[Senate Hearing 111-695, Part 4]
[From the U.S. Government Printing Office]

                                                 S. Hrg. 111-695, Pt. 4



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             FIRST SESSION


                           DECEMBER 16, 2009


                           Serial No. J-111-4


                                 PART 4


         Printed for the use of the Committee on the Judiciary


                                                 S. Hrg. 111-695, Pt. 4




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             FIRST SESSION


                           DECEMBER 16, 2009


                           Serial No. J-111-4


                                 PART 4


         Printed for the use of the Committee on the Judiciary

63-004                    WASHINGTON : 2011
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
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, OCTOBER 7, 2009




Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     1
    prepared statement...........................................   141
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   163
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3


Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, presenting Laurie Robinson, Nominee to be 
  Assistant Attorney General for the Office of Justice Programs, 
  Department of Justice..........................................     7
Warner, Hon. Mark, a U.S. Senator from the State of Virginia, 
  presenting Barabara Milano Keenan, Nominee to be U.S. Circuit 
  Judge for the Fourth Circuit...................................     4
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  presenting Barabara Milano Keenan, Nominee to be U.S. Circuit 
  Judge for the Fourth Circuit...................................     3

                       STATEMENT OF THE NOMINEES

Jackson, Ketanji Brown, Nominee to be a Member of the U.S. 
  Sentencing Commission..........................................    74
    Questionnaire................................................    75
Keenan, Barbara Milano, Nominee to be U.S. Circuit Judge for the 
  Fourth Circuit.................................................     6
    Questionnaire................................................    17
Robinson, Laurie, Nominee to be Assistant Attorney General for 
  the Office of Justice Programs, Department of Justice..........    49
    Questionnaire................................................    50

                         QUESTIONS AND ANSWERS

Responses of Ketanji Brown Jackson to questions submitted by 
  Senator Sessions...............................................   102
Responses of Barabara Milano Keenan to questions submitted by 
  Senators Sessions and Coburn...................................   104
Responses of Laurie O. Robinson to questions submitted by Senator 
  Coburn.........................................................   125

                       SUBMISSIONS FOR THE RECORD

Academy of Criminal Justice Sciences, Janice Joseph, President, 
  and Todd R. Clear, President, American Society of Criminology, 
  joint letter...................................................   133
American Correctional Association, James A. Gondles, Jr., 
  Executive Director, Alexandria, Virginia, letter...............   135
American Probation and Parole Association, Carl Wicklund, 
  Executive Director, Lexington, Kentucky, letter................   136
American Society of Criminology, Todd R. Clear, President, 
  Columbus, Ohio, letter.........................................   137
Blumstein, Alfred, Professor, H. John Heinz III School of Public 
  Policy and Management, Carnegie Mellon University, Pittsburgh, 
  Pennsylvania, letter...........................................   139
Chiarkas, Nicholas L., Wisconsin State Public Defender, Madison, 
  Wisconsin, letter..............................................   144
Cicilline, David N., Mayor, Providence, Rhode Island, letter.....   145
Council of State Governments Justice Center, Pat Colloton, 
  Bethesda, Maryland, letter.....................................   146
English, Sharon J., June 1, 2009, letter.........................   148
Esserman, Dean M., Colonel, Chief of Police, Providence Police 
  Department, Providence Rhode Island, letter....................   149
Heilig, John A., Attorney, Heilig, Norfolk, Virginia, letter.....   151
Hightower, Carolyn A., June 3, 2009, letter......................   153
Hynes, Charles J., District Attorney, County of Kings, Brooklyn, 
  New York, leter................................................   155
International Association of Chiefs of Police, Russell B. Laine, 
  President, Alexandria, Virginia, letter........................   157
International Community Corrections Association, Jane Browning, 
  Executive Director, Silver Spring, Maryland, letter............   158
International Union of Police Associations AFL-CIO, Clocumb, 
  Dennis, International Vice President, Alexandria, Virginia, 
  letter.........................................................   159
Johnson, Thomas G., Jr., Attorney, Willcox, & Savage, Norfolk, 
  Virginia, letter...............................................   161
Major Cities Chiefs Association, William J. Bratton, Chief of 
  Policy, President, letter......................................   165
Mastracco, Vincent J., Jr., Kaufman & Canoles, Attorneys and 
  Counselors at law, Norfolk, Virginia, letter...................   166
Miller, Thomas J., Attorney General, Department of Justice, 
  DesMoines, Iowa, letter........................................   168
National Association of Counties, Larry E. Naake, Executive 
  Director, Washington, DC, letter...............................   170
National Association of Drug Court Professionals, C. West 
  Huddleston, III, Chief Executive Officer and Executive 
  Director, Alexandria, Virginia, letter.........................   171
National Association of Police Organizations, Inc., William J. 
  Johnson, Executive Director, Alexandria, Virginia, letter......   172
National Association of State Alcohol and Drug Abuse Directors, 
  Inc., Robert I.L. Morrison, Interim Executive Director, 
  Washington, DC, letter.........................................   173
National Association of VOCA Assistance Administrators, Steve 
  Derene, Executive Director, Madison, Wisconsin, letter.........   175
National Crime Prevention Council, Ann M. Harkins, President and 
  CEO, Arlington, Virginia, letter...............................   177
National Crime Victim Assistance and Allied Justice 
  Organizations; Association of Prosecutying Attorneys; ATTIC 
  Correctional Services, Inc.; Colorado Organization for Victim 
  Assistant; The Damian Corrente Memorial Youth Foundation; 
  Denver District Attorney's Office; IllinoisVictims.org; 
  International Organization for Victim Assistance; Justice 
  Solutions, Inc.; Mary Byron Project; Maryland Crime Victims 
  Resource Center; National Alliance to End Sexual Violence; 
  Monika Johnson Hostler, President; National Association of 
  Crime Victim Compensation Boards; National Association of VOCA 
  Assistance Administrators; Naitonal Coalition of Victims in 
  Action; National Crime Victim Law Institute; National Crime 
  Victims Research and Treatment Center; National District 
  Attorneys Association; National Organization for Victims of 
  Juvenile Lifers; Renee Olubunmi Rondeau Peace Foundation; 
  Security On Campus, Inc., Survivors Network, Michigan; Rachel 
  Atkinson, Community Activist, Agawam, Michigan; Janet Burt, 
  Detroit, Michigan; Sharon J. English, National Victim Advocate, 
  San Clements, California; Anne Seymour, National Victim 
  Advocate, Washington, DC; Pamela Pupi, Survivor and Advocate; 
  Gail Burns Smith, National Victim Advocate, Connecticut; 
  International Organization for Victim Assistance; Security on 
  Campus; Sharon J. English; Caroly A. Hightower; and Anne 
  Seymour, joint letter..........................................   179
National Criminal Justice Association, Roland Mena, President and 
  Cabell Cropper; Executive Director, Washington, DC, letter.....   181
National District Attorneys Association, Joseph I. Cassilly, 
  President, Alexandria, Virginia, letter........................   182
National League of Cities, Donald J. Borut, Executive Director, 
  Washington, DC, letter.........................................   183
National Legal Aid & Defender Association, Jo-Ann Wallace, 
  President & CEO, Washington, DC, letter........................   185
National Organization of Black Law Enforcement Executives, Jessie 
  Lee, Executive Director, Alexandria, Virginia, letter..........   187
National Sheriffs' Association, Sheriff David A. Goad, President, 
  and Aaron D. Kennard, Executive Director, Alexandria, Virginia, 
  letter.........................................................   188
National Troopers Coalition, Michael S. Edes, Chairman, 
  Washington, DC, letter.........................................   190
Police Executive Research Forum, Chuck Wexler, Executive 
  Director, Washington, DC, letter...............................   191
Robinson, Laurie, Nominee to be Assistant Attorney General for 
  the Office of Justice Programs, Department of Justice, 
  statement......................................................   192
Security on Campus, Inc., Janathan Kassa, Executive Director, and 
  S. Daniel Carter, Director of Public Policy, King of Prussia, 
  Pennsylvania, joint letter.....................................   194
Seymour, Anne K., National Crime Victim Advocate, Washington, DC, 
  letter.........................................................   195
Siegel, Steven, Director, Special Programs Unit, Denver District 
  Attorney, Denver, Colorado, letter.............................   196
United States Conference of Mayors, Tom Cochran, CEO and 
  Executive Director, Washington, DC, letter.....................   197
Wallenstein, Arthur M., Director, Montgomery County, Department 
  of Correction and Rehabilitation, Rockville, Maryland, letter..   198
Young, Marlene A., President, International Organization for 
  Victim Assistance, Newberg, Oregon, letter.....................   200

                      WEDNESDAY, OCTOBER 21, 2009


Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   299
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   201


Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee 
  presenting Jane Branstetter Stranch, Nominee to be U.S. Circuit 
  Judge for the Sixth Circuit....................................   201
Corker, Hon. Bob, a U.S. Senator from the State of Tennessee 
  presenting Jane Branstetter Stranch, Nominee to be U.S. Circuit 
  Judge for the Sixth Circuit....................................   202

                       STATEMENT OF THE NOMINEES

Stranch, Jane Branstetter, Nominee to be U.S. Circuit Judge for 
  the Sixth Circuit..............................................   203
    Questionnaire................................................   217
Tucker, Benjamin B., Nominee to be Deputy Director for the State, 
  Local and Tribal Affairs Office of Drug Control Policy.........   204
    Questionnaire................................................   244

                         QUESTIONS AND ANSWERS

Responses of Jane Branstetter Stranch to questions submitted by 
  Senators Sessions and Coburn...................................   265
Responses of Benjamin B. Tucker to questions submitted by 
  Senators Grassley, Sessions, Coburn, and Feinstein.............   277

                       SUBMISSIONS FOR THE RECORD

Gillibrand, Kirsten E., a U.S. Senator from the State of New 
  York, letter...................................................   297
Major Cities Chiefs Association, William J. Bratton, Chief of 
  Police, Los Angeles, California, letter........................   303
National Sheriffs' Association, Aaron D. Kennard, Executive 
  Director, Alexandria, Virginia, letter.........................   304
Police Executive Research Forum, Chuck Wexler, Executive 
  Director, Washington, DC, letter...............................   305
Travis, Jeremy, President, John Jay College, City University of 
  New York of Criminal Justice, New York, New York, letter.......   306
Tucker, Benjamin B., Nominee to be Deputy Director for the State, 
  Local and Tribal Affairs Office of Drug Control Policy, 
  statement......................................................   308
Williams, Hubert, President, Police Foundation, Washington, DC, 
  letter.........................................................   311

                      WEDNESDAY, NOVEMBER 4, 2009


Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................   588
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   313
    prepared statement...........................................   602
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   337


Casey, Hon. Robert P., a U.S. Senator from the State of 
  Pennsylvania, presenting Thomas I. Vanaskie, Nominee to be 
  Judge in the U.S. Court of Appeals for the Third Circuit.......   320
Feingold, Hon. Russell, a U.S. Senator from the State of 
  Wisconsin, presenting Louis B. Butler, Jr., Nominee to be U.S. 
  District Judge for the Western District of Wisconsin...........   319
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin, 
  presenting Louis B. Butler, Jr., Nominee to be U.S. District 
  Judge for the Western District of Wisconsin....................   318
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, 
  presenting Abdul Kallon, Nominee to be U.S. District Judge for 
  the Northern District of Alabama...............................   331
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, presenting Thomas I. Vanaskie, Nominee to be 
  Judge in the U.S. Court of Appeals for the Third Circuit.......   317

                       STATEMENT OF THE NOMINEES

Butler, Louis B., Jr., Nominee to be U.S. District Judge for the 
  Western District of Wisconsin..................................   336
    Questionnaire................................................   349
Espinel, Victoria Angelica, Nominee to be Intellectual Property 
  Enforcement Coordinator, Executive Office of the President.....   336
    Questionnaire................................................   398
Kallon, Abdul K., Nominee to be U.S. District Judge for the 
  Northern District of Alabama...................................   336
    Questionnaire................................................   415
Reiss, Christina, Nominee to be U.S. District Judge for the 
  District of Vermont............................................   336
    Questionnaire................................................   433
Vanaskie, Thomas I., Nominee to be U.S. Court of Appeals for the 
  Third Circuit..................................................   321
    Questionnaire................................................   457

                         QUESTIONS AND ANSWERS

Responses of Louis B. Butler, Jr. to questions submitted by 
  Senators Coburn, Cornyn, Grassley, Sessions, and Hatch.........   510
Responses of Victoria Espinel to questions submitted by Senators 
  Coburn, Grassley, Hatch, and Sessions..........................   545
Responses of Abdul K. Kallon to questions submitted by Senator 
  Sessions.......................................................   562
Responses of Christina Reiss to questions submitted by Senator 
  Sessions.......................................................   566
Responses of Thomas Vanaskie to questions submitted by Senators 
  Coburn, Hatch, and Sessions....................................   571

                       SUBMISSIONS FOR THE RECORD

American Federation of Musicians, Thomas F. Lee, President, New 
  York, New York, letter.........................................   583
American Intellectual Property Law Association, Arlington, VA, 
  letter.........................................................   584
Business Software Alliance, Robert W. Holleman, III, President 
  and Chief Executive Officer, Washington, DC, letter............   586
Copyright Alliance, Patrick Ross, Executive Director, Washington, 
  DC, letter.....................................................   587
Davis, Hon. Artur, a U.S. Representative in Congress from the 
  State of Alabama, prepared statement...........................   592
International Trademark Association, Alan C. Drewsen, Executive 
  Director, New York, New York, letter...........................   594
Espinel, Victoria, Nominee to be U.S. Court of Appeals for the 
  Third Circuit..................................................   595
Glickman, Dan, Chairman and Chief Executive Officer, Motion 
  Picture Association of America, Inc., Washington, DC, letter...   597
Hernandez, Roman D., National President, Hispanic National Bar 
  Association, Washington, DC, letter............................   598
Josten, R. Bruce, Executive Vice President, Government Affairs, 
  U.S. Chamber of Commerce, Washington, DC, letter...............   600
Liuna, Terence M. O'Sullivan, General President, Washington, DC, 
  letter.........................................................   601
MANA, A National Latina Organization, Alma Morales Riojas, 
  President and Chief Executive Officer, Wahington, DC, letter...   604
National Music Publishers' Association, David M. Israelite, 
  President and Chief Executive Officer, Washington, DC, letter..   605

                      WEDNESDAY, NOVEMBER 18, 2009



Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   874


Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 
  presenting Rosanna Malouf Peterson, Nominee to be U.S. District 
  Court for the Eastern..........................................   610
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin presenting William M. Conley, Nominee to be U.S. 
  District Court for the Western District of Wisconsin...........   618
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin 
  presenting William M. Conley, Nominee to be U.S. District Court 
  for the Western District of Wisconsin..........................   607
Murray, Hon. Patty, a U.S. Senator from the State of Washington 
  presenting Rosanna Malouf Peterson, Nominee to be U.S. District 
  Court for the Eastern..........................................   609
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Denny Chin, Nominee to be U.S. Court of Appeals 
  for the Second Circuit.........................................   613
Shaheen, Hon. Jeanne, a U.S. Senator from the State of New 
  Hampshire presenting Susan B. Carbon, Nominee to be Director 
  for the Violence Against Women Office, Department of Justice...   611

                       STATEMENT OF THE NOMINEES

Carbon, Susan B., Nominee to be Director for the Violence Against 
  Women Office, Department of Justice:
    Questionnaire................................................   632
Chin, Denny, Nominee to be U.S. Circuit Judge for the Second 
    Questionnaire................................................   666
Conley, William M., Nominee to be U.S. District Judge for the 
  Western District of Wisconsin:
    Questionnaire................................................   725
Laub, John H., Nominee to be Director of the National Institute 
  of Justice:
    Questionnaire................................................   746
Peterson, Rosanna Malouf, Nominee to be U.S. District Judge for 
  the Eastern District of Washington:
    Questionnaire................................................   794

                         QUESTIONS AND ANSWERS

Responses of Susan B. Carbon to questions submitted by Senator 
  Coburn.........................................................   821
Responses of Denny Chin to questions submitted by Senators Coburn 
  and Sessions...................................................   824
Responses of William M. Conley to questions submitted by Senator 
  Sessions.......................................................   837
Responses of John H. Laub to questions submitted by Senator 
  Coburn.........................................................   842
Responses of Rosanna Malouf Peterson to questions submitted by 
  Senators Coburn and Sessions...................................   849

                       SUBMISSIONS FOR THE RECORD

Asian American Justice Center, Washington, DC, letter............   854
Comey, James B., McLean, Virginia, letter........................   856
Congressional Asian Pacific American Caucus, Michael M. Honda, 
  Representative in Congress, Chair, Washington, DC, letter......   857
Criminology and Criminal Justice Policy Coalition, Todd R. Clear, 
  American Society of Criminology, Columbus, Ohio, and Janice 
  Joseph, Academy of Criminal Justice Sciences, Greenbelt, 
  Maryland, joint letter.........................................   859
Fine, Janet E., Executive Director, Massachusetts Office for 
  Victim Assistance, Boston, Massachusetts, letter...............   861
Feld, Barry C., Centennial Professor of Law, University of 
  Minnesota, Minneapolis, Minnesota, letter......................   863
Gillibrand, Kirsten E., a U.S. Senator from the State of New 
  York, letter...................................................   865
Giuliani, Rudolph W., New York, New York, letter.................   867
Gottfredson, Michael R., Executive Vice Chancellor & Provost, 
  University of California, Irvine, California, letter...........   868
Japanese American Citizens League, S. Floyd Mori, National 
  Executive Director, Washington, DC, letter.....................   870
Larivee, John J., Chief Executive Officer, Community Resources 
  for Justice, Boston, Massachusetts, letter.....................   872
Lauritsen Janet L., Professor, University of Missouri, St. Louis, 
  Missouri, letter...............................................   873
Martin, John S., Jr., Attorneys at Law, Martin & Obermaier, LLC, 
  New York, New York, letter.....................................   878
Mukasey, Michael B., Partner, Debevoise & Plimpton LLP, on behalf 
  of National Asian Pacific American Bar Association, New York, 
  New York, letter...............................................   880
National Asian Pacific American Bar Association, Andrew T. Hahn, 
  Sr., President, Tina R. Matsuoka, Executive Director, John C. 
  Yang, Co-Chair, Judiciary Committee, Wendy Wen Yun Chang, Co-
  Chair, Judiciary Committee, Washington, DC, joint letter.......   881
National District Attorneys Association, Christopher D. Chiles, 
  President, Alexandria, Virginia, letter........................   886
Petersilia, Joan, Adelbert H. Sweet Professor of Law, Co-
  Director, Stanford Criminal Justice Center, Stanford, 
  California, letter.............................................   887
Rhine, Edward, Deputy Director, Ohio Department of Rehabilitation 
  and Correction, Columbus, Ohio, letter.........................   889
Sampson, Robert J., Chairman & Henry Ford II Professor of the 
  Social Sciences, Harvard University, Cambridge, Massachusetts, 
  letter.........................................................   891
Shaheen, Hon. Jeanne, a U.S. Senator from the State of New 
  Hampshire, statement...........................................   892
Wilson, James Q., Emeritus Professor, UCLA, Los Angeles, 
  California, letter.............................................   893
Wu, George C., Executive Director, OCA National Center, 
  Washington, DC, letter.........................................   895

                      WEDNESDAY, DECEMBER 1, 2009




Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   975
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island, prepared statement.....................................   977


Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island 
  presenting O. Rogeriee Thompson, Nominee to be U.S. Circuit 
  Judge for the First Circuit....................................   899
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island presenting O. Rogeriee Thompson, Nominee to be U.S. 
  Circuit Judge for the First Circuit............................   897

                        STATEMENT OF THE NOMINEE

Thompson, O. Rogeriee, Nominee to be U.S. Circuit Court Judge for 
  the First Circuit..............................................   901
    Questionnaire................................................   906

                         QUESTIONS AND ANSWERS

Responses of O. Rogeriee Thompson to questions submitted by 
  Senators Coburn and Sessions...................................   965

                      WEDNESDAY, DECEMBER 16, 2009




Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................   979
    prepared statement...........................................  1129
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1134
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   981


Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina, presenting James A. Wynn Jr., Nominee to be U.S. 
  Circuit Judge for the Fourth Circuit and Albert Diaz, Nominee 
  to be U.S. Circuit Judge for the Fourth Circuit................   982
Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina, 
  presenting James A. Wynn Jr., Nominee to be U.S. Circuit Judge 
  for the Fourth Circuit and Albert Diaz, Nominee to be U.S. 
  Circuit Judge for the Fourth Circuit...........................   983

                       STATEMENT OF THE NOMINEES

Diaz, Albert, Nominee to be U.S. Circuit Judge for the Fourth 
  Circuit........................................................  1035
    Questionnaire................................................  1036
Wynn, James A., Jr., Nominee to be U.S. Circuit Judge for the 
  Fourth Circuit.................................................   985
    Questionnaire................................................   987

                         QUESTIONS AND ANSWERS

Responses of Albert Diaz to questions submitted by Senators 
  Coburn, Grassley and Sessions..................................  1098
Responses of James A. Wynn, Jr. to questions submitted by 
  Senators Coburn, Grassley and Sessions.........................  1106

                       SUBMISSIONS FOR THE RECORD

Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina, 
  prepared statement.............................................  1132


Butler, Louis B., Jr., Nominee to be U.S. District Judge for the 
  Western District of Wisconsin..................................   336
Carbon, Susan B., Nominee to be Director for the Violence Against 
  Women Office, Department of Justice............................   632
Chin, Denny, Nominee to be U.S. Circuit Judge for the Second 
  Circuit........................................................   666
Conley, William M., Nominee to be U.S. District Judge for the 
  Western District of Wisconsin..................................   725
Diaz, Albert, Nominee to be U.S. Circuit Judge for the Fourth 
  Circuit........................................................  1035
Espinel, Victoria Angelica, Nominee to be Intellectual Property 
  enforcement Coordinator, Executive Office of the President.....   336
Jackson, Ketanji Brown, Nominee to be a Member of the U.S. 
  Sentencing Commission..........................................    74
Kallon, Abdul K., Nominee to be U.S. District Judge for the 
  Northern District of Alabama...................................   336
Keenan, Barbara Milano, Nominee to be U.S. Circuit Judge for the 
  Fourth Circuit.................................................     6
Laub, John H., Nominee to be Director for the National Institute 
  of Justice.....................................................   746
Peterson, Rosanna Malouf, Nominee to be U.S. District Judge for 
  the Eastern District of Washington.............................   794
Reiss, Christina, Nominee to be U.S. District Judge for the 
  district of Vermont............................................   336
Robinson, Laurie, Nominee to be Assistant Attorney General for 
  the Office of Justice Programs, Department of Justice..........    49
Stranch, Jane Branstetter, Nominee to be U.S. Circuit Judge for 
  the Sixth Circuit..............................................   203
Thompson, O. Rogeriee, Nominee to be U.S. Circuit Judge for the 
  First Circuit..................................................   901
Tucker, Benjamin B., Nominee to be Deputy Director for the State, 
  Local and Tribal Affairs Office of Drug Control Policy.........   204
Vanaskie, Thomas I., Nominee to be U.S. Court of Appeals for the 
  Third Circuit..................................................   321
Wynn, James A., Jr., Nominee to be U.S. Circuit Judge for the 
  Fourth Circuit.................................................   985

                         SENTENCING COMMISSION


                 WEDNESDAY, OCTOBER 7, 2009
                              United States Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 4:03 p.m., Room 
SD-226, The Capitol, Hon. Benjamin L. Cardin, presiding.
    Present: Senators Cardin, Specter, Franken, and Sessions.

                   FROM THE STATE OF MARYLAND

    Senator Cardin. The Judiciary Committee will come to order. 
Senator Sessions will be joining us shortly and he has asked 
that we start the hearing. So let me welcome our guests that 
are with us today.
    It is an honor to have Judge Barbara Keenan here, who is a 
nominee for the U.S. Circuit Court for the Fourth Circuit; 
Laurie Robinson, for Assistant Attorney General for Office of 
Justice Programs; and, Ketanji Brown Jackson, for a member of 
the U.S. Sentencing Commission; and, of course, my two 
colleagues from Virginia, Senator Webb and Senator Warner. It 
is a pleasure to have both of you with us today.
    I take particular interest in the Fourth Circuit. So I am 
very pleased today that Senator Leahy has allowed me to chair 
this hearing on the nomination of Barbara Keenan to the U.S. 
Circuit Judge for the Fourth Circuit.
    This will be the third hearing that I have chaired for 
nominees in the Fourth Circuit. I had the opportunity to chair 
the hearing for Justice Steven Agee, who was confirmed to be a 
U.S. Circuit Judge for the Fourth Circuit from Virginia, and I 
also chaired the confirmation hearings of Judge Andre Davis of 
Maryland, who was approved by our Committee 16-3 and we are 
awaiting full Senate confirmation of his appointment. 
Unfortunately, that has been delayed several months. And I say 
unfortunately, because the Fourth Circuit has the highest 
vacancy rate of any circuit. One-third of the judges still 
remain unfilled and that is unacceptable and we need to move 
these appointments much more rapidly.
    So I share Senator Leahy's concerns about the delay in the 
completion of the confirmations of judges. We are backed up now 
for many that have been recommended by this Committee and there 
has been a delay by Republican Senators in allowing us to bring 
forward those nominations on the floor of the U.S. Senate.
    I hope that can be changed, because I think it is 
critically important that we move as quickly as possible to 
fill these vacancies.
    In regards to the Fourth Circuit, we are pleased that 
Justice Keenan's nomination has come forward. She has served on 
each of the four levels of the Virginia State court, the 
General District Court, the Circuit Court, the Court of Appeals 
and Supreme Court. She was admitted to the State Bar of 
Virginia in 1974, and she first took the bench at age 29 and it 
is fitting that she has served as a judge for 29 years.
    She has had a balanced career and she has presided over an 
impressive number of cases. Now, that is a blessing and could 
also be a concern, because you've had to make some tough 
decisions, and there may well be some questions about some of 
the decisions that you joined either in the majority or in 
dissent because of the large number.
    But you bring a wealth of experience and a great 
reputation, well known to the people in Virginia, and we are 
very pleased about your appointment and look forward to this 
    Justice Keenan has received the unanimous rating of well 
qualified from the American Bar Association Standing Committee 
on the Federal Judiciary, which is the highest rating, and I do 
look forward to our comments from our two Senators from 
    Our second nominee today is Laurie Robinson, to be the 
Assistant Attorney General for the Office of Justice Programs. 
These is a very important appointment, but, again, I want to 
comment about Senator Leahy's points about so many of the 
Assistant Attorneys General in the Department of Justice are 
being held up from floor votes.
    We, fortunately, just got the Assistant Attorney General 
for the Civil Rights Division confirmed yesterday, after a 
four-month delay and a cloture vote which was withdrawn at the 
last minute.
    These delays are not helping the Department of Justice 
restore its rightful reputation and I hope that we can move 
quickly on the Office of Justice Programs. We need leadership 
in that department. That is very important.
    And if you are confirmed, I might say, Ms. Robinson, you 
will be hearing from all of us, because it is a very popular 
position with our local officials to figure out how they are 
going to get help in the administration of justice.
    So I am glad that I am chairing this hearing. I hope you 
will remember that in the future, that I chaired this Committee 
    Senator Cardin.--when Maryland requests come forward. You 
have an impressive resume. Since 2004, Ms. Robinson has been 
the director of the master's of science program the University 
of Pennsylvania's Department of Criminology. From 1993 to 2000, 
she served as Assistant Attorney General at the Office of 
Justice Programs.
    You bring a great deal of experience to this position. You 
have served on a number of national boards related to the 
justice system, including the board of trustees at the 
Institute of Justice, which you chair; the board of directors 
of the Police Foundation, advisory board of George Mason 
University, Administration of Justice Programs. You have 
published numerous articles. So you bring a wealth of 
experience to this position.
    And I will put into the Committee record letters of support 
for Ms. Robinson, including the U.S. Conference of Mayors, 
National League of Cities, National Association of Counties, 
and the International Association of Chiefs of Police.
    Our third nominee today is Ketanji Brown Jackson. Ms. 
Jackson has been nominated to be a member of the U.S. 
Sentencing Commission. The commission is an independent agency 
in the Judicial Branch of government. Its purpose is to 
establish sentencing policies and practices for the Federal 
court, including criminal sentencing guidelines, to advise and 
assist Congress and the executive branch in developing crime 
policy and to analyze and research criminal justice 
information, a very important position.
    Ms. Jackson is of counsel at Morrison & Foerster in 
Washington, D.C., where she has worked since 2007. From 2005 to 
2007, she was an assistant Federal public defender in the 
District of Columbia.
    I could go through the rest of her resume, but let me point 
out, one of the most important parts of her resume, she is a 
resident of Bethesda, Maryland, which is duly noted. Graduated 
with a BA from Harvard University and a J.D. from Harvard Law 
    Before I turn to the Ranking Republican member, Senator 
Sessions, let me just thank all three of you for your 
willingness to continue, in some cases, to start a new 
challenge in public service for others. We thank you for this. 
I know that it is not easy to serve in public positions. I know 
it is difficult not only for you, but your families, and we 
thank you for your willingness to serve your community.
    And with that, let me turn it over to Senator Sessions.

                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I look forward 
to hearing from our Virginia Senators and our nominees, look 
forward to asking some questions.
    Thank you and, hopefully, these nominees will meet all the 
tests and we can move them forward.
    Senator Cardin. Thank you. With that, let me turn to 
Senator Webb.


    Senaor Webb. Thank you very much, Mr. Chairman and Ranking 
Member Sessions. I am privileged to join my colleague from 
Virginia, Senator Mark Warner, here today for the purpose of 
introducing to this Committee Virginia Supreme Court Justice 
Barbara M. Keenan, whom the President has nominated for a seat 
on the Fourth Circuit Court of Appeals.
    I would like to point out, also, that her husband, Judge 
Alan Rosenblatt, is with us today, as are a number of friends 
and family members that I know she will want to introduce.
    I would like to thank the Committee for scheduling this 
hearing. The seat on the fourth circuit that Justice Keenan 
seeks to fill has been vacant since the death 2 years ago of 
Judge Emory Widener of Abingdon. It is important to the people 
of Virginia and to the proper functioning of this court that 
this vacancy be filled as expeditiously as possible.
    Mr. Chairman, I believe that the President has made an 
extraordinary choice in nominating Justice Keenan. Earlier this 
year, our two Senate offices interviewed more than two dozen 
highly qualified candidates for this seat, including 
distinguished law professors, judges, private practitioners and 
government attorneys.
    And from this very competitive field, Senator Warner and I 
were drawn to Justice Keenan's record of achievement on the 
bench, her keen intellect, her even-temperament, and, perhaps 
most importantly, her abiding sense of fairness.
    We recommended her to the President for a nomination in 
June of this year. I should add that Justice Keenan is held in 
the highest regard by members of the Commonwealth's legal 
community, including the Virginia State Bar, which gave her a 
highly qualified rating. Justice Keenan, as you mentioned, Mr. 
Chairman, has a distinguished record of service to our courts 
in Virginia.
    She was appointed to the Fairfax County General District 
Court in 1980 at the age of 29. She was promoted by the General 
Assembly to the Fairfax County Circuit Court in 1982; to the 
Intermediate Court of Appeals in 1985; and, finally, to the 
Supreme Court in 1991.
    She is active in numerous boards and commissions intended 
to foster excellence in our judicial system. Justice Keenan is 
a 1971 graduate of Cornell University, a 1974 graduate of the 
George Washington University School of Law, and she also holds 
an LLM from the University of Virginia School of Law.
    I am very, very pleased to be before you today endorsing 
her nomination. I would now like to invite my colleague, 
Senator Warner, to offer his comments.
    Senator Cardin. Senator Warner, pleased to hear from you.


    Senaor Warner. Thank you, Mr. Chairman and Ranking Member 
Sessions. I join my colleague and good friend, Jim Webb, in 
wholeheartedly endorsing Justice Keenan for this very important 
position. I think President Obama made a wise choice in 
nominating Justice Keenan for this seat on the Fourth Circuit 
Court of Appeals.
    I will not reiterate all of the comments that Senator Webb 
made about her background. I would simply add a couple of 
additional comments.
    Justice Keenan is the first judge in Virginia's judicial 
history to serve on all four levels of our bench. As you 
mentioned in your opening comments, that gives her a broad and 
wide range of record, 29 years serving in the judiciary.
    But I can say that in the process that Senator Webb and I 
went through, it was a very rigorous process. We had a number 
of good candidates. I know we have got folks here in the 
audience, Mitchell Dolan and others, who helped us go through 
that process.
    But Justice Keenan had a remarkable array of people all 
across Virginia, I believe many of them unsolicited, writing in 
on her behalf; I would add, members of the legislature from 
both sides of the aisle who complimented her judicial 
temperament and her background.
    She has got an enormously impressive academic record, I 
would only add, and, clearly, the 29 years on the court, on all 
four of our courts, has been important, as well.
    I would only add, as well, I had the occasion to get to 
know her a bit personally during my tenure as Governor. We 
would have every year a dinner between the Governor and our 
justices of the Supreme Court. With her kind of quiet 
confidence, she was a leader on that court. She truly reflects, 
I think, the right intellectual capabilities, the right 
judicial temperament, and she will be a great addition to the 
fourth circuit.
    I would simply close in adding not only a note of 
congratulations to Justice Keenan, but I would echo what 
Senator Webb has said, that we do hope that this nomination 
will be moved expeditiously.
    As you well know, Mr. Chairman, the burden on the fourth 
circuit at this point in terms of the number of open positions 
and the amount of caseload that confronts that important 
circuit is tremendous. This position, as Senator Webb has 
mentioned, has been open for a couple of years right now.
    So we commend her to the Committee's consideration and hope 
that we will soon be able to address her as Judge Keenan of the 
Fourth Circuit. Thank you very much.
    Senator Cardin. Just to underscore that one point, there 
are five vacancies on the fourth circuit. The second circuit 
has four vacancies. The next are two vacancies. So we are 
really in serious need of filling these spots.
    Let me thank both of our colleagues. Thank you very much.
    Senator Sessions. Let me just say, one of the things that I 
think is healthy in this entire judicial nomination process is 
that key Senators are involved and that your opinions are 
sought. Some might think that that is unhealthy, but, really, 
you know the lay of the land in your states and you know if 
somebody has got problems, and your strong support is a factor 
in my evaluation, for sure, of a nominee.
    Thank you very much for your insight, appreciate it.
    Senator Cardin. Which is the tradition of our Committee, we 
will use two panels. The first panel will consist of Barbara 
Keenan to be United States Circuit Judge for the Fourth 
    Judge, if you would come forward. The tradition of our 
Committee also is to swear the witnesses in.
    [Whereupon, the witness was duly sworn.]
    Senator Cardin. Please have a seat. Your entire statement 
will be made part of the record. What we do ask you to do, 
first, if you would, is introduce the members of your family 
that may be here and proceed as you wish.


    Judge Keenan. [Off microphone.]
    Senator Cardin. Thank you very much. Let me start, if I 
might, asking questions that have been ones that have been of 
great interest to our Committee. That is, talk a little bit 
about your philosophy as to the importance you place on 
existing precedent, on the clear language of laws that are 
passed by Congress.
    I know that you have been a state court judge, but, if 
confirmed, you are going to be called upon to make significant 
rulings concerning Federal issues. In most of these cases, it 
is going to be the final word. Very few cases, as you know, get 
accepted to the Supreme Court.
    I know this Committee wants to hear your judicial 
philosophy as to the deference that you will give to laws that 
are passed by the Congress and to the precedent of the court.
    Judge Keenan. Yes, Senator. As an appeals court judge, if 
confirmed, I will be most mindful of precedent. That is what 
guides our legal system. It is our obligation as judges to 
apply the law and, if at all possible, to apply the plain 
    Senator Cardin. I am going to ask you, if you could, just 
get the microphone a little closer to you.
    Judge Keenan. I am sorry. I do not do this every day. I am 
sorry, sir. I would be most mindful of precedent. It is what 
guides me as a judge and has always guided me as a judge, 
because our system of government is based on the certainty and 
predictability of the law and this guides people in their 
everyday affairs in order to determine what is lawful and what 
is not.
    So as a judge, I am required to examine the precedent, 
examine the statutes, whenever possible, to apply the plain 
meaning of the statutes and to realize that it is my role to 
apply the law and to do it in a manner that gives full and fair 
consideration to all of the arguments propounded by the 
    Senator Cardin. In 2000, you ruled in a Virginia human 
rights case, expanding the ability of a person to bring a claim 
for employment discrimination. I agree with your holding, but 
it was contrary to the prior rulings, as I understand it.
    I mention that because I do believe--one of my criteria for 
determining who I support on confirmation to the Federal bench 
is their passion and respect for the protections that are in 
our Constitution and their willingness to understand the 
evolution of the rights in this country.
    But could you just go through for me and for the Committee 
why you thought it was important to ignore precedent in that 
    Judge Keenan. Well, sir, it was not ignoring precedent. 
Really, the issue had come up as to whether a cause of action 
for wrongful termination for employment would lie. Under common 
law principles, when these principles were also principles 
covered by the Virginia Human Rights Act, and the Virginia 
General Assembly had, after the Virginia Human Rights Act had 
been on the books for a few years, had amended the statute to 
say that the statute did not create an independent cause of 
    And so the question before our court was to determine 
whether, if there was a cause of action under the common law, 
could it nevertheless be made, notwithstanding the statutory 
bar. And this was a question of first impression really in our 
court and the majority of the court held yes in the opinion 
that I wrote.
    And the reason why is if we hadn't done that, then the fact 
that there was a principle in the Human Rights Act, for 
example, a principle supporting racial equality or gender, 
antidiscrimination based on gender, would provide an employer a 
shield. An employer could do anything he or she wanted as long 
as it was the principle of equality espoused in the Virginia 
Human Rights Act.
    That could be used as a shield and that's the reason why we 
felt that it was important to decide the case the way we did.
    Senator Cardin. I am going to have some additional 
questions on this point. But at this point, with the consent of 
Senator Sessions, I am going to yield to Senator Specter for 
the purposes of an introduction.


