[Senate Hearing 111-695, Part 3] [From the U.S. Government Publishing Office] S. Hrg. 111-695, Pt. 3 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION ---------- JULY 29, SEPTEMBER 9, and SEPTEMBER 23, 2009 ---------- Serial No. J-111-4 ---------- PART 3 ---------- Printed for the use of the Committee on the Judiciary S. Hrg. 111-695, Pt. 3 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION __________ JULY 29, SEPTEMBER 9, and SEPTEMBER 23, 2009 __________ Serial No. J-111-4 __________ PART 3 __________ Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE 62-345 WASHINGTON : 2010 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York JON KYL, Arizona RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware ARLEN SPECTER, Pennsylvania AL FRANKEN, Minnesota Bruce A. Cohen, Chief Counsel and Staff Director Nicholas A. Rossi, Republican Chief Counsel C O N T E N T S ---------- WEDNESDAY, JULY 29, 2009 STATEMENTS OF COMMITTEE MEMBERS Page Hatch, Hon. Orrin, a U.S. Senator from the State of Utah......... 3 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 707 PRESENTERS Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia presenting Beverly Baldwin Martin, Nominee to be U.S. Circuit Judge for the Eleventh Circuit................................. 5 Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia presenting Beverly Baldwin Martin, Nominee to be U.S. Circuit Judge for the Eleventh Circuit................................. 6 Johnson, Hon. Tim, a U.S. Senator from the State of South Dakota presenting Jeffrey L. Viken, Nominee to be U.S. District Judge for the District of South Dakota............................... 4 NOMINEES Kappos, David J., Nominee to be Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office............................................... 77 Questionnaire................................................ 79 Martin, Beverly Baldwin, Nominee to be U.S. Circuit Judge for the Eleventh Circuit............................................... 8 Questionnaire................................................ 9 Viken, Jeffrey L., Nominee to be United States District Judge for the District of South Dakota................................... 53 Questionnaire................................................ 54 QUESTIONS AND ANSWERS Responses of David J. Kappos to questions submitted by Senators Hatch, Schumer and Specter..................................... 678 Responses of Beverly Baldwin Martin to questions submitted by Senator Coburn................................................. 686 Responses of Jeffrey L. Viken to questions submitted by Senator Coburn......................................................... 690 SUBMISSIONS FOR THE RECORD American Intellectual Property Law Association, Teresa Stanek Rea, President, Arlington, Virginia, letter.................... 696 Former Law Clerks, July 27, 2009, letter......................... 698 Kappos, David J., Nominee to be Under Secretary of Commerce for Intellectual Property and Director of U.S. Patent and Trademark Office, statement.............................................. 702 Intellectual Property Owners Association, Steven W. Miller, President, Washington, DC, letter.............................. 709 Nothhaft, Henry R., President and Chief Executive Officer, Tessera, San Jose, California, letter.......................... 710 ---------- WEDNESDAY, SEPTEMBER 9, 2009 STATEMENTS OF COMMITTEE MEMBERS Page Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 944 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 719 Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island......................................................... 713 PRESENTERS Johnson, Hon. Tim, a U.S. Senator from the State of South Dakota Presenting Roberto A. Lange, Nominee to be U.S. District Judge for the District of South Dakota............................... 715 Lautenberg, Hon. Frank R., a U.S. Senator from the State of New Jersey Presenting Joseph A. Greenaway, Nominee to be U.S. Circuit Court Judge for the Third Circuit...................... 717 Menendez, Hon. Robert, a U.S. Senator from the State of New Jersey Presenting Joseph A. Greenaway, Nominee to be U.S. Circuit Court Judge for the Third Circuit...................... 718 Nelson, Hon. Bill, a U.S. Senator from the State of Florida Presenting Charlene Edwards Honeywell, Nominee to be U.S. District Judge for the Middle District of Florida.............. 716 Rockefeller, John D. IV., a U.S. Senator from the State of West Virginia Presenting Irene Cornelia Berger, Nominee to be U.S. District Judge for the Southern District of West Virginia...... 714 NOMINEES Berger, Irene Cornelia, Nominee to be U.S. District Judge for the Southern District of West Virginia............................. 772 Questionnaire................................................ 773 Greenaway, Joseph A., Nominee to be U.S. Circuit Court Judge for the Third Circuit.............................................. 720 Questionnaire................................................ 725 Honeywell, Charlene Edwards, Nominee to be U.S. District Judge for the Middle District of Florida............................. 827 Questionnaire................................................ 828 Lange, Roberto A., Nominee to be U.S. District Judge for the District of South Dakota....................................... 806 Questionnaire................................................ 807 Moreno, Ignacia S., Nominee to be Assistant Attorney General Environmental and Natural Resources Division, Department of Justice........................................................ 861 Questionnaire................................................ 862 QUESTIONS AND ANSWERS Responses of Irene Cornelia Berger, to questions submitted by Senator Sessions............................................... 907 Responses of Joseph A. Greenaway, Jr., to questions submitted by Senator Sessions............................................... 911 Responses of Charlene Edwards Honeywell to questions submitted by Senator Sessions............................................... 915 Responses of Roberto A. Lange to questions submitted by Senator Sessions....................................................... 920 Responses of Ignacia S. Moreno to questions submitted by Senators Feingold and Sessions.......................................... 923 SUBMISSIONS FOR THE RECORD American Bar Association, Lauren J. Caster, former Chair, Kenneth J. Warren, former Chair, Claudia Rast, former Chair, Eugene E. Smary, former Chair, Sheila Clocume Hollis, former Chair, Lynn L. Bergeson, former Chair, Chicago, Illinois, joint letter..... 930 Boggs, Roderic V.O., Executive Director, Washington Lawyers' Committee, Washington, DC, letter.............................. 931 Cave, Robert B., Counsel, Hogan & Hartson LLP, Washington, DC, letter......................................................... 932 Center for International Environmental Law (CIEL), Daniel Barstow Magraw, President, Washington, DC, letter...................... 933 Department of Justice, former Assistant Attorneys General, Environment Natural Resources Division, Washington, DC, joint letter......................................................... 935 Futrell, J. William, President, Environmental Law Institute, Washington, DC, letter......................................... 937 Gracer, Jeffrey B., Sive, Paget & Riesel, P.C., New York, New York, letter................................................... 939 Herman, Steven A., Assistant Administrator, Enforcement and Compliance Assurance, Environmental Protection Agency, Washington, DC, letter......................................... 940 Hispanic National Bar Association, Ramona E. Romero, National President, Washington, DC, letter.............................. 941 Kissinger, William D., Bingham, San Francisco, California, letter 943 Moreno, Ignacia S., Nominee to be Assistant Attorney General Environmental and Natural Resources Division, Department of Justice........................................................ 946 National Council of La Raza, Janet Murguia, President and CEO, Washington, DC, letter......................................... 949 National Hispanic Leadership Agenda, Lillian Rodriguez-Lopez, Chair, on Behalf of Cuban American National Council; Hispanic Federation; Hispanic National Bar Association; Labor Council for Latin American Advancement; League of United Latin American Citizens; MANA, A National Latina Organization; National Association of Hispanic Federal Executives; National Association of Hispanic Publications; National Conference of Puerto Rican Woman; National Council of La Raza; National Hispana Leadership Institute; National Hispanic Caucus of State Legislators; National Hispanic Environmental Council; National Puerto Rican Coalition; Self-Reliance Foundation; SER-Jobs for Progress; Southwest Voter Registration and Education Project, joint letter................................................... 951 National Native American Bar Association, Heather Dawn Thompson, President, letter.............................................. 953 Norton, Edward M., Chairman, National Conservation System Foundation Founding, Durango, Colorado, letter................. 955 Revesz, Richard L., Dean and Lawrence King Professor of Law, New York University, New York, New York, letter.................... 957 Schiffer, Lois J., fomer Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, Washington, DC, letter......................................... 959 Sheehan, Charles J., Judge, Environmental Protection Agency, Washington, DC, letter......................................... 961 Simon, James F., Acting Chief Executive Officer, Oceana, Washington, DC, letter......................................... 962 Solow, Steven P., Washington, DC,................................ 964 Torres, Gerald, Austin, Texas, letter............................ 966 Zaelke, Durwood, President, IGSD, Director, INECE Secretarist, Washington, DC, letter......................................... 968 ---------- WEDNESDAY, SEPTEMBER 23, 2009 STATEMENTS OF COMMITTEE MEMBERS Page Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 973 Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 971 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 1265 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 972 PRESENTERS Boxer, Hon. Barbara, a U.S. Senator from the State of California presenting Dolly M. Gee, Nominee to be District Judge for the Central District of California................................. 974 STATEMENT OF THE NOMINEES Chen, Edward Milton, Nominee to be District Judge for the Northern District of California................................ 1012 Questionnaire................................................ 1013 Gee, Dolly M., Nominee to be District Judge for the Central District of California......................................... 1080 Questionnaire................................................ 1081 Nguyen, Jacqueline H., Nominee to be District Judge for the Central District of California................................. 977 Questionnaire................................................ 979 Seeborg, Richard, Nominee to be District Judge for the Northern District of California......................................... 1109 Questionnaire................................................ 1110 QUESTIONS AND ANSWERS Responses of Edward Milton Chen to questions submitted by Senators Coburn and Sessions................................... 1159 Responses of Dolly M. Gee to questions submitted by Senator Sessions....................................................... 1176 Responses of Jacqueline H. Nguyen to questions submitted by Senator Sessions............................................... 1181 Responses of Richard Seeborg to questions submitted by Senator Sessions....................................................... 1184 SUBMISSIONS FOR THE RECORD Asian American Bar Associations, Various, San Francisco Bay Area, San Francisco, California, letter.............................. 1188 Asian American Justice Center, Karen K. Narasaki, President and Executive Director, Washington, DC, letter..................... 1191 Asian/Pracific Bar of California, Edwin K. Prather, President, San Francisco, letter.......................................... 1194 Asian American Judges, San Francisco Superior Court, Bruce E. Chan, Andrew Cheng, Samuel Feng, Newton J. Lam, Cynthia M. Lee, Ronald E. Quidachay, Lillian K. Sing, Julie Tang and Garrett L. Wong, San Francisco, California, joint letter.................. 1198 Boat People SOS, Inc., Thang Dinh Nguyen, Executive Director, Falls Church, Virginia, letter................................. 1199 Bratton, William J., Chief of Police, Los Angeles Police Department, Los Angeles, California, letter.................... 1202 Catterson, Cathy A., Clerk of Court, United States Court of Appeals for the Ninth Circuit, San Francisco, California, letter and attachments......................................... 1204 Japanese American Citizens League, S. Floyd Mori, National Director, Washington, DC, letter............................... 1260 Kardon, Nancy, Kardon Law, Inc., Torrance, California, letter.... 1263 Low, Harry W., retired Justice, JAMS, San Francisco, California, letter......................................................... 1267 Mexican American Legal Defense and Educational Fund, Andrew T. Hahn, Sr., President, Tina R. Matsuoka, Executive Director, John C. Yang, Co-Chair, Judiciary Committee and Wendy Wen Yun Chang, Co-Chair, Judiciary Committee, Washington, DC, joint letter......................................................... 1271 National Asian Pacific American Bar Association, Washington, DC, letter......................................................... 1274 National Asian Pacific American Bar Association, Andrew T. Hahn, Sr., President, and Asian American Justice Center, Karen Narasaki, President & Executive Director, Washington, DC, joint letter......................................................... 1278 National Asian Peace Officers Assocation, Regan O. Fong, President, Oakland, California, letter......................... 1287 National Conference of Vietnamese American Attorneys, Dominique N. Thieu, co-chair, and May Trinh Gibbs, co-chair, Fountain Valley, California, joint letter............................... 1288 Renfrew, Charles B., San Francisco, California, letter........... 1290 San Francisco Deputy Sheriffs' Association, David Wong, President, San Francisco, California, letter................... 1292 Thor, Doua, Executive Director, Southeast Asia Resource Action Center (SEARAC), Washington, DC, letter........................ 1294 ALPHABETICAL LIST OF NOMINEES Berger, Irene Cornelia, Nominee to be U.S. District Judge for the Southern District of West Virginia............................. 772 Chen, Edward Milton, Nominee to be District Judge for the Northern District of California................................ 1012 Gee, Dolly M., Nominee to be District Judge for the Central District of California......................................... 1080 Greenaway, Joseph A., Nominee to be U.S. Circuit Court Judge for the Third Circuit.............................................. 720 Honeywell, Charlene Edwards, Nominee to be U.S. District Judge for the Middle District of Florida............................. 827 Kappos, David J., Nominee to be Under Seretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office............................................... 77 Lange, Roberto A., Nominee to be U.S. District Judge for the District of South Dakota....................................... 806 Martin, Beverly Baldwin, Nominee to be U.S. Circuit Judge for the Eleventh Circuit............................................... 8 Moreno, Ignacia S., Nominee to be Assistant Attorney General Environmental and Natural Resources Division, Department of Justice........................................................ 861 Nguyen, Jacqueline H., Nominee to be District Judge for the Central District of California................................. 977 Seeborg, Richard, Nominee to be District Judge for the Northern District of California......................................... 1109 Viken, Jeffrey L., Nominee to be United States District Judge for the District of South Dakota................................... 53 NOMINATIONS OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE UNITED STATES CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; JEFFREY L. VIKEN, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA; AND, DAVID J. KAPPOS, NOMINEE TO BE UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND TRADEMARK OFFICE ---------- WEDNESDAY, JULY 29, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, pursuant to notice, at 10 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Klobuchar, Specter, Franken, Sessions and Hatch. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning, everyone. Yesterday, the Judiciary Committee reported the nomination of Judge Sonia Sotomayor to be a justice on the United States Supreme Court. And this morning, we are holding our first confirmation hearing for lower court nominees since the Supreme Court vacancy arose in May. The vacancies throughout the Federal courts have already risen to over 80. In addition, 27 upcoming vacancies have been announced. That is going to push Federal judicial vacancies to over 100. We worked very hard to fill the vacancies during the last presidency. Back when I chaired this Committee and we had a President of the other party in the White House, we were able to reduce overall vacancies by two-thirds, from over 100 down to 34, and reduce circuit court vacancies to single digits. Despite having received Federal judicial nominees since March from President Obama and despite having held hearings and reported those nominees in June, not a single Federal judge has been confirmed by the Senate all year. I believe the Senate has to do better. I mention that because when I was Chairman of this Committee with a Republican President, I moved President Bush's nominees through faster than either of the Republican chairmen did for President Bush, because I did not want to go back to what had been, during President Clinton's time, when 61 of President Clinton's nominees were pocket filibustered by the other side. I mention that because we tried very hard to have judges looked at as judges and to get out of partisan politics, and I hope we can get back to that. There is absolutely no excuse for not having moved yet. In fact, I notice even the U.S. Attorney recommended by Senator Sessions, the Ranking Member of this Committee, has been blocked. This is despite the fact that we cleared his nomination on the Democratic side of the aisle. This nominee of a Republican has been blocked by the Republican side. We have got to do better than that. Now, both judicial nominations we consider today come to us with bipartisan support. President Obama's nomination of Judge Beverly Martin to be elevated from the U.S. District Court for the Northern District of Georgia to the Eleventh Circuit has the support of Georgia Senators, Senator Chambliss and Senator Isakson. Senator Isakson and I had a good chat about this yesterday on the floor. Senator Chambliss and I talked with Judge Martin this morning. Jeffrey Viken has been nominated to serve on the U.S. District Court for the District of South Dakota and he has the support of South Dakota senior Senator, Senator Johnson, and Senator Thune. Judge Martin is the fourth of President Obama's circuit court nominees to come before the Committee and the fourth with extensive experience as a well respected Federal district court judge. When her nomination came to the Senate in 2000, it had the support of Senator Max Cleland, Democrat, and Senator Paul Coverdell, a Republican, also a friend of all of ours who died much too early. Since her confirmation, she has managed a docket of 3,100 cases. Her nomination to the circuit court is rated unanimously well qualified by the ABA Standing Committee on the Federal Judiciary. I should note that is the highest rating they can give. Before becoming a Federal judge, she served as the U.S. Attorney for the Middle District of Georgia; as an Assistant U.S. Attorney in that office; and as an Assistant Attorney General in the Office of the Attorney General of Georgia. It is no secret on this Committee that, as a former prosecutor, I love seeing people who have had prosecutorial experience. Jeffrey Viken's wide-ranging experience makes him particularly qualified to serve as a judge on the U.S. District Court for the District of South Dakota. He is currently the Federal defender for the combined districts of North Dakota and South Dakota. I kind of gulp when I think of the land area that covers. I do not even want to think of how many times the size of Vermont that is. He spent more than two decades at a South Dakota law firm. Before that, he served as the District of South Dakota's Acting U.S. Attorney and as an Assistant U.S. Attorney, again, a former prosecutor. We will also include in today's hearing the nomination of David Kappos to be Director of the U.S. Patent and Trademark Office and Under Secretary of Commerce for Intellectual Property. He is well respected on both sides of the aisle, all parts of the intellectual property community, someone I have known for years. He is no stranger to the members of the Committee. He has worked with Senator Hatch and I and others on patent reform legislation. Coalitions on all sides of that debate applauded his nomination. We know the PTO needs strong and accountable leadership. It has a significant backlog of applications and faces serious challenges and we need somebody who can work with us on patent reform legislation and also can run the department, because, ultimately, patent quality begins at the PTO and that requires effective leadership. I am pleased that the President has nominated someone for this position with strong qualifications and abilities. I said to him earlier I do not know whether to give him congratulations or condolences, because it is going to be one of the toughest jobs in the government. So I hope the hearing today can mark a new start in cooperating to fill vacancies. Republican objections have prevented the Senate from confirming nominees reported by the Judiciary Committee for over 2 months, since May 12, including, as I said, somebody sponsored by the Ranking Republican on this Committee, Senator Sessions. There are currently 17 nominees reported by the Judiciary Committee pending on the executive calendar. A dozen have been installed on the Senate executive calendar since before the Fourth of July recess, five U.S. Attorneys, four Assistant Attorneys General, Chairman of the United States Sentencing Commission and others, as well as a number of judges. So I hope we can move forth. [The prepared statement of Chairman Leahy appears as a submission for the record.] Senator Hatch, former Chairman of this Committee, former Ranking Member of this Committee, experienced person who, at least once or twice a year, will agree with me on something. I am delighted to have you here. [Laughter.] STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. Long-term listener to Senator Leahy. [Laughter.] Senator Hatch. It is a privilege to be with you, Mr. Chairman, and I appreciate your leadership of this Committee. Judge Martin, welcome back to the Judiciary Committee. I was chairing the Committee when you first arrived. We have been proud of your service. And, Mr. Viken, we look forward to helping to confirm you. Mr. Kappos, I agree with the distinguished Chairman. This is one of the toughest jobs in all of the Federal Government and I think you are not only up to the job, I think you can do a great job there, and I look forward to supporting you. There is no question that America's ingenuity fuels our economy and we have to ensure that our patent system is as strong and vibrant as possible; not only to protect our country's premier position as the world leader in innovation, but, also, to secure our economic future. So I support you. I will announce that in advance. I may not be able to stay for the whole hearing, but just know that I am very proud of you for being willing to leave the private sector and come to the government and work in this very difficult position. You two nominees for judge, we are very grateful you are willing to serve and willing to participate in our government. We know that there are nice things that come from being a Federal judge, but there are a lot of difficulties, too, and we appreciate your willingness to serve. Thank you, Mr. Chairman. Chairman Leahy. Thank you. I would note for the record that Senator Hatch and I have been good friends for decades. Senator Hatch. That is true. Chairman Leahy. And we do enjoy teasing each other, but we have worked together and there has been an awful lot of Hatch- Leahy and Leahy-Hatch legislation that has passed this body. We are going to go, as we normally do, by seniority of the Senators who are here. I appreciate you taking the time. I would note that, to the nominees, if the Senators, after they have introduced you, leave, that is not an indication how they feel about your qualifications. It is just that each one of these three Senators have several other committee meetings going on at this time. We will begin with Senator Johnson. PRESENTATION OF JEFFREY L. VIKEN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA, BY HON. TIM JOHNSON, A U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA Senator Johnson. Good morning and thank you, Mr. Chairman and members of the Committee. It is my great pleasure to be here this morning to introduce my friend, Jeff Viken, to be a Federal judge for our home State of South Dakota. I am also glad to see Jeff's wife, Linda Lea, is here. I have known Jeff since law school at the University of South Dakota and know well of his qualifications to fill the post of U.S. district judge. It is a great honor that President Obama has placed on Jeff. We are very lucky in South Dakota to have a great member of the legal community nominated to this post. Jeff has many years of public service and I look forward to his continued work for the people of our home state in the future. Thank you for your consideration of this nominee. Chairman Leahy. Thank you very, very much. Before I move on to the others, you have introduced Jeffrey Viken. Mr. Viken, do you have other members of your family here? I mention this because at some point, this will be in the Viken archives and you will want to know who was here. Mr. Viken. Thank you, Mr. Chairman. My district is 124,000 square miles. Chairman Leahy. That is bigger than Vermont. [Laughter.] Mr. Viken. [Off microphone.] Chairman Leahy. Thank you. Thank you very much for having them all here. Senator Chambliss. PRESENTATION OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA Senator Chambliss. Thank you very much, Mr. Chairman. It is a privilege for me to be here before you and my dear friend, Senator Hatch, Senator Franken to introduce to this Committee Beverly Martin. Beverly is a long-time dear friend, but her father and I go back even further than that, as a brand new lawyer in the Middle District of Georgia about 40 years ago. You always, as young lawyers, as you know, try to look to the best lawyers around to emulate and to learn from. Beverly's father, her grandfather and her great-grandfather were all lawyers and her father was one of the outstanding lawyers in our state and somebody that I looked to early on to learn from. So it is, indeed, a privilege to be back here 9 years after I came here to help introduce her before Chairman Hatch, at that point in time, to this Committee, regarding her nomination to the district court bench for the Northern District of Georgia. Beverly brings a great tradition, not just a family tradition, to the bench. She served as a member of Attorney General Mike Bowers' team at the state level for many years, and, there, I had the opportunity to work with her from time to time, because I did an awful lot of condemnation work and we worked very closely with that group of lawyers at the state level. I knew then what an outstanding person and outstanding lawyer she is. Beverly then went to become an Assistant U.S. Attorney in the Middle District and, ultimately, the U.S. Attorney, as she was named by President Clinton, and then was elevated to the bench on the Northern District of Georgia thereafter and, as the Chairman noted, she has handled over 3,100 cases during that 9 years, and she is so well respected by not just the judges who work with her every day, but by the lawyers that practice before her, and that is a real credit to her. She is one of those special individuals and I know Senator Sessions, as a former U.S. Attorney, remembers the weed-and- seed program that was so popular. Beverly was a strong advocate of the weed-and-seed program during her U.S. Attorney days and she started programs in different parts of the district, in Valdosta, Columbus, Macon and Athens, and just did so many great things outside of the courtroom, just like she did inside the courtroom. She is tough, but she is fair, and that is what I hear from lawyers who practice before her on a regular basis. She replaces another great Maconite, Lanier Anderson, who was appointed by President Carter back in the 1970's. He has served us well on the Eleventh Circuit and Beverly is going to bring not just a great tradition to the Eleventh Circuit from a family perspective, but she is an excellent lawyer. She is an excellent judge, and she is going to make a fine member of the Eleventh Circuit bench. I look forward to supporting her as her nomination moves to the floor. I thank you again for the opportunity to be here today to introduce her. Chairman Leahy. Thank you very much. As I said, I enjoyed meeting her with you. Of course, Senator Chambliss and I have served together on another committee for years, on the Agriculture Committee, when he was chairman and since. Senator Isakson. PRESENTATION OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. JOHNNY ISAKSON, A U.S. SENATOR FROM THE STATE OF GEORGIA Senator Isakson. Thank you, Chairman Leahy, Ranking Member Sessions. It is an honor for me to join with the senior Senator from Georgia, Saxby Chambliss, in introducing Judge Beverly Martin. I suffer at an extreme disadvantage when it comes to judicial appointments. I am not an attorney. So I have to set a criteria that may be different in judging people, and there are three things I look for when I consider the judicial appointments. One is knowledge, second is integrity, and the third is judicial activism. I was called out of a dinner at the Marriott downtown the day of the announcement by the President of Beverly Martin's nomination to the Eleventh Circuit. I received an emergency call, which I rarely get. It was from Mike Bowers, the former Republican Attorney General of the State of Georgia, now a practicing attorney, under whom Beverly Martin served in the Georgia Attorney General's office many years ago. He said, ``Johnny, I just want you to know I heard today that Beverly Martin has been nominated for the Eleventh Circuit. I want to tell you that I have never known a finer practicing attorney, never known a finer prosecutor,'' which I know the Chairman will identify with that remark, ``and I think she will be an outstanding judge in the Northern District.'' The last call I received today was from south Georgia, from an attorney by the name of Jimmy Franklin, just to tell me how much he thought of Judge Beverly Martin. But for me, on the case of judicial activism, I tried to look back at her record to find some way to give me an indication of her position on judicial activism and I came upon her testimony when she was before this Committee on judicial activism in her appointment to the Northern District. If I can, I would like to quote her answer to this Committee. ``Once a case is properly before a court, a judge is obligated to follow the United States Constitution, statutory law and the doctrine of stare decisis, to adhere to the legal precedent. The precept is paramount, because it is necessary to the stability of our system for individuals and commercial concerns to find predictability in our judicial system and anticipate what actions are legally permissible. United States district courts have a limited jurisdiction and it is the solemn obligation of a judge not to find jurisdiction where it does not exist.'' That was all I needed to know that Judge Martin was the type of judge that I am proud to be able to be before you today and introduce to you as a Georgian, a great justice, and a fine person. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Judge, this just elaborates on the very nice things that Senator Isakson said to me on the floor of the Senate. Judge, you have family members here, do you? Ms. Martin. [Off microphone.] Chairman Leahy. I suspect two very proud gentlemen. Thank you. I thank all three of you for being here. I appreciate you being here. I know you have to be out--you are welcome to stay, of course, but I know you have all got committee meetings. So thank you very much. I should note, while they are moving things around, that on David Kappos, he has been nominated by President Obama to be the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office. In March, he had testified before the Committee on patent reforms. He has spent his entire professional career with IBM Corporation; graduated with highest honors from University of California-Davis in 1983 with a degree in electrical and computer engineering; again, worked for IBM as an engineer; went to the general counsel's office after receiving his law degree from the University of California-Berkeley in 1990; has held several positions within the general counsel's office, now serving as vice president and assistant general counsel for intellectual property. He serves on the board of directors of the American Intellectual Property Law Association, Intellectual Property Owners Association, the International Intellectual Property Association, as the vice president of the Intellectual Property Owners Association. I will put the rest of that in the record. [The information appears as a submission for the record.] Chairman Leahy. Mr. Kappos, do you have family members here? Mr. Kappos. Yes, I do. Chairman Leahy. For the Kappos archives, go ahead, please. Mr. Kappos. [Off microphone.] Chairman Leahy. Oh, boy, you know how to get it. Where in Vermont? Mr. Kappos. [Off microphone.] Chairman Leahy. Manchester. Mr. Kappos. [Off microphone.] [Laughter.] Mr. Kappos. [Off microphone.] Chairman Leahy. No wonder the room is so full today. [Laughter.] Chairman Leahy. We will check after with the staff to make sure we get all these names spelled correctly. Let us have the three nominees come forward and let me administer the oath, and we can begin. [Nominees sworn.] Chairman Leahy. Let the record show that each of the nominees took the oath and agreed to it. We will start with you, Judge Martin, if you have an opening statement that you would like to give. STATEMENT OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE UNITED STATES CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT Ms. Martin. I do not have an opening statement, but I have got some people I would like to thank. On my way walking up here this morning, I remember that it was 35 years ago this summer that I was a summer intern for Senator Sam Nunn. So to be here this morning with both of my Senators from the State of Georgia is a big deal for me and I am grateful to them for being here. I wanted to mention that in addition to my husband and my father, there are six of my law clerks here today, former, present and future; one that is going to start in 2 weeks. Also, I noticed a couple of my colleagues from my time as United States Attorney, and I appreciate them being here, as well. But most of all, thank you all for having me here this morning. Chairman Leahy. You had the privilege of serving with Sam Nunn. His wife, Colleen, was my wife's big sister when she came here. Spouses will help spouses of incoming Senators, and they often become friends forever. My wife has served in a similar position with a number of people. She did it with a young Senator from Illinois named Barack Obama, with Michelle Obama. Mr. Viken. [The biographical information of Beverly B. Martin follows.]
STATEMENT OF JEFFREY L. VIKEN, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA Mr. Viken. Good morning, Mr. Chairman. Just a word of thanks, Mr. Chairman, to you and Senator Sessions, Senator Hatch, Senator Franken, the members of the Committee, for your investment of time and your deliberative energy in the process of considering the confirmation of myself to serve on the Federal bench. I, of course, greatly appreciate Senator Tim Johnson being present for the introduction and for President Obama's confidence in the nomination, and I am sure Beverly shares that thought with me, as well. We are honored to be here and honored to have an opportunity to be considered for this form of public service. Thank you, sir. Chairman Leahy. Thank you very much. Mr. Kappos.
