[Senate Hearing 112-72, Part 7] [From the U.S. Government Publishing Office] S. Hrg. 112-72, pt7 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS SECOND SESSION ---------- MARCH 14, MARCH 28, AND MAY 9, 2012 ---------- Serial No. J-112-4 ---------- PART 7 ---------- Printed for the use of the Committee on the Judiciary CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS S. Hrg. 112-72, Pt. 7 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS SECOND SESSION __________ MARCH 14, MARCH 28, AND MAY 9, 2012 __________ Serial No. J-112-4 __________ PART 7 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 76-131 WASHINGTON : 2012 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected]. COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah CHUCK SCHUMER, New York JON KYL, Arizona DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma RICHARD BLUMENTHAL, Connecticut Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director C O N T E N T S ---------- MARCH 14, 2012 STATEMENTS OF COMMITTEE MEMBERS Page Klobuchar, Hon. Amy, A U.S. Senator from the State of Minnesota.. 1 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, prepared statement............................................. 299 PRESENTERS Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee presenting John Thomas Fowlkes, Jr., Nominee to be U.S. District Judge for the Western District of Tennessee........... 10 Collins, Hon. Susan M., a U.S. Senator from the State of Maine presenting William J. Kayatta, Jr., Nominee to be U.S. Circuit Judge.......................................................... 3 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, presenting Stephanie Marie Rose, Nominee to be U.S. District Judge for the Southern District of Iowa........................ 8 Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, presenting Stephanie Marie Rose, Nominee to be U.S. District Judge for the Southern District of Iowa........................ 7 Menendez, Hon. Robert, a U.S. Senator from the State of New Jersey presenting Kevin McNulty, Nominee to be U.S. District Judge for the District of New Jersey........................... 5 Menendez, Hon. Robert, a U.S. Senator from the State of New Jersey presenting Michael S. Shipp, Nominee to be U.S. District Judge for the District of New Jersey........................... 6 Snowe, Hon. Olympia, a U.S. Senator from the State of Maine presenting William J. Kayatta, Jr., Nominee to be U.S. Circuit Judge.......................................................... 2 STATEMENT OF THE NOMINEES Fowlkes, John Thomas, Jr., Nominee to be U.S. District Judge for the Western District of Tennessee.............................. 68 biographical information..................................... 69 Kayatta, William J., Jr., Nominee to be U.S. District Judge for the First Circuit.............................................. 11 biographical information..................................... 20 McNulty, Kevin, Nominee to be U.S. District Judge for the District of New Jersey......................................... 125 biographical information..................................... 126 Rose, Stephanie Marie, Nominee to be U.S. Judge for the Southern District of Iowa............................................... 210 biographical information..................................... 215 Shipp, Michael S., Nominee to be U.S. District Judge for the District of New Jersey......................................... 161 biographical information..................................... 162 QUESTIONS AND ANSWERS Responses of John Thomas Fowlkes, Jr. to questions submitted by Senator Grassley............................................... 262 Responses of William J. Kayatta, Jr. to questions submitted by Senator Grassley............................................... 266 Responses of Kevin McNulty to questions submitted by Senator Grassley....................................................... 275 Responses of Stephanie Marie Rose to questions submitted by Senator Grassley............................................... 280 Responses of Michael A. Shipp to questions submitted by Senator Grassley....................................................... 283 SUBMISSIONS FOR THE RECORD American Bar Association (ABA), Allan J. Joseph, Chair, and Benjamin H. Hill, III, Chair, Washington, DC: John T. Fowlkes, Jr, December 19, 2011, letter............... 286 William J. Kayatta, Jr., January 24, 2012, letter............ 287 Kevin McNulty, December 19, 2011, letter..................... 288 Stephanie M. Rose, February 6, 2012, letter.................. 289 Michael A. Shipp, August 10, 2011, letter.................... 291 Collins, Susan M., a U.S. Senator from the State of Maine, prepared statement............................................. 292 Cohen, Hon. Steve, a Representatives in Congress from the State of Tennessee, letter........................................... 295 Criminal Justice Act Panel, Alfred E. Willett, John D. Jacobsen, John Bishop, Michael Lindeman, Stephen A. Swift, Braian D. Johnson, Anne Laverty, Michael K. Lahammer, Chris Clausen, Rick L. Sole, and David Mullin, April 17, 2009, joint letter........ 297 Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, prepared statement...................................................... 309 Hispanic National Bar Association (HNBA), Benny Agosto, Jr., National President, Washington, DC, April 13, 2012, letter..... 315 Lautenberg, Hon. Frank R., a U.S. Senator from the State of New Jersey, prepared statement..................................... 317 ---------- MARCH 28, 2012 STATEMENTS OF COMMITTEE MEMBERS Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut.................................................... 319 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 319 prepared statement........................................... 486 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared statement............................................. 491 PRESENTERS Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut presenting Gozalo P. Curiel, Nominee to be U.S. District Judge for the District of Connecticut................. 322 Lieberman, Hon. Joe, a U.S. Senator from the State of Connecticut presenting Michael P. Shea, Nominee to be U.S. District Judge for the District of Connecticut................................ 320 Lee, Hon. Mike, a U.S. Senator from the State of Utah presenting Robert J. Shelby, Nominee to be U.S. District Judge for the District of Utah............................................... 323 STATEMENT OF THE NOMINEES Curiel, Gonzalo P., Nominee to be U.S. District Judge for the Southern District of California................................ 367 biographical information..................................... 368 Shea, Michael P., Nominee to be U.S. District Judge for the District of Connecticut........................................ 324 biographical information..................................... 325 Shelby, Robert J. Shelby, Nominee to be U.S. District Judge for the District of Utah........................................... 423 biographical information..................................... 424 QUESTIONS AND ANSWERS Responses of Gonzalo P. Curiel to questions submitted by Senators Grassley and Klobuchar......................................... 465 Responses of Michael P. Shea to questions submitted by Senators Grassley and Klobuchar......................................... 471 Responses of Robert J. Shelby to questions submitted by Senators Grassley and Klobuchar......................................... 477 SUBMISSIONS FOR THE RECORD American Bar Association (ABA), Allan J. Joseph, Chair and Benjamin H. Hill, III, Chair, Washington, DC: Gonzalo P. Curiel, November 10, 2011, letter................. 481 Michael P. Shea, February 6, 2012, letter.................... 482 Robert J. Shelby, December 1, 2011, letter................... 484 Connecticut Bar Association, Keith Bradoc Gallant, New Britain, Connecticut, March 23, 2012, letter............................ 485 ---------- MAY 9, 2012 STATEMENTS OF COMMITTEE MEMBERS Lee, Hon. Mike, a U.S. Senator from the State of Utah............ 494 Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island......................................................... 493 PRESENTERS Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland presenting Paul William Grimm, Nominee to be U.S. District Judge for the District of Maryland.................... 497 Inhofe, Hon. Jim, a U.S. Senator from the State of Oklahoma presenting John E. Dowell, Nominee to be U.S. District Judge for the Northern District of Oklahoma.......................... 498 Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland presenting Paul William Grimm, Nominee to be U.S. District Judge for the District of Maryland............................. 495 Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting Mark E. Walker, Nominee to be U.S. District Judge for the Northern District of Florida; and Brian J. Davis, Nominee to be U.S. District Judge for the Middle District of Florida........................................................ 500 Rubio, Hon. Marco, a U.S. Senator from the State of Florida presenting Mark E. Walker, Nominee to be U.S. District Judge for the Northern District of Florida; and Brian J. Davis, Nominee to be U.S. District Judge for the Middle District of Florida........................................................ 502 NOMINEES Bacharach, Robert E., Nominee to be U.S. Circuit Judge for the Tenth Circuit.................................................. 503 Questionnaire................................................ 509 Davis, Brian J., Nominee to be U.S District Judge for the Middle District of Florida............................................ 775 Questionnaire................................................ 776 Dowdell, John E., Nominee to be U.S. District Judge for the Northern District of Oklahoma.................................. 689 Questionnaire................................................ 690 Grimm, Paul William, Nominee to be U.S. District Judge for the District of Maryland........................................... 576 Questionnaire................................................ 577 Walker, Mark E., Nominee to be U.S. District Judge for the Northern District of Florida................................... 729 Questionnaire................................................ 730 QUESTIONS AND ANSWERS Responses of Robert Bacharach to questions submitted by Senators Grassley and Klobuchar......................................... 841 Responses of Brian Davis to questions submitted by Senators Coburn, Grassley and Klobuchar................................. 846 Responses of John Dowdell to questions submitted by Senators Coburn, Grassley and Klobuchar................................. 856 Responses of Paul Grimm to questions submitted by Senators Coburn, Grassley and Klobuchar................................. 862 Responses of Mark Walker to questions submitted by Senators Coburn, Grassley and Klobuchar................................. 871 SUBMISSIONS FOR THE RECORD American Bar Association, Allan J. Joseph, Chair, Washington, DC: Robert E. Bacharach, January 24, 2012, letter................ 876 Brian J. Davis, March 1, 2012, letter........................ 877 John E. Dowdell, March 1, 2012, letter....................... 878 Paul W. Grimm, February 16, 2012, letter..................... 879 Mark E. Walker, February 16, 2012, letter.................... 880 Baca, Lawrence R., Federal Bar Association, San Diego, California, February 9, 2012, letter........................... 881 Bomchill, Fern C., Mayer Brown LLP, Chicago, Illinois, March 7, 2012........................................................... 883 Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland, prepared statement................................... 885 Christensen, Cathy M., President, Oklahoma Bar Association, Oklahoma City, Oklahoma: Robert E. Bacharach, Resolution.............................. 890 John E. Dowdell, Resolution.................................. 892 Academy of Managed Care Pharmacy (AMCP), David L. Clark, President, Murray, Uath, March 21, 2012, letter................ 893 Conger, J. William, Oklahoma City University General Counsel and Distinguished Lectured in Law, Oklahoma City, Oklahoma, February 13, 2012, letter...................................... 898 Harroz, Joseph, Jr., Norman, Oklahoma, March 19, 2012, letter.... 899 Hellman, Lawrence K., Dean Emeritus and Professor of Law, Oklahoma City, Oklahoma, March 21, 2012, letter................ 901 McConnell-Corbyn, Laura, Hartzog Conger Cason & Neville, Oklahoma City, Oklahoma, February 28, 2012, letter...................... 902 Miles-Lagrange, Vicki, Chief Judge, U.S. Courthouse, Western District of Oklahoma, Oklahoma City, Oklahoma, March 7, 2012, letter......................................................... 904 Paul, William G., Crowe & Dunlevy, Oklahoma City, Oklahoma, March 19, 2012, letter............................................... 906 Woods, Harry A., Crowe & Dunlevy, Oklahoma City, Oklahoma, February 6, 2012, letter....................................... 908 ALPHABETICAL LIST OF NOMINEES Bacharach, Robert E., Nominee to be U.S. Circuit Judge for the Tenth Circuit.................................................. 503 Curiel, Gonzalo P., Nominee to be U.S. District Judge for the Southern District of California................................ 367 Davis, Brian J., Nominee to be U.S District Judge for the Middle District of Florida............................................ 775 Dowdell, John E., Nominee to be U.S. District Judge for the Northern District of Oklahoma.................................. 689 Fowlkes, John Thomas, Jr., Nominee to be U.S. District Judge for the Western District of Tennessee.............................. 68 Grimm, Paul William, Nominee to be U.S. District Judge for the District of Maryland........................................... 576 Kayatta, William J., Jr., Nominee to be U.S. District Judge for the First Circuit.............................................. 11 McNulty, Kevin, Nominee to be U.S. District Judge for the District of New Jersey......................................... 125 Rose, Stephanie Marie, Nominee to be U.S. Judge for the Southern District of Iowa............................................... 210 Shea, Michael P., Nominee to be U.S. District Judge for the District of Connecticut........................................ 324 Shelby, Robert J. Shelby, Nominee to be U.S. District Judge for the District of Utah........................................... 423 Shipp, Michael S., Nominee to be U.S. District Judge for the District of New Jersey......................................... 161 Walker, Mark E., Nominee to be U.S. District Judge for the Northern District of Florida................................... 729 NOMINATIONS OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U. S. CIRCUIT JUDGE FOR THE FIRST CIRCUIT; JOHN THOMAS FOWLKES, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE; KEVIN McNULTY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; MICHAEL A. SHIPP, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; AND, STEPHANIE MARIE ROSE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA ---------- WEDNESDAY, MARCH 14, 2012 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:50 p.m., Room SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar presiding. Present: Senators Franken, Grassley, and Lee. OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE OF MINNESOTA Senator Klobuchar. (Off microphone) welcome the family and friends that have accompanied all of you today. It looks like a full crowd out there, and I know that you are going to--the nominees will be able to introduce their friends and family shortly. We are considering, as you know, five judicial nominees today. And, first, I would like to call upon my colleagues, who are all gathered here, excited to introduce the nominees from their home State. So I think we will start here with Senator Snowe, and then Senator Collins, Senator Menendez, and Senator Harkin. So, Senator Snowe, please begin. PRESENTATION OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U.S. CIRCUIT JUDGE BY THE HON. OLYMPIA SNOWE, A U.S. SENATOR FROM THE STATE OF MAINE Senator Snowe. Thank you, Chair Klobuchar and Ranking Member Grassley, for holding this hearing today to consider the nomination of Mr. William J. Kayatta, Jr., to succeed the honorable Kermit Lipez on the United States Court of Appeals for the First Circuit. I join my colleague, Senator Collins, in enthusiastically endorsing this nomination, and I urge the Committee to recommend confirmation of Bill Kayatta to this critical position on the Federal bench. Today is certainly one the Kayatta family will always remember. So I also want to welcome Bill's wife, Anne Swift- Kayatta, and their daughter, Katherine. And I know their younger daughter, Elizabeth, could not be here today due to a job interview, which is sort of what her father is doing today, as well. Let me begin with a story Bill's family likely knows well. When Bill held his first hearing with counsel at the Special Master for the U.S. Supreme Court, a distinguished assignment, he assumed the bench and asked 20 or so lawyers to identify themselves for the record. When they were finished, Bill began to explain the order of proceeding, only to be interrupted by the court reporter, who asked, ``And who are you? '' So with that, let me tell you more about who this stellar nominee is. First, I want to commend President Obama for his decision to nominate Bill Kayatta for a seat on the first circuit. This is a case of the President selecting a superbly qualified nominee who can and should attract strong bipartisan support in the Committee. Educated at Amherst College and Harvard Law School, Bill has now practiced law for 32 years. Before beginning his career as a litigator, he clerked for former first circuit court of appeals Judge Frank Coffin, a true pillar of the law and a former Congressman from Maine who became Bill's lifelong mentor, as well. There is ample evidence of the professional respect for Bill's intellectual acumen and legal accomplishments for the Committee to consider. To name just a few, he is an elected member of the American Law Institute, a fellow and regent of the American College of Trial Lawyers, a member of the American Bar Foundation, and past president of the Maine Bar Foundation. He was also asked to co-edit the first, entirely new edition of the treatise Maine Civil Practice, led by the late Charles Harvey, Jr., one of Maine's most respected legal practitioners. Through his reputation for excellence in handling complicated matters, Bill Kayatta has developed a law practice national in scope. He is admitted to practice in no fewer than five Federal circuits and has been lead counsel in sophisticated class action liability cases from Maine to Florida to Delaware to California, involving both major corporations, as well as individuals. Bill has prevailed in every trial but two in the last 32 years of his practice and has won 31 of 37 appellate arguments. He has litigated $43 billion in energy contracts, handled 23 State class actions against the world's largest car manufacturers, and certified a class of 500 to 800 disabled children seeking in-home mental health services. He also has experience in the U.S. Supreme Court, where he has argued two cases, submitted merit briefs on three cases, and worked on cert briefs in six additional cases. But nothing stands out more than Bill's current honor which I mentioned earlier, to serve as a Special Master for the U.S. Supreme Court in a dispute among the States of Kansas, Nebraska and Colorado. Selected by the Supreme Court from the approximately one million lawyers in the country, Bill was chosen for his keen intellect, experience and integrity to hear and recommend a decision to the Court. In short, there is no higher tribute for a practicing lawyer in America. A tremendous steward of the common good, especially the cause of access to justice for all, Bill has been bestowed with many well earned accolades, such as a Champion of Children by the Maine Children's Alliance. Moreover, he has garnered the Maine Equal Justice Partners Appreciation Award, and received a Disability Rights Center special recognition award. For all of these reasons I have discussed, Bill Kayatta has rightly earned the American Bar Association's highest rating of unanimous well qualified. As you know, this is the gold standard of ABA ratings, reflecting the highest level of intellect, character, and judicial temperament. It is a rating reserved only for those who warrant the ABA's strongest endorsement. So thank you, again, Madam Chair and members of the Committee, for this privilege and opportunity to recommend a candidate of Bill Kayatta's caliber. Upon your consideration and review of his exceptional merits, his record and qualifications, I would hope that you would review and report out his nomination favorably. Thank you. Senator Klobuchar. Well, thank you very much, Senator Snowe. Mr. Kayatta is lucky to have not one, but two Senators here on his behalf today. We have Senator Collins of Maine. PRESENTATION OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U.S. CIRCUIT JUDGE BY THE HON. SUSAN M. COLLINS, A U.S. SENATOR FROM THE STATE OF MAINE Senator Collins. Thank you very much, Madam Chairman, Senator Grassley, Senator Franken. I am extremely pleased to join Senator Snowe before this distinguished Committee today to wholeheartedly recommend to you William Kayatta of Cape Willow Smith, Maine, who has been nominated to serve in the U.S. Court of Appeals for the First Circuit. Bill is an attorney of exceptional intelligence, extensive experience, and demonstrated integrity. He is very highly respected in Maine's legal community. While I know that the Committee is already familiar with his many qualifications and Senator Snowe has already outlined many of them, let me just emphasize a few. In 1980, Bill joined the firm of Pierce Atwood in Portland, Maine, where, over the subsequent 32 years, he has specialized in complex civil litigation at both the trial and the appellate level. He has served as chairman of both the Maine Professional Ethics Commission and the Maine Board of Bar Examiners, as well as president of the Maine Bar Association. In 2002, Bill was inducted into the American College of Trial Lawyers. And in the year 2010, he was selected by his peers to the college's board of regents. Simultaneously, Bill has maintained a substantial pro bono practice. In 2010, he received the Maine Bar Foundation's Howard H. Dana award for career-long pro bono service on behalf of low income Mainers. As Senator Snowe has mentioned, in 2011, the U.S. Supreme Court appointed him as Special Master in Kansas v. Nebraska and Colorado, an original water rights case, an indicator of the Court's confidence in his legal abilities. Finally, as Senator Snowe has also mentioned, he has earned the American Bar Association's highest rating--unanimously well qualified--reflecting the ABA's assessment of his credentials, his experience, and his temperament. Bill's impressive background makes him eminently qualified for the seat on the first circuit. His 30-plus years of real world litigation experience would bring a needed perspective to this prestigious court. Madam Chairman, the first circuit has the fewest judges of any circuit, and, consequently, any vacancy there is felt most acutely. In January of this year, Judge Kermit Lipez took active senior status after decades of outstanding public service to Maine and the Nation, for which I would like to thank him. While Judge Lipez has agreed to carry a full caseload over to his senior status, he has made it very clear that he will carry that load only until the beginning of September. At that point, the caseload would have to be distributed among the remaining five judges. For this reason, as well as in recognition of the nominee's extraordinary qualifications, I urge the Committee to act expeditiously on Mr. Kayatta's nomination in order to avoid a real problem for the first circuit in handling its caseload. Madam Chairman, members of the Committee, the State of Maine has a long, proud history of supplying superb jurists to the Federal bench. I know that, if confirmed, Mr. Kayatta will continue in that fine tradition. I urge the Committee to act as quickly as possible on the nomination and to move it forward to the Senate floor, for he deserves overwhelming bipartisan support. Thank you very much. Senator Klobuchar. Thank you very much, Senator Collins. Not everyone has to stick around, if any of you--I just wanted to let you know that. We now have--we have many things to do--Senator Menendez, who is here on behalf of Kevin McNulty. Whenever I see a New Jersey name, I always remember Senator Menendez telling me that they had tee shirts in New Jersey that say ``Only the strong survive.'' And so I am sure that is true of your judicial nomination process. Senator Menendez. PRESENTATION OF KEVIN McNULTY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY BY THE HON. ROBERT MENENDEZ, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Menendez. Thank you, Madam Chair. I will not continue on that story. But let me thank you, as well as the Ranking Member and the distinguished members of the Committee. I actually have two New Jerseyans to introduce to the Committee today, and I am privileged to do so. Let me first introduce Kevin McNulty for consideration as the next United States District Judge for the District of New Jersey. Both of these nominees have family and friends here, including a former justice of the New Jersey Supreme Court, Justice Visalli. We are pleased to have him with us. A district judge must possess exemplary analytical skills, a strong work ethic, an extraordinary knowledge of the law. Mr. NcNulty has demonstrated these qualities on countless occasions. He is the chair of the appeals group in the prestigious law firm of Gibbons P.C. At Gibbons, he has been directly involved in approximately 100 appeals related to a wide variety of legal issues, including pharmaceutical, intellectual property, commercial, and criminal matters. He has tirelessly fought