[Senate Hearing 111-1037]
[From the U.S. Government Publishing Office]
S. Hrg. 111-1037
NOMINATIONS OF HON. DANA KATHERINE BILYEU, MICHAEL D. KENNEDY, HON.
DENNIS P. WALSH, MILTON C. LEE, JR., JUDITH ANNE SMITH, AND TODD E.
EDELMAN
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HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
APRIL 20, 2010
__________
NOMINATIONS OF HON. DANA KATHERINE BILYEU AND MICHAEL D. KENNEDY TO BE
MEMBERS, FEDERAL RETIREMENT THRIFT INVESTMENT BOARD; HON. DENNIS P.
WALSH TO BE CHAIRMAN, SPECIAL PANEL ON APPEALS; MILTON C. LEE, JR.,
JUDITH ANNE SMITH, AND TODD E. EDELMAN TO BE ASSOCIATE JUDGES, SUPERIOR
COURT OF THE DISTRICT OF COLUMBIA
__________
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
----------
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware
Michael L. Alexander, Staff Director
Kristine V. Lam, Professional Staff Member
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Jennifer L. Tarr, Minority Counsel
Jennifer A. Hemingway, Minority Staff Director, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the
District of Columbia
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 1
Senator Voinovich............................................ 2
Prepared statements:
Senator Akaka................................................ 29
Senator Voinovich............................................ 30
WITNESSES
Tuesday, April 20, 2010
Hon. Dana Katherine Bilyeu to be a Member, Federal Retirement
Thrift Investment Board:
Testimony.................................................... 3
Prepared statement........................................... 39
Biographical and financial information....................... 42
Letter from the Office of Government Ethics.................. 55
Responses to pre-hearing questions........................... 56
Michael D. Kennedy to be a Member, Federal Retirement Thrift
Investment Board:
Testimony.................................................... 5
Prepared statement........................................... 63
Biographical and financial information....................... 65
Letter from the Office of Government Ethics.................. 75
Responses to pre-hearing questions........................... 76
Hon. Dennis P. Walsh, to be Chairman, Special Panel on Appeals:
Testimony.................................................... 7
Prepared statement........................................... 84
Biographical and financial information....................... 87
Letter from the Office of Government Ethics.................. 99
Responses to pre-hearing questions........................... 101
Responses to post-hearing questions for the Record........... 108
Hon. Eleanor Holmes Norton, a Delegate in Congress from the
District of Columbia:
Testimony.................................................... 16
Milton C. Lee, Jr., to be an Associate Judge, Superior Court of
the District of Columbia:
Testimony.................................................... 18
Prepared statement........................................... 110
Biographical and financial information....................... 112
Responses to post-hearing questions for the Record........... 136
Judith Anne Smith to be an Associate Judge, Superior Court of the
District of Columbia:
Testimony.................................................... 19
Prepared statement........................................... 137
Biographical and financial information....................... 138
Responses to post-hearing questions for the Record........... 152
Todd E. Edelman to be an Associate Judge, Superior Court of the
District of Columbia:
Testimony.................................................... 21
Prepared statement........................................... 153
Biographical and financial information....................... 154
Responses to post-hearing questions for the Record........... 174
APPENDIX
Hon. Harry Reid, a U.S. Senator from the State of Nevada,
prepared statement............................................. 33
Paul Strauss, U.S. Shadow Senator for the District of Columbia,
prepared statement............................................. 34
NOMINATIONS OF HON. DANA KATHERINE BILYEU, MICHAEL D. KENNEDY, HON.
DENNIS P. WALSH, MILTON C. LEE, JR., JUDITH ANNE SMITH, AND TODD E.
EDELMAN
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TUESDAY, APRIL 20, 2010
U.S. Senate,
Committee on Homeland Security and
Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:07 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, presiding.
Present: Senators Akaka and Voinovich.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. This hearing will come to order.
Good afternoon and welcome to all of you. Today, the
Committee on Homeland Security and Governmental Affairs meets
to consider the nominations of Dana Bilyeu and Michael Kennedy
to be Members of the Federal Retirement Thrift Investment Board
(FRTIB) and Dennis Walsh to be Chairman of the Special Panel on
Appeals. On the second panel, we will consider nominations for
the District of Columbia Superior Court.
My friend, Senator Reid of Nevada, is unable to join us
today, but he submitted a statement of introduction and support
for Ms. Bilyeu that will be placed, without objection, at the
appropriate place in the record.\1\
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\1\ The prepared statement of Senator Reid appears in the Appendix
on page 33.
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The Federal Retirement Thrift Investment Board was
established in 1986 by legislation modernizing the Federal
retirement system and creating the Thrift Savings Plan (TSP).
The Board administers the TSP, which is a retirement savings
plan similar to a 401(k) plan for Federal employees as well as
military service members.
Ms. Bilyeu is well qualified to join this Board. She has
decades of experience with retirement funds and currently is
Executive Officer of the Public Employees Retirement System of
Nevada. In that role, she is responsible for fund management,
including investment oversight.
Mr. Kennedy also has strong credentials. He is Trustee for
the Employees Retirement System of Georgia pension fund, a
position he has held for over a decade already. He also has
spent many years in the private sector and currently is a
senior client partner at an executive recruiting firm in
Atlanta.
The Special Panel on Appeals resolves disagreements between
the Merit Systems Protection Board (MSPB) and the Equal
Employment Opportunity Commission (EEOC). These disagreements
arise on occasion in mixed cases where an employee appeals a
personnel action to the MSPB and also petitions the EEOC,
alleging that the action was based on discrimination.
Mr. Walsh is a distinguished attorney who currently serves
as the Associate General Counsel of the Federal Labor Relations
Authority. Prior to that, he spent 20 years working at the
National Labor Relations Board and served both as a member and
as Deputy Assistant General Counsel.
I am impressed with the qualifications of the nominees
before us and am confident that, if confirmed, they will have
much to offer the Federal Government.
I want to congratulate all three of you on your nominations
and welcome you and your loved ones to the Committee today. I
understand that you have some family and friends in the
audience, and I can hear them, too. [Laughter.]
I want to give you the opportunity to introduce them to the
Committee. Ms. Bilyeu, I would like to start with you and your
introductions.
Ms. Bilyeu. Senator Akaka, my mother, Laurel Sammons, and
my sister, Brooke Nielsen, are with me today in the audience.
Senator Akaka. Thank you. Mr. Walsh.
Mr. Walsh. Thank you, Senator Akaka. With me today is my
wife, Barbara A. O'Neill, who is a prominent labor attorney and
long-time public servant with the National Labor Relations
Board, sitting behind me.
Senator Akaka. Welcome. Mr. Kennedy.
Mr. Kennedy. Senator Akaka, I do not have anyone with me
today, so I am flying solo.
Senator Akaka. Thank you. Aloha again to you and your
families and your supporters, and welcome. You must be very
proud of your loved ones and what they have accomplished.
Now let me call on my good friend and partner here. We have
worked so well together over the years. Senator Voinovich and I
have sat on the Committee for many of those years. Senator
Voinovich is a true leader in Federal workforce issues and has
demonstrated his commitment during his time on this Committee
to improving all aspects of our Federal workforce.
Senator Voinovich, would you like to make an opening
statement at this time?
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Thank you, Senator Akaka. The two of us
have spent a lot of time together over 10 years working on
human capital and trying to create an opportunity where we can
keep the best and brightest and attract those that we would
like to see come into government.
Senator Akaka has really done a wonderful job of
introducing all of you. To our TSP nominees, you are coming at
a challenging time, but both of you have excellent credentials
for that job, and I appreciate your willingness to serve, and I
appreciate your families and the sacrifice they are going to
make so you can serve.
Mr. Walsh, I would like to recognize the fact that you are
willing to take on this job, in spite of the fact that you are
not going to get paid--because under the rules, you cannot
receive pay for two jobs--because you think it is going to make
a difference for our country, so I thank you very much for your
service.
Senator Akaka, thank you.
Senator Akaka. Thank you, Senator Voinovich.
Our nominees have filed responses to biographical and
financial questionnaires and answered prehearing questions
submitted by the Committee. Without objection, this information
will be made a part of the hearing record, with the exception
of the financial information, which is on file and available
for public inspection at the Committee offices.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath. Therefore,
I ask all of the witnesses to please stand and raise your right
hand.
Do you swear that the testimony you are about to give this
Committee is the truth, the whole truth, and nothing but the
truth, so help you, God?
Ms. Bilyeu. I do.