    Senator Specter. Well, thank you very much, Mr. Chairman. I 
appreciate your yielding to me. I have come to the hearing for 
the introduction of Ms. Laurie Robinson, who is nominated for 
the position of Assistant Attorney General for the Office of 
Justice Programs.
    Ms. Robinson brings an extraordinary resume to this 
important position. She is a magna cum laude, phi beta kappa 
graduate from Brown University. She worked for 14 years as the 
director of the American Bar Association's section on criminal 
    She served in the Clinton Administration as the Assistant 
Attorney General for the Justice Department's Office of Justice 
Programs, which is the position she has been nominated for now, 
and, after that, served 8 years as a distinguished senior 
scholar at the University of Pennsylvania in Criminology and 
directed the University of Pennsylvania Criminology's master of 
science program.
    She has now been nominated for this very prestigious 
position. Her background includes some 30 articles on criminal 
justice and legal periodicals, 250 criminal justice-related 
conference and forums, appeared before Congressional committees 
some 15 times.
    She has been a member of some very distinguished 
professional organizations, served on the Board of Trustees of 
the Vera Institute of Justice, which she chaired, the Police 
Foundation, the National for Victims of Crime. So that is 
really an extraordinary resume, having seen quite a few in my 
tenure here.
    I think this is a very important position, because too 
little of scientific research has been devoted to trying to 
deal with the criminal law problem. Early on, I came to the 
conclusion that there was a very effective way to deal with 
violent crime in America. It had two parts, life sentences for 
career criminals who commit 70 percent of the crimes and 
realistic rehabilitation for the others who are going to be 
released back into society.
    Last year, we passed the legislation on the Second Chance 
Act, but we have had much too little insight into the ways of 
job training, literacy training. No surprise when a functional 
illiterate leaves jail without a trade or a school, they go 
back to the revolving door on recidivism.
    We have not really made the analysis of what it takes on 
parole and probation to turn that around; never really made the 
analysis of the effectiveness of the armed career criminal 
bill, which provides for a mandatory sentence of life, which, 
in the Federal system, is 15 years to life for three major 
    So to see someone of her caliber in that position is very 
refreshing, so refreshing that I came to introduce her, even 
though she is not a Pennsylvanian.
    Senator Specter. Thank you very much, Mr. Chairman.
    Senator Cardin. As I noted in my comments about her, we are 
all--as soon as she gets confirmed--all interested in how she 
is going to treat grants from our states. So we figured perhaps 
you had some interest because of that, also.
    Senator Specter. Well, Mr. Chairman, had I known that, I 
would not have taken up the extra time of the Committee. Thank 
    Senator Cardin. Thank you. Senator Sessions.
    Senator Sessions. Well, I would associate myself with the 
remarks about Laurie Robinson. She has had fabulous service in 
her previous tenure; although maybe not every theory of Senator 
Specter's theory of crime would I totally endorse, but most of 
that I would endorse, too.
    You had not finished, I believe. You go ahead. [Off 
    Senator Cardin. Well, let me wait until the next round. I 
will let you proceed, because I want to go into a couple of 
different areas. So I will hold for a second round.
    Senator Sessions. Mr. Chairman, Chairman Leahy and others, 
I would like to start a preemptive complaint about failure to 
move judges. We have really not had a problem yet, in my view. 
There are two or three that are controversial. But I would note 
that there are 74 vacancies as of October 7 and the President 
has nominated nine for the district court bench.
    So we cannot confirm people for vacancies if they do not 
have a nomination and when a nominee is made, then the staffs 
review their backgrounds and their FBI reports and share that 
with the Senators. If there is any problem, they are looked at. 
Usually, prominent lawyers and people are checked on. We get 
the ABA report. Cases appear sometimes that cause people 
concern and they are inquired into.
    But I am committed to moving the good nominees rapidly 
forward. It does not bother me that a nominee is a Democrat or 
has been elected as a Democrat or been active politically. That 
does not bother me. We just like to see nominees that know when 
they put on the robe, something special occurs and that they 
are no longer in the political arena, they are in the 
adjudication arena, and objectivity and fairness to all parties 
is what is called for.
    A few of the nominees that are nominated now and that are 
pending probably are going to be a bit controversial, but I 
would expect the overwhelming number of these nominees to move 
forward. And some of those that are not controversial now, for 
reasons I do not know, I understand, are not being called up 
for vote, and they would be promptly confirmed if the majority 
leader called them up.
    Justice Keenan, it is great to have you. You have a 
background certainly worthy of this position and it is good to 
see your Senators are firmly in support of your nomination and 
we are proud of that.
    I would just ask a few questions. I do not mean to suggest 
that I think that you have failed in some serious way, but I 
would just like to ask some questions about some matters.
    At a commencement at William and Mary Law School in 1998, 
you stated that lawyers have made contributions to the progress 
of social justice. The contributions that we each make to the 
cause of social justice will be our true legacy as lawyers. I 
think I agree with that most totally, but I want to ask whether 
you meant that your role as a judge--you said lawyers, you did 
not say judges--that it is your duty as a judge to seek, 
affirmatively, I guess, to promote social justice.
    Now, the reason that is significant, of course, is whose 
opinion of social justice and to what extent do you believe a 
judge should be thinking of policy matters as they render their 
opinions in difficult cases?
    Did I ask that clearly? Not very clearly.
    Judge Keenan. No. You did. Thank you, Senator.
    Senator Sessions. If I were before the bench, you would 
probably ask me to clarify the question.
    Judge Keenan. Not at all. I was--when I made that speech, I 
was talking to young lawyers beginning to enter the legal 
profession and in coining the--or in using the term ``social 
justice,'' I was referring to lawyers' duty to work within the 
system of laws to protect people, to protect society, and to 
make strides for the general good of all.
    A judge's role is very different, however. A judge is not 
an advocate and never can be. A judge is not an activist. A 
judge is somebody who comes with an open mind to listen to the 
arguments put forth, consults precedent, examines the law, 
makes a determination based on what the parties have advanced, 
whether there is any merit to the position, and then writes, 
very clearly and precisely, if the judge's goal is met, to 
apply the precedent that exists in a given situation.
    And so a judge's role is very different from that of a 
young lawyer.
    Senator Sessions. Well, I think that you are right. I think 
there is a difference. And I do think lawyers have 
responsibility to, if they think injustice is occurring and a 
party is not able to always pay full fee, that they should be 
prepared on occasion to step up and serve the higher good. You 
make a valid point there and I think with regard to a judge, 
objectivity, as you stated, is important.
    I think one of the biggest difficulties we face in the 
legal system is confusion over the establishment clause. We 
just had a marvelous ceremony, I was so proud to be there, to 
replace one of the statutes that Alabama had in Statuary Hall 
with a statue of Helen Keller, who perhaps did more than any 
single person in history to help the disabled.
    It began with a prayer delivered by the chaplain of the 
House of Representatives and it concluded with a prayer by the 
chaplain of the U.S. Senate. So at any rate, I think the 
Supreme Court has failed to clarify what it is that is OK and 
what is not OK or what is permissible and not.
    In Virginia College Building Authority v. Lynn, the 
Virginia Supreme Court considered that Regent University, a 
sectarian private school in Virginia, could participate in a 
state-run bond program. I guess it was a bond program that 
colleges and universities, private and public, could 
participate in.
    You joined another justice's dissent that would have held 
that the university, since the university provided ``religious 
training or theological education,'' closed quote, in violation 
of the Virginia Constitution and state statute, it would be a 
violation of Virginia Constitution and state statute to allow 
them to participate in that program, even though the university 
taught secular subjects, also.
    Although your opinion did not directly address whether it 
would violate the establishment clause to allow Regent to 
participate in a bond program, I am concerned about your view 
on the separation of church and state issues.
    At the time you decided this case, did other religious 
schools in Virginia, for example, private or parochial schools, 
participate in the program and if so, what made Regent 
different from those schools?
    Judge Keenan. Well, as I recall, Senator, that bond issue 
came in the context of the proposed Regent campus that was 
going to be for a divinity program. So that while Regent had 
other nonsectarian programs, such as business and law, that the 
bond funding was going to be used directly for that school of 
divinity, and that's what made a difference, in my mind, in the 
analysis that was applied.
    We did not have an establishment clause argument. It was 
simply whether there was that sectarian--whether there was that 
overlap in terms of the bond funding and the religious purpose 
of the construction that was proposed.
    Senator Sessions. Well, I would acknowledge that we have 
got quite a body of law that is pretty amorphous about how to 
decide these issues. But the Constitution prohibits 
establishment of a religion, but it guarantees the right to 
free exercise of religion. Presumably, being a minister of a 
religious faith is not in itself a bad thing.
    Therefore, I am going to--I will just ask you to perhaps 
see if you can explain why it is that you would care whether 
they wanted to study to be a minister.
    Judge Keenan. I think it was great that they wanted to 
study to be a minister, I mean, certainly, but----
    Senator Sessions. Well, why would that disqualify--why is 
that profession different than being a consiglieri for the 
mafia? They could get money if you were going to----
    Judge Keenan. Well, the issue, though, was the bond funding 
and whether the bonds were being used for a religious purpose 
and under our law, the bonds could not be used for a religious 
purpose, and that was----
    Senator Sessions. Was that the State Constitution or State 
statute; do you recall?
    Judge Keenan. I believe it was brought under the--there was 
a constitutional challenge and I don't recall any particular 
statute, I have to say, because----
    Senator Sessions. The State's Constitution or Federal?
    Judge Keenan. I believe it was State. But because of the 
passage of time, sir, I could stand corrected.
    Senator Sessions. Well, there are difficult issues. It just 
seems to me that we all exercise, if somebody wants to 
undertake a religious career and actually counsel people on 
their marriages and go through their funerals with the families 
and help raise their children and good and healthy values, 
somehow that becomes unconstitutional and that other goals are 
    Thank you, Mr. Chairman.
    Senator Cardin. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. Welcome, Justice 
Keenan. That is proper, right?
    Judge Keenan. Thank you.
    Senator Franken. I would like to welcome your family, as 
well. And I agree that mafia consiglieri schools should not get 
    Senator Sessions. Well, they would be able to go to New 
York demand it and get it.
    Senator Franken. Well, OK. We cannot even agree on that. 
This morning, we had a hearing called Workplace Fairness: Has 
the Supreme Court Been Misinterpreting Laws Designed to Protect 
American Workers from Discrimination, and Jack Gross, who was 
one of the witnesses, testified from the Gross v. FBL Financial 
Services case.
    I am interested to learn more about your rulings in 
discrimination cases. In Shaw v. Titan Corp., you ruled that a 
plaintiff is not required to prove that his or her employer's 
discriminatory motive was the sole cause of termination.
    Now, in Gross, the Supreme Court recently ruled on this 
very question and they determined that lawsuits under the Age 
Discrimination in Employment Act, that in lawsuits under that, 
that the plaintiff must show that age was the determinative 
factor in the termination.
    I found this to be troubling and sort of thought of it as 
judicial activism. Can you tell me your reasoning in deciding 
the Shaw case, what led to your decision, and what you think of 
the Supreme Court's decision on Gross, which, of course, you 
would certainly abide by the precedence of that, since this is 
for the fourth circuit?
    Judge Keenan. Thank you, sir. First of all, of course, the 
United States Supreme Court precedent binds us all.
    Senator Franken. Right.
    Judge Keenan. And the statute that they interpreted, that 
issue is settled and beyond dispute. The Shaw case came up in 
the context of a wrongful termination of employment. It was, as 
I recall, a common law claim and the question was was the 
plaintiff, as you say, required to prove that the employer's 
sole motive was the discriminatory motive.
    And our court unanimously determined that the plaintiff was 
not so required and the reason for that was that in these 
situations, there are often after-the-fact reasons given. There 
are a myriad of reasons that come to the fore and we felt that 
this was an issue for the trier of fact. This is something for 
the jury to sort out.
    Was this a reason why this person was fired as opposed to 
was it the only reason why this person was fired? There could 
be many justifications for firing, many gradations, perhaps the 
most serious being the discriminatory act of the employer and 
there being some subsidiary considerations that were really 
quite minimal in comparison. And so the trier of fact could 
make that determination.
    Senator Franken. Is the burden on the plaintiff in that 
case to show that the preponderance of the cause of being fired 
was a discriminatory motive?
    Judge Keenan. No. That by the preponderance--under the Shaw 
ruling, it would be that by a preponderance of the evidence, my 
employer fired me for a discriminatory reason. And then the 
employer could, by defense, come back and say, ``Wait a minute. 
This was very, very minimal in our determination. This employee 
didn't show up for work on time. This employee was disloyal, 
leaked information to a competitor,'' and all sorts of a host 
of reasons that would be available to an employer for a 
    Senator Franken. Right. But you felt that--I mean, what you 
ruled was it does not have to be the sole reason, the 
    Judge Keenan. That's right. Yes, sir.
    Senator Franken. Thank you. Thank you, and welcome to your 
family again.
    Judge Keenan. Thank you, sir.
    Senator Cardin. Justice Keenan, let me just comment on one 
of your roles I found important and that is the removal of a 
district court judge, which is something that is rather 
unpleasant. No one likes to be involved in that.
    But I want to give you an opportunity to talk a little bit 
about how important judicial ethics is in your life as a judge 
and, if you are confirmed to the Federal bench, how you see 
your role as far as ethics is concerned.
    Judge Keenan. Yes, Senator Cardin. I think that judges 
serve a very important role in terms of in their communities, 
in terms of always standing for the highest ethical principles.
    The case to which you allude was a very difficult case for 
our court. A judge, as you're aware, actually had--a woman was 
claiming that she was injured or attacked by her husband and 
the judge made a very, very poor decision in terms of asking 
the woman to lower her pants in the courtroom to display her 
    And although this was a restricted hearing, because it was 
a domestic relations court, there were still several members to 
whom this woman was not related who saw her exposed body. As a 
court reviewing this, we took the matter very seriously, 
because we considered, in terms of the community, what would it 
say if we sent that judge back to the community having done 
this, having, from my perspective, ignored the dignity of the 
individual who was before the court.
    This woman was coming before the court with a complaint. 
She was seeking the aid of the court and, in our view, she was 
degraded--she was degraded by that judge. We felt that it would 
be a very, very unwise course to return that judge to the bench 
in view of the extreme nature of his conduct and misjudgment.
    Senator Cardin. Well, thank you for that answer. It is a 
tough decision to remove a colleague and it was the right 
    The oath that you will take if confirmed includes the 
provision of doing justice regardless of wealth, specifically 
mentioning the poor. I personally believe the legal community 
has a specific responsibility as it relates to providing access 
to justice to those who otherwise could not afford it, 
including pro bono work.
    I want to hear what you have done during your career in 
regards to meeting this obligation of pro bono and how you see 
your role as a judge in furthering access to those who 
otherwise would not have access to our legal system.
    Judge Keenan. Thank you, Senator. I think the judge is a 
very important role model in terms of the legal community, in 
encouraging lawyers to perform pro bono work.
    As an attorney, I regularly accepted reduced fee civil 
cases from the Fairfax Bar Association. I accepted criminal 
court appointed cases and I worked on many bar committees and 
did volunteer work for several years when I practiced as an 
    And then when I became a judge, I felt it was very 
important to continue this work and I did it at different--in 
very different aspects of the community. In one case, I worked 
as a volunteer mentor for a year in an elementary school, where 
once a week I met with a student and she and I went over her 
homework, talked about the law. I tried to give her hope for 
the future.
    She lived with, I think it was, six siblings in a one-
bedroom apartment with her mother and her grandmother, and it 
was a one-on-one relationship to try to give this young girl 
some hope.
    I've worked in much larger group programs with the YMCA to 
encourage young students with regard to careers in the law, to 
excite them and interest them. I love speaking in public 
schools. I have done that quite a bit. My favorite grades are 
four, five and six, because the kids are still lacking in 
cynicism and they just love to learn everything they can.
    I am now currently working on a judicial wellness 
initiative with the Supreme Court of Virginia and that is 
something I regard as very, very important to our state, and 
that is to help judges and their families who are having 
substance abuse problems. They also could be having bereavement 
problems, problems involving depression, problems that a judge 
normally can't get help for in a community because of the 
judge's leadership role.
    So I have devoted a big part of my career to pro bono work.
    With regard to the second part of your question, the 
courtroom and the court process and what we do for litigants, I 
think a court has to be zealous in making sure that litigants 
have all of the rights that they're entitled to.
    In other words, if a defendant is asking for an attorney, 
as a trial judge, I always made sure that defendant got the 
attorney. When the defendant was making a motion under Ake v. 
Oklahoma for an investigator or whatever, I, of course, wanted 
to make sure that his or her plea was fully and fairly heard.
    A judge has a boundary, though, that the judge cannot step 
over. I cannot subjectively cross over and actively try to 
rebalance the scales because I think somebody may have fewer 
resources in the legal system. I will zealously ensure that 
they get everything that is available and that they're entitled 
to, but I don't believe it's my role to, as I said, attempt to 
rebalance the scales, because then I become a player in the 
process rather than a neutral evaluator of the case before me.
    Senator Cardin. And I do believe that there have been some 
court decisions on that, as well, defining that role the way 
you just stated. So I agree with that.
    In normal times, it is difficult for poor people to get 
access to our civil system. In a recession, it is that much 
more difficult. Our highest court in Maryland has passed rules 
underscoring the responsibilities of every member of the bar to 
participate in pro bono activities and having mandatory 
reporting as to what our lawyers are doing in regards to 
meeting that obligation.
    I do not know whether the Supreme Court of Virginia has 
taken any similar steps or not. I do know that the different 
circuits do talk about these issues. I just want to get your 
interest and using your position appropriately in the 
leadership of the judiciary to advance what I hope you agree 
with me is a responsibility that all lawyers have to 
participate in pro bono and to help particularly in tough 
economic times.
    Judge Keenan. I certainly agree, Senator, that there is a 
great need, there is an enormous need out there, and I think 
that a judge--all judges should encourage lawyers to engage in 
this kind of work.
    And it doesn't mean that a lawyer has to do one type of pro 
bono work over another. There is a myriad of options available 
to attorneys so that they can find what suits them best, suits 
their interests and their personal beliefs.
    And I don't think that a judge should advocate for any one 
particular program over another, but a judge should urge 
lawyers to give of themselves and to give back to the community 
that's really given them a lot.
    And so that's something I've done throughout my career and 
that's something I would anticipate, if confirmed, that I would 
take pleasure in doing on the Federal appeals bench.
    Senator Cardin. Thank you for that answer. Senator 
    Senator Sessions. Thank you. Judge Keenan, I guess you know 
fairly closely what you get paid. Are you willing to serve at 
that salary?
    Judge Keenan. Yes, sir.
    Senator Sessions. I asked John Roberts that, Chief Justice 
Roberts, he took a little longer to answer it and he has since 
asked for more.
    Senator Sessions. But with the deficit we are facing, I do 
not think we are likely to see any huge increases. And 
everybody would like to be paid more, but this country is in 
serious financial condition.
    Tell me about, just briefly, on your caseload, how would 
you estimate the caseload of the fourth circuit to be compared 
to your caseload on the Supreme Court that you serve now.
    I know we have a shortage of judges, probably more in the 
fourth circuit than any other circuit. Some of that is due to 
objections from Senators from the fourth circuit to President 
Bush's nominees, rightly or wrongly, but some of them did not 
get confirmed. I will just say it that way.
    But how do you feel about that? We just had a hearing last 
week, I guess, in which Judge Tjoflat of the eleventh circuit, 
I think, has the highest caseload in the country, believed that 
they should not add more judges because the circuit becomes 
more unwieldy, and some of the other circuits were requesting 
judges when they had substantially less.
    So I guess, at any rate, do you feel a responsibility to 
manage cases and how do you compare the level you expect to see 
in the Federal court as compared to what you had to do on the 
Supreme Court?
    Judge Keenan. Well, I think that the biggest difference 
probably is the Supreme Court of Virginia, most cases do not 
have appeals of right. They proceed o a petition for appeal, 
and in the Federal court, there is the right of appeal. And so 
that certainly admits of the possibility of a lot more cases.
    In Virginia, we handle, I think, about 3,000 cases a year 
in our Supreme Court and we work very hard and----
    Senator Sessions. You write opinions on how many?
    Judge Keenan. No. We write opinions not on that many, no. 
We issue orders in many cases. This is an estimate, but we 
issue somewhere around 250 opinions, I think, a year.
    I believe that the--and, see, with regard to the fourth 
circuit, I'm not familiar with their internal statistics, but 
they do issue a number of opinions and then some of them 
nonpublished, some of them published.
    So I'm not really familiar with the numbers, but I do sense 
that I'm going from one pretty demanding job to another and I 
have to say I'm looking forward to the challenge. I like to 
    Senator Sessions. Well, you have got a record that has won 
the respect of quite a lot of people and that is something you 
can be proud of and I know you are pleased to have the honor of 
this nomination.
    We will maybe submit a few more questions to you, but I 
appreciate the opportunity to meet you and talk with you today.
    Judge Keenan. Thank you, sir.
    Senator Cardin. Thank you, Senator Sessions. Let me point 
out, the record will remain open for questions by members of 
the Committee. I would urge all the nominees to try to get 
those responses back as quickly as possible and as thoroughly 
as possible. It will expedite the ability of the Committee to 
move the matter forward. So we would just urge you to give that 
your prompt and complete attention.
    Judge, thank you very much, appreciate it.
    Judge Keenan. Thank you, sir. Thank you, Senator.
    [The biographical Information of Barbara Milano Keenan 

































    Senator Cardin. The next panel will consist of Laurie 
Robinson to be Assistant Attorney General for the Office of 
Justice Programs, United States Department of Justice; and, 
Ketanji Brown Jackson to be a member of the United States 
Sentencing Commission.
    I am going to ask you if you would just remain standing and 
raise your right hand for the oath.
    [Whereupon, the witnesses were duly sworn.]
    Senator Cardin. Thank you very much. Before we start the 
testimony, without objection, I am going to put in the record, 
on behalf of Ms. Robinson, a letter from the Baltimore Police 
Department, the police commissioner, in support of the 
nomination; from Ike Leggett, the county exec from Montgomery 
County, the director of the Department of Correction and Rehab 
in support of Ms. Robinson's nomination; and, the statement 
from Hon. Paul Ryan, a Member of Congress from Wisconsin, in 
support of Ms. Jackson's nomination to the Sentencing 
    [The information referred to appears as a submission for 
the record.]
    Senator Cardin. Ms. Robinson, you may begin.

                     DEPARTMENT OF JUSTICE

    Ms. Robinson. Thank you, Senator. If I could introduce my 
family, I would like to introduce my husband, Sheldon Krantz, 
if you could stand; my son, Ted Baab; my sister, Ann Kay; and 
her husband, Jeffrey Kay.
    And I thank you, Senator, and, certainly, Senator Sessions, 
whom I've known for many years. I'm very pleased to be here, 
very honored to have been nominated by the administration for 
this position. I'm very happy to answer your questions, 
    [The biographical information of Ms. Robinson follows.]

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    Senator Cardin. Thank you. Ms. Jackson.

                   THE U.S. SENTENCING BOARD

    Ms. Jackson. Yes, sir. Senator, thank you very much for 
this opportunity to appear before the Committee today. I 
appreciate it. And I would like to start by thanking the 
President for nominating me to this position. I'd also like to 
thank the Chairman of the Committee and the Ranking Member, 
Senator Sessions.
    I also appreciate the opportunity to introduce my family, 
beginning with my husband, Dr. Patrick Jackson, who is my 
support system for 13 years and a wonderful father to our two 
young daughters, who could not be here today, but are hopefully 
hard at work doing their homework right now.
    I would also like to introduce my parents, Johnny and 
Ellery Brown, who have come here from Miami, Florida, to 
support me. My parents-in-law, Gardner and Pamela Jackson, who 
have come here from Boston, Massachusetts. My brother, Second 
Lieutenant Ketajh Brown, who is a member of the Maryland Army 
National Guard, who served in Iraq and who graduated from 
officer candidate school 2 weeks ago; his supportive 
girlfriend, Olga Butler; and, my wonderful brother-in-law and 
sister-in-law, Dana and William Jackson.
    Other than that, Mr. Chairman, I don't have a statement, 
but I would like to say that if I am fortunate enough to be 
confirmed, I look forward to working again with the excellent 
staff at the Sentencing Commission. And I'm happy to take any 
questions that you might have.
    [The biographical information of Ketanji Brown Jackson 






















    Senator Cardin. Well, thank you and we appreciate both of 
you introducing your families. It is a pleasure to have you all 
here in our Committee.
    Ms. Robinson, if I just could begin with you. If you could 
just share with us, what would be your priorities, if confirmed 
to this position? How do you see the Office of Juvenile Justice 
and Delinquency Prevention, a very important part of local 
    Give us a little idea about some of the priorities that you 
would look at within your portfolio of responsibilities, 
whether you think there is a need to change the way the 
priority decisions are made. How do you intend to work with the 
Judiciary Committee in carrying out that responsibility?
    Ms. Robinson. Certainly, I'd be happy to. And, Senator, if 
I could first say, also, that I overlooked one of my family 
members, because I didn't know he was coming. I'd also like to 
introduce my brother, Peter Overby, who is seated over at the 
press table, because he's a member of the press. And he didn't 
tell me he was going to be coming.
    Senator, if I'm lucky enough to be confirmed, I would want 
to emphasize these priorities: One of the key areas that OJP 
works in, of course, is partnership with the field. So I would 
say I'd give strong importance to strategic partnerships with 
state, local and tribal officials in working to reduce crime 
across the country.
    Of course, this is a key area in which OJP has always 
worked, but I think there is much more that can be done to 
strengthen the way in which OJP--and you mentioned OJJDP, and 
that's a key part of this, particularly with the very difficult 
problems of youth violence that have so recently been 
highlighted just in the last few days--ways in which we can 
make sure that officials around the country can access the 
resources available through OJP and OJJDP.
    In a second area, I want to make sure that what we're doing 
at OJP is based on what we know from science. I know that 
Senator Specter mentioned that, and this is an area that 
Senator Sessions and I have discussed in the past.
    Is what we're doing based on the best evidence? We 
shouldn't be spending taxpayer dollars unless we know that it's 
on areas that really work. So that would be a second area of 
    A third area of priority would be to ensure, working 
closely with the Inspector General, that we're ensuring that 
we're good stewards of Federal taxpayer dollars and guarding 
against abuse and fraud with those dollars.
    Senator Cardin. Well, the juvenile justice issues are 
really important. We are struggling with that in this 
Committee. We have had some legislation that we are 
    If I had to pick the two areas we probably spend the most 
time, it would probably be juvenile justice and the drug 
issues, dealing with recidivism, dealing with drug treatment, 
dealing with how we handle the drug issues.
    So you are going to get a lot of requests in both of these 
areas. For example, drug courts.
    Ms. Robinson. Yes.
    Senator Cardin. Give me your thoughts as to how you would 
encourage, and I hope you would do this, a larger interest 
among the local governments so that we can have better choices? 
I mean, the more interest you have, the more closely you can 
work with the local agencies, the better pool of requests we 
are going to have, the better programs we get, the best 
practices we all learn from each other's states.
    Drug courts are working well in some states. Other states 
need help. How do you see your role in trying to bring this 
    Ms. Robinson. Senator, I think one way that OJP can do that 
better, if I am confirmed, I would want to set up what I call a 
``what works clearinghouse.'' I think OJP has not, in the past, 
done a good enough job in distilling information about the 
innovative programs out there that really are working well.
    Have we really distilled the information from research on 
how well drug courts are reducing recidivism and reducing drug 
use? Let's help people, let's say, in Des Moines find out how 
the drug court in Denver is working well--or the one in 
Philadelphia--and show people over in Pittsburgh, just as 
    I think if they can see how their peers around the country 
are using this in an effective way, not necessarily just a 
Federal agency telling them, but their peers in another 
jurisdiction, then that's a good selling point.
    And if they can see the percentage reductions in 
recidivism, that's a selling point to their own city councils 
when Federal funding may run out.
    Senator Cardin. And you have a large workforce that is part 
of the office. Some are represented by AFSCME. Can you tell me 
how you would plan to work with the workers and their 
representatives in order to have unity for the purpose of the 
goal of the agency?
    Ms. Robinson. Yes, Senator. When I was at OJP back in the 
1990's, I had a very good working relationship with the union. 
I met regularly with the president of the union then, who was 
Stu Smith. We didn't always agree on every issue, but it was 
very good communication. And if I am confirmed, I would plan to 
have that same kind of regular communication and working 
    I believe very strongly in a fair workplace and ensuring 
that our managers and our supervisors at OJP are people who are 
fair in the way that they go about managing the workplace and 
that they have the training to ensure that they're good 
    Senator Cardin. Thank you. Ms. Jackson, I want to talk a 
little bit about sentencing with you. There is one issue that 
has been of foremost interest in this Committee, and that is 
disparity between crack and powder cocaine.
    Now, these are statutes. So the sentence disparity needs to 
be corrected by Congress, I understand that. But the Sentencing 
Commission needs to take a look at that and is taking a look at 
    How do you see your role on the Sentencing Commission 
dealing with disparities in our system that are impossible to 
    Ms. Jackson. Well, Senator, thank you for your question. If 
I am fortunate enough to be confirmed, I believe that my role, 
along with the other commissioners, would be to look at the 
research, to look at the data, to consider the statistics and 
determine whether or not the disparities that are reflected in 
the data have some justification in the purposes of sentencing.
    That's part of the role of the commission in setting 
Federal sentencing policy and it's certainly something that I 
know that at least with respect to crack and--the crack-powder 
disparity, the commission has looked at and was very forward 
thinking about addressing that particular disparity.
    Senator Cardin. And I do hope that our Committee will be 
able to deal with that issue. There is a lot of work being done 
by many members of our Committee to try to bring us together on 
that issue.
    Do you have a view in regards to the Supreme Court decision 
in 2005, the Booker case, which held that the guidelines are 
not mandatory?
    Ms. Jackson. Well, it's a complicated decision, as you 
know, that has different aspects to it. I believe that at the 
end of the day, the remedial half of the opinion was the 
correct outcome given the constitutional holding.
    And the guidelines, as you say, are now advisory and I do 
think that, as a result, there is additional statistical data 
that the commission can collect about what judges are actually 
doing in these cases where they now have the opportunity to 
sentence outside of the guidelines under the statute directly.
    Senator Cardin. Senator Webb has introduced legislation for 
us to take a look at the criminal justice system and our 
sentencing and penal issues. If that legislation is successful, 
your commission will have an important role in helping that 
study go forward.
    Can you just share with me your thoughts as to Senator 
Webb's request that we take a more comprehensive look at our 
sentencing and penal policies in America?
    Ms. Jackson. Well, Senator Webb's proposal I have not 
studied in detail, but it certainly is a part of a national 
dialog that's going on right now with regard to Federal 
sentencing. And I believe that to the extent that his 
commission and working group is able to come up with proposals 
as to how to address sentencing, then that would certainly be 
welcome in the overall debate about what needs to be done now.
    Senator Cardin. Thank you very much. Senator Sessions.
    Senator Sessions. Sentencing is such a big deal. You have 
got a 98 percent conviction rate. The real question in most 
cases is how much time will a person serve.
    I am absolutely convinced, from my experience, that the 
fact that we have a lot of people in jail for fairly long 
periods of time has been a factor in--the predominant factor, 
in my view, in that decline in crime. Murder rates in a lot of 
areas are half what they were. Crime in general is down.
    I became a United States Attorney in the early 1980s and 
people were terrified over crime. It is not as intense today 
and we have done some things right. But nobody should serve 
longer in the slammer than makes sense.
    That is why I have supported substantial reductions in the 
crack cocaine penalties and I am working with a number of 
people to see if we can reach an accord. I have been supporting 
that for 6 years and never have gotten anything passed yet, 
maybe more than 6 years.
    I am a little worried about where we are heading with the 
sentencing guidelines. Essentially, we need not go back to the 
situation in which two defendants are in the courthouse and one 
is down the hall before Judge X and one before Judge Y and they 
get five times the sentence for the same offense.
    So the guidelines--Booker has opened up some real 
challenges for us and I hope that you will work on that.
    Ms. Robinson, I really appreciated your talking about 
science, because what kind of defendants repeat and which ones, 
if you release, are likely to go back and commit serious crimes 
again are big factors. I support the drug courts. Senator 
Cardin, I really do. I think they work pretty well, but they 
are done quite differently in different cities.
    I guess I really liked your answer to say, ``Well, which 
one is working best? '' And should we not be able to advise a 
community who is going to establish a drug court, especially if 
they are going to get a Federal grant, to ask them whether--are 
they going to comply with the best data we have out there on 
how to conduct that drug court.
    Do you agree that we can do a better job of that, Ms. 
    Ms. Robinson. Yes, Senator, I very much do. And I think a 
key part of what the Federal Government does best with these 
kinds of grants is provide technical assistance with them, 
which goes directly to your point.
    And one of the key things about technical assistance is 
that the best way to provide it is to not have it be conducted 
by Federal employees from Washington, but have it conducted by 
people who are professionals from jurisdictions out in America 
who are doing this kind of work.
    So we arrange it from an agency in Washington, but it's 
actually conducted out in the field by professionals, again, 
from one jurisdiction, maybe from Denver, going over to Des 
Moines or wherever.
    Senator Sessions. I think that is a good idea and I would 
support that. I remember, and I have shared this story with 
you, Mr. Chairman, but Fred Thompson was elected to this body 
before I was. He chaired the Subcommittee on Juvenile Crime. At 
the time, there was a big emphasis on what to do about juvenile 
    He said the only thing he was sure of when I took over that 
Subcommittee was that we did not know enough about why 
juveniles commit crime and if the Federal Government wanted to 
do something worthwhile, we would do some really aggressive 
studies into that, because 99.99 percent of juvenile cases are 
tried in state courts, not Federal courts. I always thought 
that was pretty commonsensical.
    Do you think we know enough about juvenile crime, its 
causes, the recidivism possibilities? Do we provide enough data 
and information for individual juvenile judges and probation 
officers and juvenile prison systems around the country?
    Ms. Robinson. No, Senator, I do not. I think we have----
    Senator Sessions. You were there for 8 years.
    Ms. Robinson. Seven years.
    Senator Sessions. Seven years. What can we do to learn more 
about it?
    Ms. Robinson. Well, I think we know some things, but we 
need to know much more. There is very little research money 
actually appropriated by Congress to look into these things. 
There's a lot of----
    Senator Sessions. A lot of the money that goes to Office of 
Justice Programs, which you administer, are earmarked or 
directed to things other than research and development?
    Ms. Robinson. That's correct. Most of it goes into 
programmatic money, which is very important, but a very small 
percentage goes to research.
    Senator Sessions. Now, you say programmatic. Is that money 
that goes to state and local jurisdictions mostly?
    Ms. Robinson. Correct.
    Senator Sessions. To help them start a drug court or run 
    Ms. Robinson. Yes.
    Senator Sessions. Or a juvenile program.
    Ms. Robinson. Or for the Byrne grants, for example, for law 
enforcement task forces and those kinds of things.
    Senator Sessions. So tell us, be honest with you, at the 
time of our budget, if we had to choose, it seems to me we 
would do better to investigate rigorously some of the programs 
that are being tried all over America and see if we cannot help 
give good advice, even if we had to reduce some of the grant 
money or program money.
    Ms. Robinson. The fact is that even a doubling or a 
tripling of the research funding would make a tremendous 
difference, because it's not a tremendous amount of money. But 
even putting $20 million more or $10 million more into research 
could create a great deal more knowledge about these issues and 
really inform the spending of the program dollars.
    Senator Sessions. I also appreciate your willingness to 
examine, Mr. Chairman, the operation and structure of Office of 
Justice Programs. It has been cobbled together by this 
legislation, gets passed and we are all proud of it, and we get 
a director in charge of it, director in charge of this one, and 
they have interest groups and everything, and then, at some 
point, you say it is time to run this thing more streamlined 
and we can be more efficient and be more productive, usually 
somebody hollers and objects and it is difficult to get 
anything done.
    But I hope that you would continue your willingness to 
examine how to, as you just said, make sure we get the best use 
of the taxpayers' money. Will you do that for us?
    Ms. Robinson. I would be happy to continue those 
discussions with the Committee, of course.
    Senator Sessions. I know you had some good ideas on how we 
could improve the structure of that when you were part of the 
Clinton Administration and afterwards, too, you have testified 
here before our Committee on that.
    So, Mr. Chairman, I think we have one of the best nominees 
of the Clinton Administration. I think you did a great job and 
managed well and worked hard and were focused on doing the 
right things and I think it gives us an opportunity, as the 
Committee, to listen to your advice and suggestions and see if 
we cannot help you do your job better, because as this system 
ha developed over the years, it is not as productive, I think, 
as it should be. Thank you.
    Senator Cardin. Senator Sessions, let me agree with you. 
Your timing is perfect, because the budget is on the floor as 
we speak, being managed by my colleague from Maryland, Senator 
Mikulski and Senator Shelby. You are correct. We generally get 
involved with that as we put another little wrinkle into the 
program rather than looking at the overall effect.
    I am very encouraged by Ms. Robinson's responses, because 
the purpose of the agency, the Office of Justice Programs, is 
to make sure that there is a national benefit to this. If it 
was just a funding program, we could just figure out a formula 
and save a lot of time.
    But we are trying to make the benefit, so states can 
benefit from other states and that there are national 
strategies to help states, which are the primary agencies that 
deal with this problems, that there is a sharing of information 
and there is a more effective way for a state or local 
government to deal with these issues.
    So I think Senator Sessions is absolutely right and, Ms. 
Robinson, we really do look forward to your recommendations in 
this area. I think we all are trying to get a better 
effectiveness on the use of these Federal funds. It really 
should not be just who can get as many earmarks to their states 
as possible, but how we can best utilize the funds to deal with 
this National priority of reducing juvenile crime and adult 
crime and make our communities safer in the most cost-effective 
    So I just wanted to add my support to Senator Sessions' 
    Senator Sessions. What is the total OJP budget?
    Ms. Robinson. For 2009, it was $2.8 billion.
    Senator Sessions. So I am not saying any of this is wasted, 
although I am sure some is not spent well, but the idea that we 
do not have enough money to do good research raises questions, 
because $10 million or $20 million could substantially increase 
your ability to do research out of a multi-billion dollar 
budget indicates that Congress probably needs to examine how we 
allocate the money.
    Senator Cardin. I think that is our responsibility, you are 
correct. Let me thank both of our nominees. The record will 
remain open for 1 week, without objection. I will submit 
statements from--I understand, Ms. Robinson, you have an 
opening statement to submit for the record. That will be 
included in the record.
    With that, the Committee will stand adjourned.
    [Whereupon, at 5:24 p.m., the hearing was adjourned.]
    [Questions and answers and submissions for the record 




































































































                             CONTROL POLICY


                      WEDNESDAY, OCTOBER 21, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:53 p.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar, 
    Present: Senator Sessions.