for his clients' interests. His hard work and dedication earned him the New Jersey Law Journal's Lawyer of the Year award. Before joining Gibbons, Mr. McNulty served as the chief of the appeals division of the United States Attorney's office. He was the lead attorney for the Organized Crime and Drug Enforcement Task Force, as well as the ethics officer and grand jury coordinator. And while serving at the U.S. Attorney's office, Mr. McNulty was honored with a Federal Law Enforcement Officers Association award. He began his professional career as a law clerk for the honorable Frederick B. Lacey, U.S. district judge for the district of New Jersey. He graduated cum laude and was third in his class at New York University School of Law. His academic achievement also earned him membership in the New York University law review, where he served as articles editor, membership in the honor society, and Order of the Coif. And while at New York University School of Law, he was awarded the American Judicial Society prize, the Pomeroy prize, and the Moot Court Advocacy Award. Outside of his professional career, he has demonstrated an admirable commitment to public service. He is a member of the board of trustees at the Urban League of Essex County, former member of the third circuit lawyers advisory committee, co- author of the Pennsylvania Bar Institute Guide to Third Circuit Practice, and he has written and spoken on a host of legal topics. He is an active member of the New Jersey, Federal and American Bar Associations. And throughout his career, he has demonstrated a strong analytical ability, rapid research skills, and an outstanding work ethic, integrity, and he is well equipped to serve with distinction as a district court judge for the district of New Jersey. PRESENTATION OF MICHAEL S. SHIPP, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY BY THE HON. ROBERT MENENDEZ, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Madam Chair, members of the Committee, I also want to introduce and express my strong support for Judge Michael Shipp, for the United States District Court of New Jersey. All of us in New Jersey are very familiar with Judge Shipp's qualifications. He is an exceptional candidate for the Federal bench. He is an accomplished jurist, with impressive qualifications. With almost 5 years experience as a Federal magistrate judge for the district of New Jersey, he is well prepared to be a Federal district judge. He has successfully managed significant and complex cases as a magistrate, and has, on occasion, served as a district court judge in cases with magistrate jurisdiction. The first 8 years of his distinguished legal career were spent in the litigation department at the law firm of Skadden Arps. In 2003, he left the firm to serve in the public sector as an assistant attorney general for consumer protection in the office of the attorney general of New Jersey, where he honed his expertise in consumer fraud prosecution, insurance fraud prosecution, security fraud prosecution, professional boards prosecution, and debt recovery. Judge Shipp excelled at the office of the attorney general and was twice promoted within the office, first as liaison to the attorney general and, second, as counsel to the attorney general. And in that context, he was in charge of day-to-day operations of the department of law and public safety, a department with over 10,000 employees and 800 attorneys. Judge Shipp is also deeply involved in the legal community. Beyond his leadership role with the New Jersey State Bar Association, his membership in the Garden State Bar Association, he has served as a faculty member of Seton Hall University School of Law Summer Institute for Pre-Legal Studies, which helps disadvantaged students develop their interest in law. He has also served on the faculty of the New Jersey Attorney General's Advocacy Institute, which ensures that attorneys representing the State of New Jersey maintain the highest possible levels of professionalism. He is a proud New Jerseyan, with deep roots in our State, a native of Patterson, New Jersey. I say that because if Senator Lautenberg were here, he would tell you that, and I feel compelled to do so in his absence. He grew up in New Jersey. He lives in New Jersey. He earned his degree from Rutgers State University, Seton Hall Law School, and went on to clerk for the honorable James Coleman, a former justice of the Supreme Court of New Jersey. He is an extraordinary jurist with a tremendous opportunity, a judicial temperament, extraordinary legal experience, and a deep and abiding commitment to the rule of law. These are two exceptional nominees, and I would urge the Committee's quick and positive nomination to the floor. And I am sure Senator Grassley is going to feel that way after he hears from him. Senator Klobuchar. Very good. Thank you very much, Senator Menendez. Judge Shipp, I apologize for not mentioning you earlier, but there was some confusion with Senator Lautenberg. And you know he would love to be here, but he could not be here because he was at the funeral for Representative Payne. But he did ask that I submit his statement for the record. And without objection, we will put it on the record. [The prepared statement of Senator Lautenberg appears as a submission for the record.] Senator Klobuchar. And thank you for both of the nominees, extremely qualified. We now move closer to my home, the State of Iowa, with Senator Harkin, who is going to speak, as is our Ranking Member here, Senator Grassley, for Stephanie Marie Rose. Thank you. And thank you, Senator Menendez. PRESENTATION OF STEPHANIE MARIE ROSE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA BY THE HON. TOM HARKIN, A U.S. SENATOR FROM THE STATE OF IOWA Senator Harkin. Thank you very much, Madam Chair and Ranking Member Grassley, Senator Franken. It is a great privilege for me to be here to introduce U.S. Attorney Stephanie Rose to serve as a district court judge in Iowa's southern district. I was honored to recommend this outstanding attorney to the President, and I thank him for nominating her. Let me begin first by thanking you, Senator Leahy, for agreement to such a prompt hearing, and to thank my senior colleague from Iowa, Senator Grassley, for his assistance in making this prompt hearing possible. For many years, Senator Grassley and I have cooperated in a collaborative spirit on judicial nominations in our State, and I am glad that we are continuing Iowa's fine tradition regarding Iowa's judicial selections. Madam Chair, a U.S. Senator has few more important responsibilities than recommending to the President the person best qualified to serve in a lifetime position as a Federal judge. I believe Stephanie Rose possesses all of the qualifications necessary to assume the very serious responsibilities carried out by a Federal judge. In fact, the American Bar Association gave Ms. Rose a unanimous well qualified rating, their highest. A little over 2 years ago, in 2009, this same Committee and the Senate unanimously confirmed Ms. Rose to become U.S. attorney in the northern district of Iowa, having previously served 12 years as an assistant U.S. attorney. She is a superb attorney. And among jurists, prosecutors, and the Defense Bar, she has a reputation as someone who is unfailingly fair and ethical and who possesses exceptional legal ability, intellect, and judgment. It is no surprise she enjoys wide bipartisan support from the Iowa legal community. In fact, Charles Larsen, former United States attorney for the northern district of Iowa, under President George W. Bush, recently wrote this Committee, stating that Ms. Rose, ``has all the requisite abilities and traits to serve all litigations for the southern district of Iowa in the manner expected of a Federal judge. Ms. Rose would be a distinguished member of the judiciary.'' Finally, Ms. Rose reflects very proudly on all of us who have chosen to be public servants. She earned her master's degree with honors from the University of Iowa in just 3 years. She earned her J.D. from the University of Iowa College of Law in just 2 years, graduating in the top 5 percent of her class. She could easily have commanded a big salary with a top law firm. Instead she opted for public service and long hours as a Federal prosecutor, working to uphold the rule of law, making our neighborhoods safer, and advancing the cause of justice. We are fortunate that she seeks to continue her public service to Iowa and our Nation by serving as a Federal judge. Madam Chair, it is often helpful to know some more personal background on a nominee. Ms. Rose was born in Topeka, Kansas, and later moved to Mason City, Iowa when she was 4. Both of her parents were public school teachers. She and her husband, Rob, have two children, Kyle, age 13, and Missy, who is 10. Ms. Rose has two sisters, one of whom was adopted after coming to the family as a foster child, one of five foster children her parents welcomed into their home. While I do not know that family personally, I am told by others who do know them and who associate with them in their church activities and community activities that this is a wonderful, supportive, and very close-knit family. Before recommending Ms. Rose to the President, I reviewed an unusually strong field of candidates for this position. She stood out as a person of truly outstanding intellect and character. Stephanie Rose is exceptionally qualified to serve as United States District Judge for the Southern District of Iowa. I urge this Committee to swiftly and unanimously approve her and send her to the Senate floor as soon as possible. Madam Chair, I would also ask that the three articles, two that appeared in the Des Moines Register, one that appeared in the Cedar Rapids Gazette today, also be included with my statement in the record. Senator Klobuchar. They will be included. [The prepared statement of Senator Harkin appears as a submission for the record.] Senator Klobuchar. And now, Senator Grassley. PRESENTATION OF STEPHANIE MARIE ROSE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA BY THE HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Thank you. I compliment Senator Harkin for his recommendations of Ms. Rose to the White House and the White House making the selection. Senator Harkin has spoken correctly that during the 24 years and the 31 years that he and I have been in the U.S. Senate that we have cooperated very closely on selection of people for the judicial and executive branch of government. So it is a pleasure for me to recommend to this Committee Stephanie Marie Rose. Her husband, Mr. Robert Rose, as well as other family and friends in attendance today and viewing the hearing elsewhere. The President has nominated Ms. Rose to serve as U.S. District Judge for the Southern District of Iowa. Ms. Rose is a hawk-eye through and through, receiving two degrees from the University of Iowa; as Senator Harkin said, her BA and her law degree in a short period of time. Ms Rose, I guess, you were on a fast track through law school, obviously. Thankfully, after graduation from law school, she chose to stay in the State of Iowa. She first served as a law clerk, U.S. attorney's office, northern district of Iowa, In 1997, she was hired as a full-time attorney in that office, where she has risen through the ranks and now heads that office. She served as special assistant to the U.S. attorney from 1997 to 1999, and has been assistant U.S. attorney 1999 through the year 2009. During this time, she was the lead counsel in prosecutions of more than 250 cases. These cases spanned a wide range of legal issue from violent crimes and drug abuses and offenses to immigration violation and money laundering. Additionally, she has handled approximately 45 Federal civil cases. These cases have included post-conviction relief, an asset for venture mattress, as well as Freedom of Information Act and property return lawsuits. In 2009, she was confirmed by the Senate and appointed by President Obama to serve as U.S. attorney, northern district of Iowa. In this role, she oversees most every aspect of the office. This includes overseeing civil and criminal work completed by office staff and making final determinations regarding charging decisions, plea offers, and civil settlements. The American Bar Association standing committee on the Federal judiciary unanimously rated Ms. Rose as well qualified for this position. So, obviously, as Senator Harkin deserves congratulations, she is the one that has worked very hard to attain the notoriety that she has and has risen to now be nominated. So I congratulate Ms. Rose and, at the same time, I am going to congratulate the other nominees, but not take the time of the Committee to go into their backgrounds, and I will put that in the record, Madam Chair. Senator Klobuchar. Thank you very much, Senator Grassley. That will be included in the record. [The information referred to appears as a submission for the record.] Senator Klobuchar. Now, we continue our tour around the country to the south, and Senator Alexander is here on behalf of Judge John Thomas Fowlkes, who is a nominee for the district court for the western district of Tennessee. PRESENTATION OF JOHN THOMAS FOWLKES, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE, BY THE HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE STATE OF TENNESSEE Senator Alexander. Thank you, Madam Chairman. I note the perfect attendance of the Senators from Minnesota for this hearing. Senator Klobuchar. We heard there was somewhat up from Tennessee, so we thought we would come. [Laughter.] Senator Alexander. That is good. You are hard to get ahead of. Madam Chairman, Senator Grassley, it is a real honor to introduce Judge John Fowlkes, who is sitting over here in the right. He is a State judge in Memphis. The President has nominated him to fill a vacancy for the United States History judgship for the western district of Tennessee, and the President has made an excellent nomination. As Governor of Tennessee, I appointed about 50 judges and as I look back on it, I find out that they have lasted a lot longer than most of the things that I tried to do when I was Governor. So one has to appoint judges carefully. And I try not to inquire too far into their views on things, but really into their intellect, their character, their demeanor, their capacity for fairness, and especially the respect they would have for the litigants and the lawyers who appear before them. By that test, Judge Fowlkes passes with flying colors. He is already a judge. He is well known in Shelby County and in Memphis, Tennessee. And he is deeply involved in his community. I received a number of letters from citizens of Memphis and Shelby County talking about his, ``creative mind and his independent work ethic.'' I knew his reputation, but I took some time after the President nominated him to study his qualifications further and to meet personally with him, and I am impressed. He devotes 50 hours a year of service to the Port of Memphis Area Legal Services. He is active in support of the Boy Scouts. He has devoted himself to the community in which he lives. So I am sure the Committee will carefully examine his judicial qualifications, but from my vantage point, his reputation is excellent. He has served well as a judge for our State. He is well respected in his community. And I would recommend that the Committee approve him and move him on to the Senate for full consideration. I also should note--I will let him do the introducing--he has pretty good family support. He has got a wife, father, two sisters, a niece, two cousins, and a nephew all here today, and I imagine he will want to introduce them when the time comes. Senator Klobuchar. Very good. Thank you very much, Senator Alexander. Do you want to say anything, Senator Grassley, more before we start with our first nominee? We will ask our first nominee, Mr. Kayatta, to come forward. And if you could remain standing and raise your right hand, Mr. Kayatta--thank you so much--and I will administer the oath. [Nominee sworn.] Senator Klobuchar. Now, Mr. Kayatta, if you would like to introduce--we have heard a lot about you from the Senators from Maine, and we would love to see if you want to introduce anyone who is here, friends or family. STATEMENT OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE FIRST CIRCUIT Mr. Kayatta. Thank you, Madam Chair and Ranking Member Grassley and Senator Franken, for giving me this opportunity to be here today. It is a tremendous and inspiring privilege for someone who has grown up and spent his life working in Maine to be introduced to this Committee by Senator Snowe and Senator Collins. Maine is a small state. We get to know each other pretty well. And there is no one in Maine who is more widely respected than these two extraordinary women. So I am very honored by their introduction today. I would also like to thank Representative Mike Michaud and Representative Chellie Pingree and their selection committee for suggesting my name to the President. And, obviously, I would like to thank very much the President for having the confidence in me to make this nomination. Senator Snowe was very gracious to introduce my family, my wife, Anne, and daughter, Katherine, and her fiance, Ian Gilbert, who were able to come here today. My daughter, Elizabeth, as Senator Snowe mentioned, is doing her own job interview as we sit here today. My parents, I know, wish very much that they could come, but they, together with my colleagues and friends at my law firm, Pierce Atwood, will take advantage of the Web broadcast. Senator Klobuchar. Always exciting. Mr. Kayatta. Yes. Although I might be fearful of watching it myself. [Laughter.] Mr. Kayatta. And with that, I know how busy the members of this Committee are, and so I will refrain from any further comments. Senator Klobuchar. Very good. Do you want to begin, Senator Grassley. Senator Grassley. Usually, I do not get that right very much. Senator Klobuchar. Well, I thought I would do that to be nice and bipartisan. We just passed a bill today. Before you--Senator Corker, do you want to---- Senator Grassley. Yes. Let us start with Senator Corker. Senator Klobuchar. Right. Do you want to go and talk about your--could we just take a break to do this? All the people involved in Rules. Do you mind, Mr. Kayatta. Mr. Kayatta. Not at all. Senator Klobuchar. You are not under oath, Senator Corker. Senator Corker. Thank you. It makes me very nervous. Now, Lamar has already been in, is that correct? Senator Klobuchar. Right. He just spoke and we would love to hear from you about your nominee, John Thomas Fowlkes. Senator Corker. Listen, I know that this Committee is going to look into the various judicial proceedings that he has been involved in. I know this Committee does an outstanding job with that. But when the White House began looking for someone in the Memphis area to become a Federal judge, every civic and respected political leader, the first name that came out was Judge Fowlkes. I have been involved in many of these, as have so many of you. I do not believe I have come across someone who has come before this Committee that has been more highly recommended by people that I respect. Our former Governor, a Democrat, a friend of mine, Phil Bredesen, appointed him to a State judge post, the mayor of Shelby County, A.C. Wharton, both of these gentlemen highly respected, but he served as his chief administrative officer prior to that. And I just want to say to this Committee, I went to Shelby County, to Memphis, to meet with this gentleman so that these proceedings could move on quickly. I am very, very highly impressed with him and highly recommend him to this Committee to have its proceedings. And I thank you for letting me come in late and interrupt this fine gentleman's testimony. Thank you very much. Senator Klobuchar. Very good. Thank you very much, Senator Corker. Senator Grassley. Senator Grassley. The first question comes in regard to the fact that in your position, you will probably be considering some cases of crime, but you seem to lack experience with criminal cases. In answer to your questionnaire, your private practice has not included any criminal cases. So I give you a chance to tell us and share with us about your legal background to ease concerns that we might have about lack of criminal law experience. Mr. Kayatta. Yes, Senator. Thank you. And it is correct, I have had no experience in representing parties in criminal proceedings, either the State or the defendants. I have had--and I do think that is an area where I will come in with a fair amount of work to do to bring myself appropriately up to speed. Now, I have had some exposure to criminal law in several respects. My year clerking, I obviously saw a full year's worth of cases that the first circuit had, including all the criminal cases. I also had the privilege for 8 or 9 years of representing quite a few police officers who were sued in suits that raised issues of Fourth or Fifth Amendment procedure, excessive force, other type issues, and that required me, even though I was not representing parties in criminal proceedings, it required me to get a pretty good understanding of the rules of procedure both under the Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and other issues that arise, and to also spend a fair amount of time understanding how the law enforcement process worked. Finally, my civil practice involves--I have not specialized in any one particular area in my civil practice. I have moved-- one year, it would be an antitrust case; another year, it would be an energy regulation case; another year, a securities case. And so that has given me an opportunity to learn how to become familiar with the body of law that I had not previously been familiar with, and I would hope that that training would be something that I could bring to bear to supplement the limited experience in criminal law that I have described. Senator Grassley. There is nothing wrong with a nominee like you being involved in parsing politics, but prior to serving on the standing committee, you participated in Obama for President meetings and, also, donated. Did politics affect your evaluations in any way of anything you have done? Mr. Kayatta. I can think of nothing I did on the standing committee or, frankly, not much I will expect that had been affected by that. Senator Grassley. As a young attorney, in 1984, you represented the city council of Portland in a suit alleging the city violated an individual's Second Amendment rights by denying him a gun permit. A three-judge panel on the first circuit held that there was no Second Amendment. Among the cases cited was by the first circuit to support his opinion. It was a 1976 case of U.S. v. Warin that held, ``The Second Amendment guarantees a collective rather than an individual right.'' Do you recall, in defending the city council, whether you argued the Second Amendment only provided a collective right? Mr. Kayatta. I don't specifically recall that, Senator. However, I'm quite sure that as a lawyer for the city, having the ethical duties that a lawyer would have in representing a municipal government in litigation, I certainly--it's highly likely I would have raised the law as it existed at that time in any briefing. And I'm sure the first circuit followed that law then as today. The first circuit would follow the materially different law that we now have. Senator Grassley. If you had any briefs in that case, would you be willing to provide my staff and me with a copy of any brief you filed? Mr. Kayatta. Yes, I would, Senator. Senator Grassley. In Heller, as well as in McDonald v. Chicago, the Supreme Court held that the Second Amendment is an individual right. Do you personally agree that the Second Amendment confers an individual right rather than a collective right? Mr. Kayatta. Senator, I don't think it's appropriate that I express my personal beliefs. Among other reasons, I don't think my personal beliefs would be something that I would bring to bear in deciding cases as a judge. I am familiar with Heller and with the current state of the law and would certainly have no hesitancy in following and enforcing that precedent. Senator Grassley. That is good. Thank you. In McDonald, the Supreme Court further held that individual rights apply to the States. Would your same answer apply there, that the precedent set by McDonald you would follow as a judge? Mr. Kayatta. Yes, it would, Senator Grassley. Senator Grassley. Let me ask one more question. Then I will move on. You were a member of the American College of Trial Lawyers' ad hoc committee on judicial compensation that issued a report that was highly critical of the current pay of Federal judges. Knowing what you know about judicial pay, are you sure that you are able to accept the pay for judges as currently set by Congress? Mr. Kayatta. I confess, Senator Grassley, I'm probably an even more enthusiastic proponent of increased judicial pay than I was then. Yes. I certainly--you know, I don't come from a large metropolitan area and the amount of judicial pay for someone like me is a very substantial--in the State of Maine, it is an extraordinary amount, and I would be privileged to take this position. I do continue to believe, on a national level, that the prolonged reduction in judicial pay that has occurred as a result of the combination of no pay increases and inflation over time is a serious matter for Congress to consider. Senator Klobuchar. Very good. Thank you very much, Senator Grassley. You should know, as he asked about that pay issue, that I once called Senator Grassley and he was in a cafe eating apple pie that he claimed was like $1.29 or something like that. So very careful with the money. Mr. Kayatta. Perhaps I'll need the name of that. Senator Klobuchar. I wanted to, first of all, just--I know Senator Grassley had asked appropriately about the question about politics, but I also would note that you have the support of both Republican Senators from the State of Maine. And I also notice that you actually were a classmate of Justice Roberts and have spoken of him positively. And then, also, in 1981, he identified you as a potential candidate for the special assistant attorney general during the Bush