerks he ever had; a tough, no nonsense prosecutor, and a
quintessential judge; intelligent, hardworking, honest, fair
and decisive.''
Finally, Judge Kazen told us that it would be his personal
honor if Judge Saldana were confirmed as his successor. I
cannot think of much higher praise.
Mr. Chairman, I look forward to working with you and all of
our colleagues on the Judiciary Committee to swiftly confirm
Diana Saldana as United States District Judge for the Southern
District of Texas and look for an expeditious consideration of
her nomination on the floor and an affirmative vote.
Thank you.
Senator Franken. Thank you, Senator Cornyn, and thank you,
Senator Hutchison, for the very eloquent introduction of Judge
Saldana.
I would now like to welcome my distinguished colleagues
from Mississippi, Senator Cochran and Senator Wicker, to
introduce Justice James Graves, Jr.
Senators, thank you both for being here. We will start with
Senator Cochran.
PRESENTATION OF JAMES E. GRAVES, JR., NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT BY HON. THAD COCHRAN, A
U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much. I am
very pleased to introduce Justice James Graves to the Judiciary
Committee. He has been nominated by the President to serve as a
circuit court judge on the United States Court of Appeals for
the Fifth Circuit.
He received his undergraduate degree from Millsaps College
in Jackson, Mississippi. He earned a law degree from Syracuse
University College of Law, and he has a master's degree of
public administration from Syracuse University.
Justice Graves has served as legal counsel in the
Mississippi Attorney General's office in the Divisions of Human
Services and Health Law. He also served as director of the
Child Support Enforcement Division at the Mississippi
Department of Human Services.
Justice Graves currently serves as a presiding justice on
the Mississippi Supreme Court. Before his appointment to our
State Supreme Court in 2001, he served as a Mississippi trial
court judge for 10 years. His other experiences include working
with the Mississippi Legal Services and other community
organizations in our State.
Soon after his graduation from law school, he served as an
adjunct professor at several universities in our State. He has
received many honors, and the Mississippi legal community is
very proud to have joined in endorsing him and recommending his
nomination to the Committee.
So I am pleased to recommend his confirmation to the
Senate.
Senator Franken. Thank you, Senator.
Senator Wicker.
PRESENTATION OF JAMES E. GRAVES JR., NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE FIFTH CIRCUIT BY HON. ROGER WICKER, A U.S.
SENATOR FROM THE STATE OF MISSISSIPPI
Senator Wicker. Thank you, Mr. Chairman and members of the
Committee. I am glad to join Senator Cochran here today, and I
appreciate this opportunity to say a few enthusiastic words
regarding the nomination of Mississippi Supreme Court Justice
James Graves to serve on the United States Court of Appeals for
the Fifth Circuit.
Of course, Justice Graves will have an opportunity to
introduce his wife, Betty, and his family. They are here with
him today. I know that this is a significant moment of
accomplishment for the family, as well, and I congratulate
them.
I support this nomination for all of the reasons that
Senator Cochran has already outlined--this candidate's
education, his professional experience, and his life
experience.
I would add to the specifics mentioned by Senator Cochran
the fact that Justice Graves has been recognized on numerous
occasions with awards noting his true servant's spirit, which I
believe is a testament to his dedication to his family and
community.
Those who know him know that he is particularly committed
to teaching, motivating and inspiring young people,
particularly the young people of his native State of
Mississippi. For example, he has coached high school, college
and law school mock trial teams, including the Jackson Murrah
High School mock trial team, which won the 2001 State
championship. Also, in 2001, he was honored as the Jackson
Public School District Parent of the Year.
These are just some of the many examples that demonstrate
his remarkable service to the public, in addition, of course,
to the education and professional accomplishments that Senator
Cochran mentioned.
So in conclusion, let me say, Mr. Chairman, that I support
this nomination and I congratulate Justice Graves and wish him
all the best.
Thank you to the members of the Committee for your hard
work in this confirmation process. Thank you.
Senator Franken. Thank you, Senator. I would like to thank
both of my distinguished colleagues from Mississippi.
I see now that Senator Pryor has joined us to introduce
P.K. Holmes. I have learned now it is P.K., and not just Paul.
Thank you for joining us.
Senator Pryor.
PRESENTATION OF PAUL K. HOLMES, III, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS BY HON.
MARK PRYOR, A U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Pryor. Thank you, Mr. Chairman. And thank you for
having me here, and thank all the members of the Committee.
I come here today to say a few words about P.K. Holmes. And
let me tell you, when the vacancy arose in the Western District
of Arkansas, typically, as you all know, there is a long line
of people who want to be a Federal Judge. But as soon as P.K.
Holmes' name arose, everybody else dropped off the list.
Everybody defers to P.K. Holmes. The fact that he was an
outstanding U.S. Attorney for the Western District for 8 years,
from 1993 to 2001; the fact that he has practiced law in Fort
Smith in the areas of commercial litigation and white collar
criminal matters with Warner, Smith & Harris there for years
and years; and, just the fact that he has built his reputation
all over the State of Arkansas for outstanding character, for
the right kind of hard work, the right kind of proper judicial
temperament, just the right kind of commitment to the legal
profession, and respect for the courts.
Basically, everybody else just said, ``Hey, if P.K. wants
it, then he would do a much better job than I could ever do,''
and one-by-one, they just dropped off the list.
So it really is my privilege today to say a few kind words
about P.K. I know Senator Lincoln was here a few moments ago.
Just as a personal matter, I have known P.K. since I was
probably about 12 years old or younger probably, and he has
just always been an outstanding person and we have all watched
and admired his legal career and how he handles himself with
his family and in his profession and in his community, and he
is just exactly the kind of person I think we would all want on
the Federal bench and someone that we will all be very proud
of.
Thank you for having me today.
Senator Franken. Thank you, Senator Pryor. And, again,
thank you for coming here, for that introduction, and feel free
to get back to your duties.
My colleagues, Senator Feinstein and Senator Boxer,
unfortunately, cannot be here, but have submitted, of course,
positive blue slips for both Judge Battaglia and Judge Davila.
I have statements from both Senator Feinstein and Senator
Boxer, which I will submit for the record.
[The statements appear as a submission for the record.]
Senator Franken. Let me just highlight just a part of
Senator Boxer's statement. She writes, ``For the past 16 years,
Judge Battaglia has served with distinction as a magistrate
judge on the Southern District of California. He has a
reputation as a judge's judge, hardworking, thoughtful and
fair.
When he was in high school, Judge Battaglia took a class
trip to tour the San Diego Superior Court Building. He said he
was awestruck by the solemnity and dignity of the proceedings
and the judges he saw on that tour. He aspired 1 day to become
a judge.
Today, he says that he hopes that maybe, just maybe, he can
give something back by inspiring a child the way he was
inspired.''
About Judge Davila, Senator Boxer said, ``For the past 8
years, Judge Davila has served on the Santa Clara County
Superior Court, where he has drawn praise from fellow judges
and lawyers for his hard work, integrity and fairness.
In a recent survey by the Santa Clara County Bar
Association, Judge Davila's performance was rated excellent or
very good by more than 80 percent of participants with respect
to his work ethic, knowledge of the law, and procedure
integrity, dispute resolution, and judicial temperament.''
So for all the nominees who have been introduced, I thank
you all for your service to our country and for offering
yourselves up for this great responsibility.
Justice Graves, will you take your seat on our panel,
please? Actually, before you do, why do you not just stand and
raise your hand, swear in the oath?
[Nominee sworn.]
Senator Franken. Please have a seat. Justice Graves, I
understand some of your family and friends are here. So please
feel free to introduce them on this proud day.
STATEMENT OF JAMES E. GRAVES, JR., NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Justice Graves. Thank you very much, Mr. Chairman. I'd like
to first thank the President for nominating me to serve as a
judge on the Fifth Circuit Court of Appeals. I want to thank
Chairman Leahy for an opportunity to appear before this
Committee. I want to thank Ranking Member Sessions. Thank you,
Mr. Chairman. Thank all on the Senate Judiciary Committee for
the opportunity to be here today to answer any questions the
Committee may have.
I appreciate the opportunity to introduce members of my
family who are present here today, and I am asking them to
stand when they are introduced.
My wife, who has been married to me sometimes for longer
than she cares to recall, is here and I am going to ask her to
stand. My parents are here, both my mother and father.
Senator Franken. Welcome, and congratulations.
Justice Graves. I have three sons and, actually, I didn't
look back to see if the third son had made it. But my three
sons----
Senator Franken. That is yes, I think.
Justice Graves. Is that a yes? He is here.
Senator Franken. Well, I see a hand up.
Justice Graves. Very good. I am very happy, son.
[Laughter.]
Justice Graves. That would be my son, Chris. And my son,
James, and his wife, Tiffany. My son, Jeffrey, and his wife,
Eyra. And someone should be holding my beautiful granddaughter.
Senator Franken. Your daughter-in-law is holding your
granddaughter.
Justice Graves. Wonderful. They told me not to look back.
They said, ``Talk into the microphone, don't look back.''
Senator Franken. You can look and then talk.
Justice Graves. I can look and then talk.
Senator Franken. Yes.
Justice Graves. That's going to be hard.
Senator Franken. Well, it is not a qualification for judge.
Justice Graves. And I think that's all of the immediate
family that's here. Well, my brother, Darrell, is here. He's
only 6,6", so it's easy to understand how I might have
overlooked him. Darrell is here.
And then I have some of my chamber staff who are here, my
clerk, Sherwood Colette is here. My assistant, Jackie Losset is
here. My other clerk, Susan Huett, I am absolutely certain is
watching the live Webcast. And I want to thank all those people
for the support they have given me over the years. I thank them
for being here.
My three sisters, I am certain, are watching the live
Webcast, as are my colleagues, I hope, or at least they're
going to tell me they saw it, my colleagues at the Mississippi
Supreme Court.
But I really do appreciate this opportunity. I thank all my
family and all the other friends who are here today.
And having no formal remarks, Mr. Chairman, I'd be pleased
now to answer any questions the Committee may have.
Senator Franken. Absolutely. And I would like to welcome
your family and your staff members who are here on this, which
must be a very proud day for them.
Justice Graves, we met yesterday.
Justice Graves. Yes.
Senator Franken. I must say I was very impressed during our
conversation. You have served on Mississippi's highest court
for nearly 10 years. If you are confirmed to the fifth circuit,
more of your work will involve interpreting our work here; and
by that, I mean, of course, Federal statutes.
How will you make sure that you interpret Federal statutes
in line with our intent in passing them?
Justice Graves. Well, I think I would--with regard to my
work as an appellate judge, if confirmed for the court of
appeals, I would approach those cases the same as I've
approached the handling of cases in the 9 years now that I've
been a Mississippi Supreme Court justice.
I would examine the record, look at the law that was
applicable to the record, the facts of that particular case,
apply the law to the facts, in trying to reach an appropriate
result in whatever case is before me as a judge.
Senator Franken. Well, is there any way you feel that your
job would be different as a Federal appellate judge than as a
Supreme Court justice in the State of Mississippi?
Justice Graves. I'm certain it would be different to the
extent that I would be dealing with Federal law. Now, as a
Supreme Court justice in the State of Mississippi, obviously, I
am, for the most part, dealing with cases that arise either
under our constitution or under our state laws and the laws
passed by our legislature.
As a Federal judge, I know that I would be dealing
primarily with Federal law and, as you stated, laws passed by
the U.S. Congress, and it would be necessary for me to read--
study that law and apply it to the facts in the particular case
that would be coming before the court of appeals.
Senator Franken. As a Supreme Court justice, how did you
determine the intent of the State legislators when they passed
those laws? Would you just simply go by the text of the law?
Would you go into the record that was made while the law was
debated and passed?
Justice Graves. I think on first approach, you look at the
statute and try and determine what the language of the statute
says, and that's the first place to look in determining what
the statute means. Hopefully, it says what it means and it
means what it says.
And in the State of Mississippi, there is a dearth of
legislative history. And so there's not a lot of that there in
terms of recorded history with regard to debate that preceded
legislation, those kinds of things.
So typically, it's looking at the statute, trying to
interpret what the statute means, if it means what it says. The
next thing you'd do is look at whether or not there is any
precedent, any case law, where there have been judicial
interpretations of a particular statute, and you would look to
that precedent for guidance in reaching a decision involving
that statute, in the State of Mississippi.
Now, I recognize that with the U.S. Congress, there could
be some more extensive records, history regarding legislative
intent.
Senator Franken. Thank you. Justice Graves, I think it is
remarkable that you have remained so active in your community,
despite the rigors of your position as justice in the State
Supreme Court.
Can you tell me about your work on the board of Operation
Shoestring and the Mississippi Children's Museum?
Justice Graves. Operation Shoestring is an organization
which started more than 40 years ago in an area of Jackson,
which is now sort of a--it has been a blighted area, but the
area is being revitalized.
But Operation Shoestring promotes and sponsors after school
programs to educate and involve the children in that community.
They have programs for teaching children, which have resulted
in improvement in their test scores, reading programs, literacy
programs, and sometimes just feeding programs and daycare and
after school programs for children in the community.
And I've been serving on that board now for more than 3
years, because I think Operation Shoestring does such important
work in the community.
Mississippi has no children's museum. And so several years
ago, some members of the Junior League and a couple of other
organizations got the idea to start a children's museum, and
they asked me to serve on the advisory committee. And I just
have a deep concern for children and education.
And my vision was that a children's museum would be a great
vehicle for educating children, and so I agreed to serve on the
advisory committee, and then on the board. When the project
began, it was determined that there was a need to raise about
$25 million, and this was maybe 5 years ago, to get the museum
started.
I, as a judge, obviously, can't be involved in fundraising,
but every other aspect of the museum that I could be involved
in, I have been involved in.
I am pleased to report that the grand opening for the
Mississippi Children's Museum--and they'll be happy I'm doing
this now--the grand opening for the Mississippi Children's
Museum will be this fall. It is the first children's museum in
the State of Mississippi.
Senator Franken. Thank you, Your Honor. And I will turn it
over to the Ranking Member.
Senator Sessions. Thank you. Justice Graves, it is a
pleasure to be with you again. I enjoyed our opportunity to
talk and appreciated your comments at that time, and I enjoyed
that opportunity in dialogue.
It is good that you have your home State Senators' support.
And you have had a good bit of time now, 8 years, on the
Mississippi Supreme Court. Well, by now, you have probably
decided whether you like writing opinions or not.
Do you like that work?
Justice Graves. Yes, sir.
Senator Sessions. The burden on judges is significant, and
I think the caseload burden on our justices probably will
remain high. There are several reasons I think that we should
not add judges just to continue a certain fixed number of
cases.
I guess we are going to have to do better and keep the
collegiality and smaller numbers, where possible. And I suppose
you are willing to serve for the pay that has been offered. Do
you know what the pay is?
Justice Graves. I have a general idea, but I am certain I
am willing to serve for that pay.
Senator Sessions. And we hope 1 day judges can get pay
raises, but we are in a tight budget. So it cannot be
guaranteed.
Let me ask you about Doss v. State; your former colleague
on the Supreme Court of Mississippi, Judge Diaz, wrote, in
dissent, and you joined it, and stated the following: ``When
our founding fathers ratified the Federal and State
Constitutions in 1788 and 1890, they did not consider all forms
of the death penalty to be violative of our bans on cruel and
unusual punishment.'' And I certainly would agree with that.
''But just as we would disagree with our framers,'' he went
on to say that, ``for example, the execution of a child,
necessarily amounts to a violation of the Eighth Amendment, our
society's notion of what is cruel and unusual changes with
time.''
Do you personally agree with that, that the cruel and
unusual definition changes with time?
Justice Graves. Senator, that Doss opinion, was handed down
by the Mississippi Supreme Court, I believe, in 2008 and
Justice Diaz did write a dissenting opinion in that case, which
I joined.
But I'd like to point out that there were two issues about
which I was chiefly concerned in that case, and those two
issues had to do with the ineffective assistance of counsel and
the mental retardation issue.
His dissenting opinion addressed, in part one, those two
issues. And those were the only two issues raised by the
defendant in that case. Those were the substantive issues.
Those were the issues about which I was concerned, and I take
responsibility for joining that opinion.
But I have not now nor have I ever espoused any view that
the death penalty was unconstitutional, and, in fact, that case
was brought back on re-hearing before the Mississippi Supreme
Court in 2009 and I had an opportunity to author a majority
opinion in that case and I addressed in that majority opinion
one of the chief issues which concerned me, and that was the
ineffective assistance of counsel issue.
I wrote a dissenting opinion in that case with regard to
the mental retardation issue. But that case has been withdrawn.
A new opinion has been handed down, and everything that I
wanted to say about Doss and the issues involved in the Doss
case I said and had every opportunity to say in the new opinion
which was handed down in 2009, and I chose to address those two
issues and nothing else.
Senator Sessions. Well, I understand that, and cases come
fast and furious to a court. But language does have meaning, I
think.
Later on, one of the decisions Justice Diaz cited was the
Supreme Court's opinion in Roper v. Simmons. In that decision,
the Supreme Court relied on foreign law in holding that the
execution of minors violated the Eighth Amendment.
Do you think it is proper to look to foreign law to define
the Eighth Amendment of the United States Constitution?
Justice Graves. I think it's proper to look to the laws of
the United States and the Constitution of the United States in
making determinations about the Eighth Amendment to the United
States Constitution.
Senator Sessions. Well, I think I agree with what you said.
Justice Diaz's dissent went on to conclude, quote, ``The death
penalty is reduced to pointless and needless extinction of
life, with only marginal contributions to any discernable
social or public purpose. A penalty with such negligible
returns to the State is patently excessive and cruel and
unusual punishment, violative of the Eighth Amendment,'' close
quote.
That, I suppose, is the phrase that worried me the most. It
seems that you went along with the opinion that he had written
that the death penalty is pointless and needless extinction of
life. That is a matter we can talk about and disagree.
But I am more worried about the apparent statement that it
is so negligible in returns to the State, that it is patently
excessive and cruel and unusual punishment, violative of the
Eighth Amendment.
Is that your position today?
Justice Graves. No, it is not, Senator. And all I can say
is that when I read what he wrote, I viewed it as his plea for
a dialog on the efficacy of the death penalty.
In retrospect, I can see how it may not be clear, but I
never intended to adopt his thoughts, his concerns with regard
to the death penalty. My chief concern was the ineffective
assistance of counsel issue, the mental retardation issue.
Senator Sessions. Well, the Constitution deserves a fair
interpretation, it seems to me, and what essentially the people
who ratified it meant. And would you not agree that there are
multiple references in the Constitution from the earliest draft
through various amendments, the Fourteenth Amendment and others
later, that refer to capital crimes? You cannot take life
without due process, but you could take life with due process.
I think there are six or eight such references.
So it would be difficult to interpret the Eighth Amendment,
cruel and unusual punishment, it seems to me, as the
Constitution prohibiting all death penalty. Would you agree
with that analysis?
Justice Graves. Senator, I fully expect that if I am
confirmed, I will take an oath and that oath will be to uphold
the laws and the Constitution of the United States. And the
United States Supreme Court has determined that the death
penalty does not constitute cruel and unusual punishment, and I
would follow the law as handed down by the United States
Supreme Court.
Senator Sessions. Well, we had two members of the Supreme
Court that dissented in every case, Justices Marshall and
Brennan, and they contended the death penalty was cruel and
unusual and that it was unconstitutional.
No longer are such dissents occurring. It seems to me that
Judge Diaz and you signed an opinion that agreed with that
view. But I hear you saying that that did not necessarily
represent your carefully considered intellectual view of that
particular issue. It was more a willingness to sign on to
Justice Diaz's dissent as an expression of concern about this
case. But it did say more than that, apparently. It seemed to
say a good bit more.