                      THE STATE OF ALABAMA

    Senator Sessions. I see the surprise on my two Tennessee 
Senators' face. I'm calling the meeting to order, but I'm 
authorized to do so by the Democratic leadership.
    We'd be glad to hear your statements at this time on the 
nominees, the nominee that you'll be speaking on. All of us on 
the Committee value very much the opinions of the State 
    Senator Alexander.


    Senator Alexander. Thank you, Mr. Chairman. I knew 
Republicans were doing better, but I didn't know it had come 
this far.
    Senator Alexander. So, thank you. It's my great pleasure 
today to introduce to the Committee Jane Branstetter Stranch 
from Nashville, Tennessee. She's been nominated by the 
President to be a judge on the United States Court of Appeals 
for the Sixth Circuit.
    She has a distinguished academic background: summa cum 
laude, Phi Beta Kappa from Vanderbilt, Vanderbilt School of 
Law, top grades there. She has lots of practical experience, 
having taught law at Belmont--labor law at Belmont College.
    Her law firm is a family affair. Her father, who I think is 
watching today, is one of Nashville's best-known and most 
respected attorneys, Cecil Branstetter. He introduced 
legislation to allow women to serve on juries back in the 
1950s, so I know he gets some special pride today to see that 
his daughter has been nominated by the President to be a judge.
    Maybe more important than any of these other things, she's 
been very active in the PTA, in her church, and in the 
community in Nashville.
    So, Senator Sessions, Mr. Chairman, as Governor, I 
appointed about 50 judges. I didn't ask them their politics, I 
didn't ask them how they felt about issues. I tried to 
determine if they had the character and the intelligence and 
the temperament to be a judge, whether they would treat people 
before the bench with courtesy, and most important, whether 
they were determined to be impartial to litigants before the 
court, and I am convinced that Jane Stranch will be and I'm 
pleased to recommend her to the Committee.
    Senator Sessions. Thank you, Senator Alexander. I know, 
having watched you in the Senate, that you, as a lawyer, have 
high ideals for the bench, and I appreciate so often your input 
into the discussions involving the judiciary and legal issues 
in the Senate.
    Senator Corker.


    Senator Corker. Well, thank you, Mr. Chairman. It is good 
to see you in that role. I am just thinking, as you said that. 
Lamar has done so many things in his life that were so 
distinguishing, I forgot that he was a lawyer.
    Senator Corker. So I'm glad you're----
    Senator Sessions. As a businessman, that's probably all 
    Senator Corker. I am pleased, always, to come before this 
Committee, and others, with Tennessee who have been recommended 
for positions like this. We are proud of the people that have 
served our country in public office. Jane Stranch is someone 
who I haven't gotten to know except through this process. What 
I do know about her though, and I know this for a fact, she 
comes from a family that is one of the most esteemed families 
in Nashville.
    I have served with her brother on civic boards and know of 
the type of character that this family embodies. I know she's 
here with people that I greatly respect who are in support of 
her nomination. I can tell you that I know that she is someone 
who cares deeply about her community. I know she embodies 
integrity in everything that she does, and I'm very happy to be 
here today with Lamar Alexander, supporting her and being 
presented to this Committee.
    I know this Committee will go about this process in a very 
fair way, as this Committee has done in most recent times, and 
I look forward to that process. I look forward to hearing what 
the Committee's recommendation is. But I am very, very honored 
to be here and I thank her for her willingness to serve our 
country in this regard.
    I know I talked at length with her about that, and while 
she, I know, loves serving as an attorney in her community and 
has represented many people across this country, I know she 
feels it's time for her to give back in this way. So, with 
that, Mr. Chairman, I thank you, I thank Lamar for allowing me 
to join him, and I certainly thank Jane Stranch for her 
willingness to serve her country in this way.
    Senator Sessions. Thank you very much. Good words, indeed.
    Senator Corker. I am looking forward to your filibuster at 
this point.
    Senator Sessions. I will ask that the nominees step 
forward. If you would raise your right hand and remain 
standing, we'll take this oath.
    [Whereupon, the witnesses were duly sworn.]
    Senator Sessions. Thank you. Please have a seat.
    We will just be delighted to hear any comments each of you 
have, and then if you would like to introduce family or guests 
that are with you, we would be pleased for you to do that.
    I guess, Ms. Stranch, do you want to start? We'd be glad to 
hear from you.


    Ms. Stranch. Thank you. I would like to introduce my family 
members and friends who are here, if I might: my husband of 37 
years and my law partner, Jim Stranch; our oldest son Gerard, 
who practices law with us, and his wife Patty, who is an 
attorney also. They did not bring their 2-year-old son, our 
oldest grandchild, for obvious reasons. But our daughter 
Abigail is here, Abigail Tyler, and she is here with our second 
grandchild, our 4-month-old, Hudson Tyler. With her is her 
friend, Elise Fellman, who is holding Hudson. Elise is an 
honorary daughter in our family.
    I have my brother, Dewey Branstetter here, who is also my 
law partner, and his son Hunter Branstetter, who will begin law 
school next year. I have friends with us also. George Barrett 
and Mary Barrett Brewer are here in support of what's going on 
    I would also like to say that there are a few people that 
could not come whose names I would like to mention. Our other 
two children, Ethan and Grace, are not able to be here because 
they are observing the Stranch rule that studies come first, 
and they are at school in Memphis, med school and undergraduate 
    My parents, Cecil and Charlotte Branstetter, were not able 
to be here today. My father will be 89 in December and does not 
travel as much as he did previously, but would say to you how 
grateful he is for this opportunity for me. As Senator 
Alexander indicated, he served in the Tennessee legislature for 
one term and sponsored the bill that allowed women to serve on 
juries, because they had not before. I think it's an honor, and 
in a way coming full circle, that he has a daughter now that 
might be able to serve as a judge.
    So, I appreciate your time. I appreciate being nominated by 
President Obama, and I appreciate so much the introduction of 
our Senators. I know that they believe what I believe: 
ultimately we're Tennesseeans working together to make this 
system function well. So, I am grateful. Thank you.
    Senator Sessions. We are joined by Senator Klobuchar. We 
just had the opening statements from the two home State 
Senators, Alexander and Corker, and Ms. Stranch's statement.
    Senator Klobuchar. Well, very good. Congratulations, Ms. 
Stranch, on your nomination. I was very impressed when I looked 
at your background and your legal career and the fact that you 
also have done all this with both--is it true you practice with 
your husband? Is that right?
    Ms. Stranch. Yes.
    Senator Klobuchar. And that's also a big thing. Very good.
    Ms. Stranch. And with our son and with my father, which 
makes it a bit difficult to get away from the practice.
    Senator Klobuchar. Well, this certainly shows that you get 
along with everyone and are able to work out conflicts in the 
    Then also, I apologize for being late. We had a vote and I 
had a meeting afterward, but I also wanted to recognize Mr. 
Tucker, who is now going to speak, who has been nominated to be 
the Deputy Director of State, Local and Tribal Affairs at the 
Office of National Drug Control Policy. This is a very 
important job.
    As you know, you will be responsible for coordinating 
Federal efforts to disrupt the market for illegal drugs, 
managing a program that provides grants to counter-drug task 
forces and supporting State and local governments in their 
efforts to reduce substance abuse at the community level, among 
other responsibilities. It's a big job, but your background 
should serve you incredibly well, if you're confirmed. I noted 
that you got letters supporting your nomination from the 
National Sheriff's Association, the Police Executive Research 
Forum, and from the Major City Chiefs.
    You began your career as a New York City police officer, 
right on the front line, so you know what life is like on the 
front lines for our officers. You have continued your work with 
local law enforcement after leaving the NYPD as the head of the 
Office of School Safety and Planning for New York City, not an 
easy job, and in national government as the Deputy Director for 
Operations in the COPS office at the Department of Justice. So, 
we welcome your experience and look forward to hearing from you 


    Mr. Tucker. Thank you very much, Senator. Senator 
Klobuchar, Ranking Member Sessions, thank you for holding this 
hearing today. It's a privilege to appear before you and to 
allow me to give you my views of the new work that I hope to be 
    Please allow me to introduce my members of my family who 
are with me today: my wife Diana, my mother-in-law, Constantia 
Beecher, and my son, Scott Tucker.
    I am honored that President Obama has put my name forward 
to serve as Deputy Director for State, Local and Tribal Affairs 
of the White House Office of National Drug Control Policy. If 
confirmed, I look forward to continuing my strong commitment 
and career-long efforts to improving community safety through 
the use of efficient and effective prevention and crime control 
    I understand the importance of the ONDCP mission and I do 
not take lightly the responsibilities of the position for which 
I am nominated. My return to Washington in this new capacity 
offers opportunities for me to use my experience in the 
management and oversight of four critical programs: the High-
Intensity Drug Impact/Drug Trafficking Areas; the Drug-Free 
Communities Program; the National Youth Anti-Drug Media 
Campaign; as well as the Counter-Drug Technology Assessment 
    I am ready to work with Director Kerlikowske and the ONDCP 
team as they lead the administration's efforts to address drug 
problems manifested by challenges presented by both treatment 
and enforcement in communities across our country.
    It has been my experience over the years that we can solve 
the problems that threaten our communities more effectively 
when we pool our resources. I have spent the better part of my 
career finding ways to use evidence-based research to inform my 
decisions and to craft sound practices and policies. In my 
view, our success in reducing drugs and drug crimes lies 
fundamentally in our ability to work together, to share 
information, to be open to new ideas, and develop thoughtful 
approaches and apply tested strategies.
    This approach seems entirely consistent with the Office of 
National Drug Control Policy mandate to develop and oversee the 
effective coordination of the President's drug control 
strategy, as prescribed by the Congress. I believe I have much 
to offer and hope the members of the Committee will agree.
    In closing, please know that I would very much like to add 
my voice, as well as my thoughts and ideas, to the efforts 
under way to shape a successful drug control policy. I am happy 
to answer any questions you may have.
    [The prepared statement of Mr. Tucker appears as a 
submission for the record.]
    Senator Klobuchar. Thank you very much.
    Do you want to begin, Senator Sessions?
    Senator Sessions. No, go ahead.
    Senator Klobuchar. OK. Ms. Stranch, you're one of our--you 
know, we have had a number of people, nominees, come through 
for judge jobs, and you're one of the first that didn't 
actually have judicial experience. I don't necessarily think 
that is a bad thing, but I want you to talk a little bit about 
your legal practice and how you came to focus on certain areas 
of litigation.
    Ms. Stranch. I have over 30 years of experience in 
litigation, much of it in the Federal courts. I do believe that 
that would prepare me for a position as a judge. The primary 
emphasis of my present practice has been in ERISA, the Employee 
Retirement Income Security Act. In that, there is a broad range 
of work that I do. I do complex litigation across the Nation, 
representing individuals who have lost their pensions, and some 
of the corporate problems that have occurred in the past 
    I also represent health funds, pension funds, as entity 
representation under ERISA, and represent individuals in 
pension matters. That practice has taken me to many different 
courts and courts of appeals as well, and has given me the 
experience of being able to see different judging styles, shall 
we say, and hopefully to draw from those the best of what I've 
    I also have an extensive labor law practice. I am proud to 
have represented working men and women across America, and 
individuals as well as labor organizations. That has given me 
statutory experience in interpretation of the law, as well as 
board experience in administrative capacities.
    Probably the other largest component of what is a very 
general practice, coming from the South, we have a number of 
things that we do. And mine, the third one would probably be 
entity representation of small entities, primarily utility 
districts, which under Tennessee law are quasi-municipalities. 
I've provided the full range of defense and corporate work and 
instruction and entity representation to those districts that 
are very important in the State of Tennessee because they 
provide the ability for development in both commercial/
industrial and residential. I think those are the primary 
components of what is a fairly general practice.
    Senator Klobuchar. Thank you.
    And how would you characterize your judicial philosophy, if 
you had to describe it? What kind of judge do you want to be?
    Ms. Stranch. I would say that understands authority. Being 
a litigator over the years, I well recognize that when I go 
before a judge it's the judge who decides my case. Now I 
understand that if I am in the position of that judge, I am 
constrained by like limits: the law constrains me, the 
percedent constrains me, and I will honor and comply with those 
things that would govern how I would act as a judge.
    Senator Klobuchar. What about the precedents within your 
own Circuit? How much deference will you give to decisions on 
issues that aren't necessarily--have not been before the 
Supreme Court, but have been before your Circuit?
    Ms. Stranch. I understand the deference to existing law. 
Stare decisis would have a stand on the decisions as they are. 
Although the final word may not be through the Supreme Court, 
it would leave an opening to examine those issues in accordance 
with all of the law and facts that govern that particular case. 
I would do so, but always understanding that there is a 
deference to the cases that have been decided and that there is 
a reason for that deference, to assure the litigants that they 
can understand the nature of the law and its continuing 
applicability to the actions that they take.
    Senator Klobuchar. And how about when you are on panels and 
you're working with the other judges? What's your view of 
trying to get consensus and agreement?
    Ms. Stranch. I have a strong belief in collegiality, and I 
think perhaps even a stronger belief in civility. Having 
practiced across this Nation in a number of courts, I would 
like to say that everywhere I go I receive the same reception, 
but I can't say that that's always the case. In some 
circumstances, the method by which courts are run is not always 
as civil as I would honestly like to see it be.
    It's my belief that if you want the courts to be respected, 
then you need to treat both the litigants and the counsel 
before you with comparable respect. In doing so, that includes 
how I would treat the people that I would work with. As you 
know, I'm working with my family for a long time.
    Senator Klobuchar. That's the best evidence.
    Ms. Stranch. Self-restraint is a learned trait.
    Ms. Stranch. But I look forward to the collegiality of a 
court that I would be able to work with and share ideas with. I 
think it's extremely important.
    Senator Klobuchar. Thank you very much.
    Senator Sessions.
    Senator Sessions. Thank you. Good questions.
    Well, I think your experience is a valuable one. I think 
you are right, that you may not know how to describe it, but 
you know some judges handle parties and litigants better than 
others. I appreciate, I think, a sincere commitment on your 
part to treat the litigants fairly and objectively and to 
render a decision based on the law and the facts, and comply 
with the oath, which is to be impartial. You will take that 
oath. It also requires you to do equal justice to the poor and 
the rich, and it also requires you to serve under the law, 
under the Constitution and the law of the United States, and 
not above them.
    So I really appreciate people who have had a good practice. 
And, what? Eighty-something percent of your practice has been 
in Federal court?
    Ms. Stranch. It has been. That has been my expertise and my 
interest. I have enjoyed that.
    Senator Sessions. One thing you haven't had much experience 
with, it appears, is criminal law, which is a big part of the 
Federal court and docket. The sentencing guidelines have, to a 
large degree now, been declared advisory, but they represent a 
huge commitment of time, effort, and research and data to try 
to figure out what appropriate penalties are for crimes and, I 
think, deserve a great deal of deference. I was rather 
flabbergasted when the Supreme Court declared them advisory, 
and still remain so. But irregardless, that is apparently the 
state of the law.
    What deference and what approach would you take toward your 
responsibility to be in compliance with the guidelines, 
advisory or not?
    Ms. Stranch. I recognize that there has been an alteration 
in the guidelines from mandatory to advisory, but I also 
recognize that there's a great deal of law that exists out 
there on how the guidelines have been applied over time. That 
law is instructive and is something that would have to be 
considered and looked to in each new case and to see how it 
applied to the particular facts of that case. So the governing 
rule for me would be, what exists in the law, what decisions 
are there, and were due process rights provided in accordance 
with the Constitution?
    Senator Sessions. Well, I think that's true. I would just 
say to you, my advice--for what it's worth, as a prosecutor for 
15 years in Federal court--I'd suggest start applying them, 
following them. As the years go by or the time goes by and you 
think that this case might be an exception--but there is a 
danger, because when I started prosecuting, judges could 
sentence a person from zero to 20 years, and some judges would 
give them probation and somebody else would give them 20 years 
for the same offense.
    There was a real concern of aberrational sentencing, 
inconsistencies in sentencing. The amount of punishment a 
person got depended on the judge before whom they appeared. The 
guidelines have been, I think, a very positive development. I 
think the judges that have grown up under it feel real 
comfortable with it and I think most of them try to follow it 
whenever possible. You just don't want to get to the point of 
view of deciding the sentence based on the preacher's plea. 
They always have a preacher come plea. It's sad. I mean, these 
things are tough, they're no fun.
    Ms. Stranch. Thank you.
    Senator Sessions. Now, as a judge, you're aware that 
rulings against prosecutors are normally not appealed. In a 
number of decisions you make, the prosecutor is unable to 
appeal. That's a pretty awesome power for a judge. I guess I 
would ask you, do you recognize that the person representing 
the people of the United States, seeking to protect them from 
criminal predators, they're entitled to a fair shake in court 
    Ms. Stranch. Yes, sir, I would. I believe that everyone is 
fair--should have a fair shake and should have an equal 
opportunity before the courts.
    Senator Sessions. You know, we've had lawyers that 
represent business interests and they've been questioned about 
their fairness. You've represented the AFL-CIO and other labor 
interests. You will take the oath to do equal justice to the 
poor and the rich and to be impartial. Will you be able to give 
the parties before the court a fair hearing, even though you've 
had a background more from the labor side?
    Ms. Stranch. Yes, Senator, I would. If I will have the 
privilege of serving, I will do what the law calls me to do, 
not to be a respecter of anyone, but to be an equal treater of 
    Senator Sessions. Thank you. I'm impressed with your record 
and impressed with the recommendations from your two Senators. 
I think you'll make a good nominee, from what I know.
    Ms. Stranch. Thank you, sir.
    Senator Klobuchar. Thank you very much, Ms. Stranch.
    Ms. Stranch. Thank you.
    Senator Klobuchar. Mr. Tucker, could you talk a little bit 
about your 22 years as a police officer in New York City and 
how that has shaped your approach to this job?
    Mr. Tucker. Yes, Senator. Interestingly enough, I started 
out my career, and one of the first assignments in my career 
was being trained to be an instructor and to be an educator of 
policies and issues and the treatment around drug issues. So 
it's ironic that I'm here today, sitting here as the nominee 
for the Deputy Director of State, Local and Tribal Affairs for 
    I was a beat cop after that, and in doing that, my day-to-
day operations involved making arrests, and on occasion arrests 
for narcotics and other types of crimes. So the training 
started out pretty much, and the job was pretty much 
uneventful, nothing extraordinary. During the time that I was a 
police officer, I went to school and got my undergraduate 
degree and law degree while I was a police officer. After 
getting a law degree, taught at the police academy, taught law, 
and then subsequently went to the Legal Bureau of the New York 
City Police Department, where I served as a legal advisor for 
the department for a few years.
    Subsequent to that, I moved on to the Civilian Complaint 
Review Board within the police department, where I served as 
the Deputy Director for pretty much investigations in the 
agency, and thereafter worked for the New York City mayor as 
the liaison for Law Enforcement Services as assistant director 
there, where I spent time working on problems and issues 
involving coordination efforts between and among our local 
criminal justice agencies of Probation, Juvenile Justice, and 
so forth. Thereafter, I left the agency and ran the Human 
Rights Commission for about 18 months on behalf of the mayor, 
and subsequent to that retired from city government. So, it was 
kind of a diverse employment career early on.
    Thereafter, when I moved into other areas, I became a 
researcher and worked with a program focused on substance abuse 
called the Substance Abuse Strategy Initiative that was then 
based at the Wagner Graduate School of Public Service at NYU, 
and subsequently merged with an organization that still exists 
called CASA, the Center on Addiction and Substance Abuse, where 
I was director of Field Operations and senior research 
associate, focusing on a variety of at-risk populations and 
developing program demonstrations.
    In particular, focused on one demonstration program focused 
on at-risk youth, and the goal of that program, we were trying 
to test different strategies that would provide us with best 
practices for keeping pre-adolescents from becoming involved in 
drugs and crime. We ran that in the five different cities--that 
program in five different cities around the country, and it was 
rigorously evaluated, both from an impact perspective as well 
as a process perspective.
    That gave us, I think, and informed the entire community on 
the issue of how we deal with the variety of issues that 
students face and how to protect communities, both from a 
public safety perspective as well as how to keep children 
from--our youth from becoming involved in drugs and crime.
    We also developed a program--and I was the person who 
developed some of the community policing aspects of that--
focused on ex-offenders and reentry. So we spent a fair amount 
of time. Again, this was a multi-site program, working with ex-
offenders to test some of the early strategies surrounding the 
issues of how we get ex-offenders who are leaving incarceration 
to enter society--reenter society in a way that was productive. 
Most of those folks, the offenders who were returning, were 
offenders who were drug-addicted, so we were trying to build a 
variety of services around supporting those individuals in 
terms of housing, employment, and of course drug treatment, at 
the time.
    Then more recently, as you pointed out, I had the honor to 
serve in the Clinton administration as the Deputy Director of 
COPS, where I was responsible for managing the grants 
administration program principally, but also training and 
technical assistance to State and local jurisdictions, as well 
as setting up a network of regional community policing 
institutes, which are actually still active.
    They were designed to help continue some of the work that 
came out of the funding that we provided during the 
administration at the time, and were intended to survive the 
COPS office once it moved on. So, those regional community 
policing institutes are still active and providing a variety of 
services in support of local communities and partnerships with 
universities, police officers, law enforcement, and such.
    Senator Klobuchar. Thank you very much.
    Senator Sessions.
    Senator Sessions. Thank you.
    Mr. Tucker, I think this is an important office that you're 
about to be a part of. It's the first czar's office, I guess, 
that we had. Maybe it didn't go back as far as the Romanoffs, 
but the first drug czar in that office was designed to try to 
create some coordination in our enforcement of drug activities. 
There are so many independent entities, as you well know from 
your background: sheriffs, and police departments, and State 
prosecutors, and prison systems, and drug treatment programs, 
and this, that, and the other, educational groups, school 
groups, all involved in trying to reduce the number of people 
involved with drugs.
    Some people were critical of President Reagan's war on 
drugs and Just Say No program, but I was there. We had over 50 
percent of the high school seniors that admitted using an 
illegal drug substance in 1979, according to a University of 
Michigan study, an authoritative study. By the time I think he 
left office, or President Bush left office, it was half of 
that. That was a huge progress, and part of it, I believe, was 
a consistent message that drug use is not acceptable, it's not 
funny, it's not a joke, it's not recreational. It's serious, 
dangerous business.
    Now, you've been on sort of both sides, as a law officer 
and a part of the CASA program. You've studied this and tried 
to think it through. I would just suggest to you that one of 
your roles may be, like General McCafferty, I think, found his 
under President Clinton, to try to make sure that 
administration isn't caught up too much in being soft on these 
issues, in trying to be nice about it, and to take the hard 
issues that are necessary to keep drug use down in the country.
    So let me ask you one question. There's been some news 
lately about it. That's the California medical marijuana thing. 
That was a big mistake, in my opinion. General McCafferty 
opposed it when that came up under President Clinton. Bill 
Bennett opposed it when he was drug czar. Mr. Bob Weiner, 
President Clinton's White House Director on Public Affairs for 
ONDCP, said this recently, warning the Obama administration: 
``Be careful about the new lax enforcement policy for medical 
marijuana because you may get way more than you bargained for. 
Prescription marijuana use may explode for healthy people. ``
    Do you think that's a concern, and would you share that?
    Mr. Tucker. Thank you, Senator. It's an important issue. 
Glad you raised it. As a former law enforcement official and in 
various capacities, I've always been focused on enforcing the 
law. Wherever we have statutes that exist that require or 
identify conduct that is illegal, then my view is that those 
laws should be enforced, whether they be local laws or Federal 
    Having said that, I'm not fully versed on the status of the 
latest issue regarding medical marijuana, except to say that 
I've read some of the articles and dealt with some--and read 
some of the issues that are on the table. If I were to join the 
administration, I would obviously be committed to following 
whatever the wishes are and whatever the processes are coming 
out of the administration.
    Senator Sessions. Well, I understand that. I would just say 
to you, I think you probably have a good perspective. There's 
always people that just think that if we could just legalize 
all this, the problems would go away. But that's not so. It's 
just not. In places that have legalized drugs, they've 
generally had difficulties. It looks like California is having 
a real problem with this medical marijuana gimmick.
    I think--I'm not sure Mr. Ogden's--the Deputy Attorney 
General's--memorandum titled ``Authorizing Medical Use of 
Marijuana,'' sets a good policy, because you've got to be 
careful about the message. Don't you think one of the main 
things that the drug policy board should do is send a clear 
message about drug use and the dangers of it, and to utilize 
the power of your office to be a national spokesman for efforts 
to contain illegal drug use?
    Mr. Tucker. You are absolutely correct, that is the mission 
of the Office of National Drug Control Policy, and that is the 
mission that I would wholeheartedly support at all costs, if I 
am confirmed.
    So, yes. I don't--marijuana is illegal. It is a substance--
it is, in our schedule of substances, a Schedule 1--I believe a 
Schedule 1 illegal drug, and as a result of that, the laws 
against marijuana should be enforced, as far as I'm concerned.
    Senator Sessions. Well, thank you. I don't want to go much 
    Senator Klobuchar. Go ahead.
    Senator Sessions. But also, your organization, ONDCP, has 
been active with schools, dealing with young people and drug 
use, particularly--a particular emphasis of that organization. 
You've been involved in New York in that, and I commend you for 
    Can you--do you have any observations, briefly, about the 
connection between drug use and drop-outs and violence by young 
    Mr. Tucker. No, I don't have any specific information, 
Senator. But I think that's a good question. Some of the 
research that I worked on personally while I was a researcher 
with CASA focused on preventing--recognizing, first of all, 
that the pre-adolescents that we were working with, it was 
determined that they were clearly at risk for getting involved 
in drugs and crime. In fact, we determined perhaps the focus on 
pre-adolescents may have been the age--we should have started, 
perhaps, at a younger age to sort of get the message out.
    So, yeah. I think the message that ONDCP tries to send in 
every possible way is to make it clear to young people in 
particular, and through our media campaign I understand that 
the agency has in the past placed heavy emphasis on directing 
their messages to young people between 12 and 17 years of age.
    As someone who worked in schools, there's no question that 
our students, our young people, have to be reminded repeatedly 
about the illicit effects of narcotics and dangerous drugs, so 
we can't give enough or put enough information out there to 
dissuade them, in my view. So we--if I'm confirmed and I go to 
ONDCP, one of the ways in which I think I would focus my 
attention would be on that issue. I'm familiar with it.
    I was in the trenches with young people at schools around 
the clock, and that was working with not only schools around 
other--schools in other parts of the country when I was a 
researcher, but while I ran the New York City--safety for the 
New York City school system, which is the largest in the 
    Senator Sessions. Well, I would just say, that's--I'm glad 
to hear you say that. I remember when I was a U.S. Attorney in 
the early 1980s, we had the Partnership for Youth and Coalition 
for a Drug-Free Mobile, I was on the board of both of those. We 
spent years working on this. I truly believe that that was as 
much a part of the reduction in drug use by youth as anything 
that occurred.
    And you are correct to say, even though the teachers may 
be, and the volunteers may be a little tired of saying it and 
they're not as enthusiastic as they were when they first rose 
up, somehow we've got to figure out a way to keep that message 
out there. We do not want those numbers to start going up again 
to a significant degree.
    Thank you, Madam Chairman. I have one more thing. I will 
submit a question to you in writing. But I do believe we need 
to deal with the disparity between crack and powder cocaine. 
I've had an amendment to take some substantial steps to reduce 
that problem and make it better for the last 10 years. But I am 
concerned that some of the policies indicate a willingness to 
go too far that could create an impression that we're on the 
road to legalizing drugs, and that drug use is not a serious 
problem in our country.
    That's one thing you and your organization will need to be 
engaged in. It's not just the Department of Justice, but your 
organization is dealing with policy. What are the right 
sentences for serious drug dealers in America today? We can't 
eviscerate those penalties, but we can change them and make 
them better, and we must do so, actually. We've gone too long 
without addressing that. So, I look forward to working with you 
on that.
    Mr. Tucker. So do I, Senator. Appreciate it. Thank you.
    Senator Klobuchar. Thank you.
    And Senator Sessions, I do appreciate your support for 
eliminating that disparity. I think it's very important.
    Also, Mr. Tucker, thank you for your explanation on the 
drug policy. I know those are difficult issues. I think one of 
the things that law enforcement is confronted with every day is 
just the triaging and trying to decide where to put the 
resources for the best bang for your buck, so to say.
    So could you talk a little bit about your priorities for 
drug enforcement and that side of things?
    Mr. Tucker. Sure. Just one comment with respect to the 
crack/powder cocaine--crack issue. I agree 100 percent that the 
issue of parity should be dealt with, an I would commit to 
talking with you and look forward to talking with you further 
about that in the future.
    As it relates to the more general question that Senator 
Klobuchar just raised, I think generally, because of the areas 
of responsibility that I have in HIDTAs, as well as the Drug-
Free Communities in particular, we will be looking at, and I 
hope to bring sort of my experience to looking at both the 
treatment and the enforcement aspects of this as much as 
    Of course, the High-Intensity Drug Trafficking Area is 
totally committed, the 28 HIDTAs, as well as the Southwest 
border, are all trying to do as you suggested, triage, and to 
deal with both the violence as well as the drug trafficking, 
dismantling, and disrupting as many drug trafficking 
organizations as possible. So we hope to certainly keep that 
commitment and working with all the Federal, State and local 
agencies to stay the course.
    The same, I think, is true with respect to the Drug-Free 
Communities from another perspective, and that is at the local 
level, to be sure that we engage with communities and various 
members of communities, in addition to law enforcement to 
ensure that any of the best practices that are coming out of 
some of the grants that have been funded make their way to 
other communities by way of educating them in ways in which 
they can reduce the use of drugs by our youth, but also deal 
with the other issues that become a blight on our communities 
as a result of the drug trafficking.
    Senator Klobuchar. And one of the things I get concerned 
about, as resources are tight in our local government units and 
people are feeling it everywhere, is just, I've felt that as 
we've seen these reductions in crimes--I know my town of 
Minneapolis went from being called ``Murderopolis'' by the New 
York Times--that was a low point, let's say--in the 1990s, to a 
point where we have reduced the murder rate to really 
incredibly low rates. A lot of it was not just some good 
prosecution, if I would tout our own office, but also of the 
bigger crimes, but the fact that we paid attention to the drug 
crimes and some of the lower-level property crimes.
    With respect to the drug crimes, we had a drug court. When 
I came in there was a lot of distrust from the police of the 
drug court, and it's still not perfect, but we ended up taking 
the gun cases out of it and tried to focus more on some of the 
lower-end users, with the idea being not to give them a free 
pass, but to have that continuing checking and handling things 
    As I say that, I always balance that with, we want to make 
sure there's carrots, but also sticks in the enforcement. So if 
you could talk about drug courts, and then just your view of 
some of that low-level enforcement in general.
    Mr. Tucker. Sure. I'm a huge fan of drug courts, first of 
all. I mean, they've been around for, I guess, about 20 years 
now. And as a result, I think--and they've grown. I mean, 
they've focused. They've become some specialized and focused on 
different areas, but I think the general theme or thesis of 
that that supports the drug court theory makes perfect sense. I 
think we do have to have a balance.
    For non-violent offenders, I think the drug courts have 
proven to be an effective and viable alternative to 
incarceration and to dealing with people who happen to be drug-
addicted, and also happen to be part of the criminal justice 
system. So I would--if--if I'm confirmed, would seek to 
continue to focus on and do what I can to help provide 
resources and support the drug court efforts that are already 
    As I understand it, there is some--has been some reduction 
in funding regarding those courts, so we would try to, I hope, 
bring some evidence-based information that supports more robust 
activities and that would justify additional funding, perhaps, 
for drug courts.
    Senator Klobuchar. Then my last question here is, your job 
also will involve not just local and State efforts, but also 
tribal affairs. We have a number of tribes and reservations in 
our State and there's always cooperation issues. We had a 
horrible shooting at one of our schools on the reservation, 
with a number of children dying. The Federal Government, the 
U.S. Attorney's Office, was very involved in that case and 
working with the tribe. I was just actually up there years 
later, this last summer, and things have much improved there. 
But that being said, talk a little bit about how you're going 
to be able to work with tribal government.
    Mr. Tucker. That's another really important question. I 
have some familiarity with the tribal issues, primarily having 
to do with my experiences at the COPS office. We worked closely 
with the Bureau of Indian Affairs in providing resources during 
that time, the last time I was in Washington. I would hope--I 
guess I would like to know whether or not, and how much more 
has been done since I was here 10 years ago.
    So I was pleased to know that this particular position 
involves my ability to work with tribes as well. Again, my 
whole career is based on this idea of sort of figuring out how 
to collaborate, how to use resources, how to have different 
resources coming from different sources, coming from different 
parts of the system, support for some of the problems that 
    I would hope that through our HIDTAs and through our Drug-
Free Communities, that we would also be able to bring to bear 
some--create some solutions, or additional solutions for some 
of the problems that you cite that may exist and do exist on 
Native American reservations. So I look forward to engaging in 
that part of the process as well.
    Senator Klobuchar. Thank you very much.
    Senator Sessions.
    Senator Sessions. Thank you, Madam Chairman.
    I agree that the drug courts, well run, are very effective. 
I would not favor reduction of funding for that. In fact, I 
would think there are many areas that are less priority than 
the drug courts. They've just got to be run well. It can't be 
an excuse to turn people loose and treat drug offenses as if 
they're not serious. But if properly monitored, many of the 
people who go through those courts do change their lives and do 
better, so I think it's a good program.
    What about the weed-and-seed program? Have you ever had any 
experience with that, Mr. Tucker?
    Mr. Tucker. I did, Senator, when I was at the COPS office 
as well. The weed-and-seed concept, as I remember, was 
effective in some--as is often the case, in some jurisdictions 
and more effective in others. So I'm not sure what the status 
of weed-and-seed is--those projects are now. I recall that the 
intent was to, through the weed-and-seed program, try to 
institutionalize some of the strategies that flowed from that 
particular operation back then.
    Senator Sessions. I would just wrap up, but I know we've 
got a limited time. I would just say, I hope you consider that. 
I saw it in Mobile. There was no money available when we 
started that program. We had a town meeting in the Martin 
Luther King area of Mobile, where crime was--drug crimes 
particularly--were very, very prevalent. The good citizens rose 
up and they said they wanted something done about it. The chief 
of police responded, the mayor responded, the FBI and DEA. 
Nobody had--just priorities. And they worked together and 
developed a plan and completely altered that neighborhood.
    I go there every now and then just to see the progress 
that's been made. It doesn't require a lot of money, but if 
you've got housing money, if you've already got police money, 
if you've got drug treatment money, working all that together 
can really be a positive impact.
    Madam Chairman, thank you for this hearing.
    Ms. Stranch, I would ask you one thing. We need somebody--
the President says, for the nominees to the bench, ``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 poor or African-American, or 
gay, or disabled, or old, and that's the criteria which I'm 
going to be selecting my judges.''
    How does your philosophy--how would you describe your 
philosophy with regard to empathy and the requirements of 
objectivity in judging?
    Ms. Stranch. Thank you. I know that's an important concern 
to people. I can't explain exactly what was the basis of my 
selection, though I am deeply honored to be selected. I would 
say to you that I will be objective and fair, and I do 
recognize that I am bound by existing precedent and by law, and 
that those are the things that will govern my decisionmaking.
    Senator Sessions. Thank you.
    Thank you, Madam Chairman.
    Senator Klobuchar. Thank you very much, Senator Sessions.
    But you will make sure you still have some empathy for your 
husband when he's practicing alone now at the law firm.
    Ms. Stranch. Yes, I will. Thank you.
    Senator Klobuchar. All right. Good.
    Well, I wanted to thank both of you. This was a very good 
hearing. I'm going to put into the record Chairman Leahy's 
statement. He couldn't be here today, but he has a good 
statement about both of you, so I will put that in the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Klobuchar. Also, some letters of support that we 
got in favor of Mr. Tucker, and it is from the president of the 
Police Foundation, the president of the John Jay College of 
Criminal Justice, and from the Major Cities Chiefs Association, 
the National Sheriffs Association, and the Police Executive 
Research Forum.
    [The letters appear as a submission for the record.]
    Senator Klobuchar. The record will remain open for follow-
up questions for 1 week for other members of this Committee.
    So I want to thank you so much for being here and for your 
families. See, you guys? It wasn't that bad, right? OK. Good. 
Thank you so much, and we look forward to working with you in 
the future.
    The hearing is adjourned.
    [Whereupon, at 3:46 p. m. the Committee was adjourned. ]
    [The biographical information, questions and answers and 
submissions for the record follows.]
































































































                             THE PRESIDENT


                      WEDNESDAY, NOVEMBER 4, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2 p.m., Room SD-
226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feingold, Specter, Franken, 
Sessions, and Coburn.