Administration. So I just wanted to put that on the record. It appears as though you have worked well with people of both parties. So I wanted to ask you some questions about your experience, first of all. I think for most lawyers, the opportunity to argue a case before the Supreme Court represents the ultimate career highlight, and you have argued two cases there. Can you tell me about how your experiences as an appellate advocate will inform you in how you approach the job for which you are nominated? Mr. Kayatta. Yes, Madam Chair. One, a sense of humility, I managed to, with one small exception, lose both cases 9-0. Senator Klobuchar. I did not note that. I might not have asked that question. I was trying to ask an easy question. But go ahead. Mr. Kayatta. On one of the cases, my dear dad, who always rooted for me in every case, asked me how I could lose a case 9-0 and I told him it was because there were not 10 justices on the court. For a lawyer who reveres the rule of law, who regards this country as an exceptional country that is built on the rule of law, to appear before the Supreme court is inspiration, it's emotionally moving, and it left me with an even higher regard for what an extraordinary system we have in this country. And I think that would heighten my sense of responsibility as a judge to live up to those expectations and to understand the responsibility that every judge has to stand for the rule of law and to protect the great institutions that have in this country. Senator Klobuchar. Thank you. I noted that Senator Collins and Senator Snowe talked about your pro bono work, and I think that is such an important part of being a lawyer. Do you want to talk about why you got started with pro bono work and how you think we can make sure that that continues as part of the practice of law? Mr. Kayatta. I'm hesitant to talk about my own pro bono work. I don't think it's something that one crows about. I think every lawyer--as a lawyer, you're actually given by the government a license, a monopoly of a sort, to practice law, and I've always thought that with that privilege comes some responsibility to do more than use that license solely for your self. In that respect, though, I've done much less than many people I know who dedicate themselves full-time to those causes. So I feel what I did was something that every lawyer should do. Senator Klobuchar. I just have one last question. If confirmed, you will be serving on the circuit court, as we know, and you will be hearing cases wit a panel of judges. Could you talk about the importance of seeking out agreement with your colleagues? Is there value in finding common ground, even if it is a slightly narrower ground than you might like to get a unanimous opinion on appellate cases? Mr. Kayatta. My experience in virtually everything I have done is that several people on a common mission, if they listen to each other, if they have respect for each other and they work hard, are probably likely to come up with a better, more informed decision than someone working on his or her own. So I do think an important part of serving on a circuit court is communicating with the other judges on that court regarding decisions and listening to their different perspectives. Senator Klobuchar. Very good. Thank you very much. I think Senator Franken was next. Thank you. Senator Franken. Thank you, Madam Chair. Mr. Kayatta, congratulations on your nomination. My wife is from Portland and my in-laws are all still in Maine, and I love the State and I recognize your accent. [Laughter.] Senator Franken. You were the American Bar Association's lead evaluator during Elena Kagan's nomination to the U.S. Supreme Court. What types of things did you look for or do you look for when you are evaluating a judicial nominee? Mr. Kayatta. I actually had no personal input or choice as to what I would look for. The criteria are basically that we look for ethics, judicial temperament, and professional competence. And those are the three criteria that are to be applied. And when I was on---- Senator Franken. Would you repeat those? Ethics, what? Mr. Kayatta. Temperament. Senator Franken. Temperament. Mr. Kayatta. And professional competence. Senator Franken. Well, within those you must have some certain personal criteria that you apply. Mr. Kayatta. I think the--in terms of digging into each of those areas, I think that what I looked for was what other lawyers and judges would look for. And I say that because the ABA process, as it was implemented while I was on the ABA standing committee, in many respects, simply channeled a peer review of a nominee. And by that, I mean we would speak to, in that case, hundreds of people familiar with the nominee and ask them what their assessment was under those criteria and ask them to provide examples and facts that would substantiate that. And it was then putting together the whole body of that. Often, that peer review that would get back would speak for itself and did not require a large interpretative undertaking by the person doing the evaluation. Senator Franken. Got it. And you received--your recommendation was unanimously well qualified. Is that correct? Mr. Kayatta. I did, yes. Senator Franken. That means everyone agreed, right, unanimously? Mr. Kayatta. That means every member of the Committee selected that evaluation, yes. Senator Franken. That was not a trick question. [Laughter.] Senator Franken. Sometimes overlooking the obvious is a bad thing. After graduating from law school, you served as a law clerk on the first circuit court of appeals, the court to which you are now nominated. Did you learn any lessons as a law clerk that will help you as a judge on the court? Mr. Kayatta. Yes, I did. I learned that a lot of hard work was involved. I also learned something I think is good for every law student. There's a tendency sometimes when you're in law school to become impressed with one's own perception of one's intellectual prowess. And serving a year for Judge Coffin of the first circuit, I realized that there is a lot more wisdom involved in the job than I had, and I hd a lot to learn and needed a lot of experience to learn. Senator Franken. And, finally, I hate to return to your pro bono work, but I just wanted to ask you--one case that you did that, you were lead counsel I a lawsuit on behalf of 800 Medicaid-eligible children who had been denied in-home mental health services. That seems like a lot of work. Why did you decide to take that case? Mr. Kayatta. I had been involved in a group that was trying to encourage members of the private bar to spend more time and, also, to devote their particular talents and resources to assisting those who were full time helping those who not afford a lawyer. And one of the major groups in the State came to me and said, ``We have this very large, very complex case that we believe the law is not being enforced and that if it were enforced, it would be a win-win both for the children and for the government's budget. But they couldn't take it on--they didn't have the resources--and they asked if I would take it on. And with the permission of my partners, one partner in particular, Margate O'Keefe and a number of other lawyers who agreed to work with me, we took that one for many years. Senator Franken. Thank you and, once again, congratulations to you and to your family. Mr. Kayatta. Thank you, Senator. Senator Franken. Thank you. Senator Klobuchar. Very good. Senator Lee. Senator Lee. I would not let anybody give you a hard time about the 9-0 losses. Your former classmate, Chief Justice Roberts, had a 9-0 loss not too long before you went onto the Supreme Court. Sometimes the court gets it wrong. In any event, you have got one of those quill pens, I am sure, each time you argued that. Mr. Kayatta. Yes, I did. Senator Lee. And that is a victory in and of itself. As a Federal judge, you will be called upon on an almost constant basis to evaluate what could potentially be defects in any case. When you come across a case in which Article 3 standing is, arguably, deficient, what factors would you look to in deciding whether or not there is standing and what might you do in a case in which you are in doubt, you are sort of wondering which way the scales tip? Mr. Kayatta. Well, not profession to be an expert on standing, let me say that it's my impression that as a judge, I would actually be obligated in every case, whether the issue of standing has been raised or not., to make a determination that I have been given the power and the court I am on have been given the power to do anything at all. And without standing, a Federal court--- if the parties who come before the court who had brought the case lacks standing, then the court lacks jurisdiction, generally, other than some odd unusual circumstances. Senator Lee. Regardless of whether they raise it. Mr. Kayatta. That's correct. I think it's one of those issues that the court could--we are--the Federal courts are courts of limited hours and limited jurisdiction, and pat of being a good Federal judge is to always ask yourself, ``Am I operating within those limits? '' And so standing is one of the important limits because it ensures that the party who comes before the court has a stake in the outcome. And if we didn't have standing requirements, then courts, instead of deciding cases and controversy, would start deciding issues, and our courts are not set up to decide issues. They decide actual cases and controversy where there is an injury, in fact, or an imminent injury, in fact, and where a judgment would actually have an effect on the litigants before the court. Senator Lee. And when you are in doubt as to weighing those elements of standing along with the element of whether or not they are fairly traceable to the conduct of the defendants, how would you sort of decide how to balance a close case? How do you just say whether or not there is standing if you are really on the fence? Mr. Kayatta. Right. Let me address the process, because as a practicing attorney, one of the first things I would say is that when a court sua sponte, as us lawyers say, raise something of themselves, I think the court should generally ask the parties to weigh in on the issue. And sometimes the courts don't do that and I think it's a mistake not to get the benefit of the adversarial process. Having done that and having looked at the case, I would obviously be bound by the precedent. Having come to the end of the process of reading the precedent, if I didn't know what the decision was, I think I would certainly engage in the process that the chair has suggested of consulting with the other judges on the court, and, ultimately, one has to make a decision. Senator Lee. You indicated a minute ago that the Federal courts are government bodies with limited jurisdiction. We, too, as a Congress, we are a legislative body with limited jurisdiction, even though we do not always act like it. We have exercised a lot of power under the commerce clause of the Constitution. I was wondering if you could tell us what, in your opinion, are the limits on what we can enact under the commerce clause? Mr. Kayatta. Well, given the currency of high profile litigation exploring the reach of the commerce clause could---- Senator Lee. And I am not asking you to weigh in on anything pending across the street, sir. Mr. Kayatta. Well, I think one starts with the presumption of--I think it's Madison in the Federalist Papers, I think he used the term that the powers of the Federal Government are few and defined. So one starts, I think, with the presumption that for our government to exercise powers, those powers must have their source in the Constitution. In other words, that the people have granted the government that power. So one looks in the Constitution. Beyond that, you would then look at precedent, and I would be bound by the precedent both of the Supreme Court and of the circuit. Senator Lee. Is there anything in our precedents beyond what is found in U.S. v. Lopez and U.S. v. Morrison that is outside of that power? Is there any real limit? Mr. Kayatta. Well, those cases discussed certain aspects of the limit. Just knowing how complex the issue of the breadth of Congress' power is, I would be surprised if there weren't other issues that could arise outside the context of those, but I do not profess to be familiar with that. Senator Lee. I see my time has expired unfortunately. Thank you. Senator Klobuchar. Thank you very much, Senator Lee. Senator Grassley has a followup. Senator Grassley. Just one question following-up on something Senator Franken asked you about, the standards that you applied. I have one followup to that. I would like to have you explain--well, based upon what you said about your respect for rule of law, I presume that applies to respect for standards that you apply for judicial nominees. Would you mind explaining the standing committee's conclusion in regard to Ms. Kagan's nomination of being well qualified. The conclusion given, its stated standard that judicial nominees should have, ``have at least 12 years'' experience in the practice of law and, ``a substantial courtroom and trial experience as a lawyer or trial judge,'' considering the fact that Ms. Kagan had spent only a couple years as a lawyer in private practice and did not have the experiences talked about here in the standard. Mr. Kayatta. Let me see if I can address that without stepping outside of proper role, because since I'm no longer a member of the standing committee and I've never been authorized to speak on behalf of the committee, other than the particular testimony that was put forth. But I do have enough familiarity with the standards to know that the trial practice, in particular, which is mentioned in the Committee's backgrounder, is a factor that diminishes the higher one goes. In other words, it's a very significant factor for a district court nominee; important, but less so, in practice. It was my understanding, if memory serves me correctly. That that was not a requirement for a position on the Supreme Court. And in that particular incidence, we had the rather extraordinary fact that we had an individual who had served as solicitor general for the United States. This is a position often referred to as the 10th justice. So it's quite an extraordinary and unusual litigation-related qualification. Senator Klobuchar. Very good. Well, thank you very much, Mr. Kayatta, and thank you for your testimony, and you are done. Mr. Kayatta. Thank you very much. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6131.001 [GRAPHIC] [TIFF OMITTED] T6131.002 [GRAPHIC] [TIFF OMITTED] T6131.003 [GRAPHIC] [TIFF OMITTED] T6131.004 [GRAPHIC] [TIFF OMITTED] T6131.005 [GRAPHIC] [TIFF OMITTED] T6131.006 [GRAPHIC] [TIFF OMITTED] T6131.007 [GRAPHIC] [TIFF OMITTED] T6131.008 [GRAPHIC] [TIFF OMITTED] T6131.009 [GRAPHIC] [TIFF OMITTED] T6131.010 [GRAPHIC] [TIFF OMITTED] T6131.011 [GRAPHIC] [TIFF OMITTED] T6131.012 [GRAPHIC] [TIFF OMITTED] T6131.013 [GRAPHIC] [TIFF OMITTED] T6131.014 [GRAPHIC] [TIFF OMITTED] T6131.015 [GRAPHIC] [TIFF OMITTED] T6131.016 [GRAPHIC] [TIFF OMITTED] T6131.017 [GRAPHIC] [TIFF OMITTED] T6131.018 [GRAPHIC] [TIFF OMITTED] T6131.019 [GRAPHIC] [TIFF OMITTED] T6131.020 [GRAPHIC] [TIFF OMITTED] T6131.021 [GRAPHIC] [TIFF OMITTED] T6131.022 [GRAPHIC] [TIFF OMITTED] T6131.023 [GRAPHIC] [TIFF OMITTED] T6131.024 [GRAPHIC] [TIFF OMITTED] T6131.025 [GRAPHIC] [TIFF OMITTED] T6131.026 [GRAPHIC] [TIFF OMITTED] T6131.027 [GRAPHIC] [TIFF OMITTED] T6131.028 [GRAPHIC] [TIFF OMITTED] T6131.029 [GRAPHIC] [TIFF OMITTED] T6131.030 [GRAPHIC] [TIFF OMITTED] T6131.031 [GRAPHIC] [TIFF OMITTED] T6131.032 [GRAPHIC] [TIFF OMITTED] T6131.033 [GRAPHIC] [TIFF OMITTED] T6131.034 [GRAPHIC] [TIFF OMITTED] T6131.035 [GRAPHIC] [TIFF OMITTED] T6131.036 [GRAPHIC] [TIFF OMITTED] T6131.037 [GRAPHIC] [TIFF OMITTED] T6131.038 [GRAPHIC] [TIFF OMITTED] T6131.039 [GRAPHIC] [TIFF OMITTED] T6131.040 [GRAPHIC] [TIFF OMITTED] T6131.041 [GRAPHIC] [TIFF OMITTED] T6131.042 [GRAPHIC] [TIFF OMITTED] T6131.043 [GRAPHIC] [TIFF OMITTED] T6131.044 [GRAPHIC] [TIFF OMITTED] T6131.045 [GRAPHIC] [TIFF OMITTED] T6131.046 [GRAPHIC] [TIFF OMITTED] T6131.047 [GRAPHIC] [TIFF OMITTED] T6131.048 Senator Klobuchar. I want to bring the next group up, if you could all come up, please. You want to keep standing there. Very good. Will you please raise your right hand and stand to be sworn? [Nominees sworn.] Senator Klobuchar. Thank you very much. That oath went a little more smoothly. I did not make it up that time. We will start. We are looking forward to having you introduce the people that are here with you. We will start with Judge Fowlkes. You had good recommendations from both of your Senators, Senator Lamar Alexander and Senator Corker, and we welcome you today. STATEMENT OF JOHN THOMAS FOWLKES, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE Mr. Fowlkes. Good afternoon, Senator. Thank you. And the other Senators, thank you for being here and giving us the opportunity to speak before you. It is truly an honor to be here. Special thanks to the Senators who gave some very kind words for me. Of course, they had to leave. Also, Representative Steve Cohen who submitted my name in the first place. Of course, a special thanks to the President for nominating me. I have with me, as was said, several family members. Of course, my wife of 40 years, Michelle, is with me today, just sitting just behind me. Senator Klobuchar. I see her. Mr. Fowlkes. My father is also with me, John Thomas Fowlkes, Sr. He's sitting just behind my wife. He's here from Raleigh, North Carolina, along with my two sisters who are here, Alisa Washington and Deidre Taylor. I have also here cousins, Edward Montgomery, Dr. Montgomery is here. William Baltimore, he's a battalion chief here in the District. And also I have a nephew who is here, 15 years old, Owen Davis, here from Raleigh, North Carolina. He has to write a paper about his experience here. Senator Klobuchar. Where is he? Mr. Fowlkes. He's sitting just---- Senator Klobuchar. There we go. We can talk to him later, Senator Grassley, do a little interview. All right. Mr. Fowlkes. Thank you very much. I have no further opening statement. Senator Klobuchar. Thank you. Mr. Fowlkes. I appreciate your being here and listening. Senator Klobuchar. Thank you for being here. Very good. Mr. McNulty. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6131.049 [GRAPHIC] [TIFF OMITTED] T6131.050 [GRAPHIC] [TIFF OMITTED] T6131.051 [GRAPHIC] [TIFF OMITTED] T6131.052 [GRAPHIC] [TIFF OMITTED] T6131.053 [GRAPHIC] [TIFF OMITTED] T6131.054 [GRAPHIC] [TIFF OMITTED] T6131.055 [GRAPHIC] [TIFF OMITTED] T6131.056 [GRAPHIC] [TIFF OMITTED] T6131.057 [GRAPHIC] [TIFF OMITTED] T6131.058 [GRAPHIC] [TIFF OMITTED] T6131.059 [GRAPHIC] [TIFF OMITTED] T6131.060 [GRAPHIC] [TIFF OMITTED] T6131.061 [GRAPHIC] [TIFF OMITTED] T6131.062 [GRAPHIC] [TIFF OMITTED] T6131.063 [GRAPHIC] [TIFF OMITTED] T6131.064 [GRAPHIC] [TIFF OMITTED] T6131.065 [GRAPHIC] [TIFF OMITTED] T6131.066 [GRAPHIC] [TIFF OMITTED] T6131.067 [GRAPHIC] [TIFF OMITTED] T6131.068 [GRAPHIC] [TIFF OMITTED] T6131.069 [GRAPHIC] [TIFF OMITTED] T6131.070 [GRAPHIC] [TIFF OMITTED] T6131.071 [GRAPHIC] [TIFF OMITTED] T6131.072 [GRAPHIC] [TIFF OMITTED] T6131.073 [GRAPHIC] [TIFF OMITTED] T6131.074 [GRAPHIC] [TIFF OMITTED] T6131.075 [GRAPHIC] [TIFF OMITTED] T6131.076 [GRAPHIC] [TIFF OMITTED] T6131.077 [GRAPHIC] [TIFF OMITTED] T6131.078 [GRAPHIC] [TIFF OMITTED] T6131.079 [GRAPHIC] [TIFF OMITTED] T6131.080 [GRAPHIC] [TIFF OMITTED] T6131.081 [GRAPHIC] [TIFF OMITTED] T6131.082 [GRAPHIC] [TIFF OMITTED] T6131.083 [GRAPHIC] [TIFF OMITTED] T6131.084 [GRAPHIC] [TIFF OMITTED] T6131.085 [GRAPHIC] [TIFF OMITTED] T6131.086 [GRAPHIC] [TIFF OMITTED] T6131.087 [GRAPHIC] [TIFF OMITTED] T6131.088 [GRAPHIC] [TIFF OMITTED] T6131.089 [GRAPHIC] [TIFF OMITTED] T6131.090 [GRAPHIC] [TIFF OMITTED] T6131.091 [GRAPHIC] [TIFF OMITTED] T6131.092 [GRAPHIC] [TIFF OMITTED] T6131.093 [GRAPHIC] [TIFF OMITTED] T6131.094 [GRAPHIC] [TIFF OMITTED] T6131.095 [GRAPHIC] [TIFF OMITTED] T6131.096 [GRAPHIC] [TIFF OMITTED] T6131.097 [GRAPHIC] [TIFF OMITTED] T6131.098 [GRAPHIC] [TIFF OMITTED] T6131.099 [GRAPHIC] [TIFF OMITTED] T6131.100 [GRAPHIC] [TIFF OMITTED] T6131.101 [GRAPHIC] [TIFF OMITTED] T6131.102 [GRAPHIC] [TIFF OMITTED] T6131.103 [GRAPHIC] [TIFF OMITTED] T6131.104 STATEMENT OF KEVIN McNULTY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY Mr. McNulty. Thank you. With me today are, of course, first and foremost, my family members. My wife, we will be married 25 years in June, is back there; and next to her, my daughter, Tess, who's a junior at Yale and is giving up part of her spring vacation to be here today. Senator Klobuchar. What a sacrifice. Mr. McNulty. Yes, indeed. I would also like to acknowledge my dear friends who have taken time out of their busy lives to come down here today. Just in order of seating, behind me is James Zazzali, formerly chief justice of New Jersey Supreme Court. Next to him is one of the lions of the New Jersey bar, Michael Griffinger. And behind them is Paul Weissman, a dear old friend and also an attorney with one of the pharmaceutical firms in New Jersey. I'd also like to acknowledge Judge John Gibbons, who could not be here today, but I know is watching on the Webcast. Having said that, I would like to thank the President for forwarding my nomination, and my two home State Senators, Senator Lautenberg and Senator Menendez, and Senator Menendez especially for his kind words at the beginning of this process. And I almost forgot, of course, my son, Jake, who could not be here today, is also on the Webcast. He's in England, and so was a little too far away to make it. Thank you. Senator Klobuchar. Very, very good. Welcome, everyone. Thank you for being here. Judge Shipp. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6131.105 [GRAPHIC] [TIFF OMITTED] T6131.106 [GRAPHIC] [TIFF OMITTED] T6131.107 [GRAPHIC] [TIFF OMITTED] T6131.108 [GRAPHIC] [TIFF OMITTED] T6131.109 [GRAPHIC] [TIFF OMITTED] T6131.110 [GRAPHIC] [TIFF OMITTED] T6131.111 [GRAPHIC] [TIFF OMITTED] T6131.112 [GRAPHIC] [TIFF OMITTED] T6131.113 [GRAPHIC] [TIFF OMITTED] T6131.114 [GRAPHIC] [TIFF OMITTED] T6131.115 [GRAPHIC] [TIFF OMITTED] T6131.116 [GRAPHIC] [TIFF OMITTED] T6131.117 [GRAPHIC] [TIFF OMITTED] T6131.118 [GRAPHIC] [TIFF OMITTED] T6131.119 [GRAPHIC] [TIFF OMITTED] T6131.120 [GRAPHIC] [TIFF OMITTED] T6131.121 [GRAPHIC] [TIFF OMITTED] T6131.122 [GRAPHIC] [TIFF OMITTED] T6131.123 [GRAPHIC] [TIFF OMITTED] T6131.124 [GRAPHIC] [TIFF OMITTED] T6131.125 [GRAPHIC] [TIFF OMITTED] T6131.126 [GRAPHIC] [TIFF OMITTED] T6131.127 [GRAPHIC] [TIFF OMITTED] T6131.128 [GRAPHIC] [TIFF OMITTED] T6131.129 [GRAPHIC] [TIFF OMITTED] T6131.130 [GRAPHIC] [TIFF OMITTED] T6131.131 [GRAPHIC] [TIFF OMITTED] T6131.132 [GRAPHIC] [TIFF OMITTED] T6131.133 [GRAPHIC] [TIFF OMITTED] T6131.134 [GRAPHIC] [TIFF OMITTED] T6131.135 [GRAPHIC] [TIFF OMITTED] T6131.136 [GRAPHIC] [TIFF OMITTED] T6131.137 [GRAPHIC] [TIFF OMITTED] T6131.138 [GRAPHIC] [TIFF OMITTED] T6131.139 STATEMENT OF MICHAEL A. SHIPP, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY Mr. Shipp. Thank you. Senator Klobuchar. Judge Shipp, is that your son that was sitting next to you over there? Mr. Shipp. That's my youngest son. Senator Klobuchar. I especially enjoyed when Senator Menendez was going through glowing references to your biography and your son looked very bored and put his head on your shoulder. [Laughter.] Senator Klobuchar. Good thing that maybe not everyone captured on the Webcast, but I saw it. Mr. Shipp. Thank you so much, Senator Klobuchar. I would like to thank the panel for conducting this hearing here today. I also would like to thank President Obama for nominating me for this position. I would like to thank my hometown Senators, Senator Lautenberg and Senator Menendez. Along with me today I have here my three sons; my oldest son, Miles, age 13; Marcus, age 11; and, my youngest son, who you referenced already, Mason, age 9. The three of them are also sacrificing by missing school for a couple of days to be here. They, too, are obligated to take pictures and to write a paper. I also have my mother, Ida, here from North Carolina. My brother, Marcel, who I would like to specifically thank. He flew in all night on a redeye from Arizona to be here. My sister, Pamela Shipp-Jackson, and her husband, James, as well as their daughter, Jasmine, are here. My aunt, Doris Fox, from Stanford, North Carolina, is here. My brother-in-law, Al Bess, from Loudoun County, Virginia is here. And my good friend, Raquel Straud and Anthony Thomas are here. And I'm also very delighted to be joined by an incredibly talented group of young lawyers who have worked with me over the past 5 years and served as my law clerks and courtroom deputy, and they are here with me, as well, today. Not physically here, but here with me always, my late father, the Cleon Shipp, and one of my best friends, the late Will Haines. And then, finally, watching live, we have a host of friends back at the district court of New Jersey watching it live via the Webcast. Thank you. Senator Klobuchar. Very, very good. Thank you, Judge Shipp. Judge Rose. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6131.140 [GRAPHIC] [TIFF OMITTED] T6131.141 [GRAPHIC] [TIFF OMITTED] T6131.142 [GRAPHIC] [TIFF OMITTED] T6131.143 [GRAPHIC] [TIFF OMITTED] T6131.144 [GRAPHIC] [TIFF OMITTED] T6131.145 [GRAPHIC] [TIFF OMITTED] T6131.146 [GRAPHIC] [TIFF OMITTED] T6131.147 [GRAPHIC] [TIFF OMITTED] T6131.148 [GRAPHIC] [TIFF OMITTED] T6131.149 [GRAPHIC] [TIFF OMITTED] T6131.150 [GRAPHIC] [TIFF OMITTED] T6131.151 [GRAPHIC] [TIFF OMITTED] T6131.152 [GRAPHIC] [TIFF OMITTED] T6131.153 [GRAPHIC] [TIFF OMITTED] T6131.154 [GRAPHIC] [TIFF OMITTED] T6131.155 [GRAPHIC] [TIFF OMITTED] T6131.156 [GRAPHIC] [TIFF OMITTED] T6131.157 [GRAPHIC] [TIFF OMITTED] T6131.158 [GRAPHIC] [TIFF OMITTED] T6131.159 [GRAPHIC] [TIFF OMITTED] T6131.160 [GRAPHIC] [TIFF OMITTED] T6131.161 [GRAPHIC] [TIFF OMITTED] T6131.162 [GRAPHIC] [TIFF OMITTED] T6131.163 [GRAPHIC] [TIFF OMITTED] T6131.164 [GRAPHIC] [TIFF OMITTED] T6131.165 [GRAPHIC] [TIFF OMITTED] T6131.166 [GRAPHIC] [TIFF OMITTED] T6131.167 [GRAPHIC] [TIFF OMITTED] T6131.168 [GRAPHIC] [TIFF OMITTED] T6131.169 [GRAPHIC] [TIFF OMITTED] T6131.170 [GRAPHIC] [TIFF OMITTED] T6131.171 [GRAPHIC] [TIFF OMITTED] T6131.172 [GRAPHIC] [TIFF OMITTED] T6131.173 [GRAPHIC] [TIFF OMITTED] T6131.174 [GRAPHIC] [TIFF OMITTED] T6131.175 [GRAPHIC] [TIFF OMITTED] T6131.176 [GRAPHIC] [TIFF OMITTED] T6131.177 [GRAPHIC] [TIFF OMITTED] T6131.178 [GRAPHIC] [TIFF OMITTED] T6131.179 [GRAPHIC] [TIFF OMITTED] T6131.180 [GRAPHIC] [TIFF OMITTED] T6131.181 [GRAPHIC] [TIFF OMITTED] T6131.182 [GRAPHIC] [TIFF OMITTED] T6131.183 [GRAPHIC] [TIFF OMITTED] T6131.184 [GRAPHIC] [TIFF OMITTED] T6131.185 [GRAPHIC] [TIFF OMITTED] T6131.186 [GRAPHIC] [TIFF OMITTED] T6131.187 STATEMENT OF STEPHANIE MARIE ROSE, TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA Ms. Rose. Thank you. As with my fellow nominees, I offer my thanks to a number of people, including President Obama for the nomination, Senator Harkin for sending my name forward and for his enduring and seemingly boundless faith in me these last 3 years; Senator Grassley for his kind words today and his long- term support of my office and its work. Chairman Klobuchar, Senator Lee, Senator Grassley, Senator Franken, who are here and whose work on this committee is so important. I offer my thanks to my husband who is here with me today, our kids back in Iowa who are probably out of school and watching on a Webcast. My parents, I would note. I am sure my dad is wearing his lucky tie. My mom, my mother-in-law, my sisters; unknown and I'm sure a large number of people who are watching the Webcast that are friends, family, coworkers, judges, colleagues; and, then, a number of friends who traveled long distances and short distances to be here with me today in the audience. I offer all of them my gratitude for their help and making me the person I am and getting me to this place before you. And I look forward to any questions the Committee may have. Senator Klobuchar. Thank you very much. Senator Grassley will begin. Senator Grassley. You three on the left will not mind if I only ask questions of the Iowan. What I would like to do is--because you were involved in what was a fairly controversial case at one time, I think we need to get some things on the record. And just so you know that I am not trying to play ``catch you.'' I would like to read all the questions and then come back and read them and have you answer them one-by-one so you do not have to repeat yourself. This is in regard to the wholesale immigration prosecutions. At the time of the prosecutions, you were deputy chief, criminal division, U.S. Attorney's office. So I would like to have you describe your responsibilities and duties. Two, what was your specific role in the Postville case? Three, how much involvement did you have with each of the following: A, the planning of the raid; B, the pre-raid ratified plea agreements; and, C, the prosecution of cases? Four, who had ultimate decision-making authority within your office? What was the nature of main Justice's involvement with the various states of the Postville raid and criminal cases? Six, what was the specific crime the government charged the workers with? What were the specific crimes in the pre-ratified plea deal offered by the government? Reports indicate that all--this is eight--reports indicate that almost 400 individuals who were in the United States unlawfully were charged with crimes. Reports also seemed to indicate that about 300 of them pled guilty. A, could you please tell us what legal process those who did not plead guilty underwent? What was the conclusion of those who pled not guilty? And then nine and ten are in regard to living conditions. What government agency was responsible for treatment and care of the accused following the raid, and have you personally seen the accommodations? How would you describe them? Were they comparable to conditions found in Iowa detention facilities? So let me start over again. At the time of the prosecution, you were the deputy chief---- Senator Klobuchar. Thank you. Senator Grassley. At the time of the prosecution, you were deputy chief, criminal division, U.S. Attorney's office. Kind of give us a brief description of your responsibilities and duties in that position. Ms. Rose. Thank you, Senator Grassley. I think there is some misnomer to the term deputy criminal chief and it has caused a fair amount of confusion. What my role was largely to do back in 2008 and 2009, until I became U.S. attorney, was to handle and oversee the guns and drugs prosecutions being done on behalf of the northern district of Iowa. That meant that I generally mentored and supervised the drug attorneys in Cedar Rapids and those attorneys who were handling the violent crime cases. I was not the criminal chief. I was not the FOUS (ph) and I was not the U.S. attorney. Each one of those individuals were above me in the chain of command. At the time of the Postville operation, I was overseeing the supervision of law students, legal assistants, paralegals, SOUSES (ph), and criminal attorneys, all of whom were involved in drugs and gun prosecutions. Senator Grassley. Number two, what was your specific role in the Postville case? Ms. Rose. I was involved over a 2-week period when the operation was in Waterloo, Iowa. My job was to serve as a liaison between my office, the defense attorneys, the court, the probation office, the clerk's office, the marshals, and the agents involved. That generally meant that I spent a lot of time on the phone. I had three phones at the time. I got my records back. On just one of those phones, I had 687 calls in a 12-day window, and the other two phones rang about as often. So I spent 24 hours a day onsite for the first 2 days. I was there all but may 4 hours to sleep on the third day. And during that time, I was literally running around ensuring that the hearings were covered, that the defense attorneys had the materials they needed, that they had access to their clients, that the probation office got what they needed, that our office was getting things moving through as soon as possible. And so my role was really as a key problem-solver during that raid. Senator Grassley. What involvement did you have with the planning of the raid? Ms. Rose. None. Senator Grassley. What involvement did you have with the pre-raid ratified plea agreements? Ms. Rose. None. Senator Grassley. What role did you have with the prosecution of the cases? Ms. Rose. To the extent it was going on when I was in Waterloo, I was there to make sure there were attorneys covering those hearings. We had four SOUSES (ph) brought in to assist with that. In the middle of one of the operations, I think we were in the middle of initial appearances, the chief judge became upset with two of the SOUSES (ph), didn't like how they were handling cases, asked that I be paged and come down and take over them myself. I immediately went to the courtroom, which was the ballroom of this facility, and I stayed throughout the rest of those hearings to ensure things were going smoothly. So to the extent that's part of the prosecution, I was involved in that way. After May 23, which was when we left Waterloo, I wasn't involved again in the prosecutions. Senator Grassley. Who had ultimate decision-making authority within your office? Ms. Rose. Within my office, the U.S. attorney at the time was Matt Dummermuth. I know much of this--and I don't know all the details because I wasn't involved in the planning, but much of the approvals were being done at the Department of Justice level and I don't know all of the people involved in those decisions. Senator Grassley. I think you touched on this next question. What was the nature of main Justice's involvement with various stages of the Postville raid and criminal cases? Ms. Rose. It's my understanding--and, again, I wasn't involved--that the planning took place from the fall of 2007 until the operation began in May 2008. I know there was daily and regular contact during parts of that time. Certainly, the major decisions about what charges to offer, what kinds of provisions were going to go into those plea agreements I understand were made with Department of Justice, either at their direction or with their blessing. This was an approved fast-track program and, as such, it had to have the endorsement of the Department of Justice. Senator Grassley. Number six, what was the specific crime the government charged the workers with? Ms. Rose. There were a handful, but the most predominant one was use of somebody else's Social Security card or use of somebody else's alien registration number. Senator Grassley. Seven, what was the specific crime in the pre-ratified plea deal offered by the government? Ms. Rose. It was those. There was, in fact, a matrix set up as part of the fast-track approved plea agreement, where, if certain facts were present, the plea offer would be X. If a different set of facts were present, the plea offer would be Y. There was very little--in fact, no, that I'm aware of, movement off of what had been pre-approved, other than to apply whatever the facts were to the particular plea agreement that fit that situation. Senator Grassley. Number eight, reports indicate that almost 400 individuals who were in the United States unlawfully were charged with crimes. Reports also seem to indicate that while 300 of them pled guilty, A, can you please tell us what legal process those who did not plead guilty underwent? Ms. Rose. There were a number of workers who were encountered at the site of Agri Processors who were released on humanitarian grounds. Any worker who identified that they were caring for minor children, when they were encountered at Agri Processors, if there was only one person--in other words, if we found a couple, one of the parents went off for further processing and one parent was turned loose to go home and care for the children. Those were put into ICE custody and I don't know all of the arrangements that happened with them. Those folks were not ultimately prosecuted by us. Three hundred and six were prosecuted through the operation in Waterloo. We had a number of people who made it to the operation site in Waterloo and then, for the first time, told us, ``OK, I really do have children.'' Those were immediately then released to go back home to care for those children. And then we had a handful of defendants who had initially identified themselves as adults whose paperwork with the company indicated they were adults, but during the course of the 3 days we were in Waterloo, advised that they were, in fact, minors. We immediately and I personally immediately went to the judge and had those particular people--the cases against them dismissed and they were moved into juvenile custody through ICE. Beyond that, I don't know what arrangements were made. Senator Grassley. B on eight was, what was the conclusion of those who pled not guilty? Ms. Rose. We had initial not guilty pleas, but all 306 who charged during those days did plead guilty. There was not a single trial held. Senator Grassley. Nine, which government agency was responsible for the treatment and care of the accused following the raid? Ms. Rose. A handful of them, ICE predominantly. But certainly those who came into U.S. Marshal custody, it would have been U.S. Marshal responsibility. Senator Grassley. Ten and final. Have you personally seen the accommodations? How would you describe them? Were they comparable to the conditions found in Iowa detention facilities? Ms. Rose. I did personally see them. As I said, I was onsite 24 hours a day for the first 2 days and then nearly 24 hours that third day. The restrooms that all of us had to use were in the facility where the defendants were being housed. And so I was in and out of that building over those 72 hours. Every person I saw had a cot, they had a blanket, they had clean clothing. They had meals catered by High V, which is a grocery store chain in Iowa. They had televisions, they had games. I never saw them playing the games, but they were sitting there. And so I don't know what all the conditions are at the prisons. I would guess there was more limited access to things like showers and things that were easier to provide in the jail setting. But during the 48 to 72 hours they were held in Waterloo, accommodations were everything you would and should expect. People were moved as soon as we could move them out of site in Waterloo and into the real or more permanent detention facilities, and I have every reason to believe they were treated well throughout the time they were in our custody. Senator Grassley. Thank you. Thank you, Madam Chair. Senator Klobuchar. Thank you very much, Senator Grassley. Senator Harkin has asked that I submit this on his behalf. It is a letter of support for Ms. Rose to Senator Harkin from a group of defense attorneys involved in the case that Senator Grassley just discussed with you, and it was submitted during Ms. Rose's confirmation as U.S. attorney for the northern district of Iowa. So without objection, I will include this in the record. [The biographical Information follows.] [GRAPHIC] [TIFF OMITTED] T6131.188 [GRAPHIC] [TIFF OMITTED] T6131.189 [GRAPHIC] [TIFF OMITTED] T6131.190 [GRAPHIC] [TIFF OMITTED] T6131.191 [GRAPHIC] [TIFF OMITTED] T6131.192 [GRAPHIC] [TIFF OMITTED] T6131.193 [GRAPHIC] [TIFF OMITTED] T6131.194 [GRAPHIC] [TIFF OMITTED] T6131.195 [GRAPHIC] [TIFF OMITTED] T6131.196 [GRAPHIC] [TIFF OMITTED] T6131.197 [GRAPHIC] [TIFF OMITTED] T6131.198 [GRAPHIC] [TIFF OMITTED] T6131.199 [GRAPHIC] [TIFF OMITTED] T6131.200 [GRAPHIC] [TIFF OMITTED] T6131.201 [GRAPHIC] [TIFF OMITTED] T6131.202 [GRAPHIC] [TIFF OMITTED] T6131.203 [GRAPHIC] [TIFF OMITTED] T6131.204 [GRAPHIC] [TIFF OMITTED] T6131.205 [GRAPHIC] [TIFF OMITTED] T6131.206 [GRAPHIC] [TIFF OMITTED] T6131.207 [GRAPHIC] [TIFF OMITTED] T6131.208 [GRAPHIC] [TIFF OMITTED] T6131.209 [GRAPHIC] [TIFF OMITTED] T6131.210 [GRAPHIC] [TIFF OMITTED] T6131.211 [GRAPHIC] [TIFF OMITTED] T6131.212 [GRAPHIC] [TIFF OMITTED] T6131.213 [GRAPHIC] [TIFF OMITTED] T6131.214 [GRAPHIC] [TIFF OMITTED] T6131.215 [GRAPHIC] [TIFF OMITTED] T6131.216 [GRAPHIC] [TIFF OMITTED] T6131.217 [GRAPHIC] [TIFF OMITTED] T6131.218 [GRAPHIC] [TIFF OMITTED] T6131.219 [GRAPHIC] [TIFF OMITTED] T6131.220 [GRAPHIC] [TIFF OMITTED] T6131.221 [GRAPHIC] [TIFF OMITTED] T6131.222 [GRAPHIC] [TIFF OMITTED] T6131.223 [GRAPHIC] [TIFF OMITTED] T6131.224 [GRAPHIC] [TIFF OMITTED] T6131.225 [GRAPHIC] [TIFF OMITTED] T6131.226 [GRAPHIC] [TIFF OMITTED] T6131.227 [GRAPHIC] [TIFF OMITTED] T6131.228 [GRAPHIC] [TIFF OMITTED] T6131.229 [GRAPHIC] [TIFF OMITTED] T6131.230 [The letter appears as a submission for the record.] Senator Klobuchar. I wanted to ask--I notice you are all former prosecutors. Is that right? Mr. Shipp. Not really. Senator Klobuchar. Thank you for answering that correctly under oath. But for those of you that are, that was my former job, and I just ask if you would discuss how that experience will affect your work. I am sure you will be fair, but how will that affect your experience, either the experience you have already had on the bench, for those of you that are judges, or your experience going forward. We will start with you, Judge Fowlkes. Mr. Fowlkes. Thank you, Senator. My experience--well, I've actually had experience on both sides. For a time, I was also assistant public defender. So I handled cases on both sides. I was a state prosecutor for about 10 years and in the United States Attorney's office for about 13 years. So I tried a large number of Federal jury trials as well as State trials, and I know my way around the courtroom. I'm very familiar with what goes on in a courtroom. That has really prepared me, the knowledge and experience that I have in court has prepared me, as well as my other community activities, to handle the responsibilities of a judge, I think, in a fair and competent manner. So my experience as a prosecutor has helped me handle the job of being a trial judge. Those things that I have learned, the experience, the work ethic I will carry forward with me, assuming I'm confirmed in this process. Senator Klobuchar. Very good. Mr. McNulty. Mr. McNulty. Yes. I, too, have been a Federal prosecutor and have, in private practice, seen the criminal practice from the other side, as well as civil practice, of course. Being a prosecutor exposes you to a lot of courtroom work, to a lot of courtroom issues, and is a valuable experience for that reason. Another valuable aspect, though, in terms of how it feels to be in a judiciary position is that when you're a prosecutor, you are an advocate, but not only an advocate. That is, it is impressed upon you, and rightly so, that you have to seek justice in each case and not just see what you can get away with in front of a judge. That is a valuable lesson to learn early in your career, and I think I learned it. Senator Klobuchar. Now, you had some. I mean, you were overseeing--should I go through it? It was pretty impressive. You managed five practice groups of the assistant attorney general, consumer fraud prosecution, insurance fraud prosecution, civil, securities fraud prosecution, professional boards prosecution. Mr. Shipp. All in a civil context. It was more managerial, if anything. I started off supervising directly the consumer fraud area and then expanded into those other areas. When I became counsel to the attorney general, it was supervisory again. But I think all those skills there I acquired at the State of New Jersey by heading up the State's efforts in consumer fraud, insurance fraud and all those areas. It was an incredibly large volume of work, and I think managing a docket on that size and that scale was a readily transferrable skill set when I came on board as a magistrate judge 5 years ago. And managing a large docket is a tremendous part of the work that a judge is called to do. And I think that understanding and prioritizing, as well as going through each case and being familiar with the necessary facts and the law, all of those skills I think were honed and born through my work on the prosecutorial side, civil, albeit, at the State of New Jersey. Senator Klobuchar. Very good. Thank you. Ms. Rose, I have 10 points I am going to ask you about. [Laughter.] Senator Klobuchar. That was meant in a really good-natured way. Ms. Rose. I agree with the things my fellow nominees have said. The interesting thing about being a prosecutor is your obligation is not only to ensure that the government side is covered, but that the defense attorneys are doing what they need to do to protect the rights of their clients; both for practical reasons, you don't want the 2255, but for reasons of fairness and constitutionality. So as a prosecutor, I'm used to looking at both sides to ensure that everything is being done to ensure a defendant's rights are protected and that the proceedings are fair. Senator Klobuchar. Right. I think we always called it ministers of justice. That's how we had to think of ourselves. Actually, we had one of your Supreme Court justices from Iowa, at the State level, testify in this room--Senator Lee was there and others--about televising U.S. Supreme Court hearings. Senator Grassley and I are both in favor of that, and I know that Justice Kagan, when she testified at her confirmation hearing, was in favor of that on the Supreme Court level. And I just wondered if you had any views on how that has gone in Iowa, not to take it out to whether you think it should happen on the Supreme Court level. Ms. Rose. Judges everywhere are facing a number of difficulties, budget and shortages being two of them. Certainly, our experience with the use of BTC equipment or even conference call equipment is that it's a very effective method to use in certain types of cases, where there's not going to be adversarial proceedings, for instance, a sentencing where everything is uncontested, a plea hearing where there aren't particularly thorny issues, provided the defense attorney and defendant are in the same place so that they can communicate confidentially and provided that the judge agrees. Senator Klobuchar. I have a lot of issues having it done at the trial court level or having it mandated in any way. I just think we might have a different thing with the Supreme Court that already releases audio tapes. Along those lines, I saw something in Minnesota 2 days ago and I was actually asked this question about the recusal standard for Federal judges. I had not been asked it before as a Senator. And I would just ask all of you, we will start with you, Ms. Rose, how do you interpret that standard? What types of cases do you plan to recuse yourself from? Ms. Rose. I know of none right now that I would need to step away from. But, certainly, if I am fortunate enough to be confirmed, the types of cases I would anticipate recusals being necessary and would be things that might involve threats against me or my family, against other members of the staff, cases that were transferred from northern district of Iowa where I'm the U.S. attorney now to southern district of Iowa because of conflicts. I would have to bounce those somewhere else, I guess. And then, certainly, any case that either had the actual conflict of interest or the appearance of a conflict of interest. Senator Klobuchar. Judge Shipp. Mr. Shipp. Mine is pretty easy. I've been doing this for a while and I would continue to abide by the same recusal standards that I've been abiding by for the last 5 years. Fortunately, by this point in my career, I don't have very many conflicts as a result of representation and that sort. But I've continued to abide by the current rules as to recusals. Senator Klobuchar. Very good. Mr. McNulty. Mr. McNulty. Under Section 455 of Title 28 of the U.S. Code and, also, judicial ethics standards, I would find myself, of course, recusing myself from any matter in which I had the slightest involvement, whether supervisory or personal, anything involving someone whose connection to me was close enough to give rise to even an appearance of possible favoritism. I don't anticipate too many problems from my vast financial holdings, the---- [Laughter.] Senator Klobuchar. I can relate. Mr. McNulty. There are a few and, of course, I would not engage in any case that would affect my personal finances in any way. Senator Klobuchar. Very good. Judge Fowlkes. Mr. Fowlkes. Basically, the same answers. I face those circumstances in court from time to time, the code of ethics that we have to follow, as well as case law and rules. And really the appearance of any impropriety, any conflicts must be considered and put openly on the record. And if there is even that appearance, then recusal may be in order. I've followed those rules before. I'll follow, obviously, the Federal standards and Federal rules, if confirmed. Senator Klobuchar. Very good. Just one last question. I think this relates to how people are feeling right now about their institutions and the government in general. As you know, there is a lot of distrust in politics and in people in leadership roles. And I just wonder whether assurances can you give to people that appear before you, if you receive the votes of the Senate, which I hope you all will, what assurances can you give that they will be treated fairly regardless of their political beliefs or whether they are rich, poor, defendant or plaintiff? Judge Fowlkes. Judge Fowlkes. Well, again, I've been ad just for about 5 years. Really the judge sets the standard in the court, how people are treated, with respect, professionalism and courtesy are the call of the day. Whether it is a defendant that is difficult, a juror, the counsel that are there, people in the audience, really the standards are set by the judge who is the model and sets the tone for what happens in court. All persons in my court have been treated fairly, with respect, and with courtesy. Obviously, that will continue, if I'm confirmed. Senator Klobuchar. Very good. Mr. McNulty. Mr. McNulty. I, as I mentioned, have been on both sides of a lot of those divides in terms of legal issues and have also worked successfully under both Democratic and Republican officials in my career, particularly my public service career. I regard it as a sacred trust that any judge should ensure, both the appearance and reality, that every party before that judge, win or lose, got a fair hearing for their point of view, and I would certainly try to comport myself in that way. Senator Klobuchar. Very good. Judge Shipp. Mr. Shipp. I would continue to treat all parties, litigants, jurors, court personnel with the same respect that I've always treated them with, and I believe that that courteous nature and that approachable demeanor allows everyone to leave the courtroom feeling that they've had an opportunity to be heard. And my goal is to make sure that they have confidence in the system, confidence that the court has been prepared, has read the materials submitted, and has properly evaluated the case being put before them, and that they feel like they received equal justice under the law. Senator Klobuchar. Thank you very much. Ms. Rose. Ms. Rose. I'm fortunate to be last here. I agree with everything my fellow nominees have said. Senator Klobuchar. I am sure we could ask you some more questions. Ms. Rose. Sure. Senator Klobuchar. All right. Well, very good. This has been an informative hearing. I hope it is--I thought that was another Senator coming in to ask questions. You all looked very concerned up there. [Laughter.] Senator Klobuchar. It has gone very well, and I think we had four Senators here, which is good for one of these hearings, and certainly even more than that that were here on your behalf. So I want to thank you for all of your answers and also for your family. Your son has done very well on the front row. I think he has not moved since I called him out. I point that out. I know that we have some students out there that we will talk to. Right? So you can get your--I can sign something that you were really here. And I just want to thank everyone for being here. We will keep the record open for 1 week. And with that, this hearing is adjourned. Have a great day. [Whereupon, at 4:20 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follows.] [GRAPHIC] [TIFF OMITTED] T6131.231 [GRAPHIC] [TIFF OMITTED] T6131.232 [GRAPHIC] [TIFF OMITTED] T6131.233 [GRAPHIC] [TIFF OMITTED] T6131.234 [GRAPHIC] [TIFF OMITTED] T6131.235 [GRAPHIC] [TIFF OMITTED] T6131.236 [GRAPHIC] [TIFF OMITTED] T6131.237 [GRAPHIC] [TIFF OMITTED] T6131.238 [GRAPHIC] [TIFF OMITTED] T6131.239 [GRAPHIC] [TIFF OMITTED] T6131.240 [GRAPHIC] [TIFF OMITTED] T6131.241 [GRAPHIC] [TIFF OMITTED] T6131.242 [GRAPHIC] [TIFF OMITTED] T6131.243 [GRAPHIC] [TIFF OMITTED] T6131.244 [GRAPHIC] [TIFF OMITTED] T6131.245 [GRAPHIC] [TIFF OMITTED] T6131.246 [GRAPHIC] [TIFF OMITTED] T6131.247 [GRAPHIC] [TIFF OMITTED] T6131.248 [GRAPHIC] [TIFF OMITTED] T6131.249 [GRAPHIC] [TIFF OMITTED] T6131.250 [GRAPHIC] [TIFF OMITTED] T6131.251 [GRAPHIC] [TIFF OMITTED] T6131.252 [GRAPHIC] [TIFF OMITTED] T6131.253 [GRAPHIC] [TIFF OMITTED] T6131.254 [GRAPHIC] [TIFF OMITTED] T6131.255 [GRAPHIC] [TIFF OMITTED] T6131.256 [GRAPHIC] [TIFF OMITTED] T6131.257 [GRAPHIC] [TIFF OMITTED] T6131.258 [GRAPHIC] [TIFF OMITTED] T6131.259 [GRAPHIC] [TIFF OMITTED] T6131.260 [GRAPHIC] [TIFF OMITTED] T6131.261 [GRAPHIC] [TIFF OMITTED] T6131.262 [GRAPHIC] [TIFF OMITTED] T6131.263 [GRAPHIC] [TIFF OMITTED] T6131.264 [GRAPHIC] [TIFF OMITTED] T6131.265 [GRAPHIC] [TIFF OMITTED] T6131.266 [GRAPHIC] [TIFF OMITTED] T6131.267 [GRAPHIC] [TIFF OMITTED] T6131.268 [GRAPHIC] [TIFF OMITTED] T6131.269 [GRAPHIC] [TIFF OMITTED] T6131.270 [GRAPHIC] [TIFF OMITTED] T6131.271 [GRAPHIC] [TIFF OMITTED] T6131.272 [GRAPHIC] [TIFF OMITTED] T6131.273 [GRAPHIC] [TIFF OMITTED] T6131.274 [GRAPHIC] [TIFF OMITTED] T6131.275 [GRAPHIC] [TIFF OMITTED] T6131.276 [GRAPHIC] [TIFF OMITTED] T6131.277 [GRAPHIC] [TIFF OMITTED] T6131.278 [GRAPHIC] [TIFF OMITTED] T6131.279 [GRAPHIC] [TIFF OMITTED] T6131.280 [GRAPHIC] [TIFF OMITTED] T6131.281 [GRAPHIC] [TIFF OMITTED] T6131.282 [GRAPHIC] [TIFF OMITTED] T6131.283 [GRAPHIC] [TIFF OMITTED] T6131.284 [GRAPHIC] [TIFF OMITTED] T6131.285 [GRAPHIC] [TIFF OMITTED] T6131.286 [GRAPHIC] [TIFF OMITTED] T6131.287 NOMINATION OF MICHAEL P. SHEA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT; GONZALO P. CURIEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; ROBERT J. SHELBY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF UTAH ---------- WEDNESDAY, MARCH 28, 2012 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, pursuant to notice, at 3:07 p.m., Room SD-226, Dirksen Senate Office Building, Hon. Richard Blumenthal presiding. Present: Senators Grassley and Lee. OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF CONNECTICUT Senator Blumenthal. I am very pleased. Good afternoon. I'm honored to preside at this meeting of the Senate Judiciary Committee, and I want to call this nominations hearing to order. I'm grateful to the committee chairman, Senator Patrick Leahy, for asking me to chair it, and particularly glad to do my part in advancing the judicial nomination process, which has been so important to our country. We need to move forward even more expeditiously than we have, and I think there is a growing sense, a bipartisan spirit of cooperation, thanks in no small part to Senator Grassley, the Ranking Member, who is here today and I want to thank him for his part in doing so. Nearly 1 out of every 10 Federal judgeships is vacant, and Republicans and Democrats, frankly, are working harder, and should work harder, to do more to fill those positions. Having said that, I'd like to call on Senator Grassley to say whatever he might wish to do in opening the hearing. STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Yes. Later on this hour Senator Lee is going to be here and take over as ranking position so I can go do other things, but until he comes I am going to be here, because that is my responsibility, and I take that opportunity to welcome the nominees who are appearing before us today, and of course their family and friends who are very proud of them for their selection by the President. I note that we're making good progress on judicial nominations. Including this very day, we have been in session for 35 days this year. We have had five nomination hearings. This is an average of one hearing every seven of those days. This year we have heard from 20 nominees and I consider this excellent progress. So, I welcome our nominees today and I put the rest of my statement in the record. The rest of the statement is things that you are going to hear about each of them anyway because it is their biography and their qualifications for the Presidential appointment. Thank you, Mr. Chairman. Senator Blumenthal. Thank you. [The prepared statement of Senator Grassley appears as a submission for the record.] Senator Blumenthal. Our first nominee to be welcomed today is Michael Shea. He happens to be from the State of Connecticut. I want to call on Senator Lieberman to introduce him to the committee. PRESENTATION OF MICHAEL P. SHEA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT, BY HON. JOE LIEBERMAN, A U.S. SENATOR FROM THE STATE OF CONNECTICUT Senator Lieberman. Thank you, Mr. Chairman, Senator Grassley. It's an honor to be before you to introduce Michael Shea to the committee as the president's nominee to be the U.S. District Judge for the District of Connecticut. You'll forgive me if, on a point of personal privilege, I say that I have a tendency this year--which my colleagues I hope will understand--to view everything not only in the moment, but retrospectively as I go through my final year of privilege of serving in the Senate. I know it's often said of presidents that in some ways the most important decisions they make are the people they put on the Federal bench, particularly the Supreme Court, because they go on and serve long after them. To some extent I think we might say that of our own service as Senators, to the extent particularly with regard to the District Court, where Senators tend to have more influence in the selection than in the Circuit Court. This is a very important responsibility that we have. As I look back over these 24 years, over the first part of it of course with Senator Dodd, and now with Senator Blumenthal, I'm grateful for the opportunities we've had, and frankly proud of the people that we've brought to service on the District Court of Connecticut. It's a strong, distinguished, and quite diverse group. And so it is with this nominee, Michael Shea. Senator Blumenthal and I took this responsibility seriously. We brought together an advisory committee. It was actually a committee that mostly, but we added some that had performed a similar function for Senator Dodd and me. We had over 20 very serious candidates applying. They were interviewed, their records were reviewed. This nominee is really a merit selection, which is to say that he ranked right at the top based on the rankings of the group of people we had on the advisory committee. It's with that sense of background and confidence that I'm very proud to introduce him to you. Michael Shea is from West Hartford, Connecticut. He's a graduate of Amherst College and Yale Law School, which the chairman and I will not hold against him, shall we say, speaking diplomatically. Since his graduation from law school he's served as a clerk for the Honorable James Buckley of the U.S. Court of Appeals for the District of Columbia, who sent a really obviously sincere letter of recommendation on Mr. Shea's behalf, which meant a lot to me. He worked as an associate in anti-trust law, both here in Washington and for a while in Belgium. I gather he imported somewhat from Belgium, to the great benefit of the country and our country, his family, which is to say his lovely wife. He is currently--and has been for quite a while--a partner in the Hartford law firm of Day Pitney. As such, he's argued in State and Federal courts across a range of civil and criminal cases and is highly regarded in the State for his extensive writing on legal matters. He's also been active in public service organizations, such as the Nutmeg Big Brothers and Big Sisters, and serves as treasurer of the Connecticut Supreme Court Historical Society. He's been involved in some pro bono legal matters, representing indigent criminal defendants. In the particular case that earned him recognition from the Connecticut Bar Association, he protected a young mother from having to return her children to an abusive father who happened to have been abroad. So bottom line, Michael Shea is exceptionally well qualified, in my opinion, to serve on the Federal bench. I don't want to end my introduction without expressing gratitude to President Obama for having nominated him for this position, and I proudly introduce him to the committee with great confidence that, if confirmed--and I hope when confirmed--he will be an outstanding member of the District Court and that our country and our system of justice will benefit from his service. Thank you very much, Mr. Chairman, Senator Grassley, Senator Lee. Senator Blumenthal. Thank you, Senator Lieberman. I should say to everyone in attendance that Senator Lieberman, I understand, may have other commitments and he may have to leave before we finish this proceeding. I want to add to that introduction just briefly to say that Mr. Shea is a Hartford native, attended Amherst College before Yale Law School, and graduated summa cum laude from that excellent school. I know that he has been extraordinarily highly regarded in his work as a lawyer. I know personally because I worked with him as Attorney General, served with him in a number of those pro bono groups, but also worked with him when he represented, for example, the Roman Catholic diocese of Bridgeport in a number of matters, and also St. Francis Hospital and Medical Center. So, he comes to this process with a lot of really practical, hands-on experience and I would say to him and all the nominees and to their families, there is nothing more important than this job in our justice system. You will be the voice and face of justice for the people who come to your courtroom, as one who has practiced for a few decades and been in those courtrooms. As Senator Lieberman knows also from his personal experience, people will be coming to you for justice, and for many of them you will be the final word in this process. So, both you and your families should be very, very proud of the service that you've given and the service that you will give, and I'm hopeful that we will move quickly to confirm every one of you. PRESENTATION OF GONZALO P. CURIEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT BY HON. RICHARD BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF CONNECTICUT I want to introduce now Judge Gonzalo Curiel, who also has been nominated to the United States District Court for the Southern District of California. I'm going to be introducing you because the two Senators from California could not be here. I know he's joined today by his family, as is Mr. Shea. He was born in East Chicago, Indiana. He's the son of immigrant parents from Mexico, who came to this country with an elementary school education. He attended college in-state at the University of Indiana, graduated in 1976, and received his J.D. degree from the university 3 years later. After graduating from law school, Judge Curiel worked for a decade as an associate in private practice, and he then spent 17 years as a Federal prosecutor in California. During his 27 years in practice he tried over 300 cases, the vast majority of them Federal criminal jury trials where he served as the sole or lead counsel. That's extraordinary experience. One of the most significant cases involved the successful prosecution of the Arellano Felix drug cartel, a multi-billion dollar drug trafficking ring responsible for more than 100 murders in the United States and Mexico. He was also the lead attorney on the Presidential Organized Crime Drug Enforcement Task Force in 1999 to 2002. Governor Schwarzenegger appointed Judge Curiel to the Superior Court of San Diego in November, 2006, and he was reelected to that position in 2008. During his tenure he has been exposed to a wide variety of cases, assigned to domestic violence, criminal cases, family court cases, civil cases, presiding over more than 40 that have gone to verdict or judgment. He's also spent time giving back to his community. He serves as vice president of the board of trustees of the Urban Discovery Academy Charter School, and from 2003 to 2006 he participated in the Legal Enrichment and Decision-Making--it's called the LEAD program--organized by the Los Angeles District Attorney's Office. He comes to us, in short, as a nominee with impressive-- indeed, extraordinary--record of experience, public service, and I look forward to his swift confirmation. As Senator Lieberman did with Mr. Shea, I want to join in thanking President Obama for his nomination and for the nomination of Robert Shelby, who will be introduced to this committee by Senator Lee. PRESENTATION OF ROBERT J. SHELBY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF UTAH BY HON. MIKE LEE, A U.S. SENATOR FROM THE STATE OF UTAH Senator Lee. Thank you very much, Mr. Chairman, and thanks to all of you for joining us today. It's my pleasure to say a few words in support of the nomination of Robert Shelby to be a Federal District Court judge in the State of Utah. Mr. Shelby is a preeminently qualified lawyer and he has a distinguished career of service, both within and outside of the legal profession. Mr. Shelby graduated from Utah State University and earned a law degree from the University of Virginia. He served for nearly a decade in the Utah Army National Guard, the 19th Special Forces Group, 1457th Combat Engineer Battalion. At various times during his service Mr. Shelby entered active duty, including during Operation Desert Storm in 1991, during which he served in Germany as combat engineer. In recognition of his service, Mr. Shelby received a number of military awards, including the United States Army Achievement Medal for Desert Storm and the National Defense Service Medal, and he was honorably discharged with the rank of Specialist 4th Class, E4. After law school, Mr. Shelby served as a law clerk for the Honorable J. Thomas Green of the U.S. District Court for the District of Utah, the very same court for which he's now been nominated to serve. His legal practice has included a wide range of both civil and criminal litigation, including white collar and criminal defense and catastrophic personal injury, and complex commercial litigation. He's an accomplished litigator and one who has tried about 35 cases to verdict. He has experience before Federal, State, and appellate courts. In recognition of his distinguished status as an exception litigator, Mr. Shelby has received a number of awards and honors, including being named an Up and Coming Litigator by Chambers & Partners, and also including the coveted AV Preeminent rating from Martindale Hubble. Over the course of his career Mr. Shelby has worked with distinction to serve the bar and the bench. He's served on the Salt Lake County Bar Association's Executive Committee since 2002, and he's also served as its vice chairman since 2011. He's served on the David. K. Watkiss Southerland 2 American Inn of Courts since 1992, and also as its president from 2010 to 2011. That's significant in and of itself because I'm quite sure that that Inn of Court has the longest and most difficult- to-pronounce name of any Inn of Court in Utah, if not the entire intermountain west. He's also served on the Utah Supreme Court's Advisory Committee for Rules of Civil Procedure since 2010. I'm confident of Mr. Shelby's qualifications, his experience, and his judgment and I'm certain that those will serve our country's judiciary well. I ask for your full consideration of this very outstanding nominee from the President. Mr. Chairman, I'd also like to note that my friend and colleague, Senator Hatch, who was not able to be here with us today likewise supports Mr. Shelby's nomination, as I do, and I ask that his written statement be placed in the record. Senator Blumenthal. Hearing no objection, it is so ordered. [The prepared statement of Senator Hatch appears as a submission for the record.] Senator Blumenthal. I'd like to ask the nominees to now come forward and take your places at the witness table. We have a tradition. We have a rule that we swear our witnesses. So if you could please raise your right hand. [Whereupon, the witness was duly sworn.] Senator Blumenthal. Please be seated. Each of you is afforded the opportunity to make a brief opening statement. We'll hear first from Mr. Shea, then go to Mr. Curiel and Mr. Shelby. STATEMENT OF MICHAEL P. SHEA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT Mr. Shea. Thank you, Senator Blumenthal, and thank you, Senator Lee, for giving me the opportunity to speak to you today. I'd like to begin also by thanking Senator Leahy and Ranking Member Grassley for convening this hearing. I would like to thank Senator Lieberman for his generous remarks in introducing me, and also you again, Senator Blumenthal. I would also like to thank the President for the honor of this nomination. Briefly, I'd like to introduce the members of my family and some friends who are here today. With me today is my wife of 21 years, the love of my life, Frederique. Also with us today are our children, our twins Kevin and Lisa, age 16, and our daughter Annabelle, age 10. Also with me today are my friends from college, Stu and Jamie Rennert, and my friend and law partner, David Doot. Briefly, I'd like to just acknowledge some folks who may be watching on the webcast. First and foremost, my mother, whose 80th birthday we celebrated recently, and also my seven sisters: Susan, Kathleen, Margaret, Christina, Rosemary, Maura, and Julie. I'd also like to acknowledge briefly someone who's no longer with us, my father, in whose footsteps as a judge I am hoping to follow. Finally, I'd like to acknowledge my friends and colleagues at Day Pitney who are watching on the webcast as well. Thank you very much. I'd be happy to answer any questions that you may have. Senator Blumenthal. We're going to go now to Judge Curiel. I just want to wish Mrs. Shea a very happy birthday, a happy 80th birthday. I was actually remiss. I should have mentioned that I appeared before your father, who was an extraordinarily distinguished member of our Bar and our court in the State of Connecticut. Mr. Shea. Thank you, Senator. Senator Blumenthal. So, thank you for reminding me about that fact. Judge. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6131.288 [GRAPHIC] [TIFF OMITTED] T6131.289 [GRAPHIC] [TIFF OMITTED] T6131.290 [GRAPHIC] [TIFF OMITTED] T6131.291 [GRAPHIC] [TIFF OMITTED] T6131.292 [GRAPHIC] [TIFF OMITTED] T6131.293 [GRAPHIC] [TIFF OMITTED] T6131.294 [GRAPHIC] [TIFF OMITTED] T6131.295 [GRAPHIC] [TIFF OMITTED] T6131.296 [GRAPHIC] [TIFF OMITTED] T6131.297 [GRAPHIC] [TIFF OMITTED] T6131.298 [GRAPHIC] [TIFF OMITTED] T6131.299 [GRAPHIC] [TIFF OMITTED] T6131.300 [GRAPHIC] [TIFF OMITTED] T6131.301 [GRAPHIC] [TIFF OMITTED] T6131.302 [GRAPHIC] [TIFF OMITTED] T6131.303 [GRAPHIC] [TIFF OMITTED] T6131.304 [GRAPHIC] [TIFF OMITTED] T6131.305 [GRAPHIC] [TIFF OMITTED] T6131.306 [GRAPHIC] [TIFF OMITTED] T6131.307 [GRAPHIC] [TIFF OMITTED] T6131.308 [GRAPHIC] [TIFF OMITTED] T6131.309 [GRAPHIC] [TIFF OMITTED] T6131.310 [GRAPHIC] [TIFF OMITTED] T6131.311 [GRAPHIC] [TIFF OMITTED] T6131.312 [GRAPHIC] [TIFF OMITTED] T6131.313 [GRAPHIC] [TIFF OMITTED] T6131.314 [GRAPHIC] [TIFF OMITTED] T6131.315 [GRAPHIC] [TIFF OMITTED] T6131.316 [GRAPHIC] [TIFF OMITTED] T6131.317 [GRAPHIC] [TIFF OMITTED] T6131.318 [GRAPHIC] [TIFF OMITTED] T6131.319 [GRAPHIC] [TIFF OMITTED] T6131.320 [GRAPHIC] [TIFF OMITTED] T6131.321 [GRAPHIC] [TIFF OMITTED] T6131.322 [GRAPHIC] [TIFF OMITTED] T6131.323 [GRAPHIC] [TIFF OMITTED] T6131.324 [GRAPHIC] [TIFF OMITTED] T6131.325 [GRAPHIC] [TIFF OMITTED] T6131.326 [GRAPHIC] [TIFF OMITTED] T6131.327 [GRAPHIC] [TIFF OMITTED] T6131.328 [GRAPHIC] [TIFF OMITTED] T6131.329 STATEMENT OF GONZALO P. CURIEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA Judge Curiel. Thank you. Good afternoon. Senator Blumenthal, thank you for presiding over this hearing. Thank you for the Ranking Member; Senator Lee also for being present. Mostly I'd like to thank also President Obama for giving this honor to me, to my family. As I indicated previously, my parents came here from Mexico with a dream of providing their children opportunities and they've been able to do that with the opportunities that this country has to offer. I'd like to thank Senator Boxer and Senator Feinstein for their support, for the Advisory Committee that recommended my name to Senator Boxer to pass forward. I'd like to take the time to introduce my family that was able to come today: my wife Trisha and my daughter Natalie. Also, I'd like to acknowledge family members that weren't able to attend that were not able to travel here. That includes my brother in Indiana, Raul, my sister in Ohio, Maria, my father-in-law, Thomas Yamauchi, and a host of friends who are watching on the webcast. Thank you for this distinction, this honor. With that, I'll conclude. Senator Blumenthal. Mr. Shelby. I want to add my thanks to you for your service to our Nation as a member of the military, as well as in the life of--the civic life of your community and professional life. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6131.330 [GRAPHIC] [TIFF OMITTED] T6131.331 [GRAPHIC] [TIFF OMITTED] T6131.332 [GRAPHIC] [TIFF OMITTED] T6131.333 [GRAPHIC] [TIFF OMITTED] T6131.334 [GRAPHIC] [TIFF OMITTED] T6131.335 [GRAPHIC] [TIFF OMITTED] T6131.336 [GRAPHIC] [TIFF OMITTED] T6131.337 [GRAPHIC] [TIFF OMITTED] T6131.338 [GRAPHIC] [TIFF OMITTED] T6131.339 [GRAPHIC] [TIFF OMITTED] T6131.340 [GRAPHIC] [TIFF OMITTED] T6131.341 [GRAPHIC] [TIFF OMITTED] T6131.342 [GRAPHIC] [TIFF OMITTED] T6131.343 [GRAPHIC] [TIFF OMITTED] T6131.344 [GRAPHIC] [TIFF OMITTED] T6131.345 [GRAPHIC] [TIFF OMITTED] T6131.346 [GRAPHIC] [TIFF OMITTED] T6131.347 [GRAPHIC] [TIFF OMITTED] T6131.348 [GRAPHIC] [TIFF OMITTED] T6131.349 [GRAPHIC] [TIFF OMITTED] T6131.350 [GRAPHIC] [TIFF OMITTED] T6131.351 [GRAPHIC] [TIFF OMITTED] T6131.352 [GRAPHIC] [TIFF OMITTED] T6131.353 [GRAPHIC] [TIFF OMITTED] T6131.354 [GRAPHIC] [TIFF OMITTED] T6131.355 [GRAPHIC] [TIFF OMITTED] T6131.356 [GRAPHIC] [TIFF OMITTED] T6131.357 [GRAPHIC] [TIFF OMITTED] T6131.358 [GRAPHIC] [TIFF OMITTED] T6131.359 [GRAPHIC] [TIFF OMITTED] T6131.360 [GRAPHIC] [TIFF OMITTED] T6131.361 [GRAPHIC] [TIFF OMITTED] T6131.362 [GRAPHIC] [TIFF OMITTED] T6131.363 [GRAPHIC] [TIFF OMITTED] T6131.364 [GRAPHIC] [TIFF OMITTED] T6131.365 [GRAPHIC] [TIFF OMITTED] T6131.366 [GRAPHIC] [TIFF OMITTED] T6131.367 [GRAPHIC] [TIFF OMITTED] T6131.368 [GRAPHIC] [TIFF OMITTED] T6131.369 [GRAPHIC] [TIFF OMITTED] T6131.370 [GRAPHIC] [TIFF OMITTED] T6131.371 [GRAPHIC] [TIFF OMITTED] T6131.372 [GRAPHIC] [TIFF OMITTED] T6131.373 [GRAPHIC] [TIFF OMITTED] T6131.374 [GRAPHIC] [TIFF OMITTED] T6131.375 [GRAPHIC] [TIFF OMITTED] T6131.376 [GRAPHIC] [TIFF OMITTED] T6131.377 [GRAPHIC] [TIFF OMITTED] T6131.378 [GRAPHIC] [TIFF OMITTED] T6131.379 [GRAPHIC] [TIFF OMITTED] T6131.380 [GRAPHIC] [TIFF OMITTED] T6131.381 [GRAPHIC] [TIFF OMITTED] T6131.382 [GRAPHIC] [TIFF OMITTED] T6131.383 [GRAPHIC] [TIFF OMITTED] T6131.384 STATEMENT OF ROBERT J. SHELBY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF UTAH Mr. Shelby. That's very kind of you, Senator. Thank you. Good afternoon. In lieu of formal statement this afternoon I'd like to take just a moment and thank the President for the honor of this nomination. I'd also like to thank Senator Hatch for recommending me to the President and for the support he and his staff have shown to me throughout this process. Senator Lee, also thank you to you and your staff, who have been tremendous. We appreciate--I very much appreciate you supporting my nomination and the support that your staff has-- has shown to me. Also, thank you very much for those kind words this afternoon. I'd like to thank all of the members of the committee for their consideration. Finally, I'd like to thank the members of the District Court at home in Utah, the judges and their staffs, the Clerk of Court and his staff. Everyone has really just been terrific and very supportive of this nomination, and that's particularly true of our chief judge, Ted Stewart, and the newest member of our District Court bench, David Nufer. Judge Nufer was elevated by the Senate with his confirmation hearing last week. I, too, have some family members with me, some special guests, and am honored to introduce them today. My college sweetheart and wife of almost 20 years, Angela, is here, as are our children: my 8-year-old daughter Amelia and my 6-year-old son George. Also with us today is my dear, dear friend, my law partner and my colleague, Juli Blanch. My parents are unable to be here today, but George and Marla are at home watching on the webcast, along with many other friends and colleagues. Senators, I'm honored and humbled to be here this afternoon and I look forward to answering any questions you may have. [The biographical information follows.] [GRAPHIC] [TIFF OMITTED] T6131.385 [GRAPHIC] [TIFF OMITTED] T6131.386 [GRAPHIC] [TIFF OMITTED] T6131.387 [GRAPHIC] [TIFF OMITTED] T6131.388 [GRAPHIC] [TIFF OMITTED] T6131.389 [GRAPHIC] [TIFF OMITTED] T6131.390 [GRAPHIC] [TIFF OMITTED] T6131.391 [GRAPHIC] [TIFF OMITTED] T6131.392 [GRAPHIC] [TIFF OMITTED] T6131.393 [GRAPHIC] [TIFF OMITTED] T6131.394 [GRAPHIC] [TIFF OMITTED] T6131.395 [GRAPHIC] [TIFF OMITTED] T6131.396 [GRAPHIC] [TIFF OMITTED] T6131.397 [GRAPHIC] [TIFF OMITTED] T6131.398 [GRAPHIC] [TIFF OMITTED] T6131.399 [GRAPHIC] [TIFF OMITTED] T6131.400 [GRAPHIC] [TIFF OMITTED] T6131.401 [GRAPHIC] [TIFF OMITTED] T6131.402 [GRAPHIC] [TIFF OMITTED] T6131.403 [GRAPHIC] [TIFF OMITTED] T6131.404 [GRAPHIC] [TIFF OMITTED] T6131.405 [GRAPHIC] [TIFF OMITTED] T6131.406 [GRAPHIC] [TIFF OMITTED] T6131.407 [GRAPHIC] [TIFF OMITTED] T6131.408 [GRAPHIC] [TIFF OMITTED] T6131.409 [GRAPHIC] [TIFF OMITTED] T6131.410 [GRAPHIC] [TIFF OMITTED] T6131.411 [GRAPHIC] [TIFF OMITTED] T6131.412 [GRAPHIC] [TIFF OMITTED] T6131.413 [GRAPHIC] [TIFF OMITTED] T6131.414 [GRAPHIC] [TIFF OMITTED] T6131.415 [GRAPHIC] [TIFF OMITTED] T6131.416 [GRAPHIC] [TIFF OMITTED] T6131.417 [GRAPHIC] [TIFF OMITTED] T6131.418 [GRAPHIC] [TIFF OMITTED] T6131.419 [GRAPHIC] [TIFF OMITTED] T6131.420 [GRAPHIC] [TIFF OMITTED] T6131.421 Senator Blumenthal. Thank you to each of you. I have just a few questions. You