Would you just share once more your thoughts about this
fundamental question about whether you could use the Eighth
Amendment to declare all death penalties unconstitutional?
Justice Graves. I think, Senator Sessions, that maybe the
best evidence of how I would handle death penalty matters, if
they came before me as a judge on the Fifth Circuit Court of
Appeals, is the way I've handled them as a Mississippi Supreme
Court justice.
In the 9 years that I've been a Supreme Court justice in
the State of Mississippi, I've had an opportunity to vote on at
least a dozen death penalty cases, where I've voted to affirm
both a conviction and a sentence of death.
I've voted to affirm convictions and death sentences both
before that Doss opinion and since the Doss opinion.
Senator Sessions. I appreciate that. I guess I would go one
more step here and say as you analyze the Constitution and laws
of the United States that come before you, will you seek to
enforce them as they are written, fairly interpreting them as
best you are able, to carry out the will of the populous who
elected them through their elected representatives, passed them
through their elected representatives?
And the fact that you may or may not agree that the death
penalty is good policy--and I think people can disagree about
that--do you think that the Constitution prohibits its
implementation, if left to your judgment?
Justice Graves. If left to my judgment, I'm going to follow
the law as handed down by the United States Supreme Court, and
it clearly is that the death penalty does not constitute cruel
and unusual punishment.
Senator Sessions. But you signed an opinion that seemed to
say that you do not agree with that, that you believe that it
is of negligible benefit to the State; therefore, it is
unconstitutional. Is that what you meant to say?
Justice Graves. It is not.
Senator Sessions. Thank you.
Senator Franken. Remember, you said the thing about----
Senator Sessions. My time is over.
Senator Franken.--my correcting you. Thank you.
Senator Sessions. The Chairman has a right to bring the
hammer down on elongated questioning.
Senator Franken. Yes. Thank you. I would like to thank the
Ranking Member. And thank you, Justice Graves. We will now
proceed to the second panel.
Justice Graves. Thank you.
Senator Franken. Why do not you all come forward and
instead of sitting, please remaining standing so that you can
swear the oath.
[Nominees sworn.]
[The biographical information follows.]
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Senator Franken. Thank you. Please be seated.
I now invite you to introduce any members of your families
that are here today. Why do we not start from my left?
Mr. Holmes.
STATEMENT OF PAUL K. HOLMES, III, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS
Mr. Holmes. Thank you. First, let me thank the Chairman of
the Committee and the Ranking Member for scheduling this
hearing today and this opportunity to be heard, and thank you,
Senator Franken, for chairing the Committee.
I'm really appreciative of the nomination by the President
of the United States to be United States District Judge for the
Western District of Arkansas. And I'm also appreciative of the
support of Senators Blanche Lincoln and Mark Pryor in
recommending my nomination to the President.
I would like to introduce my family here. I would like for
my wife of 31 years, Kay, to please stand. And we have two sons
who could not be here today, because they cannot miss college
classes. Our son, Christopher Holmes, is in Batesville,
Arkansas, watching on the Webcast; and, our son, Stephen
Holmes, is in Fort Smith, Arkansas, watching on the Webcast.
And with that, I will be glad to answer any questions the
Committee may have. Thank you.
Senator Franken. Well, thank you.
[The biographical information follows.]
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Judge Battaglia--I did say Battaglia at the first pass by
your name, I apologize. Any Battaglias here today?
STATEMENT OF ANTHONY J. BATTAGLIA, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF CALIFORNIA
Judge Battaglia. There are, Senator. And thank you for
chairing today's hearing. I'd like to thank Chairman Leahy for
scheduling this and Ranking Member, Senator Sessions, as well.
And let me thank, also, the President for the nomination;
Senator Boxer for recommending to the President for
consideration; and, Senator Feinstein, for her tremendous
support in this process.
I'd like to introduce my wife of 33 years, Carol Battaglia,
who is behind me, and I'd like her to stand.
Senator Franken. Welcome.
Judge Battaglia. Also, Carly Battaglia, now Nardin, my
daughter, and her husband, Brandon Nardin, late of the U.S.
Marine Corps, who are here with me. And my son, A.J., Anthony
James Battaglia, who is here, as well.
Also, joining me from San Diego, I'd like to introduce, if
I may, Russell Block, who is a professor at San Diego State and
the husband of Judith N. Keep, who left us far too young. She
was the chief judge that appointed me in 1993, a mentor, an
inspiration, and I'm just so thrilled to have Rusty, as we call
him here, on her behalf and his, to support me.
Our clerk of court, Sam Hamrick, from San Diego, who was in
town and chose to come. The Honorable Mary Schroeder, former
chief of the Ninth Circuit Court of Appeal, who has been a
long-time friend, mentor and inspiration, as well. And I would
be remiss if I didn't thank Tom Hnatowski, the chief of the
Magistrate Judges Division of the Administrative Office; and,
Margaret Irving, the chief of the Article III Division of the
Administrative Office, who have attended today.
At home, I do have my 88-year-old mother watching on the
Webcast, along with my brother, who is there caring for her.
And I do have all of my magistrate judge colleagues, who are
now in their noon meeting, watching me instead of attending to
business, which I appreciate very much, and our district
judges, who have supported me so faithfully throughout this
process.
So thank you, Senator, for allowing me to recognize these
very important folks.
Senator Franken. Thank you very much, Judge Battaglia, and
welcome to all of you.
Judge Davila.
[The biographical information follows.]
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STATEMENT OF EDWARD J. DAVILA, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA
Judge Davila. Thank you. Thank you, Mr. Chairman. And I
would also like to thank the President for my nomination. I
feel humbled and privileged to be here to discuss issues with
the Chairman and the Ranking Member. And thank Chairman Leahy
for arranging this hearing for all of us here this afternoon.
I do have family members here that I'd like to introduce.
But I'd also like to thank my home State Senator, Senator
Boxer, for her nominating me to the President; and, my other
State Senator Feinstein, for her continued support.
I would like to introduce my wonderful wife, Mary
Greenwood, who is present.
Senator Franken. Welcome.
Judge Davila. And our fantastic 13-year-old daughter,
Chela, who is also present. She's missing a few days of her
rigorous middle school to be here on this wonderful educational
experience, and she'll return shortly.
Our dear family friend, Mary Maben, is also here. She works
in San Jose and in Washington, DC, and I'm happy to have her
here to support me, as well.
Senator Franken. Welcome.
Judge Davila. Thank you. There are others who are not here,
and, Senator, if I may for just a moment, tell you I was very
privileged to be raised in a matriarchal family; a single
mother, and there were three other women who were of great
significance in my life--my grandmother, who has passed away
now, and my Aunt Trini, is 90-years-young, and, of course, my
mother. They could not be here. Their health situation
precludes them from being here, but all three of those people,
I've learned so much from them and all there of them continue
to be with me here and I'm happy to have their support in
spirit, if it not in flesh.
I should also recognize and thank my two sisters, Celia and
Linda, who I believe are watching the Webcast, as well. And, of
course, I need to thank my wonderful court staff, Maggie and
Mary Lou, who I am convinced are the best in the business. No
disrespect to my colleagues and their staff. But I'm grateful
for all their support.
Thank you very much.
[The biographical information follows.]
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Senator Franken. Thank you, Judge. And for all the women
that you have mentioned watching on the Webcast, welcome. Hi,
welcome to you, too.
Judge Saldana, thank you for being with us.
Congratulations. And please feel free to introduce any members
of your family or staff or friends who are here today.
STATEMENT OF DIANA SALDANA, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
Judge Saldana. Thank you, Senator. I want to start off by
thanking President Obama for the nomination. It is truly an
honor to be here today with you and with Ranking Member
Sessions.
I want to thank Senator Cornyn and Senator Hutchison for
their very kind words and their introduction to me. I want to
thank them for establishing a bipartisan Committee in the State
of Texas to review applications, and for their support
throughout this process. I also want to thank Congressmen Henry
Cuellar, my home Congressman from Laredo, Texas.
I am here because of the support of family and friends. I
would like to recognize individuals who are here with me today
and, also, some who were not able to travel with me to
Washington, DC.
I want to start off by introducing my husband, Robert
Arredondo, who stood up earlier today when Senator Cornyn was
introducing me. He is a proud member, as he indicated, of the
Laredo Police Department and a wonderful husband. He and I just
became the proud parents of two boys, Thomas and Luke, who are
seated next door. They are ages 4 and 5, and we were worried
that they would not be able to sit through the hearing. So they
are next door with my niece, Adriana Perez, who is here and
volunteered to watch them for us.
My mother, Blanca Hernandez Rodriguez, is here with me. As
Senator Cornyn indicated earlier, she is my inspiration. She
taught me to be a very hard worker and really gave me the
opportunity to dream of being here someday. She worked very
hard for all of her six children. All six received high school
diplomas and four of them college degrees. I am fortunate that
two of my sisters were able to be here today, my sister, Rose
Pearson, and her son, Daniel Kenneth Pearson, Jr., and then my
sister, Blanca Saldana. Her daughter, Adriana, is the one who
is watching our two boys right now.
I have two other sisters who were not able to be here with
me today, Linda Garcia, who was like a second mother to me.
She's older than I am, but she is like a second mother to me.
And she's an accountant and was not able to get away from work,
unfortunately. But I know that she is here with me in spirit.
And her children, Samantha and Brandon, and her husband,
Martin.
My other sister, Beatrice Saldana, was not able to be with
me either, but I know that she's watching the Webcast. And my
brother, Rudy Saldana, and his sons, Joseph, Emanuel, Abraham
and Jeremiah. I have 11 nieces and nephews, so I have to make
sure I introduce all of them. And Elijah.
Senator Franken. I am not sure we have time.
[Laughter.]
Judge Saldana. And Elijah Pearson, who was not able to be
here with me. My mother-in-law, Laura Arredondo; my sister-in-
law, Linda Arredondo----
Senator Franken. Welcome.
Judge Saldana.--traveled from Laredo and from Austin to be
here. My college roommates, Ronnie, Veronica Ruiz, and Lila
Michele Garza, Sarah Martinez traveled here.
Senator Franken. Welcome.
Judge Saldana. My only other college roommate, who was not
able to be here, is Christy Isom (ph), but I know that she is
watching with her kindergarten class in Austin, Texas.
My wonderful staff in Laredo, Margie, Irene and Yamil, all
of the staff at the Federal courthouse in Laredo, Texas, my
colleagues at the Federal courthouse, Judge Alvarez, Judge
Hacker, Judge Garcia.
And I would like to conclude by thanking Judge Kazen, who
is my mentor. I clerked for him when I graduated from law
school and I, if confirmed, will succeed him. He has been an
inspiration to me. He has a tremendous work ethic. For over 20
years, he served the Laredo division as the only Federal
district judge in Laredo, with an overwhelming criminal docket,
on the border. And I want to thank him for all of his support,
and his beautiful wife, Barbara Kazen, as well.
And I welcome any questions from the Committee. Thank you.
[The biographical information follows.]
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Senator Franken. Thank you. I want to just welcome
everyone, all these family members and significant folks who
came here today. This must be a very proud moment for all of
you. Congratulations.
Well, why do I not start the questioning here? I will start
with Judge Davila. Before you became a judge in 2001, you
stated that you would need to leave the role of an advocate
behind and become an objective listener.
Can you tell us the difference that you see between being a
judge and being an advocate and how you took on that
transition?
Judge Davila. Thank you, Mr. Chairman. Yes. And it is a
transition that I'm certain all my colleagues here have had to
make from their practices, from their days as a lawyer, where
we represented a cause, a client, and argued cases in front of
judges. And in those situations, we were not unbiased. We were
very biased, because we were, of course, pursuing the goal of
our client's best interest. And I did that for 20 years as a
lawyer.
Of course, making the transition to the bench, one leaves
that behind, as I indicated, and you no longer are an advocate.
You become a neutral and impartial fact-finder and you must
make decisions accordingly.
Senator Franken. Thank you, Judge.
Senator Whitehouse, my colleague from Rhode Island, has
just stepped in and was a Federal attorney--is that right?
Senator Whitehouse. Correct.
Senator Franken. With P.K. Holmes--or United States
attorney.
Senator Sessions. The United States attorney.
Senator Whitehouse. The United States attorney. Let me
thank the Chairman and the Ranking Member for letting me
interrupt the proceedings just for a second on a small point of
personal privilege.
I had the great pleasure of serving with P.K. Holmes as
United States attorney, me for the District of Rhode Island,
him for the District of, if I recall, Arkansas, during the
Clinton Administration, and I am delighted to see that he is
now a candidate for judicial office.
I wanted to extend him my best wishes for a swift and
uneventful confirmation.
Mr. Holmes. Thank you, Senator.
Senator Whitehouse. Welcome. Welcome to all the candidates,
but in particular, thank you and best wishes to you, Candidate
Holmes, Nominee Holmes.
Mr. Holmes. Many thanks for your kind remarks.
Senator Franken. Well, that is the greatest wish that any
member of this panel can give you. So congratulations, former
U.S. attorney.
Let me go to Judge Saldana. I will say that the
introduction you were given by both Senators was very eloquent,
and you do have a truly remarkable background. I congratulate
your mother.
You have overcome more, I would submit, than most of your
future colleagues on the Federal bench. How has that shaped you
and how do you think that has shaped your judging, if it has at
all?
Judge Saldana. Thank you, Senator. Growing up as a farm
worker, traveling throughout the country, I was able to see
what different persons experienced from different backgrounds.
Actually, going to the great State of Minnesota and meeting the
people there and lots of people who are watching, I think, on
the Webcast from Minnesota who I still keep in touch with, it
really gave me a wide breadth of experience, I believe, and has
made me a well rounded person.
And it really drove--not drove, but it helped to create my
very strong work ethic. And because I serve on a border court,
that is something that will serve me very well.
Senator Franken. Well, thank you. I just want to make the
point that I think that experience and a broad breadth of
experience is a good thing. And that does not necessarily mean
that you become biased in one way or the other, but it just
means that you bring an understanding of how your rulings
affect all kinds of people.
Would that be a correct statement?
Judge Saldana. Yes, it is, Senator. Thank you.
Senator Franken. Thank you so much.
Judge Battaglia, I see that you have helped manage the
Volunteer Lawyers Domestic Violence Clinic. I am going to a
Sheila Wellstone Institute event tonight, and she was a
champion in this field.
What is your role in this program, in the Volunteer Lawyers
Domestic Violence Clinic, and how has your volunteer work
influenced your career?
Judge Battaglia. Thank you, Senator, for that question. I
was a board member for the San Diego Volunteer Lawyer Project
in the early 1990s, helping manage or govern the organization,
implement programs, including the domestic violence program and
others, to ensure that members of the public that needed
assistance had lawyers available to confront the needs that
they were dealing with in the tragic circumstances particularly
in domestic violence that people were caught up in.
So the role was to make sure the organization worked
soundly, fairly, and lawyers were available for people in need.
Senator Franken. Thank you.
Judge Battaglia. As far as shaping my views, my concern
about access to justice has always been very strong and I
believe firmly in the system, and it was just a supplement to
that deep feeling.
Senator Franken. Thank you. Thank you for working in that
field.
Mr. Holmes, since my colleague recommended you so highly, I
am going to give you a pass.
Mr. Holmes. Thank you, Senator.
Senator Franken. And my time is up anyway. So I will go to
the Ranking Member.
Senator Sessions.
Senator Sessions. Thank you. We do not want to pass over
the U.S. attorney too lightly. But I did have a call from a
friend who served for many administrations in the Department of
Justice and also served for quite a while as director of the
executive office of United States attorneys. So he knew United
States attorneys all over the country, and I think was a former
U.S. attorney and prosecutor himself. And he said you were
topnotch. So I think that is a good compliment, and appreciate
the comments of our colleagues who are high on your
appointment.
Mr. Holmes, with regard to the sentencing guidelines, the
Supreme Court has weakened the authority of those guidelines
somewhat. How have you felt the guidelines have worked in terms
of attempting to have uniformity of sentencing, as a Federal
prosecutor? And to what degree do you believe that as a judge,
you will seek to be consistent with the guidelines in your
sentencing?
Mr. Holmes. Thank you, Senator Sessions, for the question.
Of course, during my tenure as U.S. attorney, the guidelines
were mandatory, and, since the Booker decision, they're
advisory.
I think there's a presumption that the sentencing
guidelines are reasonable. I believe that they should be
followed, and my experience in the field of criminal defense
has been that they have been followed. And I would continue to
use the sentencing guidelines, because they do avoid disparity
in sentencing, and I, if I'm fortunate to be confirmed as
district court judge, would follow those.
Senator Sessions. Thank you.
Judge Saldana, you were a Federal prosecutor for a number
of years and a United States magistrate judge, I guess 5 or 6
years as a Federal prosecutor and, since 2006, a magistrate
judge in Federal court.
What would you say about the guidelines and how you would
see them?
Judge Saldana. Thank you, Senator. I recognize and
understand the importance of the sentencing guidelines and why
they were implemented, the importance of uniformity in
sentencing throughout the country. And I also recognize the
state of the law and that they are presumptively reasonable.
And so I would look to the sentencing guidelines when I am
determining the appropriate sentence for a person who is
standing before me, if confirmed as a United States district
judge.
Senator Sessions. Thank you. I think that would be good
advice as meant? Judge Battaglia, you are a magistrate judge.
You have worked with them, also. What would be your comment?
Judge Battaglia. My comment, Senator--and thank you for
asking me--is that there is a presumption of reasonableness for
the guidelines. I have utilized those in misdemeanor
sentencing, Class A misdemeanors, where the guidelines are
applicable.
As the Supreme Court has directed us, I consider those
first off and use those, give them great deference, because
they have regularized sentencing. Despite the change in the
law, I think they still give us a great pattern to follow for
consistency in sentencing everyone fairly.
Senator Sessions. I could not agree more.
Judge Davila, I think you will find that to be true,
although you may not have had a lot of direct experience with
them. I think that is the right thing. Otherwise, we go back
to, well, it depends on which judge you have. You are in one
courtroom and you get hammered; in another courtroom, you get
probation for the very same offense, and it becomes pretty
indefensible really to explain to family or victims why one
person got one sentence and one person got another.
That is what led to the passage. Senator Kennedy, Senator
Thurmond, Senator Biden, Senator Hatch all worked on that and
passed those guidelines. I do not think the Supreme Court was
precisely correct in their ruling, but we are stuck with it. So
that is where we are.
I do believe that justice in America will suffer if judges
move away from following the guidelines, which represent, I
think, the studied opinion of judges and other experts in
sentencing.
Judge Battaglia, you had a situation with a student who
allegedly said to a counselor, ``If you do not give me this
schedule change, I'm going to shoot you.'' The student
apparently said ``I'm so angry, I could just shoot somebody,''
closed quote.
You were reversed eventually, on that case, although upheld
initially, for saying the school did not have the authority to
suspend the student.
Would you, briefly, we just have a moment, share your
thoughts about that? And do you feel like you properly
respected the burdens that fall on school administrators, the
principal, to make sure that teachers are not threatened or
harassed in a classroom?
Judge Battaglia. Thank you, Senator, for that question.
That was one of my early cases and one that I am happy to talk
about.
At the time, the evidence was in dispute about the precise
nature of the statement, and I found that under either
characterization, it was protected speech, under the ninth
circuit authority existing at the time. I followed the law, the
precedent that was in place, the precedent of the ninth
circuit, based upon United States Supreme Court precedent.
And I faithfully adhered to the precedent, found the facts
to be, irrespective of which statement, the necessary concern
of an imminent threat was absent. So the speech was protected.
The ninth circuit initially affirmed me and then, on
reconsideration, several months later, decided to go a
different way, which would be the province of the appellate
court to overrule the district court decision I made. So yes.