Mr. Kennedy. I do.
Mr. Walsh. I do.
Senator Akaka. Thank you. Let it be noted in the record
that the witnesses answered in the affirmative.
Ms. Bilyeu, will you please proceed with your statement.
TESTIMONY OF HON. DANA KATHERINE BILYEU \1\ TO BE A MEMBER,
FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
Ms. Bilyeu. Good afternoon and thank you, Senator Akaka,
Ranking Member, and Committee Members for holding the hearing
today. My name is Dana Bilyeu, and I am honored to appear
before you as a nominee to the Federal Retirement Thrift
Investment Board.
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\1\ The prepared statement of Ms. Bilyeu appears in the Appendix on
page 39.
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I am deeply grateful to President Obama for his confidence
in me for this position. I also want to express my thanks and
gratitude to Majority Leader Reid for his trust and support in
recommending me to the President for nomination to this
important post.
Before I start, I do want to thank my husband, Lindsay, and
my son, Mateo, for their continuing support both in our family
life and for my professional pursuits. Due to scheduling
conflicts, namely they are both in school full time, they were
unable to attend today's hearing. As I indicated previously,
both my sister and my mother are with me today. They both
inspire me to work to my greatest capacity, a trait that I
learned through keen observation of both of them as they made
their way through their personal and professional careers. My
father, Daniel Sammons, died in February of this year, and it
is in his honor that I speak today.
Should I be confirmed, I look forward to working with the
other members of the Federal Retirement Thrift Investment Board
and with the dedicated staff of the agency to further the
policy goals for the Thrift Savings Plan, as it is a critical
component of the retirement security for Federal employees. If
confirmed, I will draw on my 20 years of experience in the
retirement industry to fulfill my obligation to the members of
Thrift Savings Plan as a good steward of the investment policy
of the plan, providing low-cost, high-quality, broadly based
investment options for the members.
My experience as a retirement professional managing pension
assets for members and beneficiaries of the Nevada pension fund
will provide a complementary perspective on retirement
financing and investment vehicles for the Board. I began my
career in the retirement sector as General Counsel, moving on
to manage operations, outreach, education, and benefits for a
diverse population of employees. In my current capacity as the
Executive Officer, I am responsible for investment policy
development, asset allocation recommendations, and risk
management. I spend the lion's share of my average day focused
on the same issues that face individuals participating in the
Federal Thrift Savings Plan.
I have had an opportunity since my nomination to learn more
about the Thrift Investment Board, including the statutory
mission, activities, and current investment policy framework
within which the various investment vehicles for Federal
employees have been crafted. If confirmed, I will work hard to
continue the positive leadership already in place for this
program.
I have a great deal of experience working with a variety of
professionals responsible for managing retirement assets for
others as well as in the education sector within our industry.
Now, more than ever, given the volatility our Nation has seen
within the investment markets in the most recent market cycle,
it is imperative that the financial literacy efforts of the
agency be continued. Financial literacy allows participants in
the plan to evaluate their own risk tolerance and to make
informed investment choices that match that personal risk
tolerance.
I understand that the Office of Personnel Management is
primarily responsible for educating the Federal workforce as to
the nature of the benefits available to Federal employees, but
the efforts of the Thrift Investment Board and staff in
providing tools for employees to better understand the fund
options available to them focus employees on the need to set
aside funds today to help finance their futures in a manner
that best suits the employees' own goals.
Because the Thrift Savings Plan is a defined contribution
plan, the most important challenge facing the agency today is
the need to increase participation in the program in all
employment sectors, but particularly for our military. Congress
has provided a significant tool to aid this effort in allowing
an immediate agency match as an incentive to employees to
encourage participation, as well as automatic enrollment. If
confirmed, I will continue to emphasize the efforts of the
Board to educate the non-participating workforce and to provide
appropriate tools for the participating population to make
informed investment choices based on their individual goals.
I believe my background and experience have prepared me to
become a valuable and positive member of the Thrift Investment
Board, and I would like to thank the Committee for considering
my nomination. If confirmed, I look forward to working with the
Members of this Committee, the Committee staff, and Congress as
a whole.
I would be happy to answer any questions that the Committee
may have.
Senator Akaka. Thank you. Thank you very much for your
statement, Ms. Bilyeu.
Mr. Kennedy, will you please proceed with your statement.
TESTIMONY OF MICHAEL D. KENNEDY \1\ TO BE A MEMBER, FEDERAL
RETIREMENT THRIFT INVESTMENT BOARD
Mr. Kennedy. Mr. Chairman and distinguished Members of the
Committee, I am honored to appear before you today as a nominee
to the Federal Retirement Thrift Investment Board. I am deeply
humbled by the confidence that President Obama has shown in me
with this nomination.
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\1\ The prepared statement of Mr. Kennedy appears in the Appendix
on page 63.
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As you know, the FRTIB was established to provide guidance
and oversight for the Thrift Savings Plan, the primary pension
fund for Federal employees. If confirmed, I look forward to
working with the staff and participants in continuing to
fulfill the mission of FRTIB while strengthening the
organization.
I believe I was nominated for this position due to my
extensive financial services background and pension fund
experience. For the past 10 years, I have had the honor to
represent the citizens of the State of Georgia as a Trustee for
the Employees Retirement System (ERS) of Georgia. With assets
of approximately $14 billion, ERS has administered benefits to
over 130,000 active employees and 52,000 retirees. During my
tenure on the Board, I have served as a member of the
Investment Committee. For 5 years, I served as Board Chairman.
Over this past 10 years, we have worked closely with our
staff in enhancing our communications with participants in the
plan. This has been done through the implementation of an
effective call center as well as a revised and more interactive
Web site. We have provided greater access to participants
regarding retirement planning and education. Furthermore, we
have upgraded our technology, which has allowed ERS to operate
in a more efficient manner. Finally, we have attracted stronger
and more experienced talent to the organization, which will
benefit ERS long-term.
As an ERS Trustee, I have had the opportunity to become
involved in several national pension fund organizations such as
the National Association of State Retirement Administrators
(NASRA) and the National Association of Securities
Professionals (NASP). My involvement in these organizations has
allowed me to interact with trustees across the country and
learn about industry trends. This involvement has also allowed
me to develop best practices, which we have implemented back in
the Georgia system. All of these experiences will be beneficial
in my involvement with FRTIB, if confirmed.
In the first part of my professional career, I developed a
broad background in the financial services industry. I started
my career as an investment analyst at J.P. Morgan in New York,
where I analyzed bank and savings and loan stocks for portfolio
managers. In this role, I developed a foundation for
understanding equity capital markets.
After completing my MBA at Harvard, I worked as a banker at
Wachovia. In this role, I learned about the various financing
options for corporations. Finally, at GE Capital, I focused on
areas such as private equity and mezzanine debt. In addition to
the traditional equities and fixed income asset classes, I have
developed extensive knowledge of alternative investments. If
confirmed, these financial experiences should allow me to bring
a broad perspective to my position as a Board member at FRTIB.
Currently, I am a Senior Client Partner at Korn/Ferry
International in Atlanta. In my position, I conduct senior-
level searches for top talent in the financial services
industry. Over the past several years, I have conducted senior
searches for large pension fund organizations such as the
California Public Employees Retirement System (CalPERS), the
California State Teachers Retirement System (CalSTRS), and the
Teacher Retirement System of Texas (Texas Teachers). These
searches have allowed me to gain some insight into these
complex organizations while understanding the need to recruit
top investment talent. If I am confirmed, my recruiting
background will be helpful in my new role at the FRTIB as the
organization continues to recruit and retain top-level talent.
Should I be confirmed, I will focus my efforts in three key
areas: One, investment oversight; two, communications and
education; and three, recruitment and retention of top talent.
Although the current investment options appear to be
adequate, it is always prudent to continually review these
options in light of changing financial markets. It is also
prudent to analyze and review additional options in order to
remain current.
Although the FRTIB does a good job in its current
communications and education efforts, these areas need to be
continually enhanced in order to capture new participants.
Finally, it is important to make sure that the staff at the
FRTIB remains top-notch. This can be done through strategic
recruiting as well as providing constructive feedback to
current employees. It is important to create a welcoming
culture for employees and a team-oriented environment.
I believe that my pension fund experience and financial
services background have equipped me to make a positive
contribution to the Federal Retirement Thrift Investment Board.
If confirmed, I look forward to working with Members of this
Committee and the entire Congress in helping to strengthen the
FRTIB and maintain its important mission.
I would be happy to respond to any questions you may have.