should understand that the brevity of our questions is sometimes a very good thing, not a bad thing, because it may indicate--I don't want to speak for anyone else on the panel who's here now or who may come--that we're satisfied about your qualifications. But let me just begin. Mr. Shea, you've had a lot of experience as a lawyer in litigation. Maybe you could say for the record how you think that experience will help you as a member of the court. Mr. Shea. Sure. Senator Blumenthal. Or will help you, if you are confirmed as a member of the court. Mr. Shea. Sure, Senator. Thank you. I've been fortunate in my career to have worked on a wide variety of cases, cases both on the criminal side and on the civil side. And on the civil side, also a broad array, ranging from commercial cases to personal injury cases to civil rights cases and other types of cases. I think that the breadth of that litigation experience would serve me well as a District Court judge if I were fortunate enough to be confirmed, because of course judges too face a broad array of cases and must in many ways be generalists. So I think that background would serve me well, if I were confirmed. Senator Blumenthal. And Judge Curiel, let me ask you as someone who has served as a judge, whether you--how you see the role of a district judge versus the appellate court, and whether you would have any trouble following the rulings of the Federal appellate court, the 9th Circuit in the case of your U.S. District court, if you are confirmed. Judge Curiel. Well, as a trial judge I recognize that I'm not there to make the law, I'm not there to interpret the law, I'm there to follow the law as established by the precedent of our Supreme Court. The Court of Appeals in the State of California, if I became a District Court--if I was that fortunate, I would then be bound by the opinions of the 9th Circuit and the U.S. Supreme Court. I've done that in terms of following precedent in my present position, and I would be in a position to continue to do that, Senator. Senator Blumenthal. And Mr. Shelby, if I may ask you how your involvement, both in the military and in civic life of your community, and also your service in private practice would affect your philosophy of judging as well as your qualifications when you have, as I expect you will be, the honor of serving in the U.S. District Court? Mr. Shelby. Well, thank you, Senator. I have a deep love of this country and it's part of what motivated me to join the military in the 1980's in a time when I think it wasn't particularly popular to do so. It's the same spirit that I bring with me into this endeavor. If I'm fortunate enough to be confirmed, I look forward to serving the citizens of the State of Utah. That experience would have no impact on my duties as a judge as I see it, except of course to work hard to make sure I can do the best job that I can. As I see it, the role of a trial court is to decide only those cases and issues before the court based on the factual record developed, and while demonstrating a strict adherence and fidelity to the rule of law. That's exactly how I would intend to operate, if I'm fortunate enough to be confirmed. Senator Blumenthal. Thank you. That concludes my questions. Senator Lee. Senator Lee. Thank you, Mr. Chairman. Mr. Shea, you wrote an amicus brief that was submitted in connection with Kelo vs. City of New London a few years ago. In that brief you make a number of arguments about the need of municipal governments to be able to exercise their eminent domain powers. Much of your argument focused on the need to defer to legislative bodies. I just want to talk about sort of the limits on that. Is there risk inherent in deferring too much to a legislative body in connection with litigation involving the constitutionality of an act undertaken by a legislative body? Mr. Shea. Senator, with regard to determinations as to constitutionality of statutes, each statute carries with it a presumption of constitutionality and the burden rests on the party challenging the statute to establish that it is unconstitutional, if in fact that's what the claim is. In addition, of course, courts use the canon of Constitutional Avoidance in dealing with challenges-- constitutional challenges to statutes, by which I mean, of course, that if the statute is ambiguous then--and capable or susceptible reasonably of two interpretations, then it's the court's obligation to adopt an interpretation that would render the statute constitutional. But if the plain language of the statute contravenes the text of a constitutional provision as interpreted by the Supreme Court, or if I were confirmed the 2nd Circuit, then of course the duty of the District Court judge, or any judge, is in those circumstances to declare the statute unconstitutional. Senator Lee. Which one presents the greater threat of violence to the Constitution, excessively aggressive review of legislative bodies' power or inadequate review? I mean, is one worse than the other or are they both the same? Mr. Shea. Senator, I don't think--I think that U.S. Supreme Court precedent, 2nd Circuit precedent, set forth the standard for review of statutes, which I indicated involves a presumption of constitutionality. I don't think it would be appropriate for a judge to deviate either way with regard to the strength of that presumption. Senator Lee. Right. Mr. Shelby, you served under a great District Judge in Utah, Judge Green, who was loved by all who knew him, I think, and worked with him. Do you have a judicial role model other than Judge Green, who obviously is somebody whose friendship you cherish to this day? Do you have a judicial role model who has served on the Supreme Court, let's say, just to make it interesting? Somebody who's served in the last 100 years, but is not still alive? That way we avoid Chief Justice Marshall. Everyone will refer to Chief Justice Marshall if we allow you to go all the way back to the 1790's. Mr. Shelby. Well, you've stolen my thunder, Senator. [Laughter.] Mr. Shelby. You know, I really don't think I could identify a single justice. I have--I think the judges that I have--have most admired and respected have been those that I worked most closely with, either Judge Green of course in my clerkship, and other judges in Utah that I've seen and interacted with regularly, including Judge Winder, who I think you know well from your experience in Utah as well. Senator Lee. What is about, say, Judge Winder, who--what is it about his jurisprudential approach that you admire so much? Mr. Shelby. Well, I think--I think Chairman Blumenthal has it correct. I think that for most litigants, the trial court judge, in State court or in Federal court, is really the face of the judiciary. For the reason, I think it's imperative that a trial court judge conduct himself or herself at all times in a manner that inspires trust and confidence in the judicial system and in the judiciary. Of course, that was Judge Winder. He was eminently well-prepared. He was unbiased and impartial and respectful toward the parties and their lawyers, and rigorously adhered to the rule of law. I think that was apparent to everyone who went before him. So, litigants felt they had a full and fair opportunity to be heard and a judge who would hear them out. Senator Lee. Have you ever--have you ever heard people refer to the risk of ``trial by attrition'', referring to the tendency of trial court judges to avoid wherever possible the granting of a dispositive motion, recognizing that it's a lot easier to allow the case to move forward, perhaps to trial, perhaps to settlement, than it is to issue a lengthy summary judgment ruling or other dispositive motion ruling that has to be written, possibly published, inevitably challenged on appeal, and possibly reversed? Mr. Shelby. Well, I don't know that I've heard that phrase associated with that. As a practitioner, of course---- Senator Lee. It has a lot of names. Some people use much less flattering terminology. [Laughter.] Mr. Shelby. As a practitioner, of course, I've witnessed firsthand that some courts seem more inclined to grant summary judgment than others. If I have the good fortune of being confirmed I think I'll be guided exclusively by Rule 56 and the standard established therein, and the case law interpreting it. Senator Lee. That's a great answer. I wish we could explore that more. My time has expired. Maybe next time around. Mr. Shelby. Thank you, Senator. Senator Lee. The benevolent Chairman has given me a little bit more time. So is there--is there any way to identify which is worse? In other words, being too trigger happy on a Rule 12 B6 or a Rule 56, or something else, too happy to grant the Motion to Dismiss or for summary judgment, or too reluctant? Is one worse than the other? If so, why is one worse? Senator Blumenthal. You may regret his having taken more time. [Laughter.] Mr. Shelby. Thank you, Mr. Chairman. Senator Blumenthal. And you have a right to remain silent. [Laughter.] Mr. Shelby. Well, if that's true I think it'd be best if I invoked that. [Laughter.] Senator Blumenthal. Just kidding. Mr. Shelby. I don't know that I think one is better or worse than the other. I just think that a court is charged with applying the law as it's written and it's interpreted by the courts and the appellate courts above that trial court. I do think that, having represented parties, that granting summary judgment oftentimes enables the parties to better direct their conduct going forward rather than sort of waiting or hearing it out and putting off some resolution of those factual disputes--well, not the factual disputes, but the dispute in general--until the end of the litigation. It seems to me that many parties with whom I've worked can--can deal with a win or a loss. They just hope to get a ruling and then they can move forward. Senator Lee. That's great. Thank you very much. Thank you, Chairman. Senator Blumenthal. Thank you, Senator Lee. No other members of the panel have come, but I want to say to you and your families how much we appreciate your being here. This is an essential part of the process, and I'm particularly glad that you have brought your families. Thank your families because, if you have the honor to be confirmed as I hope you will be, you'll be spending a lot of time in the courthouse rather than at home, and even at home, a lot of time working rather than with your family. So I thank you and your families in advance, should you have that honor. With that, I will close this hearing and keep the record open for a week. Thank you, Senator Lee and Senator Grassley, for being here. This hearing is adjourned. Thank you. [Whereupon, at 3:40 p.m. the hearing was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHIC] [TIFF OMITTED] T6131.422 [GRAPHIC] [TIFF OMITTED] T6131.423 [GRAPHIC] [TIFF OMITTED] T6131.424 [GRAPHIC] [TIFF OMITTED] T6131.425 [GRAPHIC] [TIFF OMITTED] T6131.426 [GRAPHIC] [TIFF OMITTED] T6131.427 [GRAPHIC] [TIFF OMITTED] T6131.428 [GRAPHIC] [TIFF OMITTED] T6131.429 [GRAPHIC] [TIFF OMITTED] T6131.430 [GRAPHIC] [TIFF OMITTED] T6131.431 [GRAPHIC] [TIFF OMITTED] T6131.432 [GRAPHIC] [TIFF OMITTED] T6131.433 [GRAPHIC] [TIFF OMITTED] T6131.434 [GRAPHIC] [TIFF OMITTED] T6131.435 [GRAPHIC] [TIFF OMITTED] T6131.436 [GRAPHIC] [TIFF OMITTED] T6131.437 [GRAPHIC] [TIFF OMITTED] T6131.438 [GRAPHIC] [TIFF OMITTED] T6131.439 [GRAPHIC] [TIFF OMITTED] T6131.440 [GRAPHIC] [TIFF OMITTED] T6131.441 [GRAPHIC] [TIFF OMITTED] T6131.442 [GRAPHIC] [TIFF OMITTED] T6131.443 [GRAPHIC] [TIFF OMITTED] T6131.444 [GRAPHIC] [TIFF OMITTED] T6131.445 [GRAPHIC] [TIFF OMITTED] T6131.446 [GRAPHIC] [TIFF OMITTED] T6131.447 [GRAPHIC] [TIFF OMITTED] T6131.448 NOMINATIONS OF ROBERT E. BACHARACH, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE TENTH CIRCUIT; PAUL WILLIAM GRIMM, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND; JOHN E. DOWDELL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA; MARK E. WALKER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; AND, BRIAN J. DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA ---------- WEDNESDAY, MAY 9, 2012 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, pursuant to notice, at 2:30 p.m., Room SD-226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, presiding. Present: Senators Lee and Coburn. OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND Senator Whitehouse. This hearing will come to order. And I wish everyone good afternoon. Today we will consider five nominees to the Federal bench. Judge Robert E. Bacharach has been nominated to the U.S. Court of Appeals for the Tenth Circuit. Judge Paul William Grimm has been nominated to the U.S. District Court for the District of Maryland. John E. Dowdell has been nominated to the U.S. District Court for the Northern District of Oklahoma. Judge Mark E. Walker has been nominated to the U.S. District Court for the Northern District of Florida. And, Judge Brian J. Davis has been nominated to the U.S. District Court for the Middle District of Florida. I welcome each of the nominees and their families and friends to the U.S. Senate and to the Judiciary Committee. I also would like to welcome my colleagues who are here to introduce their home state nominees. Voting to confirm an individual to the Federal bench is one of the most important and lasting decisions that a Senator can make. Every day Federal judges make decisions that affect the lives of Americans in all walks of life. In doing so, judges must respect the role of Congress as representatives of the American people, decide cases based on the law and the facts, not prejudge any case, but listen to every party that comes before them, respect precedent, and limit themselves to the issues that the court must decide. I hope that each judicial nominee we hear from today understands the importance of those core principles. Judicial nominees also must have the requisite legal skill to serve as a Federal judge. Each of today's nominees has an impressive record of achievement. As a result, I believe that each nomination deserves prompt consideration. We need good judges in adequate number for our system of justice to function. In the interest of logistics, let me outline how the hearing will proceed. After the Ranking Member's remarks, home State Senators in attendance will, by almost order of seniority, introduce the nominees. We then will have two panels. The first will be Judge Bacharach, the circuit court nominee, and the second will be the four nominees for district court judgeships. Senators on the Committee will have 5-minute rounds in which to question each panel. I would like to have the Senators from the home States speak together. So I am going to jump the junior member to tail their senior member. So it will go Mikulski, Cardin, Inhofe, Coburn, and then Nelson, Rubio, if that is agreeable to everyone. With that, I turn to my Ranking Member, Senator Mike Lee. STATEMENT OF HON. MIKE LEE, A U.S. SENATOR FROM THE STATE OF UTAH Senator Lee. Thank you, Mr. Chairman. As we begin today, I would like to say just a brief word about some statements made in recent days by the White House and by some of my Democratic colleagues regarding judicial nominations. There has been some suggestion of record judicial vacancies resulting from unwarranted obstruction in the Senate by means of unprecedented delays and filibusters. Of course, none of this happens to be true. I would like to set the record straight. The reality is that judicial vacancies are down by 20 percent from last year and, in fact, they are at their lowest level in nearly 3 years. The vast majority of current vacancies remain for one reason--President Obama simply has not nominated individuals for those judgeships. With respect to the current 76 judicial vacancies in our Federal judicial system, the Obama Administration has made only 29 nominations. And I would note that a number of those nominations are so recent that the Judiciary Committee has yet to have even the chance of holding hearings. We are doing so today for five recent nominees. The Senate has already confirmed more than 80 percent of President Obama's judicial nominees, approving a larger share without a roll call vote than the Senate did under President Bush. To date, the Senate has confirmed 143 of President Obama's district and circuit court judges. That is significantly more judicial confirmations in the first 3 or so years of the Obama Administration than the 120 that this body confirmed during the previous years of President Bush's second term. And we continue, moreover, to confirm more as we move on. So far this year, we are well above the historical standards. The average number of confirmations by May 9 for a Presidential election year is 11. We have already confirmed 21 judges this year. That is almost double the normal pace. Finally, the suggestion of unprecedented filibusters is simply ridiculous. During President Bush's first 3 years, Senate Democrats forced 19 cloture votes on judicial nominees, 19 votes to filibuster judges. During President Obama's first 3 years, the Senate took only six such votes. We have treated President Obama's nominees better than the Democrats treated President Bush's nominees. For the White House or Senate Democrats to suggest otherwise is false and hypocritical. With that introduction, I welcome today's nominees and their families and look forward to a lively discussion with you today. Thank you. Senator Whitehouse. Suffice it to say that there are differing views with regard to the Minority Leader's point of view that, but I do not think this forum is the appropriate venue to continue that discussion. So I will yield now to Senator Mikulski, followed by Senator Cardin, to introduce the Maryland nominee, Paul William Grimm. PRESENTATION OF PAUL WILLIAM GRIMM, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND BY HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE STATE OF MARYLAND Senator Mikulski. Thank you very much, Senator Whitehouse, Senator Lee, Senator Coburn. It is with a great deal of enthusiasm and pride that I am here to both introduce really highly recommend Judge Paul Grimm to serve on the district court of Maryland, to nominate him for a seat to be soon vacated by Judge Benson Legg, a distinguished Federal jurist who has chosen to move to senior status. Mr. Chairman and colleagues, I take this honor to recommend people for the Federal judiciary, to both President Obama and to bring them to you, very seriously. I have four criteria. Our judicial nominee must have absolutely high personal integrity, must bring judicial competence and temperament, have a commitment to core constitutional principles, and a history of civic engagement in Maryland. I outline these standards because I believe that Judge Paul Grimm brings these standards to this job. He is, first of all, a person of incredible competence and temperament. The ABA has given him the highest rating by stating that he is unanimously well qualified. Judge Grimm has come to Maryland really by a route--he is not a native-born Maryland guy. He comes with a background in public service. His father was in the United States Military. He grew up outside of Maryland, but also went to law school at the University of--he went to school on attending ROTC scholarships. He then joined the Army and served in the JAG corps. That brought him to Maryland, where, for 3 years, he worked at Aberdeen Proving Ground and even was so highly sought out for his skills, worked at the Pentagon. He went on to serve as a JAG officer for 22 years while maintaining full employment as a practicing attorney and on to other judicial duties. His life and resume really speak for themselves. He has been a trailblazer in the Maryland legal community, well respected for not only his extensive writing and teaching, but his commitment to the improvement of the practice of law and the administration of justice. He has already served the court by working for 16 years as a U.S. magistrate. Six of these last years he spent as the chief magistrate. Prior to this, he spent 13 years as a litigator in private practice and, also, served as assistant attorney general. Most recently, he has served on the advisory Committee on the Federal Rules of Civil Procedure and was later designated as the chair of the discovery subcommittee. He has been honored by just about every legal professional organization in Maryland. This speaks to his incredible competence. But I also want to make a note about his background in terms of civic engagement. And why is this important? We do not want our judges to have lived in a bubble. They have to be in touch with the fabric of our society. And Judge Grimm has been a church volunteer. He has been active in the Boy Scouts. He has worked in terms of improving the legal community by giving courses to everyone from paralegals all the way up to these professional associations. You can ask anyone in the Maryland legal community and they point to--if you say, ``Name the top three who you would say really belong on the Federal bench,'' Paul Grimm is at the top of this list. I am honored to bring him to you today, and I know he will introduce his own wife here. But behind every great guy there is an entire family that supports them, and I am sure you will note the presence of it. I would hope that the Committee would confirm and recommend to the full Committee the approval of Judge Grimm and that we are able to move expeditiously to confirm him in the Senate. Senator Whitehouse. Thank you, Senator Mikulski. I will now recognize your junior colleague, Senator Cardin, to complete the Maryland delegation. PRESENTATION OF PAUL WILLIAM GRIMM, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND BY HON. BENJAMIN CARDIN, A U.S. SENATOR FROM THE STATE OF MARYLAND Senator Cardin. Senator Whitehouse, Senator Lee, Senator Coburn, thank you very much. And I am honored to join Senator Mikulski in highly recommending Judge Grimm for confirmation to the district court for Maryland. Let me first thank Judge Grimm for his public service. He has been a distinguished magistrate judge in Maryland for over 15 years. I want to thank him, and I want to thank his family, because we all know public service is a sacrifice for a family and cannot be done without the support he has from his family and I want to thank them all. Mr. Chairman, I would ask that my written statement be made part of the record. Senator Whitehouse. Without objection. Senator Cardin. And let me just underscore some of the points that Senator Mikulski made about Judge Grimm. His military record is distinguished, and, to me, that is an important point raised to the Committee. He was a captain in the U.S. Army. He has given back greatly to his community. He has served in the private sector as a lawyer. He is an assistant attorney general. He has been a magistrate judge now for over 15 years, and he is the chief magistrate judge in the Maryland division. He has demonstrated the judicial temperament, the competency, the integrity, and the good judgment. His reputation among judges, among lawyers is of the highest order. He has received the highest rating from the Bar Association on recommending that he be confirmed as a district court judge. As Senator Mikulski pointed out, Chief Justice Roberts appointed Judge Grimm to serve as a member of the advisory Committee for the Federal Rules of Civil Procedure in 2010. He was designated as chair of the civil rules committee's discovery subcommittee. Now, for those of us who have gone through law school, someone who can specialize in civil procedures has our greatest respect. So I just want to acknowledge his expertise in this area of law that does not get the type of publicity that it deserves. He has written numerous authoritative opinions, books and articles on the subjects of evidence, civil procedures, and trial advocacy. In other words, he is a judge's judge. He understands what this is about and he has a proven record of being able to achieve the type of respect in the legal community that I think we all want from our district court judges. But it goes beyond that. He has taught classes at both of our two law schools in Maryland, and has been awarded the title as an outstanding adjutant faculty member. So he has demonstrated himself, also, in taking responsibility to train the next group of attorneys. I think he is highly qualified. I am proud to recommend his confirmation and do so on behalf of the people of Maryland. [The prepared statement of Senator Cardin appears as a submission for the record.] Senator Whitehouse. Thank you, Senator Cardin. I am now honored to recognize my Ranking Member on the Environment and Public Works Committee and the senior member of the Oklahoma Senate Delegation, Senator Jim Inhofe. PRESENTATION OF JOHN E. DOWDELL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA BY HON. JIM INHOFE, A U.S. SENATOR FROM THE STATE OF OKLAHOMA Senator Inhofe. Thank you, Mr. Chairman, Senator Lee, and Senator Coburn. I am here actually to introduce two, Judge Robert Bacharach and John Dowdell. It is unusual we get two at the same time, but I am very pleased. Judge Bacharach has been nominated for the vacancy of the tenth circuit court, which has been traditionally held by an Oklahoman. I believe that Judge Bacharach would continue the strong service Oklahomans have provided the tenth circuit. Throughout his career and education, he has distinguished himself. In 2007, the Oklahoma City Journal Record profiled Judge Bacharach as an example of leadership in law, where he simply stated that as a future goal, he intends to improve. Always working to improve has defined Judge Bacharach. He graduated in the top 4 percent of his class, received multiple academic awards, and maintained memberships in the highest orders of law school students. He began his legal scholarship on law review and has continued writing in a number of law reviews. Judge Bacharach has multiple years of litigation experience, working for Crowe & Dunlevy, a very large firm in Oklahoma City, and in service as a Federal magistrate for the U.S. District Court for the Western District in Oklahoma City. However, he actually began his legal career with service to the tenth circuit, working as a law clerk for the chief judge of the tenth circuit. As