Senator Sessions. Are you thinking free speech? Well, what
would be your evaluation as to which would be the correct
ruling, the first one or did they reverse their prior authority
when they ruled against you? And do you suggest that the
phrase, ``If you don't give me this schedule change, I'm going
to shoot you,'' that under existing case law, was such that a
school cannot discipline a student for it?
Judge Battaglia. At the time of the decision, it was. It is
no longer. My decision was overruled. The appellate court, the
ninth circuit, changed its prior precedent in overruling my
decision.
The development of case law since has made it clear that
that would not be protected speech and that there was a serious
threat, and the courts, I think, would approach that.
Were I to have that case again today, the outcome would be
different. If I were to look back and criticize my opinion, it
would be probably that I should have found that the statement
asserted by the school district was the correct one. Since the
plaintiff had the burden of proof and failed to make it, it
was, in effect, a dead heat.
But either way, if this case were happening today, the
ruling would be totally different from the district court
level.
Senator Sessions. Well, I will just tell all of you, I
think the American people and I have the view that schools have
got to be given some latitude in running the school and
maintaining order. And you cannot make a Federal case out of
every suspension over some hot kid who runs their mouth, it
would strike me.
But I think there has been some authority in the past that
could well have led you to follow that authority, and I do not
dispute it.
Judge Battaglia. And I don't disagree with you.
Senator Sessions. But if so, it was not very good authority
and I am glad the court has moved away from it.
Judge Battaglia. Right. And as you know, Senator, we are
bound by precedent at the district court level. A magistrate
judge, as I was in this case, it's not our role to invoke
policy, to make law, but we are bound by the applicable
authority and follow that, notwithstanding how we might feel
personally. That is our job. But thank you for asking.
Senator Sessions. Well, I do not think the Constitution
ever would have--normally, it would not have been interpreted
in that fashion, and the ninth circuit has rendered some
opinions that I certainly would not support.
Judge Davila, you were active in La Raza, which is a group
that I understand emphasizes and affirms the Hispanic ethnic
heritage, and that is fine, and you said a few things that I
think are OK, but close for a judge.
You said you hope to see increasing diversity of
experiences, ideas, race, ethnicity and culture on the bench,
and I think that is fine, and we do not leave our life
experiences behind, do we? We bring those to the bench, I
suppose, and that's what's good about a diverse bench.
You go on to be quoted in this piece, saying, ``Justices
will be better able to relate to the experiences of those that
come before them.'' I think that is a careful, pretty careful
statement.
Some have gone beyond that and suggested that if you have a
person of my ethnic, religious, racial background on the bench,
they are more likely to rule for me than if not.
Do you not think that the oath that a judge takes that they
must be impartial, they should not be a respector of persons,
and do equal justice to the poor and the rich sets up an ideal
vision of a judge who, no matter what their ethnicity is, that
they will give everybody before them a fair shake, no matter
what the party's ethnicity is?
Judge Davila. Well, thank you, Senator. And I appreciate
your eloquence and I agree with your statement. Justice is
blind. There is only one rule of law, and that article that you
reference was an article from our local town newspaper, I
believe, upon my appointment. And I think the title of that, as
I recall, was local--it might have been ``Local Boy.'' I just
don't remember now. But it was ``Local Attorney Moves to the
Bench.''
Senator Sessions. And you do not vouch for the perfect
accuracy of the quotes. Is that what you are suggesting, that
it was not your word, it was what the newspaper said you said?
Judge Davila. Well, no, sir, Senator. What I'm saying is I
agree with your statement. There is one rule of law, Senator,
and we do bring our backgrounds to our employments, our
careers, our jobs, and those backgrounds serve us well as a
judge.
I can tell you, Senator, my background has helped me to
develop a character that has assisted me in establishing a
courtroom that affords dignity to victims, to witnesses, to
litigants, all litigants who come in my courtroom, and I'm
proud of that.
I should tell you, Senator, that when it comes, however, to
making a decision on a case, the background that was referenced
perhaps, that is separate and apart, because as judges, we make
our decisions without bias, impartially, and we look at the
law, including precedent, and apply it to the facts. And we,
therefore, continue the system of justice that is blind, as
I've indicated.
Senator Sessions. And your commitment is to provide that
equal justice to each and every party before you, regardless of
their ethnicity, race, education, or religion.
Judge Davila. It is. And if I am fortunate enough to be
confirmed, I would do that, Senator.
Senator Sessions. I think that is the ideal of American
justice, I really do, and why people come here from all over
the world, because they feel like that no matter who they are,
if they own some property, nobody can come and take it from
them; they cannot be incarcerated without the proper rules
applying, they get a fair day in court, and that applies across
the board.
And the whole strength of the American system is to find
the truth and to apply it fairly to the parties before you.
Some, I think, get to believing there is no truth and that it
is just a matter of perspective, but I think that is contrary
to the ideal of the American legal system.
Thank you very much. Judge Saldana, you made a comment back
when you were in law school that indicated a very strong belief
in affirmative action and that because--and you say, quote,
``It offends me that an Anglo can take my seat, because the
admissions Committee is unwilling to consider my background.''
To what extent do you think objective criteria for deciding
admissions to universities is legitimate and to what extent do
you think they should look beyond that to provide preferences
or, inevitably, adversities to people of different ethnic
backgrounds?
Judge Saldana. Thank you, Senator, for that question. I was
representing the Hispanic Law Students Association at the time
that I made that statement and it was after a ruling by the
firth circuit, I believe.
The Supreme Court has spoken on affirmative action and has
held that race is a factor that can be considered, but it must
be rationally based. And if I am confirmed, I can assure you,
Senator, that I will apply the existing law in that area and
apply it to the facts of the cases before me.
Senator Sessions. The Supreme Court expressed a very clear
view that in America, preferences should not be provided to one
ethnic group or racial group over another, basically, except
under certain circumstances. Would you agree with that?
Judge Saldana. Yes, I do, Senator.
Senator Sessions. And that strict scrutiny should be
applied, which means a very careful review of any situation in
which we give one ethnic group or racial group or religious
group an advantage over another.
Judge Saldana. Yes, Senator, and that is what I would
follow. That is the state of the law. It is very clear, and I
will follow that, if confirmed.
Senator Sessions. Thank you. Well, I appreciate the
opportunity to have this hearing, Mr. Chairman, to ask these
questions. Follow-up questions will be submitted to you. Your
backgrounds have been evaluated. The FBI has done backgrounds.
The White House has done backgrounds. Your Senators who support
your nomination have checked you out.
And those are all good things, because you are asking to be
given a lifetime appointment, launched forth from the Federal
bench without an opportunity to be second-guessed pretty much,
except at the appellate court.
So it is an important office you are seeking. We try to do
our duty, and I appreciate the comments that you have given us
today.
Senator Franken. Thank you. I would like to thank my
friend, the Ranking Member. And, yes, these are lifetime
appointments. So that is why I let you go for as long as you
wanted.
[Laughter.]
Senator Franken. And the Ranking Member is correct. The
hearing record will be held open and it will be held open for a
week.
In closing, I just want to thank the Ranking Member and I
want to thank each of you for your testimony today and for all
of your public service. You are all very impressive in your
life stories and your accomplishments.
I just want to say something, because the Ranking Member
started to get on this, sort of the theme, we talked about your
experience as a migrant worker, as the daughter of a migrant
worker, and your statements for La Raza.
I think that every American and every person intuitively
knows that a judge brings his or her experience to the court. I
do not think anyone can doubt that. And Oliver Wendell Holmes,
I believe, said--it was he who said something to the effect of
that the law is experience, and I do not think there is any
contradiction between that and the ability of judges to use
their experience in a way that is consistent with exercising
the rule of law.
So I value the diversity that people of different
backgrounds, as the Senator said, is what makes our country
different, as the people from all over the world come, and I
think it is valuable to have people from all over the world sit
as judges on our courts. We have a Holmes, a Battaglia, Davila
and Saldana.
So we will hold the record open for 1 week for submission
of questions for the nominees and other materials.
This hearing is now adjourned.
[Whereupon, at 3:30 p.m., the hearing was concluded.]
[Questions and answers and submissions for the record.]
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NOMINATIONS OF MAX O. COGBURN, NOMINEE TO BE UNITED STATES DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA; MARCO A. HERNANDEZ,
NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF OREGON;
MICHAEL H. SIMON, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE
DISTRICT OF OREGON; STEVE JONES, NOMINEE TO BE UNITED STATES DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; MICHELE M. LEONHART,
NOMINEE TO BE ADMINISTRATOR OF DRUG ENFORCEMENT, DEPARTMENT OF JUSTICE;
PATTI B. SARIS, NOMINEE TO BE A MEMBER AND CHAIR OF THE UNITED STATES
SENTENCING COMMISSION; AND, STACIA A. HYLTON, NOMINEE TO BE THE
DIRECTOR OF THE UNITED STATES MARSHALS SERVICE
----------
WEDNESDAY, NOVEMBER 17, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., Room SD-
226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse,
presiding.
Present: Senators Kohl, Feinstein, Whitehouse, Klobuchar,
Franken, and Sessions.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The hearing will come to order. And I
welcome everyone here. Our Ranking Member, Senator Sessions, is
on his way, but I've been given clearance to get underway while
he makes his way over here.
The order of proceeding is that I will make a brief opening
statement, followed by that of Ranking Member Sessions. And if
anybody else cares to make an opening statement, we will do
that, and then we will turn to the Senators who would like to
make introductions of the nominees from their States, and we
will take that in order of seniority. Then we will have two
panels. The first will be the four nominees to the district
courts and the second will be the three nominees to the
executive agencies. Each nominee will have the chance at that
time to introduce any guests they may have with them, family
members. And I welcome all of you here today.
The seven nominations that we will consider are Max
Cogburn, nominated to the United States District Court for the
Western District of North Carolina; Judge Marco Hernandez and
Michael Simon, nominated to the U.S. District Court for the
District of Oregon; Judge Steve Jones, nominated to the U.S.
District Court for the Northern District of Georgia; Michele
Leonhart, nominated to be Administrator of Drug Enforcement at
the Department of Justice; Judge Patti Saris has been nominated
to be a member and chair of the U.S. Sentencing Commission;
and, Stacia Hylton has been nominated to be the Director of the
United States Marshals Service.
We welcome each of these nominees and their families and
their friends here to the U.S. Senate.
We have a full slate and a busy floor schedule this
morning. So in the interest of efficiency, we will get straight
to the order of business.
In the absence of Senator Sessions, why do I not turn to
Senator Feinstein for any opening statement she might care to
make?
PRESENTATION OF MICHELE M. LEONHART, NOMINEE TO BE ADMINSTRATOR
OF THE DRUG ENFORCEMENT, DEPARTMENT OF JUSTICE BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. The
only statement I wanted to make is one on behalf of Michele
Leonhart. Would it be appropriate for me to do it at this time?
Senator Whitehouse. Of course.
Senator Feinstein. Thank you very much. I am very pleased
to introduce her. She has been nominated to serve as
Administrator of the DEA. She has had a very distinguished
career with that organization, which includes several critical
roles in my home State of California.
In 1997, she became the first woman to head a DEA Field
Division when she was named Special Agent in Charge for San
Francisco. She managed DEA operations in San Francisco until
September 1998, when she became Special Agent in Charge of the
Los Angeles Field Division, one of DEA's largest. She continued
in that position until March of 2004, when she was confirmed as
Deputy Administrator.
She and her family continue to maintain a residence in
California, and we are very proud to call her one of our own.
Ms. Leonhart has served as the Acting Administrator for the
DEA since November of 2007, for 3 years. She was unanimously
confirmed by the Senate to be Deputy Administrator in 2004.
So the members of this Committee are already familiar with
her outstanding qualifications and excellent work in enforcing
the Nation's controlled substances laws, but I would like to
briefly just highlight some of her accomplishments.
Under her leadership, DEA has reached record-breaking
levels of extraditions, drug and asset seizures, and revenue
denied to drug trafficking organizations. She realigned
resources to expand DEA's foreign presence to combat emerging
threats and enhanced intelligence-sharing with foreign
countries, to include Mexico and Colombia.
She implemented a plan to deploy the first team of DEA
agents to conduct counter-narcotics operations in Afghanistan
post-9/11, leading to the investigation and prosecution of
Afghan drug lords.
Under her leadership as Acting Administrator, the DEA
recently completed one of its most successful joint
international drug operations in history, Operation
Xcellerator. This 21-month effort, terminating in February of
2009, dealt a severe blow to the violent Sinaloa Cartel in
Mexico, resulting in more than 750 arrests and $59 million
seized.
She has worked with law enforcement, community and school
leaders. She has educated children, parents and teachers about
drug prevention. She explained the importance of these efforts
at the 18th annual Drug Abuse Resistance Education Conference,
when she said, ``Every child you get through to is one less
member of a dealer's customer base.''
Over the years, she has received numerous honors for her
achievements, including awards for meritorious service from
both Presidents Clinton and Bush.
There are, and will continue to be, serious challenges
confronting the DEA, as violent drug trafficking organizations
and gangs continue to threaten not just our Nation, but
countries around the world. And the DEA needs a leader who has
the talent, experience, and commitment to fight these ruthless
criminals.
With her nearly 30 years of dedicated service and
longstanding record of success, Acting Administrator Leonhart
will continue to provide strong leadership as the DEA fulfills
its vital mission.
I urge my colleagues to support her nomination. Thank you
very much, Mr. Chairman.
Senator Whitehouse. Thank you, Senator Feinstein.
Our wonderful Ranking Member has arrived. I do not know if
you would care to make an opening statement of any kind at this
time.
Senator Sessions. I think it is great to have these
Senators here and would be delighted to hear from them before I
make any comments.
Thank you all for coming and expressing your views on these
important nominations.
Senator Whitehouse. Let me then turn to the last member
present from the Committee, Senator Franken, who may have a
word or two about somebody perhaps from White Bear Lake.
PRESENTATION OF MICHELE M. LEONHART, NOMINEE TO BE
ADMINISTRATOR OF DRUG ENFORCEMENT, DEPARTMENT OF JUSTICE BY
HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Franken. Well, actually, Michele Leonhart is from
White Bear, but I will make it quick, because Senator Feinstein
covered her terrific career. But I do want to make that
Minnesota connection, thank you.
We have a number of remarkable individuals here today, and
each of you should be very proud of your work and your
achievement, and congratulations on your nominations.
I would like to talk about two nominees here today. First
is Michele Leonhart, who President Obama has nominated to be
Administrator of the Drug Enforcement Administration, a
position, as Senator Feinstein said, she has exercised in an
acting capacity since November 2007.
Ms. Leonhart grew up in White Bear Lake, Minnesota. As the
Chairman said, her first posting at the DEA was in Minneapolis,
where she was the first woman to serve as a special agent. She
has served for 30 years at the DEA.
Ms. Leonhart may have moved from Minnesota and I heard
Senator Feinstein claim her as their own, as well, which I
resented. But Minnesota has not forgotten Michele. In fact,
every time a representative from the Minnesota Police and Peace
Officers Association visits my office, the first thing they say
is, ``When are you going to confirm Michele Leonhart,'' and my
answer is, ``Hopefully, very, very soon,'' and I am happy to
see you here.
Mr. Chairman, let me also say hello to Judge Saris. I have
known Judge Saris and her husband, Arthur, for a long time. And
aside from being a brilliant jurist and a dear friend, Judge
Saris has one distinction that no one else on this panel has.
Her wonderful daughter, Celia Segal, worked for me as a staff
assistant in my office, and Celia is an absolute gem.
Everyone in our office loved her and our staff and our
constituents--and I actually chose her to give a tour of the
Senate to Garrison Keillor when he was visiting town a few
months later, and he remarked on how wonderful she was.
So thank you so much, Judge Saris, for your daughter, and
it is good to see you.
Senator Whitehouse. Senator Klobuchar.
PRESENTATION OF MICHELE M. LEONHART, NOMINEE TO BE
ADMINISTRATOR OF DRUG ENFORCEMENT, DEPARTMENT OF JUSTICE BY
HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you.
So, Ms. Leonhart, you get not one, not two, but three
Senators introducing you. So I suppose it is like how many
Senators do you need to screw in a light bulb or something.
But I am just honored to be here to be one of the many
voices supporting you to lead the Drug Enforcement
Administration.
As was mentioned, Michele grew up in White Bear Lake,
Minnesota and attended Bemidji State University in Bemidji,
Minnesota. And when you look at her career, it is full of
firsts. She graduated first in her class from the Baltimore
Police Academy in 1978; first in her class at the DEA Training
Academy in 1981; first female agent ever to serve in the DEA's
Minneapolis field office; and, in 1997, she became the first
woman to head a DEA field division when she was appointed as
special agent in charge in San Francisco.
In fact, the only time the word ``second'' is used
regarding Michele Leonhart is in this context. If confirmed by
the Senate, she will become the second woman ever to serve as
administrator of the DEA.
We are very excited about this nomination. I was in law
enforcement in Minnesota for 8 years as the county attorney for
Minnesota's largest county, and I have repeatedly heard from my
friends in law enforcement many compliments about Michele's
work; that she has an absolutely tireless work ethic that
inspires everyone around her; that she embodies the principle
of leading by example; that she works across jurisdictional
lines, Federal, State and local, and I think we all know crooks
do not care about those jurisdictional lines and the people
that we are supposed to protect do not care who enforces the
law, whether it is local, State or Federal. They just want us
to get the job done. And that she also has earned the respect
and the trust of all the people that she has worked with at
different levels of law enforcement.
So I am very proud to support her nomination and believe
that she is the right woman, the right Minnesotan, the right
person for the job.
Thank you.
Senator Whitehouse. As I indicated earlier, we will now go
by order of seniority of the Senators who are here with
nominees to introduce, and we will lead with Senator Ron Wyden
of Oregon, who has not one, but two nominees before us.
Senator Wyden.
PRESENTATION OF MARCO A. HERNANDEZ, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF OREGON AND MICHAEL H. SIMON, NOMINEE
TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF OREGON BY HON.
RON WYDEN, A U.S. SENATOR FROM THE STATE OF OREGON
Senator Wyden. Thank you very much, Mr. Chairman. And let
me spare you the filibuster. I would ask unanimous consent to
make my prepared remarks a part of the record.
Senator Whitehouse. Without objection.
Senator Wyden. Thank you very much, Mr. Chairman. This is a
great thrill to be here to nominate two exceptional
individuals, Judge Marco Hernandez and Michael Simon, to serve
as U.S. district court judges for the district of Oregon.
I have known both of them for many years and it is
wonderful to be here to introduce them.
I would also like to be able to introduce the family
members and honored guests that are here with both nominees.
Judge Hernandez is joined by his wife, Mary Beth; daughter,
Alicia; son, Daniel; and, his parents, Frank and Rosa
Hernandez. Oregon's Chief Judge Paul De Muniz and his wife,
Mary, are also here.
Mr. Simon is joined by his wife, Oregon State Senator
Suzanne Bonamici, and his daughter, Sara. Michael's son,
Andrew, who was also an intern in my office, is overseas, but I
can tell you, your hearing is being streamed live on the
Internet, and I am sure it is not the only household where that
is being done.
A couple of comments about both of the individuals, because
they are both exceptional people. With respect to Judge
Hernandez, Marco Hernandez, Chairman Whitehouse, what is
striking is I urged two Presidents of different political
parties to nominate Judge Hernandez, because he is such an
exceptional individual.
Without going through all of this, when my friend, Gordon
Smith, led the nomination process, Judge Hernandez was
nominated for the district court by George Bush, and I
supported that recommendation vigorously. Unfortunately, the
110th Congress was unable to act on his nomination.
So in the 111th Congress, I recommended Judge Hernandez
once more, this time with the strong support of Senator
Merkley. So we are very pleased that President Obama has chosen
Judge Hernandez to be nominated for the bench.