Senator Akaka. Thank you very much for your statement, Mr.
Kennedy.
And now, Mr. Walsh, will you please proceed with your
statement.
TESTIMONY OF HON. DENNIS P. WALSH \1\ TO BE CHAIRMAN, SPECIAL
PANEL ON APPEALS
Mr. Walsh. Thank you. I am honored to be appearing before
this Committee as the President's nominee for the position of
Chairman of the Special Panel on Appeals. I would like to thank
you, Senator Akaka and Senator Voinovich, and the other Members
of the Committee for this opportunity to appear before you and
to be considered for this very important position. I would also
like to thank my wife, who I have already introduced, Barbara
O'Neill, who has supported me throughout my career in the
Federal Government, and our two children, Steven, who is a
sophomore in college, and Rose, a freshman in high school, and
as educational as this experience would have been for them, we
preferred for them to be in class, as well, today.
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\1\ The prepared statement of Mr. Walsh appears in the Appendix on
page 84.
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As you know and as you have described very aptly, the
Chairman of the Special Panel on Appeals is a position
established by the Civil Service Reform Act of 1978 to address
certain mixed cases that involve issues concerning both merit
systems principles and anti-discrimination principles as
applied to Federal employees. If a Federal employee appeals
such a case to the Merit Systems Protection Board and the MSPB
decides the case, the employee can subsequently appeal the
decision regarding the discrimination claim to the Equal
Employment Opportunity Commission. If the EEOC issues a
decision that differs from the MSPB's decision as to the
discrimination claim, it refers the case back to the MSPB. The
MSPB can concur in the EEOC's decision at that point, which
makes it a final decision subject to judicial review.
But if the MSPB determines that the EEOC's decision
conflicts with merit systems rules or laws, or that it did not
have sufficient evidence in the record in applying those rules,
it must certify the case to the Special Panel on Appeals. That
somewhat complex procedure is where this position comes into
play.
The Chairman of the Special Panel, a presidential appointee
under the Civil Service Reform Act, convenes a Special Panel,
consisting of himself or herself, a member of the MSPB, and a
Member of the EEOC. The Special Panel has 45 days to consider
the case and must decide within that time period if indeed the
EEOC's decision is in violation of merit systems rules or did
not apply them correctly to the record. In making such a
decision, the Special Panel must give due deference to the MSPB
on issues involving merit systems principles and to the EEOC on
anti-discrimination principles.
In a nutshell, Senators, that is the position which the
President has asked me to assume. I believe I am well
positioned to undertake this responsibility because of my
extensive experience as an adjudicator of labor cases at the
National Labor Relations Board (NLRB), my experience as a
Federal manager at the NLRB, and my present position as the
Deputy General Counsel at the Federal Labor Relations Authority
(FLRA).
As a member of the NLRB, I was called upon to decide cases
involving labor law issues under the National Labor Relations
Act as part of a politically divided yet collegial body. Our
job was to meld our various views together and decide cases as
expeditiously as possible. The job of the Chairman of the
Special Panel on Appeals, likewise, is to work together with
panel members who may have disparate points of view and to
issue a decision within a very tight time frame.
My priority as a decisionmaker at the NLRB was always to
decide cases quickly, while at the same time addressing all of
the issues thoroughly and fairly. Those skills should serve me
well if I am confirmed as Chairman of the Special Panel. As
both a Chief Counsel and a Member of the NLRB, I was often
confronted with issues involving both merit systems and anti-
discrimination principles since I was responsible for managing
my own Federal staff and also had co-responsibility with the
other Board Members and the General Counsel for overall
management at the NLRB.
And finally, in my current position as Deputy General
Counsel at the FLRA, I am responsible for the overall
management of a nationwide field staff of Federal employees. In
this position, therefore, I am becoming even more familiar with
the merit systems and anti-discrimination principles that the
Chairman of the Special Panel on Appeals is charged with
addressing.
The main priority of the Special Panel on Appeals is to
decide cases presented to it fairly and expeditiously within a
tight time frame. The statutory procedures that result in cases
being presented to the Special Panel are complex. That is
because those procedures are the product of a congressional
compromise that was designed to maintain a delicate balance
between merit systems and anti-discrimination principles by
providing a third-party administrative tribunal that can
reconcile those principles in a way that preserves the
authority of both the MSPB and the EEOC over the areas in which
each has the greatest expertise.
It is, therefore, important to have fair and impartial
decisionmakers on the Panel who understand the need both for
careful legal rationales and expeditious decisions. I believe I
have demonstrated my ability to accomplish both of those
objectives in my career as an adjudicator of labor cases.
I thank this Committee for its consideration of my
nomination, and I, of course, will be pleased to answer any
questions that you may have.
Senator Akaka. Thank you very much, Mr. Walsh, for your
statement.
I will begin with the standard questions this Committee
asks of all nominees and ask you to answer these questions
verbally.
Is there anything you are aware of in your background that
might present a conflict of interest with the duties of the
office to which you have been nominated?
Mr. Walsh. No, sir.
Ms. Bilyeu. No, sir.
Mr. Kennedy. No, sir.
Senator Akaka. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Walsh. No, sir.
Ms. Bilyeu. No, sir.
Mr. Kennedy. No, sir.
Senator Akaka. Finally, do you agree without reservation to
respond to any reasonable summons to appear and testify before
any duly constituted Committee of Congress if you are
confirmed?
Mr. Walsh. Yes, sir.
Ms. Bilyeu. Yes, sir.
Mr. Kennedy. Yes, sir.
Senator Akaka. Thank you very much for your responses.
I have some questions here for you. This question is for
both Ms. Bilyeu and Mr. Kennedy. You both have distinguished
careers and serve on State pension boards that make investment
and policy decisions to provide for public worker retirement.
As you know, the Federal Retirement Thrift Investment Board
makes similar decisions that affect millions of Federal
employees. Please discuss how your experience has prepared you
to serve on this Board. Ms. Bilyeu.
Ms. Bilyeu. Thank you, Senator Akaka. My experience in the
managing of the Public Employees Retirement System in Nevada
has prepared me, I think, to be a major contributor to the
Thrift Savings Plan for the Federal workers in that we make
investment decisions all the time. We manage investment
professionals. We monitor return numbers. We monitor fees, all
of the very same things that this Board will be doing on behalf
of those that are participating in the various funds approved
by Congress. From that perspective, being able to lend that
expertise to this Board, I think, will allow us to provide a
greater depth of experience to the Board over time.
Senator Akaka. Mr. Kennedy.
Mr. Kennedy. Yes, Senator Akaka, I think there are several
areas, and I may have mentioned some in my opening statement,
but I think from a communications standpoint, I certainly have
been involved in that area as a Trustee of the State of
Georgia. In addition, education, coming up with creative ways
to educate some of the participants in the plan about
investments and also just about retirement planning in a
general sense. And then third, as Ms. Bilyeu pointed out, the
oversight of investments. We certainly have a great deal of
experience in that regard.
The other factor is that she and I have both been involved
in several national public pension fund organizations, so
therefore, we have been able to develop a network of other
people leading to best practices and things of that nature.
So I think those are some of the things that we would be
able to bring to the FRTIB from our State perspectives.
Senator Akaka. Thank you very much.
Mr. Walsh, you have a long record of service at the NLRB
which administers the National Labor Relations Act, the law
governing relations between unions and private sector
employers. You already touched on this, but I would like you to
discuss how your experience has prepared you for the Special
Panel on Appeals and what you will do to further develop your
expertise in Federal employment and discrimination law.
Mr. Walsh. Thank you, Senator. Yes, in terms of my
experience, I think that in some ways I am uniquely positioned
for the Chairman of the Special Panel position in the sense
that it was my role on the National Labor Relations Board to
work with other decisionmakers to carefully craft decisions on
labor law issues in an expeditious way, which is, in general,
of course, the job of the Chairman of the Special Panel.
In terms of expertise in Federal merit systems and anti-
discrimination law, as I said, I have had experience with it as
a manager in a Federal agency, and I am now, as a manager in an
advisory capacity at the Federal Labor Relations Authority,
learning more and more about Federal service law and the
principles that apply to Federal employees. There is also staff
assistance available to the Chairman of the Special Panel at
both the EEOC and the MSPB, and that will be my first priority,
to draw upon the vast experience at those two agencies to
educate myself even more thoroughly on civil service principles
as well as anti-discrimination principles so that I will be
ready whenever a case comes before the Special Panel.
Senator Akaka. Thank you, Mr. Walsh. Ms. Bilyeu and Mr.