STATEMENT OF DAVID J. KAPPOS, NOMINEE TO BE UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND TRADEMARK OFFICE Mr. Kappos. Good morning. If it is OK, I do have a short statement that I would like to read, Chairman Leahy. Chairman Leahy. Please go ahead. Mr. Kappos. Thank you. Chairman Leahy, Senator Sessions, distinguished members of the Senate Judiciary Committee, thank you very much for the opportunity to appear before you here today. I am very grateful to President Obama and to Secretary Locke for the trust that they have placed in me, and to you for considering my nomination as Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office. It is exceptional and humbling under any circumstance to have the opportunity to serve one's country, but it is particularly so for me as the son and grandson of emigrants. My father, who you met just a moment ago, came to this country from Greece and my mother's parents came to the U.S. from Italy. So the opportunity to be here today is particularly poignant for me and it is, also, for my family. If recommended by this Committee and confirmed by the Senate, I look forward to joining Secretary Locke, his team at Commerce, in their mission as stewards of American economic growth, job creation, and innovation. I have spent nearly my entire professional career in the field of intellectual property law and, indeed, my entire career around technology and innovation, first, as an electrical and computer engineer; then as a patent attorney handling matters before the U.S. PTO; litigating patent disputes both as defendant and as plaintiff; managing intellectual property matters in Asia; and, finally, as vice president and assistant general counsel for intellectual property law, managing IBM's IP interests globally. So I have seen the intellectual property system from all sides. I care passionately about this field and the role intellectual property plays in advancing American innovation. So it is particularly exciting for me to be considered for the position of Director of the U.S. PTO, an organization that traces its roots to the Founding Fathers and to their understanding that promoting and rewarding innovation is critical to our country's success. PTO faces many challenges, as we all know. Most immediate are those resulting from the economic downturn, the need for a stable and sustainable funding model, the need to address pendency concerns while preserving and enhancing patent quality, and the imperative to attract and retain skilled personnel at a time of fiscal constraint. Secretary Locke has personally asked me to refashion the patent examination process to meet these challenges and in carrying forward this direction, I will focus substantial personal attention within the U.S. PTO as my top priority. Additional challenges flow from rapid globalizing trade environment, impacting trademark and patent interests, as well as respect for intellectual property and the consequences where intellectual property is not respected. Longer term, the U.S. PTO is going to need to keep abreast of the astounding pace of technological change across a broad range of scientific disciplines. It must constantly rethink how it carries out its constitutional imperative to promote innovation and scientific advancement for the public good, both in terms of the technology confronting the office and in terms of leveraging that technology and applying the law to that technology. So as I consider these challenges, I am mindful of several things. I am mindful that the U.S. PTO serves the interests of all innovators in this country, small and large, corporate and independent, academic and applied, and, most importantly, the public interests. While I have spent my career to date at a large corporate enterprise, I am familiar with the concerns of all U.S. PTO constituents, including small and independent investors, the venture and startup community, public interest groups, the patent bar and many others, and I will reach out to all of them. I am mindful of the incredible dedication of the thousands of U.S. PTO employees and the essential role they play in the success of the U.S. innovation system. I will work every day with the U.S. PTO employees and the unions that represent them to establish strong, positive relationships grounded in professional treatment for professional judgment. I am acutely mindful that innovation today is global and that IP policy is of paramount importance, not only in our country, but also in the EU, in Japan, in China, Brazil, India and many other developing countries. I will use my international experience and my understanding of global IP trends to help this administration represent the interests of American innovators globally. Finally, I am mindful that the office for which I am being considered, working as part of Secretary Locke's team and within the administration's agenda, must be intensely focused on how to serve the American people at this time of economic uncertainty. I believe the U.S. PTO can play a significant role in enhancing economic growth, creating jobs and advancing American innovation, and I hope to play a part of this important mission. Again, I am grateful for the opportunity to address you here today and I am pleased to answer any questions. [The biographical information of David J. Kappos follows.]
NOMINATIONS OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT COURT JUDGE FOR THE THIRD CIRCUIT; ROBERTO A. LANGE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA; IRENE CORNELIA BERGER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA; CHARLENE EDWARDS HONEYWELL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA; IGNACIA S. MORENO, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATIONAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE ---------- WEDNESDAY, SEPTEMBER 9, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, Pursuant to notice, at 2:34 p.m., Room 226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse presiding. Present: Senators Klobuchar, Franken, and Sessions. OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND Senator Whitehouse. The hearing will come to order. Today we will consider four nominations to the Federal bench. Judge Joseph Greenaway has been nominated to the United States Court of Appeals for the Third Circuit; Roberto Lange has been nominated to the United States District Court for the District of South Dakota; Judge Irene Berger has been nominated to the United States District Court for the Southern District of West Virginia; and Judge Charlene Honeywell has been nominated to the United States District Court for the Middle District of Florida. We also will consider the nomination of Ignacia S. Moreno, to be Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice. I understand that the Ranking Member, Senator Sessions, is on his way here and will be joining us shortly, but I would like to take this moment to welcome each of the nominees, and their families, and their friends to the U.S. Senate. I also, of course, would like to welcome those of my colleagues who are here to introduce the nominees. This Committee is graced by the presence of such a distinguished array of my colleagues. In the interest of efficiency, let me outline how this hearing will proceed. If the Ranking Member arrives and wishes to make remarks, we will accommodate him at this point. At the conclusion of my remarks, if he is not here, I will allow the introductions by the home State Senators to begin. Their introductions will proceed in order of seniority, and each will have the chance to introduce the nominees for their States. We then will have two panels. The first panel will be Judge Greenaway, and the second will be all the remaining nominees. Senators on the Committee will have 5-minute rounds in which to question each panel. Without the Ranking Member here, I ask unanimous consent that the remainder of my opening statement be put into the record so that I do not delay my colleagues any longer, and we will begin with the introduction of Judge Berger by the distinguished Senator from the State of West Virginia, the Honorable Jay Rockefeller. Senator Rockefeller. [The prepared statement of Senator Whitehouse appears as a submission for the record.] PRESENTATION OF IRENE CORNELIA BERGER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, BY HON. JOHN D. ROCKEFELLER, IV, A U.S. SENATOR FROM THE STATE OF WEST VIRGINIA Senator Rockefeller. Thank you, Mr. Chairman, very much. I would point out to Judge Berger, who I am about to talk about, that Senator Sheldon Whitehouse is one of the people that you need to know. He's brilliant. He's a wonderful lawyer, he's a wonderful person. He gives great advice on what books to read, and he's somebody you can trust. And that, I would say to the distinguished Chairman, is what Judge Irene Berger is all about. Yes, she is being nominated to the--has been nominated to serve in the U.S. District Court of Southern West Virginia, but you can't leave that statement alone. She comes from a very large family, and her husband David and a lot of her relatives are here, scattered behind me. David is right here. She comes from a family, a large family, in one of the four poorest counties in the United States of America. Rather than coming up, going through law school, serving for 30 years for the people of West Virginia in a calm, deliberate, marvelous way and being kind of proud about just everything she is and talking about a lot, no. She is the ultimately quiet, fair, dispassionate, rational judge. I have to say that I had the honor to present Judge Pierre Lavalle, and that was one of the happiest days of my life. This is also one of the happiest days of my life because I think Judge Irene Berger is unmatched in her professionalism, in her experience. And above all, in this question of temperament, I've never heard her--I've seen her--over many years I've known her, I've seen her in all kinds of situations. She's always the same. She's always smart. She has--all the Circuit Court judges from West Virginia who are on the Fourth Circuit and elsewhere, et cetera, rave about her. And she's been waiting, but she's not been promoting herself. She simply does her job in a classic, stoic, strong, heartfelt, and ultimately brilliant Southern West Virginia way. It's not easy, always, to be from West Virginia. It's not always easy to be a judge from Southern West Virginia, or other parts of West Virginia. It's a very active, aggressive, sometimes angry State. But nothing seems to affect Judge Irene Berger except superb judgment, confidence in herself, pride in what she's done, but all quiet, all measured. She is a superb person. Go to her for counsel on anything. She doesn't play like, I'm a judge, or I'm about to be a judge at a higher level. She doesn't play that at all. She's just who she is and who she's always been. And you don't run into that often. People in this business, when it comes to judgeships, often want them, grasp for them, work for them, plot for them, and often get them. That's not her way. She is thrilled to have this opportunity, and I just want her to know how happy I am to be able to be a part in helping her to become the judgeship that she seeks. I thank the Chairman. Senator Whitehouse. Thank you, Mr. Chairman. We are honored to have you here. We very much appreciate your remarks on behalf of Judge Berger. Senator Rockefeller. Oh. Also, I want--Senator Byrd couldn't be here today and he has a very strong statement about Judge Berger, and I ask---- Senator Whitehouse. It will be accepted into the record without objection. I thank the Senator. [The prepared statement of Senator Byrd appears as a submission for the record.] Senator Whitehouse. Next in order of seniority is Senator Tim Johnson, who is here to speak on behalf of Roberto Lange. Senator Johnson. PRESENTATION OF ROBERTO A. LANGE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA, BY HON. TIM JOHNSON, A U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA Senator Johnson. Good afternoon. Thank you, Mr. Chairman and members of the Committee. It is my good pleasure to be here this afternoon to introduce Roberto Lange to the Committee. President Obama has nominated Bob to be a Federal judge for our home State of South Dakota. Bob attended the University of South Dakota, my alma mater, and attended Northwestern University School of Law in Chicago. He was an editor of the Law Review and graduated Order of the Coif. We are very fortunate to have such a distinguished member of the South Dakota legal community nominated to this post. After more than 20 years of practicing law, Bob is well- qualified for the position of U.S. District Judge for South Dakota. Ironically, Bob has clerked for the very same judgeship that he is now the nominee for. While there are many rewards for public service, there are also many challenges. Thus, I would like to thank Bob for his past and future service for the people of South Dakota. Thank you for your consideration of this nominee. Senator Whitehouse. Thank you, Senator Johnson. I appreciate very much that you have been here to speak on behalf of Mr. Lange. Our next speaker is Senator Bill Nelson of Florida, speaking on behalf of Judge Honeywell. Senator Nelson. PRESENTATION OF CHARLENE EDWARDS HONEYWELL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTICT OF FLORIDA, BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Nelson. You know, Mr. Chairman, this seniority thing is quite interesting because Senator Lautenberg retired for a little over a year and a half, and he gets bumped to the bottom. Now Senator Menendez is the senior Senator from New Jersey. Senator Whitehouse. The other way around. Senator Nelson. I see. Well, I'm here on behalf of Judge Charlene Honeywell of Tampa, and it's for a judgeship in the Middle District of Florida. She graduated from Howard University and then from the University of Florida College of Law. Mr. Chairman, that's the University of Florida. They happen to be the national champion, Florida Gators. Judge Honeywell has had a distinguished record. And it's obvious that we select our judges by going through a panel that Senator Martinez and I nominate, called a Judicial Nominating Commission, made up of very prominent people throughout Florida. They do all of the hard work, the investigation, receiving the applications and the interviews. For as many qualified candidates as we get, they boil it down to three and send those three to Senator Martinez and me, and we do our interviews in the process then. We consult with the White House. All of that process of winnowing, vetting, narrowing has produced the cream to the top, and that's Judge Honeywell. After she had graduated from law school, she was first a public defender in two different judicial circuits in Florida. She's been an assistant city attorney. She's been in private practice with one of Tampa's most distinguished law firms and then she has kept all of that career with being one of our State court judges in what we call our Circuit Court in Florida. So it is Senator Martinez and my privilege to be here, and I speak on his behalf. I don't know if he has actually officially resigned. He just gave his farewell speech. I think, as of this moment, he is still Senator. So I can tell you, he certainly speaks through me today and the two of us encourage the Committee to approve Judge Honeywell. Thank you, Mr. Chairman. Senator Whitehouse. Thank you very much, Senator Nelson. And our last speakers, in order of seniority: Senator Lautenberg, and then Senator Menendez of New Jersey, speaking on behalf of Judge Greenaway. Senator Lautenberg. PRESENTATION OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT COURT JUDGE FOR THE THIRD CIRCUIT, BY HON. FRANK R. LAUTENBERG, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Lautenberg. Thank you very much, Mr. Chairman and the Ranking Member of the Committee, Senator Sessions, members of the Committee, for the opportunity to be here today to present a fellow Columbia University graduate--obviously not in the same class year. [Laughter.] Senator Lautenberg. Why is there such a snicker going through? [Laughter.] Senator Lautenberg. One of New Jersey's most distinguished public servants, Judge Joseph Greenaway. On the District Court in Newark, Judge Greenaway has demonstrated his core values of integrity and fairness, the same values that will make him a success on the Third Circuit Court of Appeals. Through his impressive career, I've been fortunate enough to watch Judge Greenaway at work for our State and our people. Judge Greenaway became an Assistant U.S. Attorney in Newark in 1985. He first served in the Criminal Division, where he worked on bank fraud and white collar crime investigations. In 1989, he was promoted to head the division dedicated to prosecuting narcotics cases. From 1990 to 1996, Judge Greenaway served as an in-house counsel for Johnson & Johnson, a prominent pharmaceutical company in New Brunswick, one of New Jersey's great companies. Then in 1996, Judge Greenaway was appointed by President Clinton to the United States District Court for the District of New Jersey, where he has since served. Now, I introduced him to this Committee at that time, as I am today, and I do it with great enthusiasm. The best thing about Judge Greenaway is that, despite his critical and time- consuming responsibilities in the court, he still finds time to give back to the community. He teaches criminal law, criminal trial practice classes at Cardozo Law School, where I sit now as an honorary board member, as I was on that board for some time. He helps train the next generation of legal thinkers and leaders. Judge Greenaway also teaches a course about Supreme Court at both Cardozo Law School and Columbia University. He spent his career protecting New Jerseyans and their rights, and I know that we can depend on him to do the same for our Nation as an Appeals Court judge. I am pleased that President Obama has selected Judge Greenaway for this post and I urge my colleagues to support his confirmation. Before introducing his family, I want to say that I was honored to have a courthouse carry my name during my absence from the Senate, and I authored something to be posted on the plaque that carries the name. I said on that plaque, ``The full measure of a democracy is its dispensation of justice'', and I can't think of anyone who fills that obligation better than Judge Joe Greenaway. Now I want to recognize Judge Greenaway's wife, Veronica Blake Greenaway, his son Joseph, his daughter Samantha, and his parents as well. We all know that he would not be here today without your love and support. Mr. Chairman, I thank you for the opportunity to testify at this time. Senator Whitehouse. Thank you, Senator Lautenberg. Senator Menendez. PRESENTATION OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT COURT JUDGE FOR THE THIRD CIRCUIT, BY HON. ROBERT MENENDEZ, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Menendez. Thank you, Mr. Chairman, to the distinguished Ranking Member, to all the distinguished members of the Committee. I am pleased to join my colleague in the Senate, Senator Lautenberg, and to have the pleasure and honor to come before the Committee today to introduce a man from New Jersey who fully embodies the qualities of respect for justice and the rule of law we demand of all of our judges. At the age of 40, Judge Joseph Greenaway, Jr. was appointed by President Clinton to the Federal bench and he has served for over a dozen years with distinction. He earned a bachelor of arts from Columbia University, where he was honored in 1997 with the Columbia University