                      THE STATE OF VERMONT

    Chairman Leahy. Good afternoon. As always happens in the 
Senate, there are a half a dozen hearings going on, so you may 
see Senators drifting in and out.
    We will hear from five of President Obama's well-qualified 
nominees, four for lifetime appointments on the Federal bench 
and one for an important position in the executive branch. I am 
especially pleased that we will be able to welcome to the 
Judiciary Committee today Judge Christina Reiss from Essex 
Junction, Vermont.
    Judge Reiss was nominated by President Obama to a seat on 
the District Court in Vermont, and when confirmed, as I'm 
certain she will be, she will be the first woman to serve on 
that court. I was honored to recommend Judge Reiss to the 
President and I look forward, at the appropriate time in the 
proceeding, to introduce her to the Committee.
    I would also welcome to the Committee Victoria Espinel, who 
is nominated to be the first Intellectual Property Enforcement 
Coordinator in the Executive Office of the President. She will 
bring an incredible breadth of experience. It's an important 
new Senate-confirmed position, created by legislation that I 
shepherded through the last Congress, so we can better enforce 
intellectual property protections. The notion of a coordinator 
was strongly pressed by Senators Bayh and Voinovich, and I look 
forward to when they can introduce Ms. Espinel to the 
    All of the judicial nominees appearing before the Committee 
today are from the home State of members of this Committee. We 
welcome Abdul Kallon, who has been nominated to serve in the 
Northern District of Alabama, the home State of the Committee's 
Ranking Member, Senator Sessions. His nomination also has the 
support of Senator Shelby.
    We will welcome Justice Louis Butler, who is the first 
African-American to serve on the Wisconsin Supreme Court and, 
if confirmed, will be the first African-American to serve in 
the Western District of Wisconsin. He'll be introduced by two 
members of this Committee, his home State Senators, Senators 
Kohl and Feingold.
    Judge Thomas Vanaskie from Senator Specter's home State of 
Pennsylvania has been nominated to a seat on the Third Circuit, 
having served for more than 15 years in the Middle District of 
Pennsylvania. Senator Specter and Senator Casey will introduce 
Judge Vanaskie to the Committee.
    I would hope that each would be treated well by the 
Committee and receive the prompt consideration these 
nominations deserve. We have tried to hear nominations in 
regular order, and I think that we will continue to do so. I 
wish the Senate as a whole would be able to do that. We do know 
that Senate Republicans began this year threatening to 
filibuster every judicial nominee of the new President.
    I've been here 35 years. I've never heard that done by 
either party, for a President of either party. Back through 
history, I never found an incidence of that. Apparently the 
only time such a threat has ever been made has been against 
President Obama's nominees, and I think it's unfortunate. It's 
even more unfortunate they followed through on that threat by 
obstructing and stalling the process, delaying for months the 
confirmation of well-qualified consensus nominees.
    Last week, the Senate was finally allowed to consider the 
nomination of Judge Irene Berger, who had been slowed up by the 
other side. She's now been confirmed as the first African-
American Federal judge in the history of West Virginia. We had 
to fight for 3 weeks while it was being stalled after her 
nomination had been endorsed unanimously by the Judiciary 
    Incidentally, after blocking it, when we finally were able 
to force an actual roll call vote where people could not block 
it anonymously but actually had to vote, she was confirmed 97 
to nothing. There's been no answer to why they have subjected 
this qualified nominee to weeks of unnecessary delay.
    Why did it take 3 weeks and 2 hours to debate for the 
Senate to consider the nomination of Roberto Longe to the 
District of South Dakota after his nomination was reported 
unanimously. And when we finally were allowed to vote and 
people could not use anonymous holds back, so you had to stand 
up and either vote ``aye'' or ``no'', it voted 100 to zero for 
    I wonder why the Senate has confirmed only a single Circuit 
Court nomination, when there are five, stalled by Republicans 
on the Senate executive calendar, including two that have been 
pending since June. It is November 4th. By this date, in 
President George Bush's first year in office, the Senate, 
controlled by Democrats, confirmed a total of 12 lower court 
judges, including four Circuit Court judges. I know, because 
that July I began serving as Chairman of the Committee, and in 
17 months confirmed 100 of President Bush's nominees.
    We did that in spite of the attacks of September 11th, 
despite the anthrax-laced letters sent to the Senate that 
closed our offices, one directed to me which killed at least 
two people, and while working virtually around the clock on the 
PATRIOT Act for 6 weeks.
    But unlike the speedy way that the Democrats confirmed 
President Bush's nominees, the Republican Minority has only 
allowed action on four judicial nominees to the Federal Circuit 
and District Court.
    We reduced judicial vacancies as low as 34 last year, even 
though it was the last year of President Bush's second term, 
and of course could not be re-elected. Now those vacancies have 
doubled. There are 96 vacancies in our Federal Circuits and 
District Courts, and 23 more have been announced, approaching 
record levels.
    The American people expect more of the conscience of the 
Nation from the U.S. Senate. We now have held hearings for 19 
of President Obama's nominees for District and Circuit Court 
vacancies. We've reported 14 of these nominations favorably. 
With the cooperation of Senator Sessions, we can continue the 
progress we're making on this Committee. We should not be 
delayed then for months because of anonymous holds, especially 
when people have to actually step forward and no longer hide 
because anonymity and they then vote for the people they've 
held up.
    Senator Sessions, did you wish to----
    Senator Sessions. Well, I don't really wish to get in a 
tit-for-tat over the confirmations, but I would note that there 
are 98 vacancies, according to our calculations, and only 22 
nominations. Some of those are going through background checks 
or review and I am sure we will move them forward. I would 
expect I will vote for well over 90 percent of these nominees, 
as I did for President Clinton. I think we'll move forward with 
them. We've got a nominee I think the Majority is holding up--I 
don't know why--Beverly Martin. I just happened to learn the 
other day, that one's been sitting, ready to be voted on. We 
ought to do that now.
    I would say that there are a few nominees that are going to 
be controversial and we're going to have a lot of debate about, 
but most--I agree with you, Mr. Chairman, if we get them 
nominated, then we'll evaluate them and the good ones we'll 
move forward, and the non-controversial ones will.
    I look forward to this hearing, and maybe we can move some 
more, and one I know is a good one and I intend to support.
    Chairman Leahy. Well, let me--we're going to have 
introductions, and I'm going to do this the usual way, by 
seniority. I will introduce Judge Reiss and Ms. Espinel. 
Senator Specter will introduce Thomas Vanaskie. Senator Kohl 
will introduce Louis Butler, followed by Senator Feingold, 
followed by Senator Sessions for Abdul Kallon, and then 
followed by Senator Casey for Thomas Vanaskie.
    Let me--we're trying to do this fairly, by seniority. I am 
proud to introduce to the Committee a fellow Vermonter, Judge 
Christina Reiss. Judge Reiss will be taking the chair at an 
appropriate point and will be able to introduce her family. 
Judge Reiss lives in Essex Junction, Vermont. She's been 
nominated to serve on Vermont's Federal District Court.
    As I stated before, if confirmed, she'll be the first woman 
to do so. She has considerable criminal and civil experience. 
For the past 5 years she's been a State trial court judge in 
Vermont. I would note, incidentally, that was a position to 
which she was appointed by Governor Jim Douglas, a Republican, 
and confirmed unanimously.
    She formerly was a partner in two Vermont law firms. She 
earned her B.A. from St. Michael's College, a wonderful 
college. I graduated from there, and Erica Shebeaux, the press 
secretary of this Committee, did. She earned her J.D. with high 
honors from University of Arizona College of Law. She was 
editor-in-chief of The Law Review.
    I recommended Judge Reiss to President Obama after she 
excelled in her interviews before a Vermont judicial nominating 
commission. She demonstrated in those interviews she could 
relate to litigants of many backgrounds. She has a keen 
understanding of the powerful role a judge plays in the lives 
of litigants before her. She acknowledged how important it is 
for judges to possess humility, as well as an understanding of 
the effects legal rulings have on people's lives.
    I told her, the only criteria I have for a judge, other 
than the obvious legal abilities, is that if I was representing 
a litigant, either as plaintiff or defendant, poor, rich, 
Republican, Democratic, Independent, whatever, if I came before 
that judge I could look and tell my client, you will have a 
fair hearing; you will win or lose based on the law and the 
    Judge Reiss is the type of person I could say that very 
easily about. She's known for her strong intellect, her 
diligence, her well-reasoned decisions. She has an excellent 
reputation among the advocates who have appeared before her, as 
well as among courthouse staff. As a testament to her 
reputation among her fellow judges, she was recently selected 
to be the presiding judge over Vermont's busiest State 
courthouse this September.
    I noticed that the Chief Federal Judge of Vermont, Judge 
William Sessions, is also here for this hearing. I hope that 
while I am very proud of her as a Vermonter, being the 
presiding judge in Vermont's busiest State courthouse, I'm 
looking forward to when she hits the Federal courthouse in 
Rutland to serve as the U.S. District Court judge. So, I 
congratulate you, and welcome you and your family. 
Incidentally, on a personal note, I know how proud your father 
was of you. I know how proud he would be. We have to assume 
he's looking down to see you.
    We will also welcome Victoria Espinel to the Committee. Ms. 
Espinel is nominated to be the Nation's first Intellectual 
Property Enforcement Coordinator, a Senate-confirmed position 
created by legislation I authored last Congress. Five other 
Senators on this Committee also co-sponsored this legislation 
that takes a comprehensive approach to intellectual property 
protection. It provides Federal, State, and local law 
enforcement tools and resources they need to combat 
intellectual property theft. The nomination of Ms. Espinel 
shows that the administration is serious about protecting 
intellectual property to spur our economy, create jobs.
    Ms. Espinel has extensive experience with intellectual 
property issues, both foreign and domestic. She worked on these 
issues in and out of government. President Obama picked her, 
knowing about that experience, including service in the Bush 
administration as the Assistant U.S. Trade Representative for 
Intellectual Property and Innovation. She's currently the 
president of Bridging the Innovation Divide, a nonprofit 
organization she founded to further intellectual property 
education in minority communities.
    She's an Assistant Professor of Intellectual Property and 
International Trade at George Mason University School of Law. 
She earned her B.S. from the Georgetown University School of 
Foreign Service. Her Juris Doctoris--and I'm glad to see--I 
don't know if this just is coincidence--is from my other alma 
mater, the Georgetown University Law Center, and her LLM, with 
merit, from the London School of Economics and Political 
    I will now yield to Senator Specter to introduce Thomas I. 
Vanaskie to be a Judge in the U.S. Court of Appeals for the 
Third Circuit.


    Senator Specter. Thank you, Mr. Chairman. I join my 
distinguished college, Senator Casey, in presenting to this 
Judiciary Committee the nomination of Judge Thomas Vanaskie to 
be a Judge of the Court of Appeals for the Third Circuit.
    In January of 1994, I had the pleasure of presenting then-
citizen Tom Vanaskie to the Judiciary Committee and he was 
confirmed. He has had 15 illustrious years on the U.S. District 
Court for the Middle District. He has excelled there. I have 
watched his progress and have been proud to have been a part of 
his recommendation to the President, President Clinton, and 
join Senator Casey in recommending Judge Vanaskie for the Court 
of Appeals for the Third Circuit.
    He brought to the bench and outstanding academic and 
professional record: a Bachelor of Arts degree, cum laude, from 
Lycoming College; J.D. from Dickinson School of Law, magna cum 
laude; was on The Law Review editorial staff; and has been 
recommended by the American Bar Association unanimously as 
being Well-Qualified.
    There is a great deal that could be said about Judge 
Vanaskie, but I think his record speaks for itself. Racip 
salupiter. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Kohl, you, I understand, wish to introduce Mr. 


    Senator Kohl. Thank you so much. It is my pleasure today to 
welcome and introduce Justice Louis Butler to this Committee. 
We also welcome several members of the family here with us 
today. As those who do not know Justice Butler will soon learn, 
he is an exemplary lawyer whose legal career has been 
distinguished across the board, from advocate to judge, to 
Wisconsin Supreme Court Justice. Justice Butler was born and 
raised in Chicago, but he has been a Wisconsinite for more than 
35 years. He received his B.A. from Lawrence University, and 
his law degree from the University of Wisconsin.
    Justice Butler served for more than 13 years in the State 
Public Defender's Office, where he argued hundreds of cases on 
behalf of indigent clients. Justice Butler was an accomplished 
advocate and was the first Wisconsin Assistant Public Defender 
to argue a case before the U.S. Supreme Court.
    In 1992, Justice Butler joined the Milwaukee Municipal 
Court, where he served for 10 years before becoming a trial 
court judge. He was a judge in the Milwaukee County Circuit 
Court, until being appointed to the Wisconsin Supreme Court in 
2004. Over his many years on the bench he has earned a 
reputation of being a tough, but fair, jurist. Justice Butler 
not only has an impressive legal background, but he is a fine 
man. He's a deeply committed man to his family, to his 
community, and to the law. He possesses all the best qualities 
that we look for in a judge: intelligence, diligence, humility, 
and integrity. We are confident that the people of Madison, and 
all of Wisconsin, will be enormously proud of him and that he 
will serve us all well.
    Justice Butler's nomination proves once again that the 
process we use in Wisconsin to choose Federal judges ensures 
excellence. The Wisconsin Federal Nominating Commission has 
been used to select Federal judges and U.S. Attorneys in 
Wisconsin for 30 years. Through a great deal of cooperation and 
careful consideration and by keeping politics to a minimum, we 
always find highly qualified candidates like Justice Butler.
    Justice Butler, we are pleased to have you with us today 
and look forward to your testimony.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Kohl.
    Senator Feingold.


    Senator Feingold. Thank you, Mr. Chairman.
    I, too, am honored to introduce Justice Louis B. Butler, 
Jr., and I'd like to add my congratulations to this 
extraordinary public servant. Louis Butler, as was mentioned, 
was a former justice on Wisconsin's highest court. He has been 
appointed by President Obama to serve as a U.S. District Court 
Judge for the Western District of Wisconsin. Senator Kohl has 
already reviewed his academic background. I would add that he 
was also awarded an honorary Ph.D. in Humanities from his alma 
mater, Lawrence University, in 2007.
    During his career, Butler has served as an advocate, a 
teacher, a judge, and a mentor. In the words of President 
Obama, ``Butler has dedicated his career to public service'', 
and ``he has displayed unwavering integrity and an unyielding 
commitment to justice.''
    Upon his nomination, Justice Butler received a unanimous 
``Well-Qualified'' rating from the American Bar Association.
    Justice Butler has had an impressive legal career, and 
Senator Kohl outlined the highlights of it already. I noticed, 
since the Judge is, in fact, somebody I've known as a personal 
friend for many years, I was able to get to know him personally 
and see, for example, his manner and approach during his 10 
years as a judge in Milwaukee, Wisconsin's largest and most 
diverse metropolitan area, and he was re-elected three times to 
that. Then he was elected to the Milwaukee County Circuit Court 
in 2002, and then fortunately Governor Doyle appointed him to 
the Wisconsin Supreme Court.
    Justice Butler's appointment marked an important moment in 
Wisconsin history, as he became the first African-American to 
serve on the court. Because of his background, he brought a 
unique perspective to the court, but he recognized that his 
overriding goal should be, as he put it, ``to treat every 
litigant fairly and equally and apply the law without bias in a 
neutral, detached, impartial, and independent manner.'' Justice 
Butler has written, ``I first became a lawyer, then a judge, 
because I am dedicated to achieving equal justice for all 
people, including the downtrodden and those who lack resources. 
I embrace the sentiment that injustice to anyone is intolerable 
and that everyone should have access to the courts and a right 
to be heard.''
    Mr. Chairman, I believe these words are a very appropriate 
calling card for a U.S. District Court Judge, and I strongly 
support Justice Butler's nomination.
    Chairman Leahy. Thank you very much.
    Senator Sessions, you wished to introduced Mr. Kallon.
    Senator Sessions. Thank you, Mr. Chairman.
    I see Senator Casey here. I'm going to be here through the 
end of the hearing. If his schedule is such that he would like 
to, I would yield to him at this time.
    Chairman Leahy. I appreciate it, because Senator Casey has 
been extraordinarily helpful to this Committee. He's been 
extraordinarily helpful to the White House in helping to vet 
who the nominees might be. We've had many talks. Of course, 
he's one of the most respected members of the Senate, so I 
thank you very much for that courtesy.
    Senator Casey.


    Senator Casey. Mr. Chairman, thank you very much. I want to 
commend your work as Chairman of this Committee. I am honored 
to appear here. I want to especially thank Ranking Member 
Sessions for letting me jump the line. It doesn't happen too 
often in the Senate, and we're grateful.
    And to the other members of the Committee, my distinguished 
colleagues, and of course my colleague from Pennsylvania, 
Senator Specter, we're honored to be with him today.
    I'm also grateful for the nomination of Judge Vanaskie made 
by President Obama. We're grateful for that nomination. Senator 
Specter gave a good summation of Judge Vanaskie's academic 
record, as well as his experience. I'll just add a few words to 
    Tom Vanaskie is someone I've known a long time. He's a son 
of the coal country of Northeastern Pennsylvania, a place where 
many of us have been exposed to what I would say was a history 
and a heritage of hard work and sacrifice. In Tom's case, 
growing up in a region like that, he dedicated himself at a 
very young age to that hard work and sacrifice that I spoke of 
    His academic record is beyond stellar, a record of academic 
achievement and excellence that few could claim, whether it was 
graduating with honors from Lycoming College or graduating with 
honors as well from law school at Dickinson, serving on The Law 
Review, and then clerking for Judge William Neelon, someone who 
has had a long and distinguished career on the bench, himself 
appointed to the bench by President Kennedy and had high 
standards for his clerks. I know just from that of Tom's 
    Judge Vanaskie, after his clerkship, worked in several law 
firms in Pennsylvania, one of them just happened to be the 
Dilworth law firm where my father was practicing at the time. 
Although my father was a public official for a good part of his 
adult life, he probably spent more years as a lawyer. I know of 
his ability as a lawyer. He was an excellent lawyer and 
demanded high standards of those around him.
    I think I probably, if I could speak for him in this way, 
would say that he had the highest regard for Tom Vanaskie's 
ability, his intellect, but also his work ethic, two critically 
important characteristics of a successful lawyer, and now we 
know as a successful judge the last 15 years.
    He served, as Senator Specter said, since 1994 on the U.S. 
District Court for the Middle District of Pennsylvania, was 
made the Chief Judge in 1999, appointed to the Information 
Technology Committee of the Judicial Conference of the United 
States by Chief Justice Rehnquist, and I think, in conclusion, 
I'd say if you look at his academic record, his work as a 
lawyer, and now his work for 15 years as a judge, there are a 
couple of ways to describe all of those and I think is a 
forecast of what he would do on the U.S. Court of Appeals for 
the Third Circuit.
    The following, I think, distinguishes him: excellence, 
knowledge of the law, fairness, temperament, and character, all 
of the elements or all of the characteristics that we would 
hope every judge possesses. So I am honored, both honored and 
proud, to recommend to this Committee the confirmation of Judge 
Thomas I. Vanaskie for the U.S. Court of Appeals for the Third 
    Thank you.
    Chairman Leahy. Well, thank you, Senator Casey. The 
recommendation means a great deal. As you know, the admiration 
I had for your late father, what you say about him, that 
carries also a great deal of weight. I also know that you have 
a back-to-back schedule the rest of the afternoon and will have 
to be leaving us, but I appreciate you being here.
    So, Mr. Vanaskie, if you would step forward, please. I 
should say Judge Vanaskie. Please raise your right hand and 
repeat after me.
    [Whereupon, the witness was duly sworn.]
    Chairman Leahy. Thank you. Please sit down, sir.
    Judge, did you have an opening statement that you wished to 


    Judge Vanaskie. Senator Leahy, I do not have an opening 
statement. If I could be so bold as to request to introduce 
some of the members of my family who are here today.
    Chairman Leahy. Of course. Please. Please do so, sir.
    Judge Vanaskie. I'm awfully proud to say that my mom, who 
will be 86 years young later this month, is here with us today, 
Delores Vanaskie. I know my dad, John, is here with us in 
spirit, the World War II Pearl Harbor survivor, a World War II 
veteran who was a great influence on us all.
    My wife, Dot, is here. Dot is a preschool teacher back in 
Scranton, Pennsylvania. Joining us are my daughter Diane, who 
is an English teacher--high school English teacher--in 
Massachusetts, along with her husband, Todd Mulligan, our son-
    Our son Tom is with us as well. He's a recent summa cum 
laude graduate from the Washington College of Law at American 
University, and now clerking for Hon. Royce Lamberth, Chief 
Judge of the D.C. District Court.
    I know my daughter Laura, and architectural historian and 
architect/designer in Southern California is with us by 
webcast, and I want to commend the Committee for making these 
proceedings available, and so accessible and so transparent.
    Also with me today is my oldest brother, Dr. Michael 
Vanaskie, a child psychologist in Concord, New Hampshire, and 
my sister, Mary Lou Osevala, who runs a cardiac care unit at 
the Hershey Medical Center, and with her is her husband, Ron. I 
have a number of friends and others, and workers who are with 
us here today as well, including Joe Gaughan, Marty Pane, Tawny 
Alvarez and her husband Greg, Tom Brown, who practiced law with 
me for a long time, Kyle Elliott, one of my current law clerks, 
Shintaro Yamaguchi, who was a former law clerk of mine, and 
others, and I thank them for being here.
    Chairman Leahy. Would they all please stand up, the ones 
just introduced by Judge Vanaskie. Boy, you sure know how to 
pack a room.
    Chairman Leahy. Thank you all for being here. I am not 
singling anybody out particularly, but having your mother here 
must be of particular pleasure. I know, to have at least my 
first two terms in the Senate, my parents there was very 
special, both for them and for me.
    Judge Vanaskie. It certainly is, Senator. It was certainly 
special to have our father, my dad, with us 15 years ago when I 
had my first confirmation hearing.
    Chairman Leahy. I was going to say, that was--I know the 
record showed that he was there, and I appreciate that.
    Now, the courts, Judge, as you know as well as anyone, with 
your extensive experience on the bench, are the one 
undemocratic branch of our government--undemocratic in the 
sense that you're appointed and that's it, you're there for 
life. So I think that they have a special duty to the American 
people, especially the people who have the least amount of 
power and least amount of protection.
    Now, you have had 15 years on a trial court, a very active, 
real one. I've read the background of the cases you've held, 
and all. What has that done to teach you about the difference 
in backgrounds in people and the need to be sensitive to them?
    Judge Vanaskie. Well, it's taught me a lot, Senator. It's 
taught me a lot in terms of being sensitive to the different 
backgrounds that people bring, to the different circumstances 
in which they find themselves that result in a controversy, 
being in a court of law. I come from a blue collar background 
and so I'm certainly sensitive to the fact of economic 
    But more importantly, I've learned a lot about cultural 
differences that are brought to bear on the cases that must be 
adjudicated. I've learned that you must try to understand that 
those differences exist in looking at the motivations of those 
who appear before you. So I think, if anything, it's caused me 
to be more sensitive to things that, as a practicing lawyer, 
maybe I didn't pay enough attention to, sir.
    Chairman Leahy. Well, even as a practicing lawyer, did you 
have cases where somebody had to stand up for what would be 
considered the less powerful against the more powerful?
    Judge Vanaskie. I did, Senator. I accepted court 
appointments. I represented an inmate who was challenging the 
legality of long-term administrative segregation. I was 
appointed by the Court of Appeals to argue that matter before 
the Court of Appeals and brief that. I represented individuals 
in employment discrimination cases, both in terms of gender 
discrimination--a woman who had applied to become a police 
officer and had scored the highest on the civil service exam 
but was not selected, and we were successful in that endeavor. 
I represented individuals in age discrimination cases, 
including my father in an age discrimination case.
    Chairman Leahy. Well, Judge, you also--I've noticed in 
recent decades we've had a very activist Supreme Court, 
especially in the last 10 or 15 years. They've struck down an 
unprecedented number of Federal statutes, most notably several 
designed to protect the civil rights of Americans beyond 
Congress' power under Section 5 of the Fourteenth Amendment, as 
far as Flores v. City of Boerne.
    Senator Specter, I, and several others have talked about 
the Supreme Court basically legislating. During the argument on 
the Voting Rights Act, it looked like some were about to strike 
down a key provision on the Voting Rights Act. There was a very 
significant outcry across the country and they limited, from 
what appeared from their questions, what they were going to do.
    But they, in recent decades, struck down statutes as being 
outside the authority granted Congress by the Commerce Clause, 
such as U.S. v. Lopez, U.S. v. Morrison, and then in 2005 we 
have Gonzalez v. Raish. What's your understanding of the scope 
of Congressional power under Article 1 of the Constitution, 
particularly the Commerce Clause. I fully understand that as a 
Court of Appeals judge, you are bound by decisions of the 
Supreme Court. But what is your understanding of Congressional 
    Judge Vanaskie. Well, Senator, in reference to the Commerce 
Clause, my understanding of Congressional power is that it is 
extremely broad and that deference must be given to 
Congressional judgments based upon Commerce Clause powers, 
supported by findings of fact, so that in my judgment, the 
power is extremely broad.
    Chairman Leahy. We have heard nominees, especially for the 
Supreme Court, speak of reliance on stare decisis, 
understanding of course the Supreme Court can overrule even 
their past decisions. But would you please give me your 
philosophy on stare decisis?
    Judge Vanaskie. Yes, Senator. With respect to stare 
decisis, I believe that the stability of the law depends upon 
lower courts following the pronouncements of higher courts, and 
that stare decisis is an important, important principle in our 
system of justice. Litigants and the public need to know that 
they can rely upon courts following precedents that are 
controlling or governing in a particular situation, and so it's 
a bedrock principle, as far as I'm concerned, of our system of 
justice, and that is that stare decisis is to be--is to be 
respected. I think that any approach to the decision of a case 
has to--has to take that into account, has to recognize that.
    Chairman Leahy. Thank you. You know, I'm always looking at 
the question of checks and balances. We have the Congressional 
check, we have Congressional oversight, but we also have the 
courts as checks against abuse of executive or Congressional 
powers. You'll be in a stronger position in the Court of 
Appeals. I assume, based on everything I've heard about you, 
everything I've read about you, that's a responsibility you're 
willing to take on and exercise. Is that correct?
    Judge Vanaskie. It is a responsibility that I am willing to 
take on and exercise, Senator, but it's also one that I 
recognize, the authority has to be exercised very carefully and 
only under very extreme circumstances.
    Chairman Leahy. Thank you very much, Judge.
    Senator Sessions.
    Senator Sessions. Judge, congratulations on your 
nomination. To follow up on Senator Leahy's questioning, you 
recognize, do you not, that the Constitution is the supreme law 
of the land and you're bound by that?
    Judge Vanaskie. Absolutely, sir. I took an oath to defend, 
obey, and show true faith and allegiance to it.
    Senator Sessions. And as a Court of Appeals judge, you're 
bound by the plain holdings of the U.S. Supreme Court with 
regard to the Constitution.
    Judge Vanaskie. Yes, sir.
    Senator Sessions. Judge, in 2007, you spoke before an adult 
education class regarding the current sentencing regime and the 
disparity between crack and powder cocaine. I agree with you 
that that disparity is too great and have offered legislation 
for almost 10 years now to fix it, and maybe this year we will 
be able to do that.
    In your remarks, though, you suggested that the 
International Convention on the Elimination of All Forms of 
Racial Discrimination, which prohibits signatories from having 
laws that have ``an invidious discriminatory impact regardless 
of intent'' could be used to challenge that Congressionally 
passed law.
    You then cited Supreme Court cases of Lawrence v. Texas and 
Roper v. Simmons as a precedent for that. And with respect to 
Lawrence you said, talking about the Supreme Court in Lawrence, 
``The court utilized international law to strike down an unjust 
domestic statute.'' And with respect to Roper you said, 
``Because of the overwhelming international consensus 
prohibiting this practice, the court found that it violated the 
Eighth Amendment'', Roper being the death penalty for minors, 
is that correct?
    Judge Vanaskie. That's correct, sir.
    Senator Sessions. Well, these were established laws of the 
United States. As the crack/powder--I feel like we need to fix 
it, but we haven't been able to get it done. But do you think 
that if you feel like a statute is unjust, that you can look 
around the globe and see if you can find a global opinion and 
that that would justify you striking it down?
    Judge Vanaskie. Senator, thank you for that question. No, I 
don't think that if I feel a law is unjust I could look around 
to see how that particular matter has been handled by other 
foreign nations. In the context of that particular talk I gave 
at a class, my reference to the International Covenant on 
Elimination of All Forms of Racial Discrimination was from an 
academic perspective and was just suggesting a type of argument 
that may be made, recognizing that in the intervening years the 
Supreme Court has made decisions in the crack cocaine area that 
have changed how judges may approach that particular disparity 
in terms of the 101:1 ratio.
    So, no, sir, Senator. I do not believe that you can, 
because you feel a law is unjust, look to international 
    Senator Sessions. Well, you know, when they talk about 
``overwhelming international consensus'', first, I don't know 
there is one on this subject. And usually when people say that, 
they usually mean somewhere in the world they can find some 
people who agree with them. No surveys are done on this. We 
also make reference to the world community. I'm not sure they 
call a roll and have the world community vote. People just say 
``the world community thinks this and that.''
    I just would--I'm glad--I think your answer is respectful 
of the Constitution. I hope--I believe--it is on what you just 
said. But I do think we have to understand that judges, do you 
not agree, regardless if there is a world opinion contrary, 
your obligation, your oath is to render your verdict under the 
Constitution of the United States.
    Judge Vanaskie. I understand that, sir.
    Senator Sessions. You also said in a speech, ``I also 
propose that the rule of law is best preserved by a model of 
judicial restraint, and that the executive and legislative 
branches are in the best position to make policy judgments.'' 
Do you still stand by that?
    Judge Vanaskie. I still stand by that. Yes, sir.
    Senator Sessions. Good. And you stated that judicial 
restraint is intended ``to assure that decisions are not based 
upon personal values or preferences but are instead made 
according to law,'' and I think those are good statements.
    Thank you, Mr. Chairman. My time is up.
    Chairman Leahy. Thank you, Senator Sessions.
    Senator Kohl.
    Senator Kohl. Judge Vanaskie, although you're bound by the 
precedent of your circuit and the precedent of the U.S. Supreme 
Court, as a Federal judge you will be called upon to decide 
cases where there is no precedent or where the precedent does 
not clearly determine the outcome. How do you intend to 
approach these kinds of cases?
    Judge Vanaskie. I intend to approach those kinds of cases, 
Senator Kohl, in the way that I would approach any particular 
issue: first, with utmost impartiality; second, with careful 
attention to the language that has been chosen at the 
instrument that is under consideration, the document, whether 
it be the Constitution, or a statute, or a contract; the 
apparent purposes of the instrument in question; the parallel 
provisions that may exist in that particular instrument to try 
to understand what may be intended by the language that has 
been used in that particular instance that's under 
consideration; the precedent that may be analogous to it, or 
precedent from other jurisdictions that may help to form a 
better understanding--when I say ``other jurisdictions,'' other 
courts of appeal is what I'm referring to--and all of those 
factors, as well as traditional understandings, traditional 
sources of laws.
    Senator Kohl. All right.
    How would you describe your judicial philosophy?
    Judge Vanaskie. I would describe, Senator Kohl, my judicial 
philosophy along those lines, that is, one where, first, it is 
important that the jurist approach every matter, both with 
impartiality and the appearance, the utmost appearance of 
impartiality, fairness, and even-handedness and openness, 
receptiveness to considering the arguments of each party that 
is presented to you for purposes of understanding the argument 
and making sure that each litigant understands they've received 
a fair hearing, and left with the understanding that, 
regardless of the outcome, they've been treated with the 
respect and fairness to which they're entitled.
    Senator Kohl. Judge Vanaskie, you've been a trial court 
judge for 15 years now. If you're confirmed as an appellate 
court judge, you'll be sitting on panels of three judges, and 
in order to form a majority opinion, will need to convince at 
least one other judge to agree with you. How will you approach 
this difference in decisionmaking? How will you seek to reach 
consensus with your colleagues?
    Judge Vanaskie. Thank you, Senator Kohl, for that question. 
I've thought a lot about that. I've had the occasion now to 
sit, by designation on the U.S. Court of Appeals for the Third 
Circuit, three times in the last 3 or 4 years, so I've been in 
that position where I have engaged in the discussions where an 
attempt is made to reach common ground on particular issues. I 
would try to use the power of persuasion.
    My analysis of the facts and my understanding if the law, 
in order to try to reach a majority, or preferably unanimous 
conclusion with respect to the matter. Failing that, if I'm 
unable to convince another person, then I hope to have the 
courage to write an appropriate opinion that expresses my point 
of view.
    Senator Kohl. Very good.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Specter.
    Senator Specter. Judge Vanaskie, again, congratulations on 
your nomination, and congratulations on your outstanding 
career. It's nice to have so many of your friends and family 
with you today to share in this honor. It's a very nice day for 
you, your family, and for Pennsylvania.
    When you talk about the judicial role to interpret rather 
than to make law, those concepts have been amplified on a 
longstanding debate between original intent as to what the 
founding fathers meant and what the drafters of the amendments 
meant, contrasted, as Palko would say, with the changing values 
of a society.
    It comes into sharp conflict, say, with original intent on 
the Fourteenth Amendment, adopted in 1868 on equal protection, 
at a time when the Senate galleries were segregated and the 
Senate voted for equal protection. But no doubt they didn't 
have integration in mind on the segregation.
    Now, you may not be called upon to decide cases exactly in 
that framework, but if you were, how would you balance those 
considerations of evolving societal values contrasted with 
original intent?
    Judge Vanaskie. Senator Specter, that is an extremely 
interesting question and one that certainly there is tremendous 
amount of debate in academia. From a judge's perspective, I 
start with an understanding that the Constitution is to be an 
enduring document. It is one that is to be interpreted, first 
with an effort to understand its terms, the apparent purposes 
behind particular provisions.
    Senator Specter. Would that enduring document include the 
intent of the founding fathers over societally evolving values?
    Judge Vanaskie. I think, Senator, to answer your question, 
it would be an attempt to understand how the founding fathers 
would have intended the constitutional provision to be applied 
in the current setting.
    Senator Specter. Judge Vanaskie, have you come across the 
Doctrine of Proportionality and Congruency in an evaluation of 
the adequacy of a congressional record? It used to be 
sufficient to have a rational basis, but more recently the 
Supreme Court has said the standard is ``proportionate and 
congruent''. I've been trying to figure out what that means. 
Could you help me?
    Judge Vanaskie. I'm afraid I cannot, Senator, as I am not 
familiar with that.
    Senator Specter. Well, Judge Vanaskie, as bright as you are 
and as excellent as your record is, if you are familiar with 
it, I don't know your answer would be any different.
    Senator Specter. Have you confronted the situation where 
there have been circuit splits? The Third Circuit has not 
ruled--and I ask this question in the context of the Supreme 
Court having turned down circuit splits. I pressed for a long 
time to require the Supreme Court to be televised, and I'm 
about to modify that approach with a sense of the Senate 
resolution to urge the Supreme Court to accept television, to 
have some transparency and accountability.
    You have lifetime appointments and you have virtual lack of 
knowledge anywhere on the intricacies of the Supreme Court, 
unless you're really good at reading footnotes. There are many 
circuit splits where the court doesn't decide it, citizens were 
treated differently depending on where they live, and in other 
circuits which have not decided the district judge would be 
battling, should I follow the Fourth Circuit or the Eleventh 
Circuit. Have you faced that problem?
    Judge Vanaskie. Senator Specter, I certainly have faced 
that problem.
    Senator Specter. Do you like it?
    Judge Vanaskie. I do not like it, sir, because now I'm 
trying to determine what the result would be of our Court of 
Appeals when it finally gets there.
    Senator Specter. Well, now I've set you up for the real 
question of this sequence, Judge Vanaskie, and that is your 
sense of television. I've been questioning many--television in 
the court.
    Senator Specter. Senator Leahy and I have discussed the 
subject for decades, eons, and twice the Committee has voted 
out legislation, once during my tenure as Chairman, once during 
Senator Leahy's tenure as Chairman, and it's been introduced 
again. I've decided to take a little different approach because 
Judge Souter has left the bench, and he said cameras would roll 
in over his dead body. There's a great reluctance in the court 
to go against somebody's view.
    Judge Sotomayor, Justice Sotomayor, testified about a good 
experience she had had. Do you think that television in the 
Supreme Court would inhibit or materially affect the conduct of 
the lawyers or the justices, balanced against the insight that 
it would give to the public as to this great institution which 
has the last word on so many tremendous decisions without any 
transparency, and lifetime appointments? A pretty good 
insulator. What do you think?
    Judge Vanaskie. Well, Senator Specter, it certainly is not 
my call to make. If you are asking for my personal opinion, I 
happen to favor more transparency in court proceedings in 
general. I know what the Judicial Conference policy is, and I 
served as a member of the Judicial Conference. I know the 
policy is to prohibit televised court proceedings. But I think 
we go a long way to opening up and promoting understanding of 
the workings of the courts if we were more open-minded with 
respect to that particular matter.
    Senator Specter. It's hard to do, Judge Vanaskie, but 
you've just won my more enthusiastic support.
    Chairman Leahy. I think, Senator Specter, we had already 
marked him down here as tentatively leaning your way.
    Senator Specter. The Chairman understates things.
    Senator Specter. I have one final question, Mr. Vanaskie, 
which I don't think will be determinative of your nomination. 
But I note in your resume you were inducted into the Shimoken, 
Pennsylvania chapter of the Pennsylvania Hall of Fame, 
recognized as the First Academic All-American in football. Two 
questions. What does that mean?
    Senator Specter. And second, how has it helped you in your 
    Judge Vanaskie. The coal country has a proud tradition of 
its athletics, and it was a great honor for me to be named to 
be part of the Shamoken chapter of the Pennsylvania Sports Hall 
of Fame for my career in football.
    Senator Specter. Were you quarterback?
    Judge Vanaskie. I was a defensive back. I was a safety, and 
I returned punts and kick-offs.
    Senator Specter. You played two ways?
    Judge Vanaskie. In high school two ways, but in college 
just one way.
    Senator Specter. Thank you very much, Judge Vanaskie.
    Chairman Leahy. I would note, Judge Vanaskie, in 35 years 
on this committee, that's the first time I've heard that 
question asked as to what you played, football.
    Chairman Leahy. I would also note that while we tell you to 
always be fair, and careful, and everything else, even on this 
Committee I can make a mistake. I had not seen Senator Coburn 
come in, and he should have gone, followed Senator Kohl. I've 
already apologized to him, but I would note that for the 
record. I'm rather scrupulous trying to protect everybody's 
rights on this Committee.
    So, Senator Coburn.
    Senator Coburn. Well, welcome.
    Judge Vanaskie. Thank you, Senator.
    Senator Coburn. I have a few questions for you.
    The first one I would ask, you just agreed that the power 
under the Commerce Clause is very broad. Can you give me your 
opinion as to what limitations the Constitution places on this 
power to regulate interstate commerce?
    Judge Vanaskie. Senator Coburn, that, again, is a very 
interesting question and one that certainly divides the courts, 
not only academic community. I'm not sure I can give you a 
definition. I think part of the problem is trying to determine 
where the line should be drawn.
    Senator Coburn. How about the limitations that you would 
    Judge Vanaskie. I suppose, Senator, in the abstract, there 
must be--since it is the power to regulate commerce, there has 
to be a determination as to when commerce is impacted by the 
particular congressional enactment, if that is the found of the 
authority for the congressional enactment. And I know there 
have been Supreme Court decisions--they were mentioned, Lopez 
and Morrison--which drew lines and determined that they were 
beyond the authority of Congress under the Commerce Clause. I'm 
not prepared, sir, to say that those were appropriately drawn.
    Senator Coburn. That's fair.
    The reason that question is important to me is, we're 
debating health care bills that are going to mandate a fine, a 
tax on individuals in this country if in fact they don't 
purchase something that we think they should be forced to 
purchase. So it may be something that's very much in front of 
you in the next year or so, as I'm sure somebody's going to 
challenge that if it gets through this institution.
    I want to go to a couple of things that I go to with every 
Circuit Court nominee, and it has to deal with the utilization 
of foreign law. Can you state for me anywhere you find in our 
founding documents, the Constitution, or even the Federalist 
Papers, any authorization for a Federal judge to use a 
consideration of what other countries think in their legal 
system in terms of interpreting our codes, our Constitution, 
and our treaties?
    Judge Vanaskie. Senator, I couldn't cite to you anything in 
the Constitution or in the Federalist Papers, but I don't 
pretend to be an expert on the Federalist Papers, other than 
perhaps 78 and 79 that deal specifically with the judiciary, 
and I cannot think of anything that would be in there.
    I do think, however, that when it comes to treaty 
obligations, a common source of interpretation of treaty 
obligations can be how other member nations have applied 
certain provisions that may be an issue or that may not be 
clear. I will say to you, Senator, that in one case I had I did 
cite to decisions from other states--that was the Kazam case--
because at issue in that case was the Convention Against 
Torture, whether, for example, in our case, whether diplomatic 
assurance could be deemed reliable so as to enable a state to 
return an alien, I looked to foreign--to authority of foreign 
jurisdictions for purposes of deciding how other states have 
handled diplomatic assurances. In that case, I found other 
states recognized the authority of diplomatic assurances and 
therefore we could recognize diplomatic assurances.
    I looked at it from another perspective as well, and that 
is what other states have done in terms of addressing the 
argument that there could be no impartial review of the 
reliability of a diplomatic assurance, and looked at, when the 
argument is made--when the argument in our case was made that 
it would interfere with the executive's foreign relations 
prerogative, and I did rely on authority not in terms of any 
binding precedent but in terms of understanding--certainly it 
would never be binding, but in terms of understanding how other 
jurisdictions, how other states had considered that particular 
    Senator Coburn. Fair enough.
    Do you believe that there is a--believe the right to self-
defense is a fundamental right? I'll put it in doctors' terms. 
Do you believe I, as an individual, have a fundamental right to 
defend myself, my body, my person?
    Judge Vanaskie. I think, in terms of a right of self-
defense, it depends upon the context and circumstances and I'm 
not prepared to answer that particular question in terms of the 
hypothetical you gave in terms of an infant. I haven't--I know 
it is a very important issue and one that may come before the 
    Senator Coburn. I'm not sure I mentioned infant. I'm just 
talking about me personally. Do I have a personal, fundamental 
right to self-defense?
    Judge Vanaskie. I think if you're----
    Senator Coburn. Sitting here right now.
    Judge Vanaskie. I think if somebody attacked you, you would 
have a fundamental right of self-defense.
    Senator Coburn. All right. Thank you.
    Do you believe the right to bear arms is a fundamental 
    Judge Vanaskie. I--I think it is a right that has been 
recognized by the U.S. Supreme Court. I think how that right is 
applied in particular instances with respect to particular 
types of weapons is an issue that still needs to be addressed 
and still needs to be resolved, and I think certainly there's 
legislative authority in that area.
    Senator Coburn. Okay. Thank you.
    What principles of constitutional interpretation would you 
look to in analyzing whether a particular statute--and you can 
think of any one that you've got--infringes on some individual 
right guaranteed in the Constitution? Just kind of walk me 
through your thought process or the principles that you would 
use to lay that out and discover that for yourself and apply 
the law.
    Judge Vanaskie. With respect to a law that implicates a 
particular right, I would look to the Constitution to see what 
purpose was intended to be served by that particular right, how 
it was valued, how the legislative enactment impacts on the 
exercise of that right, does it substantially burden the 
exercise of that right or is it an insubstantial burden? Is 
there a way to interpret the statute in such a way that a 
constitutional decision need not be made, if it can be 
interpreted that way, to reconcile the legislative provision 
with the constitutional right at question.
    Ultimately, however, if under the existing--and I certainly 
would start with existing precedent and what existing precedent 
tells us to do in terms of our analytical framework and analyze 
it in that way, ultimately if I were to conclude that the 
fundamental right is infringed by the particular provision, 
then I think my oath to be faithful to the Constitution would 
require that result.
    Senator Coburn. Thank you.
    Mr. Chairman, if I might, just one more. I've got to leave. 
Well, I was supposed to leave at 3:00 p.m. But one of the 
problems--and you may have a lot of experience in that--is when 
you look at some of the statutes that we pass, is trying to 
determine congressional intent. I'm just wondering, how often 
do you read the statements, the majority opinions, the report 
language for a lot of these statutes that we pass? Do you 
frequently look at that to see what the majority/minority 
opinions were on that in terms of the intent of what we're 
trying to accomplish rather than what the statute actually 
    Judge Vanaskie. Senator, I try to start and hopefully 
confine myself to the language of the statute itself. If the 
language of the statute is clear, there's no need to go beyond 
it. It should be applied as written.
    Senator Coburn. But if it's not clear?
    Judge Vanaskie. If it's not clear, then I would go to other 
sources of legislative interpretation, considering the overall 
purpose of the statute, considering the structure, other 
parallel provisions. I drafted an opinion in an environmental 
case back when I sat on the Third Circuit in the 1990s that did 
just that, looked at traditional understanding. As a last--I 
think, Senator, as a last resort you can consider, and should 
consider, legislative history, but it should not be the 
starting point of the analysis.
    Senator Coburn. All right. Thank you very much.
    Thank you for the indulgence.
    Chairman Leahy. No, thank you, Senator Coburn. I appreciate 
you being here.
    Unless there are further questions, Judge Vanaskie, thank 
you very much for being here. I know you--it's going to empty 
the room a little bit when you leave here, but we will stand in 
recess for about 3 minutes while you have a chance, and your 
friends and family, to leave, or stay if you'd like, but you 
probably have other things to do, to leave, and we'll re-set 
the table for the next panel.
    Judge Vanaskie. Thank you very much, Senators. Thank you.
    [Whereupon, at 3:07 p.m. the hearing was recessed.]
    AFTER RECESS [3:12 p.m.]
    Chairman Leahy. If we could reconvene. Judges Reiss, 
Butler, Kallon, Espinel, if everybody can just take the seats 
that have your names in front of them. Please sit down.
    For the introduction of Mr. Kallon, I would yield to my 
friend from Alabama, Senator Sessions.