Kennedy, as you both know, I am a strong advocate for improving
financial literacy. Will you please give specific examples of
the steps you will take as a Board member to increase
participants' education about their investment options?
Ms. Bilyeu. Senator Akaka, the first step, if we are
confirmed in these positions, that I would want to do is to
take a very in-depth look at what is the financial literacy
education program that is currently in place at the TSP, and I
know that there have been some broad steps taken there, as well
as making some of their tools a little bit more interactive for
individuals.
I think the first step that I would want to look at
implementing is broadening how we address those that are non-
participants in the program, particularly those in the
military. As I indicated in my opening statement, those that
are at the beginning of their careers, those that are very
early on, 18, 19, and 20-year-olds, often are those that have
the hardest time deciding to participate in these programs, and
they are actually the group that needs to start participating
early, and our military, I think, is a great example of that.
We have a very young military, and those that need that
participation, we will be focusing on that.
Financial literacy is very difficult to strike the right
balance between how much information you give them and how
careful you are not to lead them to make particular choices.
For me, financial literacy means being able to have the
individual be able to assess what their own risk tolerance is
and to learn about the various risks of the funds as they go
forward. So introducing a risk component to the education
process is something that I would want to see happen.
Senator Akaka. Thank you. Mr. Kennedy.
Mr. Kennedy. And just to build on Ms. Bilyeu's comments,
which I agree with wholeheartedly, I think there are several
things that the FRTIB has already started to implement that
will help in terms of communications within the financial
literacy area. Specifically, they have been working to enhance
the Web site to make it more interactive as a way to get the
message out to more and more people, and I think that will be
something that we will continue to work with the staff to
continue to develop going forward.
Second is in the area of the call centers because they have
actually set those up, and it is another mechanism specifically
they have in order to communicate with current participants and
hopefully with new participants. As Ms. Bilyeu pointed out, I
think one of the challenges that the FRTIB and TSP will be
confronted with is continuing to bring new plan participants
into the plan. So that is something that will be a goal of mine
as well as, I think, of hers going forward.
Senator Akaka. Thank you very much.
Ms. Bilyeu, in your answer to this Committee's prehearing
questionnaire, you identified investment performance oversight
as an area you plan to focus on, if confirmed. Please explain
why performance oversight is important to the Thrift fund and
its participants. I just want to warn Mr. Kennedy that I am
going to ask you for a comment on that, too. Ms. Bilyeu.
Ms. Bilyeu. Senator Akaka, from the experience that I have
seen, both in my current professional career and after review
of the funds that are available in the Thrift Savings Plan, you
want to make sure when you are using even index funds, which is
what is used primarily at the TSP, that your investment
managers are following all the terms and conditions that have
been set for them. There are a lot of layers to that in the
investment world, and from my perspective, as fiduciaries to
the fund, it is our obligation to ensure that those that are
actually doing the investments on behalf of the individuals
have very clear responsibilities to report to us how they are
doing. Any of their potential issues that may come up, we
should know about those ahead of time.
So it is about ensuring that those that have been charged
with the obligation to actually invest the funds on behalf of
the individual members are doing what they are supposed to do,
and as a fiduciary, I think that is one of my major goals.
Senator Akaka. Mr. Kennedy.
Mr. Kennedy. Just to build on that comment, I would
continue to work and sort of monitor and oversee not only the
performance of the investment management options that are in
the program, but the stability of the investment management
firms providing the mutual funds or whatever the various
options are. We live in a very rapidly changing financial
environment. There is a great deal of consolidation within the
financial services industry. Many of the firms, as you know,
continue to merge and things of that nature. So we really need
to have an understanding and feel comfortable that the
investment management firms that we do employ to provide the
options remain strong, as well as some of the comments that Ms.
Bilyeu made.
Senator Akaka. Thank you very much. Senator Voinovich.
Senator Voinovich. Mr. Walsh, I think you are in great
shape. Senator Akaka asked some good questions. I am going to
concentrate on Ms. Bilyeu and Mr. Kennedy, so you can breathe
easy.
Mr. Walsh. Thank you. [Laughter.]
Senator Voinovich. First of all, Ms. Bilyeu, you have a
husband and a son named Mateo?
Ms. Bilyeu. Mateo is my son.
Senator Voinovich. Bilyeu, it is an interesting name. What
derivation is that, do you know?
Ms. Bilyeu. That is a good question, Senator Voinovich. I
would be happy to get back to you---- [Laughter.]
Senator Voinovich. It is going to have a lot to do with
this job. [Laughter.]
Ms. Bilyeu. I believe that it is Cajun derivation. It is a
French derivation that has been misspelled over time, and so we
believe the background is Cajun.
Senator Voinovich. Well, you will have to excuse me because
my parents were first generation, and the first question that
was always asked at the table was, what is their ethnic
background? So I play games guessing people's background.
You both have a tough job. We do not know where the markets
are going. Can you share with me who the managers are for the
respective funds, and what qualifications do you have and how
would you monitor their performance? In other words, I think
many believe that we have a bunch of people at the Thrift Board
that are looking at various stocks and deciding on how the TSP
should be invested, when actually what the TSP does is hire
some firms for this function and then they kind of oversee what
they are doing. I would like your opinion on how do you judge
the performance of those people and how do you make sure that
the TSP is not going down the wrong track.
Ms. Bilyeu. Senator Voinovich, Senator Akaka, from my
perspective, when you are looking at investment management
firms of any type, those that are currently hired by the TSP
or, for instance, my own pension fund, there are various types
of management. When you have index managers, which are passive
managers managing against indexes themselves, the first thing
you want to do is make sure that they are tracking the index
appropriately, that they are following the mandate that has
been given to them, and that is a significant issue for us
because tracking error always means performance changes.
You want to make sure that the team that is involved in the
oversight of the account is maintained; it stays in place; it
is not one in which there are a lot of changes. And as Mr.
Kennedy indicated, you want to make sure that there is
stability in those firms----
Senator Voinovich. I think there are two managing firms now
for them.
Ms. Bilyeu. I believe one of them is Barclays Global
Investors (BGI), which is the most significant money manager in
the country at this point. We actually refer to them sometimes
as the 800-pound gorilla in the investment management world
because they are such a very significant firm. It is a very
strong firm, with very strong performance, particularly in the
index world, which is where the lion's share of these funds
are.
Senator Voinovich. Mr. Kennedy, please go ahead and
comment.
Mr. Kennedy. Yes. And just to pick up on that, I really do
think we need to underscore the stability factor, as well,
because certainly we will work with the staff at the FRTIB in
reviewing the investment returns for the various funds and
making sure there is not a drift from being the passive style
that they selected. So tracking the mandates is going to be
vitally important. But I do think it is going to be equally as
important to make sure that we have a great deal of stability
for the individuals who are working with the FRTIB on the
specific choices so there is not a lot of turnover, because
typically when there is turnover in these firms, then that
could lead to some performance issues. So I think from that
standpoint, it will be important for us to make sure that there
is a remaining stability there.
Senator Voinovich. Have you had an opportunity to review
their performance in the last 2 or 3 years, and is there
anything that causes you to have some concern about what we are
doing?
Ms. Bilyeu. Senator Voinovich, from the perspective of the
passive mandates that they have, my personal impression of them
is that they have tracked their indexes very well. Now,
obviously, the indexes themselves have suffered as everything
has suffered in the financial downturns. But being able to
capture those returns on the way down and then again on the way
back up, I believe that they have been capable of doing that,
and there has not been, other than mergers, as Mr. Kennedy
spoke of, really not a lot of turnover within those firms.
Particularly BGI--it is actually called BGI BlackRock, or I
cannot remember the merged name at this point--it is a very
significant firm, and so from my perspective, I would want to
make sure that the index team that is in place handling these
funds on behalf of the members of the Federal Thrift Savings
Plan has them first and foremost in their minds as they move
forward with their mandates.
Senator Voinovich. Great. So basically, from your
perspective, our funds have come back pretty much like some of
the other similar funds? They have done a pretty good job?
Ms. Bilyeu. I would say, yes, they have tracked exactly
basically what the market has done. The market itself is, of
course, extremely volatile, and so from my perspective, I would
want to look even a little bit closer at that to see how well
the individuals who participate in those funds have actually
done because what you see happening with a lot of individual
investors is the funds may do very well, but the individuals
themselves within them, because they become concerned about
what is going on in the markets, may pull out at the wrong
times, get back in at the wrong times. So there is probably a
difference between how your individual investors are doing
versus how the index funds themselves are doing.