Medal of Excellence and with the John Jay. Award in 2003. He was an Earl Warren Legal Scholar at Harvard University, where he received his J.D. and served as a member of the Harvard Civil Rights and Civil Liberties Law Review. He clerked for the late Honorable Vincent L. Broderick in the U.S. District Court for the Southern District of New York before he became an Assistant U.S. Attorney in Newark and received a promotion to become chief of the Narcotics Bureau. In the private sector, he was an associate with the firm of Kramer, Levin, Nessen, Kamin & Frankel, and served at Johnson & Johnson, as Senator Lautenberg said, as their in-house counsel. He is chair emeritus of the Columbia College Black Alumni Council. He has been an adjunct professor at my alma mater, Rutgers Law School. He is an adjunct professor at the Cardozo School of Law, where he teaches a course on trial practice and a seminar on the Supreme Court. He is also an adjunct at Columbia College, where he teaches a seminar on the Supreme Court. But that is Judge Greenaway's resume. It is a distinguished resume, to say the least. It also is one that I'm sure, through your questions, you will find a judge who has the demeanor, the intellect, the integrity, the deference to the rule of law as well as to precedent, and you'll get those from your questions. But it does not do justice to Judge Greenaway the man. There is an inscription, Mr. Chairman, over the Tenth Street entrance to the U.S. Department of Justice, just a few blocks from here. That inscription says, ``Justice in the life and conduct of the state is possible only as first it resides in the hearts and souls of men.'' So, Mr. Chairman, I can tell you, those true qualities of justice do indeed reside in the heart and soul of Judge Greenaway. He was born in London, grew up in Harlem, in the northeast Bronx, not far from where Justice Sotomayor grew up, and just across the river from where I grew up. He is accomplished and successful, but he's given a lot back. In 2006, when he spoke at the Benjamin Cardozo School of Law Yeshiva, Dean David Rudenstein said then, ``Judge Greenaway has been a generous teacher and mentor to Cardozo students throughout the years and has touched many of their lives in meaningful ways. I'm delighted that our graduates will have the opportunity to hear his insights, witness his humaneness, and be inspired by his example.'' Judge Greenaway, who long taught master classes at Yeshiva, has always been instrumental in mentoring students and graduates, often taking them under his wing as law clerks or fellows. He has said, ``I tell my students to work hard and work smart. Our profession requires a drive to search for perfection. Without that goal, mediocrity becomes the norm.'' Well, mediocrity has never, and never will be, the norm for Judge Greenaway. He has always strived for excellence and he's always taught young lawyers to do the same. So in conclusion, Mr. Chairman, members of the Committee, when we look to our courts to dispense justice fairly, honorably, equally under the law, we look to those among us who have worked hard not only for themselves, but for the betterment of the community as a whole. We look to those who have achieved much, but whose humility allows them to take the long view, to see the whole board, and act accordingly. Judge Joseph Greenaway is that kind of judge, the kind of person we look to when we think of the notion of equal dispensation of justice under law. It is my pleasure to join Senator Lautenberg in introducing him to the Committee and thank him for his service to New Jersey. I know that I join with all of you in wishing him and his wife Veronica, his son Joseph, and his daughter Samantha good luck and godspeed on this next journey in life. Mr. Chairman, I appreciate your opportunity to make this presentation. I urge the Committee to recommend favorable action and a speedy confirmation to the Third Circuit Court of Appeals. Senator Whitehouse. I thank you, Senator Menendez. I thank all of my colleagues who have taken the trouble, from extremely busy schedules, to come here today and speak on behalf of these candidates. The constitutional prerogative of advice and consent and the Senate tradition requiring the approval of the home State Senators for judicial appointments, I think, lead to wonderful consequences for America in the caliber of the appointees who are brought forward and the requirement that they meet the confidence of their home State Senators in order to achieve these lifetime appointments. So in coming before us as you have, you are, I believe, acting in the finest traditions of the U.S. Senate, and I appreciate that you took the trouble to do so. The panel is excused. If the distinguished Ranking Member would like to make an opening statement, I would invite him to do so when the situation settles down in a moment. After that, we will call up Judge Greenaway first. STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator Sessions. Mr. Chairman, I thank you for this opportunity. It is a part of our congressional responsibility, a senatorial constitutional requirement that we examine nominees for the bench. We hope and look forward to a good group of nominations from this administration. I think the Senators that just testified being strong in their support for these nominees is always most meaningful to me, and I think the other Senators--to the nominees, I think that will stand you in good stead to have their firm and vigorous support. I think it will definitely make a difference in how those confirmation hearings go. We do have some disagreements, I think, about the role of courts and how they should conduct themselves in America today, sort of a national discussion about, to what extent judges are bound by the law and to what extent they feel that they are empowered to allow their personal feelings or approaches to law affect how they decide cases. So I think that's something that is very important to me and we'll ask about it, but all in all, I think the nominees that we're seeing here today that will be before us have good records, and I look forward to examining them. Senator Whitehouse. I thank the very distinguished Ranking Member. I would now ask the Honorable Joseph Greenaway to come forward. [Whereupon, the nominee was duly sworn.] Senator Whitehouse. Please be seated, and welcome. Do you have an opening statement? If you would be good enough to turn on your microphone, that would help. You are most welcome to introduce your family who are here with you in addition to making some opening remarks, if you would care to do so. STATEMENT OF HON. JOSEPH A. GREENAWAY, TO BE U.S. CIRCUIT COURT JUDGE FOR THE THIRD CIRCUIT Judge Greenaway. Well, thank you so much, Mr. Chairman. The first remark I'd like to make is to thank God for his grace and countenance that I'm here today. I'd like to thank President Obama for his confidence in me with regard to this nomination. I'd like to thank Senators Lautenberg and Menendez, Congressman Payne, and others. I'd like to thank my family and friends for being here today. I'd also like to thank you, Mr. Chairman, and the Ranking Member and the Committee members who are present as well. I'd also like to take this opportunity to introduce my family. I'm not going to turn around, because I'm told that that would mean you can't hear me. So behind me is my father, Joseph Greenaway. Senator Whitehouse. Welcome, sir. We're glad to have you with us. Congratulations on your son's accomplishments. Judge Greenaway. My wife, Veronica Greenaway. Senator Whitehouse. Wonderful to have you with us. Judge Greenaway. My son, for his second visit. He was six the last time. [Laughter.] Judge Greenaway. He's a little older now. Senator Whitehouse. He has grown handsomely since then, Your Honor. Judge Greenaway. Thank you, Mr. Chairman. My daughter Samantha, who was not here the last time. Senator Whitehouse. Welcome. Judge Greenaway. My two sisters, Rosemary and Sonia, my brother-in-law Rodney, and Charlotte Rosen, my son's special friend. [Laughter.] Judge Greenaway. And Mr. Chairman, I'm graced with the presence of many friends, lifelong friends, law clerks and interns who are here for today's proceedings. Thank you so very much. Senator Whitehouse. You are most welcome, and we are delighted to have you here. I congratulate you on the quality and extent of your public service to date and hope that a speedy and uneventful confirmation awaits you here. I would like to ask you the same question that I asked now- Justice Sotomayor when she was before our Committee for confirmation, and that is whether, in your role as an appellate judge, you will 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 the court, respect precedent, and limit yourself to the issues that the court must decide? Judge Greenaway. Let me give you my unequivocal assurance, Mr. Chairman, that with regard to each of those items, that that is exactly what I have been doing and what, if I am confirmed--fortunate enough to be confirmed, I intend to do in the future. The role of stare decisis in our legal system is critical. I believe in it and I have adhered to it as a District Court judge. I believe that the only basis that cases can be decided on are the law and the facts and not some predetermined notion of what the outcome should be. Clearly, in my work as a District Judge, I have respected the role of Congress in our tripartheid system. Senator Whitehouse. In the context of your pledge to listen to every party that comes before the court, clearly not every party comes before the court with similar resources. Sometimes parties are represented by enormous law firms, sometimes they're represented by considerable numbers of enormous law firms. Sometimes a party comes before the court with a new lawyer, a solo practitioner, perhaps even a lawyer who is simply having a bad day. What is your view of the judge's role in ensuring that those differences of resources do not interfere with each party's right to a fair trial before the court? Judge Greenaway. Thank you, Mr. Chairman. I believe that the role of the judge, when there's an inequity in resources, an inequity in legal talent, as you've alluded to in your question, is frankly confined. I don't believe that the role of a district judge or a circuit judge is to sort of try to even things out. I've had cases where a solo practitioner is up against a massive law firm and, frankly, outdoes them quite nicely. I know in our own district, some of our CJA counsel are among the best lawyers available in the State. I think that if a judge were to say, you know, I'm not sure things are evened out so I'm going to call this one this way to kind of even things out, I think that that kind of interference or intrusion into the system is one that is ill-advised. I haven't followed that, and I would not want to in the future. I do believe that all people who appear before me, those with limited resources and those with unlimited resources, deserve fair treatment. I have done that. If confirmed, I would continue to do that. I believe that is the only role that a judge can play, to play it down the middle and call it as you see it. Senator Whitehouse. Finally, Your Honor, the Constitution embodies eternal principles that may be at odds with popular conventions or passions of the time and substantial societal expectations may have grown around those conventions or passions by the time a matter comes before the court. You may find yourself in a situation in which you find that the eternal principles of the Constitution, if applied properly, are actually disruptive of certain expectations and certain settled practices, and perhaps even certain interests. Do you feel any hesitancy, when the facts and the law and the principles of the Constitution so direct, to disrupt those conventions or practices that have settled around those popular passions? Judge Greenaway. Well, Mr. Chairman, I believe that the beauty of the Constitution is its enduring quality. I also believe that the prescience of the Founding Fathers was in giving Federal judges lifetime tenure so that in those instances that you've alluded to, those times when difficult decisions have to be made so that judges act in conformity with the Constitution rather than public opinion, those decisions can be made without fear of retribution. I do believe that the Constitution of the United States is a wonderfully constructed document. It is one that I enjoy reading. I believe that it is important to apply. I think that public opinion on particular issues comes and goes, but I think that the fact that that endures and that it is difficult, under our constitutional system of government, for amendments to be made speaks to the fact that the Constitution, for whatever foibles people may have with or see in it, should be followed. Senator Whitehouse. I thank you. My time has expired. I'd call on the distinguished Ranking Member. Senator Sessions. Thank you, Mr. Chairman. Judge Greenaway, it's a pleasure to be with you. I think you showed some admirable humility in your opening statement, thanking the President and God for your opportunity to serve in this august position. Some people get on the bench and they think they are anointed rather than appointed, as they say. [Laughter.] Judge Greenaway. Not I, sir. Senator Sessions. A little humility doesn't hurt for somebody who's got a lifetime appointment and we can't vote you out of office. But you have a lot of good friends, a lot of firm recommendations, and both of your Senators are very supportive. I remember, really before I came here, my staff has found a statement you made last time, when you were up for confirmation, that ``judicial activism is a practice that goes beyond the bounds of permissible jurisprudence, as set forth in the Constitution. In my view, engaging in such activism requires a jurist to begin the journey down the proverbial slippery slope. Once down that path, stare decisis and the Constitution fall prey to that judge's perceptions, prejudices, and predilections. This approach is antithetical to the intent of the framers of the Constitution and results in haphazard decisionmaking.'' You go on to say, ``A Federal judge cannot impose his or her own views on what the law should be as if sitting as a super-legislature. In theory and practice, judicial opinions must be measured and guided by precedent and the Constitution. Judges must limit themselves to the parameters permissible within the larger constitutional scheme.'' So I guess I like that. Judge Greenaway. Thank you very much, Senator. Senator Sessions. Do you still believe that? Judge Greenaway. Absolutely, sir. Senator Sessions. You made a speech, a lecture entitled, ``Judicial Decision-Making in the External Environment''. You said that ``the external environment consists of the political, social, intellectual, and other forces that influence and affect our judiciary and its decisionmaking. Although the public may believe that judges make their ruling in a vacuum, they clearly do not. Not only does each member of the judiciary come to the bench with a different set of experiences, but our environment affects each judge differently as well.'' Then you note that Justice Black, who ruled in the Japanese detention case, the Koramatsu case, was ``undoubtedly influenced by several factors outside the record, such as his own military career, the fact that his sons were in World War II, and his friendship with General DeWitt.'' I guess I think, as I read those remarks, you seemed to criticize Black for allowing those things to cause him to not be sensitive to the constitutional rights of the people, the Japanese citizens, who were interned. Is that correct? Judge Greenaway. Well, Senator, I think that--well, first of all, you quoted me absolutely accurately. I think that my point in that article was that, No. 1, we had suspect classifications involved. No. 2, we were talking about probably one of the most egregious violations of an entire subgroup of Americans in our Nation's history. No. 3, there was a real lack of evidence brought before the President before he acted, and the court before it acted. In looking at Koramatsu critically, my view was, if we're going to--if we as a society, and the court in particular, is going to take that kind of action, that we'd better have a good reason to do it and there should be some evidence to support it. Now, I think what you quoted with regard to Justice Black and his background is part of it, certainly not the only thing. But I think that was my point. Senator Sessions. Well, sort of to follow up on Senator Whitehouse's question about taking clear stands sometimes on important issues, even if not popular, I think there is a danger--do you not agree, that in a judge allowing such things, extra-judicial matters that you've cited that possibly could have influenced Black, there is a danger in allowing that to happen and could indeed weaken certain constitutional protections? Judge Greenaway. That is certainly possible, sir. Senator Sessions. Some people seem to think that feelings and experiences are necessarily good and are always going to lead a judge in the right way. Sometimes feelings could lead you in the wrong way in your experiences. Judge Greenaway. That is also certainly possible, sir. Senator Sessions. President Obama described, once, the kind of judges he would look for on the bench as follows: ``We need somebody who's got the heart, the empathy to recognize what it's like to be a young teenaged mom, the empathy to understand what it's like to be a poor African-American, or gay, or disabled, or old, and that's the criteria by which I'm going to be selecting my judges.'' Now, Justice Sotomayor declined to endorse that as her philosophy of service on the bench. Do you have any comments about that and how you would approach the difficult task of judging? Judge Greenaway. Well, Senator, I know a little bit about being African-American. [Laughter.] Judge Greenaway. I think we might not have had a lot of money growing up, but I didn't think we were poor. We were really rich in a lot of the more important things in life, my sisters and I. You know, I think my father and mother prepared us for life in the best way they could, and that is giving us the principles to be productive members of society. I am not in the President's position with regard to what makes a good judge. The only thing I can tell you is that, in my years of experience, I've tried to be fair to folks, I've tried to treat them with the utmost respect and to deal with their--address their cases as best I could, applying the facts to the law. Senator Sessions. Well, I thank you for saying that. We haven't done an exhaustive search of your record like what gets done for the Supreme Court nominees. Every word that they say gets researched. But it does appear that you have a good record and broad support in the community. Thank you. Judge Greenaway. Thank you very much, Senator. Senator Whitehouse. Thank you, Senator Sessions. As I said, Judge Greenaway, we hope very much for a speedy and uneventful confirmation. I thank you for your testimony here today. The record of the proceedings for you and for the other candidates will remain open for a week from the conclusion of this hearing, so if there are other comments anybody cares to make about your candidacy, they have that final week to make them before the record of these proceedings closes. But I welcome you here. I congratulate your family on this achievement and I wish you godspeed. Judge Greenaway. Thank you so much, Senator. Both Senators. I appreciate it very much. Have a good day.