    Senator Sessions. Thank you, Mr. Chairman. I am pleased to 
introduce Mr. Abdul Kallon, who's been nominated to the U.S. 
District Court for the Northern District of Alabama.
    He's had a distinguished law career. He received his 
undergraduate degree from Dartmouth in 1990, grew up in this 
area of the country. He got his law degree from University of 
Pennsylvania in 1993. Following law school, Mr. Kallon clerked 
for Judge U.W. Clemon, Chief Judge of the Northern District of 
Alabama, who I see here with him in support, I know, of Mr. 
Kallon. So, that's the same court for which he's being 
considered today. I'm sure Judge Clemon is pleased to have 
someone of his caliber replacing him on the bench.
    Following his clerkship, Mr. Kallon joined the law firm of 
Bradley, Arent, Bolt, Cummings in Birmingham, which I suppose 
they would say was a premier law firm in the State, certainly 
it was the biggest law firm in the State for many years, and I 
guess that it still is. He became an associate in 1994 and 
became a partner, and continues to practice with Bradley Arent 
    Mr. Kallon's practice has focused primarily on labor and 
employment law. He received some impressive accolades for his 
work. In both 2007 and 2008, he was listed in the Best Lawyers 
in America for Labor and Employment Law, and in each of the 
last 3 years was listed in Chamber's U.S.A. America's Leading 
Lawyers for Labor and Employment Law.
    In addition to his impressive legal credentials, he's been 
active and dedicated to the community. For the past 9 years 
he's worked closely with Big Brothers and Big Sisters. He's 
also been a member of the board of directors of Children's 
Village since 2004, and the board of directors of Girls, Inc. 
of Central Alabama since 2007.
    Mr. Chairman, I talked to a number of lawyers in the 
Birmingham area who know Mr. Kallon and they all speak 
universally very highly of his integrity and judgment and legal 
    Chairman Leahy. Well, thank you very much, Senator 
    I would note that Representative Artur Davis has also given 
me a statement that, by consent, we'll put in the record, 
praising Mr. Kallon. I should also say, as you have, praises 
Judge Clemon. To make sure that the Congressman knows that the 
judge is here, and make sure also we get a copy of the 
statement both to Mr. Kallon and to Judge Clemon, that will be 
part of the record.
    [The prepared statement of Representative Davis appears as 
a submission for the record.]
    Chairman Leahy. I'm going to ask the four of you to stand. 
I'll swear you in and we'll do introductions of family.
    [Whereupon, the witnesses were duly sworn.]
    Chairman Leahy. The record will show that each one said ``I 
    Beginning with you, Judge Reiss, I know that you have 
family members and friends here. As this will go someday in the 
Reiss family archives, would you please tell us who is here, 
and ask them if they would stand?
    Judge Reiss. Thank you, Chairman. I brought with me today 
my husband, Kevin Hastings, my daughter Lilly and my daughter 
Tess. My oldest daughter, Mia, is taking mid-terms at McGill 
University at this point in time. I also have with me my oldest 
sister, Joan Wry, and my youngest sister, Katherine Brunelle, 
my brother, James Reiss, and his daughter, Kendell Reiss, who 
is my godchild. I am very happy to have Judge William Sessions, 
III, present with me. If confirmed, he will be my colleague. He 
has been encouraging, supportive, and helpful every step of the 
    Chairman Leahy. Thank you very much. Thank you all for 
being here. I might note parenthetically that Judge Sessions 
has said very nice things to me about you.
    Mr. Butler, please, would you tell us who is here from your 
    Justice Butler. Thank you, Mr. Chairman. I have here with 
me today my wife, wonderful wife of 28 years, Irene, our oldest 
daughter, new attorney, Jessica Butler. I have with us her 
daughter, our granddaughter, Aliana, who is a first grader in 
Milwaukee. We have with us my mother, very proud mother, 
Gwendolyn Prescott Johnson. We have with us her sister, my 
aunt, Dr. Jane Prescott Brown. I also have here two friends, 
one from the University of Wisconsin Law School where I teach. 
Professor Alta Charo is with us today, and we have from the 
Department of Justice, the Office of Tribal Justice, Deputy 
Director Kathy Zebell as well.
    My brothers could not be here, Anthony and Eric. Anthony is 
a recovering patient at this point in time, the same with my 
stepdad, Roy, and the same with our daughter, youngest daughter 
and our stepson Harry and Erica. I am convinced that they are 
watching by webcast, and we appreciate that you are 
broadcasting these proceedings here today. In spirit, we also 
have looking down from above, my father Louis and my sister 
    Chairman Leahy. Well, thank you very, very much. Thank you 
all for being here. I would note something that, even as good a 
lawyer as you are, you may not have noticed. In the 
Constitution there is hidden a requirement that grandparents 
are supposed to spoil grandchildren.
    Justice Butler. And we try very hard, Senator.
    Chairman Leahy. Mr. Kallon.
    Mr. Kallon. Good afternoon, sir.
    Chairman Leahy. And do you have family members here that 
you would like to introduce?
    Mr. Kallon. I do. I also have a lot of friends here as 
well, since I grew up in this area. With your indulgence, let 
me first introduce my mom, Mrs. Hawah Bah, who started this 
journey in 1978 when she emigrated to the United States. My 
sister, N'Dorah Tarawally, is here as well. My aunt, Odette 
Davis is here. My uncle, Alimama Bangura is here. I've got a 
list of friends here. A particular individual, Senator 
Sessions, who came all the way from Alabama on very short 
notice, and at this point I would like to ask all of my friends 
who are here today to please stand as well for me to say thank 
you to them personally for coming here on very, very short 
    Chairman Leahy. Wow!
    Mr. Kallon. Thank you.
    Chairman Leahy. We're going to need bigger rooms.
    Chairman Leahy. Thank you. After, if we can have a list of 
the names, we can add the names to the record.
    Mr. Kallon. Thank you.
    Chairman Leahy. Thank you.
    Ms. Espinel, I know you have friends here, some very close 
to this Committee. Would you like to tell who's here from your 
    Ms. Espinel. Thank you very much, Senator. I have here with 
me today my mother, Rosalie Cornelius, my mother, Jean Lord 
Espinel, my father, Dr. Carlos Espinel, my wonderful husband, 
John Stubbs, my 2-year-old son, Joachim Stubbs, who I believe 
is entertaining himself in the hallway at this moment. I also 
have here my very dear friend Mario Corea and my friend Lindsay 
Levin. My brother, Dr. Francisco Espinel, was not able to be 
here, but I know he is watching. And somewhere, I believe, 
fairly close by is my dear sister, Selena Espinel.
    Chairman Leahy. Thank you. Thank you all very much.
    Beginning with you, Judge Reiss. You served as a Vermont 
State court judge for the past 5 years, trial judge for the 
past 5 years. You've previously worked in private practice 14 
years. The obvious difference is, you as an experienced lawyer 
know, between the State courts and the Federal courts, but 
there are other things that you would bring with it. What do 
you think would be one of the most important things you would 
bring from your experiences as a State court judge that you 
would be able to transfer to experience as a Federal court 
    Judge Reiss. When I became a State court judge I was amazed 
at the awesome responsibility that I had undertaken. I really 
thought a lot about it, am I the right person to do this? I was 
surprised at the magnitude of the decisions I was making and I 
really committed myself to being the best judge I could be. I 
think the transition to Federal court will carry with it that 
transition and I will understand the awesome responsibility 
that I'm undertaking and the importance of careful attention to 
the litigants in front of me, careful preparation. So I think I 
understand that this is a very important position, it's very 
powerful, and it's so important to take it seriously.
    Chairman Leahy. You also, in private practice, represented 
plaintiffs under our Right to Know law in Vermont to get the 
information from Governor Dean--former Governor Dean's daily 
schedule during the time he was running for President. You used 
the Vermont Access Public Records Act. The Vermont Supreme 
Court ruled in your favor. Now, as one who has written 
significant parts of the Freedom of Information Act, one of the 
strong supporters of it, I ask this question.
    You're going to be called as a Federal judge, possibly, to 
rule on requests under the Freedom of Information Act. Will you 
be able to take each case on its own and do the balance between 
the--oftentimes the balancing factor between the public's right 
and interest to know with the competing interest possibly of 
withholding information to either protect one's privacy or 
national security. Do you feel you can do that?
    Judge Reiss. I do. I understand that it is a balance. I 
think we start with the presumption that freedom of information 
is important in a democratic society, that we have open 
courtrooms and open records, and that we look carefully at the 
balancing test, narrowly apply it, and make sure that 
information that is kept from public scrutiny is information 
that should be kept from public scrutiny because of a 
compelling competing interest.
    Chairman Leahy. As a trial judge, you've had occasion to 
issue rulings involving Miranda warnings. You have any problem 
facing the fact you may still be issuing such rulings in the 
Federal court?
    Judge Reiss. I don't. I would say that, even in a State 
court, if you were in a district court rotating, Miranda issues 
come up all the time, that it is a significant area of 
litigation in criminal defense. I anticipate that would 
continue in Federal court.
    Chairman Leahy. I know your answer to this question has 
been discussed. Would it make any difference to you who comes 
into your courtroom, plaintiff or defendant, what their 
political background, economic background, or even the nature 
of their case might be?
    Judge Reiss. No, it would not.
    Chairman Leahy. I believe you.
    Justice Butler, when you were on the Wisconsin Supreme 
Court, you issued opinions. You had the constraints of 
Wisconsin law, of course, the Wisconsin constitution, the U.S. 
Constitution, prior decisions. And if you are confirmed here, 
do you have any problem with the fact that your circuit, the 
Seventh Circuit, the decisions of the Seventh Circuit and the 
U.S. Supreme Court would be binding on you?
    Justice Butler. Not at all, Senator. My understanding is 
that, if confirmed by the Senate and appointed by the 
President, my job as a District Court judge would be to 
interpret and apply the law based on the precedent set forth 
first by the U.S. Constitution, and then by the superior 
circuit, in this instance, the Seventh Circuit Court of 
    Chairman Leahy. Mr. Kallon, you've had an extensive and 
very admirable background. But also, because of all the 
different cases you've handled and others, there may well be 
instances where you have to recuse yourself on the Federal 
bench. How do you interpret the Federal recusal statute? Can 
you give me some specific examples of the type of cases you 
would feel, certainly in the early part of your career in the 
District Court, that you would have to recuse yourself from?
    Mr. Kallon. Certainly, sir. With respect to cases, I think 
the easiest ones will be, any that I'm working on now, 
obviously, I cannot hear, as a judge. But other than that, I 
don't foresee any particular subject being areas where I would 
need to recuse myself. With respect to recusal, obviously if 
I've got a financial interest in a particular company and it's 
it front of the court, I'll recuse myself. And if the lawyers 
believe that because of my relationships with a particular 
company or because of a particular set of lawyers, then we will 
deal with that under the rules set forth by the courts.
    Chairman Leahy. And Ms. Espinel, I know you have a 
statement for the record which will be made part of the record.
    [The prepared statement of Ms. Espinel appears as a 
submission for the record.]
    Chairman Leahy. I have just one question, and I neglected 
to ask each of the members of the panel if they had an opening 
statement they would wish to give.
    But if you are confirmed as Intellectual Property 
Enforcement Coordinator, or IPEC, would you be willing to 
appear before this Committee and testify?
    Ms. Espinel. Yes, I would. As you know so well, this role 
was created and defined by legislation and this position is 
fully accountable to Congress. Among the duties I would have, 
if I were confirmed, would be to submit an annual report to 
Congress that would report on the activities of the interagency 
Committee that I would chair. If I am confirmed, I look forward 
to working closely with this Committee and ensuring that you 
receive information that is both timely and useful.
    Chairman Leahy. Good.
    Judge Reiss, did you have a statement that you wished to 

                      DISTRICT OF VERMONT

    Judge Reiss. I would like to thank President Obama, 
Chairman Leahy and the members of the Senate Judiciary 
Committee. I'm very honored to be here.
    Chairman Leahy. Thank you. That statement won't hurt you a 
    Chairman Leahy. Justice Butler.


    Justice Butler. Thank you, Senator. I would also like to 
thank the President for his confidence in nominating me as a 
District Judge for the Western District of Wisconsin. I would 
like to thank my State Senators for their wonderful 
introduction here this afternoon. I would like to thank this 
Committee, the Chair, and the Ranking Member and other members 
of the Committee who are here who are considering this 
important nomination. That's pretty much it. Thank you.
    Chairman Leahy. You're represented by two wonderful 
    Mr. Kallon.


    Mr. Kallon. Likewise, Chairman. I'd like to thank the 
President for the nomination, this Committee for these 
hearings, and Senator Sessions for the great introduction. 
Thank you all.
    Chairman Leahy. Senator Sessions, I know, has rearranged 
his schedule just so he could be here, and I appreciate both 
him being here and his introduction of you.
    Ms. Espinel, as I said, your full statement will be placed 
in the record, but is there anything you wish to add to it?


    Ms. Espinel. I would say that I would like to thank the 
President, I would like very much to thank you, Chairman Leahy 
and the members of the Committee. I am greatly humbled to be 
here, and I want to thank you for your leadership in creating 
this position, and then supporting the intellectual property 
that supports our country.
    Chairman Leahy. Senator Sessions.

                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman.
    I appreciate all of you that have been nominated. This is, 
I guess, the one opportunity we have to ask some questions. 
Members will be allowed to file written questions, and you'll 
receive those. I may submit some myself; I suspect that I will. 
You are, at least with regard to the judges, being considered 
for a lifetime appointment.
    I hope you know, and I think you do, that once you assume 
that role your own personal sense of discipline, responsibility 
and integrity is what constrains you from abusing the office, 
because you can't be voted out of it and wrong decisions don't 
get you impeached. So we look for that and expect that out of 
each one of you.
    You take an oath, judicial nominees, that you will do equal 
justice to the poor and the rich, that you will conduct your 
office impartially, and that you will serve under the 
Constitution and laws of the United States. So I guess I would 
ask, first, each one of you, do you understand the import of 
that oath? Do you commit yourself to it, and will you be able 
to take it faithfully, if you're given that opportunity? Ms. 
    Judge Reiss. I would fully comply with the oath. It would 
be an honor to do so. It is my opinion that a judge needs to be 
a role model, both inside and outside the courtroom, and that 
people look to judges as an example of the judiciary. It may be 
their only experience in the courtroom. We uphold the 
Constitution and we treat people respectfully. I take that very 
seriously. Thank you.
    Senator Sessions. Justice Butler.
    Justice Butler. Yes, Senator. I agree with Judge Reiss, 
this is a very important position and I think we are dedicated 
to applying the Constitution and applying the laws equally and 
fairly amongst any individuals that would appear before us, 
rich or poor, or in any setting. It's our obligation to listen 
carefully. After all, we're involved in dispute resolution when 
people come into court. Listen carefully to the issues that the 
parties present and make our determinations based upon the 
facts and based upon the law.
    Senator Sessions. Mr. Kallon.
    Mr. Kallon. Senator, I concur with my colleagues. I 
certainly will carry the oath faithfully, and I hope I have the 
opportunity to do so.
    Senator Sessions. Well, you know, we had a little stir over 
the President's empathy standard in which he talked about the 
heart and feelings as being part of the role of a judge. But 
empathy is not a legal standard. Now, I don't know what kind of 
standard it is, but it's not a legal standard. I recall, I 
think I had here Judge Sotomayor's reference to it. She said it 
was facts, not feelings, that decide cases, I think is 
essentially what she said. So I just think those are important 
concepts to keep in mind.
    Mr. Kallon, you've practiced before these very judges that 
you will now be colleagues with, if you're confirmed. Do you 
have any thoughts about how you would conduct yourself, 
remembering that you've been a lowly lawyer, for a number of 
years practicing before the bench? Do you have any thoughts 
about how you might conduct yourself in a way that brings a 
good image to justice and to the court?
    Mr. Kallon. Absolutely. I think I intend, essentially, to 
carry on in the same manner. By that, I mean I've always 
treated the courts and the litigants with the utmost respect, 
even those individuals that I disagree with wholeheartedly. 
I've always pointed out that you can win your case without 
having to be disrespectful to the other side, and certainly as 
a judge I think you can rule even with litigants who perhaps 
may not have been as respectful as they need to be without 
embarrassing someone in front of the other lawyers, and 
certainly not in front of their clients, unless of course that 
individual has, despite repeated warnings, refused to follow 
the rules and the regulations of the court.
    Senator Sessions. Well, I think we shouldn't forget the 
difficulties lawyers have, too, in their days and the 
legitimate interests that their clients have, and fairness.
    Mr. Butler, in a campaign event entitled Young and Powerful 
for Obama, you stated the following: ``While all judges have a 
desire to interpret and apply the law, the cases that get to 
the Supreme Court are the ones that have no easy answers. Thus, 
the background, personal beliefs, and policy decisions of the 
justices selected will influence how they vote on difficult 
cases before them.''
    Well, it seems to me that the ideal of American justice is 
impartiality, as used in the oath, to achieve a degree of 
objectivity so that your personal feelings don't cause you to 
favor one litigant over another, but give fair justice down the 
line, down the middle. How would you explain that statement 
that you made?
    Justice Butler. Well, Senator, I believe what I intended by 
that statement is a recognition that, particularly in a court 
of last resort, when you do have difficult cases that have to 
be decided, perhaps where there is no precedent, where there is 
no guiding principle, which is why the court took the case in 
the first instance, it helps to have as many different 
backgrounds and as many different perspectives in the room as 
possible. For example, if you've got people that have criminal 
background, people who have civil background in their practice 
experience, people from different environments, different 
    I think just having every idea at the table and sitting 
down and making a difficult decision when deciding how the law 
should be applied, particularly in the absence of any 
controlling or guiding principles, I think it would weigh in to 
the thought processes--not necessarily the decision processes, 
but the thought processes--that the judges will go through when 
trying to decide how to apply the law and how to apply the 
Constitution to various statutes.
    Senator Sessions. With regard to the President's statement 
on empathy, Justice Sotomayor, when asked about his standard, 
replied, ``We apply law to facts, we don't apply feelings to 
facts.'' I thought that was what a judge does.
    Justice Butler. I agree with that, Senator.
    Senator Sessions. But in your speech I just quoted from 
earlier about allowing personal beliefs and policy decisions to 
influence how judges vote, you say that's the main reason I 
support President Obama. How do you explain the difference 
    Justice Butler. Senator, when a judge makes a 
determination, the first thing you look at, in my experience, 
is the language of a statute, the language of a law that 
applies. You look at whether or not there are any 
constitutional implications that have to be decided. You look 
at any prior precedent, the controlling precedent from higher 
    You look at--if there is no controlling precedent, you look 
at various influential or persuasive precedents from other 
jurisdictions, particularly if you're dealing in different 
circuits, which we don't have in our State because everything 
is precedential in Wisconsin, and then you have to make a 
decision that will resolve the dispute in a fair and impartial 
    So the backgrounds, the different experiences that one can 
bring to the table, whether it's practice experience or other 
types, I think helps to expand the discussion in a conference 
room, particularly when you're dealing with a collegial 
decisionmaking body.
    Senator Sessions. Well, these are difficult issues. I don't 
think they're insignificant. In other words, I think you do 
have to decide whether or not you have a commitment to a 
certain group. In your speech, you said, referring to President 
Obama, ``his commitment to the working people, the poor, and to 
the country as a whole has been shown throughout his life''. 
Well, but does that mean that you think a judge, instead of 
doing ``equal justice to the poor and the rich'', has--since 
you would have a commitment--more commitment to one or the 
    Justice Butler. No, Senator. I think it's important for any 
judge in any position to treat everyone equally, and 
impartially, and fairly. For me, the importance of a courtroom 
setting is a process question. One way that you can ensure that 
everyone is treated fairly is to make sure that everyone is 
treated with the same process--with the same process.
    Senator Sessions. Well, everyone--I think we can--I do 
believe that the legal standard and requirement of judges is 
that we do equal justice to all parties, based on the facts and 
not on personal feelings or beliefs.
    I'm past my time. I might like to ask a few questions 
later, but on a second round, Mr. Chairman.
    Senator Kohl. Thank you so much.
    Justice Butler, are you comfortable with the answers you've 
given at this point?
    Justice Butler. Yes, I am, Senator. Thank you very much.
    Senator Kohl. Justice Butler, some have criticized your 
``judicial activism''. On the Wisconsin Supreme Court, they 
claimed that you thwarted the will of the State legislature for 
the court majority's own policy views. Would you like to 
respond to this criticism and explain your views about the role 
of the court in interpreting the laws written and passed by the 
elected legislative bodies?
    Justice Butler. Thank you for the question, Senator. As a 
member of the court, it's important to make decisions that 
resolve the disputes of the parties that come before the court. 
And any time parties come to court, you're dealing in a 
litigation setting, at least 100 percent of the time 50 percent 
of the people are going to leave the courtroom unhappy, 
sometimes more. Not everyone is going to be satisfied with a 
given decision, and many people have differing views and 
differing descriptions of what judicial activism might be and 
how it might be applied, who it might apply to.
    For me it's always been taking the facts of a case and 
applying the applicable law. I try to make decisions based on 
the case that's before the court. I've done that in the 16 
years I've served as a judge, 12 years as a trial court judge, 
4 years on the Wisconsin Supreme Court. I understand and 
recognize and accept that there will always be critiques of any 
opinion from various parties that goes along with making 
decisions, making tough decisions, but I've tried to make my 
decisions based upon facts and based upon the law.
    Senator Kohl. Thank you.
    For the three judges who are up for promotion here today, 
in the past many years there's been a growth in the use of so-
called protective orders in product liability cases. We saw 
this, for example, in the settlements arising from the 
Bridgestone-Firestone lawsuits. Critics of this argue that 
those protective orders oftentimes prevent the public from 
learning about the health and safety hazards in the products 
that they use. In fact, a U.S. District Court for the District 
of South Carolina passed a local rule banning the use of sealed 
settlements altogether.
    Do you believe that a judge should be required to balance 
the public's right to know against a litigant's right to 
privacy when the information sought to be sealed could keep in 
secret a public health and safety hazard, and what would be 
your views regarding that local rule in the District of South 
Carolina on this issue, which bans the use of sealed 
settlements altogether? We'll start with you, Judge Reiss.
    Judge Reiss. Thank you. As a lawyer, I represented a number 
of media entities: radio, television, newspapers. I start with 
the presumption that the public has a right to know, that the 
courtrooms are public and that full access to the courtroom is 
important to ensure that they are just and impartial 
institutions. I think any exception to that needs to be 
extremely narrowly construed and it must be supported by a 
compelling interest. So I do not see a role for broad-based 
protective orders shielding large portions of cases from the 
public scrutiny.
    That being said, I am certain that there are certain 
instances in which there is no relevance to the information or 
it doesn't impact the public's right to know. It may be a trade 
secret. I would look at that exception with the idea that the 
presumption would be public access and that any exception to 
that would be narrowly construed.
    Senator Kohl. OK.
    Judge Butler.
    Justice Butler. Senator Kohl, I, like Judge Reiss, also 
agree that you start with a presumption that a courtroom is a 
public proceeding. There is a balancing that has to take place 
in looking at, when a protective order is requested, whether it 
should be applied in a particular instance. But like Judge 
Reiss, it should be narrowly construed to determine whether 
there's a compelling public interest that would override the 
public right to know.
    Senator Kohl. Judge Kallon.
    Mr. Kallon. Senator Kohl, likewise. I will take a very, 
very limited approach. Certainly there are privacy concerns at 
play. That's one good route to perhaps grant a protective 
order. If there are trade secrets that need to be protected, 
that's another ground. But aside of those two arenas, I 
definitely will hear the arguments that are made, but the 
arguments will need to be extremely compelling for me to 
foreclose the public's right to know about aspects of society 
that they need to know about.
    Senator Kohl. Thank you so much.
    Chairman Leahy. Thank you.
    Senator Feingold.
    Senator Feingold. Mr. Butler, I just want to follow up with 
something Senator Sessions was questioning you about. As U.S. 
District Court judge, will you allow your personal belief or 
policy preferences to override the law as set forth in Federal 
statutes, or controlling precedents, or the Seventh Circuit, or 
the Supreme Court?
    Justice Butler. No, Senator, I would not. I don't believe I 
did that as a member of the Wisconsin Supreme Court or as a 
member of the Circuit Court or Municipal Court either. That is 
not how I view a role of a judge.
    Senator Feingold. Your most significant judicial experience 
has been as an appellate judge on the Supreme Court of 
Wisconsin, though you did have some experience as a trial judge 
as well. How has your experience on the Wisconsin Supreme Court 
made you better prepared to be a trial court judge at the 
Federal level?
    Justice Butler. Senator Feingold, my experience has been 
varied, both in practice as well as on the bench. I've been 
both a trial lawyer and an appellate lawyer and I've been a 
trial judge and an appellate judge. From those various 
experiences, I've had an opportunity to see litigation in a 
variety of settings. I've had an opportunity to see different 
difficult issues come into the court, either in a trial court 
setting or an appellate court setting.
    By sitting as an appellate court judge and having the 
opportunity to overview the entire criminal justice and--
justice system as a whole, I've had an opportunity to gain 
perspectives on how the system operates--operated within the 
State of Wisconsin. I think the experience, both as an 
appellate and trial judge, greatly benefited my background, 
experience, and knowledge, and hopefully prepared me for the 
awesome experience, should this Committee vote to submit my 
name to the full Senate and should I be confirmed.
    Senator Feingold. Justice, you've been a public defender, 
but not a prosecutor. That puts you in a minority among 
nominees to the Federal bench. Can you talk about the 
importance of having good defense attorneys to our adversarial 
system of justice, and how will that experience assist your 
work as a Federal judge?
    Justice Butler. Yes, Senator. As I have indicated, I 
believe it's important to have all different types of 
experiences, serving at various levels of the judiciary, for a 
number of reasons. I mean, judges talk to each other, they go 
to lunch together, they discuss issues together, and I think it 
helps to know from an experiential basis how the various 
decisions that are being made actually impact the people that 
the decisions are being made for.
    So I think it helps to have prosecutors, I think it helps 
to have defense lawyers, I think it helps to have civil 
plaintiffs' lawyers, civil defense lawyers serving at various 
aspects of the judiciary. I think that's a beneficial thing for 
all. As each of you have indicated, these decisions are 
supposed to be made impartially and fairly and neutrally, but 
it helps to have the various backgrounds at the table when 
these decisions are being made.
    Senator Feingold. Thanks, Justice.
    Ms. Espinel, your prepared testimony certainly is a strong 
statement about the importance of enforcing intellectual 
property rights, and no one could really argue with that. You 
speak convincingly about the coordination among the various 
agencies that's needed to ensure that enforcement and 
protection are done efficiently.
    Can you give me an idea of what steps you'll take to make 
sure that these enforcement activities do not undermine public 
access to information that is so crucial for innovation and 
other priorities of the United States, and specifically, do you 
see it as part of your portfolio to coordinate with science and 
information library agencies on this issue?
    Ms. Espinel. Thank you, Senator. I think it's part of this 
position to coordinate and find a consensus among all of the 
different agencies and offices inside the U.S. Government that 
are charged with protecting and enforcing intellectual property 
and place importance on intellectual property. I think 
intellectual property is a long-term strategy in many ways, and 
so there will always be issues, as with all policy areas, where 
there will have to be balances that will be found.
    One of the things that I think this position is poised to 
do is to try to work with, in a very open and transparent way, 
all of the agencies and all of the stakeholders and the general 
public of the United States to try to develop a strategy that 
will protect intellectual property efficiently and effectively, 
but will do that taking account of the variety of views and 
opinions that exist.
    Senator Feingold. So do you agree that over-zealous 
enforcement of intellectual property rights could reduce our 
citizens' legitimate access to information, and will you ensure 
transparency in policy development so that all of the 
ramifications of these enforcement activities can be assessed 
with the maximum public involvement?
    Ms. Espinel. This administration is very committed to 
transparency. If I am confirmed by the Senate, I will uphold 
that policy of transparency and take it very seriously, and I 
will look for the appropriate forum to do so within the office 
that I will head.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. Congratulations 
to all of you for your nominations.
    Ms. Espinel--and this is--I want all of you to think about 
this in constitutional terms a little bit, too. The FCC 
recently put out a proposal for a more free and open Internet, 
net neutrality rules. I think what they're doing is critically 
important. When Justice Sotomayor was in her hearings, I raised 
this issue as a constitutional issue of making sure that the--
that information flows freely on the Internet.
    Ms. Espinel, I also want to prevent piracy. You talked 
about balance. So speaking of balancing, how should regulations 
balance the need to stop piracy with the need to protect the 
free flow of information on the Internet?
    Ms. Espinel. Thank you, Senator. I think that's an 
excellent and very important question these days. Clearly, 
Internet piracy is a very serious problem our country is facing 
and has serious ramifications for our economy. At the same 
time, openness on the Internet is one of the reasons that the 
Internet has been so successful and helpful to so many over the 
past few decades.
    Openness, however, doesn't apply to unlawful content and I 
believe there is a way to ensure that the Internet is open and 
we're not restricting access to legitimate information to 
people, while trying to contain the very serious problem of 
Internet piracy that we face. As you mentioned, the FCC is 
looking at this at this moment. If I were confirmed, I would 
certainly be working with the FCC, as well as the other 
relevant agencies, to try to develop a strategy that would 
efficiently protect and try to stop Internet piracy, but one 
that is consistent with this administration's policy of 
transparency and trying to ensure that we promote the Internet.
    Senator Franken. OK. But what do you see as some of the 
main tensions there? I'd just like to get your thoughts on that 
because, you know, there's all kinds of issues of, you know, 
maintaining your network and people trying to download enormous 
files versus the free flow and no restrictions. What do you see 
as the tensions in net neutrality and this whole issue of 
intellectual property?
    Ms. Espinel. I guess I don't--I don't know that there 
necessarily have to be those tensions. I know that they exist. 
It seems to me that there has to be a way we can find to move 
forward where we can ensure that the Internet is open, ensure 
that there is reasonable management of networks, and at the 
same time try to ensure that the Internet is not being used as 
a means of distribution for all types of illegal content, 
including pirated content.
    So, you know, I think--and if I was confirmed, I think one 
of the first--one of the issues that I would be grappling with, 
in coordination with the other agencies, is how we go forward 
in devising a strategy that accomplishes both of those goals.
    Senator Franken. OK. Thank you.
    Do any of you three have any thoughts on constitutional 
issues regarding net neutrality?
    Judge Reiss. Clearly, this is Ms. Espinel's area of 
expertise, but I was thinking about, what would the 
restrictions look like? Would they be content-based, which 
would be concerning to me from a constitutional perspective? I 
would want to make sure that the focus was on the process as 
opposed to impeding the free flow of information by focusing on 
content-based restrictions.
    Senator Franken. OK. I'm not sure that anyone's really 
talking about that so much. More of what I see are the 
conflicts between managing networks and the free flow of 
information. Anybody else have any thoughts?
    [No response].
    Senator Franken. Well, thank you all. Again, 
    Chairman Leahy. Thank you very much.
    Mr. Kallon, I mentioned earlier that I was placing in the 
record a statement from Congressman Davis, very complimentary 
of you.
    Mr. Kallon. Thank you.
    Chairman Leahy. And also retiring Judge Clemon. But I would 
note that the Congress--just for the record, the Congressman is 
here in the room and has joined us. Senator Sessions has 
further questions. I know we're about to--we're going to have a 
roll call before too long on the floor, and I will yield to 
Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    It's good to see Congressman Davis. He was an Assistant 
U.S. Attorney and knows something about Federal courts himself, 
a Harvard Law graduate. So, I know you strongly support Mr. 
Kallon, and that's been very important to me, Congressman 
Davis. I value your opinion. We've talked about these 
appointments over the years.
    Mr. Butler, your decision in Thomas v. Mallet has been 
widely criticized. There you held that lead paint manufacturers 
could be held liable for an injury from a product that, as a 
dissent in the case said, ``they may or may not have produced, 
which may or may not have caused a plaintiff's injuries, based 
on conduct that may have occurred over 100 years ago when some 
of the defendants were not even part of the relevant market''. 
That was the dissent.
    With your decision, Wisconsin became the only State in the 
country to adopt a far-reaching theory of liability in such 
cases. In other words, whether a company actually produced the 
lead paint that harmed the claimant is irrelevant to his guilt 
or innocence. Former dean of the University of Maryland Law 
School, Donald Gifford, said that Thomas was ``the single most 
radical departure from the principles of tort law in recent 
decades. It is a decision that puts Wisconsin dramatically out 
of line with the law of any other State in the country''. How 
would you respond to that criticism and to the dissent's 
    Justice Butler. Senator, with respect to the dissent's 
comments, I know that the majority in the opinion did respond, 
I believe, on a number of occasions. Within the opinion itself, 
I don't agree with the dissent's characterizations of the 
majority opinion. Let me just begin by saying, in case my 
recollection is at all faulty, I stand on the words of the 
opinion. That's why we draft opinions. That's why we write 
    But my understanding of the case that was decided by a 
majority of the Wisconsin Supreme Court was that we were 
applying prior precedent, prior Wisconsin precedent, the case 
of Collins v. Eli Lilly, and we were applying that to a 
Wisconsin constitutional provision, Article I, Section 9 of the 
Wisconsin constitution.
    So we were relying on precedent. We were relying on the 
Wisconsin constitution. It was a difficult case. We applied a 
limited risk liability theory with respect to negligence as 
strict liability claims. We rejected other claims that were 
brought by the plaintiff in that matter. The case ultimately, 
when decided at the lower courts, did not result in the type of 
criticism that we heard, the type that was called out by the 
dissent in the case. In fact, the plaintiff in the action lost 
the case at the trial court level. This was a summary judgment 
action and involved an access to the courts. It was an access 
to the courts issue.
    Senator Sessions. I appreciate that and will look at that 
record. But in fact the defendant could be liable for an injury 
they didn't cause, under the logic of your opinion. Isn't that 
    Justice Butler. The opinion basically looked at whether or 
not a particular manufacturer produced and marketed a product 
and marketed it as safe when in fact it was dangerous without 
warning consumers that it was in fact dangerous. This was--
according to the information that is contained right within the 
body of the opinion, this was with knowledge that dated back to 
internal memos to 1904, and this was still being done. And the 
question under Wisconsin----
    Senator Sessions. That action was the cause of this 
plaintiff's injury, correct?
    Justice Butler [continuing]. The issue in the case was, 
once a particular manufacturer marketed, produced, sold it in a 
particular area--one of the things that the plaintiff would 
have to establish is that it was done and sold in that area 
during the time period in question. Then the burden would shift 
to the manufacturer to show that it was, indeed, not their 
    Senator Sessions. It would seem to me that would create 
uncertainty about who might be liable for what, and you 
acknowledged that in a way in your opinion, stating the goal of 
certainty is not necessarily achievable and that is not 
necessarily a bad thing. How would you suggest that uncertainty 
could be a good thing?
    Justice Butler. I believe the decision, Senator, was one 
that dealt with issues of accountability and who--the actions 
taken by the manufacturers in this particular case. What the 
decision did was said that if a company knowingly marketed as 
safe a product and put it out there as safe when it in fact it 
knew to the contrary, that we would not limit the access to the 
courts of the plaintiff to bring in and challenge the actions 
of the manufacturer.
    Now, they would still have to meet the burden of proof in 
the actual case in question, and in fact to the best of my 
knowledge in every case that's come up subsequent to that in 
Wisconsin the plaintiffs have not succeeded. But this was a 
summary judgment action, it was access to the court, and the 
question was whether or not the plaintiff should have a trial.
    Senator Sessions. In Ferden v. Wisconsin Patients 
Compensation Fund, you joined the majority of the court in 
striking down the punitive damages cap of $350,000 that had 
been enacted by the State legislature. In other words, they 
limited the amount of liability, which I think California and 
Texas do, and Alabama, and others have passed laws to that 
effect. You found that it violated the State Equal Protection 
Clause because it lacked a rationale basis. Do you agree that 
under the court's version of the rational basis test, virtually 
any statute would be subject to being struck down? It seems 
like to me that the legislature could have a rational interest 
in containing aberrational verdicts or high insurance rates and 
that kind of thing.
    Justice Butler. As to the question of whether any statute, 
the answer is no, Senator. With respect to this particular 
statute, this did fall within the rational basis test, as 
defined by the majority. I also joined the concurring opinion 
written by Justice Crooks that recognized that constitutional 
caps could be created by the legislature. Just this particular 
cap was not constitutional.
    Senator Sessions. Well, the legislature did it. They wanted 
to make malpractice insurance ``available and affordable'' in 
Wisconsin. Other States have done that and it's been upheld. 
And they turned out--those caps turned out to be successful. In 
2004, the American Medical Association judged Wisconsin to be 
one of only six States not in a medical malpractice crisis, and 
yet the court engaged in an aggressive, I would say, 
reassessment of the legislature's policy decisions that they 
made. How is it that caps are not rationally related to 
malpractice insurance available in the State?
    Justice Butler. Senator, a lot of that is explained in the 
chief justice's opinion. In large part, we have a medical 
malpractice fund that protects the insurance rates within the 
State of Wisconsin, and as the opinion explains, the price and 
the cost of insurance has very little to do with the caps issue 
within our State as a result of the medical malpractice fund 
that exists within Wisconsin.
    Senator Sessions. Well, thank you.
    Let me ask you this. It's something that all of us in 
politics know, the authority of the people to make decisions. 
But you ran for the Supreme Court and were not successful. You 
were then appointed when a vacancy occurred, and then you had 
to stand for election and your record was examined and 
criticized and you were defeated by a 2:1 margin, as I 
understand it. How would you explain the circumstances of that?
    Justice Butler. Actually, Senator, the margin was 51 
percent to 49.
    Senator Sessions. OK. That's different than what I've been 
    Justice Butler. And there may be a number of explanations.
    Senator Sessions. That's pretty close.
    Justice Butler. That was a close election, Senator. And 
there may be a number of explanations. Perhaps the best that I 
can give to you, Senator, is that after 16 years on the bench I 
think I may be a better judge than politician. Having said 
that, I do note for the record that I was elected by a pretty 
large majority in the community in which I served in Milwaukee 
County and I was elected in the Western District of Wisconsin, 
where I would be serving if confirmed by the Senate. I had the 
majority of citizens in that portion of the State. So the 
people that know me best did support me.
    I also acknowledge the fact that, as far as elected 
politics are concerned, I think the election that is supposed 
to matter is the one for President and who to select as a 
judge, not the one in an elective judicial race.
    Senator Sessions. Well, that's somewhat true. But we get to 
vote in this body.
    Justice Butler. That's true, Senator.
    Senator Sessions. Congratulations on the nomination. Thank 
you for those answers. I'm glad you clarified that error in my 
understanding. I think you were entitled to have a chance to 
explain that.
    Justice Butler. Thank you, Senator.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. I would note in that election, I've read 
that, one, it was a 51:49, and those who contend your defeat 
came about after special interest groups poured millions of 
dollars into a sleazy and dishonest attack campaign that 
``played on racial stereotypes'' and was condemned by Democrats 
and Republicans, liberals and conservatives. I understand that 
there has also been the Wisconsin judicial ethics--commission 
on ethics complaint in that case. Not against you, but 
opponents under the rules that they--when a candidate lies 
about their opponents in these judicial matters. So I would 
note that you faced some rather unprecedented opposition for 
    But Senator Kohl, did you wish to say something?
    Senator Kohl. No.
    Chairman Leahy. Senator Feingold, did you wish to? Senator 
    Senator Feingold. Thank you, Mr. Chairman.
    Let me just follow on what you were just commenting on, the 
April 2008 election where Justice Butler unfortunately lost his 
seat on the Supreme Court of Wisconsin. We do have popularly 
elected judges in Wisconsin. In recent years, however, these 
elections have become regrettable political battlegrounds. It 
is one of the most troubling things that is going on in our 
State at this point, and there are not only bipartisan, but 
nonpartisan groups that are desperately trying to figure out 
some solution to the problem that we have in these Supreme 
Court races.
    In this selection, as the Chairman indicated, special 
interest groups spent nearly $2 million in advertising. One 
particular ad run by Justice Butler's opponent, in fact, 
resulted in a judicial ethics complaint that remains unresolved 
to this day. Losing 51:49 is not exactly a mark of shame or 
rejection. The Justice is right, he won the Western District of 
Wisconsin, in which he would serve as a Federal judge.
    But that's not really the point. We have Federal judges for 
life who do not face a popular election for a reason. The 
founders of the country did not say, if you've lost a previous 
popular election you're disqualified to be a Federal judge. 
That's the actual opposite of the judgment that is made in the 
Constitution of this country. People in the State of Wisconsin 
made a different judgment, that we want to elect judges, and I 
agree with that.
    But the notion that somehow a completely different standard 
would disqualify somebody who went through a process where not 
only the President of the United States who is duly elected, 
but the Senators who are duly elected, and who appointed an 
independent commission that looked at all these nominees and 
concluded that this man is the most qualified person. That's 
the actual record of what happened here. So the idea that 
somehow the Supreme Court popular election would in any way 
undermine this appointment, I would have to reject out of hand.
    Thank you, Mr. Chairman.
    Justice Butler. Thank you, Senator.
    Chairman Leahy. Thank you very much.
    If there are no further questions, then we will keep the 
record open for 1 week for any other questions. Normally we 
would have a mark-up next Thursday, but the Senate will not be 
in session next Thursday so it'll be the week after. I would 
hope that everybody will get any questions in because I would 
hope we could move--especially as the year is drawing to a 
close, we could move these nominees quickly to the floor--he 
said with hope springing eternal.
    We stand in recess.
    [Whereupon, at 4:10 p.m. the Committee was recessed.]
    [The biographical information follows.]
    [Questions and answers and submissions follow.]