evidence of his career of distinction, when Judge Bacharach was chosen as a magistrate for the western district, among many good candidates, in 1999, the chief judge for the western district characterized the decision to choose Judge Bacharach as an easy one. Since that time, his colleagues have characterized his service as remarkable, demonstrating superb judicial temperament, and a real asset to the western district court family and their legal community. So I appreciate the opportunity to introduce him this afternoon. Also, Mr. Dowdell has been nominated for the vacancy of the U.S. District Court for the Northern District of Oklahoma, which sits in my hometown of Tulsa. After graduating from the University of Tulsa's College of Law, Mr. Dowdell also began his legal career as a clerk to the chief justice of the tenth circuit court of appeals. Since 1983, Mr. Dowdell has accumulated extensive State and Federal litigation experience, representing a variety of clients, working at the same Tulsa firm in which he is a named partner. Mr. Dowdell is a native Tulsan, has been extensively involved in the community, in addition to being widely recognized for his work on behalf of his clients. I received a number of letters from members of the legal community through Tulsa highlighting Mr. Dowdell's work ethic, his character, his abilities as an advocate for his clients. Mr. Dowdell already has experience as a mediator and arbitrator and has served as an adjunct settlement judge in the northern district for the past nearly 14 years. He and his wife of 24 years, Rochelle--like my wife, Kay, we have--he has four kids and when he is my age, he may have 20 kids and grandkids like I do, in which case he will continue to improve. So it is my honor to recommend him to this Committee. Senator Whitehouse. Thank you, Senator Inhofe. With Senator Nelson's kind permission, I will now turn to the junior member of the Oklahoma delegation, Senator Tom Coburn. Senator Coburn. Mr. Chairman, thank you. I would ask that my written statements be part of the record, and, also, ask that---- Senator Whitehouse. Without objection. Senator Coburn [continue.] Into the record be placed the recommendations of various and sundry significant individuals from Oklahoma, as well as bar associations, in terms of their commendations in support of this nomination, including that of Judge Lagrange in Oklahoma City. Senator Whitehouse. Also, without objection. [The information referred to appears as a submission for the record.] Senator Coburn. I think our two nominees are a great example of how we have chosen to work with the Administration on getting quality candidates for Federal positions. I am pleased to support both of these nominations not because of their legal excellence necessarily, not because of what other people have said about them in terms of their legal capability, but what other people have said about their character and their integrity. And if there is one quality that I believe is most important in terms of capturing the essence of what it means to be American, a free and plentiful access to the rule of law for everybody, that has to come when you have character and integrity in those that are making those decisions. So I am very pleased. There is only one drawback on John Dowdell in that he has a friendship and relationship with Senator Burr, as they played football together at Wake Forest. I told him that was the only negative that I knew of him. However, I say that in jest. I have had great conversations with both of these nominees and I have talked to literally hundreds of people in Oklahoma who sincerely back and believe in their character and integrity, as well as their unqualified support by the ABA. So with that, I would tell you that I support their nominations and hope that we can move them through the process. [The prepared statement of Senator Coburn appears as a submission for the record.] Senator Whitehouse. Thank you, Senator Coburn. For the record, Senator Burr actually came to this hearing in order to let me know of his longstanding friendship with Mr. Dowdell and his absolute support for his candidacy, as well. So I was delighted that Senator Burr took that trouble for his friend and classmate. And I now turn to the senior Senator of the Florida Delegation, Senator Bill Nelson. PRESENTATION OF MARK E. WALKER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; AND BRIAN J. DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Nelson. Thank you, Mr. Chairman. And as you and the Ranking Member, Senator Lee, know, we have a process in Florida that is not only bipartisan, it is nonpartisan. Senator Rubio and I appoint a judicial nominating commission for each of the three Federal judicial districts and they do all of the applications. They do the interviews and they do the selection of at least three. Well, because of that process, what comes to us are three nominees that any one of them would be an excellent Federal judge, and we have an agreement with the White House whereas the President can accept--he can pick whoever he wanted to--he will agree to pick from among the names that Senator Rubio and I send to him. This has been done now for several decades in Florida between the two Senators. And so Senator Rubio and I come to you in that vein now with two vacancies, one in the middle district and one in the northern district. And we want you to know that this is an important time and it is an important time, as said by Senator Coburn, that the rule of law is upheld. And that is what makes our country so much different from so many other countries on the face of Planet Earth. So I am pleased to introduce Judge Mark Walker and Judge Brian Davis. Judge Walker is nominated in the northern district. He was born in Wintergarden, which is in central Florida. He received his bachelor's degree from the University of Florida, graduating first in his class. He continued and earned his law degree at the University of Florida. He has clerked for a Supreme Court justice in the Florida Supreme Court and Judge Hinkle of the northern district. And if the Senate confirms Judge Walker, he will sit with the very judge that he clerked for in the northern district. He served as an assistant public defender of Florida's second judicial circuit from 1997 to 1999, before then spending a decade in private practice, where he specialized in civil litigation and criminal defense. And since 2009, he has had an outstanding record as a circuit judge, living in Tallahassee. And he is joined by many of his family, including his wife, Karen; his daughters, Sarah and Emily; his parents, Joe and Dorothy; his sister, Elizabeth, and her husband, Tom Conway; and, also, joined by a close family friend, Ryan Andrews. His brother, an active duty lieutenant colonel, Larry Walker, is on active duty and, therefore, not able to attend. Our second vacancy is in the middle district, and that is Judge Brian Davis. He is a native of Florida, born in Jacksonville. He attended Princeton, which was no little task, coming out of the schools of Florida back in the 1960s and going to the Ivy League. He studied psychology and then he went to the University of Florida for his law degree, where he was a member of the law review. He practiced law first and then in the state attorney's office in Jacksonville. And Judge Davis was the first African- American to be the chief assistant state attorney in the State of Florida. A little personal note. The former state attorney--and in our State, they are elected--came to Judge Davis back then and said, ``I want you to be my chief assistant,'' when Judge Davis had already been an assistant state attorney and was getting ready to go back into private law practice and make some money. And because of the call of public service, Judge Davis accepted the state attorney's insistence and he came on as chief assistant. Since 1994--so this is a long time, 18 years--he has served as a circuit judge in Nassau County, which is just to the north of Jacksonville, where he presides over family law, civil, and juvenile cases. And he is a member, of course, of the Jacksonville Bar Association and so many other organizations. And he is here today with his family, his wife, Tanya; his daughter, Cicely; his granddaughter, Brynne; his god daughter, Sonya; his cousin, Roberta Balthrop; his niece and nephew, Natasha and Reginald, and their daughter, Gabrielle. And that is the best behaved baby back there, as well as this one right here. So it is a pleasure for Senator Rubio and me to be here on behalf of these two outstanding nominees. Senator Whitehouse. Well, Senator Nelson, we particularly appreciate your recommendation of these folks, as someone who sat next to you on the Intelligence Committee for 4 years. We went to the same law school, and I was always very proud of Senator Nelson's abilities, because you would get a witness in from time to time and the Intelligence Committee is, of course, very private, there is no audience, but we learned about each other and every once in a while you would hear Senator Nelson say, ``I am just a country lawyer from Florida.'' [Laughter.] Senator Whitehouse. And all of the members' ears would perk up and they would start paying particular attention, because they knew they were about to be treated to a particularly classic, rigorous, pointed cross-examination of a witness. I will turn to your junior colleague now, Senator Marco Rubio. Senator Rubio. PRESENTATION OF MARK E. WALKER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; AND BRIAN J. DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA BY HON. MARCO RUBIO, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Rubio. Thank you. And Florida's favorite country lawyer has covered well the nominees that we have here today. So I just wanted to add to that a couple of things. First, this Committee has an extraordinary calming effect on children. [Laughter.] Senator Rubio. So I may need you from time to time in my own home. But thank you for this opportunity to be here. Just to be brief, Senator Nelson has done a great job of outlining the process we have in the State. And one of the pleasant surprises in this job is the quality of individuals that offer themselves for public service and the quality of individuals that we have been able to forward to the President and to the White House, today being no exception. Senator Nelson has covered both of these gentlemen's backgrounds, and I would just point out that we are pretty proud of the kind of folks that offer themselves up for judicial nominations out of our State. As you can see, their records are pretty impressive, and I encourage you to give them full consideration. They are pretty typical of the kind of nominees we have been able to bring before this Committee, both in their educational backgrounds and then in their private practice or as lawyers, practitioners, as clerks, and, obviously, experience that they have on the bench, both of whom now are currently bringing to the table experience on the bench. So it is typical of the kind of nominees we have been able to bring. And I am bragging on our State a little bit and on our bar, but we are proud to have that kind of lawyer coming out of our State, as you have experienced firsthand in the Intelligence Committee. So with that, I just want to thank you all for the consideration you are going to give to our nominees, and I am proud to be here with them today and with their families. Thank you. Senator Whitehouse. Let me thank the panel of Senators for coming forward to speak on behalf of their nominees. I hope people who are watching this understand how very busy it is to be in the Senate while the Senate is in session and for each of them to come and give their time to support their nominees is a powerful testament to the quality of the different nominees and their commitment to getting them passed rapidly through this Committee and through the floor, as well. So I will excuse my colleagues now so that we can reset for our first witness, who will be Judge Bacharach, followed by a panel of the four district court nominees. Before you are seated, would you raise your right hand? [Nominee sworn.] Senator Whitehouse. Thank you, Judge Bacharach. Please be seated. And welcome to the Committee. If you would like to make any form of opening statement or, as is the tradition, introduce friends and family who are here with you, we would be delighted to have you do that now. STATEMENT OF JUDGE ROBERT E. BACHARACH, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE TENTH CIRCUIT Judge Bacharach. Thank you, Mr. Chairman. First, I would like to express my gratitude to the President of the United States for the great and awesome honor and responsibility from his nomination. I would also like to thank you, Mr. Chairman, Senator Lee, Dr. Coburn, and each member of this Committee for the opportunity to appear before you today. I would also like to express my deepest gratitude to Senator Inhofe and Senator Coburn for their fairness in their consideration of my nomination, their great courtesy, and, of course, their support and their very generous remarks this afternoon. I would also like to briefly introduce my family and friends that are here today, starting with my wonderful wife, Rhonda Bacharach. And at the risk of waking up my 3.5-year-old little girl, I'd like to introduce her, as well. She is a great blessing in our lives. Her name is Olivia Harper Bacharach. She is 3.5. And this is a great moment in our family's life. I would also like to introduce, briefly, some wonderful friends that are here today, starting with the honorable Ralph Thompson. For some 32 years, Judge Thompson served as a true exemplar of what every Federal judge should strive to be, and I am greatly honored by his presence today. I also have some other wonderful friends that are present today. Jack Lockridge, Bill LaForge, Bruce Moyer, Lauren Fuller, and Jim Scott, and I am grateful for their great friendship, and, also, for the meaningful gesture that they have taken in appearing as my guests today. I have a number of friends and family back home that are watching this via Webcast. And with that, Mr. Chairman, I would be delighted to answer whatever questions you and other members of the Committee might have. Senator Whitehouse. Thank you, Judge Bacharach. I just want to let you know that I was the attorney general of Rhode Island for 4 years and I have done some independent research on you through my attorneys general network. I was actually an attorney general while your attorney general, Drew Edmondson, was the head of the National Association of Attorneys General, and he thinks very highly of you, I want you to know. And so I am delighted to pass on his good wishes and goodwill on this nomination. In my opening statement, I mentioned a couple of what I think are baseline notions that judges should respect; that judges are obliged to recognize the role of Congress as the elected representatives of the American people; that they are obligated to decide cases based on the law and the facts; that they are obligated to not prejudge any case, but listen fairly to every party who comes before them; that they are obliged to respect precedent; and, that they are obliged to limit themselves to the issues properly presented to the court in the matter that is presently before them. And I said I hope each judicial nominee will respect and adhere to those principles. And I would like to ask you if you have any disagreement with any of that. That seems pretty baseline stuff, but I think it is worth hearing from you on that. Judge Bacharach. Absolutely. Senator Whitehouse, I completely subscribe to the ideal that you identified. A judge's function is not to write the law, not to impose his or her own ideology or philosophy, but simply to abide by the statute, by the Constitution, and I completely agree with the remarks that you made. Senator Whitehouse. And let me ask you just a quick question about juries. The Constitution and the Bill or Rights recognize the American jury in three separate places. And the great commentator on American democracy, de Tocqueville, in Democracy in America, reflected on the jury as one of the means of the sovereignty of the people. So it has not only a fact-finding function, but, also, according to de Tocqueville and Blackstone and others, a function in the structure of American government and democracy. And I wonder if you have any comment on that view of the American jury. Judge Bacharach. I agree, Senator. I am always struck when individuals sacrifice their time to serve on juries, how impressed they are with the judicial system, and how they take their responsibilities so seriously. And it is an indispensable attribute of our judicial system. I completely agree that it is an honor. It is a responsibility that every citizen has, and it is indispensable to our criminal and civil justice system. It is an attribute that sets our system apart from many other countries and it is very important. Senator Whitehouse. With that, I will turn to my Ranking Member, Senator Lee, and then I will recognize your home State Senator, Senator Coburn. Senator Lee. Thank you very much, Judge Bacharach, for joining us today. You have been appointed to the U.S. Court of Appeals for the Tenth Circuit, a court that I know well and have appeared many times before, and I commend you for that and wish you well in that endeavor, should you be confirmed. I notice you clerked for Judge Holloway for 2 years, as I recall; is that right? Judge Bacharach. Yes. Senator Lee. My late father, who was also a lawyer, used to say that that is a particularly good deal for the judge if you can get a clerk to stay for 2 years. I assume it was a good deal for Judge Holloway, in your case. Judge Bacharach. I hope so. Senator Lee. I always found him to be very well prepared for oral argument, and I am sure you helped set the stage for that, although I guess we could point out he had been on the bench almost 20 years by the time you got there. Probably one of the longest-serving judges in the Federal judiciary. I think he was put on there in 1968, took senior status in 1992, but still sits. I think I argued a case in front of him just a few years ago. That is quite a legacy. Anything in particular that you learned from Judge Holloway that you would take to the bench with you? Judge Bacharach. Senator Lee, there are so many things that I learned from my first and greatest mentor, Judge Holloway, but I would mention two. The first are his qualities as a human being. He has an unparalleled humility, modesty, gentility, and respect for every human being. I think that enables him to take to the bench many personal qualities that do facilitate his ability to adjudicate cases, his ability to listen, his ability to respect the views of his colleagues for whom he may disagree. Those are qualities that set him apart as a human being, but it also enables him to decide cases in a superior way. The second quality that I would mention, Senator Lee, is simply his ability to carry out the simple, but indispensable tasks of any good judge; his ability to apply the law to the facts in every case, without regard to his ideology or philosophy or his personal sympathies; his ability to simply apply the law to the facts, albeit simple, is important. It is a defining characteristic of a judge, and he did that in a remarkable way. And those two qualities are things that I feel very privileged to have witnessed firsthand for those 2 years. Senator Lee. There is one aspect of your job that will be new, that will be different both from the manner in which you have served as a magistrate judge and that will be one of the few things you did not get to see as a law clerk, and that is the part of your job that would involve sitting on a panel, generally a three-judge panel, except in those rare instances where the tenth circuit is sitting en banc. How do you approach that as a potential member of this court, the idea of serving with more senior judges? Initially, you will be the most junior member of that court. How will you approach that without surrendering your own individual view of a case? I assume it is inevitable that there will be times even in your first year on the court where you will disagree with two more senior colleagues. How will you approach that in such a way that will ensure that you do not give in? Judge Bacharach. Well, I think one of the important attributes of any good judge, whether it's a senior judge or a young judge, is the ability to listen, the ability to learn. I am honored by what Senator Inhofe mentioned, my lifelong ideal is to improve, and I plan--if I were so fortunate as to be reported out of this Committee and confirmed by the U.S. Senate--to continue to improve, to continue to listen, to collaborate with other judges, senior or junior to myself. And when I think they are right, I think that it is important for a judge to surrender one's ego and to do what they believe ultimately is correct. If a judge, after applying the law to the facts, after listening intently and considering the views that may be expressed contrary to one's own expressed views, continues to believe that he or she is correct, it is the responsibility of any judge to abide by his or her oath and to do what they ultimately conclude is the legally correct decision after the application of the law to the facts. So it is a long-winded way, Senator, of saying I would listen to others, but ultimately I would make my own independent decision, as is my oath. Senator Lee. Just a quick follow-on, yes or no question. I assume from your answer you would agree with me that the law generally supplies an answer, a right answer to a case. The answer may be difficult to find, but there is a right answer. It may be one that your colleagues disagree with you on, but there is a right answer. Judge Bacharach. That is my view, Senator. Senator Lee. Thank you. Senator Whitehouse. Senator Coburn. Senator Coburn. Thank you. Welcome, again. Judge Bacharach. Thank you. Senator Coburn. Welcome to your family, and congratulations. I have had conversations with you, so my questions are going to be really limited. In your questionnaire, you noted that you drafted a section on appeals in civil and habeas cases in the tenth circuit court of appeals for a treatise on Oklahoma appellate practice. You also participated in the Suiter v. Mitchell Motorcoach Sales and Burkhart v. Restaurants and McAllister v. McAllister, among other cases. Can you discuss your appellate experience further and how will that experience help you if you are voted out of the Committee and confirmed by the full Senate? Judge Bacharach. During my career at Crowe & Dunlevy, for 12.5 years, I had the great fortune to spend a great deal of time both at the State court level and at the Federal court level in participating in a number of appeals. The cases that you mention are cases in which I conducted the oral argument as lead counsel in the tenth circuit court of appeals. I think there were several cases that you mentioned. In addition, I had a number of opportunities to participate in drafting briefs. Typically, the State appellate courts, the Oklahoma Court of Civil Appeals and the Oklahoma Supreme Court, generally do not entertain oral argument. So in a number of cases, in the State appeals, both at the intermediate appellate level and the State's highest court, I participated by submitting briefs. I also, of course, submitted a number of briefs in other cases in the tenth circuit court of appeals, in addition to the ones that I orally argued. I also, as you mentioned, did the principal drafting for the--I would say a draft that was edited by the two authors of that treatise that you mentioned, Clyde Muchmore and Harvey Ellis, and I don't recall exactly how long it was. I know it was a lot of pages. But I did the work, the principal work for the first draft of that. And that, I think, is a fair summary of my appellate practice, and, of course, in addition, as Senator Lee mentioned, my 2 years under the mentorship of Judge Holloway. Senator Coburn. In Federalist 45, James Madison wrote, ``The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and infinite.'' Do you agree with Madison that the powers of the Congress are fundamentally limited? Judge Bacharach. Absolutely, Dr. Coburn. Senator Coburn. What do you see as those limits? Judge Bacharach. Well, there are nine sources of legislative power in the Constitution. There is, of course, the first 17 clauses of Article 1, Section A. There are the eight enforcement provisions, the 13th Amendment, Section 2, the 14th Amendment, Section 5, the 15th Amendment, Section 2, the 18th Amendment, the 19th Amendment, the 23rd Amendment, and the 24th Amendment, and, last, the 26th Amendment. Those are all of the sources of legislative power in the Constitution. The text of the Tenth Amendment reserves the powers that are not enumerated in those--at the time that the Tenth Amendment was drafted, of course, there was only Article 1, Section A. But the text of the Tenth Amendment reserves all powers not enumerated in the Constitution or prohibited to the States--to the States, respectively, or the people. And that is the guidepost that implements essentially what Madison said in Federalist 45. Of course, Madison was the principal architect of the Tenth Amendment. And in addition to Madison's prescription, of course, Chief Justice Marshall expressed much of the same thing in Marbury v. Madison, when he said the powers of the legislature are limited. So I completely agree with what you express, Doctor. Senator Coburn. Thank you. One other question, and I ask every judge this question. In your view, is it ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of the U.S. Constitution? Judge Bacharach. Without criticizing other judges, for me, I do not believe that it is appropriate for Bob Bacharach to ever rely on any foreign source to determine the meaning of the Constitution. So in my view, it is unequivocally improper for me to do that. Senator Coburn. Thank you very much, Mr. Chairman. Senator Whitehouse. Judge Bacharach, congratulations on your nomination. Mike Lee and I looked at each other as you rattled off without notes the enumerated powers in the Constitution and thought, ``You know, that's not bad.'' [Laughter.] Senator Coburn. I would tell the Committee I did not prep the witness for that question. [Laughter.] Senator Whitehouse. Even if he knew that question was coming, that was still a pretty good answer. So congratulations to you. Thanks to your family for attending. It is always important to us when family can attend. Your daughter has been both adorable and quiet, a new personal best for me in terms of youthful behavior in this Committee. And I want to make sure that you do not feel discouraged that there has not been greater attendance at the Judiciary Committee hearing. What you want is uneventfulness, and the perfect set of attendees for you is a chairman, a ranking member, and your home State Senator. [Laughter.] Senator Whitehouse. So may your nomination continue to be uneventful, and best wishes as you go forward. Judge Bacharach. Thank you, Mr. Chairman. 