Senator Whitehouse. We will take a 5-minute recess--and I do mean 5 minutes--while the table gets turned over for the next panel and people have a chance to assemble themselves. [Whereupon, at 3:19 p.m. the hearing was recessed.] AFTER RECESS [3:21 p.m.] Senator Whitehouse. The Committee will come back to order. I would ask if the nominees would please stand to be sworn. [Whereupon, the nominees were duly sworn.] Senator Whitehouse. Thank you very much. Please be seated. I think I will proceed in the order of the introductions, which would put Judge Berger at the front of the line. Welcome, Your Honor. Delighted to have you here. Judge Berger. Thank you. Senator Whitehouse. I call on you for any opening remarks or introductions that you would care to make. I understand that you have family and friends here on this day. STATEMENT OF IRENE CORNELIA BERGER, TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Judge Berger. I do. Thank you, Chairman. First, I would like to extend my heartfelt thanks to President Obama for the honor of the nomination. I also would like to extend my gratitude and appreciation to Senators Byrd and Rockefeller for their recommendation, and also their comments here today. I thank you and Senator Sessions for being here today and affording us this opportunity. I also would like to thank Senator Leahy for scheduling our hearing. It is with great pleasure that I introduce to you my brother, Charles Berger, my sister-in-law, Janet Berger, my niece, Charlene Berger, my niece, Michelle Berger, my administrative assistant and best friend, Karen Sword, and her husband, David Sword. Senator Whitehouse. We are delighted that you're all here today and we welcome you to the Senate Judiciary Committee. Judge Berger. My family and I are honored to be here. Thank you. [The biographical information of Irene Cornelia Berger follows.]
Senator Whitehouse. We're delighted to have you, and congratulations to you on your nomination. Next, is Bob Lange. STATEMENT OF ROBERTO A. LANGE, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA Judge Lange. Thank you very much, Mr. Chairman. I would like to join Judge Greenaway in thanking God. I feel very blessed in my life. Also, thank you to the Committee for the hearing, for Senator Johnson for his introduction of me, and to the President for the nomination. I'm delighted to be joined here by my wife, Lisa Lange, my youngest sister, Heidi Logelin, and her nine-year-old twins, Madison and Alec Logelin, my dear friends from law school, Tom and Tish Pahl, and by surprise, a raft of my cousins who happened to work in Washington, DC, David Hubbuch, Eleanor Hubbuck, and Mary Lange. Thank you, Mr. Chairman. Senator Whitehouse. We are delighted that they are all here, particularly Madison and Alec, who I think will probably find this a memorable day as they grow older as their uncle came to this great day. I applaud you on your nomination and welcome you here. Judge Lange. Thank you. [The biographical information of Roberto A. Lange follows.]
Senator Whitehouse. Next, is Judge Honeywell. STATEMENT OF CHARLENE EDWARDS HONEYWELL, TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA Judge Honeywell. Thank you, Mr. Chairman. I, too, must join Judge Greenaway in thanking God for making this possible. I am delighted to have present with me at these proceedings a number of family members and friends, but I must first, in addition to thanking God, thank the President for nominating me, thank the members of the Federal Judicial Nominating Commission in our State for sending my name to Senators Martinez and Nelson, thanking them for their support of my nomination, and then thank the Senate Judiciary Committee, thank Senator Leahy for scheduling this, and thank you all for your presence in affording us the opportunity to address you this afternoon. Traveling with me from Florida are my husband of 18 years, Major Gerald Honeywell. Senator Whitehouse. Welcome, Major. Glad to have you with us. Judge Honeywell. My 16-year-old son, Brenton Honeywell, my 13-year-old daughter, Brianna Honeywell, and my mother, who is terrified of flying, but made the trip regardless. [Laughter.] Senator Whitehouse. Good for her. Good for her. Judge Honeywell. I also have some very dear friends who traveled with me from Florida: my good friend from law school, Willye Dent; a very dear friend, Bettye Johnson; two other very dear friends, Reverend Arthur T. Jones and Mrs. Doris Jones. I also have present with me this afternoon members of my sorority and college friends from Howard University, many of whom live in the Washington, DC area. I'd just ask if they would stand. I won't introduce them individually, but I do have a number of friends present from college here in support of me today. Senator Whitehouse. There seems to be a color theme. [Laughter.] Judge Honeywell. It is: red. That was our sorority color, red and white. [The biographical information of Charlene Honeywell follows.]
Senator Whitehouse. Well, I'm delighted that your lovely family and your friends are here, and I thank them for joining us. The final member of our panel has not been introduced. She is not a candidate for a judgeship, but rather has been nominated to serve as Assistant Attorney General for the Environment and Natural Resources Division at the U.S. Department of Justice. I have served in that Department as a U.S. Attorney. I am keenly sensitive to what an important role she will play. I am delighted that Ignacia Moreno is here. She, too, is a veteran of the Justice Department, having served during the Clinton administration as Special Assistant, and then as Counsel and Principal Counsel to the Assistant Attorney General for the Environment and Natural Resources Division. So, this will be something of a homecoming. After serving at the Department of Justice, Ms. Moreno joined Spriggs & Hollingsworth in Washington, DC, where she became a partner, specializing in environmental and mass tort litigation, with an emphasis on science-based advocacy. She is currently counsel for corporate environmental programs at the General Electric Company and serves pro bono as general counsel to the Hispanic National Bar Association. We welcome Ms. Moreno and invite her to make any statement she cares, or any introductions she cares. STATEMENT OF IGNACIA S. MORENO, TO BE ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE Ms. Moreno. Thank you very much, Senator Whitehouse, for those kind remarks and the kind introduction. Thank you and Ranking Member Sessions for holding this hearing. I would also like to thank the President, as have my other panelists, for nominating me for this very important position. I am grateful to the President and to the Attorney General for their confidence in me. I'd like to briefly introduce my family who is with me today: my mother, Zenith Morena. Senator Whitehouse. Welcome. Ms. Moreno. Sisters, Patricia Moreno and Veronica Acosta; brother, Carlos Moreno; my niece and nephew, Francesca and Alexander Moreno; and it gives me special pleasure to introduce my husband and son, Robert and Nicholas Begotka. My father, Carlos Moreno, was unable to be here today, but is certainly with me in spirit. I wouldn't be here without my family's inspiration, their encouragement, and their support. In particular, I wish to thank my mother for her many and sustained sacrifices. She is my hero. Thank you again for the opportunity to appear before you, and I look forward to your questions. [The biographical information of Ignacia Moreno follows.]
Senator Whitehouse. Thank you very much, and welcome. I would begin by asking each of the judicial nominees the same question that I asked Judge Greenaway, which is whether you are prepared, in embarking on these judicial duties, to respect the role of Congress as the representatives of the American people, to decide cases based on the law and the facts, to not prejudge any case, but listen to every party that comes before the court, to respect the precedent of law that has been established in your district, and to limit yourself to the issues that your court must decide. Are you prepared to undertake your duties under that set of strictures? Judge Lange. Mr. Chairman, my answer is, unequivocally, yes. Judge Berger. Mr. Chairman, my answer to all facets of your question is an unequivocal yes. Senator Whitehouse. Judge Honeywell? Judge Honeywell. And Mr. Chairman, I join with the other panelists. My response is also an unequivocal yes. I have endeavored to do that for the eight and a half years that I've already served as a judge in Florida, although not Congress as much as the Florida legislature. So, I absolutely agree and give you an unequivocal yes. Senator Whitehouse. I appreciate that. The other question I asked is also one that is important to me. There may very well come a time when the requirements of the law or the requirements of the Constitution, as you with your very best conscience and judgment read it to say, may very well cross either expectations or conventions of society. In those circumstances, can we be assured that you will follow the law and the Constitution, even if the consequences may be disruptive for settled interests? Judge Lange. My answer, Mr. Chairman, is yes. The Constitution is the supreme law of the land that must be followed, even if it is a difficult result. Judge Berger. I agree with Mr. Lange. In all instances, the Constitution and the law controls, given the particular factual scenario, without giving consideration to the other issues which might come to bear at the time. Senator Whitehouse. Thank you. Judge Honeywell. And Mr. Chairman, I, too, agree with the responses of my colleagues. I absolutely agree that the Constitution and the controlling law are to be followed by the judge in rendering decisions without giving attention to any other extraneous matters. It is my responsibility as a judicial officer to be faithful to the law. Senator Whitehouse. I thank you all. Ms. Moreno, you have been on both sides of the aisle, so to speak. You have served before in the Environment and Natural Resources Division and been an enforcer of our environmental laws. You have also represented the private sector in matters of compliance with those environmental laws. Can you assure me that you are prepared to pursue full and fair enforcement of our environmental laws, and elaborate a little bit on what your experience on the defense side has taught you that you would bring to your duties, should you be confirmed? Ms. Moreno. Thank you, Senator Whitehouse, for that question. I'm being advised to turn the mike on. Thank you, Senator. Senator Whitehouse. Always wise to obey a judge. [Laughter.] Ms. Moreno. Absolutely. Thank you, Senator, for giving me the opportunity to answer that question. I am--I can tell you, unequivocally, the answer is: yes, I will absolutely be a defender of the Nation's environmental law. I am fully committed to the core mission of the Environment and Natural Resources Division, which includes a strong enforcement of laws enacted by Congress to protect human health and the environment, and to ensure clean air, clean water, and clean land for all Americans. That core mission also includes the defense of the laws enacted by Congress in the defense of agency programs and actions, as well as stewardship responsibilities and mindful management of our trust obligations to Native American tribes. My experience in the Division will serve me well if I am confirmed to be Assistant Attorney General for the Environment Division. I both work on affirmative enforcement matters, on criminal prosecutions, as well as in defense of the Nation's laws and programs. My private sector experience will only serve to make me a more effective Assistant Attorney General, if I should be confirmed, because I have, as you said, seen how it all works on both sides and would be mindful of our obligations. Senator Whitehouse. Thank you very much. My time has expired and I call on our distinguished Ranking Member. Senator Sessions. Thank you. I will just ask one thing of all of you, which is it's pretty obvious to me, having spent a good number of years practicing before Federal judges, that it's a challenge and a difficult task and requires a lot of work. So I guess I would ask you, Mr. Lange, are you committed to managing your courtroom, to reaching--doing justice as best you're able, but also managing the courtroom, disposing of cases in a timely fashion and not causing unnecessary expense to the litigants? Judge Lange. I certainly am, Senator Sessions. I'm from a family farm background. I've worked very hard throughout my life and I intend to commit myself to diligent and timely handling of the cases that come before me in a fair and impartial manner. Senator Sessions. Thank you. And do you agree? Judge Berger. Yes, Senator, I absolutely agree. I think it's exactly what I've made an effort to do over the course of the last 15 years as a State court judge, to employ whatever tools necessary in keeping with trying to ensure that every party was heard fairly and equally to try to be responsive in a timely manner. Senator Sessions. Thank you. Judge Honeywell. Judge Honeywell. Yes, Senator Sessions. I, too, agree. I first learned a little bit about managing a heavy caseload as an assistant public defender. That experience has kept me well in my experience now as a State court judge, where I preside over a docket of approximately 4,300 cases. Senator Sessions. Well, I think it is important. I hear, on occasion, lawyers and litigants complain about unnecessary delays. It can be very costly to them in terms of lawyers and business decisions that are in limbo, and that kind of thing. Mr. Lange, I like the fact that you're an active practitioner in your State for a number of years, and I like the fact that you've been active politically. I think that's a good thing. You've been active in a number of campaigns for Democratic nominees, as the Governor's race, Senator Daschle and Senator Johnson, both of which are honorable things to do. Are you confident that you can make the transition to a judge who puts aside those political views and can decide the case objectively, even though the person before you might be of a different political party? Judge Lange. Certainly, Senator Sessions. Many of my friends are of a different political party; I'm from South Dakota, after all. [Laughter.] Judge Lange. Many of my partners are from a different political party. I have no question about my ability to treat people fairly, regardless of what background they come from or what their political affiliation may be. My role in those campaigns was to make sure that the candidate was well- represented and the campaign laws were followed, and those proved to be campaigns that went fairly smoothly in terms of no great issues arising. That's the way it should be. Elections should be fair and square. That was what my responsibility, I felt, was in those settings. Senator Sessions. Well, I remember when President Bush chose Ted Olson to be his Solicitor General and some were unhappy because he had defended him in Florida. But I figured that proved that he thought highly of him, if he chose to defend him out of the whole--of all the lawyers in the United States of America, he told Ted Olson to be the one that defended his campaign. So, no. I think that's very true. I believe, particularly in smaller States where you deal on a regular basis with judges of different parties, you've practiced before them with lawyers of different political views, I think you can move past that. Some people can't, but most people who have actually been good practicing lawyers have no difficulty in that. Let's see. Judge Berger, 3 years ago, in a speech to the Legal Services Corporation in Charleston, West Virginia, you closed with the following quote from a former Canadian Attorney General: ``Substantive and procedural law benefits and protects landlords over tenants, creditors over debtors, lenders over borrowers, and the poor are seldom among the favored parties.'' Now, I think those were remarks made some 40 years ago by a Canadian. The oath that you take says that you will do equal justice to the poor and the rich alike. Are you committed to that oath, and does this suggest that you feel that contracts and mortgages shouldn't be enforced as written? Would that not impact the willingness of, let's say, a bank to loan somebody $100,000 to pay it back over 30 years at 6 percent if they felt like the terms of the contract wouldn't be honored if the borrower got into default? Judge Berger. Thank you, Senator, for an opportunity to clarify that comment. First of all, I want to say very strongly that I will, if confirmed, ensure that all parties are treated fairly and equally. They will be heard equally, be they rich or be they poor. In making that speech and quoting that, I simply wanted to impress upon the Legal Services Board that there was work to do in terms of equaling, from their perspective, the playing field among various constituencies. As a judge in a courtroom, I do not have that luxury. I think the Legal Services Board, however, does have the luxury for working to trying to see that people have access to the courts, and that was my intention in adding that to that particular speech. Senator Sessions. I think there is a danger that poor people with less education have difficulties understanding the full ramifications of a contract. But I do believe that the entire economic system and the ability of a poor person to get a loan could be reduced if the fundamental principles of the contract are not enforced. With regard to sentencing, you made a comment in 2000 that you never knew prison to improve a person, and that in borderline cases you would prefer 2 or 3 years probation. As you know, the sentencing guidelines in Federal court are pretty restrictive on a judge. State judges often chafe at that narrow