Now, it is not exactly hard to decipher why leaders of both
political parties are such strong supporters of Judge
Hernandez, because his life is essentially a billboard for the
American dream. It is an exceptional story. At age 17, he moved
to Oregon by himself. He had to support himself.
He took a job as a dishwasher, found his way to a better
job as a janitor, and eventually became a teacher's aide. At
that point, he began taking night classes at a local community
college, with the dream of one day being able to go to a 4-year
school.
Finally, he was able to enroll at Western Oregon State
College and quickly showed his ability to excel there. He
earned the Dewey award as the outstanding male student in his
class.
He has a demonstrated commitment to public service. He
worked at Oregon Legal Services, representing farm workers, and
he was a deputy district attorney.
What I like especially about him is his interest, and there
is sure going to be a premium on this in the years ahead, at
looking for creative solutions. He pioneered an innovative
domestic violence program to aggressively pursue offenders and
created a new program for those with mental illness.
So Judge Hernandez, an individual with resounding support
from both sides of the aisle, additionally, has the support of
a broad range of legal organizations, and I give him my
strongest possible support as one of the two judges that Oregon
Senators would like to see on the bench.
With respect to our other outstanding nominee, Michael
Simon, he, too, has a diverse and distinguished record of
public service. He has been a litigator, a professor, and a
judge pro tem, just to scratch the surface.
He graduated summa cum laude from UCLA and then graduated
from Harvard Law School, as well. He has been a trial judge and
a special U.S. assistant attorney. Throughout his work in both
the public and private sectors, he has stepped up to be a
volunteer with many legal and civic groups.
There is virtually no organization in our State, Mr.
Chairman, that does not seek out the services of Michael Simon.
When you see materials for various groups to sign up for civic
causes, Michael's name is invariably one of them, because he
has such an extensive participation in local nonprofit
organizations.
He is a pillar of the community, an exemplary member of the
bar, and outstanding nominee for the Federal bench.
Finally, these two Federal judicial vacancies must be
filled promptly. And one of the seats, the seat has been open
for 656 days, Mr. Chairman and colleagues, and is classified as
a judicial emergency.
We all understand that justice delayed is justice denied,
and the people of my home State deserve a full Federal bench.
So I am very pleased, Mr. Chairman, to be able to present
these two extraordinary lawyers for confirmation to the bench.
I am going to be in and out, as there is a hearing in the
Senate Finance Committee on Health Care, and suffice it to say,
Senator Merkley has my proxy this morning, because he and I
share the view, as I did with Senator Smith, on Judge
Hernandez, that these are exceptional individuals.
We are grateful for your time and your consideration this
morning.
[The prepared statement of Senator Wyden appears as a
submission for the record.]
Senator Whitehouse. Thank you, Senator Wyden. It is
important to the Committee to hear the views of our colleagues
who know these candidates so well. And with respect to Senators
who depart after their remarks, it is actually our expectation
that Senators will depart after their remarks, knowing how busy
everybody is around here.
So, Senator Wyden, thank you.
Senator Chambliss, welcome.
PRESENTATION OF STEVE JONES, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF GEORGIA BY HON. SAXBY CHAMBLISS, A
U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Chambliss. Thank you very much, Senator Whitehouse,
Senator Sessions, members of the Committee. I appreciate very
much the opportunity to come visit with you this morning and to
introduce an outstanding Georgian, Superior Court Judge Steve
C. Jones, who has been nominated to serve as United States
District Court Judge for the Northern District of Georgia.
I would, first of all, like to ask unanimous consent that a
letter from my colleague, Senator Isakson, be entered into the
record.
Senator Whitehouse. Without objection.
[The letter appears as a submission for the record.]
Senator Chambliss. This letter is, obviously, in strong
support of Judge Jones. And Johnny could not be here, as he
has, just like Ron, a Commerce Committee meeting that he is
obligated to attend.
Steve Jones is a native of Athens, Georgia, where he has
lived, worked, demonstrated his commitment to the community,
and offered his time and leadership to various organizations.
Like Senator Isakson and myself, he is a graduate of the
University of Georgia, both undergrad and law school; and, like
Johnny and me, he is not particularly happy with our football
season. So I would appreciate questions today about that when
he comes before you. But we all know we will be back.
Judge Jones began his legal career as an assistant district
attorney before becoming a municipal judge in Athens. Since
1995, he has served on the bench as a superior court judge of
the Western Judicial Circuit, which covers Clark County and
Oconee County.
In this capacity, Judge Jones has presided over both civil
and criminal cases. He has also supervised the circuit's felony
drug court for 6 years.
Judge Jones' list of honors and awards are truly too
numerous to mention here. They are a testament to the high
esteem in which his peers and his neighbors now hold him. But I
do want to mention a very few of them.
They include the Georgia State Bar's Distinguished Judicial
Service Award; the Georgia Legal Services Program's Georgia
Justice Builder Award; the University of Georgia Presidents
Fulfilling the Dream Award; the Boy Scouts of America's
Distinguished Citizen Award; the Chief Justice Robert Benham
Award for Community Service Beyond Official Work; and, the
Julian Bond Humanitarian Award.
In addition to his various legal memberships, Judge Jones
serves on the board of directors of the University of Georgia
Alumni Association, the Athens Area Community Foundation, Hope
Haven and Bread for Life, and is a member of the National
Football Foundation College Hall of Fame, the A. Philip
Randolph Institute, and the Athens Rotary Club.
Steve is married to his lovely wife, Lillian, and I will
let him introduce his family that is here with him this
morning.
In addition to juggling his legal and community duties, he
is a deacon at Ebenezer Baptist Church West in Athens.
I have had the privilege of introducing any number of
individuals to this distinguished Committee over the years and
whether it was during the Bush administration or now during the
Obama administration, I have had Democrats and Republicans who
have complemented President Bush's nominees, but I will have to
say I have never had any more support shown in a bipartisan way
for the nomination of Judge Steve Jones.
He is that well respected by all political party members in
our State. They know him well. They know he has served his
community well on the bench as a superior court judge, and he
is going to make an outstanding Federal district judge.
So I am very pleased, Mr. Chairman, to be here today to put
in nomination and recommendation the nomination of Judge Steve
Jones.
Thank you very much.
Senator Whitehouse. Thank you, Senator Chambliss. We
appreciate very much your being here and we know that your and
Senator Isakson's support of this nominee will be very helpful
to moving him rapidly through the process and into the office
that he seeks. Thank you.
Next, Senator Richard Burr.
PRESENTATION OF MAX O. COGBURN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA BY HON.
RICHARD BURR, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Burr. Senator Whitehouse, Senator Sessions, members
of the Committee, it is an honor to be asked to be here to
introduce one of our nominees, Max Cogburn, of Asheville, North
Carolina.
Married, two children, a daughter who has followed in his
legal footsteps and has been admitted to the bar in North
Carolina, and I am sure Max will have an opportunity to
introduce any family members that he has brought with him
today.
President Obama has nominated Max to the Federal bench in
North Carolina's western district. He is an excellent choice
and I believe will be a great addition to the court.
Max is a longtime resident of Buncombe County and his
family roots in the western North Carolina mountains run very
deep. While his family's history in western North Carolina is
impressive, Max has not rested on that history.
He was admitted to the bar in 1976 and has made a name for
himself, with a strong record in his legal career and in public
service; an assistant U.S. attorney; a chief assistant U.S.
attorney; magistrate judge; and, currently, a partner at
Cogburn & Brazil.
During his 12 years as a Federal prosecutor, he was also
the lead attorney on the Organized Crime and Drug Enforcement
Task Force. As an assistant U.S. attorney, he was responsible
for prosecuting murder cases, drug trafficking, voter fraud,
among other Federal crimes.
His service in the U.S. attorney's office brought with it a
host of honors and awards for his service from the U.S.
Marshals Service, the Park Service, and the FBI, among others.
He has a law degree from Samford and did his undergraduate
work at UNC-Chapel Hill. Typically, for me, UNC-Chapel Hill
would be a disqualifier, but given that I have now had two
children graduate from Chapel Hill, it is now perceived as an
asset for any nominee.
Despite coming down from the mountains for school, the
mountains have always been home for Max Cogburn and it is clear
that they mean a great deal to him and to his family. I believe
he brings with him a perspective that will serve the court and
western North Carolina extremely well.
In addition to his legal career, which certainly qualifies
him for the bench in its own rights, for 4 years, he served as
president of the Cogburn's other family businesses, a dude
ranch outside of Asheville, North Carolina; time spent others
how to herd cattle and shoot straight has got to be a useful
tool.
Another selling point at the ranch, if I have read the
sales pitch correctly, just one television, something that many
of us would welcome the opportunity after coming off of
campaign, to limit people to the number of TVs they have, it
might make it a little bit easier.
Mr. Chairman, out of all the qualifications that Max
Cogburn brings to this nomination, let me say this. He is a
good man and we need good individuals to serve on our bench.
I highly recommend to the Committee that we move as
expeditiously this nominee as we can.
I thank the chair.
Senator Whitehouse. Thank you, Senator Burr.
Your colleague, Senator Hagan.
PRESENTATION OF MAX O. COGBURN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA BY HON. KAY
HAGAN, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Hagan. Thank you, Mr. Chairman and Ranking Member
Sessions.
I, too, join my colleague, Senator Burr, in welcoming Judge
Cogburn, and thank him for being here today. As you can see,
this is a bipartisan recommendation. It is extremely important
to me that North Carolina have highly capable representation on
the Federal courts.
Judge Cogburn is exactly the type of legal mind that we
need as a judge on North Carolina's western district court.
Mr. Chairman, I appreciate you holding this confirmation
hearing today. It is my hope that hearings like these will
allow the Senate to move exceptional nominees along faster and
confirm them in a more timely manner.
I recommend Judge Cogburn because of his distinguished
record as a jurist and attorney in both the public and private
sectors. After earning degrees from Samford University
Cumberland School of Law, and UNC-Chapel Hill, he entered
private practice. Judge Cogburn has worked in private practice
on and off since 1976, handling criminal felonies,
misdemeanors, civil torts, domestic cases, and corporate work.
Judge Cogburn also served as an assistant United States
attorney from 1980 to 1992, where he prosecuted murder cases on
the Cherokee Indian Reservation. He also prosecuted drug
trafficking, voter fraud, and a wide variety of Federal crimes.
During his time with the U.S. attorney's office, Judge
Cogburn served as the lead attorney on the Organized Crime and
Drug Task Force, as well as the chief assistant U.S. attorney.
And from 1995 to 2004, Judge Cogburn served as a magistrate
judge on the United States District Court for the Western
District of North Carolina.
As a magistrate judge, he ruled on cases involving sexual
harassment, racial discrimination in employment, fraud, age
discrimination, products liability, and medical malpractice.
Judge Cogburn is a good steward of the law. He received the
American Bar Association's highest rating of well qualified. He
has the skills and the expertise that this position requires,
and I am thrilled to be here today to discuss Judge Cogburn's
outstanding qualifications to serve on the district court for
the Western District of North Carolina.
Judge Cogburn brings decades of legal and judicial
experience to the bench, and I am confident that Judge Cogburn
will serve on the bench with distinction. He comes today with
his wife, Fran, and his daughter, Casey, who is practicing law
in Huntsville, Alabama. His mother, Mrs. Cogburn, of Asheville,
North Carolina, also is joining him today.
I want to thank the Judiciary Committee for holding this
hearing, and thank you, Mr. Chairman.
Senator Whitehouse. Well, we thank both of you, Senator
Burr and Senator Hagan, for coming here to support your
nominees.
As I said, it is extremely important when the two Senators
from the home State who know these candidates firsthand express
their strong support.
I think when that support is bipartisan, as it is in your
case, it highlights once again the institutional value in this
body of deferring to and giving great weight to the
recommendations of the home State Senators when they are in
accord as to the district judge nominee who is appropriate for
their State.
So thank you very much for being here.
We turn to our final presenter, Senator Jeff Merkley of
Oregon.
PRESENTATION OF MARCO A. HERNANDEZ, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF OREGON AND MICHAEL H. SIMON, NOMINEE
TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF OREGON BY HON.
JEFF MERKLEY, A U.S. SENATOR FROM THE STATE OF OREGON
Senator Merkley. Thank you very much, Mr. Chairman, Ranking
Member Sessions, and Senator Franken. It is a pleasure for me
to join Senator Wyden in introducing Oregon's two nominees for
the district court.
It is terrific that their families were able to join them
and that our own Oregon Chief Justice Paul De Muniz and his
wife, Mary, were able to come, as well.
Judge Marco Hernandez has served Oregon's legal community
with great distinction in a variety of roles, from representing
underserved communities as a Legal Aid attorney to his
experience as a deputy district attorney to his 15 years as a
State court judge.
He has devoted his life to a fair and just legal system,
and his diverse experience will serve him very well in the
capacity as a district judge.
Judge Hernandez is imminently qualified for this nomination
and would be a terrific addition to the bench.
Turning to Michael Simon, whether it be his extensive pro
bono legal work or his substantial involvement in civic
organizations, like the Classroom Law Project, Michael has made
his mark as an outstanding citizen of the Oregon legal
community.
He is respected as a top lawyer in commercial litigation,
appellate law, and constitutional law, and is respected well
outside his northwest roots and is imminently qualified to set
the standard for what it means to be a good judge.
The U.S. District Court of Oregon has had a reputation as a
place--as a well run and even-handed court led by outstanding
professional jurists. Both of these nominees exemplify the
spirit of public service and excellence, have been the hallmark
of the Oregon bar, and will add to the Oregon judicial legacy.
Thank you so much for scheduling this hearing and
expediting consideration of these nominees as we seek to fill
these positions so that, indeed, the system can function on
behalf of better justice for our citizens.
Thank you.
Senator Whitehouse. Thank you, Senator Merkley. We very
much appreciate your and Senator Wyden's expressions of support
for these two nominees, and, certainly, as busy as everybody is
right now in the Senate, the fact that both of you are here is
significant. We appreciate it immensely.
We will now take about a 2-minute break while the table is
reset and the four judicial nominees come forward and take
their places.
[Recess.]
Senator Whitehouse. The way that we will proceed is that
our Ranking Member will give his statement. He was very
courteous in deferring to the other Senators who had other
business to get their statements into the record. So we will
turn to him, and we will then introduce the nominees and give
them each a chance to introduced any guests or family or
friends who are here with them.
Then at the conclusions of all those introductions, there
will be a period of questioning for the entire panel, with each
Senator to have 5 minutes for the panel.
So without further ado, Ranking Member Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. And I would like
to thank all the people who have worked to move these
nominations forward, and congratulate the nominees on receiving
the nomination of the President of the United States to a very
August and important position of Federal judge.
I understand this will be the last nomination hearing for
the 111th Congress and with today's hearing, the Committee has
held hearings for 110 nominees, including two nominees to the
Supreme Court, which was a pretty good spectacle and effort. A
lot of effort and work had to go into that. Eighty nominees to
the Federal circuit and district courts, and 28 nominees to
positions within the executive branch, a pretty big and
significant number.
I would just note, about the nomination, most of you, I
believe, have been nominated in July. Judge Hernandez was
nominated by President Bush in July of 2008 and did not clear
before the Congress recessed, and that is the reason we have a
600-day vacancy rate, really, I guess, in his nomination.
So I am glad that you are back and I appreciate President
Obama re-nominating you. I think that was a nice gesture and it
is one that maybe will be positive for all of us here.
The nominees, of course, have been nominated for a lifetime
appointment. This hearing is the only opportunity we have to
help our Senate to develop the information necessary to advise
and consent on a nomination.
It seems to me that we do have divergent views in the
Committee and in the Senate on the philosophy and approach to
judging. Judicial activism is something most all of us, I
think, believe is not a healthy thing for a judge to display,
but we disagree sometimes what activism is.
I think it is when a judge fails to adhere to the rule of
law or fails to recognize the Constitution as the supreme law
of the land, and, instead, substitutes his or her own views or
policy preferences in place of the law. I could say even
empathy or politics or ideology could interfere with the
ability of a judge to be the dispassionate and neutral arbiter
that I believe they should be.
Those are some of the things that have been discussed at
some length in this process of nominations, but it is not
unimportant. It is a big deal, because a judge who is not bound
by the law is really not adjudicating. It is something else
akin to politics or advocacy or something else.
As you take this lifetime appointment, I have had some of
my Federal judge friends that say you give up your
constitutional rights. Well, in some ways, you do give up
things that you would be free to do in the private sector you
cannot do as a Federal judge.
Also, I would say to you that you give up the advocacy role
and become the arbiter, and a fair arbiter is what you are paid
to do and I hope and pray that you will all be able to do that.
We have on the second panel a number of nominees for the
important administrator for the Drug Enforcement
Administration, director of the Marshals Service, another very
important office, and the chair of the Sentencing Commission,
another very important nomination.
All of these nominees have had their records reviewed in
depth by staff and Senators, and I will have some questions as
we go forward. You might think, out of all my life, why do you
not find the one thing you want to complain about. Well, I
think it is an opportunity to ask that.
Obviously, the good things are there and have been part of
the record or you would not have been nominated.
Thank you, Mr. Chairman.
Senator Whitehouse. Thank you, Senator Sessions.
Now, I will turn to the nominees. We are delighted to have
Max Cogburn with us, currently a partner at Cogburn & Brazil.
He has a distinguished career of service as a United States
magistrate judge.
For those of us who practiced in Federal court, we know how
important and valuable that experience is for a nominee. You
are before a panel that is chaired and ranked by two former
United States attorneys.
Senator Sessions and I have both had the opportunity to
witness firsthand the dedication and the competence and the
esprit de corps and the determination to produce justice that
AUSAs bring and we are particularly pleased that not only were
you an AUSA, but you were also, what I would call in my office,
the first assistant; I gather, in your office, it was
appropriate to call it the chief assistant, and that you led
the OCDETF task force, which requires you not only to be an
excellent prosecutor, but, also, quite a good diplomat and
negotiator among all of the elements of the Federal Government.
I am particularly pleased, as a New Englander, to see that
you were born in New England. We welcome you for any opening
statement or introductions you would care to make.
STATEMENT OF MAX O. COGBURN, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Mr. Cogburn. Thank you very much, Senator. If I might,
first, just thank Senator Hagan and Senator Burr for the
generous remarks that they made. I am very, very much honored
that they took the time out of their busy schedules to come
here and introduce me.
I, first, would like to thank President Obama for his
confidence in me by nominating me to the Federal bench; Senator
Leahy for allowing me to come to this Committee meeting; and,
Senator Sessions, for the same reason.
Senator Whitehouse, I appreciate you chairing this meeting
today. And, Senator Franken, I thank you for coming today and
spending time here to consider my nomination.
I would like to introduce some of the members of my family
who are here today. I have my mother, Mary Cogburn, who is
seated back here, and she is originally from Charleston, South
Carolina, and has come here to be with me today.
My wife, Fran Cogburn, who is originally from Decatur,
Alabama. I met her when I was in law school there at the
Cumberland School of Law at Samford and she was a student at
Samford University there in Alabama. And she still has family
there. She has three sisters who are living currently in
Decatur, Alabama, and another sister who is living in Texas at
the present time. The three are living there.
My daughter, Casey Cogburn, who is an attorney currently
practicing in Huntsville, Alabama. She also went to the
Cumberland School of Law and she is licensed to practice law in
both Alabama and North Carolina.
I have other members of my family who could not be here due
to other commitments. My son, Tripp Cogburn, is watching this
on the Webcast, along with his wife, Stacy, and my 5-year-old
grandson, Oliver. So they are watching this on the Webcast.
I have a number of colleagues that I work with that are
watching this, as well as extended friends and family both in
North Carolina, South Carolina, and Alabama.
Thank you very much.
[The biographical information follows.]