Senator Voinovich. That gets into the whole issue of the
Office of Personnel Management's (OPM) responsibility for
education. Both of you would probably agree that OPM needs to
do much more work in that area so people are a little more
sophisticated in terms of what they are doing, particularly
given our current climate.
Ms. Bilyeu. Everyone needs to do a lot more work in
education. All of us do.
Senator Voinovich. One of the things that you are going to
find is you are going to be pestered by various people in terms
of adding to the options that are available. Senator Akaka and
I faced real pressure to add Real Estate Investment Trusts
(REITs) to the TSP. They really lobbied, very heavy lobbying,
and the Board said no to it, noting that there were some
options that were available within existing TSP funds for the
REITs, but the fact was they did not think we ought to get into
it. I guess as I look back on that, it was a very good decision
by the Board.
If you look at the portfolio that is available--you
mentioned you are both involved in your pension plans, but you
are also involved in your deferred compensation programs, too,
in your respective States--do you think that we have enough
options available right now for our Federal employees?
Mr. Kennedy. I would probably say we do, and I am
comfortable with the options that we currently have and the
composition of the TSP. And I guess the reason why I say that
is you want to make sure that you provide enough options but
not too many options because when you start to provide too many
options, then you really need to do a better job educating the
participants about what these new options are. So I think it
adds a whole different sort of element to the process as you
start to add a great deal of additional options.
Now, with that said, I do think it is important for us to
continue to look at new options and new ideas because things do
change in financial markets. And one of the things I can sort
of add to the FRTIB is the experience I have had in the
alternatives investment space, and I am certainly not
advocating that the FRTIB or TSP go in that direction. But as
we look at things such as REITs and we look at social
responsibility funds and other ideas that kind of gravitate to
us, I think it will be good to be able to at least take a look
at it and be able to make some pretty good decisions going
forward about why we are not going to do that. So I am pretty
comfortable with the line-up that we have today.
Senator Voinovich. Ms. Bilyeu.
Ms. Bilyeu. Just adding to what Mr. Kennedy has said, the
whole concept of the array of funds that you have is to allow
the individuals, based on how much they want to put into those
funds, to balance out what their risk tolerance is. Some of
them are stock funds, some are bond funds, and some are
lifestyle funds, and the idea is to be able to allow those
individuals to match what they believe their risk tolerance is
and what their personal investment goal is.
Right now, I think you have a broad array that does do that
and allows for the diversification that is part of the entire
investment process. As Mr. Kennedy said, though, you do want to
continue to look at how that evolves and continues through and,
of course, to always make decisions for either adding or
deleting a fund through the process of where you are
approaching it from the broadest possible perspective for the
most people in your fund overall.
Senator Voinovich. The last comment, Senator, is that
several years ago, we had a member of the Senate by the name of
Peter Fitzgerald from the State of Illinois, a banker. I am
still asking my staff to see if I could get a copy of his
speech on the TSP. But one of the things he said, for all the
people here who are part of the TSP program, is that the cost
involved to the participants is the lowest in the country
today. It is amazing. I never really appreciated that. The cost
of being involved in the TSP is the lowest perhaps in the
world. And it all adds up if you stay in it for many years.
That is another thing, I think, that ought to be driven home
with folks, that this is a pretty good operation that they are
fortunate to be a part of.
Thank you very much for your testimony.
Senator Akaka. Thank you very much, Senator Voinovich.
Let me ask Mr. Walsh a question. The Special Panel on
Appeals has issued only five decisions since 1978. What is your
understanding of the role of the Special Panel on Appeals and
the responsibilities of the chairman?
Mr. Walsh. Thank you, Senator. The role is really to act in
a way as an intermediary and also as kind of a check. It is to
ensure that both anti-discrimination principles and the civil
service or merit systems principles are taken into
consideration in these kinds of cases because we have two
agencies, each of which has expertise in its own area. So the
Special Panel's role is really to achieve parity between the
principles while also preserving the authority of the two
agencies over their areas of expertise.
And in terms of how many cases have been heard, it is true
that there have been very few cases, but that does not
necessarily mean that both the chairman and the panel do not
have an ongoing role, because just the fact that this appeals
process and this panel exists is a check on each agency in
terms of applying the principles that are usually the expertise
of the other one, to make sure, for example, the MSPB correctly
applies anti-discrimination principles and the EEOC correctly
applies merit systems principles. The fact that this process
and this panel exists is kind of a check and a balance to make
sure that happens.
Senator Akaka. Thank you very much for your testimonies. At
this time, there are no further questions. There may be
additional questions for the record, which will be submitted to
you in writing. The hearing record will remain open until the
close of business tomorrow for Members of this Committee to
submit additional statements or questions.
Ms. Bilyeu, Mr. Kennedy, and Mr. Walsh, I wish you all the
best of luck as we move forward here. I would tell you that I
am impressed with your backgrounds and with your testimony and
look forward to moving as quickly as we can on confirmation. So
thank you again, and thank your families and supporters who are
here with you. Thank you very much.
Mr. Walsh. Thank you, Senator.
Mr. Kennedy. Thank you.
Ms. Bilyeu. Thank you.
Senator Akaka. I would now like to call up the nominees for
the D.C. Superior Court.
[Pause.]
Senator Akaka. I want to welcome everyone to the second
part of today's proceedings as this Committee considers the
nominations of Todd Edelman, Milton Lee, and Anne Smith to be
Associate Judges of the District of Columbia Superior Court.
We consistently receive excellent D.C. Court candidates
nominated by the President from those recommended by the
nonpartisan Judicial Nomination Commission. I am confident
that, if confirmed, these nominees will join the others who
have appeared before us in making valuable contributions to the
District.
I would now like to welcome Congresswoman Norton to the
Committee and yield for her introduction of our nominees.
Congresswoman Holmes Norton, please proceed.
TESTIMONY OF HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS
FROM THE DISTRICT OF COLUMBIA
Ms. Norton. Thank you, Mr. Chairman, and while I am here,
may I also thank you for your long and dedicated work for us as
you get to do not only this but a lot more for the District of
Columbia.
And may I express my thanks especially to Senator
Voinovich, who is leaving the Senate this year. Senator
Voinovich has rendered especially dedicated service to the
District of Columbia. He was a former mayor, and he never
forgot what it was like to be mayor of a big city, and he
showed every bit of it when he served on our committees and in
the Senate, and I thank him personally for that service.
For you, Mr. Chairman, and Mr. Voinovich, we have three
especially well qualified candidates, as you, Mr. Chairman,
have already said, and I will not belabor the point except to
introduce them briefly.
Todd Edelman is a clinical Professor of Law at Georgetown
University Law Center. He is well qualified for the court. He
has been chief of the Serious Felony Section of the Public
Defender Service and has tried in the very court where he is to
serve over 60 cases. He is a cum laude graduate of Yale
University and was a Root-Tilden Scholar at the New York
University School of Law.
Judge Milton Lee is already a judge, but he is a Magistrate
Judge on the Superior Court where he would serve. He is a
graduate of American University and Catholic University Law
School. He, too, worked at the Public Defender Service, and I
might say, Mr. Chairman, that our Public Defender Service is
renowned for attracting the best and the brightest from across
the country. It is the best Public Defender Service in the
country. He was Deputy Trial Chief while he was there. He has
been on the faculty as a professor at the District of Columbia
School of Law. We are particularly grateful in the District
that he has spearheaded the development of the District of
Columbia Superior Court's Fathering Court Program, considering
the duties he will have if he is confirmed.
And finally, Mr. Chairman, I am pleased to introduce Judge
Judith Smith to you today, who is also already a judge, but a
Magistrate Judge, and a graduate with high distinction from
Pennsylvania State University, a Certified Public Accountant,
and a graduate of Georgetown University Law Center. She has had
the distinction of already serving as a law clerk to an
Associate Judge on the Superior Court, so she knows the court
she would serve very well. She, too, has extensive trial
experience with the Public Defender Service of the District of
Columbia.
I do not think you will find better qualified candidates
than these to serve on our excellent Superior Court, Mr.
Chairman.
Senator Akaka. Thank you. Thank you very much,
Congresswoman Norton. It is always good to see you here. We
appreciate your being here today to introduce the nominees.
Ms. Norton. Thank you, sir.
Senator Akaka. Thank you very much.
Our nominees all have strong legal backgrounds and have
devoted much of their careers to public service. Each of them
has served as an attorney for the D.C. Public Defender Service.