window of ability to sentence. People who have gone straight on the Federal bench, I don't think, have any trouble. They find it pretty--somewhat relieving to be able to say, well, this objective panel has said this is the kind of range I should utilize when I sentence. But a judge who allows their personal views to impact sentencing can cause quite a bit of turmoil, appeals, and uncertainty in the system. So I guess I would ask you, are you generally familiar with the requirements of the sentencing guideline, and are you willing to follow them even if that would not be your choice for an appropriate sentence in a case? Judge Berger. Thank you, Senator. The answer to your question is yes. I am familiar with the sentencing guidelines. I would agree with you that oftentimes in State court there is discretion that is not presented by the operation of those sentencing guidelines. There are also, however, in State court, some mandatory sentences where judges don't have any leeway and I have, over the course of the 15 years that I have sat as a State court judge, applied those when it was appropriate. If confirmed by this body, I will continue to do that. I see it no differently than applying the law in any other area, which I am very committed to do, if confirmed. Senator Sessions. Thank you. It's a remarkable thing, what the Federal Government did with regard to the sentencing guidelines. Judge Honeywell, a number of years ago you were representing the City of Ft. Lauderdale. St. Petersburg. No, Ft. Lauderdale. Judge Honeywell. Tampa. city of Tampa. Senator Sessions. Tampa. OK. A Ft. Lauderdale gun show-- reported in the St. Petersburg Times about Tampa. I guess that's right, Tampa. They had banned gun show sales. You were the attorney for the city, correct? Judge Honeywell. That's correct. I was, Senator. Senator Sessions. Which is your duty to defend the city's statutes. Judge Honeywell. Absolutely. Senator Sessions. And you stated, ``Our position is that if speech is involved it's commercial speech, which is not entitled to the same protection under the law as political speech.'' I guess, have you had any thoughts about that statement in light of more recent Supreme Court authority, and even the Heller case in the District of Columbia? Judge Honeywell. Thank you, Senator. I have not had any additional thought with regard to that statement because that statement occurred, gosh, over 12 years ago. I can assure you that as a judge, though, I would be required to, and absolutely would, follow the law of our land. So as the law has changed and evolved since that statement was made, I, as a judge, would follow that law based upon precedent and the doctrine of stare decisis. Senator Sessions. I think there has been some recognition that there's not much difference between commercial speech and personal speech, but at one time there was some case authority that went along that way. Likewise, on the sentencing guidelines, are you committed to following those? Judge Honeywell. I am committed to following the sentencing guidelines. I believe that establishing the guidelines is the role of Congress. It would be my job, if confirmed by this body, to apply that law to the facts of the cases before me, but Congress certainly has the authority and has acted by establishing the sentencing guidelines. I am also familiar with the sentencing guidelines because in Florida we do have sentencing guidelines, too. Senator Sessions. I think it was a major step that the Congress took before I came here. I think Senator Kennedy and Senator Thurmond both supported it and it brought some objectivity to sentencing. We had this spectacle in the same courthouse, two people being convicted of the same crime, and one judge giving probation and another 20 years, and it was difficult to justify that. So it does bring some consistency and gives you a range within which to sentence. But people who are not that familiar with guidelines often feel some of our State judges who become Federal judges get anxious about it, I'll just say it that way. They're used to doing it the way they've done it. Ms. Moreno, yours is an important position. You've had a position with an environmental group, the Environment and Natural Resources Division, before. They have to take some tough cases. Some of them are quite technical. Some of them have been criticized as being unnecessary, unnecessary enforcement actions that don't make sense. But the Department has been proud of its strict enforcement of the law, which I don't disagree with. So I guess, you've been in the Department, you've been in the private sector. Do you think you can enforce the law fairly and adequately based on the law and the facts as you make the final decision on what cases to bring and recommend for prosecution? Ms. Moreno. Absolutely, Senator. You have my commitment to that. Senator Sessions. Well, I think there's nothing wrong with you having been with a major corporation and you have the other side experience, too, in the Department. So, I thank you. Mr. Chairman, each one of these nominees has strong support and we'll be continuing to look at their records, but I'm impressed with them. Senator Whitehouse. I thank the very distinguished Ranking Member. I want to thank all of you for your presence here today. This is a very distinguished panel. Each one of you is an extraordinarily accomplished individual. The process that has led to today of FBI background checks and innumerable forms to fill out, and so forth, has been--I know from firsthand experience--a long ordeal, but it is essentially concluded at this point. I think you have both of our hopes for a speedy and uneventful confirmation. But as you think back on this day, I want you to be aware that both the Ranking Member and I are aware that you bring extraordinary life experience, talent, and dedication to this day. Two of you bring substantial judicial experience as well, Judge Berger and Judge Honeywell. You bring before us the confidence of your communities, you bring before us the confidence of your home State Senators, and you carry with you the confidence of the President of the United States of America that you will do well as you assume the responsibilities that, upon confirmation, will be yours. You are embarking, each of you, in somewhat different ways on a career of public service that will entail a lot of hard work, a lot of late hours. Nothing particularly great in the way of pay, but a lot of great moments, a lot of great opportunities, and the greatest opportunity of all, which is to serve your country, the United States of America. So I salute you on being here today. I hope that you and your families enjoy this day and I wish you godspeed. Do you have anything else you'd like to add? Senator Sessions. Just briefly. Congratulations to each of you for your nomination. I'm happy for you and your families. This should, indeed, be a special occasion. I may submit some questions for the record that I hope that you would respond to. I know you understand fully that a Federal judge is given a lifetime appointment. Even though the salary may not be the greatest compared to what some private lawyers make, you don't have to worry about maintaining your position in the law firm and you don't have to keep a time sheet. So, it's a fabulous job and most judges that I've known have thoroughly enjoyed it. It's a great honor that you've been given to be nominated and I expect things should go forward in a timely manner. I don't believe that any of you need to be held up based on what I know at this time. So, we'd like to see you get your vote as soon as reasonably possible. Senator Whitehouse. I thank the Ranking Member very much for that. We have already, without objection, put my complete opening statement into the record. We have already, without objection, put the remarks by Senator Robert C. Byrd in favor of the nomination of Judge Berger, at the request of Senator Rockefeller, into the record. I would also ask unanimous consent that the statement of the distinguished Chairman of the Senate Judiciary, Patrick Leahy, be added to the record. [The prepared statement of Chairman Leahy appears as a submission for the record.] Senator Whitehouse. The full statement of Ignacia Moreno. I appreciate very much that she shortened her statement, but we would like to have her full statement be a matter of record in these proceedings. [The prepared statement of Ms. Moreno appears as a submission for the record.] Senator Whitehouse. And finally, we have a file folder full of letters of support for Ms. Moreno from a great number of people. I will not read them all off, but they include: Lois Schiffer, who was a previous occupant of that position; Steven Solau, who's the former Chief of the Environment Crimes section at the NRD; and the Center for International and Environmental Law; OCEANA, Protecting the World's Oceans; the Hispanic National Bar Association; the National Hispanic Leadership Agenda; the National Council of La Raza; the current and past chairs of the American Bar Association, Section of Environment, Energy and Resources; and I promised I would not read them all so I will not. [Laughter.] Senator Whitehouse. But there is a hefty file of support. Without objection, they will be made a part of the record. [The letters appear as a submission for the record.] Senator Whitehouse. As I said earlier, the hearing will remain open for an additional week for the responses and for any other materials that anybody should seek to add to the record, and then we will proceed through the remainder of the nomination process. But I wish you all well. I congratulate you on the achievements that have brought you here today. The hearing is adjourned. [Whereupon, at 3:55 p.m. the Committee was adjourned.] [Questions and answers and submission for the record follow.]
NOMINATION OF JACQUELINE H. NGUYEN, OF CALIFORNIA, TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; EDWARD MILTON CHEN, OF CALIFORNIA, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA; DOLLY M. GEE, OF CALIFORNIA, TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND RICHARD SEEBORG, OF CALIFORNIA, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA ---------- WEDNESDAY, SEPTEMBER 23, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, Pursuant to notice, at 2:34 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Al Franken, presiding. Present: Senators Franken, Feinstein, and Sessions. OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA Senator Franken. Good afternoon. The hearing will come to order. I want to welcome everyone to today's hearing of the Senate Judiciary Committee. Today we will hear from four nominees. All four nominees are for the Federal district courts in California, so I would like to extend a special welcome to my distinguished colleague Senator Boxer, who I believe will be here in just a few moments to introduce each of our nominees, and perhaps Senator Feinstein will also be able to make it. Unfortunately, she is on the floor right now managing the interior appropriations bill, and if she cannot make it, she sends her apologies. The nominees being considered are: California Superior Court Judge Jacqueline Nguyen to sit on the U.S. District Court in Los Angeles; U.S. Magistrate Judge Edward Chen to sit on the U.S. District Court in San Francisco; Dolly Gee to sit on the U.S. District Court in Los Angeles; and U.S. Magistrate Judge Richard Seeborg to sit on the U.S. District Court in San Francisco. Although I have only been here a short time--there is Senator Boxer. Welcome. Senator Boxer. Thank you. Senator Franken. Although I have only been here a short time, I was able to participate in the historic nomination of the first Latina appointed to the Supreme Court. Today's hearing is also a historic one both for the Federal courts and for the Asian American Community. As the Congressional Asian- Pacific American Caucus recently pointed out in a letter to the Committee, Asian Americans and Pacific Islanders are among the fastest-growing racial groups in the United States. Yet of the Nation's 875 active Article III judges, only eight are Asian American or Pacific Islander. Should today's nominees be confirmed, that number would rise to 11. In addition, we would be confirming the first Asian American judge ever to sit on the U.S. District Court for the Northern District of California, which includes San Francisco and the Bay Area, the first Vietnamese American woman to serve as a U.S. district judge and the first Chinese American to sit as a U.S. district judge. So this is an important hearing, and I want to thank representatives from the National Asian and Pacific American Bar Association, the Asian Pacific Bar of California, and the Asian American Justice Center for being in attendance today. I would also like to briefly point out something about two of the nominees today. Both Judge Seeborg and Judge Nguyen have experience in prosecuting cases of fraud--in particular, Ponzi schemes. These corrupt business practices have recently come to light across the country. Unfortunately, in my home State of Minnesota, with the case of Tom Petters and his alleged $3.5 billion scheme, it is extremely important that we have judges equipped with the financial experience to handle these cases, and I look forward to hearing from both of them on their experience with these cases. In closing, I would like to outline how the hearing will proceed. After the Ranking Member Senator Sessions makes his introductory remarks, the Senator from California, Senator Boxer, will introduce the nominees and I believe also will Senator Feinstein, who is now here sitting to my left. And then each Senator on the Committee will have a 5-minute round with the panel. Now I will turn it over to my distinguished Ranking Member Senator Sessions. STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator Sessions. Thank you, Mr. Chairman, and I think we should note the meteoric rise you have achieved here. [Laughter.] Senator Franken. Thank you. Senator Sessions. It gives new meaning to the words ``meteoric rise.'' Thank you. You are an active, participating member of this Committee, and I hope you enjoy it. And I think you are from our conversations. We welcome these nominees and look forward to hearing from--I see Senator Boxer. I know she is ready to talk. Each has an impressive resume and fine credentials, and I look forward to participating in the discussion. Senator Franken. Thank you, Senator Sessions. Senator Feinstein, would you like me to go to Senator Boxer. Senator Feinstein. Yes, please. Senator Franken. Senator Boxer, I would like to welcome you again. Senator Boxer. I think it would be wonderful if Senator Feinstein went first. She has so many more to introduce, and I would defer to her since she is on the Committee. And, by the way, I just want to say thanks for her hard work on the floor. Senator Franken. Well, in that case, since I am the Chairman, I will make the decision. Let me see. [Laughter.] Well, I will defer to Senator Boxer's judgment and recognize Senator Feinstein. STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Thank you very much, Mr. Chairman, and to my colleague, I would only say so far, so good down on the floor. But thank you very much, and thank you for being here. I would like to begin by introducing Judge Jacqueline Nguyen. She has been a judge of the California Superior Court in Los Angeles County since 2002 when she was appointed by Governor Gray Davis. Before becoming a judge, she served as a Federal prosecutor in the Los Angeles United States Attorney's Office for 7 years. She began in the Public Corruption and Government Fraud Section and was promoted to be Deputy Chief for General Crime in 2000. During her time as a prosecutor, Judge Nguyen led a 2-3 year undercover investigation into the filing of false applications for United States visas. In this case, Judge Nguyen secured the first ever conviction of a defendant for providing material support to a designated foreign terrorist group. Judge Nguyen also handled an important wiretap investigation of a Russian organized crime group that was smuggling sex slaves into the United States from the Ukraine. She received an impressive list of accolades for her work as a prosecutor. In 2002, she was awarded the Director's Award for Superior Performance as an Assistant U.S. Attorney. In 2000, she received a special commendation from FBI Director Louis Freeh for her work on the material support of terrorism case. And in 1996 and 1997, she received two commendations for sustained superior performance as an Assistant U.S. Attorney. Judge Nguyen has also experienced working 2 years on commercial cases at a private law firm. I want to mention one other thing. Judge Nguyen's personal story is one that to me, and I believe to Senator Boxer, really shows how fortunate we all are to live in the United States. Judge Nguyen and her family came to California in 1975 from South Vietnam. They lived initially at Camp Pendleton before moving to Los Angeles where her parents worked in and later owned a series of doughnut shops. Judge Nguyen helped her parents in their shop during her high school years, and she continued working with them while she went on to graduate from Occidental College and the University of California Los Angeles School of Law. Judge Nguyen will be the first Vietnamese American woman to serve as a United States district judge. My selection Committee in California highly recommended Judge Nguyen to me for the district court, and I was proud to recommend her to the President. She has been rated well qualified by the American Bar Association. So I would just like to recognize that and say how welcome she is here today. Senator Franken. Thank you, Senator Feinstein. Senator Boxer. PRESENTATION OF DOLLY M. GEE, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. BARBARA BOXER, A