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                      WEDNESDAY, NOVEMBER 18, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 2:30 p.m., Room 
226, Dirksen Senate Office Building, Hon. Charles E. Schumer, 
Chairman of the Committee, presiding.
    Present: Senators Schumer, Kohl, Feingold, Klobuchar, 
Franken, and Sessions.
    Senator Schumer.
    The hearing will come to order. I apologize to everyone for 
being late. Since I was late, I will do my opening statement 
    So I will first call on my colleague and friend on the 
Judiciary Committee, Senator Kohl, for the introduction of Mr. 
William Conley for the Western District of Wisconsin. I believe 
Senator Feingold is going to come at some point later to do the 


    Senator Kohl. Thank you very much, Mr. Chairman. It is my 
pleasure today to introduce William ``Bill'' Conley to the 
Judiciary Committee. We also welcome Mr. Conley's many family 
members who have traveled here to be with us.
    Bill Conley was born and raised in Rice Lake, a town in 
northwest Wisconsin. He received a BA with distinction from the 
University of Wisconsin at Madison and graduated cum laude and 
Order of the Coif from the law school at that place.
    Following law school, he clerked for Judge Fairchild in the 
Seventh Circuit Court of Appeals. Bill Conley has practiced law 
for 25 years at Foley & Lardner and has earned a reputation as 
a well regarded and topnotch litigator.
    He has represented an array of national and international 
companies before state and Federal courts and has served as a 
mediator and arbitrator to resolve disputes for parties outside 
of court.
    During his many years in private practice, Bill Conley has 
also used his legal talent to give back to the community. He 
has devoted hundreds of hours to pro bono legal work, 
representing refugees, indigent defendants and others who would 
otherwise not be able to afford legal representation.
    He has also been active at the Remington Center for 
Criminal Justice at the University of Wisconsin and the 
Wisconsin Equal Justice Fund. Bill Conley possesses all of the 
best qualities that we look for in a judge--legal acumen, 
diligence, humility and integrity.
    Having spent much of his career representing clients before 
the court to which he has been nominated, he has a key 
understanding of the fairness and impartiality that the 
administration of justice demands.
    Bill Conley is a fine man. We can all be proud of him and I 
am confident that he will serve the people of Madison and all 
of Wisconsin well.
    Bill Conley's nomination proves once again that the process 
that we use in Wisconsin to choose Federal judges and U.S. 
attorneys ensures excellence.
    The Wisconsin Federal Nominating Commission has been used 
to select Federal judges and U.S. attorneys in Wisconsin for 30 
years, through Republican and Democratic administrations and a 
tenure of Senators from both parties.
    Through a great deal of cooperation and careful 
consideration and by keeping politics to a minimum, we always 
seem to find highly qualified candidates.
    Again, we are pleased to have you with us today and we look 
forward to your testimony.
    Thank you, Mr. Chairman.
    Senator Schumer. Senator Franken, do you wish to give any 
    Senator Franken. I am fine.
    Senator Schumer. So I will delay mine for Judge Chin from 
New York so we can call on our colleagues, who I know have busy 
schedules. So we, first, are joined by both Senators from the 
State of Washington in support of Professor Peterson for the 
Eastern District of Washington, Senator Murray and then Senator 


    Senator Murray. Mr. Chairman, thank you very much, and to 
all of our members who are here today.
    Along with my colleague, Senator Cantwell, it is my 
pleasure to introduce Rosanna Malouf Peterson. Rosanna is a 
distinguished law professor and attorney who has been nominated 
to serve as the next Federal Judge for the Eastern District of 
    I want to welcome Professor Peterson and her husband, Fred, 
who is here, as well as her daughter, who has joined us, 
Miranda, and Professor Peterson's brother-in-law and sister-in-
law, Don and Sherry Shipley, who are all joining us here today.
    Mr. Chairman, I think it kind of speaks to the type of 
nominee she is that so many of Professor Peterson's friends and 
current and former students are also here to support her.
    Mr. Chairman, I am honored to recommend that the Senate 
confirm Rosanna Malouf Peterson as the District Court Judge for 
the Eastern District of my home state. She has strong 
bipartisan support, and with good reason. She has devoted her 
career to serving the interests of justice and to instilling 
those values in a future generation of leaders.
    Professor Peterson is a graduate of the University of North 
Dakota, where she earned her bachelor's, master's and law 
degrees. After law school, she started her legal career in the 
chambers of Judge Fred Van Sickle in Spokane, the very same 
seat that she has now been nominated to fill.
    During her distinguished career, Professor Peterson has 
worked as an attorney in Spokane area law firms, for corporate 
and individual clients; she has worked in private practice, 
often representing teachers; and, she has worked as a court-
appointed representative for criminal defendants in state and 
Federal court.
    Since 1999, Professor Peterson has been a law professor at 
the Gonzaga Law School in Spokane, where she is an assistant 
professor oF law and director of the law school's externship 
program. At the same time, Professor Peterson has maintained 
her private practice, where she has continued to work with 
Federal defendants on a pro bono or reduced fee basis.
    Professor Peterson has also played a leadership role in the 
Washington legal community, including president of the Federal 
Bar Association of Eastern Washington, president of the 
Washington Women Lawyers Bar Association, and on the Judicial 
Selection Committee that helped recommend a magistrate judge in 
    In recognition of her service, in 2006, she was awarded the 
Smithmoore Myers Professionalism Award, the Spokane County Bar 
Association's highest honor. Professor Peterson's 
accomplishments stand for themselves, but I have also received 
numerous letters and emails testifying to Professor Peterson's 
toughness, work ethic, understanding of the law, and advocacy 
on behalf of her clients. I've also received many letters from 
her former students and people she has mentored, taught and 
befriended over the years, letters that all say she has made a 
difference in the lives of so many in my state.
    She clearly meets the standards of fairness, 
evenhandedness, and adherence to the law that we expect of our 
Federal judges. Outside of her many professional credentials, I 
have been able to speak with her and I have been impressed by 
her professionalism and decency.
    I know I speak on behalf of a large number in the 
Washington State legal community in supporting the nomination 
of Rosanna Peterson to be the next district judge for the 
Eastern District of Washington.
    Mr. Chairman, I think it is also important to note for the 
Committee that Professor Peterson's nomination was the product 
of a bipartisan selection commission that we use in my home 
    This commission was formed and did much of its work under 
the previous administration and has proven that it works even 
as we move from one administration to the next.
    I am very proud to have created that selection commission 
and believe it is something that has really served our state 
and our Federal judiciary well.
    Therefore, it is my pleasure today to introduce a great 
lawyer, a teacher and a mentor, who I believe will make an 
exceptional Federal judge and I urge this Committee to approve 
her nomination. I hope we can confirm Professor Peterson before 
the full Senate quickly.
    Senator Schumer. Who knows, maybe 1 day President Peterson.
    Senator Murray. Who knows? Thank you, Mr. Chairman.
    Senator Schumer. Thank you. I know that the commission that 
you and Senator Cantwell have worked on is well known for 
creating excellent nominations in a bipartisan way and I think 
it is a good model for everybody else.
    Senator Cantwell.


    Senator Cantwell. Thank you, Chairman Schumer and 
distinguished members of the Committee. It is great to be here 
with my colleague, Senator Murray, and, also, with our 
colleague, Senator Shaheen. We thank the Committee for this 
opportunity to introduce a Washingtonian to the Committee for 
this United States District Judge for the Eastern District of 
    I think if this is a commitment of voting this nominee out 
of the Committee and onto the floor and into this position, it 
will be the first time this position has been filled by a 
woman. So we are very excited about that.
    Let me say to all the nominees that are before the 
Committee, I congratulate them on their nominations and look 
forward to working with them in the future. But we are 
especially proud to introduce Rosanna Peterson to support her 
nomination for this position.
    I have no doubt that she will be an outstanding 
representative for our country and I am, too, glad to have her 
family here and congratulate them in their support of Rosanna.
    She, as my colleague, Senator Murray, said, serves as the 
assistant professor of law at Gonzaga University, and I know 
that there are many Bulldogs watching via the Internet today 
and are very proud of their professor.
    Before making her way to Washington State, she received her 
JD from the University of North Dakota School of Law, where she 
was the editor-in-chief of the North Dakota Law Review, 
something we are going to point out to our colleagues from 
North Dakota, and a member of the Order of Barristers and voted 
outstanding graduate by her law school faculty.
    Following her graduation, she moved to Spokane, where she 
clerked for Judge Fred Van Sickle, whose ascendency to senior 
status created this very vacancy. So after 2 years with Judge 
Van Sickle, she entered private practice, until her appointment 
at the Gonzaga faculty.
    Professor Peterson brings, I think, an impressive breadth 
of experience to the bench, because in private practice, she 
has represented more than 250 clients in both civil and 
criminal matters at both the state and Federal levels and has 
litigated numerous trials.
    In her current position at Gonzaga University School of 
Law, Professor Peterson teaches evidence, Federal jurisdiction 
and trial advocacy, while directing the school's internship 
    I have no doubt she will be an exceptional jurist for the 
Eastern District of Washington. She has long been recognized by 
her peers for her keen intellect, boundless passion for the 
law, and dedication to equal justice.
    So I offer this Committee my strongest recommendation to 
act quickly and in a positive way to put this nomination before 
the full Senate. I thank the Chairman and my colleagues for 
their consideration. I thank all the nominees for their 
willingness to serve and for the President's nomination of 
Rosanna Peterson before this Committee.
    Senator Schumer. Well, after these two introductions, maybe 
we should nominate her for president.
    We next have Senator Shaheen, who will introduce Professor 
Laub for Director of the National Institute of Justice.
    Sorry. Senator Mikulski will have a statement for the 
record introducing John Laub for the Director of the National 
Institute of Justice, and Senator Shaheen will be introducing 
Susan Carbon for the Director of the Office of Violence Against 
    I am particularly interested in that, being the House 
author of the Violence Against Women Act. So thank you for 
being here, Senator Shaheen.


    Senator Shaheen. Thank you, Mr. Chairman. I thought you 
might be interested in this. Senator Kohl, Senator Franken, I 
am pleased to be here this afternoon.
    After what we've heard, I want to endorse all of the 
nominees, but, of course, I'm here to introduce Susan Carbon, 
who, as you point out, has been nominated to be the Director of 
the Office of Violence Against Women in the Department of 
    I have known Susan for over--well, for about 20 years and I 
have been an admirer of her exemplary commitment to public 
service. Susan was appointed as a part-time New Hampshire 
District Court judge in 1991 by then Governor and now Senator 
Judd Gregg. So I am sure she will have bipartisan support in 
the Senate.
    When I became Governor of New Hampshire, I recognized 
Susan's impressive service on the bench and nominated her to 
serve as a full-time district court judge. Because of her 
commitment to domestic violence and other family issues, Judge 
Carbon was named the supervisory judge on the Judicial Branch 
Family Division in New Hampshire.
    Throughout her career, Susan has been a leader in the New 
Hampshire legal community, including serving as president of 
the New Hampshire Bar Association from 1993 to 1994.
    Now, Mr. Chairman, as you point out, you have been a leader 
in the senate on strengthening the Violence Against Women Act 
and care greatly about this issue. Well, I can assure you that 
Susan Carbon is exceptionally qualified to serve as the 
director of the Office of Violence Against Women.
    Judge Carbon is the leading voice in New Hampshire on 
domestic violence and family law and has been the driving force 
behind many of New Hampshire's efforts to strengthen legal 
protections for victims of domestic violence.
    Judge Carbon has also become a national leader on domestic 
violence. She frequently serves as faculty for the National 
Judicial Institute on Domestic Violence and she chaired the 
project which produced the multidisciplinary Effective Issuance 
and Enforcement of Orders of Protection in Domestic Violence 
Cases, which many people also know as the Burgundy Book.
    The Burgundy Book guides professionals in their work around 
civil protection orders not only throughout this country, but 
the U.S. territories.
    Mr. Chairman, I have no doubt that Judge Carbon will work 
tirelessly to advance the goals of the Violence Against Women 
Act and I urge the Committee to give her confirmation speedy 
recommendation and I give her my strongest recommendation for 
her confirmation.
    Thank you very much. If there is anything more that I can 
do to help Judge Carbon with this appointment, please let me 
    Senator Schumer. Thank you, Senator Shaheen. Again, a great 
introduction for somebody who looks to be a great nominee.
    You're right about the bipartisan nature. Senator Gregg has 
submitted a statement on behalf of Judge Carbon and, without 
objection, I will enter that into the record.
    [The prepared statement appears as a submission for the 
    Senator Schumer. We also have Senator Mikulski and I would 
ask unanimous consent that her statement on behalf of John Laub 
as Director for the National Institute of Justice be added to 
the record.
    [The prepared statement appears as a submission for the 


    Senator Schumer. Now, I will read my statement introducing, 
from my home State of New York, Judge Denny Chin, who is a 
nominee for the Second Circuit Court of Appeals, what we would 
like to think is one of the most important circuit court of 
appeals in the country, along with the others. I do not want to 
offend my colleagues.
    Senator Schumer. Judge Chin is also, not incidentally, a 
classic product of New York upbringing. I am so proud to 
introduce him here.
    His family brought their own culture from Hong Kong to 
America and earned their own advantages through sweat and hard 
work. Within one generation, his family raised a child who rose 
to the top of his profession.
    Judge Chin was born in Kowloon, Hong Kong, came to the 
United States when he was 2 years old. His father worked as a 
cook. His mother worked as a garment factory seamstress in 
    Judge Chin grew up in a cramped tenement in Hell's Kitchen 
with is four siblings, but his parents clearly did something 
right. Denny Chin graduated from the renowned Stuyvesant High 
School. We just had before the Judiciary Committee Judge 
Holder, another graduate. I don't know if you graduated at the 
same time.
    My daughter went to Stuyvesant and my favorite thing about 
them, they are very bright people, it is hard to get in, their 
teams are not that good and they know it, because the mascot of 
the team is the pegleg. They are called the Peglegs after Peter 
Stuyvesant. Anyway, it is good to have a pegleg here with us.
    Judge Chin went on to earn his BA magna cum laude on a full 
scholarship from Princeton University and he received his law 
degree from the Fordham University School of Law. After school, 
he clerked on the District Court for the Southern District of 
New York and went on to work as an associate at Davis Polk & 
    He heeded the call of public service, became an assistant 
U.S. attorney in the southern district for 4 years, then struck 
out and founded his own firm.
    Throughout my term in the Senate, I try to give advice and 
consent to the President on judicial nominees by applying three 
criteria--excellence, moderation and diversity.
    Excellence, they should be legally excellent. If you look 
at Judge Chin's record as a district court judge, he clearly is 
excellent. The Almanac of the Federal Judiciary describes him 
as a judge's judge, conscientious, extremely hardworking, very 
bright and an excellent judge.
    My second criteria is moderation. I do not like to choose 
judges too far right, obviously, but, also, too far left, 
because I think judges at the extremes try to make the law 
rather than interpret the law. Again, Judge Chin is known as a 
tough, but fair sentencing judge.
    He is best known for sentencing the Ponzi scheme operator, 
Bernard Madoff, in a case that could have been a complete 
circus, because there were hundreds of victims who had lost 
everything. Judge Chin ran the proceedings with dignity and 
efficiency and when he sentenced Judge Madoff, he said, ``The 
message must be sent that Mr. Madoff's crimes were 
extraordinarily evil and that this kind of irresponsible 
manipulation of the system is not merely a bloodless financial 
crime that takes place on paper, but that it is one that takes 
a staggering human toll.''
    He is not afraid of unpopular views. He ruled that the New 
York Black Panthers could not be denied the right to march 
based on, quote, ``disapproval of anticipated content,'' and he 
has the support of former Attorney General Michael Mukasey and 
Republican-appointed U.S. Attorney John Martin, who hired him 
30 years ago and has practiced before Jude Chin.
    On the issue of diversity, I think I have given advice and 
consent to the President on 10 or 11 judges. There is only one 
white male, because I think we should have more women and 
minorities on the bench. Judge Chin already has the distinction 
of being the only Asian-American to serve on the Federal 
District Court outside the Ninth Circuit and, with his 
confirmation, he will be the only currently active Asian-
American appellate judge on the Federal bench.
    He explained the importance of diversity in clear terms 
when he wrote, ``If there were more minority judges and lawyers 
in the profession, lawyers might not question a minority 
judge's fairness because of his or her race; lawyers might not 
presume that a minority judge is biased because of some sort of 
absurd notion that the judge might feel beholden to someone of 
the same racial or ethnic group who supposedly was in a 
position of power.'' These are great words and they say it 
better than I could.
    So it is my honor to introduce Judge Chin for nomination to 
the Second Circuit Court of Appeals.
    [The prepared statement of Senator Schumer appears as a 
submission for the record.]
    Senator Schumer. With that, let me ask all of the nominees 
to come forward. We have Judge Chin, we have Professor 
Peterson, we have Judge Carbon, we have John Laub, and Judge 
Conley for the Western District of Wisconsin.
    They tell me I am supposed to have Judge Chin come first; 
not because he is from New York, but because you are on the 
Second Circuit. So you come forward first.
    So, please, raise your right hand.
    [Whereupon, the witness was duly sworn.]
    Senator Schumer. Please be seated. You may both introduce 
your family and make an opening statement.
    Judge Chin. Thank you, Senator. And thank you, Senator Kohl 
and Senator Franken, for being here.
    Let me start by introducing my family. With me is my wife, 
Kathy Chin. We have been married 31 years. My oldest son, Paul, 
is here. He teaches sixth grade math in Newark. He also was a 
Pegleg. He was in your daughter's class and, indeed, he was on 
the football team. And you are right, the teams weren't very 
    Senator Schumer. When I played at Madison High School, 
where Senator Coleman attended, Senator Franken's predecessor, 
our team's motto at Madison was ``We may be small, but we're 
    Senator Schumer. Which I would not say of the Milwaukee 
Bucks, since Senator Kohl has some interest in them.
    Judge Chin. Also here is our 15-year-old, Daniel, who will 
be the star on his basketball team this year. With us also is 
Paul's friend, Melinda, also from Princeton. And my brother, 
Daley, is here with his daughter, Alisha.
    My deputy clerk, David Tam, who has been my deputy at the 
court for 15 years, is here, as well. And I've got a whole 
bunch of law clerks and friends sitting in the back. I want to 
    Senator Schumer. Could all of those who were introduced 
just please--it is always nice to see the families and friends. 
So just stand for a second. We are not going to ask you to say 
anything. Thank you all for being here.
    Judge Chin. Senator Sessions, good afternoon.
    I do not have an opening statement, other than to say I 
thank the President for this honor and I would be pleased to 
answer any questions.
    Senator Schumer. Well, before we do that, since Senator 
Sessions just came in--would you like to make any opening 
statement, Senator Sessions.
    Senator Sessions. No. I would just take a moment to say we 
appreciate this process. It is an important step. Even though 
members, most of our Committee, are not here today, they have 
incredible demands upon them. Four of our Republican members 
are on the Finance Committee and I hear we may have a health 
care bill in a few hours. I know they are working on that.
    But we take it seriously. We look forward to supporting 
most of the President's nominees and I look forward to this 
hearing. Thank you, Mr. Chairman.
    Senator Schumer. Thank you. We will do some brief 
questions. These are the same questions I asked to Judge Lynch 
when he was elevated from the District Court to the Second 
Circuit, and I know he is a colleague of yours.
    Judge Chin. Yes.
    Senator Schumer. Who was your model of an appellate judge? 
In your 1994 questionnaire for this Committee, you said ``On 
the proper role of judges, my view is that judges ought not to 
legislate. That is not their function. Judges interpret and 
apply the law, keeping in mind the purposes of the law. 
District judges, in particular, should focus on ensuring that, 
one, the parties have standing; two, there is an actual case or 
controversy ripe for judicial review; three, that the law is 
applied fairly; and, four, that precedents are followed.''
    Is that still your definition of judicial restraint? Please 
explain. So those are my two questions for you.
    Judge Chin. As to the second question, yes. After 15 years 
of judging, that is still very much my philosophy. I believe in 
the rule of law and I believe in giving the parties a full and 
fair opportunity to be heard.
    As to the model of an appellate judge, I have great respect 
for John Newman of our court. He is extremely smart. He's 
thoughtful. He asks hard questions at oral argument and he's 
always been a gentleman.
    Senator Schumer. Thank you. I have no further questions.
    Senator Sessions.
    Senator Sessions. Judge Chin, in 2007, in the New York Law 
Journal, you made a statement that I guess can be defended, 
but, also, is a statement that raises some concern.
    You said this, quote, ``If justice is blind, why does the 
race of a judge matter? Well race does matter. A black 
plaintiff or a white defendant or an Asian-American litigant 
who appears before me should not believe that I will rule any 
differently because of race or ethnicity or cultural 
background. I won't. But what I will do is bring my diverse 
background with me. A broader mix of judges at bench which more 
fairly reflects the rich diversity of our society will improve 
the overall quality of justice.''
    So I think there is a little bit of a solid statement in 
there and a little bit of a statement that makes me a bit 
uneasy. Would you expound a bit on what you meant in those 
    Judge Chin. Yes, Senator. In a perfect world, race would be 
completely irrelevant and, hopefully, someday we will get 
there. I don't think we're there yet and I think that the 
quality of justice is not as good if the bench is dominated by 
one group of the same background or persuasion.
    I think with a more diverse group on the bench, the judges 
will learn from each other. I do not suggest for a moment that 
an Asian-American judge is more likely to reach a wise result 
than a white judge, but I think the two together can learn from 
each other and perhaps come up with a better answer.
    Senator Sessions. Well, I think the ideal of American 
justice, would you not agree, and it is the strength of our 
system, that a judge puts on a robe and that when they do and 
they take that oath to be impartial, do equal justice to all 
the parties, that that suggests that they will not let their 
personal feelings or biases or prejudices, politics or other 
things interfere with being fair to each party before them; 
would you agree?
    Judge Chin. I agree, absolutely, with that. Everyone should 
be treated equally and as I said in that speech, an Asian-
American litigant should not be expected to be treated less 
harshly or more harshly in front of me. But I do think there is 
something to be gained if the bench reflects the richness of 
our society.
    Senator Sessions. Well, I certainly believe that every 
judgeship should be equally achievable by a person, no matter 
what their background is, and that they should not be favored, 
selected groups or races or ethnic groups or religious groups 
that get favoritism.
    You enjoined, on one occasion, Judge Chin, the enforcement 
of provisions of New York's Megan's Law. In the first of the 
decision, you held that the notification portion of the statute 
violated the ex post facto clause of the U.S. Constitution and 
enjoined it from being applied to inmates who were convicted 
before the statute was enacted.
    The Second Circuit unanimously reversed this decision. On 
remand, you held that the statute violated the due process 
clause in its procedures for assigning defendants into risk 
    Two years after the state and plaintiff reached a 
settlement, the State of New York amended its Megan's Law. You, 
again, enjoined the enforcement of the statute. A divided 
Second Circuit, again, reversed your opinion.
    Would you discuss how you approached that case and how you 
came to be in disagreement with the court on which you would 
seek to sit and what was it you, on several occasions, 
overturned the duly passed law of the people of New York?
    Judge Chin. Yes, Senator. There are three aspects to the 
case and I will take each one at a time. The first was the ex 
post facto clause. I was not opining on whether Megan's Law was 
good or bad. I was not looking at the statute as a whole.
    I was looking at the narrow question of whether it could be 
applied retroactively, that is, to people who committed their 
crimes long before the statute was passed.
    It was a thorny issue. I took a good hard look at the 
precedents and I held that it was punishment that was the 
technical issue. The Second Circuit, indeed, reversed and Judge 
Newman wrote the opinion and Judge Newman wrote that it was a 
question that was not free from doubt, and the court went that 
way. I accept the court's decision, of course.
    The due process part, I did have due process concerns and, 
in fact, the parties settled the case and the New York State 
legislature amended the statute and incorporated measures to 
address a lot of the concerns that I raised, and, in fact, that 
was not appealed.
    The third part was a narrow contractual position that had 
to do with whether a new amendment in the law should be applied 
to those people who were part of the class that was settled 
originally. And I felt that a contract was a contract and the 
state should be bound.
    The Second Circuit reversed. It was a 2-1 decision. There 
was a dissent by one of the judges. And the court held that the 
legislature, in essence, was free to rewrite the contract 
because it was the state legislature.
    Senator Sessions. Thank you. Unlike some of the statements 
some of our colleagues make, I do not think that the U.S. 
Senate and, I suspect, the New York legislature have always 
thoroughly studied the constitutionality of what they pass when 
they pass it and I do not think it is activism that a judge 
would find a statute that is unconstitutional unconstitutional 
and if it is unconstitutional, it should not be enforced.
    So I will look at your answers, appreciate your answers, 
and evaluate that. But we have had instances in which judges, 
for some reason, did not like a law and have gone outside, I 
think, the normal bounds to see if they can undermine it.
    Thank you.
    Judge Chin. Thank you, Senator.
    Senator Schumer. Thank you, Senator Sessions. Senator Kohl, 
do you have any questions?
    Senator Kohl. Judge Chin, you are moving from the trial 
court to the appeals court. How do you see the difference 
between those assignments?
    Judge Chin. Well, first of all, I've loved my 15 years as a 
trial judge. I love the drama of the courtroom, the hustle and 
bustle of the day-to-day proceedings. I've been fortunate and 
I've had a lot of exciting high profile cases.
    So it's with some reservation that I would move on, if I am 
confirmed. On the other hand, after 15 years, I think it is 
time for a change. If I am confirmed, I look forward to being 
able to write more, to decide issues a little bit more 
deliberately, and perhaps to have a broader impact.
    Senator Kohl. As you know, you sit on a three-judge panel 
as differentiated from how you observed and ruled as a trial 
court judge. In that situation, you need to be in accord with 
at least one other judge on your panel in order to form an 
opinion and it requires some degree of ability to convince at 
least one of the others to support how you think. Is that a 
challenge that you would embrace?
    Judge Chin. It is a challenge that I would embrace, for 
sure. In fact, I've sat by designation many times now. Roughly, 
every 2 years, I've sat on the Second Circuit. In fact, I've 
issued 10 majority opinions.
    And so I understand it's a very different process, because 
it is--you have to build some consensus. The back-and-forth in 
terms of the opinions is something I am not used to, because of 
the independence that we have as trial judges.
    Senator Kohl. Thank you. Thank you, Mr. Chairman.
    Senator Schumer. Now, Senator Feingold has an opening 
statement first, I guess, and then he may ask questions of this 
witness, whatever you prefer.
    Senator Feingold. I will pass on the questions.
    Senator Schumer. So Senator Feingold for Mr. William Conley 
for the Western District of Wisconsin.