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Senator Whitehouse. Thank you, Mr. Cogburn.
We are delighted, also, to be joined by Judge Hernandez. I
guess we could call him a repeat offender before this
Committee. But we are delighted to have him back and look
forward to a more successful trip through confirmation at this
time.
Your service on the district court and on the circuit court
provides excellent background and qualifications for this
position, and your service to Oregon, legal services over the
years, shows a keen sense of duty to your community and
particularly to those who are less favored than others, and we
appreciate that very much.
So welcome, and, please, proceed with any statement or
introductions that you would care to make, Judge Hernandez.
STATEMENT OF HON. MARCO A. HERNANDEZ, NOMINEE TO BE UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF OREGON
Judge Hernandez. Thank you very much. I want to thank the
Committee for having me, Chairman Whitehouse, Senator Sessions,
Senator Franken. Thank you for conducting this hearing and
allowing me to appear before you.
I want to thank President Obama, President Bush before,
Senators Wyden and Merkley for their kind remarks and support
throughout the process, Senator Wyden, in particular, for a
process that has now taken years and he has been a supporter of
mine throughout all of that time.
There are some people behind me that I would like to
introduce to you. My mom and dad are here, Frank and Rosa
Hernandez. My wife, Mary Beth is here; my daughter, Alicia; my
son, Daniel is here.
Chief Justice De Muniz, from the Oregon Supreme Court, and
his wife, Mary, are here and have been longtime supporters.
I appreciate all of their support and that they are having
my back and here with me in Washington, DC. And, again, I
appreciate the opportunity to be here before you. I welcome
your questions.
Thank you.
[The biographical information follows.]
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Senator Whitehouse. Thank you, Judge Hernandez. We are
delighted to have you.
Michael Simon comes to us, he is a partner at a major
national firm and leads its Portland office. I do not know if
you were actually an AUSA, but you were a trial attorney in the
Department of Justice, what we used to refer to as main
Justice. And very pleased that you, too, have a New England
connection as a Rhode Islander and welcome you, welcome any
statement or introductions you would care to make.
STATEMENT OF MICHAEL SIMON, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE DISTRICT OF OREGON
Mr. Simon. Thank you, Mr. Chairman. I have no formal
statement, but I would like to begin by thanking the President
of the United States for his nomination. And if I am fortunate
enough to be confirmed, I thank him and the Committee and the
Senate as a whole for the opportunity to serve the public as a
United States district judge in the district of Oregon.
I also thank you, Mr. Chairman, and Ranking Member Sessions
for convening this hearing and for listening to our testimony
and for asking us questions. I also express appreciation to
Senator Franken for being here.
I also very much appreciate the very kind words from
Oregon's senior Senator, Ron Wyden, and his support and
encouragement throughout this process. And I also appreciate
the very kind words and the presence of Oregon Senator Jeff
Merkley, also, for his support and encouragement throughout
this process.
I very briefly would like to introduce two of my family
members who are here today and to acknowledge two family
members who could not join us today in person. I, first, would
like to introduce and ask to rise my wife, Suzanne Bonamici.
And we have been married now for 25 years and for 25 years, a
little more than 25 years, she has been my very best friend.
Thank you.
I also have two wonderful children. My daughter, Sara
Simon. Thank you.
Senator Whitehouse. You thought you would get off easy,
Sara.
Mr. Simon. Sara is a college sophomore. And my other child,
my son, Andrew, graduated from college a few months ago and is
now off in graduate school at a far distance. He is watching on
the Webcast, at least that is what I have been told. And I also
understand that my mother, Arlene Simon, is going to be
watching on the Webcast, as well, and I thank her for beginning
my education and for instilling character and value traits in
me and for which I am much appreciative.
I look forward to answering the questions from the
Committee. Thank you very much.
[The biographical information follows.]
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Senator Whitehouse. Thank you very much.
Our last nominee on this panel is Judge Jones, who serves
with distinction on the superior court of the State and is the
presiding judge on the felony drug court.
Like Judge Hernandez, he is also a former assistant
district attorney in his home State. So we have the
prosecutors' offices, Federal and State, well represented in
this panel.
As a graduate of the University of Georgia, I promised that
I will follow Senator Chambliss' injunction and not discuss
football.
Judge Jones. Thank you.
Senator Whitehouse. You are welcome here for any statement
or introductions you would care to make, sir.
STATEMENT OF HON. STEVE JONES, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Judge Jones. Thank you, Senator Whitehouse. I would like to
thank Chairman Leahy, Ranking Member Sessions, and the
Committee for your consideration of my nomination and
scheduling of this hearing today.
I would also especially like to thank President Obama for
the nomination. I feel honored and privileged to be here today.
I would also like to thank Senator Chambliss for being here
today and for his introduction, and Senator Isakson for his
letter of support and introduction. Senators Chambliss and
Isakson have been really helpful to me and I really appreciate
and honor to have their support and the support their staffs
have given me through this entire process.
I would not be here today without the support of my family
and friends, and I would like to recognize the ones that are
here today and two that could not be here today, but are here
in spirit.
I would like to start off, first, by introducing my
beautiful wife of 20 years, Lillian Kincey. I have made a lot
of decisions as a judge, but the best decision I ever made was
asking her to marry me.
I would also like to introduce my sister, Deloris Ford, and
my niece, Donna Ford. They both have also played an important
part in me being here today.
There are two ladies that cannot be here today, but they
are here with me in spirit, and, because of their health, they
cannot be here. And one is my mother, Katie Jones, and the
other is my mother-in-law, Mrs. Stella Kincey, and they both
have been very supportive and I know they are watching and are
here with me in spirit today.
I would also like to acknowledge the remainder of my family
and friends and my colleagues who could not make the trip, as
well as my office staff, who are watching via Webcast today.
And I would also like to thank them.
And, Senator Sessions, I understand that Auburn beat us
last week, but it was a great game.
I will be glad to answer any questions the Committee may
have. Thank you, Senator Whitehouse.
[The biographical information follows.]
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Senator Whitehouse. Thank you, Judge Jones. I cannot
guarantee that the Ranking Member will follow Senator
Chambliss' injunction and show mercy for this nominee.
Senator Sessions. No.
[Laughter.]
Senator Whitehouse. It is a very solemn thing for members
of the U.S. Senate to consider nominees for the United States
district court. It is very important that you have the support
of your colleagues from your home State, who know you better
than anyone, but each Senator also has their own responsibility
to inform themselves so they can vote, as their duty in their
best lights, requires them to vote.
And as we do that, we are keenly aware that we are voting
on lifetime appointments; that long after we are gone, you may
very well still be serving on these district courts, we hope,
with great distinction. But I think we do bring a perspective
about the appropriate role of a judge to our duties, and I
would like to share that perspective with you and then ask each
of you to comment briefly on your agreement or disagreement
with that perspective.
It is my belief that judges must do a number of things. One
is to respect the role of Congress as the
duly elected representatives of the American people in our
system of American democracy. Two is to decide cases based on
the facts and the law, nothing else. Three is to not prejudge
any case, but listen to every party that comes before you,
powerful or weak, rich or poor, irrespective of station or
position; to respect the precedent that the Supreme Court and
the circuit courts for your districts have laid down and the
precedent that exists within your own district; and, finally,
to limit yourself in your decisions to the issues that the
court must decide that are properly presented before it.
It is my belief that those disciplines, which must be self-
imposed by judges, are key to the successful operation of the
carefully balanced system of government that the Founding
Fathers created and that we all honor and enjoy the fruits of.
So if I could ask each of you for a comment on that, and I
will then turn to Senator Sessions for his questioning.
Mr. Cogburn. Senator, I agree with everything you said,
absolutely. That is what a judge is--that is exactly what a
judge has to do, be impartial, be fair, and follow the law.
Senator Whitehouse. Judge Hernandez.
Judge Hernandez. I agree, as well. I think that I would add
to the mixture that it is important for judges to do all of
those things with a great deal of judicial temperament and
evenness so that the parties that are appearing before you
trust that you are judging these cases in a fair and just way.
Mr. Simon. Chairman Whitehouse, I, too, agree with
everything that you have just described as the qualities and
character of judging.
Judge Jones. Senator Whitehouse, I agree with what you said
and it is important, because if we fail to do that, then the
communities we serve or preside over lose confidence in our
courts and, as judges, we will not have credibility.
Senator Whitehouse. Yes. And as we know, for judges,
credibility is the coin of the realm and it is the confidence
of the American people and the judiciary that allows judicial
orders to be followed and it is an important concern, because
you do not have an army to go and enforce your opinions.
The opinions and the orders that come down from our courts
have the weight that they do because the American people
accepts them and accepts the rigor and the discipline and the
fairness that you bring to your task.
So I appreciate that very much and I look forward to your
successful process through the confirmation process; I might
even hazard to say successful and rapid process.
Senator Sessions. Well said, Mr. Chairman. I think you did
set forth good standards for judges, and you answered well in
affirming that, I think.
Mr. Cogburn, my daughter went to Cumberland and that is
good. It is a very fine law school. I am very proud of it. The
dean, Dean John Carroll is a former magistrate, United States
magistrate, and does as great job there, and it is a large and
fine law school.
You have been a Federal prosecutor. You started, it looks
like, before the sentencing guidelines became law, and you
prosecuted and sent a lot of people to the bastille as a
prosecutor, it looks like, over a number of years after the
guidelines, also.
How would you share to your colleagues here the impact of
the sentencing guidelines and to what extent do you believe a
judge should give respect and deference to those guidelines?
Mr. Cogburn. Senator Sessions, the sentencing guidelines
were brought into being in order to get rid of any kind of
meaningless disparity in sentencing; that is, to try to have
most people who commit the exact same crime receive generally
the same sentence and to try to have some uniformity across the
board, depending on where you were sentenced, in what court you
were sentenced in and what state you might be sentenced in,
wherever that might occur.
A great deal of effort was put into the sentencing
guidelines and into getting them established and deciding where
those particular guideline ranges fall.
Under 18 United States Code Section 3553, which is the
sentencing statute, the first thing that a judge is to do is to
determine what those sentencing guidelines are before going
into the rest of the sentencing process.
They are to be given substantial weight in determining what
these sentences are. They are a very important part of the
sentencing process.
Senator Sessions. Before the guidelines, in my district,
you would see dramatic differences in sentencing for very
similar offenses. I am not sure how that played out in every
district. I think it did happen all over the country.
Did you perceive there was more uniformity and more
coherence in the sentencing process post-sentencing guidelines?
Mr. Cogburn. There was more uniformity post--sentencing
guidelines than there had been before. There had been some
back-and-forth differences in sentences before. Depending on
cooperation and that sort of thing, you could get some very,
very strong differences in sentences.
But cooperation is still taken into consideration and
people are able to get some relief for cooperation. So the
sentencing guidelines, generally, have brought a great deal
more uniformity to the sentencing process.
Senator Sessions. In general, do you think they reflect a
considered consensus of where sentences should fall?
Mr. Cogburn. Those who have prepared the sentencing
guidelines have given a great deal of time and effort into
placing those sentences into various categories and they are--
the majority of sentences that I am observing have been falling
within the sentencing guideline range; that most of the judges
have been tending to sentence within the guideline range rather
than departing from that.
Senator Sessions. Well, we could talk about it a good bit
more, but I would just say to you that the guidelines were
developed by judges and the Sentencing Commission, but it was,
in large part, based on the tendency of judges to sentence in a
mainstream way around the country. They examined what the
sentences were and they considered other areas.
So I think it reflects a fairly good consensus of where
sentencing should be. It may not be perfect.
I would ask each of you to state to what extent you feel
that you would desire or you would seek to be in harmony with
those guidelines, recognizing that a judge, once he is given a
lifetime appointment, can ignore them pretty regularly under
some of the more recent case law.
Judge Hernandez, would you share with us your thoughts?
Judge Hernandez. Thank you for the question, Senator
Sessions.
I am accustomed to guidelines. Oregon has sentencing
guidelines. I use them all the time. I am very comfortable with
them.
On the Federal side, it is my opinion that the guidelines
need to be given a great deal of deference as we approach
cases. Those guidelines were well thought out. A lot of time
was invested in determining whether and what appropriate
sentences should be, and, again, they should be given a great
deal of deference.
Senator Sessions. Thank you.
Mr. Simon.
Mr. Simon. Senator Sessions, I, too, would give the
guidelines a great deal of deference, and I recognize their
importance in providing consistency and uniformity in
sentencing throughout the Nation. I also recognize that they
were the result of a bipartisan consensus from this body, that
they are the result of a great deal of input and expertise from
a wide variety of people.
I will note that in response to Chairman Whitehouse's
comment at the beginning, it has been a number of years since I
was a Federal prosecutor. I did begin at main Justice, in the
antitrust division, prosecuting antitrust defenses, but I was
designated on a special detail as a special assistant U.S.
attorney in Alexandria, Virginia, where I prosecuted both white
collar fraud trials and armed bank robbery.
I will also admit that that was before the sentencing
guidelines came out. And so to acquaint myself with those, I
started reading these. I note that about 2 weeks ago, the 2010
guidelines manual was just issued. I have begun reading that.
But I do agree with the values and the policies behind it
and I would give them great deference.
Senator Sessions. Thank you.
Judge Jones.
Judge Jones. Senator Sessions, I also believe that the
guideline should be given substantial and great deference,
because uniformity and consistency in sentencing brings about
confidence in our courts and, also, helps us reach a reasonable
sentence.
Senator Sessions. It was a dramatic, historic event,
really, when Congress, in the early 1980s, made some of these
decisions. Senator Kennedy and Senator Thurman and Senator
Biden and Senator Hatch and all, Leahy and others, all worked
together to bring it about, and I do think there has been more
integrity in the process.
It is easier to defend the sentences intellectually and
morally to anybody who challenges them. Any guidelines sentence
is backed up by quite a good bit of research, debate,
discussion. And I worry that there may be a belief that judges
are now free to sentence like they would like, but I believe
you will sleep better at night if you follow the guidelines,
because when you have the momma and the minister and the
brother and the children before you at sentencing time, it is
no fun and at least you have got an objective fallback that I
am trying to operate within what a consensus is for the
country.
Mr. Simon, you have been a member for some years with the
ACLU. I see one thing conservatives would like. I see you filed
a lawsuit defending the free speech of anti-abortion
protestors, and ACLU does take sides that are not always
liberal, if you would call it that.
But it also is an institution that has taken quite a few
positions that are troubling to me, such as legalization of
drugs. Does that reflect your views?
Mr. Simon. Senator Sessions, I have been involved as a
volunteer lawyer for the ACLU for a number of years and it
certainly is true. In my case, as well as, frankly, in almost
everyone's that I have interacted with, that we do not
necessarily agree with all of the positions taken by the
American Civil Liberties Union.
And to answer your question, what I have primarily been
focusing on in my activities for the American Civil Liberties
Union of Oregon has been involved in First Amendment issues.
Senator Sessions. Well, we have had a big debate about
legalization of drugs, and you would be a judge that will have
to impose some rather stiff sentences for violation of drug
laws.
Have you taken a position personally on that?
Mr. Simon. I have not, Senator, and I would have no
difficulty at all enforcing all of our laws.
Senator Sessions. I notice the Oregon Website said that the
ACLU supports a moratorium on the death penalty. Would you
personally agree with that and have you advocated for that?
Mr. Simon. I have not taken any positions on that issue,
Senator, but I do observe that the Fifth Amendment to the
United States Constitution does refer to capital crimes. It
does refer to not putting anyone in double jeopardy for life or
limb, and, also, that no one shall be deprived of life without
due process of law.
And so I do think that the United States Supreme Court,
using those references, among others, has quite clearly said
that the death penalty does not violate the Eighth Amendment's
prohibition on cruel and unusual punishment, and I am fully
prepared to follow all of the precedent from the United States
Supreme Court and the applicable courts of appeal, including
that.
Senator Sessions. Well, I agree with that constitutional
analysis, very clearly, although we had two members on the
Supreme Court for quite a number of years that dissented in
every death penalty case, saying it did violate the
Constitution.
Within the Constitution itself, there are a host of
references, more than you just made, to the death penalty and
implicit in the document is an affirmation of the death
penalty. But the ACLU Website in Oregon posted a white paper,
eight objections to the death penalty, and one of those was,
quote, ``Capital punishment is cruel and unusual'' and that it,
quote, ``denies due process of law.''
So are you saying that it is not cruel, that you do not
share that view, or what would be your comment?
Mr. Simon. I played no role in the preparation of that
particular white paper to which you refer nor have I ever taken
any public positions on that question.
I am prepared to commit to you that I will follow all of
the precedent from the United States Supreme Court and from the
courts of appeal, and I do recognize the constitutional
references that you have highlighted for us.
Senator Sessions. What do they mean it would deny due
process of law? Do you know what the ACLU could be referring to
with that?
Mr. Simon. I do not know specifically what you are
referring to, Senator. I did not play a role in the preparation
of that document at all.
Senator Sessions. We have had quite a number of cases--
judges, nominees, recently that have not followed the
sentencing guidelines with regard to child pornography, and
some of that is legitimate and some of that was troubling to
me, in their decisionmaking processes.
ACLU has opposed any laws that limit pornography, including
child pornography. Do you agree with that policy of the ACLU
and will you enforce the law and follow the guidelines, as
appropriate?
Mr. Simon. I most certainly will enforce the law and, as I
expressed earlier, I do anticipate giving great deference to
the guidelines, including all aspects of the guidelines. I have
not spoken or written with respect to the issue of child
pornography, but I do fully anticipate having no difficulty in
supporting and enforcing all of our laws and in giving great
deference to all aspects of the sentencing guidelines.
Senator Sessions. And if confirmed, would you have any
reservation in applying the death penalty, if it were
appropriately consistent with the law?
Mr. Simon. In the appropriate circumstances, I would have
no difficulty enforcing the law in all of its aspects,
including that.
Senator Sessions. Thank you. Well, we have got Senator
Franken here. I am sorry. I am past my time. But we do have a
number of nominees on the panel and it takes a little more time
than normal.
Thank you.
Senator Whitehouse. We can happily do a second round.
Senator Sessions. Thank you.
Senator Whitehouse. We will happily do a second round to
accommodate any further questions Senator Sessions may have,
but I think it is appropriate for Senator Franken to have his
turn.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Thank you,
Ranking Member Sessions. And a second round would be great,
because I know Senator Sessions has a lot of questions.
Judge Jones, you served as presiding judge on the felony
drug court.
Judge Jones. Yes, sir.
Senator Franken. For the Western Judicial District of
Georgia since 2004. Can you tell me about that? What is a drug
court? Who do you deal with? Obviously, it is drug felony
offenses.
But I think that we have a lot of people in prison for drug
offenses that maybe could be better served by having treatment.
What do you do in the felony drug court?
Judge Jones. Well, thank you, Senator Franken. Felony drug
court is a court in which after an individual has entered a
plea of guilty, they are charged, a drug charge. The prosecutor
works out a negotiated plea with the defense counsel. And in
the program, the felony drug is a 17- to 24-month program, in
which the individuals go through five phases.
In the first phase, they are drug tested randomly anywhere
between three to four times a week. They may receive a call as
early as 6:00 in the morning for a drug test and as late as
10:00 at night for a drug test.
They meet biweekly with me and we discuss matters. They go
through classes weekly. And as they move through the phases,
the amount of contact somewhat reduces, but the requirements
are still the same.
The mission of the felony drug court is to provide
treatment for individuals so they will not become repeat
offenders or recidivists. We have found that sentencing one to
jail with a drug offense, when they get out of jail, they still
have a drug addiction or substance abuse problem.