Mr. Lee has been a Magistrate Judge for the D.C. Superior Court
for more than a decade, presiding over a wide range of
calendars. Ms. Smith also is a D.C. Superior Court Magistrate
Judge, serving in the Court's Family Division. Mr. Edelman
currently is a professor in Georgetown Law's Criminal Justice
Clinic, and he practiced civil litigation before that.
I believe these nominees have much to offer the D.C.
Superior Court, and I hope we can act quickly to confirm them.
Senator Voinovich, do you have any statement to make?
Senator Voinovich. Yes. Thank you, Mr. Chairman. I want to
extend a welcome to the nominees and to their families, and I
thank you for your willingness to serve on the District of
Columbia Superior Court.
As Senator Akaka says, we have three experienced attorneys,
two of whom currently serve as Magistrate Judges, and I know it
is no surprise for me to say that judges have significant
responsibilities.
Mr. Chairman, I have reviewed each of the nominees'
biographical questionnaires and believe each of them is well
qualified to serve as Associate Judge for the Superior Court of
the District of Columbia, and each of them would bring
extensive legal experience to the bench. Without echoing your
remarks about each of these nominees' specific qualifications,
I do want to point out that they all have a history of public
service as each of them has gained practical legal experience
working for the District of Columbia Public Defender Service. I
think it is also notable that they have each taught law
students practical trial court skills in Georgetown
University's law clinics. And I understand that both Judge
Smith and Judge Lee have served well as Magistrate Judges, and
I also note that Judge Smith hails from my home State of Ohio.
It is good to have a Buckeye before me.
I look forward to hearing from each of you about the
reasons why you think that you are qualified, but I already
know that. I hope the Committee will vote on your nominations
in the very near future. Thank you.
Senator Akaka. Thank you very much, Senator Voinovich.
Each nominee has filed responses to a biographical and
financial questionnaire submitted by the Committee. Without
objection, this information will be made part of the hearing
record, with the exception of the financial data, which will be
kept on file and made available for public inspection in the
Committee office.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath. Therefore,
at this time, I ask you to please stand and raise your right
hand.
Do you swear that the testimony you are about to give this
Committee is the truth, the whole truth, and nothing but the
truth, so help you, God?
Mr. Lee. I do.
Ms. Smith. I do.
Mr. Edelman. I do.
Senator Akaka. Thank you. Please note for the record that
the witnesses answered in the affirmative.
Judge Lee, I understand you have family here with you
today. I would like to give you an opportunity to introduce
them at this time.
TESTIMONY OF MILTON C. LEE, JR.\1\ TO BE AN ASSOCIATE JUDGE,
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Mr. Lee. Thank you very much, Mr. Chairman and Senator
Voinovich. It is certainly my pleasure. I am honored to be here
before you today.
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\1\ The prepared statement of Mr. Lee appears in the Appendix on
page 110.
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I would like to introduce the members of my family, and I
would like to say first and foremost that I really could not be
where I am today if I did not have the type of support that
they have offered to me. I know they have sacrificed on many
occasions so that I can be in a position to continue to serve
the citizens of the District of Columbia.
Seated immediately behind me is my wife, Claudia. My sister
is in the audience, as well, Sandra Baumgardner, her daughter,
Deanna, and her grandson, John. My son, Joshua, is a freshman
at Temple University, and he is unable to be here today because
he indicated to me last week that he had study commitments and
exams to take care of, and while I was a little shocked at the
maturity of that response, I was very pleased by it. So he is
not here. He is here in spirit, quite frankly.
I would also like to say that there are many other people
in the gallery who have been supportive, as well. My staff at
the courthouse has really made it a pleasure for me to serve in
the capacity that I serve. My secretary, Michelle Fitzgerald,
is here. My current law clerk, Sarah Acker, and my current
courtroom clerk, Ronnie Mitchell, are all present, as well, and
I would like to say publicly that these are the folks who are
really the backbone, the workforce of the Superior Court. They
often do not get the type of credit that they deserve, and so I
want to publicly thank them for everything that they have done
for me during my time on the court.
I would also like to thank Chief Judge Lee Satterfield, who
has supported me in every endeavor since I have joined the
court. Also present is Judge Emmett Sullivan from the U.S.
District Court here in the District of Columbia. He is the
Chair of the Judicial Nomination Commission, and that
commission was responsible for forwarding my name to the White
House. I would also like to thank President Barack Obama for
the nomination that I received for the position of Associate
Judge.
I am fortunate. I am blessed, I think, in many respects,
and more than just a little humbled to be in the position to
come before you on this nomination. I am born and raised here
in the District of Columbia. I am educated by the city school
system. I graduated from American University and received my
law degree from Catholic University. Upon graduation, I joined
the Public Defender Service here in the District of Columbia
and practiced with that agency for 9 years in the very court
that I now work with and I hope to continue to work with.
I have also been a faculty member at the University of the
District of Columbia School of Law, where I have taught in the
Juvenile Law Clinic, and I have transitioned over to many
substantive classroom experiences, teaching evidence, criminal
procedure, and criminal law, to name a few.
I joined the court in 1997 as a Magistrate Judge, and I
have served in every single branch of the court, and I think
that experience has served me well over the years.
One of the best experiences I have had with the court has
been the work that I have had on the Fathering Court
Initiative, and that is a program that is designed to help
fathers coming home from a period of incarceration reunite with
their families so that they are fathers in every sense of the
word. We assist them in getting employment. We provide
educational services and job training. We make sure that they
are current on their child support, that they are reconnected
with their children, and that they do not reoffend. Those are
the things that this program has done over the course of the
last 4 years, and I am proud to say that I have been a part of
that.
My professional life has been dedicated to serving the
citizens of the District of Columbia through our judicial
system. If confirmed, I would be honored to be in a position to
continue that service as an Associate Judge. I recognize that
people come to the Superior Court at a time when there is a
great deal of anxiety, when they are looking sometimes for
answers, for a solution to the things that trouble them the
most. I think they deserve to be treated with dignity and
respect. They should have their cases decided efficiently and
fairly, and we should exercise the greatest amount of
professionalism in delivering that justice to them.
That is the commitment that I have made to the citizens of
the District of Columbia and the commitment that I make to this
Committee, and if confirmed, that is the way that I will
approach delivering justice for our citizens.
I want to thank the Committee and its Members. Its staff
has been very professional and courteous. They have given us
every piece of assistance we could possibly ask for. I look
forward to answering any questions that you may have about my
qualifications to continue service as an Associate Judge.
Senator Akaka. Thank you very much, Judge Lee. I want to
say, it is good to have your family here, as well as those who
support you.
Judge Smith, will you please introduce your family and
continue with your statement.
TESTIMONY OF JUDITH ANNE SMITH \1\ TO BE AN ASSOCIATE JUDGE,
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Ms. Smith. Thank you, Senator Akaka and Senator Voinovich.
I want to thank you for the opportunity to appear before you
today to have you consider my qualifications for a position as
an Associate Judge on the D.C. Superior Court. I am honored to
be nominated and want to thank the Judicial Nomination
Commission, and in particular the Chair of the Commission, the
Hon. Emmett Sullivan, for recommending me to the White House,
and finally President Barack Obama for nominating me. I also
want to thank the Senate Committee staff for their
professionalism and assistance throughout this process.
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\1\ The prepared statement of Ms. Smith appears in the Appendix on
page 137.
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Before I introduce my family, I also would like to thank
Congresswoman Norton--I know she may have left already--for her
kind remarks and introduction, and Chief Judge Lee Satterfield
and several other Superior Court Judges for their advice and
guidance.
I do want to introduce my family who traveled from Florida
to be here with me today: My parents, Richard and Sarah Smith,
and my sister, Christine Carter, all three of whom have set a
wonderful example for me and provided their love and support.
I especially want to acknowledge my son, Jalen Pierce
Smith, who turns six just next week, who is very excited about
being here today. I would also like to thank my significant
other, Lonnie Spencer, although he is unable to be here today.
I do also want to acknowledge my Judicial Administrative
Assistant, Patricia Harris, my law clerk, Helen Pilstrom, and
my courtroom clerk, Jonathan Hopkins, who have been so helpful
to me in my first year and a half as a Magistrate Judge. Also,
there are a number of friends, former colleagues, and role
models here or watching the hearings who have supported me both
professionally and personally throughout my years of public
service in the District of Columbia. I truly appreciate their
advice, support, and encouragement.