    Senator Feingold. I apologize for being unable to be here 
at the beginning of the hearing and thank you, Mr. Chairman, 
for recognizing me now.
    It is a great pleasure to introduce to the Committee 
William M. Conley, who the President has nominated to serve as 
U.S. District Court Judge in the Western District of Wisconsin.
    Bill Conley attended the University of Wisconsin-Madison 
for both his undergraduate and legal education, receiving 
honors from both. He graduated cum laude from the law school, 
where he was also a member of the Order of the Coif and served 
as articles editor on the Wisconsin Law Review.
    After graduation, Mr. Conley clerked for Judge Thomas E. 
Fairchild, who was a legendary Wisconsin judge on the United 
States Court of Appeals for the Seventh Circuit. He then began 
work in 1984 at the law firm of Foley & Lardner, where he 
continues to work today as a commercial litigation partner.
    I suppose full disclosure would be appropriate here. I 
first met Bill Conley in 1982 when he was a summer associate at 
Foley & Lardner and I was a young associate at the firm, and I 
think I gave him something to do that I did not want to do.
    I left private practice to run for office, but Bill made it 
his career and is now widely known as one of the top lawyers in 
the state. He has written chapters for practice guides in the 
appellate process, antitrust issues, product distribution and 
Federal civil procedure. After his nomination, he received a 
unanimous well qualified rating from the American Bar 
    Mr. Conley's litigation background has provided him with 
diverse experience and great insight into the judicial process. 
Over the last 20 years while he has been at private practice, 
he has also participated in the justice system as a mediator, 
an arbitrator, and an early neutral evaluator, which is a 
volunteer position that helps litigants reach cost-effective 
resolutions outside of the court.
    Mr. Conley recognizes that as a successful lawyer, he has 
an obligation to serve the disadvantaged. He has devoted a 
significant amount of time throughout his career to 
representing criminal and civil pro bono clients.
    One of the things, frankly, that makes me most proud of 
this nomination is Bill Conley's deep Wisconsin roots. He grew 
up in the beautiful community of Rice Lake, a town of about 
8,500 residents, in the northwestern part of the state. He has 
lived virtually his entire life in the Western District.
    He was educated in Wisconsin and now, with the Senate's 
approval, he will serve the people of the Western District as a 
Federal Judge. He has described the prospect of serving in this 
position as, quote, ``a way to give back to the community that 
shaped my life.''
    He is a tremendous example for hardworking young people in 
the small towns of our state and across the country, and I, 
obviously, strongly support his nomination.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Senator Schumer. Thank you, Senator Feingold, for that 
excellent statement. Now, we will go to Senator Franken for 
questions of Judge Chin.
    Senator Franken. Thank you, Mr. Chairman.
    Judge Chin, you are currently presiding over the 
controversial Google Book search settlement, the possible 
resolution of which might be one of the important copyright 
issues or decisions to come before the court in years.
    As someone who has presumably thought a lot about 
intellectual property law and access to information, I would 
like to ask you about net neutrality. What role do you think 
courts should play in ensuring both an Internet free from 
censorship and the prevention of piracy?
    Judge Chin. Thank you, Senator. I would not want to opine 
generally on what the role of the courts are in this respect.
    Our role is to decide cases and if those cases are 
presented and if those cases are presented to me, and I've had 
some of them in the past, and if they are presented to me in 
the future, then I would apply the law.
    I would certainly consider the statutes carefully, the text 
of the statutes, the cases that have interpreted them, the 
legislative history, and make a decision based on the law.
    Senator Franken. All right. Fair enough, then. I suppose 
you are not going to tell us how you are going to decide in the 
Google case.
    Judge Chin. That is correct, Senator.
    Senator Franken. Those are all the questions I have, Mr. 
    Senator Schumer. Well, thank you, Senator Franken. We look 
forward to your further questions of other witnesses.
    Well, thank you, Judge Chin. Congratulations.
    Senator Sessions.
    Senator Sessions. Just briefly. You have mentioned that it 
is difficult sometimes to sentence. Congress has spoken on 
sentences. The courts have maneuvered around the guidelines. 
Even Justice Scalia can make a mistake, I think.
    But how would you discuss your philosophy of following the 
guidelines as a trial judge, where you have to apply them, and 
what approach has there been--where do you see your role as an 
appellate judge in that process?
    Judge Chin. Well, in terms of what my role has been, I've 
done a lot of sentences in 15 years and it is clearly one of 
the most difficult things, if not the most difficult thing that 
a trial judge does. And what I have been doing, certainly, 
since Booker is to follow the law in that sense.
    The guidelines are a starting point. They are an important 
starting point. They should be given fair and respectful 
consideration. And I've found it helpful to have the guidelines 
as a framework.
    It's comforting to know what the judges throughout the 
country, in their collective wisdom, have decided is a 
heartland range. But I've also felt it was appropriate to have 
discretion to go above or below the guideline range in the 
limited circumstances where that is warranted.
    As an appellate judge, I will have to get used to not 
making that initial decision. It will be a reviewing decision 
and under Gall, the standard is abuse of discretion and that's 
the standard that I would apply.
    I would hope that--yes, sir.
    Senator Sessions. That is a pretty low standard for a 
judge. How would you evaluate your philosophy in actual 
sentencings compared to your fellow judges being within the 
guidelines as opposed to without them?
    Judge Chin. Well, in part, it's the process. Did they 
follow the right process? Did they do a guideline----
    Senator Sessions. But in the District Court bench where you 
practiced, do you consider yourself more likely to follow the 
guidelines than your colleagues or less likely to follow them?
    Judge Chin. I believe there were some statistics done and I 
was right in the middle of--I was exactly at the average for 
the court, precisely at the average.
    Senator Sessions. I cannot complain about that.
    Judge Chin. So a few tenths of a percentage point off. Our 
court has been criticized as going below guidelines quite a 
bit, but we have lots of cases with cooperation. And so it's 
hard to draw any generalizations.
    Senator Sessions. Well, the matter is a serious one.
    Judge Chin. I agree.
    Senator Sessions. And I do not think justice will be well 
served if we abandon a rather strong presumption that 
sentencing should be within the guidelines.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Senator Sessions. Thank you, 
Judge Chin. Now, we will call up the second panel.
    Judge Chin. Thank you, Mr. Chairman.
    Senator Schumer. We will need Mr. William Conley, Professor 
Peterson, Judge Carbon and Mr. Laub to all come forward.
    [Whereupon, the witnesses were duly sworn.]
    Senator Schumer. I am going to call on, before I ask any 
questions, since Senators Kohl and Feingold are here from 
Wisconsin and so are you, Mr. Conley, I am going to let them 
ask the first two questions, and then Senator Sessions and I--
the first two rounds of questions and then Senator Sessions and 
I will resume.
    Senator Kohl.
    Senator Kohl. Thank you so much. Mr. Conley, Senator 
Feingold and I will have the opportunity to question you first, 
but before we do, we would like you to introduce to us those 
who are with you today on this important moment in your life.
    Mr. Conley. Thank you very much, Senator. With me--and 
should I have them stand as I introduce them--is my lovely 
wife, Suzie, who is now sitting here, and our above average 
children, Patrick and Meredith--Meredith may have to jump up to 
be seen--age 11 and 8, respectively.
    Also with me are my brothers, Dan and John, who both 
practice law in Milwaukee, Wisconsin. And my nieces, Kate, 
Alana and Kara, and nephew, Will.
    And if you'll indulge me, just to say representing dozens 
and dozens of cousins around the world is my cousin, Mary 
    Also listening on Webcast back in Milwaukee is my own 
sainted mother, Miriam Conley, and the best in-laws one could 
ever hope to have, Bob and Sally Birmingham. And looking down 
on these proceedings are my late father, Edward M. Conley, and 
brother, Tim.
    Senator Kohl. Great. Thank you all for being here. Mr. 
Conley, although you are bound by the precedent of your circuit 
and the precedent of the U.S. Supreme Court, as a Federal 
Judge, you will be called upon to decide cases where there is 
no precedent or where the precedent does not clearly determine 
the outcome.
    How do you intend to approach these kinds of cases?
    Mr. Conley. Thank you, Senator. I think at the end of the 
day, the best you can do is look at the law, to understand the 
facts to the best of your ability, and to reflect that in your 
decisionmaking to the parties so they appreciate that you have 
understood both, and then to reach a decision that you think is 
consistent with the best interpretation of the law and 
precedent to that point.
    Senator Kohl. Why are you seeking to be a Federal Judge, 
Mr. Conley.
    Mr. Conley. Well, Senator Feingold alluded to a very big 
part of it and that is that I am at a point in my career where 
I had always assumed I would be doing something in public 
service and this was an exceptional opportunity.
    The judge I clerked for, Judge Fairchild, said that 
becoming a judge is something that happens to you along the 
way, and it feels, and it felt, and I have seriously considered 
in applying, that this was the time and the place for me to do 
this work, and I'm honored to have the opportunity.
    Senator Kohl. Mr. Conley, I think----
    Mr. Conley. The Senate agreeing.
    Senator Kohl. Of course. I and I think most of us believe 
that life experiences do influence the decisions that people 
make inevitably, but judges, more than anyone else, have a duty 
to ensure that they do not cross a line, to allow their 
background to inappropriately influence the outcome of cases.
    So we ask you, where do we draw the line and at what point 
does personal experience improperly impact judging? How have 
you and how will you ensure that your personal experiences do 
not improperly influence your judicial decisions?
    Mr. Conley. I think it's the obligation of every judge to 
try to leave their own prejudices at the doorstep and that 
certainly will be my No. 1 goal to bring fairness to the 
proceedings for the parties and for the larger community. And 
beyond that, I think you can only do your best.
    Senator Kohl. Thank you. Thank you very much, Mr. Chairman.
    Senator Schumer. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. Mr. Conley, can 
you tell us more about the Western District's neutral evaluator 
program that you participated in and based on that experience, 
as well as your experience as a litigator, what other programs 
do you intend to institute as a judge to help parties reach 
amicable resolutions?
    Mr. Conley. Well, the early neutral evaluation program was 
something that was instituted many years ago by the Western 
District of Wisconsin and it's an effort, where both parties 
have an interest in addressing the possibility of resolution at 
an early stage, to bring in an experienced litigator to talk 
through the issues, to take written submissions, and to try to 
work through what might be a result, including giving an 
indication to the parties where you think the result may come 
out if they decide not to proceed.
    It's been, I think, a generally successful program, 
although not used as often as one might hope. But it's one I 
very much enjoyed being a part of. And I certainly agree that 
as the cost of litigation has skyrocketed, that those kinds of 
alternative dispute resolutions are something the courts have 
to look at carefully.
    As a Federal Judge, if I were lucky enough to be confirmed, 
the general practice in the Western District is not to have the 
presiding judge participate in those things. I think it's a 
very difficult thing for the presiding judge to do.
    And I would certainly encourage parties to pursue those 
avenues and there are some through the magistrate and the clerk 
of the court to do that, but I would expect that as a sitting 
judge, my role would be limited in terms of that, only because 
of the ethics of being perceived to push parties toward a 
resolution that they may not otherwise want to reach.
    Senator Feingold. Thank you, Mr. Conley.
    Justice Carbon, thanks to the Violence Against Women Act, 
many improvements were made to the justice system in response 
to violence against women. However, especially in these 
economic times, the reality is that many women feel unable to 
escape abusive situations; not because there are not laws to 
protect them, but because they are financially dependent on 
    The Transitional Housing Assistance Program grant is one 
example of how the Office on Violence Against Women helps meet 
the economic needs of victims. Are there any other ways you 
would plan to address the grave economic difficulties that 
these victims face?
    Judge Carbon. Thank you, Senator. May I have your 
permission in thanking the President before I respond to your 
    Senator Feingold. Fine with me.
    Judge Carbon. Thank you. I am deeply honored to be here 
this afternoon and would like to take this opportunity to thank 
Senator Schumer and others on the Committee for your taking the 
time to conduct the hearing here this afternoon.
    I am deeply honored to be nominated by President Obama for 
the position of Director of the Office on Violence Against 
Women and, if I am so lucky as to be confirmed, to have the 
privilege of serving in this position.
    I would also like to thank the Vice President and the 
Attorney General for their confidence in supporting me in this 
nomination. I know that the issue of violence against women is 
extremely important to this administration, and so I am 
particularly humbled to have the nomination and hope that I 
will secure your confidence, as well.
    And if I may have your indulgence, I would love to be able 
to introduce my guests who are here this afternoon.
    Senator Schumer. I was trying to change the order a little 
    Judge Carbon. I'm so sorry.
    Senator Schumer [continuing]. To give our Wisconsin 
colleagues a chance to ask questions for Wisconsin, but Senator 
Feingold had asked you a question. So maybe we will have--if 
this is all right with the panel--each of the witnesses make a 
brief statement and introduce their families. So continue. I 
think you are right to do that, Judge Carbon.
    Judge Carbon. My apologies, Senator Feingold. I'm so sorry.
    I would love to introduce my husband of nearly 32 years, 
Larry Berkson, who is here. Also present with me this afternoon 
is my brother-in-law from Madison, Wisconsin, Dr. Michael 
    I also have a colleague who I hope has been able to join 
this afternoon, the chief judge from the D.C. Superior Court, 
Lee Satterfield. Also, a colleague of mine from Portland, 
Oregon, Hon. Dale Koch, who has joined this afternoon. The 
Executive Director of the National Network to End Domestic 
Violence, attorney Roberta Valente, is here.
    The co-Executive Director of the Legal Resource Center on 
Violence Against Women, attorney Darren Mitchell. And a very 
dear friend of mine from the Office on Violence Against Women, 
attorney Nadine Neufville, who has joined this afternoon. And 
there are many others who are here for whom I'm very grateful.
    So with that indulgence, I thank you very much, Senator.
    Senator Schumer. Thank you very much, Judge Carbon.
    Professor Peterson, would you like to make a brief opening 
statement and introduce your family?
    Ms. Peterson. Thank you. I very much would like to thank 
the President, also, for the nomination. And to Senator Murray 
and Senator Cantwell, I'm most grateful for those generous 
    With me today is my husband, Frederick Peterson, my husband 
of nearly 39 years; our daughter, Miranda Darby; and, her 
daughter, Aurora, newborn, who is home with her husband, Tom 
Darby, and they're watching via Webcast, as is my son, Alex, 
who is watching in Hong Kong, where he's studying law.
    With us also today is my sister-in-law, Sherry Shipley, and 
her husband, Don Shipley; longtime friends, Karen Jones Walcott 
and John Winthrop Walcott, Tom Krzyminski, Christine Nickerson, 
and some former students who are becoming colleagues, April 
Hare, L.D. Quintanilla, Brandon Roche, and a current student, 
Shawna C. Murphy.
    Thank you, Senator.
    Senator Schumer. Thank you, Professor Peterson.
    Since Senator Mikulski could not be here, as you know, she 
is recovering from that little fall she had, I will do a brief 
introduction of Professor Laub.
    President Obama nominated Professor John Laub to be the 
Director of the National Institute of Justice. He is currently 
the distinguished university professor in the Department of 
Criminology and Criminal Justice at the University of Maryland.
    Professor Laub's academic career in the field of 
criminology and criminal justice has spanned almost 30 years 
and he has published two award-winning books, a wide variety of 
articles about crime, juvenile justice, criminal victimization, 
and the history of criminology.
    He received his BA from the University of Illinois and 
received one of the most outstanding MAs and PhDs that one can 
receive in this field from the State University of New York's 
Albany School of Criminal Justice.
    Professor Laub, if you would like to make a brief opening 
statement and introduce your family, that would be great.
    Mr. Laub. Thank you very much, Senator Schumer. And thank 
you to the other Senators.
    First, I would like to thank the President and the Attorney 
General for having the confidence in my abilities and for 
nominating me for this position.
    I also would like to take this opportunity to introduce my 
family. My wife is here, Joanne DeSiato; my daughter, Calies 
Menard-Katcher, and her husband, Paul Menard-Katcher. And I 
want to particularly thank Calies and Paul, who are both 
doctors in Philadelphia and were able to rearrange their 
schedules to be here with me today, and I appreciate that.
    I also know that there are numerous colleagues and students 
from the University of Maryland and I'd like to thank them for 
their support.
    Again, thank you for having me here today and I look 
forward to answering your questions.
    Senator Schumer. Thank you, Professor Laub. Senator 
Feingold, did you finish your questions?
    Senator Feingold. I had asked a question.
    Judge Carbon. Senator, you do not need to repeat it. I'm 
happy at this time to answer the question. Thank you.
    The issue of the tough economy on victims of domestic 
violence is extremely important. We all know that a bad economy 
does not cause domestic violence, but it can certainly 
contribute to problems which victims face and, in particular, 
it is difficult when potentially neither adult has a job. So 
they are dealing with difficult financial circumstances and 
especially the issue of transitional housing and the need to 
potentially relocate if there is a protective order or another 
safety measure which is taken so that the victim may be safe.
    That's an issue about which we are all concerned and I am 
especially pleased that the Senate has addressed this issue and 
that you have been in support of transitional housing.
    With regard to what else can be done, I am pleased that the 
Violence Against Women Act is undergoing study for its 
reauthorization and would hope that additional funds for 
transitional housing will be considered, amongst other issues, 
such as legal assistance for victims when they are in court, 
whether it is with regard to a protective order hearing or some 
other type of matter.
    These are extremely important programs and, if I am so 
lucky as to be confirmed, I would very much welcome the 
opportunity to work with you on other ideas that we could do to 
assist in assisting victims.
    Senator Feingold. Thank you.
    Senator Schumer. Senator Sessions. I am going a little out 
of order here, but I am trying to alternate.
    Senator Sessions. Well, I would be delighted, if some of 
our colleagues want to go first and excuse themselves, because 
I am going to be here to the end now.
    Senator Schumer. Senator Franken.
    Senator Franken. Great. Justice Carbon, you have written 
that courts are a safety net for social ills. How do you feel 
about mandatory arbitration in employment contracts which could 
deny workers access to courts, even in circumstances of sexual 
assault or harassment?
    Judge Carbon. Thank you, Senator Franken. As a judge, I 
believe that any victim ought to have a full panoply of legal 
remedies available to him or her. And so I would have some 
concern if we were to bar a victim from the opportunity to have 
his or her day in court.
    So I would have concern about that and would want to study 
the issue further to determine whether that would be a viable 
remedy. But I think that it is a grave concern if we foreclose 
the opportunity for a victim to have their day in court to be 
fully heard.
    Thank you.
    Senator Franken. Thank you. Mr. Conley, you have served as 
a mediator and arbitrator in a variety of cases, including 
cases involving Title VII sexual discrimination claims and 
Americans with Disabilities Act claims.
    How do you feel about employment contracts that require 
mandatory binding arbitration of Title VII or other civil 
rights claims?
    Mr. Conley. Senator, I can't say, although I've had some 
experience with labor law and that I've looked at those issues 
or have litigated them, with a few limited exceptions. I 
understand that the Federal courts are moving towards greater 
recognition of the right of arbitration and, obviously, the 
Senate and Congress as a whole will have something to say about 
whether or not those rights will be imposed.
    But I haven't looked at the issue enough to give you an 
answer beyond that.
    Senator Franken. I am talking about mandatory binding 
    Mr. Conley. I understand, Senator, and I'm not, at this 
moment, aware of whether mandatory binding contractual 
obligations, whether through a collective bargaining agreement 
or through some other contractual means, are overridden by 
those acts. I suspect, as I think about, that they are and I 
don't know what the current state of the law is.
    So I really can't answer beyond the fact that I would look 
closely at what the law said, were I lucky enough to be 
    Senator Franken. I am going to return to a question I asked 
the attorney general this morning. Professor Laub, last week, 
the National Institute of Justice, the institute you hope to 
run, released a remarkable report.
    That report found that there is forensic evidence from tens 
of thousands of unsolved murders and rapes that have never been 
sent to crime laboratories and that is sitting untested in 
police departments around the country. Forty percent of those 
pieces of evidence actually had DNA in them.
    As Director of the National Institute of Justice, what 
would you do to ensure that the NIJ continues to produce such 
hard-hitting reports and that the Department of Justice pays 
such reports the attention that they deserve, and, 
specifically, this one?
    Mr. Laub. Thank you, Senator Franken, for that question. 
This is an important issue and, clearly, it's an important 
issue with respect to the National Institute of Justice study 
and what Attorney General Holder said earlier today in a 
    And it seems to me that what one needs to do is to begin to 
investigate what is the reason for the backlog; is it a 
management issue; how does that vary by types of crime; what do 
we know about the size of the police agencies with respect to 
where that evidence is backlogged.
    Assuming I'm, hopefully, lucky enough to be confirmed for 
this position, it's something that's quite important to the 
National Institute of Justice, because the backlog means that 
there's a delay in justice for victims of crime and it's a 
delay in holding offenders accountable from the crimes that 
they may have committed.
    Senator Franken. Thank you. Thank you, Mr. Chairman.
    Senator Schumer. Senator Sessions.
    Senator Sessions. Thank you. Ms. Carbon, it is good to have 
you with us. I know my friend cares about the arbitration 
question, but make no mistake, all of us believe that if 
somebody sexually assaults a person, that is not subject to 
    We did have a dispute over whether, if the individual sued 
the company that hired the man, whether or not that matter 
should be arbitrated or actually go to litigation, and the 
court held, with Mr. Franken's view, eventually, that they 
would have that right, at least in the instance that was 
involved there.
    I will just briefly ask a few questions. Let me just say to 
each of you and to the people that are here how the system 
works. Each one of these nominees has undergone a background 
check. ABA has reviewed your qualifications. Lawyers in the 
state and others have opined as to your fitness for office. And 
out of all that, the President, after probably having the 
Department of Justice and others review the situation, has seen 
fit to nominate you.
    Once all that occurs, you have this hearing, in which 
questions can be asked openly and then it would be set for a 
markup, we call it, at Chairman Leahy's discretion and then any 
Senator can ask that that be held over one week without making 
any aspersions on anybody's character.
    Usually, I believe 1 week is probably healthy, because 
maybe there is somebody somewhere that just read about you and 
has got a complaint that they would like to float and it gives 
a chance to deal with that.
    Then the second week, it comes up for a vote in the 
Committee and then it goes to the floor and then the majority 
leader will call you up for a vote when he sees fit and he can 
do that by a request of unanimous consent, and most judges move 
forward on that unanimous consent, probably 75-80-plus percent.
    Some that have problems that individual Senators object to 
or have other concerns about could find it more difficult. That 
is kind of where we are. I hear good things about most of you--
all of you as nominees, and will ask a few questions.
    Professor Peterson, you talked about one of your more 
significant cases is dealing with an illegal alien case who had 
been deported on a prior drug conviction and then reentered the 
country and you said the defendant faced an 8-year minimum 
sentence and another deportation, had come in and with no 
likely opportunity to return lawfully to the United States.
    The reason this case was significant to me was I gained a 
new level of understanding of the issues that illegal aliens 
face trying to return to the United States after deportation.
    Would you, as a judge, be willing to enforce the law that 
says that if you are convicted of a drug offense and are 
deported, you are not entitled to come back in the country?
    Ms. Peterson. Absolutely, Senator.
    Senator Sessions. I do not think there is anything unfair 
about that. We cannot have everybody in the world come to 
America and if, while they are in an illegal status, they are 
convicted of a serious crime, they ought not to be able to 
expect to stay in the country, I think.
    Mr. Conley, you had an interesting case when you 
represented the bar about utilizing lawyers' mandatory fees and 
political contributions. You were a good lawyer for the Bar 
    And then later, I guess--I do not know how that case came 
out in Wisconsin, but you filed a brief in support of, I 
believe, California.
    Mr. Conley. Yes.
    Senator Sessions. Keller v. State Bar of California, 
raising that same issue. I guess the complainants were saying 
``It is not right to take my money that I have to pay to be a 
lawyer and then turn around and give it to some skunk 
politician that I do not agree with.''
    The Supreme Court agreed with that view; did they not? Is 
that what they held? I just see my notes here.
    Mr. Conley. I don't recall the Supreme Court using the term 
``skunk.'' But I understand, in Keller v. State Bar of 
California, that there was a ruling in terms of narrowing those 
areas in which a mandatory bar could engage in what was 
referred to as speech or political speech activities.
    I don't think there was ever any question of a mandatory 
bar making contributions to individual politicians, skunk or 
    Senator Sessions. What kind of contributions were they 
talking about?
    Mr. Conley. Yes. But, rather, the activities, the speech 
activities of a mandatory bar, which may be as innocuous as 
arguing for a procedural change in how one brings a particular 
law or enforces a law to what are sometimes considered more 
controversial issues among members of the bar themselves.
    The question is whether or not, in a mandatory bar setting, 
they can take those positions and use funds of mandatory nature 
to take those positions, and, ultimately, the determination in 
Keller was that there would have to be segregated fees, unless 
the political activity was directly related to the important 
functions of the bar, which were the administration of justice.
    And I believe there was one other, which I have to go back 
and look at the decision. Administration of justice was the 
primary one that would justify use of even mandatory fees. 
Otherwise, you would have to segregate and be refunded.
    I should say, too, that this was a position that I took on 
behalf of the state bar as part of our firm's accepting of a 
pro bono representation. So where that should come out----
    Senator Sessions. Well, it is an interesting question. I 
have no complaint about you taking that view as, I guess, a 
retained attorney.
    Mr. Conley. As a pro bono. We didn't get paid for it, but I 
was certainly an advocate.
    Senator Sessions. Well, I usually do not volunteer to take 
positions I do not agree with.
    Mr. Conley. Senator, in fairness, it was our firm who made 
the decision, not I.
    Senator Sessions. All right. Very good. Mr. Laub, you wrote 
an article, Let the Water be Wet, Let the Rocks be Hard, 
Anarchism as a Sociology of Quality of Life, and you stated 
that ``Freedom is an active participation in a society in which 
all the relations of its members are based not on power, but on 
the principle of mutual aid.'' You define mutual aid as, quote, 
``leaving behind the world of power, resisting institutions and 
relationships that govern.''
    Well, one thing I would say to you, it shows we read what 
you do and the fact that you may not get many other questions 
indicates maybe we did not--people did not find anything you 
have said wrong. So that is something you should take some 
pleasure in.
    But what did you mean by that, Mr. Laub.
    Mr. Laub. Well, Senator, I thank you for that question. It 
was an article that I wrote when I was a doctoral student in 
1978. And knowing that you or your staff would find that 
article, I thought it would be best to bring it forward.
    And I reread the article 30 years out and, frankly, didn't 
understand much of it. But I think that, in all honesty, one of 
the issues that I've been quite concerned about is quality of 
    In fact, one of the first articles I wrote was fear of 
crime as an issue respecting quality of life. And I think what 
that article emphasized was the importance of thinking about 
how people are not only personally responsible, but socially 
responsible with respect to mutual aid.
    I have to say that if you look at my academic career since 
that article was written, most of what's in that article has 
been repudiated. So I think the evidence is clear where my 
feelings are today.
    Senator Schumer. I think I let Senator Sessions go on for 
sort of two rounds, trying to be informal here. I am going to 
call Senator Klobuchar and then Senator Feingold for 5 minutes 
    Senator Klobuchar. Thank you very much. Thank you, Chairman 
Schumer. Thank you to all of you. Congratulations.
    I am going to focus my questions with Judge Carbon, because 
of the fact that I was a prosecutor for 8 years and, actually, 
Hennepin County in Minnesota, Minneapolis, is very well known 
for the work that we have done with domestic violence, in 
particular, the Domestic Violence Service Center, which was one 
of the first one-stop shops for victims of domestic violence, 
where there is a place for their kids to play. Shelters are 
represented there, as well prosecutors and police.
    We have found it to be incredibly helpful for those people 
who just cannot quite handle running through the government 
center, which I think is hard for any lawyer to figure out 
their way through the red tape, much less a victim of domestic 
    I wanted to talk with you, first of all, about how your 
judicial expertise could help you in this job in a different 
way maybe than other people who have held the job before, from 
what you have seen with domestic violence cases.
    Judge Carbon. Thank you very much, Senator. In my work as a 
judge, and I have been a judge now for about 18 or 19 years, 
much of that time has been focused on issues of domestic 
violence. I have done work within the state and, also, across 
the country, national leadership work with the National Council 
on Juvenile and Family Court Judges, training my colleagues, 
and, as well, across the world in working with judges and 
others on issues of domestic violence.
    I think the background that I would bring to this position 
relates to the importance of the judicial community within the 
Violence Against Women Act. One of the first responsibilities 
is that the director be the link to the judicial community.
    There has not been a judge in this position before and I 
think that my experience as a judge, working with many 
different multidisciplinary groups on many different issues, 
all within the umbrella of domestic violence, would enable me 
to work well, I would hope, if I am so lucky to be confirmed, 
with the many different groups on expanding that role and 
engaging my colleagues across the country in these issues.
    Senator Klobuchar. In fact, do you think there could be 
more work done on a cross-jurisdictional basis? I know they 
stopped funding for services, training officers and 
prosecutors. There is a current relationship there of cross-
jurisdictional work.
    Do you think we could do more? Let me just give you an 
example. In our county, we actually started something like they 
would do in a hospital when something goes wrong with the 
surgery, where the people come together and review domestic 
violence cases, if there has been a long history of domestic 
violence that sadly ended in a murder, to see what went wrong 
in the system. It was a very good way to come out with some 
policy recommendations.
    Could you give some ideas there with the multi-
jurisdictional work?
    Judge Carbon. Absolutely. And first, let me commend the 
State of Minnesota, the work that has been done in Minnesota is 
extraordinary. And you continue to be a national leader in work 
that has just recently been released on safety audits and 
managing the overall breadth of walking through the system as a 
victim and the many different intersection points for victims, 
so that we can help improve the process.
    One project that I've done that relates to the issue you're 
raising here is to chair New Hampshire's Domestic Violence 
Fatality Review Committee. And as you may or may not know, that 
is a quintessential way, under the Violence Against Women Act, 
to bring communities together to address domestic violence.
    In its worst, a domestic homicide is as bad as it gets. And 
so when we bring all of the professions together to study 
domestic violence homicides, we can try to understand where 
breakdowns in the system occurred so that, ideally, we can 
prevent future homicides from happening.
    We don't limit our work to domestic homicides. We also look 
at how the entire system works together, how judges work with 
law enforcement and prosecutors and advocates and so forth, so 
that we can make the overall system of domestic violence 
improved for safety and accountability.
    Senator Klobuchar. The other thing we have done in our 
state is there is actually an outside group, a nonprofit group, 
called Watch, and they have these red clipboards and they go in 
and watch all of the domestic violence cases, evaluate the 
judges, put out a newsletter. I thought that was helpful.
    But my last focus just would be on when kids are present 
when there is domestic violence. We used to have a poster in 
our office that said--with a picture of a mother with a band-
aid on her nose, holding a baby, and it said ``Beat your wife 
and it's your kid who will go to jail,'' to show the cycle of 
violence that occurs when children are in the home where there 
is domestic violence.
    Do you want to talk about any ideas you would have there 
with child protection or things you think need to be done in 
coordination on children's issues when there is domestic 
    Judge Carbon. Absolutely. One of my own priorities, if I'm 
lucky enough to be confirmed for this position, is to focus the 
energy to the Office on Prevention Work and particularly around 
children who are exposed to violence.
    There is a tremendous cycle of abuse and if we do not 
institute enough prevention programs, we will see children 
growing into the criminal justice system, both as potentially 
other perpetrators or further victims.
    I'd also like to see the energy of the office focused 
around teen dating violence, because so often, people are in 
very unhealthy relationships not knowing that there is a better 
    So I think that the work that we do around custody in 
domestic violence, around prevention programs for children who 
are exposed to violence, and around teen dating violence will 
be extremely important for the office.
    Senator Klobuchar. Thank you very much. I also wanted to 
point out that I had a very pleasant trip to your state this 
summer, visiting Senator Shaheen. My other committee, I chair 
the Tourism Subcommittee, and we did an event in front of--now, 
let me say this right--Lake Winnipesaukee. Is that right?
    Judge Carbon. You got it.
    Senator Klobuchar. I was always mortified I was going to 
embarrass Senator Shaheen and say it wrong. So that did not 
    Judge Carbon. We would welcome you back anytime.
    Senator Klobuchar. Thank you very much. Thank you, Mr. 
    Senator Schumer. I thank all the nominees, and that 
concludes the hearing.
    Senator Schumer. We are going to resume the hearing just 
for a minute. I was out of the room on a call about health 
    I just want to, in the resumed hearing, ask unanimous 
consent to put Senator Leahy's statement in the record, to put 
letters of support for Judge Chin into the record, and 
acknowledge that the record will stay open for one week for 
other statements.
    And for the second time, the hearing is adjourned.
    . I've been here longer--in the Senate longer than any 
member of this Committee. We've had several long--ones but I've 
never known a time, whether somebody was for or again, that 
needed more than 3 weeks to get the answers to my questions.
    We'll stand in recess. I congratulate you all, and I thank 
you all for being willing to answer your Nation's call in this 
way. Each one of you have answered the--call before and I 
appreciate you doing it again.
    [Whereupon, at 4 p.m., the hearing was adjourned.]
    [The biographical information follows and then questions 
and answers and prepared statement appears as a submission for 
the record.]










































































































































































































































































                         FOR THE FIRST CIRCUIT


                       TUESDAY, DECEMBER 1, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 10:01 a.m., Room 
226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse 
    Present: Senator Franken.


    Senator Whitehouse. The hearing will come to order.
    Today we will consider President Obama's nomination of O. 
Rogeriee Thompson to the United States Court of Appeals for the 
First Circuit. I am very grateful to the Chairman of the Senate 
Judiciary Committee, Chairman Leahy, for the opportunity to 
chair this particular hearing, and I do so with great pleasure 
since the nominee is a distinguished Rhode Island judge, and a 
friend of many years' duration. I welcome Justice Thompson and 
her family and friends to the Judiciary Committee and to the 
U.S. Senate.
    In particular, I want to welcome her husband Bill who is 
here, and her daughters Reza and Sarah. Their son is away in 
Spain but is here in spirit. And also, her brother-in-law, Ed 
Clifton, who is another distinguished jurist, along with her 
husband Bill. It's quite a judicial family in Rhode Island. Ed 
Clifton. It's wonderful to have you here, Your Honor.
    Clifford Monteiro is here, who is a distinguished leader in 
the NAACP and had a very long and distinguished career in law 
enforcement in Rhode Island. I also want to welcome and have 
the record reflect the presence of Congresswoman Christensen, 
who has come from the House of Representatives to be here for 
her friend and this family today. I am very pleased, 
Congresswoman, that you could be here.
    I particularly welcome to the Committee the senior Senator 
from Rhode Island, Jack Reed, who will introduce Justice 
Thompson at the conclusion of my brief opening statement.
    It has been a great honor to serve with Senator Reed in the 
Senate, and it has been a pleasure. He showed great courtesy in 
allowing me to assist him in identifying the best possible 
nominee to serve on the First Circuit, which serves our home 
State of Rhode Island. I was proud to join him in recommending 
Justice Thompson to President Obama, and I thank the President 
for recognizing her expertise and good judgment.
    Justice Thompson comes before the Committee with an 
exceptional record of achievement that speaks both to her 
remarkable talents and her lifetime of hard work. Born in 
segregated South Carolina, Justice Thompson pursued the 
opportunity to finish high school in Scarsdale, New York, even 
though it meant moving away from her family at an early age.
    After excelling there, Justice Thompson went on to graduate 
from Rhode Island's Brown University and to receive a law 
degree from Boston University. With those academic credentials, 
one might have expected Justice Thompson to pursue a lucrative 
career in the corporate realm, but she instead chose to employ 
her talents in under-served communities in Providence. I am 
very glad that she did.
    A successful career in legal practice led to Justice 
Thompson's appointment as an Associate Judge on the Rhode 
Island District Court, and subsequently as an Associate Justice 
on the Rhode Island Superior Court. Justice Thompson now has 21 
years of judicial experience and a record of respect from all 
corners of Rhode Island's bench and bar. Her courtroom, 
deservedly, has come to be known as a place in which every 
party can expect a fair hearing.
    Justice Thompson's extensive experience on the Rhode Island 
bench prepares her well for the work of the First Circuit. Not 
only has it allowed her to consider the customary range of 
Federal issues that State courts regularly face, but it has 
allowed Justice Thompson to demonstrate the proper role of a 
judge: to respect the role of the legislature; to decide cases 
based on the law and the facts; to not prejudge any case, but 
listen to every party that comes before them; to respect 
precedent; and to limit themselves to the issues that the court 
must decide.
    But Justice Thompson not only is an exceptionally qualified 
nominee, she also is an historic nominee, as she would be the 
first African-American, and only the second woman, ever to 
serve on the First Circuit Court of Appeals. Indeed, Justice 
Thompson has a habit of breaking barriers, as she was the first 
African-American woman appointed to Rhode Island's District 
Court and to Rhode Island's Superior Court. It is fitting that 
she should be the one to make another piece of long-overdue 
history. She is a worthy nominee for this historic occasion.
    I look forward to working with Chairman Leahy and my 
colleagues as this nomination proceeds through the Committee, 
and ultimately to confirmation.
    I see that Senator Franken has joined us. I would 
customarily yield to the Ranking Member, but there is no 
Ranking Member present. Should a member of the Minority party 
come, I will be delighted to accept their opening statement. If 
no one does, the record of this proceeding stays open for a 
week so that statements and questions for the record might be 
    But before we turn to Senator Reed, let me ask my 
distinguished colleague from Minnesota if he wishes to make an 
opening statement at this juncture.
    Senator Franken.
    Senator Franken. No, not at this juncture. But I'd love to 
hear from the senior Senator from your State, and what he has 
to say about our nominee.
    Senator Whitehouse. And without further ado, Senator Reed, 
the floor is yours.