So what we are trying to do is stop the substance abuse
problem so they will not become recidivists. And the program
has been very successful, in my opinion. But we try to keep in
contact with individuals after they graduate, as much as 2
years later, and we have a number of individuals come back. It
is probably one of the most successful and most rewarding
things I get to do as judge, and I look forward to meeting the
individuals biweekly in the felony drug court.
Senator Franken. And do you have any sort of longitudinal
studies? I know you have been there for 6 years. But is the
evidence that this works, that there is less recidivism, that
this actually saves not just society money by not having to
incarcerate people, but that the treatment has a return on
investment?
Judge Jones. The State of Georgia, Senator, conducted an
audit on all the felony drug courts in the State recently and
it showed that the felony drug courts were less expensive and
they were probably one of the most successful aspects of the
courts.
For my particular drug court, I can say we have less than
20 percent of the individuals that graduate from felony drug
court commit a crime within 2 years after graduating from the
felony drug court. So an 80 percent success rate, I feel, is
showing that they are successful and the court does work.
Senator Franken. So would it be too bold to say that if we
are interested in long-term deficits in this country, that
maybe it would be a smart approach to have drug courts all over
the country and make sure that we are not incarcerating people
in a way that actually is more expensive for society in all
kinds of ways?
Judge Jones. Yes, sir. I would agree with that statement
completely.
Senator Franken. Thank you. And I know that your job is not
to talk about deficits, it is to be a judge, but my job is.
I would like to know, on the sentencing guidelines--and it
sounds like all of you said that they deserve great deference
and sounds like that you are talking about the consistency and
uniformity of sentencing gives credibility to the court, which
I find very important.
Can any of you speak to when you kind of make exceptions to
or when your deference to the guidelines is also colored by
other factors? Is there anyone who would like to speak to that?
Mr. Cogburn. Senator, it would certainly depend on the
facts of the case, but 18 USC 3553 has all of those factors and
after you determine the sentencing guideline, the proper
guideline range, you look at all those other factors.
Normally, those factors probably would determine just where
within that guideline range you would go.
Senator Franken. So the guidelines themselves have within
them the factors that you would consider.
Mr. Cogburn. They have some factors, too, but, also, in the
statute itself, there are things that you look at and consider.
After you get the sentencing guideline range determined, there
are other factors that you look at and some of those would
implicate where within this guideline range you would go.
And on occasion, and I would not know without what
particular fact situation it would be, you might--so there
might be one of those other factors that you are looking at
under 3553 that would cause you to go outside the guideline
range.
Senator Franken. Well, thank you. My time is up and I have
to go vote.
Senator Whitehouse. We will return to Senator Sessions. It
appears that Chairman Leahy will be coming to chair for a
period to allow me to go and vote on the two votes that we
have. So we will continue forward and back for a second round
to Senator Sessions.
Senator Sessions. Thank you. Judge Jones, I do think that
drug courts have great merit and have advocated for them since
the early 1980s, and, well managed and properly handled, it can
be effective.
But I do believe, do you not, that the ultimate authority
of a judge to adjudicate a person guilty and sentence them to
custody provides a kind of opportunity or the environment to
get the attention of the offender and perhaps give them a
chance to alter their lifestyle?
Judge Jones. Yes, sir. I agree with that totally. I think
that, as judge, it is my job to listen to the facts in the case
and follow the law in rendering a reasonable sentence on one.
And if you fail to do that, then you are not doing your job as
judge.
Senator Sessions. I just wonder, in this day and age, that
some are discussing legalization of drugs and California has
had votes on that. It seems to me that a low level offender can
be given a second chance and it ought to be done in a way that
has good supervision, as drug court does.
But, also, would you be concerned about a legalization of
drugs in the country?
Judge Jones. Well, sir, what I believe is that right now,
the law that I have to recognize is what is put forth by the
Supreme Court and the 11th Circuit Court of Appeals and the
Congress of the United States, and I will follow that law as
far as drugs.
I agree with you that the supervision of individuals on
drugs helps them tremendously.
Senator Sessions. The Athens Banner-Herald quoted you as
saying, ``Sentencing does not deter crime. The only thing I see
sentencing doing is taking a person off the street so they
can't do it for a while.''
Well, that is true. It does take the person off. The
incapacitation is one of the factors in it. But are you saying
you truly do not believe that consistently enforced laws do not
deter other people from violating the law?
Judge Jones. No, sir. Senator Sessions, when you are
sentencing one to a sentence for being convicted for the law,
that not only sends a message to that individual, but to other
individuals that there is a punishment for violating the laws.
So I definitely believe that sentencing does deter crime.
Senator Sessions. Well, good. I think about the squeegee
crackdowns, the street crimes in New York that New York cracked
down on, and all crime plummeted when they did that.
Judge Jones. Yes, sir.
Senator Sessions. And it was consistent prosecutions that
ended it. And if you do not prosecute it, you do not get
deterrence. The same, I think, about at the border with
Operation Streamline, where, when people are apprehended at the
border are actually prosecuted and serve some time in jail,
they come back less often than if they are not prosecuted. And
I think of public corruption.
I do believe there is real deterrence. If a community
allows corruption to continue without prosecuting, it does do
that. And I just was troubled by your statement. I am glad to
see that you clarified that.
And Senator Chambliss did not have the gumption to show up
at the Auburn-Georgia game, but Senator Isakson was there
sitting one row away from me with his Georgia shirt on, that
sea of orange. I thought it was a courageous act. And after you
guys had whipped us 4 years in a row, I think it was good to
have a little different outcome. The SEC football is a lot of
fun.
Judge Jones. Yes, sir.
Senator Sessions. A fabulous thing. I thank all of you for
being willing to undergo this scrutiny. I will say I know that
Chairman Leahy knows that more of it is done behind closed
doors than in the open meeting and if anything bad had shown
up, we would have been asking you about it.
So to some degree, you can certify that you have been
checked out clean.
Judge Hernandez, it is great to see you and I am glad that
after 600 days, we are finally being able to see you confirmed.
Judge Hernandez. Thank you very much, Senator.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Leahy. [presiding] Thank you, Senator Sessions. I
voted on this first one, so I will let you go. And I know the
questions have been asked of all of you, and I congratulate
each one of you, congratulate you on the jobs you have been
nominated for, or offer condolences, depending upon how much of
a backlog there may be in the district.
But as one who has practiced in state court, Federal Court,
all the appellate courts, I know how hard judges work. And I am
not going to ask questions, so we can bring up the next panel,
but I would remind you of just one thing.
We had a judge who was here, a very, very good judge, and
she had made some comment about the fact that she always
worried because she was quite short. And I said, ``You have to
remember, when you go in the courtroom, you are the tallest
person there.''
Everybody in the courtroom stands and looks up at you. Do
not let it go to your head. You are there to do justice to
everybody and for everybody. You all have legal careers. You
are used to walking into the court. I mean, there are days you
could do it on some motions and some proceedings are so easy,
it is almost a matter of rogue.
A lot of the people, when they are in the case before you,
it is the only time that litigant has ever been in a Federal
court. It is the only time probably they ever will be. And
everything they know or think or feel about the judicial system
will depend upon how a Judge Cogburn or a Judge Hernandez or a
Judge Simon or a Judge Jones treats them while they are there.
They will not see any other judges. They probably will not
ever be in another court, and they do know whether we have a
good court system and a good judiciary, based upon how you are,
not on how anybody else is.
So that is an awesome responsibility. I felt that
responsibility even when I was a prosecutor. How you treated
defendants or, as we call them, respondents in Vermont or a
victim, because for many of them, it is the only time they ever
saw the criminal justice system.
Now, I have read your backgrounds, each one of you, and
impressed by it. Senator Sessions and I always meet privately
if there are questions that need to be resolved before, both
the Republican and Democratic side. We look at that very
carefully and openly with each other. I agree with him, there
is nothing to worry us there.
So I thank you all for being here, and I will not ask
questions. And I know you have all been introduced, and thank
you for taking the time.
Did you all get to introduce your family, too, earlier?
Judge Jones. Yes, we did.
Chairman Leahy. Because someday, that will be in your
archives and everybody says, ``Now, who was there?'' Thank you.
Mr. Simon. Thank you, Senator.
Mr. Cogburn. Thank you, Senator.
Chairman Leahy. Before we begin this panel, Michele
Leonhart, Patti Saris, Stacia Hylton, if you would all raise
your right hand.
[Nominees sworn.]
Chairman Leahy. Thank you. And I am not Sheldon Whitehouse.
I am Patrick Leahy. Somehow we have to get those in there.
I understand, Ms. Leonhart, you have already been
introduced; is that correct?
Ms. Leonhart. That's correct.
Chairman Leahy. And Judge Patti Saris has served as U.S.
district court judge for the district of Massachusetts since
1993. Before that, she was an associate justice of the
Massachusetts superior court; magistrate judge in the district
of Massachusetts; worked in the U.S. attorney's office for the
district of Massachusetts, where she was chief of the civil
division.
She served as counsel to our dear friend, Senator Kennedy,
on this Committee from 1979 to 1981; became counsel a little
bit after I became a member of the Committee.
Born in Boston, BA from Radcliffe, JD from Harvard Law
School. And I should note for the record that Senator Kerry has
submitted a statement of support for you.
And Stacia Hylton is a 24-year veteran of the U.S. Marshals
Service. She has posts, including acting deputy director and
the assistant director for prisoner operations.
From 2004 to February this year, she served as Federal
detention trustee in the Department of Justice, where she
managed thousands of prisoners in Federal custody awaiting
trial or deportation.
She currently operates her own consulting company, Hylton,
Kirk & Associates. She was born in Red Bank, New Jersey. She is
a graduate of Northeastern University.
I will include for the record a statement in support for
Ms. Hylton--I apologize for the voice--from Senator Webb of
Virginia.
[The statement appears as a submission for the record.]
Chairman Leahy. Now, Ms. Leonhart, have you had a chance to
introduce any family members who are here?
Ms. Leonhart. I have not, Chairman. Thank you.
Chairman Leahy. Please go ahead, so it can be part of the
record.
STATEMENT OF MICHELE M. LEONHART, NOMINEE TO BE ADMINISTRATOR
OF DRUG ENFORCEMENT, DEPARTMENT OF JUSTICE
Ms. Leonhart. Thank you very much. I am proud to introduce
my better half, my partner, Gene Johns, my husband, who today
celebrates his 28th year with the Los Angeles County Sheriff's
Department. He is currently a narcotics detective in Los
Angeles.
And also with me is Hon. Peter Bensinger, who was the DEA
administrator from 1976 to 1981. He has been a mentor for me
and, in fact, was the administrator that swore me in as a DEA
agent and presented me with my badge and credentials.
And I would also like to note three people that are not
here today. My oldest son got married on Saturday and I didn't
want to take him away from a honeymoon. And my youngest son is
a deputy sheriff in Los Angeles and had to work. And then my
mother earlier this year suffered a stroke and she is
recovering or would be here.
So thank you very much.
Chairman Leahy. Please give her our best.
Ms. Leonhart. Thank you, Chairman.
Chairman Leahy. And, Ms. Saris, do you have family members
here?
[The biographical information follows.]
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STATEMENT OF HON. PATTI B. SARIS, TO BE A MEMBER AND CHAIR OF
THE UNITED STATES SENTENCING COMMISSION
Judge Saris. I do. Thank you very much for holding this
hearing today. I would like to introduce my husband, Arthur
Segal. We will celebrate our 34th wedding anniversary next
week.
Chairman Leahy. Now, Judge, that is an accomplishment, and
he is obviously aware that he married up. My wife and I
celebrated our 48th this year.
Judge Saris. I hope to go there. And I'd like to introduce
my daughter, Celia. Senator Franken introduced her, as well, as
being a gem. She used to work for him.
And as well, I'd like to mention my other three kids who
couldn't be here today, my daughter, Marissa, who is teaching
in a charter school in Boston; my son, Eddy, who is on the west
coast and couldn't make it; and, my baby, who actually fell
asleep in my lap when I went through my confirmation hearing
is, believe it or not, a freshman. So I'm newly an empty-
nester.
I'd like to introduce my friend, Wendy Gray, who is here;
my brother-in-law, Jim Segal; and, a whole lot of other friends
and staff who have come down to be with me today.
I'd also like to thank the Judicial Conference for
suggesting my name; to President Obama for nominating me; and,
to this whole Committee for hearing me today, because this was
the Committee that I first started in as a staff member, as you
noted. And, in fact, in 1981, I learned about sentencing policy
by being a staff member on this Committee when I was very
young.
Thank you.
Chairman Leahy. And I am sure you are going to get a lot of
good advice from the outgoing chair, Judge William Sessions of
Vermont.
Judge Saris. I consider him a good friend and we've talked
a lot. I should also mention, or she'll kill me, my mom, who
couldn't make it here today and I'm sure is going to be
watching this from Boston.
Chairman Leahy. Well, I hope she will and please give my
best to Judge Sessions. He is a wonderful friend.
About the only time I have been in Federal court since I
became a Senator was to appear before him to move the admission
of one of his law clerks to the Federal court.
The law clerk was my oldest son. I went through and made
the usual motions. Judge Sessions looked at him and he goes,
``Hmm.'' And we had joked about that. He quickly made up his
mind and admitted him.
Ms. Hylton, do you have any friends or family members here?
[The biographical information follows.]
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STATEMENT OF STACIA A. HYLTON, NOMINEE TO BE THE DIRECTOR OF
THE UNITED STATES MARSHALS SERVICE
Ms. Hylton. I do, Mr. Chairman. First, thank you for your
introduction and the opportunity to appear here today to
address your questions.
I would also like to thank President Obama and the attorney
general for their confidence in me through this nomination.
If I could, I'd like to introduce my husband of almost 25
years, Ike Hylton, who is here with me today. And I regret that
your son, who is in a very rigid academic program, much to our
pleasure, is unable to be here today due to some exams, but he
has assured me that he will use his technical skills gained
through video gaming to watch it on Webcast tonight with the
rest of our family. So I look forward to that.
Chairman Leahy. We have a similar thing that we say when a
fellow Senator is about to give a long and important--all
speeches being important, of course--on the floor of the Senate
as we are leaving. We say, do not worry, we will read it in the
Congressional Record. But I imagine in your son's case, he
probably will actually watch it.
Ms. Hylton. Yes. It would be a good opportunity for him.
And I'd also like to thank both Senator Webb and Senator Warner
for their support and their letter for the record today.
Chairman Leahy. Thank you. Let me ask, Ms. Leonhart, you
spent almost 30 years in the Drug Enforcement Administration,
including as deputy administrator. You were nominated to that
position by President Bush.
I have always felt that being in law enforcement was a very
special calling. I know I enjoyed my time there. But what did
you learn from your experience at DEA that you think will stand
you in the best stand, if you are confirmed to be the agency's
administrator? I am sure you must have given it a lot of
thought.
[The biographical information follows.]
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Ms. Leonhart. Thank you, Chairman, for that question. It's
a great question. It all comes down to serving the public.
You're a public servant and you've got to put the public first.
It's about public safety and it's about everything that you
do remembering your impact on communities, your impact on this
country, and, with DEA, actually, your impact on the world.
Chairman Leahy. Well, I have held Senate Judiciary
Committee hearings, I have had them here, of course, but I have
also gone into cities like Rutland and St. Albans and Perry,
Vermont. Now, these are small cities, a lot of blue collar,
very hardworking cities where people tend to know each other.
Up to a few years ago, I do not think anybody locked their
doors. You never worried about anything. But we heard about not
only the scourge of drugs, but prescription drug abuse in each
one of these places and the devastating effect it has on
communities. A lot of it was prescription drug abuse, more and
more people becoming addicted to prescription pain killers,
such as OxyContin.
What I found most interesting in these hearings is that the
whole community came together. You had law enforcement,
educators, clergy, physicians, parents.
It was also quite an eyeopener to some of the parents
there. It is obvious there was no automatic answer. You cannot
do it just by education or just by law enforcement. You are not
going to do it just in the schools.
Do you see that kind of a growing problem nationwide on the
abuse of prescription drugs, and what would you suggest?
Ms. Leonhart. Absolutely, Chairman. And I know that
recently you were at or helped sponsor a summit there in
Vermont on prescription drugs.
It is a growing problem. It's an epidemic in this country,
and it concerns me and the DEA very much. About 7 million
Americans are abusing prescription drugs and what really
concerns me is that every day, about 2,500 teenagers abuse
prescription drugs for the first time.
And we all have something to do about it, because it
affects all of our families and all of our communities. One is
education, and DEA has done a good job, especially this year
with the Take Back program in September, of getting the word
out.
We have talked to kids. We have looked at every survey
there is to find out where are they getting these prescription
drugs, and over 60 percent of these teens will tell you that
they get it from a family member, a friend, or from the family
medicine cabinet.
So education is key, but enforcement, especially
enforcement by our State, local and Federal agencies, is also
very important and oftentimes it's the only way to get some of
these abusers of prescription drugs to seek treatment.
So it's a whole of government approach. It's a community
approach. It concerns me. And if I have the privilege of being
confirmed, it is one of my three focus points for the Drug
Enforcement Administration.
Chairman Leahy. But you also have people who have actually
gone into the business of supplying this, are looking for--it
is one thing that you have a kid in high school break in the
neighbor's home, steal the drugs. I am not excusing that, but
it is a little bit different than somebody who comes into town
and it is almost a stereotype of, ``Hey, kid, guess what I've
got here in my briefcase.''
Are these two different things?
Ms. Leonhart. Well, we are traditionally involved in
cocaine and heroin and methamphetamine trafficking
organizations and what we have found is that some of the
organizations that are behind the supply of pharmaceutical
drugs not only to teens, but adults, as well, are organized
crime groups, are in it to make money, and we attack those
organizations the same way we attack those trafficking groups.
So you are correct. The problem is the teen user, the young
drug user, the first-time abuser, but there is also organized
crime and organizations that are peddling this poison. They
make money off of it, and they often will peddle pills
alongside peddling cocaine or marijuana.
Chairman Leahy. They have got to be stopped. And they have
to be stopped.
Ms. Leonhart. That's correct.
Chairman Leahy. I am not leaving because of your response,
which I happen to agree with, but there is a roll call vote on
and we are playing tag-team here.
Senator Whitehouse [presiding]. I very much appreciate the
Chairman coming back to allow this so that the hearing can go
on uninterrupted. When you do two votes side-by-side, you have
to do rather an elaborate back-and-forth hallway race in order
to keep that going, and I appreciate very much that Chairman
Leahy was willing to do that. And I am delighted that Senator
Kohl has joined us, as well as Senator Franken.
Since I am likely to be here until the end, why do I not
defer to--who is in order? Senator Franken?
Senator Franken. Yes.
Senator Whitehouse. You have 5 minutes, sir.
Senator Franken. Thank you. Judge Saris, welcome. We were
talking--I noticed you were sitting back there when we had the
nominees for the Federal judgeships, and we were talking about
sentencing guidelines. And you have spoken about them and how
they are valuable tools, but that they are not infallible.
Can you tell me your basic approach to sentencing
guidelines, after 24 years on the bench, and both how valuable
they are and when they are not infallible? Speak to that.
Judge Saris. Yes. Well, I was on the Senate--a staff member
on the Judiciary Committee when the guidelines first started
getting considered, and, at the time, the big policy was why
should a bank robber in Texas get a different sentence from a
bank robber in California; why should it matter what judge that
you get.
And so the underpinning policy of the guidelines is still
very important today, which is to avoid unwarranted disparities
between similarly situated defendants.
So essentially, that pervasive theme is still very
important today. However, as many people know, the Supreme
Court has issued, I think, as many as five opinions recently
talking about the guidelines and the importance of the fact
that you also need to consider all of the statutory factors
under 3553(a).
So you start with the guidelines as your benchmark, as your
anchor, if you will. And then sometimes, though, the individual
characteristics of a defendant may be worth considering, aren't
properly considered in just doing a mathematical calculation,
and you are permitted to consider those factors in calculating
a sentence.