As Senator Voinovich noted, I was born in Columbus, Ohio,
where I attended public schools. I received my bachelor's
degree in accounting from the Pennsylvania State University and
became a Certified Public Accountant. I worked for Price
Waterhouse for a number of years in both Boston and Columbus. I
then relocated here to Washington, DC, more than 20 years ago
to attend Georgetown University Law Center and embark on a
career in public interest law.
After graduating from Georgetown, I was fortunate to clerk
for an exceptional jurist, the Hon. A. Franklin Burgess, Jr.,
an Associate Judge, D.C. Superior Court, for whom I have great
admiration and respect.
Following my clerkship, I spent the majority of the next 15
years in public service in the District of Columbia. I served
as a Special Education Attorney, a Juvenile Services Attorney,
and a Supervising Attorney at the Public Defender Service (PDS)
for the District of Columbia and also as an attorney for the
District of Columbia Public Schools and the Office of the State
Superintendent of Education for the District of Columbia. I
have appeared before dozens of current Superior Court judges as
well as several Federal court judges over the years as I worked
on special education and juvenile justice issues.
I then had the great fortune to be appointed as a
Magistrate Judge in the Family Court of D.C. Superior Court in
September 2008, presiding over primarily abuse and neglect
proceedings, as I still do now. In this position, I have had
the privilege of serving the citizens of the District of
Columbia. If confirmed, I will continue to serve with integrity
and provide fair, efficient, and respectful justice to those
who come before me.
I am honored to be considered for this position and look
forward to answering any questions the Committee may have about
my qualifications. Thank you.
Senator Akaka. Thank you very much, Judge Smith. I want to
add my welcome to you, your family, and your supporters, as
well.
Now we will hear from Mr. Edelman. Please introduce your
family and then give your statement.
TESTIMONY OF TODD E. EDELMAN \1\ TO BE AN ASSOCIATE JUDGE,
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Mr. Edelman. Thank you, Mr. Chairman and Senator Voinovich.
I am grateful for and honored by the opportunity to appear
before you today as a nominee to be an Associate Judge on the
Superior Court of the District of Columbia.
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\1\ The prepared statement of Mr. Edelman appears in the Appendix
on page 153.
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I want to begin by introducing my family: My wife, Marisa
Nightingale, who is directly behind me, along with our
daughter, Nora, who is on the second day of her fifth birthday
party today. Our son, Jacob, was not showing this body the
respect that it deserved, so he is now in the hallway.
[Laughter.]
My mother and stepfather, Sybil and Lewis Mitchell, are
also here, up from Florida, as well as my father-in-law and
mother-in-law, Stuart and Elena Nightingale. And while I have a
lot of people to thank today, I know that I am sitting in front
of you primarily because of my family's support, encouragement,
and patience.
A number of my friends, colleagues, and students are also
here in the gallery, and I would like to thank them not only
for their support today, but for their inspiration and their
challenges and at times their entertainment over the last 15
years.
I would also like to thank the District of Columbia
Judicial Nomination Commission and Judge Sullivan for
recommending me to the White House and President Barack Obama
for nominating me.
And finally, I would like to thank the Committee for
considering my nomination so expeditiously and the Committee
staff for their hard work in preparing for this hearing on such
short notice and for the courtesy they have shown me during
this process.
I went to law school 15 years ago to pursue a career in
public service, and I feel fortunate that I have had the
opportunity to do so. I have dedicated my legal career to
protecting the principles that access to justice should be
equally available to everyone in our community and that the
quality of representation provided in court should not depend
on income, wealth, or connections.
As a public defender at the Public Defender Service and the
Georgetown University Law Center's Criminal Justice Clinic, I
represented indigent men and women in D.C. Superior Court for
over 12 years, work that I have found to be both a daunting
responsibility and a unique privilege. I have also spent much
of my career teaching other public defenders and legal service
providers and other attorneys and law students who work on
behalf of low-income people here in Washington.
As a clinical professor at Georgetown Law, I aim to instill
in my students a passion for using their law degrees to help
those who need it the most. The same commitment to public
service and the principle of equal justice under the law that
motivated me to go to law school and to take these positions at
PDS and at Georgetown has motivated me also to seek appointment
to the bench.
As I contemplate the next step in my career, I cannot help
but think about the way that I started my career, which was as
a law clerk to Judge William Bryant in the U.S. District Court
for the District of Columbia. Judge Bryant was a legendary
trial lawyer, a respected and historic jurist, and, above all
else, one of the warmest and kindest men I have ever met. Judge
Bryant may have taught me more in that one year than I have
learned since, and he set an example that I will seek to
emulate should I be confirmed.
Judge Bryant was intellectually curious, committed to
applying the law impartially and fairly, and dedicated to
showing equal respect to all parties. If I am confirmed, after
my career on the bench is over, I hope to be remembered the way
Judge Bryant is remembered, as a judge who treated litigants
with dignity and his role with humility.
I am quite moved to be here sitting as a nominee for a
judgeship on the D.C. Superior Court. That is the court where I
grew up as an attorney, where I learned much of what I know
about the law and being a lawyer, about winning and losing, and
about the joys and challenges of public service. I am humbled
to be considered for this position, and I thank you again for
considering my qualifications.
Senator Akaka. Thank you very much, Mr. Edelman. It is
wonderful to have all of your loved ones here and those who are
supporting you. I am sure they are proud of all you have
accomplished.
Let me continue with the standard questions this Committee
asks of all nominees. I would like you to answer each of the
questions.
Is there anything you are aware of in your background that
might present a conflict of interest with the duties of the
office to which you have been nominated? Mr. Lee.
Mr. Lee. No, sir, Mr. Chairman.
Senator Akaka. Ms. Smith.
Ms. Smith. No, sir.
Senator Akaka. Mr. Edelman.
Mr. Edelman. No, Mr. Chairman.
Senator Akaka. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated? Mr. Lee.
Mr. Lee. No, sir.
Senator Akaka. Ms. Smith.
Ms. Smith. No, sir.
Senator Akaka. Mr. Edelman.
Mr. Edelman. No, sir.
Senator Akaka. Do you agree without reservation to respond
to any reasonable summons to appear and testify before any duly
constituted committee of Congress if you are confirmed?
Mr. Lee. Yes, sir.
Ms. Smith. Yes, sir.
Mr. Edelman. Yes, sir.
Senator Akaka. Thank you very much.
This is to all three of you on the panel. I see that you
are former D.C. public defenders. I commend your decision to
serve those who may be unable to afford legal representation.
How did your experience as a public defender shape your sense
of justice and your approach to later work? Mr. Edelman, I
would like to start with you.
Mr. Edelman. Thank you. Being a public defender has
obviously been the bulk of the work I have done as an attorney,
and it has shaped much of the way I see the law. I think the
thing that has struck me above all else is the importance of
having not just competent counsel, but excellent counsel
representing those who are in the situation. People who are
charged with crimes are facing very difficult circumstances,
and many times that is appropriate, facing lengthy jail terms.
It is also appropriate that for people who are in that
situation, they receive counsel that is not just minimally
competent by some constitutional standards, but our goal should
be that everyone who is in that situation, charged with a
crime, have counsel who can represent them in a way that
someone watching their trial or watching those court
proceedings would think, I cannot tell whether that person
could afford an attorney or whether they had an attorney
appointed for them. So it has very much shaped my view of the
role of counsel and the importance of having counsel in those
situations.
In addition, I think that being a public defender, people
think of us sometimes as cynics about the system. I think it is
something, those people who take on this role are actually
idealists about the system, and I am an idealistic person with
regard to the system, as well. I think that part of our role is
to explain to our clients who may well not trust the system the
importance of doing so because we need to do that so that we
can do our jobs, and I think that is an important role of the
judge, as well. The judge needs to earn the trust of all people
appearing in front of him or her in order to play the role the
judge needs to play in the system.
Senator Akaka. Thank you. Judge Smith.
Ms. Smith. Thank you. I do agree with the comments Mr.
Edelman made, certainly, about competent counsel. I would also
add that during my experience, primarily, I represented
teenagers who were involved in the juvenile justice system who
also had special education needs, and I had oftentimes a fairly
high caseload in terms of the students I was working with.
I think one of the many things that I learned from being a
public defender is that while I may have many clients, the case
that the respondent had was really the one and only thing that
was on his mind, and to slow down, use patience in both
explaining the process to him as well as making sure that he
had my full attention. I see that carry over into the work I do
in the Family Court, where I often have very emotional families
in front of me, and so it is very important for me to realize
that while I may have more than one case on any day, it is the
only case they have and it is very important for them that they
have my focus and respect during those proceedings, and that is
something that I find very important.