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You are excused. We will take just 1 minute and call up the next panel. [Pause.] Senator Whitehouse. I welcome all the nominees, and ask that you all stand to be sworn. [Nominees sworn.] Senator Whitehouse. Thank you very much. Please be seated. And welcome. In no particular order of rank or seniority or priority, but simply going across the panel, let me ask, first, Judge Grimm, then Mr. Dowdell, then Judge Walker, and then Judge Davis to offer any opening remarks that they may wish to make and to take this opportunity to introduce any family or friends who may be visiting with you today. STATEMENT OF JUDGE PAUL WILLIAM GRIMM, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND Judge Grimm. Thank you, Mr. Chairman, Senator Whitehouse, Ranking Member Lee, and Senator Coburn. I would like to take the opportunity to thank the President of the United States for the honor of nominating me for this position; my home State Senators, Senators Mikulski and Cardin, for recommending my name and, also, being here today to speak on my behalf and for the example of public service that they set for every public servant in Maryland, and me particularly, in terms of what it means to dedicate your all in the service to the people of this country and your State. I am very pleased to introduce some family members and some friends who are here. My wife, Lynne, without whose love and support for many, many years it would be impossible for me to be here, sitting here with me today. My son, John, who, in about 2 weeks, will start as an assistant public defender in Baltimore County, Maryland; my daughter, Gia, who is graduating from high school shortly and will be heading down to Clemson to study law and legal policy down there. My daughter, Samantha, is not here today corporeally, but in spirit perhaps, because she is taking exams and getting ready to start Air Force ROTC summer camp in about 10 days. So she is eating power bars and doing pushups right now probably. In addition, my brother-in-law, Tommy Ward, is here. Two of my dearest friends, Dave Gilliss and Ray Peroutka. Lisa Bergstrom and Heather Williams, my extraordinary law clerks, are here, as well. And some other family and friends are here, but in deference to time, I won't introduce them. I want to thank, last, but by no means least, you and Ranking Member Lee and Senator Coburn for allowing this hearing to take place and for your service to the people of the United States of America. Senator Whitehouse. Thank you, Judge Grimm. Mr. Dowdell, you are recognized. 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JOHN E. DOWDELL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA Mr. Dowdell. Thank you, Chairman Whitehouse. Thank you, in particular, for presiding over these proceedings. Thank you, as well, for Ranking Member Lee's and for Dr. Coburn's presence and their scheduling of this hearing. In particular, I would like to thank both Senator Inhofe and Senator Coburn for their kind remarks on my behalf. And, as well, I would like to thank Senator Coburn and Senator Inhofe for forwarding my name to the White House and for supporting my nomination. I would also like to thank Representative Dan Boren of the second district of Oklahoma for supporting my nomination. And I would thank principally the President for the honor of being nominated and of his confidence in me. I do have a few family members and friends to introduce. Senator Inhofe introduced my wife of 24 years. She is the mother of my four sons. My oldest son, Jack, is graduating this weekend from the University of Kansas. So he has traveled here from Lawrence. My second oldest son, Joe, is a sophomore at Dartmouth College and traveled here today for the hearing. My third son, Ned, is a freshman at the University of Redlands in California and he traveled a long way to be here. And my youngest son, Gabe, is a junior in high school in Tulsa, Oklahoma. I want to also thank many people back in Oklahoma who are watching this via Webcast, including two brothers, Tom and Richard, and a sister, Jean, and their families. And I also want to thank the support of my colleagues at my law firm, where I have worked for the past 30 years, and other family and friends elsewhere in Oklahoma and around the country. I have a friend here, Chris Redding, that I am going to announce in light of Senator Lee's affection for Judge Holloway. So whatever I can do, I will use it. Chris Redding and I clerked together with Judge Holloway, as well. Thank you very much. Senator Whitehouse. Judge Walker. 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WALKER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA Judge Walker. Thank you, Chairman. I thank the Chairman, the Ranking Member, and Senator Coburn for your time and attention this afternoon. I would also like to, of course, thank the President for nominating me and forwarding my name to you. And I thank Senator Nelson and Senator Rubio for their kind remarks. I will introduce my family, having previously been introduced by Senator Nelson. My wife of 18 years, Karen Walker, is here with me; our daughters, Sarah and Emily; my folks, Joe and Dotty Walker; my sister, Elizabeth, and her husband, Tom Conway. Unfortunately, my brother, Lieutenant Colonel Larry Walker, just recently retired, and his wife, also Lieutenant Colonel Walker, in that case, Julie Walker, also retired, could not be with us today. Also, with us today are my cousin, Amy Rhodes; family friends, Ryan Andrews, Special Agent Josh Doyle and his wife, Kate. I have two judges from the first district court of appeal in north Florida who actually grade my papers, Judge Roberts and Judge Rowe, who are both here, as well as Judge Rowe's law clerk, Tim Moore. With that, I thank you for your time and consideration. Senator Whitehouse. Thank you, Judge. Now, Judge Davis. 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DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA Judge Davis. Thank you, Chairman Whitehouse. I, too, want to join the panel in expressing gratitude to you, Ranking Member Lee and Senator Coburn for the opportunity to be heard today and convening this Committee for that purpose. I'd like to also extend my appreciation to Senator Nelson and Senator Rubio for putting my name forward and for their introduction today. I extend, as well, gratitude to the Florida nominating commission for reporting me to the Senators; and, of course, will be ever grateful to the President of the United States for his nomination for this great honor. I have visiting with me today, as Senator Nelson kindly began to explain, family members, not all of whom are here, but certainly, most importantly, my wife of 35 years, Tanya, is with me; my daughter, Cicely Davis, who has my favorite third- grader and granddaughter with her, Brynne Davis. I have visiting from Jacksonville a god-daughter, Sonya Speights, as well as relatives from South Carolina, a cousin, Roberta Balthrop. I have, as well, from New York, a niece and her husband, Natasha Jules-Taylor and Reginald Taylor; and, the newest member of our family, Gabrielle Elizabeth Taylor, who is soon to be a 2-year-old and has, as has been observed, been remarkably well behaved during the hearing, for which I thank her. [Laughter.] Judge Davis. I would also like to thank family members for being present through the Webcast. My sister in New Orleans I'm sure is in attendance, as is my son and daughter-in-law, Brian and Ebony Davis, with my two grandsons; my sister in New Orleans, Sheila St. Etienne (ph). I'm sure I have a number of friends joining and associates and colleagues joining by Webcast from Jacksonville, Florida, and Nassau and Clay Counties, and I thank them for being here with me, as well. Thank you. 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Thank you, Judge Davis. In deference to Senator Coburn's pressing schedule, Senator Lee and I have agreed to defer so that he may proceed with his questions. Senator Coburn. Senator Coburn. Thank you, Mr. Chairman. I would just ask for unanimous consent that my questions for these nominees be placed into the record. Senator Whitehouse. Without objection. Senator Coburn. And the ability to submit additional questions on the basis of the responses to those questions. Senator Whitehouse. Consistent with whatever the protocol is of the Judiciary Committee. I do not want to trump that. Senator Coburn. You sound like a lawyer. [Laughter.] Senator Coburn. Thank you, Mr. Chairman. Congratulations to all of you. Senator Whitehouse. Welcome. We are delighted that you are here and I congratulate you on the great honor of having been nominated by the President to a lifetime position on the Federal judiciary. I have practiced before Federal judges. I have been inspired by them, terrified by them, various things. And it is a position of great importance that you will be entering into, assuming a successful and rapid conclusion of the nomination process. As I noted to Judge Bacharach, do not be discouraged that there is not a lot of turnout. What you want is uneventfulness, and, so far, it looks so good. As I said before, judges must respect the role of Congress as the duly elected representatives of the American people. You must decide cases based on the law and the facts. You must not prejudge any case, but give fair and equal hearing to all parties who come before you. You must respect the precedent that provides the framework for your decision, and you must limit yourself to the issues that are properly presented to you by the case at hand. Can each of you satisfy that standard? Judge Grimm. Senator Whitehouse, let me just say that it is my opportunity to be terrified of a U.S. Senator instead of having it the other way around. Senator Whitehouse. Our bark is a lot worse than our bite. Do not worry about us. Judge Grimm. Absolutely, the criteria---- Senator Whitehouse. We do not have power of contempt the way judges do. Judge Grimm. And what I can assure you, Senator Whitehouse, if I am fortunate enough to be confirmed, that those criteria that you have identified will be essential to the way in which I approach the job. Mr. Dowdell. I concur, Mr. Chairman. The factors that you have set forth here and in the prior hearing really are a roadmap for the obligations of and the temperament of and the success of the rule of law, and I fully agree with your description. Judge Walker. Likewise, Chairman, I certainly agree with your description and I would like to think that that is how I have conducted myself since I have been a State court judge. Senator Whitehouse. Judge Davis. Judge Davis. Chairman Whitehouse, my answer wouldn't be any different than any of my colleagues. I agree with those principles. I believe I have applied them during my term on the bench and my intention would be to continue to do that. Senator Whitehouse. And let me ask you the same question that I asked Judge Bacharach about juries. A jury trial can be an inconvenience. It can press on the schedule of the court. Particularly in criminal matters, very often there is enormous incentive applied to try to avoid a trial and, at the same time, the jury of peers no less than three times in the Constitution and Bill of Rights. And as I said, none other than de Tocqueville described it as a means of the sovereignty of the American people. I consider it to be not just a fact-finding tool, but an important institution in the American system of government, and would like to hear your thoughts on that, as you will be in a position to encourage or discourage access to a jury in the course of your duties. Judge Grimm. Judge Grimm. Thank you, Senator Whitehouse. In my 15.5 years as a magistrate judge, I have had the honor to preside over many jury trials, both civil and criminal, and it has always humbled me and amazed me at the skill and the seriousness with which they do their job. Our juries are judges of the fact. Judges are judges of the law. In my courtroom, we all stand when the jury walks in because if they stand for the judge, then we stand for the jury. And I talk to every jury after every jury trial and I continue to be absolutely amazed at the way eight ordinary citizens in a civil case and 12 in a criminal case can find out what is fair and right and take their job seriously. It is nothing short of inspirational, and it is a feature of our system. In Great Britain, where we took our common law tradition, civil jury trials have all but disappeared and it is central to the fabric of what our country is that we rely upon ordinary citizens not only in the determination of guilt or innocence, but also in the decision to charge felonies by service on a grand jury. It is an honor to work with them in that process. Mr. Dowdell. I concur with Judge Grimm's comments. I feel, as you do, Chairman Whitehouse, that it is an important institution. It is a structural component of our system of law, of our rule of law. Indeed, the absence of jury in certain settings is considered to be structural error for a reason, and it would be my practice to intend to foster jury trials, not to limit them. Senator Whitehouse. Judge Walker. Judge Walker. As a sitting judge, I can tell you that it is not unusual for me to have a jury return a verdict at midnight or 1 a.m. and return to the courthouse the next morning to start a jury trial and have a charging conference with the second group of lawyers at 7 a.m. And I can assure you, just as I have done as a State court judge, if I am fortunate enough to be reported out of Committee and become a Federal trial judge, that I will--my interest and my calendar will be subordinated to the interest of ensuring access to the courts and moving jury trials forward. As I tell every jury that I select, as Thomas Jefferson said, ``The right to trial by jury is the only anchor yet imagined by man by which a government can be held to the principles of its constitution.'' I think Thomas Jefferson was spot on and I--that is how I conduct myself. Senator Whitehouse. Thank you, Judge Walker. I will add that quote to my jury list. Judge Davis. Judge Davis. Senator, I have had an opportunity to interact with juries in the civil arena, in the criminal arena, as a lawyer, as a prosecutor, and as a practitioner, and I have also, obviously, observed them and interacted with them as a judge. I am fond of telling them, because I believe it to be true, that next to military service, there is no greater service that a citizen of the United States or the State of Florida can contribute to our democracy. I have found juries to be amazingly attentive to their duties to serve and serve consistent with the oath that they take, despite the inconvenience, and I believe that it is both a fundamental right and responsibility of citizenship and am honored to be a part of the process in which that citizenship duty is exercised. Senator Whitehouse. And, Judge Davis, is it true that you have been nominated to fill a judicial position that is a designated judicial emergency? Judge Davis. Yes, that is correct, Senator. Senator Whitehouse. Good to know. Let me just conclude by mentioning to Mr. Dowdell that your friend, Richard Burr, was here earlier. I know I made that a matter of record, but while you are here, I wanted to pass on his very good wishes toward you from your days at Wake Forest and, as well, my former colleague and head of the organization that I was then a part of, the National Association of Attorneys General. I had the chance to work with Attorney General Edmondson quite closely and developed a very high regard for him, and he speaks very highly of you, as well, and I want to make sure those complements are a part of this part of the hearing, as well. So I wish you all well. Your level of uneventfulness is so far very promising. I hope it continues and that we can see you through to a rapid and successful confirmation. Senator Lee. Senator Lee. Thank you, Mr. Chairman. Judge Davis, I had a couple questions for you regarding a speech you gave on December 16, 1995 to the Clay County NAACP luncheon. In this speech, you refer to a number of historical events and try to describe the significance of those events as they relate to race relations in the world. There are a couple segments of the speech that I just wanted to talk to you about and make sure I understand correctly. One of the statements began with an event that occurred on December 9, 1994 and in summarizing that event, you said, ``Dr. Jocelyn Elders, Surgeon General of the United States, is asked by the President to resign after being misinterpreted about student sex education, reminding us, lest we forget, that politically correct is spelled with capital letters for melanin impregnated females.'' Just a few paragraphs later, you refer to another event related to a surgeon general nominee, where you said, on February 2, 1995, President Clinton nominates Dr. Henry W. Foster, Jr., former chair of the department of obstetrics and gynecology at Mary Medical College as surgeon general, but the Senate filibustered so as not to confirm the doctor because of a controversy over the number of abortions the doctor performed early in his career, reminding us, again, lest we forget, that politically correct is also spelled with capital letters for melanin impregnated males. Can you tell us sort of what you meant by those two statements, what you were referring to? Judge Davis. Thank you, Senator, for posing that question. I actually have given some thought to those comments and others in connection with this hearing. As a preface, let me say that I've given a number of speeches. I think I have submitted about 178 pages of speeches to this Committee. I didn't realize until this process that I had given this many speeches and I had never taken the opportunity to look back on them as a whole with an objective and critical eye. I've had an opportunity to do that now. The speeches--the comments that you refer to, as well as some others and sprinkled through other speeches that I've given over some 30 years of--since my graduation from law school, have been part of a body of work, speeches that have been designed primarily to engage people in the community in which I live around issues concerning matters of race. My heritage and my experience causes me to believe that matters of race remain among some of the most serious issues that we face in America, and that was no less true in the community in which I lived, practiced law, and sat as a judge. If you look at the body of work over the years that I have been publicly speaking, I think what will be discerned is that the thrust of those was to get people engaged in trying to address problems surrounding racial issues in their community. The thrust was to--when directed to children, for example, was to have them embrace education as a means of being part of the solution to some of the problems as opposed to part of the problems. I had the distinct pleasure around this subject to co-chair a citizen study that involved over 9 months of consideration every week for 2 to 3 hours a week, matters of face, from people of all walks of life in the community, white, black, Hispanic, Asian, men and women, who volunteered to come address this subject. The result of that effort was to present a report in the community in which I live about racial matters and their impact and solutions that might be found. One of the things that came out of it, for example, was an annual report in which the community actually looks at and examines solutions to problems and identifies ways to do that on an annual basis. Having said all that, if you will allow me, Senator, because it is a sensitive subject and one that I would like to get some clarity to, if I could, having said all that, I have come to the conclusion, in looking at those specific remarks and others, that despite my use of rhetoric and hyperbole and exaggeration as a means of persuading and motivating people to be involved, that some of the comments--and the tools that I just identified are tools trial lawyers learn to motivate and persuade people--that despite that, I have found that some of the comments were inappropriate. The ones that you mention were inappropriate for the reason that an impression could be gotten from them that somehow the court maintained a racial prejudice. I have concluded, in the future, that I will not make those kinds of comments. I will not use those kinds of tools to motivate and persuade people, because I don't believe it's fair for possible participants in the court process to have to wonder about whether the court has a bias or not. Having said that, I don't intend to stop the work in the community that I've begun and have worked around for very many years, because I think it's important for judges to be involved in their community around issues that are important to the community. Finally, if you will give me this last opportunity, what I would hope would happen in the Committee, Senator, is that you would look at my entire record of public service, both as a prosecutor and as a judge, and find in it, as I have, that there has not been one formal complaint or informal suggestion of racial bias on my part and that if you look and find, as I did when I looked, that what exists is a reputation that I have been a fair, impartial, informed and respectful judge and that if I'm reported out of this Committee and confirmed, I can assure you that that's a reputation I will continue to earn. Senator Lee. Thank you. With the Chair's indulgence, I would like to just follow-up on this a little bit more and make sure we have covered the ground. Thank you for your answer and I appreciate and agree with the fact that there are few issues that have been more contentious in American history or that are more important to our day-to-day lives than those issues that involve race relations. And so I appreciate your concern for this issue. I also appreciate your statement to the effect that as a sitting judge, it would not be your inclination to make statements like those ones again. But I want to follow-up on another statement made in the same speech on kind of a different vein. You refer to the fact that on September 12, 1995, ``400 people protest outside the home of Supreme Court Justice Clarence Thomas because of his opinions in rulings affecting affirmative action and voting rights, reminding us, lest we forget, how easy it is for some of us to forget history.'' So to some extent, I think what this is insinuating is that that particular member of the Court, Justice Thomas, has forgotten history. So my question to you is, as an Article 3 judge within the Federal judiciary, does this statement reflect or would you otherwise experience difficulty employing decisions rendered by the Supreme Court authored by Justice Thomas? Judge Davis. Not at all, Senator. Actually, that particular reference was to the sentiment as being expressed by the protestors. I respect Justice Thomas as a sitting member of the United States Supreme Court. When he is in the majority, his decisions are the law of this land. And as a sitting judge, Article 3 or otherwise, I'm bound to support and apply that law, and that would be my--that has been understanding and that would continue to be my intention, whether I am confirmed or not. As a judge, I think the Supreme Court's authority, when applicable, is controlling. Senator Lee. So your criticism in there was not directed toward the Justice, it was directed toward the protestors. Do I understand that correctly? Judge Davis. I was echoing the--I was echoing the criticism of the protestors in trying to motivate an audience to action around matters of race. Senator Lee. Does this also fit into the category of statements that, as an Article 3 Federal judge, you might not be inclined to make? Judge Davis. I think it does only because I am confident it is improper for sitting judges to comment on the decisions and disagreement with the decisions of sitting judges. It not only would be proper as an Article 3 judge, my acknowledgment to you today is that it was probably improper for me to do it then. Senator Lee. Thank you. Thank you. I appreciate that. Senator Whitehouse. Well, I will call this hearing to a conclusion. We are delighted, I think, as a Committee to see folks of your caliber and your integrity and your experience come before us. It is not an easy task to be a district judge. There are times when it is the loneliest job in town. And I know that you are aware of that responsibility as you embark on it, and I salute you for your willingness to dedicate yourself to this particular path. And as I said before, I wish you well as your nomination process goes forward. It is advisable to be as rapid as you can with the strictures of thoroughness applying in responding to the questions that the members of the Committee may send you as a matter of record and as soon as your files are complete, we will do our very best to make sure that you are brought up at the Committee for Committee vote and then to the floor and then, with any luck, confirmation. I wish you well in that process and congratulate you on this honor, and thank your families for having taken the trouble to join you here and to grace this chamber with their presence. The hearing is concluded. 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