Senator Franken. So those factors were the ones that one of
the nominees referred to that that is the law.
Judge Saris. Yes. The 3553(a) factors, yes.
Senator Franken. I got it, I got it, I think.
Ms. Leonhart, a lot of people from Minnesota are proud of
you and your nomination. And your first posting was in
Minneapolis and you never had to deal with me, right?
Ms. Leonhart. No.
Senator Franken. I just wanted to make that clear. Can you
tell us what you learned on the job in Minneapolis?
Ms. Leonhart. Thank you for that question, Senator. I want
to, first, thank you for the very kind introduction. That was
actually unexpected this morning. So thank you very much.
My first 5.5 years on the job were in Minnesota. I had a
choice. I was being assigned to Miami, but I graduated No. 1 in
my agent class and you get to pick where you want to go, and it
was my only chance to go back home. So I picked Minneapolis
and, for that 5.5 years, felt I made a difference and I cleaned
up my neighborhood and I cleaned up the community.
I learned the basics of the job. I learned that it's all
about working with your State and local counterparts. And I
learned from working the small cases up to the big cases that
at the end of the day, it is about identifying those most
responsible, those organizations that are peddling the poison
on our streets and putting them in jail.
My partners, we go back 30 years and they were five
Minneapolis police sergeants that really taught me the streets.
Senator Franken. Ms. Hylton, several human rights groups
have expressed concern with your nomination on the grounds that
you may face a conflict of interest in your new position. You
set up a consulting company while you were the Federal
detention trustee and the head of the office that awards
contracts to private correctional facilities.
Once you left your position, your company received a
$112,000 contract from one of the Nation's largest for--profit
prison companies.
These groups say that you may face a conflict of interest
in your new position in matters that affect your consulting
company or the company who received the contract from the GEO
Group.
Now, I understand you worked with the ethics officials both
before and after this work to make sure you acted
appropriately, but I think it is important to get this out in
the open so that you have an opportunity to address it.
So could you please speak to these allegations?
Ms. Hylton. Yes. Thank you, Senator Franken, for that
question. I welcome that opportunity. I'd like to assure the
entire members of the Committee that I did follow all ethics
requirements and regulations and worked closely with the ethics
office both before retirement and subsequently after.
I incorporated the consulting business about a month before
I retired just simply so I could begin the paperwork and begin
to set up the office; so that when I did retire February 28, I
could--the company would no longer be dormant and it could
stand up and operate March 1, and I followed within those
guidance that were provided by the ethics office.
While serving in the capacity of the Federal detention
trustee, the contract awards actually happen at the assistant
trustee level for procurement, and so, therefore, I had no
direct involvement with contract awards. I had recused myself
early on in even any conversations about private industry.
My focus was in the best interest of the government always,
to ensure that hundreds of State and local intergovernmental
agreements would be in place, along with the Federal detention
centers, along with private prisons.
Senator Franken. Well, thank you. Thank you, Mr. Chairman.
Senator Whitehouse. Senator Kohl?
Senator Kohl. Thank you very much. I would like to talk
with you, Ms. Leonhart. I would like to thank you for appearing
before the Committee today and I would like to commend you for
the success of the National Drug Take--Back Day that allowed
people to safely dispose of their unwanted prescription drugs.
In my home State of Wisconsin, 84 law enforcement agencies
collected nearly 4,500 pounds of prescription drugs. We made
great progress, but I believe that more could be done to
facilitate additional take-back programs and prevent excess
medication from being prescribed in the first place, and I am
looking forward to working with you on this issue.
However, Ms. Leonhart, I am disappointed with the DEA's
lack of progress on an issue that was the subject of an Aging
Committee hearing earlier this year. At that hearing, we heard
serious concerns about the effects of changes to DEA's
enforcement policies for controlled substances in long-term
care settings.
The changes have resulted in nursing homes being unable to
administer pain medications to ailing residents in a timely
manner. The time that it takes for a nursing home to comply
with the new DEA enforcement policy can be an eternity to an
elderly patient who is agonizing pain.
At that hearing, the deputy assistant administrator of the
DEA assured me that your agency would act quickly to solve this
problem. And when I met with you in early May, you assured me
that this was a priority and that you, also, would address the
problem swiftly.
In August, I requested joint comments from DEA and HHS on
draft legislation that I prepared and submitted to you that
would facilitate more timely access to pain medication for
ailing nursing home residents, and I received no response.
Now, I do appreciate the DEA's statement of policy issued
last month, which clarifies how nurses at long--term care
facilities can administer some controlled substances. However,
that fails to provide a solution for Schedule II drugs, such as
morphine, which are also necessary in certain situations.
From the vantage point of nursing homes, there are
practical problems with implementing the policy in its current
form. So while it is a step in the right direction, more needs
to be done.
As I explained, it appears that the DEA is putting
paperwork before pain relief. I would like to see much more
progress made on this issue before you are confirmed.
When will DEA provide comments on my draft legislation?
Ms. Leonhart. Thank you, Senator Kohl, first, for your
leadership on that issue, and I know we have worked with you
and the Committee on those very serious issues.
I do want you to know that it is of utmost importance to me
and the DEA that we do have resolution to those issues. We
don't take lightly our responsibility to not only prevent
diversion and do our regulatory business, but we are very
concerned about those patients in need, and that's why, in the
interim, while we're finding long-term solutions, we have come
up with a couple of short-term changes, short-term policy
statements, clarifications that, in many ways, have helped, but
we need to do more.
And I agree with you, it is a serious issue and, if
confirmed, I will tell you that we will continue to work
through the process with the Department of Justice and with HHS
and I am quite confident that we will be able to get back to
you with some dialogue and with some solutions that will be
favorable to you and the Committee.
It does take time to do that. I can't put a timeframe on
it, but know that we are taking that very, very seriously.
Senator Kohl. Well, I said in my statement that I would
like to see much more progress made on this issue before you
are confirmed. As I indicated, I did submit some legislation to
you and I have not heard back from you or your department.
Now, I know, in the best of all worlds, you would like to
take care of it and take care of it immediately, but things are
not all that simple. On the other hand, this legislation that I
submitted to you is not all that complicated.
So I would like to repeat that it is an issue that has been
out there now for quite a long time. It is not all that
complicated. How we are going to see to it that patients in
long-term care settings get the medicine that they need at the
time that they need it, I think we agree on that principle. And
how to get it to them is not all that complicated, and that is
what my legislation addresses.
So in the most gentle but clear way, I would like you to
know that I intend to insist that we see some progress on this
issue as a condition of your confirmation. And I know we can do
it. I mean, I am not trying to put some impossible roadblocks,
because I think we have discussed this now, and your department
and my office are aware of what we can do and should do and
need to do, and it can be done in a timely way.
So I am here to request of you that we work a little harder
together to try and get some progress. Is that reasonable?
Ms. Leonhart. Thank you, Senator. I will bring that back to
the Department of Justice and let them know your concern, and
I'm hoping that we are able to get back to you.
Senator Kohl. I do appreciate that very much. Thank you.
Senator Whitehouse. Let me chime in and thank Senator Kohl
for his leadership on this issue. Let me first say, Ms.
Leonhart, that I am very supportive of your candidacy. I am
very proud of the way you have served our country in this
organization.
As you know, we have a common friend who is a DEA agent,
who I worked with very closely when I was U.S. attorney,
somebody who I am extremely proud of, who was willing to put
herself into harm's way in very significant ways in very
important circumstances, and she speaks very highly of you and
your record speaks very highly of you.
I do not think I should use her name, because she is
undercover frequently, but we understand what we are talking
about here.
So I am extremely favorably disposed toward your
nomination, but there are these institutional problems that
need to be addressed. And I could not echo Senator Kohl more
clearly than to say that the purpose of medicine is to take
care of the sick and when that purpose is not being met because
the safety regime to keep the medicine from being abused is
interfering with it, then a secondary purpose is interfering
with a primary purpose.
We cannot have elderly people lying alone, racked with
pain, when medicine to cure that and to solve that is at hand,
because of bureaucracy.
So I will back Senator Kohl in whatever he chooses to do to
get a resolution to that point. We are backwards on that issue.
I am a former U.S. attorney. I am a former attorney general. I
have prosecuted drug dealers, I have prosecuted diversion
cases, I get that. It is a priority. But it cannot be a
priority that bureaucratically interferes with the ability of
an elderly, lonely patient in grave, grave pain to have access
to the relief that she may need.
So I emphasize there, and I would have another concern that
we are working our way through, but I would like to see more
progress on, and that is in the area of e-prescribing.
You and I have talked about this before, but I very deeply
believe that the only way that America avoids a true
catastrophe in health care, which is coming at us, because the
costs are out of control, is to make a delivery system that
improves the quality of care and lowers the cost of care in
ways that makes the system more accessible to Americans, that
makes it more intelligent, that eliminates waste, that provides
for better prevention, and avoids medical errors.
All of that will stand on a better health information
technology infrastructure. That is the sort of gateway into
what is a vital primary national mission and, very often, the
gateway to health information technology is electronic
prescribing.
And it makes absolutely no sense for a doctor to engage in
electronic prescribing unless they can go to an electronic
prescribing system. And for a long time, DEA was insisting that
they go to an electronic prescribing system; for any scheduled
pharmaceuticals, they had to stay with the paper system, which,
from a prosecutor's point of view, I thought was nonsense,
because there is so much investigative advantage to having the
electronic data to cull through, to look for anomalies, to see
where investigative resources should be dedicated, but that was
your position.
Senator Coburn, who agrees with me on very little, and I
had a very tough hearing with representatives of your
administration more than 2 years ago on this subject, and we
are still watching this drag on and on and on.
It is a matter of the president's priority to get this
built out. He has put $20 billion behind it. It is the
Department of Health and Human Services' priority to get this
built out. And why, for the life of me, DEA cannot get out of
the way when it has, to my opinion, no legitimate stake in
interfering with this, because from my law enforcement
perspective, we advance the cause by moving to e-prescribing
for schedule narcotics. We do not hold it back.
Clearly, there are some issues that need to be resolved,
but on balance, I think it is a huge plus, step forward from a
pure drug diversion and investigation point of view.
So I know I have spoken with some enthusiasm and passion
about these subjects, but I feel very strongly about them. And
as strongly as I feel about your capabilities, we simply have
to get a message into your organization that status quo on
these issues and the progress that we have seen on them just is
not good enough.
Ms. Leonhart. Thank you for your leadership, Senator, on e-
prescribing. And I would like to note that I did sign, in
March, e-prescribing interim rule. It did go into effect in
June, and we have done a lot of outreach and are continuing to
talk to industry about it. We have been promoting it.
We share your concerns and we think that that interim rule
was our way of moving forward with what we believe, for all the
same reasons you have mentioned, will help. And I will do, if
confirmed----
Senator Whitehouse. And admittedly, it will. It was a step
in the right direction.
Ms. Leonhart. It is a step and, if confirmed, I tell you, I
will continue to prioritize e-prescribing and make sure that we
continue to do what we can do at DEA to move that along.
Senator Whitehouse. We believe that--at least I believe
that the urgency of getting the United States of America onto a
robust and secure health information infrastructure so that we
can provide Americans with the health care system of the future
is a primary national goal and of real urgency.
And we are very eager to work with you to work through any
problems, but I appreciate very much your sentiment that you
will make sure that your organization, in turn, works with a
keen awareness not just for its own concerns in this process,
but for the larger concerns of the country, and I appreciate
that.
Judge Saris, I just want to very briefly let you know that
both a former boss of mine when I was U.S. attorney, Jamie
Gorelick, and the chief judge of my district--Ms. Gorelick is a
former boss, so she does not have much sway with me any longer.
But Judge Lisi is our chief judge on our United States District
Court and we came through the Committee together and we were
both appointees or recommended by Claiborne Pell and appointed
by President Clinton, and they speak very, very highly of you
and of the work that you have done.
And I just wanted to have it be a matter of record that the
former deputy attorney general of the United States and a chief
United States district judge, who has the occasion to work with
you very closely from a neighboring state, both feel that the
quality of your work, the quality of your scholarship, the
quality of your leadership all merit that kind of commendation.
So I am delighted that you are here and look forward, I
hope, to a speedy confirmation for you.
Judge Saris. Thank you.
Senator Whitehouse. And wish you well in your job of
keeping the sentencing guidelines current and appropriate.
And, finally, Ms. Hylton, I look forward to working with
you. As you may know, we have a detention facility in Rhode
Island that has experienced some setbacks. It is a matter of
great importance to the Rhode Island delegation that that be
all set right and that we work with you to make sure that to
the extent that the facility is properly complying with all of
the various laws and administrative requirements of the
Marshals Service, that it continues to be seen by you as a
valuable resource.
I want to also take a moment to recognize Marshal
O'Donnell, who I worked with for many, many years as a state
police officer. I knew him first when he was an undercover
officer and I was prosecuting cases that he was the primary
agent and witness in. He went on to become the No. 2 in the
Rhode Island State Police and run it as the top administrator.
So he combines both great courage and initiative in the
field, great experience in putting cases together for
successful prosecution, and considerable administrative skills
in law enforcement, and I am delighted that you will be working
with him.
So thank you very much for being here. We wish you well.
Ms. Hylton. Thank you, Senator. I look forward to working
with you and the district of Rhode Island and the office of the
Federal detention trustee on that detention facility in your
area. As you know, it's critical for that district to have
housing within a reasonable distance from the court. So I look
forward to working with you.
Senator Whitehouse. All right. At this point, Senator
Sessions is not present, but I do believe that he wishes to
have a chance to ask questions of the witnesses. So we will not
adjourn the hearing at this point. We will recess the hearing
until 3 p.m. so that he has the chance at 3 to return and re-
engage with you, and I think that is an important courtesy,
since Senator Sessions is extremely busy, and I am very pleased
that he has the interest in this panel to come back and ask
these questions.
So we are eager and delighted to have the chance to do
that. I hope that it does not disturb your schedules too much,
but I think it is important.
So without further ado, the hearing will recess until 3
p.m.
[Recess.]
Senator Sessions. [presiding] We will return to session. I
used to have a show called ``In Session with Jeff Sessions.''
It did not break any rating record numbers, you can be sure of
that.
It is great to have each of you. We thank you for your
willingness to serve. I appreciate so very much Chairman Leahy
allowing me to have an opportunity to ask some questions. We
have just had so many conflicts here at this late part of the
year with so many things happening.
Let me get onto the right page here. Is it Leonhart?
Ms. Leonhart. Leonhart.
Senator Sessions. Leonhart. Very good. I am a big fan of
the DEA, having spent much of my 2.5 years as an Assistant
United States Attorney prosecuting their cases, and then,
later, being United States Attorney for 12 years, and we worked
with some of the big international smuggling cases to other
kinds of cases.
And I do believe that law enforcement does make a
difference in the safety of our streets and the health of our
children, and would first ask you, do you have a view and have
you expressed one with regard to legalization of marijuana and
some of these latest ideas of that nature that have been
floating up in states and cities, and what is that position?
Ms. Leonhart. Thank you, Senator. A 30-year veteran DEA
agent, I have seen what marijuana use has done to young people.
I've seen the addiction. I've seen the family breakups. I've
seen the bad.
I am extremely concerned about legalization of any drugs.
We already have problems with the other--with prescription
drugs which are legal. And it is of concern and it's of concern
to DEA and we enforce Federal drug laws. So if confirmed as
administrator of the DEA, we would continue to enforce the
laws, the Federal drug laws.
Senator Sessions. In previous years, DEA administrators
have spoken out against the legalization measures. Have you
done so and do you expect to do so if these referenda continue
to be afoot?
Ms. Leonhart. DEA and I have spoken out. DEA will enforce
Federal drug laws. Right now, in all 50 states, marijuana is
illegal. In all 50 states, we have DEA agents that bring cases
and we focus on resources on major traffickers and the
organizations who are supplying drugs, no matter which drugs,
marijuana, meth, cocaine, heroin.
Senator Sessions. Well, I know you have the responsibility
to enforce the law, but chiefs of police, state directors of
public safety, and heads of the Drug Enforcement Administration
many times, in my experience, have understood the danger of
these legalization efforts. And it sounds good to people. It
sounds like, well, we can just end the problem of drugs if we
just make it legal, which any country that has tried that,
Alaska and other places have tried it, it does not work and it
is a very dangerous failed policy, and we need mature,
effective public officials who are willing to say that.
Ms. Leonhart. You are absolutely----
Senator Sessions. Are you willing to say that?
Ms. Leonhart. Yes. I've said that, Senator. You're
absolutely correct. The social costs from drug abuse in all of
the--especially from marijuana, all of the recent reasons that
legalizers say it should be legalized, it will help the Mexican
cartel situation, it won't. It will allow states to balance
budgets, it won't.
Nobody is looking at the social costs to society when we
are talking about legalizing drugs. And what worries me the
most is we have seen, after years of stabilization of drug use,
especially among teens, we have seen a spike, and I believe
that that spike is directly related to all the conversation we
are now hearing about the legalization of drugs.
Senator Sessions. I would have no doubt of that. In fact,
having been involved as United States Attorney in the early
1980s and the spontaneous grassroots effort, the Reagan
Administration effort to crack down on drugs, drug use did go
down.
As a matter of fact, a University of Michigan study showed
that half the high school seniors in 1980 admitted to having
used an illegal drug and the numbers went well below 25 a
decade later.
So the effort that we undertook as a Nation to counsel
young people, send clear messages about what is acceptable and
what is not had a positive influence on the health and welfare
of our country. The military's drug testing, for example, one
of my United States attorney friends in Hawaii had a large
portion of his office doing murders and assaults and thefts and
burglaries from the military bases after they tested for drugs
and eliminated drugs in the military, he said those all just
plummeted; not just drug cases, but assaults and thefts and
burglaries went down.
So I hope that this administration will send a very clear
message on this. I know that a lot of people, like you said,
have the idea that drug cartels will be all nice if we just
made it legal, and a lot of them think that.
So I am glad to hear you say that and I encourage you to
speak out on that. I may ask you some written questions about
the Mexican situation.
For my two cents' worth, the best way we can help the
Mexican leadership, who is standing courageously against drug
cartels, because their lives are on the line--as we know, those
who stand up to them put their lives at risk--is to demolish
the gangs in our country who are selling drugs, collecting the
money, and taking it back to fund these entities of power and
strength.
Have you given any thought to enhancing our ability to
focus on the Mexican drug cartels that are the primary
distribution network for cocaine in America?
Ms. Leonhart. Yes, Senator. A lot of the focus for DEA
these days is on Mexico. And now that we have these courageous
Mexican partners with President Calderone at the head, we have
had great successes in Mexico in breaking the power and the
impunity of these cartels.
But we can do more and, if confirmed, what we will do is
continue our partnership in Mexico and expand, because now
we're collecting so much more intelligence that we're sharing
with them and we've got that intelligence to share with our
state and local partners here so that we can effectively go
after those domestic cells that are working for those cartels,
transporting, distributing drugs and collecting the money and
bringing it back south.
Senator Sessions. Well, if you look at it as the tree of
the criminal enterprise in Mexico, the roots are the
distribution networks in the United States that bring in the
money and the wealth that goes up to do it. And as our
responsibility in our country, we need to be after those folks,
and they will be facing substantial prison sentences. But we
need to work on that and, hopefully, DEA will continue to do
that.
Judge Saris, it is good to have you.
Judge Saris. Thank you.
Senator Sessions. I was United States attorney when we did
not have the sentencing guidelines and I was there when they
were passed, and I was there when they were implemented. And
they were implemented with clarity, without equivocation, and
it, I think, was another one of the factors in the decline in
drug use in America.