Senator Akaka. Thank you. Judge Lee.
Mr. Lee. One of the things that I learned as a young lawyer
at the Public Defender Service was the importance of
representing individuals so that when they got through with
their litigation, they felt like they were represented
completely and they had a sense that even if the outcome was
not the outcome that they wished for or desired, they had a
sense of fairness about the process.
So as I have transitioned from the Public Defender Service
into an academic life and now a judicial life, my goal really
across the board is to make sure that people who come before me
feel as though they were dealt with fairly and they understand
the process by which we reached a decision, even if they may
not agree with that process. And that requires that you treat
people as individuals and not as cases that come before you.
They are not defined solely by what they are charged with or
the litigation that brings them to the court. There is a bigger
picture that is required.
I think the system that we have is the greatest system in
the world, and it is great because everyone takes their role
seriously and they work to the best of their capability to make
the results fair and just.
Senator Akaka. Thank you.
Mr. Edelman, the role of a judge is very different from the
role of an advocate and will be relatively new to you. Please
discuss how you will transition to the role of an impartial
decisionmaker.
Mr. Edelman. Thank you, Mr. Chairman. Obviously, as you
pointed out, the decision to go from being an advocate, as I
have been in my various jobs, and to apply for the bench is a
decision to take on a different role and a broader role than I
have had before. I think that the key to doing that is to seek
out mentorship on the court.
There are many others on the court who have been advocates
in the same sense that I have, who have been defense lawyers or
public defenders, and many who have been prosecutors or
litigators in private practice. All of them have made the
transition, I have heard, with some bumps along the way, from
beginning to look at things from the point of view of a judge
rather than from an advocate, and I think in this and in other
areas, the wisest course for me will be to seek out their
counsel and discuss how they did it.
I know that, obviously, I am going to be approaching
situations differently. I am not going to be approaching
situations thinking about what is best for my client, but
thinking about the interests of all parties, all litigants,
and, of course, what is just, and that is a change in mindset
that I will seek out counsel on.
Senator Akaka. Thank you.
Judge Smith, as a Magistrate Judge for the D.C. Family
Court, you know that courtrooms can often be emotionally
charged places. How have you maintained a productive courtroom
environment?
Ms. Smith. Mr. Chairman, sometimes it is a difficult
balance. We have a high volume of cases, and we have a lot of
emotional families in front of us. But it is truly important to
make sure, as I mentioned before, that everyone feels like
their case is what my focus is at that time. And so I do my
best to schedule so that I know they have the appropriate time
to have their case heard and be heard, and I try to work the
best I can in terms of my patience and calmness in the hearing
so that in some ways that may help calm them down.
I also think it is important that they, again, have the
opportunity to be heard as well as have the process explained
to them in clear, non-legal language, as many of the families
certainly do not have their own knowledge of the law, and that
if they need any opportunity to ask questions, they do so and
consult with their counsel. So far, I feel like I have been
successful in that. Thank you.
Senator Akaka. Thank you.
Judge Lee, attention to detail is critical for any judge.
If a mistake goes unnoticed, it may directly impact the life of
someone appearing before you. Please describe the steps you
have taken to minimize the number of errors that occur in your
courtroom.
Mr. Lee. Senator, I will be the first to tell you that I am
not a perfect soul, and recognizing that I am not a perfect
soul means that I have to rely on others sometimes to point out
what I can do better and when I have made mistakes. I work very
closely with my courtroom staff, my chambers staff, to make
sure that what I do is done correctly and that if there is a
mistake out there, we correct it as quickly as we can.
One of the benefits of working in the Superior Court,
notwithstanding how busy our courthouse is, is that our Chief
Judge and our presiding judges have committed themselves to
putting in place a process that minimizes those mistakes. And
so every case that gets reviewed in a courtroom is reviewed by
our quality control staff before entries are made in the record
to make sure that it is accurate. We have a recording system
that we can listen to simultaneously or contemporaneously with
what goes on in the courtroom. So we are able to pick up on
errors when they are brought to our attention.
These are all things that we all have to rely on because we
understand that we are not perfect at what we do, but we make
every effort to find a perfect result as often as we possibly
can.
Senator Akaka. Thank you very much, Judge Lee. Senator
Voinovich, your questions, please.
Senator Voinovich. In terms of public defenders, all of you
are going to have people appearing before you, and if you
ascertain that the person who is appearing before you has
counsel who is not competent, how will you handle something
like that?
Mr. Edelman. It is a difficult situation because obviously
there are a lot of pressures on the court in terms of getting
people to go onto the list to be court-appointed counsel. I
think that what many judges do in that situation is, first, ask
the attorney's client, are you satisfied with the work of your
attorney? In some situations, the client will respond, no, I am
not, and the judge will----
Senator Voinovich. Would you do that right in the
beginning, before the trial began?
Mr. Edelman. Yes, I would try to do that at the earliest
possible time.
Senator Voinovich. OK.
Mr. Edelman. And the second thing I was going to say was in
those situations, I think it is imperative when a judge has a
concern about the quality of counsel that the concern be raised
as early in the history of the case as possible so you do not
get into a situation where you have an attorney actually in a
trial representing somebody, not performing competently. That
puts that person at risk and puts any verdict that might be
reached at risk.
Senator Voinovich. Ms. Smith.
Ms. Smith. Thank you, Senator Voinovich. In echoing
slightly what Mr. Edelman has said, I think it is important to
reach out to the participant to determine what the issue may
be. I have had one such instance where a litigant raised a
question about counsel. They were confused about some things
and wanted the opportunity to have the court explain it to
them, which I did with parties present, and then an opportunity
to say themselves whether they wanted to continue on with their
counsel. As Mr. Edelman indicated, we do have mentoring
attorneys, as well, and the attorneys that are on the panel
have the opportunity to get additional training, if needed, if
they are not up to the standards that are expected. And so
there are opportunities to address that situation.
Senator Voinovich. Mr. Lee.
Mr. Lee. Senator, one of the important functions of, I
think, judges in the system that we have, to make sure that it
works at the level that we expect from it, is that everyone
does what they are committed to doing. We have to have good
judges. We have to have good prosecutors. We have to have good
defense lawyers. And I think judges have to oversee all of
that.
In our courthouse, we are, I think, in a unique position,
where we have panels of lawyers who serve in each of our
branches, and they have been pre-screened and they apply and
they are reviewed by the judges and committees, and there are
Continuing Legal Education requirements that they all must
meet. These are all core or minimum requirements that we
require of the lawyers that appear before us. And part of our
obligation is to make sure that after they meet those minimum
qualifications, they do what needs to be done on behalf of the
clients for us. And if they do not, then we have to respond to
that.
Senator Voinovich. In other words, do you have a procedure
where you screen the people who would represent indigent
clients beforehand? Then you have a pool of individuals that
are eligible that would step forward. So there is some
screening before somebody comes in.
Mr. Lee. That is absolutely correct. We refer to it as the
panel system, and each branch of the court, Family Court and
the Criminal Court, have panels and designated areas of
representation. The lawyers apply to be on the panel. They are
screened by a committee that the Chief Judge has created----
Senator Voinovich. This takes care of the indigent people.
Mr. Lee. Yes, it does.
Senator Voinovich. But you also are going to have people
appearing before you who just have lousy lawyers. [Laughter.]
Mr. Lee. That happens, as well. It is not unique to those
that are poor.
Senator Voinovich. But you still go through the process
with them, are you happy with this, and so on and so forth?
Mr. Lee. That is correct. We make sure that the lawyers
that come before us are lawyers that are capable of functioning
at the level required for the type of case that they have. I
think that is the responsibility of every judge.
Senator Voinovich. Well, it seems to me that you have all
had some great experiences and all seem to be fairly qualified
to take the jobs that you are seeking.
Mr. Chairman, I have no further questions.
Senator Akaka. Well, thank you very much, Senator
Voinovich.
I want to thank all of you. There are no further questions
at this time. There may be additional questions for the record,
which will be submitted to you in writing. The hearing record
will remain open until the close of business tomorrow for
Members of this Committee to submit additional statements or
questions that they may have for you.
It is my hope that this Committee and the Senate will be
able to act quickly on your nominations. We look forward to
that happening. And again, thank you very much for being here.
Thank you for your families being here and your supporters, as
well.
This hearing is adjourned.
[Whereupon, at 3:39 p.m., the Committee was adjourned.]
A P P E N D I X
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