UNITED STATES SENATOR FROM THE STATE OF CALIFORNIA Senator Boxer. Mr. Chairman, thank you so much. I am honored to be here today to introduce Dolly Gee and welcome all of our California nominees and their families, and I want to add my congratulations to them all. Each of them comes to you so well qualified and well suited for the responsibilities that we hope they will take on. Senator Feinstein and I share the responsibility in California for providing advice and consent to the President on judicial nominations. I am very proud of the way we do it. Our bipartisan judicial advisory committees have vetted all of these nominees, and they have given them their highest recommendation. We are united in our admiration for the nominees, all of whom are respected by their colleagues in the California legal community, and they will all make outstanding additions to the Federal bench. I do want to say a few words about the nominee whom I had the pleasure of recommending to the President, Dolly Gee. And, Dolly, would you stand, please? Dolly is the daughter of parents who came to the United States from a small farming village in southern China. Her father was a World War II veteran, and he worked as an aerospace engineer on projects such as the Space Shuttle and the Apollo mission. Dolly's mother, who is with us today--and I would ask, Mr. Chairman, if it is OK with you and Senator Sessions, if I may ask her to stand, Dolly's mother. Is that all right? Senator Franken. Absolutely. Senator Boxer. Where is she? She will just show you who she is. Senator Franken. Welcome. Senator Boxer. And she was a garment worker who never taught Dolly to sew because she did not want her daughter to have to stitch clothes for a living. And this touches us all, I think. Her mom's experience as a seamstress helped inspire Dolly to pursue a career in employment law, to seek equal and fair treatment for workers. Dolly graduated summa cum laude from UCLA in 1981, and then she received her law degree from the same university in 1984. After a Federal clerkship in the Eastern District of California, she began her career in private practice at the firm of Schwartz & Steinsapir in Los Angeles. In 1994, President Clinton appointed Dolly to a 5-year term on the Federal Service Impasses Panel, acting as a mediator and arbitrator in hundreds of disputes between Federal agencies and the workers. She has also served as an arbitrator for Kaiser Permanente, helping to resolve medical and contract claims. In these roles--and I think this is so important--she has learned to listen to all sides and dispassionately apply the law to the facts, skills that are so essential as a judge. Dolly has been widely praised for her work promoting racial tolerance in Los Angeles by building diverse coalitions among various bar associations. She is a co-founder of the Asian Pacific American Bar Association of Los Angeles county and the Multicultural Bar Alliance and served as president of the Southern California Chinese Lawyers Association. As with Ms. Nguyen, Dolly's nomination is historic. If confirmed, she would be the very first Chinese American woman in U.S. history to serve as a Federal district court judge. Her nomination is a source of pride to so many people, not just to her family--to her Mom, who is here today, and to the Asian American Community--but to everyone who believes that our Federal courts should reflect the diversity of this, the greatest country in the world. And I have to say it is such an extraordinary moment, and I would say to our Chairman, Senator Franken, it is a great day to be sitting in that chair because here is who is making history today. We heard of the two women. If confirmed, Judge Edward Chen, a respected former civil rights lawyer and the first Asian American magistrate judge in the Northern District, would take another historic step as the first ever Asian American district court judge for the Northern District. So we have all of this making history today, and here is the important thing. Senator Feinstein and I have one direction to our committees: Send us the best. That is all we want. Send us the best. It is not partisan. I, frankly, have never known one person that I have recommended. It just so happens I never have known them personally. They have come through this wonderful system that we have created here. And so, clearly, I am very proud today. And I am so hopeful that the Committee will act to confirm these nominees quickly. Federal judges across the country, and particularly in California, are carrying a large caseload, backlogs, due to the fact that we have not updated the number of Federal judgeships in 20 years. And I know Senator Feinstein has been working long and hard on this. One of our districts, the Eastern District of California, carries the highest number of case filings per judge in this country, an astounding 1,106 per judge. And I say to Senator Sessions, who knows what that kind of a caseload is, this is quite an extraordinary number of cases to be carrying- 1,106 in the Eastern District of California. And two more districts, I say to my friends, the Central and the Northern Districts, are also among the top ten in the country in terms of these caseloads. Our courts need help now. This is a momentous day, and I am very happy to be with you, and I am looking forward to your swift action. And thank you very much for your allowing me to speak today. Senator Franken. Thank you, Senator. Senator Feinstein, would you also introduce Judge Chen and Judge Seeborg. Senator Feinstein. I would be happy to, and let me thank my friend and colleague for being here, and let me also thank you for bringing to the attention of both Senator Franken and Ranking Member of the Judiciary Committee, Senator Sessions, the fact that we are really under-judged in California, and particularly in the Eastern District. So I very much appreciate your comments. Thank you. I would like to now introduce Judge Edward Chen. Judge, would you stand, please? Right there. And, Judge Nguyen, would you stand, please? I did not do that. Thank you very much. Judge Chen has served as a United States magistrate judge in the Northern District of California for the last 8 years. He was appointed to that position by a merit-based selection Committee and was recently reappointed to serve a second 8-year term after a thorough review of his work, detailed confidential feedback from litigants, and insights from district judges. Before he was appointed to the Federal magistrate bench, Judge Chen worked as a staff attorney at the American Civil Liberties Union Foundation of Northern California and as a litigation associate at the law firm of Coblentz, Cahen, McCabe & Breyer. Judge Chen was part of the legal team that successfully represented Fred Korematsu in a suit to have his conviction removed for failing to report to an internment camp during World War II. Judge Chen worked as a law clerk to United States District Judge Charles Renfrew and to Judge James R. Browning on the United States Court of Appeals for the Ninth Circuit, and he is an Order of the Coif graduate of the University of California-Berkeley Boalt School of Law. Judge Chen has served as a master of the Edward J. McFetridge American Inn of Court, which is a new association for me, and as Chair of the Federal Courts Committee of the California Commission on Access to Justice and as an appointee to various Ninth Circuit committees. In 2007, he was named the Judge of the Year by the Barristers Club of San Francisco. Judge Chen was unanimously recommended to me by my bipartisan selection Committee in California, and I recommended him to the President. He has been rated well qualified by the American Bar Association. Judge Chen was the first Asian American appointed to be a magistrate judge in Northern California, and as has been said about others, he would be the first to sit--Asian male, that is, to sit as a United States district judge in the district, if confirmed. I would also like to introduce Judge Richard Seeborg. Would you stand, please? Thank you very much. Like Judge Chen, Judge Seeborg has been a United States magistrate judge in the Northern District of California since 2001. He was recently reappointed to a second term after a lengthy review process. He sits in San Jose, California, where he has presided over many intellectual property cases coming out of Silicon Valley. He has a special expertise in this area and has made speeches in places as far away as Chile and India about intellectual property rights enforcement. Before stepping onto the Federal bench, Judge Seeborg worked as a Federal prosecutor and as a partner at a private law firm. From 1991 to 1998, he prosecuted white-collar crime cases as Assistant U.S. Attorney in San Jose. He brought charges of wire fraud, high-tech crime, tax evasion, and money laundering, and he was co-lead counsel in a case involving money swindling by a mortgage loan company. He also successfully prosecuted a manufacturer of GPS devices for exporting goods from the UAE to Iran without a valid customs license. For 12 years, Judge Seeborg litigated complex civil cases as an associate and then a partner at the law firm of Morrison and Foerster. His work at the law firm gave him experience ranging from contract law to intellectual property law to antitrust. He is a summa cum laude graduate of Yale and a Harlan Fiske Stone Scholar at Columbia University School of Law. He was also unanimously recommended to me by my judicial screening Committee in California, and I have subsequently recommended him to the President, and he finds himself here today. So welcome, Judge Seeborg, and thank you very much, Mr. Chairman. Senator Franken. Thank you, Senator Feinstein, and thank you coming from the floor where I know you are busy managing the interior appropriations bill. Now I would like all the nominees to please stand and take the oath. Raise your right hand. Do you confirm that the testimony you are about to give the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Nguyen. I do. Judge Chen. I do. Ms. Gee. I do. Judge Seeborg. I do. Senator Franken. Well, thank you and please be seated. Judge Nguyen--do I have the pronunciation right? Because I said ``Noo-in.'' Judge Nguyen. I pronounce it ``nwin.'' Thank you, Mr. Chairman. Senator Franken. Sorry. You are now free to give any opening remarks and also to introduce any family members who might be here today. STATEMENT OF HON. JACQUELINE H. NGUYEN, TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA Judge Nguyen. Thank you, Mr. Chairman. It is my honor and privilege to appear before you this afternoon. I would like to thank President Obama for nominating me. I would like to thank Senator Feinstein for recommending me and for that very kind introduction, and Senator Boxer for her support as well. I thank you, Mr. Chairman, for presiding over the hearing today and Senator Leahy for scheduling this hearing. I also would like to thank the Ranking Member, Senator Sessions, and the other Committee members as well. I am very proud to introduce my family members who are present to support me this afternoon: my husband, Pio Kim; my children, 10-year-old Nolan and 7-year-old Avery; my mother-in- law, Hyo Soon Kim; and my mother, Hoa Nguyen. I also have other supporters---- Senator Franken. I would just like to say welcome to your family. Judge Nguyen. Thank you. I have other supporters present, and I would like to acknowledge and thank them as well. At home, I have many, many family members and friends watching the live webcast, and I want to acknowledge them and, in particular, acknowledge my father-in-law, Mr. Suh Chang Kim, and my other father, Binh Nguyen. Thank you, Mr. Chairman. [The prepared statement of Judge Nguyen appears as a submission for the record.] [The biographical information of Judge Nguyen follows.]
Senator Franken. Absolutely. Thank you. Judge Chen, please make an opening statement, if you would like, and also introduce your family members who are here. STATEMENT OF HON. EDWARD MILTON CHEN, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA Judge Chen. Thank you, Mr. Chairman. I do not have a formal opening statement, but I, too, would join in thanking, first of all, both of my home-State Senators, Senator Feinstein and Senator Boxer, for their support and kind words, and particularly Senator Feinstein for making the recommendation to the President. And, of course, I want to thank President Obama for placing his trust and confidence in me in making that nomination, and to you, Mr. Chairman, in chairing this meeting and to Ranking Member Sessions for participating in today's session. So thank you very much. I am joined by a portion of my family today. With me from California is my wife of 29 years, Janet; my daughter of 18 years, Tara; my brother-in-law, Laurence Lee; my aunt and uncle who have traveled all this way to be with me, Robert and Ellen Wong. And I am especially proud and privileged to have with me my staff who decided to come here, knowing that I am completely useless without them, so they decided to support me, and I appreciate that: Leni Doyle, my judicial secretary; Betty Lee, my courtroom deputy; and Shao-Bai Wu, my law clerk. And if I may, I just want to say a brief word about three people who are not here today. Senator Franken. Well, I want to welcome your family, and I know exactly how you feel about your staff. [Laughter.] Judge Chen. Thank you. I want to mention my son, Luke, who, because of his special needs, is not able to make the cross- country trip. But he is here in spirit, and I want to state for the record that today is his birthday, and so I want to---- Senator Franken. Happy birthday, Luke. Judge Chen. Thank you. And I also finally would like to pay tribute to my parents. My father came to this country in the 1920's on a visa with nothing more than $20 in his pocket and a suitcase full of consigned goods, looking to pursue the American dream. My mother came in 1939 from war-torn China to be reunited with her family in San Antonio, Texas, from whom she had been separated for nearly 20 years. My father worked very hard to provide financial security for my family, and when he became ill and passed away when I was very young, my mother was tasked with the burden of raising four boys and running the family business. And although neither of them lived to see this day, their courage, their perseverance, their dedication to family, and commitment to the community resides with me and continues to inspire me. Thank you, Mr. Chairman. [The prepared statement of Judge Chen appears as a submission for the record.] [The biographical information of Judge Chen follows.]
Senator Franken. Thank you, Judge Chen. Ms. Gee, we have met your Mom, but I want to say welcome once again and thank you for coming. And any opening statements you would like to make, please, now would be a good time. STATEMENT OF DOLLY M. GEE, TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA Ms. Gee. Thank you, Chairman Franken. I would like to thank President Obama for nominating me to the Central District court bench. I would also like to thank Senators Feinstein and Boxer for their support, and Senator Boxer for her kind and gracious introduction. I would also like to thank you, Chairman Franken, and Ranking Member Sessions and all of the other members of the Judiciary Committee for considering my application. At this time, I would like to introduce once again my mother, Helen Gee, who I am blessed to have here with me to experience this occasion. Senator Franken. Welcome. Ms. Gee. And I also would like to introduce other people who have come to support me at this hearing from afar: my cousin, Lily Lee; three friends of mine who are like sisters to me: Margo Feinberg, a partner of mine in my law firm; Kathryn Hirano, from Los Angeles; and Betty Bolden. Senator Franken. Welcome to you all. Ms. Gee. If I may, I would like to also acknowledge some people who would like to have been here but could not be here: my husband, Albert Wong, who is watching the live webcast; as well as my brother Kelvin and my sister-in-law Kay; and all of my nieces and nephews; and members of my law firm who are also watching. [The prepared statement of Ms. Gee appears as a submission for the record.] [The biographical information of Ms. Gee follows.]
Senator Franken. Thank you, Ms. Gee. Judge Seeborg. STATEMENT OF HON. RICHARD SEEBORG, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA Judge Seeborg. Thank you very much, Mr. Chairman. I also will forego an opening statement, but would like to join in some of the thank-you's. First of all, I would very much like to thank my home-State Senators, Senator Feinstein and Senator Boxer, and also thank Senator Feinstein for her very kind words, which I appreciate very much. I would like to express my profound gratitude to President Obama for nominating me to this position of very high public trust. I would like to thank you, Mr. Chairman, for presiding today and Senator Sessions also for participating in the hearings and all the members of the Judiciary Committee. I would like to acknowledge, as have some of my co- nominees, some people who are not here: my parents, Ken and Jane Seeborg, and my grandparents, Ken and Vivian Sartori. All of them would so much have enjoyed being here, but they are with me in spirit. I would like to introduce some people who have come with me today, several former colleagues and wonderful friends from my days in the U.S. Attorney's Office: Marcia Jensen, Leo Cunningham, and their daughter, Alexandra, who is a freshman at GW here in Washington. I would also like to introduce my college roommate who has come down from Boston, Jonathan Kaufman, and his son, Nick Kaufman. Thank you very much, Mr. Chairman. [The prepared statement of Judge Seeborg appears as a submission for the record.] [The biographical information of Judge Seeborg follows.]