The murder rate in America is half what it was in the late
1970s, early 1980s, and a lot of good things have happened. And
although we do not want anyone in jail a day longer than it is
smart to have them there, I have no doubt that because we have
a substantial prison population, that has reduced crime in
America.
If you go out and did a survey of 100 people, how many of
them are likely to be an armed robber, not many; or a burglar
or a rapist. And the extent to which more of those are in jail,
you have less armed robberies, murders and rapes. That is just
a fact.
A lot of people want to get out of it, they do not want to
talk about that. They want to say that there are too many
people in prison. So we have got to get them out of prison. So
we need to be smart about it is what I would say to you.
Yours is an August position. The sentencing guidelines have
been damaged inexplicably for me by the Supreme Court
decisions. But that is the Supreme Court and we are stuck with
that.
So I wanted to ask a number of things. I would like to
inquire about how you personally have dealt with the guidelines
in your court and the judges with which you served in
Massachusetts, because according to the Sentencing Commission,
of which you would be the head, in 2009, 56.8 percent, 57
percent, nationwide, sentences were rendered within the
guideline range, but in Massachusetts, only 35 percent of the
cases resulted in sentences within the guideline range.
Nationwide, only 11.8 percent of the cases resulted in
below range sentences and cited Booker, the Booker case to
justify that decision. In Massachusetts, that same category
accounted for 33 percent of all cases.
Why do you think Massachusetts is that far out of the
mainstream of the United States? Because you will be sentencing
commissioner for the United States, not just for Massachusetts.
Judge Saris. Thank you, Senator. It's a great question, and
let me back up by saying I was here as a young staff person
putting together the sentencing guidelines back in the early
1980s. So I am firmly committed to the principle of eliminating
unwarranted disparities.
One of the big differences in Massachusetts is our high
proportion of crack cases. And I want to thank the Congress for
passing the Fair Sentencing Act. I think that makes a huge
difference. I know approximately 66 percent of the drug cases
that I personally sat on involved crack, in contrast to the
Nation's about 19 percent, and it's been a high priority in our
U.S. attorney's office to go into, let's say, the housing
projects----
Senator Sessions. Where do you get that number of 19
percent nationwide?
Judge Saris. Is crack? I asked somebody to calculate it and
that's what someone told me.
Senator Sessions. I do not think it is that low in the
districts where I practiced and what is happening in Alabama
today. I think it is higher.
Judge Saris. I asked somebody to look it up and that is
what they came up with.
Senator Sessions. Well, we will check it. Maybe you are
right, I do not know.
Judge Saris. But in any event, I do know my personal
caseload has had a high number of crack cases, and I believe
that is true across the district of Massachusetts.
Senator Sessions. Well, it was in Alabama when I was there,
that is for sure. That is true.
Judge Saris. So I believe that the concerns about the
crack/powder ratio did actually cause a lot of disparity across
the United States and I'm hoping now that you've fixed it
through this new statute, which I fully support and I think is
a wonderful compromise, I think a lot of that will go away.
Senator Sessions. To what extent do you feel would be the
responsibility of the Chairman to advocate that judges follow
the guidelines, that this is important, that they not lose
discipline, that every judge start more and more, year after
year, less and less find any binding authority in the
guidelines?
Judge Saris. I think right now with the guidelines, it's a
very important transitional moment for exactly the reason you
just pinpointed, which is the chair of the Sentencing
Commission--I think Judge Sessions has done it. I think Judge
Hinajosa has done it--needs to go out, needs to make sure that
the guidelines are persuasive and evidence-based, and they need
to go out to the judges and really advocate and ensure that
they understand how important it is and what an important
Congressional principle it is to avoid unwarranted disparity,
and it shouldn't just be within a district, whether is your
luck of the judicial draw.
It should be the differences between Texas and
Massachusetts or between California and Georgia, let's say. It
should be nationwide and it should be within a district.
Senator Sessions. Well, that certainly was the idea, and I
think it was followed pretty closely for quite a number of
years.
With regard to your personal sentencing, which I think
would reflect your approach to the guidelines, do you think
your sentences would be the range of Massachusetts' sentences
as far as departures are concerned or would be more in line
with the national numbers?
Judge Saris. Well, across the 5 years, averaging, I believe
they're consistent nationally with the number within
guidelines. It's gone up and down depending on the year,
because of--largely because of the crack cases. Sometimes I was
below Massachusetts. Once I think I was above Massachusetts.
But primarily, I--we have 47 percent, I think, of our
caseload is drug-driven, and I think that in those situations,
as I said, on crack, most of us in the last couple of years
departed down.
Senator Sessions. Well, I do not think you should have. I
think there are too many departures downward, and I do not
think the Booker case really authorized or suggested that
judges should break free and just impose their own personal
views.
I know some judges have done that. So it worries me a
little bit that we would have somebody named to be the Chairman
of the commission who has one of the higher rates of
departures, frankly, in that way. I may follow it up and give
you a chance to respond to that some.
Would you be willing to provide the Committee a list of
cases in which you departed downward from the guidelines, with
some sort of brief description of those cases?
Judge Saris. Sure.
Senator Sessions. I appreciate that. In a 2002 speech to
the Massachusetts State Sentencing Committee, which is the
important thing, the sentencing guidelines, the Federal
experience, you said, ``I believe that a guideline system is
better than one based on mandatory minimums and one that is
purely discretion-based. However, the states should be careful
to avoid the rigidity of the Federal system and preserve the
discretion of the trial court judge to render a principled
sentencing decision. When all is said and done, our system has
not eliminated disparity in sentencing.''
Well, it may well be your view, but I would hope it would
not be the view of the Chairman of the United States Sentencing
Commission, who should believe and strive to achieve
consistency in sentencing to eliminate disparity.
And the idea that a guideline system, you are talking in
Massachusetts, is better than one based on mandatory minimums,
is it not true that what you meant in that statement was that
you would prefer a system that just had guidelines and had no
mandatory requirement on a judge as opposed to one that has
mandatory minimums or a mandatory sentence for certain crimes?
Judge Saris. Yes. I testified before the legislature to
urge them to adopt a guideline system.
Senator Sessions. Guidelines as opposed to mandatory. We
have a mixed guideline/mandatory system. And do you oppose
that? Would you like to see Federal sentencing minimum
mandatories eliminated?
Judge Saris. I believe that the Sentencing Commission will
be studying mandatory minimums as part of its mandate. I am
not--I remember sitting over there as a staff member. I
certainly understand why Congress wants mandatory minimums,
because there are certain crimes they feel carry a certain
sentence.
Senator Sessions. All right.
Judge Saris. I believe the guidelines are the best
approach. Once you've made sure that they are followed by the
judges, that they're persuasive, that they're evidence-based, I
think that gives judges the flexibility on those few
occasions----
Senator Sessions. Well, but Massachusetts, at a much higher
degree than anybody else, thought they knew better than the
guidelines. They set these guidelines, but I know better; I do
not have to follow them, because the guidelines are in error,
right?
Judge Saris. I know that's not my practice. As I said, that
is, as far as I'm concerned----
Senator Sessions. Well, there is a little bit of that in
all of this.
Judge Saris. Well, no. I've actually followed the
guidelines. I would say the one big exception was the crack
guidelines and I think that now that that is fixed, I think
that you're not going to see that anymore or certainly you
won't with me.
Senator Sessions. Because you did not like the crack
sentences. Judges did not like them, so they did not want to
follow them.
Judge Saris. Now I like them. No. I think what happened is
that the Supreme Court in two cases actually told us that we
should--and the Sentencing Commission itself said. And so I
think across the country, what was happening--as I said, I
think it's the single greatest source of unwarranted disparity,
is that once the Supreme Court spoke and said you should
consider lower sentences, I think a lot of people, including
myself, did.
Senator Sessions. In a 2007 speech to the Federal Bar
Association, you stated, ``Sentencing has become harder and
more challenging now that judges can finally think again beyond
the strict sentencing guidelines.'' Do you think there is a
greater potential for disparate or erroneous sentences now that
the sentencing has become harder and more challenging?
Judge Saris. Absolutely, and that's why I think it's
important. The Supreme Court has said, as you know, that you
start with the guidelines. They're your benchmark, they're your
anchor, but you must consider the individual characteristics of
the offender and other of the factors in 3553(a). And so I
think that's why the commission is all the more important right
now; not only to make sure that the guidelines are persuasive,
but to go out there and persuade judges to follow those
guidelines.
Senator Sessions. Well, I think the leadership from the
commission should encourage and you should be confident that
your guidelines consider the proper factors. As a matter of
fact, they do. There are very few factors that I am aware of
that are not included. If you carry a gun, if you had a
previous offense, if you threaten the witnesses, how much drugs
that you have, whether or not you took advantage of a child, or
factors that all allow increase, and there are factors, such as
cooperation and other factors that allow some reduction.
We added a little more in this crack bill that I worked on
for many years, essentially the same bill I offered in 2000, it
finally got passed this year. But those numbers are--so I just
think that you really need to have this in your head; that you
are trying to craft guidelines that properly consider the
circumstances of the case.
Otherwise, you are back there just like we used to see when
I first started prosecuting, the preacher there talking, the
momma crying, the brother talking, the boss pleading, and the
judge, with very little guidance, letting his conscience or
empathy of the moment decide what a sentence should be, and
they were very aberrational. Some judges were very aberrational
themselves and some--and on the same floor, you get
dramatically different sentences for the same offense.
Do you agree that the leadership from your side needs to be
clear that you believe the guidelines have inculcated as much
of the relevant data as realistically achievable and that
normally you would expect people to follow that?
Judge Saris. I absolutely promise to do that and I also
believe that. I was persuaded of it when I was back here 25
years ago, and I still believe it.
Senator Sessions. The commission listed 14 priorities for
implementing the Fair Sentencing Act of 2010, which I
cosponsored; continuing to study the impact of the Booker case;
implementing portions of the health care bill, among others.
On that same day, the commission published its proposed
temporary emergency amendment to implement the Fair Sentencing
Act of 2010--that is our bill--for public comment and that
amendment took effect November 1.
Do you agree that developing appropriate permanent rules to
implement the Fair Sentencing Act should be a high priority for
the commission?
Judge Saris. Absolutely. I think it should be one of the
first things we do is to make sure that everybody is heard from
and that we get statistics and that we implement permanent
amendments.
I was not involved, obviously, in the crafting of the
temporary ones, but that's one of my first orders of priority.
Senator Sessions. And would you agree that it would be
important for the commission to allow this Fair Sentencing Act
time to be implemented before it produces any additional policy
recommendations or conclusions about the crack and powder
cocaine issue?
Judge Saris. Well, this may be something I'd have to check
on. I had thought we were required to do a permanent amendment
by May 1. I may be wrong about that, Senator. But I think that
if that's not the case, the way you propose it makes the most
sense of all.
If, in fact, we have to do something by May 1, then I
imagine we go with the data that we've got and then be open to
changing it.
Senator Sessions. The rules of the commission allow the
chair a good bit of power to call meetings, to convene a public
hearing, ``on any matter involving the promulgation of
sentencing guidelines or any other matter affecting the
commission's business.''
If confirmed, what issue do you have, in your mind, that
you might want to have hearings on?
Judge Saris. Thank you. I was hoping to have the
opportunity to do that. I think one of the big problems that
I've been worried about is the high rate of recidivism after
people get out of jail, either on supervised release or after
they have left all together.
Overall, the people on supervised release, about 30 percent
of them end up in revocations. However, 30 percent doesn't
really capture it, because that means all criminals across all
categories.
In contrast, about 60 percent of all people in the highest
criminal history categories are getting revoked; high, high
numbers. In our district in Massachusetts, we've been
experimenting with a drug court program, as well as with
reentry programs and various probation supervision techniques.
What I'd really like to do is bring down that rate of
recidivism. I think it's an important public safety issue and I
believe that we should be much more aggressive in dealing with
treatment, as well as being smarter, if you will, on trying to
stop people from recidivating and then if they do, perhaps
tougher, because at the end of it, this is both a
rehabilitation issue, but, very importantly, a public safety
issue, and I would like to hold hearings on that issue.
Senator Sessions. Yes. But you do not need--you have been
involved in this at least 25 years, apparently. I think I am
probably a little longer, and tried to follow it, read writings
and keep up with it over the years. It has just been an
interest of mine.
Ninety-nine percent, I was stunned to see recently, I think
it is 99 percent of the criminal cases end in pleas.
Judge Saris. Yes.
Senator Sessions. Is that about right, Judge Saris?
Judge Saris. I had sort of thought it was 92 or 93, but
certainly over 90.
Senator Sessions. The numbers were higher than that that I
heard. But at any rate, if it is 90 percent, the point is
overwhelmingly, the question is how much time or whether the
person will serve time; if so, how much.
So I do think it is worth spending a considerable amount of
time in the system on trying to identify what kind of sentence
ought to be imposed, and the system should be consistent, from
a moral point of view, but it also should reflect reality.
And I would just say to you that recidivism has been the
big deal for a long time. And has there been any program that
has dramatically reduced the recidivism rate, to your
knowledge?
Judge Saris. To my knowledge, at least preliminary
statistics from our drug court is that we've started to reduce
the recidivism, but I can't say that that's going to be a long-
term fix. I believe that we should be following offenders
intensively. I believe we should be making sure they have job
opportunities, and I think that we should be a hammer when they
fail to comply.
Senator Sessions. I agree with that and I would just say
that that is true. But I want to make the point that ever since
I have been in law enforcement, starting out in 1975, people
have had all kinds of plans to fix the recidivist rate. And in
the early 1980s, right after Miami started the first drug
court, we invited the judge to Mobile, Alabama. I was at the
meeting. And we started one there. And he was claiming this
dramatic rate.
Well, it is not that dramatic. Maybe it looked like it for
a while. I think it was better, but we have just got to
understand, mature people, that small incremental gains are
significant; not that you are going to reduce by half or 60
percent recidivist rates, I do not think it has ever been
achieved anywhere, and every idea that has ever been thought
up.
You have education in prisons, you have drug prisons, you
can get them in physical condition in prison, you have them cut
grass in prison, all these things have not been as effective as
we wish they were or we would be glad to do them anywhere
anytime, if we could prove it worked.
So I am glad you are looking at that, and will not harass
you with any more questions.
Judge Saris. Thank you, sir.
Senator Sessions. You answered well, I give you credit.
Now, Ms. Hylton, you are going to run the U.S. Marshals
Service.
Ms. Hylton. Yes, sir.
Senator Sessions. Back in the 1800s, they had this guy,
kind of like David Koresh, I think, up in rural Alabama and he
killed a bunch of people and they called the marshal. He had to
get on a steamboat and a train to come up and catch the man.
But that was the only Federal presence that existed. There was
not any DEA, sorry, at the time, just the U.S. Marshals
Service, and it has a great heritage and great history, and you
have had a pretty long, professional career in service.
But it is a very important job you are undertaking. Do you
have any thoughts about what you would like to accomplish?
Ms. Hylton. Yes, Senator, thank you. And thank you for the
acknowledgment to the women and men in the Marshals Service
that pride themselves in the long tradition of the agency and
their accomplishments.
I've been away from the Marshals Service now for about 7
years and like many law enforcement nationwide, I'm sure they
face significant challenges with the growing demands that are
on them.
I know that we share that our National security and the
protection of our judicial process is at the center of our
democracy, and, therefore, I would look forward, if confirmed,
to take on those challenges so that we can ensure the
protection of the integrity of the judicial process; that we
address the issues on our border districts; that we keep our
streets safe by apprehending dangerous fugitives; and, that we
protect our children through the mandates in the Adam Walsh
Act.
So I look to, in order to achieve that, I look to ensure
that our resources and the support of this Committee and
Congress and through their appropriations are used wisely and
effectively. I look to ensure that there's a sound and
effective operating infrastructure for the employees of the
Marshals Service to meet those mission requirements; and, I
look to be innovative and creative in leveraging information
technology and technical solutions in order to enhance our
protective services and investigations.
And I think, also, that it's important to always kind of
look to the future in law enforcement as you know you need to
stand ready and be prepared for the future, and, in law
enforcement, the demands shift often on us.
Senator Sessions. You will be the leader of this important
service, and it is my observation that the FBI, the DEA,
Customs, all the Federal agencies, including the Marshals
Service, create organizational structure. You give people
special duties that are critically important maybe at one time,
but a decade later, they may not be so important.
And make no mistake, you are going to be asked to do more
for less, because this country does not have the money. We do
not have the money to continue to spend like we have, and every
agency--I just proposed to my Republican colleagues that we all
reduce our expenditures 15 percent. I will assure you, the U.S.
Senate will not fail if we reduced spending 15 percent and
neither would the United States Marshals Service, if it had
good leadership.
But hopefully you will not be asked to take that kind of
reduction. But I guess I am saying, are you prepared to
rigorously examine all the positions that you have, the special
duties that you have, the clerical positions that you have, and
make sure that more personnel are focused on the actual
responsibilities of the Marshals Service?
For example, the Department of Defense did a good job of
moving more people to be military deployable and less doing
support positions, because the whole purpose of the military
was to deploy and execute the policy of the Congress and the
President.
Are you willing to do that, even if it shakes up and causes
some people to complain that you are being mean to them?
Ms. Hylton. Senator, I actually pride myself on my fiscal
responsibility in my career. Certainly, I embraced it as
Federal detention trustee. I believe that we can always look to
ensure that we are meeting the demands that are in front of us
by reassessing and realigning as necessary.
Senator Sessions. I believe both sides of the aisle here
would back you up on that, if you have done it in the right way
and you have got good plans that make the service more
productive.
Gosh, you have got some talent, you have got good talent in
the Marshals Service, and sometimes their duties are not as
broad as they need to be to fully utilize their talents or
sometimes within the agency itself, the service itself, the job
descriptions contain the ability to be productive.
So I hope you will look at that as you seek to be more
productive for the service.
Ms. Hylton. Yes, sir.
Senator Sessions. Good luck.
Ms. Hylton. Thank you very much.
Senator Sessions. It is an important job.
Thank all of you. I have enjoyed this exchange. Each one of
you are being asked to head very important agencies of the
United States, very important agencies, and we will be
reviewing your record, background.
Ms. Hylton, I did want to say that I do think there is a
role for private prisons in the American system. I do not think
you would have a blanket refusal to consider that and if
anybody is critical of you for that, I do not think that would
be justified.
If you improperly made decisions about who to hire and how
to manage a contract--but the idea that somehow this should
never be contracted out, in ceratin circumstances, I think it
would be wrong.
What is your view about private prisons?
Ms. Hylton. Thank you, Senator, for that question, because
I think you know we took great pride at the office of the
Federal detention trustee to meet the growing population, and
always the first approach is--the best approach is always a
balanced approach.
And the first step in the process is Federal detention beds
availability. That's the first assessment. That is done with
keeping in mind the best interest of the government, but also
the best interest of the detainee.
We want to ensure that they are within a reasonable
distance of their court proceedings, that they are supported by
counsel, and that they have access to family.
So if we cannot meet the Federal detention space, there are
no beds available in the Federal detention centers, we then
turn to our partners and state and local facilities. Because we
have a need within the department, again, location close to the
courthouses, we partner often with the state and local
governments and actually enjoy 1,800 intergovernmental
agreements nationwide.
When sometimes there are pressing fiscal problems for the
state, they are not able to share those beds. They have their
own needs. And at those points is when, we've exhausted all
alternatives, we then turn and have to rely on private
industry.
Done rarely, but it is done, and it's allowed us to provide
housing for detainees within a reasonable distance to the
court, and I think that's a good thing.
Senator Sessions. I do, too. You stated that well.
Thank you so much.
Ms. Hylton. Thank you, Senator.
Senator Sessions. Let me say that the record will remain
open for additional questions and comments for one week. Thank
you so much.
[Whereupon, at 3:44 p.m., the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
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