Senator Franken. Welcome to you all. We will start the questioning now, and I guess I get to start. Judge Nguyen, we got to confirm Judge Sotomayor, the first Latina Justice of the Supreme Court, and now you are going to be the first Vietnamese American woman to be a Federal district court judge in the United States, if confirmed. How has this experience affected you, being a first? And how does--or has it affected your judging? And if so, how has it? Judge Nguyen. When I was fortunate enough to be appointed to the State court bench by Governor Gray Davis, I was the first Vietnamese American judge ever appointed to that position, and being a first of anything is both a privilege, but also carries with it certain responsibilities. And I take that responsibility very seriously. I know and appreciate the fact that I am a role model for so many people, not only from the Vietnamese American community but also from other communities as well. And in my years as a State court judge, I have done what I could in order to mentor and guide young people who look to me for guidance and career advice and encourage them to participate in the community and to try to give back to the community. But the process of judging does not change merely by my ethnicity. The law remains the same, and my task as a judge is to apply the law to the facts of each case. Senator Franken. Thank you. Judge Chen, I see that you are part of the pro bono team that successfully represented Fred Korematsu in his effort to overturn his conviction for failing to report to an internment camp. Can you tell us more? It seems like a fascinating case. Can you tell us more about the case? Judge Chen. Yes. Well, as you probably know, 110 Japanese Americans were interned during World War II out of fear that they would commit sabotage or espionage along the West Coast, and they were evacuated pursuant to military orders. The Supreme Court ultimately upheld in a series of cases both the curfew that was imposed on Japanese Americans as well as their ultimate internment, even though two-thirds of those were American citizens and included children, women, and the elderly, none of whom were ever accused of disloyalty, none of whom ever were given a hearing. Those cases I think live in infamy for many Americans as decisions that were wrongly decided. The coram nobis case in which I participated added some new information to that, and that is, what was discovered some 40 years after the fact through researchers going through the archives was that the United States Justice Department had in its possession a number of documents which contradicted its assertion that the order was necessitated by military necessity; that there were, in fact, reports from the FBI, from the Office of Naval Intelligence, from the FCC that showed that there was not a threat and that the rumors that had been circulated of signaling and this sort of thing, in fact, had been investigated and found to be unfounded. And so once those documents were uncovered, the legal team of which I was a part went back to court and petitioned for a writ of coram nobis, a little-known writ, to essentially allege that the United States Justice Department had withheld critical evidence, material evidence from the court. And it was on that basis that the conviction of Mr. Korematsu was overturned. And I think the lesson that we learned from that is the importance of having checks and balances and having meaningful judicial review. Senator Franken. Thank you, Your Honor. Ms. Gee, I saw that you currently serve as an arbiter for Kaiser Permanente for the independent arbitration system that they have--an arbitrator. The job you are about to take is very different. Can you speak to how serving as an arbitrator is different than serving as a judge? Ms. Gee. Serving as an arbitrator is somewhat different in that the rules of evidence that would apply in a Federal proceeding would not necessarily be applicable. There are certain rules of evidence, but more relaxed with regard to hearsay and other types of rules. In many respects, however, it is similar. The ability to listen and to learn, to dispassionately listen to the parties present the facts of their case, and to apply whether it is negligence principles or contract interpretation principles to the situation at hand. Those are skills that I believe are transferable to a position as a U.S. district court judge, if I am fortunate enough to be confirmed. Senator Franken. Thank you. I have used up my time, so I apologize to Judge Seeborg. Judge Seeborg. That is quite all right, Senator. Senator Franken. Senator Sessions. Senator Sessions. Thank you, Mr. Chairman. Judge Seeborg, good luck. [Laughter.] Judge Seeborg. Thank you, Senator. Senator Sessions. There is some advantage being at the end of the table there. Judge Nguyen, I have an appreciation for Assistant United States Attorneys, having been one before, and I was impressed that you headed a 2\1/2\-year investigation that led to the arrest of 35 individuals in several countries. That is a big effort when you do those kinds of cases. It led to the first successful prosecution in the United States for providing material support and resources to a designated foreign terrorist in violation of 18 U.S.C. 2339. Do you believe that material support provision remains an important tool for prosecutors? Judge Nguyen. Well, it is up to the legislature to make the law, and whatever the state of the law is, if I am fortunate enough to be confirmed, I will faithfully apply it. Senator Sessions. Well, I certainly agree with that, but as you having worked with that statute, did you find it helpful in your case to render justice? Judge Nguyen. Well, certainly, when I handled that prosecution, given the facts of that case, I obviously thought that it was justified. Senator Sessions. Well, I thank you for that good work and believe it is something that you can take pride in. Tell me about your understanding of precedents. Are you committed to following the precedents of higher courts faithfully and giving them full force and effect even if you personally were to disagree with those precedents? Judge Nguyen. Absolutely yes, Senator Sessions. That is how I have conducted myself as a State trial court judge and how I intend to conduct myself as a United States district court judge, if I am fortunate enough to be confirmed. Senator Sessions. Thank you very much. Judge Chen, I will ask you the same question. Are you committed to following the precedents of higher courts faithfully and giving them full force and effect, even if you personally disagree with the precedents or, I will add, the policy results that may occur from your ruling? Judge Chen. Absolutely, Senator Sessions. That requirement, of course, is part of the rule of law which I respect and which I have endeavored to apply. And I think that has particular force with respect to the district court because we are the subordinate court within the system, and we take our commands from the circuit courts and from the Supreme Court. Senator Sessions. As a magistrate judge, how did the--is that the right word now? Judge Chen. Yes, it is. The magistrate judge is fine. Senator Sessions. I remember one magistrate judge, I wrote him a letter and said, ``Dear Magistrate Judge,'' he thought that was funny. I thought that was the right name. But how are you allowed--various district judges give more or less power and responsibility to magistrate judges. I am of the view generally that they should be given responsibility that the law allows for the most part. What kind of responsibilities were you given in your court? Judge Chen. Well, I am very fortunate, as Judge Seeborg, my colleague, is, to be in the Northern District of California where the judges have decided to give the full range of responsibility permissible under Article III of the Constitution to magistrate judges. So not only do we hear matters that are assigned to us by the district judges, but we have our own caseload. We are on the wheel, and our names are drawn when cases are filed. And so long as the parties consent, we have full jurisdiction over the case through disposition. And so it is common for magistrate judges to rule on motions to dismiss, summary judgment, to hold trials, and have those matters appeal directly to the Ninth Circuit. Senator Sessions. In the California Law Review, you wrote this: ``Diversity enhances the quality of decisionmaking. In addition to analyzing and applying the law, judges have to make determinations that draw not so much upon the legal acumen but on the understanding of people and human experiences. Such experiences inform assumptions that affect legal decisions. At trial and in evidentiary hearings, judges have to assess credibility of witnesses. A witness' testimony may seem more credible if it is consistent with the judge's knowledge or experience and, conversely, less credible if it remains outside the judge's experience. Simply put, a judge's lifetime experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide. These determinations require a judge to draw upon something that is not found in the case, reports that line the walls of our chambers; rather, judges draw upon the breadth and depth of their own life experiences, upon the knowledge and understanding of people and of human nature, and inevitably one's ethnic and racial background contribute to those life experiences.'' Does that statement accurately reflect your judicial philosophy? Judge Chen. Well, let me put that in context, if I can, Senator. The point I was trying to make in that law review piece was that there is a benefit to having a diverse judiciary; that the judgments we make, some of those are based on deductive reasoning and analysis of law, and sometimes they are based on more intuitive analysis--judging the witness' credibility, making a decision with respect to bail or sentencing. That requires an understanding of human factors in different--in various contexts. And the point I was trying to make is that the broader the breadth of experience both for an individual judge and collectively as a court, I think the better the ability of judges to make those assessments. And I tried to give some illustrations in that piece about how the collegiality amongst judges, whether it is a formal exchange amongst the members of the Supreme Court or the court of appeals or the informal exchange that often happens in the district court, in the hallways and the dining rooms, that we learn from each other about various perspectives, different perspectives, and life experiences. Senator Sessions. Well, you know, the average litigant would be nervous if he thought a decision was being made on what you judges talked about in the dining hall or in the hallways. I mean, the case should be decided, should it not, on the evidence introduced and the law properly applied to that evidence? Judge Chen. No, and I agree with that fully, and I did not mean to suggest that cases are decided in a hallway. But---- Senator Sessions. Well, I am just raising this point because it is something we have talked about before. I suppose your experience might help you have insight into a witness' credibility. Everybody has different experiences, and it might. But I was a little concerned that you say you might understand the human impact of legal rules upon which a judge must decide. You know, the oath says that a judge should do equal justice to the poor and the rich. I assume you would take that oath and intend to follow that. Judge Chen. Absolutely, and I did take that oath when I was sworn in as a magistrate judge. Senator Sessions. And that you would be impartial. Judge Chen. Absolutely. Senator Sessions. I know you served--what--18 years as counsel for the American Civil Liberties---- Judge Chen. Sixteen years, actually. Senator Sessions. Sixteen. Now, you were on their payroll as a---- Judge Chen. As a staff attorney. Senator Sessions. A staff attorney. Well, you know, the ACLU has filed some excellent cases. They have filed some I am not comfortable with. Is my time up? Senator Franken. Well, you are right, but I was giving you--in my role as Chairman, I was giving you leeway because you are the distinguished Ranking Member, and I was torn, frankly. [Laughter.] Senator Franken. But I guess your time is up, and I would-- -- Senator Sessions. Well, one thing Senator Franken always has tremendous skill at: timing. [Laughter.] Senator Franken. Thank you. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. I think I know where Senator Sessions is going, and let me say this to him: Judge Chen has been a very fair magistrate judge for 8 years. I have tested this, because I also am aware he has been a fierce advocate prior to that time. And I might have some differences of opinion with some of the things, and I am going to raise one in a moment. But, nonetheless, he has been examined by a Republican screening Committee and by a Democratic screening committee for the position of magistrate judge, and everybody has found he is fair. I would like to just read on this subject one comment of the Coalition of Northern California Asian American Bar Associations, and it is this: ``He has made a successful transition from a zealous advocate to a balanced and conscientious adjudicator who is committed to the impartial and active administration of justice. Judge Chen has earned a reputation as an even-handed jurist who is constantly mindful of the role that judges fulfill in our society.'' Senator Sessions. Well, I think a person can be a zealous advocate and be a great judge. Senator Feinstein. So let me ask a question that takes you back a ways, because it was of some concern to me. In 1988, you filed a brief challenging Federal railroad regulations that require that certain employees be tested for drug use at random. You made similar arguments in a series of articles about the same time. As I understand it, the Supreme Court disagreed with your position and held that these drug tests were, in fact, constitutional. So here is the problem--or here is the question, I should say. I do not really believe there is a problem. Will you have a problem as a district court judge following the Supreme Court's law in this regard or any other? Judge Chen. Absolutely not, Senator. The Supreme Court has now ruled in a series of cases on that particular topic, the permissibility or not of drug testing, and the law has now evolved to a much clearer point than it was back in 1988. And I take the decisions of the Supreme Court as my command, and I would follow those. And I would add that in my position as a magistrate judge it is common, indeed routine, for us to impose mandatory drug testing on pre-trial releasees, on probationers. And I have not had a problem at all, even though one might think that it could be at odds with my former advocacy. I understand my role as a judge now is entirely different, and my task is to apply the law as it is given to us and to the facts of the case. Senator Feinstein. Well, you come very well regarded, and by a whole host of varying authorities. And I think you did make that transition as advocate to judge. And I think you have 8 years under your belt to show that. So with this in mind was the reason that I recommended you and that your performance as a magistrate judge has been sterling. Judge Chen. Thank you, Senator. Senator Feinstein. And I think you are to be complimented on that. You know, let me quickly ask this of all of the panelists. I think the Ranking Member, Senator Sessions, essentially referred to this. We hold precedent as very important and the ability of a judge to be cognizant of precedent and to follow it. I would like a comment from each of you as to whether you would see yourself as bound by legal precedent. Judge Nguyen. Judge Nguyen. Yes, I would absolutely be bound by precedent. Sitting as a lower-court judge, that is my obligation. Senator Feinstein. Judge Chen. Judge Chen. I would, Senator, and I have a fairly lengthy record of published opinions now as a magistrate judge. Senator Feinstein. Yes, you do. Judge Chen. And I think you would see that I adhere to precedent and try to read the precedent as best I can. Senator Feinstein. Judge Gee. Ms. Gee. Not quite ``Judge Gee'' yet, but---- Senator Feinstein. Oh, I am sorry. [Laughter.] Senator Feinstein. Almost. Ms. Gee. If confirmed as a judge, I would most definitely take very seriously my obligation to apply the precedent of the circuit as well as of the United States Supreme Court. Senator Feinstein. Thank you. Judge Seeborg. Judge Seeborg. Senator, I believe I have done that in my tenure as a magistrate judge, and I can give you that assurance that, if confirmed, I will continue to follow precedent. Senator Feinstein. Thank you very much. Those are my questions. Thank you. Senator Franken. Thank you, Senator Feinstein. Thank you, Ranking Member Sessions. Before I adjourn, the Committee has received a number of letters from individuals and organizations who are supporting the nominees before us today. Just to name a few, we have a letter from the Congressional Asian Pacific American Caucus in support of Judge Nguyen, Judge Chen, and Ms. Gee; testimony from the National Asian Pacific American Bar Association and Asian American Justice Center in support of these three nominees; a letter from the Asian Pacific Bar of California; and a letter from six Northern California Asian American Bar Associations in support of Judge Chen. So, without objection, I would like to submit all these letters and testimony for the record. [The information appears as a submission for the record.] Senator Franken. I would also like to introduce Chairman Leahy's opening statement into the record. [The prepared statement of Chairman Leahy appears as a submission for the record.] Senator Sessions. Mr. Chairman, briefly, could I ask one more question? Senator Franken. Absolutely. Senator Sessions. A lot of people have firm views about the death penalty. I do not believe a judge should be disqualified or a nominee disqualified if they do not support the death penalty but if the--it is a lawfully applied penalty. My question is: Do you have any personal views such that you would be unwilling to carry out a death penalty if it was properly imposed? Judge Nguyen. No, I do not, Senator Sessions. Judge Chen. I do not, Senator Sessions. Ms. Gee. I do not, Senator Sessions. Judge Seeborg. I do not, Senator. Senator Sessions. Judge Chen, according to the website of the ACLU, it believes the death penalty inherently violates the constitutional ban on cruel and unusual punishment and guarantees of due process and equal protection. Do you agree with that? Judge Chen. Well, those views are not the views of the Supreme Court, and I abide by the rulings of the Supreme Court. And I will tell you that I had one death penalty case that I handled as a lawyer. In that case, we did not bring a broad challenge, a sweeping challenge. It was very fact specific about the case, the ineffective assistance of counsel that this individual had and mistakes that were made by the trial judge. So it was a very narrowly focused case, and we brought that case to ensure that the person had fair process. It was not a broad challenge. Senator Sessions. Well, great attention is provided on those cases by the courts, and that is legitimate. But I guess my question is: Do you agree with this position of the organization you worked for 16 years? Judge Chen. Well, other than that one case, I have never been involved in any of the policymaker or any of the broader efforts of the ACLU on that issue. And I would affirm again that as a district judge I see my role very differently today than as an advocate some 15 years ago. Senator Sessions. Ms. Gee, you were a member, I believe, of the ACLU for years, 8 years. Do you agree with that legal position that is on their website? Ms. Gee. Ranking Member Sessions, I have never been in a policy position or had any active role in the ACLU other than to be a member. I take very strongly the position that as a district court I would have the obligation to apply the law and that I would set aside any personal opinions whatsoever in my faithful adherence to the law. Senator Sessions. Well, you know, you voluntarily joined an organization. I usually do not join one I do not agree with. But I think it is legitimate to ask those questions. We will submit some more questions for the record. Mr. Chairman, these are able nominees who I believe have good integrity, and I appreciate the opportunity to ask these questions. Senator Franken. Thank you, Senator. Senator Feinstein, any more questions? Senator Feinstein. No, Mr. Chairman. Senator Franken. Well, in that case, I would like to thank Senator Feinstein and the distinguished Ranking Member. I also want to thank each of you for your testimony today. You are all very impressive, and I will hold the hearing opening for 1 week for submission of questions for the nominees and other materials. The hearing is adjourned. [Whereupon, at 3:27 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.]