    Senator Reed. Thank you very much, Mr. Chairman. Thank you, 
Senator Franken. Mr. Chairman, thank you for your kind words, 
but also for your advice in this collaborative effort to 
identify for the President worthy and suitable nominees for our 
courts in Rhode Island. I am pleased and proud today to be here 
to introduce Associate Justice Rogeriee Thompson, the nominee 
for Rhode Island's traditional seat on the United States Court 
of Appeals for the First Circuit.
    We are joined, as you've indicated, Mr. Chairman, by a very 
strong family contingent: Judge Thompson's husband Bill, their 
daughters Reza and Sarah. As you indicated, their son Will is 
in Madrid, studying. We're also honored to have Ed Clifton and 
Audrey Clifton. This is a dynamic group of lawyers, attorneys, 
and public services in the State of Rhode Island. It's a 
remarkable family, and I'm so pleased they're here.
    We're also joined by Chief Judge Eric Washington of the DC 
Court of Appeals. Thank you, Judge, for coming.
    I also want to recognize Cliff Monteiro, who has been an 
advocate and someone whose advice and assistance we both 
treasure immensely.
    We are here today because we have identified a woman with 
the integrity, the professionalism, and the experience 
necessary to serve our country as an appellate judge with great 
distinction. Serving as an appellate judge is a unique 
opportunity, and this lifetime appointment should be for those 
who have demonstrated they have the intellectual gifts, the 
experience, the judgment, maturity, and temperament to take on 
this special role. Judge Thompson has all of these attributes.
    Senator Whitehouse and I did not reach our conclusion 
without great thought and review; indeed, we encouraged all 
interested and qualified attorneys in our State to apply. We 
interviewed 30 candidates for our State's judicial vacancies. 
We reviewed their education, analyzed their professional 
experience. We examined what motivated their choices in life 
and their views about the role of the law. We thought long and 
hard about their involvement in our community and what we 
personally knew of each applicant. After these deliberations, 
we came to the conclusion that Judge Thompson was uniquely 
qualified to serve on the First Circuit.
    In an era when some judges have little experience in 
courtrooms, Judge Thompson has over 20 years of service on the 
bench. She has convicted criminals, mediated contractual 
disputes, overseen complex commercial cases, and dealt fairly 
and firmly with those in her courtroom--and I must emphasize 
``fairly'', which is one of the hallmarks of a good judge.
    Justice Thompson's reputation for impartiality and 
character in our State is obvious and uncontroverted. She has 
been nominated by two Republican Governors, first to serve on 
the District Court in 1988, and then to serve on our Superior 
Court in 1997. In both instances, those nominations were 
overwhelmingly confirmed by our General Assembly.
    Justice Thompson's background embodies the classic American 
success story of intelligence and hard work and faith. Indeed, 
Justice Thompson was born in South Carolina when segregation 
still ruled. She went from those humble beginnings to attend 
Brown University, and then to Boston University Law School, 
where she excelled. She then chose public service as a staff 
attorney for our legal aid system. Later, Justice Thompson was 
an Assistant City Solicitor in Providence, was in private 
practice, and developed an expertise in Native American law 
that took her across the country.
    Yet what really makes Justice Thompson unique is her 
decency and deep involvement in our community. She has aided 
numerous charities and supported countless nonprofit 
organizations. She has supported higher education by serving as 
a trustee of Brown University and Bryant University. She has 
answered the call of a Federal/State jurist as Rhode Island's 
courts grappled with the issue of non-English speaking 
litigants. She was critical in helping to resolve that very 
critical issue.
    And I have come to know her and respect her through our 
shared support and involvement in Dorcas' Place, an adult 
literacy program, and also her involvement in our largest 
environmental organization, Save the Bay, and her involvement 
in Rhode Island's College Crusade, an initiative that 
encourages talented young people to stay in school and graduate 
from college, regardless of their circumstances. She has done 
all of this with integrity and humility.
    At the same time, she and her husband Bill, who is a 
District judge in Rhode Island, have raised a wonderful family 
in my hometown of Cranston. Indeed, their daughters, Reza and 
Sarah, are here today, as indicated, and as I said previously, 
Will is here in spirit, urging his mother on.
    Justice Thompson's confirmation to the First Circuit is 
important to me. She is someone I know and respect. She has 
earned the trust of Rhode Island's legal community through her 
demeanor, through her thoughtfulness, and through her respect 
and regard not only for the law, but for those who come before 
her court.
    Last, she has the real-world experience in the State courts 
which will aid in her deliberations on the First Circuit. I 
urge you to ask her questions. She will respond with the 
preparation and intellectual skills she has demonstrated 
throughout her career. At the conclusion, I would respectfully 
ask that you send her nomination to the full Senate for 
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Reed. I am very 
grateful that you took the trouble to be here today. As we know 
in this body, the health care debate began in earnest yesterday 
after years--some would say decades--of waiting. As a member of 
the important Health, Education, Labor and Pensions Committee, 
I know you have many important responsibilities, both in that 
debate and in your busy office.
    So I appreciate very much that you've taken the time to be 
here, and I would now call forward the nominee to be sworn and 
to take her seat.
    [Whereupon, the nominee was duly sworn.]
    Senator Whitehouse. Thank you. Please be seated.
    Welcome. I understand that you do not have a prepared 
opening statement?


    Justice Thompson. Senator, I do not have a prepared opening 
statement, but I would like to take an opportunity to, first of 
all, thank President Obama for nominating me, and to also thank 
you and Senator Reed for forwarding my name to the President 
for consideration.
    I have been honored today to have a lot of my family 
present to support me and to show me their love, and I would 
just like to once again acknowledge them personally.
    My sister is very enthusiastic about today, so I have lots 
of relatives who are here who live in the DC area, and I really 
appreciate them being here to support me. First, I would like 
to thank my husband, William Clifton, who is an Associate Judge 
of the Rhode Island District Court, for putting up with me all 
of these years.
    I would like to thank my daughter, Reza Clifton, for being 
here, my daughter Sarah Clifton, who is sacrificing her own 
swearing in today. She just recently passed the California bar 
exam, and today was her swearing in date, but she's here to 
support her mother and I'm most grateful for her presence.
    Senator Whitehouse. Well, we congratulate her.
    Justice Thompson. Son Will, who is watching it by the 
webcast. So, hello, William. Have fun.
    My sister, LaVonne Thompson, who is an Assistant U.S. 
Attorney General in the Virgin Islands, and she's flown here 
from the Virgin Islands to be with me. My brother-in-law, 
Edward Clifton, who is my colleague on the Superior Court 
bench, and his wonderful wife Audrey. My cousin, Eric 
Washington, who is the Chief Judge of the DC Court of Appeals, 
and his wife Cheryl. I think my niece has gotten here, Camille 
Clifton, whose father is retired State Department. She is the 
ambassador, because he is now living in Germany, and their 
daughter, Sophey Howery.
    My cousin, David Bedenbaugh and his son Daniel are also 
here with me today. Daniel attends the Excel Academy in 
Riverdale, Maryland. His class has made my nomination a class 
project in Civics, so I hope they are getting a lot out of the 
    Also present here today: my cousin Jannine Henderson, 
Janell Jordan, Daniel Womack, Jr., Judy Rogers, Kurt 
Bedenbaugh, Renee Brown, Tony Graham, Valery Gladney, and I 
want to thank my dear friend, Cliff Monteiro, for flying down 
today to be here with me. Another old friend just tapped me on 
the shoulder, Tom Baker, who is in the DC area. Attorney Baker 
is a former U.S. Ambassador to Zimbabwe. So, thank all of you 
for being here today.
    Senator Whitehouse. Well, we are very grateful to have such 
a distinguished and illustrious group of friends and family 
whose service to the State and Federal bench, to the U.S. 
Department of Justice, to the U.S. Department of State, and in 
other places, I think, does great credit to the nominee.
    The question that I would ask--and I think it will help 
fill out the record--is: Justice Thompson, you have spent your 
career in the State courts of Rhode Island. You are going to go 
onto an appellate court in the Federal system. Can you explain 
the circumstances in which, during the course of your career, 
you have had to review questions of Federal law or U.S. 
constitutional law in your role as a State court judge, and how 
that has prepared a foundation for you to deal with the Federal 
law and U.S. constitutional law questions that the First 
Circuit will consider?
    Justice Thompson. Well, Senator, as you are aware, the 
Rhode Island State courts have concurrent jurisdiction over 
Federal issues, and as such if Federal issues are presented to 
our courts, we don't have the luxury of saying, no, I don't 
want to hear that because I'm not a Federal court judge. Those 
issues routinely come before the court, particularly in areas 
of criminal proceedings where we are called upon to rule upon 
criminal procedure issues and substantive criminal issues 
involving search and seizure, confrontation, rights of 
defendants, right to counsel, selection of jury issues, and 
many other issues which routinely come up in criminal law 
    In addition to that, there are Federal issues that come 
before the court on the civil side of the calendar. In addition 
to that, Senator, as you know, when State law is unclear about 
a particular area, we are directed to look to the Federal 
courts for guidance when they have laws that are similar to our 
State statutes. And so in the context of my 21-year career, I 
have been called upon to review Federal issues and to make 
decisions on those issues.
    Senator Whitehouse. You are confident that Federal law 
would not be unfamiliar territory to you as a judge of the 
United States Court of Appeals for the First Circuit?
    Justice Thompson. Federal law would not be foreign to me, 
Senator. But in addition to that, let me just say generally it 
is not unusual for new issues--new legal issues, new legal 
State issues--to come before the courts, the State courts on a 
daily basis. Once again, we don't have the luxury of saying, 
``I never sat on a case like that before, so go away''. Indeed, 
the proper methodology for attacking new cases and new areas of 
law is to delve into the research to get a firm appreciation 
and understanding of that new and different law and to study 
the cases, study the precedent, and make a judgment as to how 
to apply that new law to the facts.
    Senator Whitehouse. Well, I thank you.
    As I reflected on this question before the hearing, I 
recalled my 6 years in the Rhode Island Department of Attorney 
General as a staff attorney in the State Attorney General's 
Office. My recollection is that when I was involved in civil 
matters in the Superior Court, it was actually almost unusual 
for there to be a State law claim that I was involved in 
because the Federal law and the issues that I was addressing, 
particularly in civil matters, tended to be the cause of action 
that plaintiffs were pursuing against the State. So at least in 
my experience, I can concur with you that, as a State official, 
one is deeply, deeply imbued in the Federal law, and appreciate 
your comments in that regard.
    I will turn, now, to my distinguished colleague from 
Minnesota, Senator Al Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Welcome, Justice Thompson. Congratulations on your 
    Justice Thompson. Thank you, Senator.
    Senator Franken. I was interested to see that you were 
tribal counsel to the Narragansett Indian tribe. I am on the 
Indian Affairs Committee here in the Senate, and I was 
interested that you described that position as ``the most 
challenging and stimulating legal work'' you have done as a 
practicing attorney. Can you tell us more about that work and 
how it's shaped your work as a judge?
    Justice Thompson. Senator, when I was asked by the 
Narragansett Indian tribe to be their tribal counsel, I bravely 
said yes, but said yes at a point when I had very little 
information, knowledge, or background about tribal law. As a 
result of saying yes, I spent a full 2 weeks delving into 
Indian law, reading every single thing I could find, until I 
had a firm grasp of the myriad of issues that tribal 
governments deal with in our country.
    I represented the Narragansetts on every aspect of their 
sovereignty issues. I represented them in negotiations with 
BIA, with negotiations with the State over land issues, with 
negotiations with the State involving Indian artifacts. Issues 
also arose involving the Indian Child Welfare Act. I was the 
first person to give information to our family court that there 
was such a thing as the Indian Child Welfare Act and gave them 
instruction as to how that act impacted the proceedings of the 
State family court. That is just a few of the areas in which I 
represented them.
    My experience with the tribe gave me a rich appreciation of 
the history of the Native people of this country, and I have 
continued to enjoy a friendship with the members of the tribe 
and have a great deal of respect for the work that they try to 
do on behalf of their people.
    Senator Franken. Thank you.
    Normally we do have members of the Minority party here, and 
actually they're very good about showing up for these things, 
especially the Ranking Member. Normally--I was given this in 
sort of my briefing about this hearing, was that Justice 
Thompson is likely to be questioned about comments she made on 
the importance of diversity.
    Since the Minority party isn't here, if they were, they 
would ask you about that. That would be upsetting to them. Not 
terribly, but they would be concerned that when you put on your 
robes, that you will just be a judge. So I just want to give 
you a chance to answer the question that they would have asked. 
I think diversity on the court is a great idea. But would it be 
fair to say that when you put on your robes, that you'll judge 
based on the law?
    Justice Thompson. Senator Franken, thank you for the 
question. It would certainly be incumbent upon me as a Federal 
judge, just as it is incumbent on me as a State court judge, to 
view every single person who comes before the court with the 
utmost respect and afford them the utmost dignity. My job is to 
make sure that I don't have preconceived notions about persons 
or to come to any kind of proceeding with any kind of bias or 
prejudice toward any person. My job is to make sure that I 
examine the facts of a particular case without bias or 
prejudice, apply the law to those facts, and try to afford the 
litigants the justice which they deserve.
    Senator Franken. Well, I think it's a great answer to a 
very good question, which I wanted to have represented here, 
because it wasn't when it normally would be.
    Thank you very much. Once again, congratulations to you and 
your entire family.
    Justice Thompson. Thank you.
    Senator Whitehouse. Well, without further ado, I think we 
can conclude these proceedings. I take it as a positive sign 
that our colleagues are sufficiently satisfied with your 
reputation and qualifications that they have not felt the need 
to come here and explore any areas of concern that they might 
have had. I hope that the smooth sailing and passage that 
you've had through this hearing continues on the floor, and 
that we are able to move expeditiously on your nomination on 
the Senate floor.
    I note that Chairman Leahy has taken a keen interest in 
this particular nomination. He has a statement in support that 
he has filed that, without objection, I will add to the record 
of these proceedings.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Whitehouse. I am sure, at the first opportunity 
that he finds, he will try to obtain either unanimous consent 
for your nomination to proceed, or a vote on it if that turns 
out to be necessary. It may seem a bit disappointing that there 
is not more action here today.
    Justice Thompson. No.
    Senator Whitehouse. But trust me, it is a good thing.
    Justice Thompson. I am not disappointed, Senator.
    Senator Whitehouse. I will close the hearing by relating 
that the record of the hearing will stay open for an additional 
week for any statements or questions for the record that my 
colleagues seek to add into the record, or frankly, any other 
materials that they seek to add into the record.
    Justice Thompson.
    Justice Thompson. One other person I forgot--I didn't know 
she was coming, but she is here--is my cousin, Whitney 
Washington, who also just passed the California bar exam. So, 
she's probably missing her swearing in also.
    Senator Whitehouse. Well, as I said, it's a very impressive 
group and I'm glad you made sure that everybody was mentioned. 
I am proud of you.
    Justice Thompson. Thank you, Senator.
    Senator Whitehouse. I am delighted for you. Senator Reed 
and I both look forward to working hard to make sure that your 
nomination proceeds forward, and we are delighted at the way 
things have turned out so far.
    So without further ado, the hearing is adjourned.
    [Whereupon, at 10:31 a.m. the Committee was adjourned.]
    [The biographical information follows.]
    [Submissions for the record follow.]

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                      WEDNESDAY, DECEMBER 16, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3 p.m., Room 226, 
Dirksen Senate Office Building, Hon. Benjamin A. Cardin 
    Present: Senators Klobuchar, Specter, Franken, Sessions and 

                   FROM THE STATE OF MARYLAND

    Senator Cardin. The Committee will come to order. Let me 
thank Chairman Leahy for allowing me to chair this hearing.
    I first want to acknowledge two of my former colleagues 
from the House of Representatives. I do that, Senator Burr, 
because I served a lot longer in the House than I have been in 
the Senate. So it was nice that we have a hearing of North 
Carolina judges to bring Congressman Watt and Congressman 
Butterfield to our Committee room. We welcome both of them to 
the Committee room.
    Judge Wynn, I want you to know one thing. I was on a plane 
ride with Congressman Butterfield, for a long plane ride, and 
for hours he was telling me about you. So you have a good 
friend in Congressman Butterfield and he assured me that you 
are going to make a great addition to the Fourth Circuit.
    I take special interest in the court circuit. It is a 
Fourth Circuit in which, of course, Maryland is a party to. We 
currently have four vacancies. I guess it is about 20 to 25 
percent of the workload. So it is critically important that we 
move forward on the confirmation process in the Fourth Circuit.
    I am pleased that we have been able to confirm recently two 
additions to the Fourth Circuit, last year and this year, and 
that we have another person who has been approved by our 
Committee. But we have already confirmed Judge Agee from 
Virginia and Judge Davis from Maryland, and we have had a 
hearing on Justice Keenan from Virginia, who has received the 
voice vote from our Committee and we are hoping that she can be 
confirmed prior to the end of this session of Congress.
    It is important that we move forward with these 
nominations. As I evaluate judicial candidates, I use several 
criteria. First, I believe judicial nominees must have an 
appreciation for the Constitution and the protections it 
provides to every American. Second, I believe each nominee must 
embrace a judicial philosophy that reflects mainstream American 
values, not narrow ideological interests.
    Third, I believe a judicial nominee must respect the role 
and responsibilities of each branch of government. Finally, I 
look to a strong commitment and passion for the continued 
progress for civil rights protection.
    We are fortunate to have two nominees before us who have 
devoted a good deal of their life to public service and we 
thank them for their public service and we thank their 
families, because we know this is a joint sacrifice.
    Judge James Wynn comes to this Committee with a broad range 
of both civilian and military judicial experience. Judge Wynn 
currently sits on the North Carolina Court of Appeals, the 
state's intermediate appellate court.
    Prior to taking the bench in 1990, he served as an 
appellate public defender and worked in private practice. Judge 
Wynn is also a certified military trial judge and a captain in 
the U.S. Navy Reserves.
    He served on active duty in the U.S. Navy JAG Corps from 
1979 to 1983. As a military lawyer, he tried over 100 court-
martial cases before sitting as a military judge.
    He has been awarded the Meritorious Service Medal three 
times, the Navy Commendation Medal twice, the Navy Reserve 
Medal, the National Defense Service Medal, and the Global War 
on Terrorism Medal.
    Congratulations. That is quite an impressive array.
    He is chair of the American Bar Association Judicial 
Division, a former chair of the association's Appellate Judges 
Conference, and a member of the standing Committee on 
Minorities in the Judiciary.
    He received his BA from the University of North Carolina-
Chapel Hill, his JD from Marquette University Law School, and a 
master's of law from the University of Virginia School of Law. 
Quite impressive.
    He has received a unanimous well qualified recommendation 
from the American Bar Association.
    Judge Diaz also comes to this Committee with a broad range 
of both judicial and legal experience in both civilian and 
military court systems.
    Judge Diaz currently serves as a special superior court 
judge for the complex business cases, one of only three in the 
State of North Carolina.
    Judge Diaz began his legal career in the United States 
Marine Corps, Legal Services Support Section, where he served 
as a prosecutor, defense counsel, and, ultimately, chief review 
officer. He then moved to the Navy's Office of Judge Advocate 
General, where he served for 4 years as appellate government 
counsel, handling criminal appeals.
    In 1995, Judge Diaz left active duty in the Marine Corps 
and worked as an associate at Hutton & Williams, with a primary 
focus on commercial litigation. He remained in the Marine Corps 
Reserves while in private practice, serving as Reserve 
appellate defense counsel in the Navy JAG Corps, a Reserve 
military judge in the U.S. Navy and Marine Corps judiciary, and 
a Reserve appellate military judge in the U.S. Navy-Marine 
Corps Court of Criminal Appeals.
    He resigned as a military judge when he retired from the 
Marine Corps in 2006. Once again, a very impressive record.
    Judge Diaz was the first Latino appointed to the North 
Carolina Superior Court, where he was named as a resident 
superior court judge in 2001. In 2002, he was appointed as a 
special superior court judge and he was designated a special 
court judge for the complex business cases in 2005.
    He earned his BS from the University of Pennsylvania's 
Wharton School. He received his JD from NYU School of Law, and 
he earned his master's degree in business administration from 
Boston University.
    Judge Diaz is nominated for the Fourth Circuit Court of 
Appeals and received a rating of unanimously well qualified by 
the American Bar Association.
    So we thank both of you for your willingness to continue to 
serve in the public. I want to compliment particularly your two 
Senators, one a Democrat, one a Republican, working together to 
bring us the very best for our consideration. It is a model for 
other states to follow and I compliment both Senator Burr and 
Senator Hagan.
    We will start with the introductions by your two Senators.
    Senator Burr.
    Senator Burr, just for one second. I see that Senator 
Sessions has arrived. If I could yield first to Senator 
Sessions and then we will----
    Senator Burr. Gladly.

                           OF ALABAMA

    Senator Sessions. Thank you. Sorry to be running late. We 
just had an Armed Services hearing I had to be a part of.
    Mr. Chairman, it is good to be with you. We will have two 
nominees today for hearing, which is unusual and not something 
we do often, but it is something we were requested to do. And 
the nominees sort of have come forward together for the same 
circuit and the desire, I understand, is to keep them together.
    So I think under those circumstances, I have agreed to go 
forward with both nominees today and I look forward to a good 
    Senator Cardin. Senator Burr.


    Senator Burr. Thank you, Mr. Chairman. I hope to solve 50 
percent of the Fourth Circuit vacancies with a North Carolina 
    I thank you and Senator Sessions. I want to welcome not 
just our nominees, but I want to welcome their family and their 
friends who are here to celebrate in this day.
    It is a great pleasure for me to introduce not just one, 
but two nominees for the Fourth Circuit court.
    Judge Wynn and Judge Diaz may be unique in the legal 
community in which they both serve not only because of their 
impressive credentials, but, also, their outstanding character 
and commitment to public service.
    Both of these men have served their country in the military 
and I am particularly grateful to them for that service.
    Judge Wynn grew up on a farm in Robertsonville, North 
Carolina. He has six brothers and a sister, some of whom are 
here today. He says he learned the values of hard work helping 
out on the family farm, where his family still gathers for 
regular reunions.
    He joined the U.S. Navy Judge Advocate General Corps in 
1979, upon graduation. He always had a desire to serve in the 
military and thought that that might be his last opportunity to 
do so.
    Upon completing his commitment to active duty, Judge Wynn's 
mentors in the JAG Corps convinced him to become a Reservist 
and he continued that duty into much of his time as a judge. In 
August 2009, he retired as a Navy captain with 30 years 
    Throughout his career, he has shown a continued commitment 
to learning. Although on the bench and more than 15 years into 
his legal career, Judge Wynn decided to continue his legal 
education by pursuing a master's degree in judicial process. He 
even spent 8 years studying the human genome project.
    Judge Wynn is a deacon of the Providence Missionary Baptist 
Church in Robertsonville, North Carolina and every Sunday, he 
drives 45 miles to pick up a fellow deacon, his father, James 
Andrew Wynn, Sr., who is here with us today and 87 years old.
    Welcome, Mr. Wynn.
    Judge Wynn currently serves on the North Carolina Court of 
Appeals. His wife, Jacqueline, and two of their three children, 
Javius and Jaeander, are here today, as are many of his fellow 
JAG officers. His middle son, Conlan, could not be here today 
because of college exams. I am sure he would rather be here 
with us.
    Judge Diaz also started his legal career in the JAG Corps, 
but as a United States Marine. He enlisted in the Marine Corps 
at age 17 and broke his mother's heart. She had hoped that he 
would go to college and be the first in his family to get a 
college degree.
    Judge Diaz felt strongly that the Marine Corps would be 
best for him. He had a friend who had joined before him and he 
could see that it had changed his way of life.
    Judge Diaz said, and I quote, ``I just looked at him and 
thought, `I need some of that,' '' unquote. Well, a young 17-
year-old convinced his mother to sign him to join, however, by 
promising her that the Marine Corps would not keep him from 
going to college.
    Judge Diaz followed through on his commitment to his 
mother. Two years into his service in the Corps, he joined the 
ROTC program to go to college and then on to law school to 
become a Marine Corps JAG. He continued to serve until October 
of 2006, when he retired as a lieutenant colonel.
    He, too, shows a commitment to his community, working as a 
truancy court judge for elementary school kids, meeting 
regularly with their parents to determine what kind of issues 
may be interfering in their children's school attendance.
    He recruits mentors from the legal profession for ``Lunch 
with a Lawyer,'' a program for middle schoolers who are 
interested in legal careers. The kids sit down and have lunch 
with a lawyer once a month to learn about their careers. He 
says eighth graders generally do not know what they want to do 
with their lives, but that the program is a good way to mentor 
kids who need role models to help them think more about the 
    We will just have to give Judge Diaz the benefit of the 
doubt that it is a positive thing to draw more kids into the 
practice of law.
    Judge Diaz currently serves as a superior court judge in 
the North Carolina business court. He has been praised by those 
who have practiced before his court as fair and impartial as a 
judge, but, also, they refer to his dealing with some of the 
most difficult cases. He says this is just a testament to the 
work ethic he learned in the Marine Corps and that the greatest 
experience anyone can have is to serve their country in some 
    I quote Judge Diaz, ``Democracy isn't free. We have to 
remember to work for it.''
    He says he works hard, but remembers the limits of the 
bench; that his responsibility is to faithfulness of the law. 
Beyond that, he said he just treats people with dignity and 
    He is joined today by his wife, Hilda, and his daughter, 
Christina. His youngest daughter, Gabriella, is also taking 
exams today.
    We have so many similarities between these two nominees.
    Mr. Chairman, I am proud to present to the Committee two 
distinguished nominees for the Fourth Circuit court and I 
suggest that this Committee look for an expedited review and 
referral to the full Senate so that that deficiency on the 
Fourth Circuit can be filled.
    I thank the Chair and I thank the Ranking Member.
    [The prepared statement of Senator Burr appears as a 
submission for the record.]
    Senator Cardin. And we thank you very much for your 
    Senator Hagan.


    Senator Hagan. Thank you, Mr. Chairman. I, too, want to 
welcome Judges James Wynn and Albert Diaz and thank both of 
them for being here today and for the service that they have 
both given our state and nation over the past several years.
    I also want to thank President Obama for selecting such 
exemplary nominees. And I sincerely want to extend my gratitude 
to my esteemed colleague, Senator Richard Burr, for working so 
hard with me to ensure that North Carolina has adequate and 
highly capable representation on the Fourth Circuit.
    These two judges are exactly what we need on the Fourth 
Circuit Court of Appeals, for several reasons, and you have 
just heard Senator Burr's excellent qualities and biographies 
of these two esteemed gentlemen, and I will not go any further 
into their biographies.
    I also see Congressman Mel Watt here, who so ably 
recognizes the citizens in North Carolina.
    But when I first came to the U.S. Senate earlier this year, 
I had high hopes for increasing the number----
    Senator Cardin. Congressman Butterfield is also there.
    Senator Hagan. I did not see Congressman Butterfield. And 
Congressman Butterfield--I am so sorry--also, who so ably 
represents his district in North Carolina.
    But when I first came to the Senate earlier this year, I 
had high hopes for increasing the number of North Carolinians 
on this court. North Carolina is the fastest-growing and 
largest state served by the Fourth Circuit; yet, only two of 
the 15 seats were filled by the abundant talent from our state. 
And over the past century, North Carolina has had fewer total 
judges on this court than any other state.
    Furthermore, there have been inexcusable vacancies on this 
court throughout history and given that the United States 
Supreme Court only reviews 1 percent of the cases it receives, 
the Fourth Circuit is the last stop for almost all Federal 
cases in the region, and we must bring this court back to its 
full strength.
    Since 1990, when this circuit was granted 15 seats, it has 
never had 15 active judges. But specifically, there has been a 
history of partisan bickering over the vacancies on the Fourth 
    But with these nominees and this process, we are changing 
the course of history and I am very excited about confirming 
these judges.
    However, I know that members of this Committee will be less 
interested in these historical issues than they will be in the 
particular qualifications and experiences of these two 
accomplished judges.
    I am proud to note that both of them have received 
unanimous ratings of well qualified from the American Bar 
Association. They both bring a wealth of experience in the 
courtroom, advising courts and judges and serving in the armed 
    These judges show respect for the law and apply it as it is 
written. In a recent dissenting opinion, Judge Wynn wrote, 
``Judicial prudence requires us to leave these policy questions 
to our Legislative and executive branches of government. Our 
role is to apply the law, not to make it.''
    Editorials in newspapers throughout North Carolina have 
praised these nominations. The Charlotte Observer said, 
``Judges Wynn and Diaz are widely regarded as intelligent, 
ethical judges, who have won respect for their judicial and 
military careers. They are the kind of judges the Federal bench 
needs. Their quality is so unquestioned that only partisanship 
could stall their nominations.''
    The Raleigh News and Observer said, ``There appears to be 
no good reason they shouldn't be moved through the confirmation 
process with dispatch.''
    And I am honored to have the opportunity to play some role 
in this process and that we are now moving toward putting Judge 
Diaz and Judge Wynn on the Fourth Circuit bench.
    I want to express my sincere gratitude to this Committee 
for holding this hearing today.
    Thank you, Mr. Chairman and Mr. Ranking Member. Thank you 
very much.
    [The prepared statement of Senator Hagan appears as a 
submission for the record.]
    Senator Cardin. I want to thank both Senator Hagan and 
Senator Burr not only for their testimony here today and their 
introductions, but the manner in which these nominees have been 
brought forward.
    I particularly want to thank Senator Sessions for 
accommodating the fact that we could take two appellate court 
judges in one hearing, because that is unusual. We normally 
want to have a separate hearing on each of our appellate 
    So I want to thank Senator Sessions. I think it reflects 
the fact that the two Senators worked together in a nonpartisan 
manner to bring us forward the nominees.
    So congratulations to both of you.
    We will now proceed to the hearing of the two judges, if 
they would come forward please and remaining standing, if you 
would, please.
    We ask that you take an oath, which is traditional in the 
Judiciary Committee.
    [Nominees sworn.]
    Senator Cardin. Please have a seat. Judge Wynn, we will 
start with you. Glad to hear from you. And I think your family 
has already been introduced, but if you care to do it again, 
certainly, they deserve it.


    Judge Wynn. [Off microphone] and allowing us this 
opportunity to appear before this Committee. I am particularly 
thankful, of course, to my God for this opportunity and I thank 
my President Obama for this opportunity. And I thank the judges 
of my court, the North Carolina Court of Appeals and the 
Supreme Court of North Carolina, my colleagues who have helped 
me through the years to be a better judge and a good judge, and 
my former colleagues.
    I am particularly pleased, of course, to have my father 
here, who has already been mentioned. I am pleased to have my 
wife, Jacqueline, and two of my three sons, Javius and 
Jaeander. Of course, Conlan could not be here for the reason 
stated, that he is taking an exam.
    I am happy to have my sister, Angela, here and her husband, 
Arthur. My sister, Anita, is also here and, unfortunately, my 
sisters, Joan and Romaine (ph) and her husband, Benny, could 
not be here, nor could my brothers, Reggie and Arnie, be here.
    In addition, I believe my niece, April, is in the audience 
here and I hope I am not forgetting someone behind me here.
    But I do want to make special note of my Navy friends who 
are here, because the Judge Advocate General of the Navy said 
he would attempt to show up. He is having a meeting with the 
Undersecretary at this time, but he would be coming.
    I know that Rear Admiral Steve Talson is here, who is the 
Deputy JAG in charge of Reserve Affairs; and, a very special 
friend of mine, who is a line officer in the Navy, Captain Glen 
Flanagan, who commanded two major ships, a nuclear cruiser and 
a frigate during his time. We have been friends for over 30 
years and I am particularly happy he was able to make it.
    I believe Chief Judge Andy Effron of the Court of Appeals-
Armed Forces will also be here. And I saw a number of surprise 
guests here, some of my former classmates. I know that Justice 
Timmons-Goodson, who is on our Supreme Court, has joined us and 
a number of my other friends are here.
    I see in the back of the court--earlier--saw them in the 
back of the court earlier, folks from the Troopers Association, 
the North Carolina law enforcement group, have come, also, and 
a number of other friends.
    And I hope, if I missed anybody behind me, please charge 
that not to my heart, just to the fact that perhaps the moment 
is consuming me.
    [The biographical information follows.]

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    Senator Cardin. Thank you.
    Judge Diaz.


    Judge Diaz. Thank you, Mr. Chair and Mr. Ranking Member, 
for holding this hearing this afternoon. I know how busy you 
all are and we appreciate the opportunity to appear before you.
    I don't have an opening statement. I simply want to thank 
the President for his confidence in me. If confirmed, I hope to 
do all I can to justify his confidence, as well as the 
confidence of the American people.
    I want to thank Senator Burr and Senator Hagan for their 
kind introductions here this afternoon.
    You did identify, Senator Cardin, some of my family 
members. But if I might, I want to take a moment to identify 
some others, as well as friends that are here.
    My wife, Hilda, is here. She has put up with me for 25 
years and it is clear that I would not be here without her. I 
love her very much and I appreciate her support.
    My daughter, Christina, is here, who graduated from Chapel 
Hill last year. I am very proud of her and I am happy to have 
her support, as well. As was mentioned, my daughter, Gabriella, 
is very upset because she is not here, but she is doing God's 
work by getting through her freshman year and hopefully 
everything will be just fine with her.
    I have my brother, Edwin Diaz, here, who is an assistant 
deputy warden with the New York City Department of Corrections 
in Riker's Island. Every time I think that I have a difficult 
job, I just look to him and realize how fortunate I am and that 
he is doing that kind of work. His wife, Stacey Haliburton, is 
here, as well. She is also a corrections officer in New York 
    My two nephews, Joel and Javier Diaz, are here, as well. 
Stacey's daughter, Amanda Radcliffe, is here. I am pleased to 
have them here. My college roommate Clark Brett, a former 
Marine who served on active duty with me for a time, is here. I 
am very pleased that he is here in support of me.
    I have several other Marine colleagues who are here, two 
retired colonels, Roger Harris and Michael Rayhouser are here 
in support of me and I am so pleased that they are here, as 
well. And two friends from Charlotte, North Carolina, Georgia 
and Robert Lewis are here, as well, in support of me this 
    So thank you, Mr. Chairman, for the opportunity to 
introduce them, and Mr. Ranking Member.
    [The biographical information follows.]
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    Senator Cardin. Thank you. Let me just inform the people 
that are here that a vote has started on the floor of the U.S. 
Senate. I am going to yield to Senator Sessions to allow him to 
go first.
    We anticipate that we will be able to keep the hearing 
going during the vote. There is only one vote that is 
scheduled. We may have to take a short recess, but we hope to 
keep the hearing open.
    Senator Sessions.
    Senator Sessions. [Off microphone.] While both of the 
nominees have impressive backgrounds, including extensive 
service to their country, the Senate does have a constitutional 
duty to review these nominees carefully. I would just say that, 
of course, your backgrounds have been examined. FBI has done 
their background work. The ABA has done theirs. The President 
and Department of Justice have done theirs, and members of the 
staffs of the Committee have also looked into that. You would 
not be here if we were not making some progress through those 
investigations. This is a lifetime appointment and it requires 
that kind of review.
    I am pleased to see that both nominees have the support of 
your home state Senators. That means a lot to all of us. You 
have got two Senators who have spent time at this and they have 
strongly supported you and that is valuable to us.
    Both Judge Diaz and Judge Wynn were nominated by the 
President on November 4, 2009. So this is a quick turnaround 
for any circuit court nominee. It is especially quick for a 
nominee to the Fourth Circuit.
    Steve Matthews, who President Bush nominated for the same 
seat on the Fourth Circuit which Judge Diaz has now been 
nominated waited 485 days for a hearing that never occurred.
    Another of President Bush's nominees, Chief Judge Robert 
Conrad, who was chosen by Attorney General Janet Reno to 
conduct a sensitive investigation, out of all the United States 
attorneys in the country, who was rated highly by the bar 
association, was nominated for the seat for which Judge Wynn is 
now nominated, he waited over 500 days for a hearing that never 
    So there are other examples, I think, of unreasonable delay 
and obstruction, but I am not going go talk about that today. 
How about that? I just want to say that I am pleased that we 
could move you forward at what is really a fairly rapid pace, I 
have to say.
    Both of your records have been examined and I will not go 
into a lot of detail. I did note a concern, as a former 
prosecutor, Judge Wynn, on a number of your cases involving 
search and seizure issues that are troubling to me.
    In McClendon, you argued in dissent that it violated the 
Fourth Amendment to detain an individual who was stopped for 
speeding, appeared nervous, gave inconsistent and vague answers 
regarding his destination and could not produce a registration 
card for the vehicle. An eventual search yielded 50 pounds of 
marijuana. The Supreme Court of North Carolina affirmed the 
majority opinion in that case and not your view.
    In State v. Brooks, you held that approaching a parked car 
and talking with the driver constituted an investigatory stop, 
requiring reasonable suspicion for the purposes of the Fourth 
    In Brooks, a state bureau investigation agent was executing 
a search warrant at a business, where a car was parked. When he 
walked over to the car and engaged the driver in conversation, 
he noticed an empty gun holster next to the driver. When he 
asked where the gun was located, the defendant told the officer 
he was sitting on it. After seizing the gun, the officer 
obtained consent to search the car and located drugs.
    The North Carolina Supreme Court unanimously reversed your 
decision that the officer's actions amounted to an 
investigatory stop that required a higher level of proof, which 
was reasonable suspicion.
    So I would just say that these are fact-intensive cases. 
People can disagree or even make an error on occasion. Judges 
are not perfect. But when you have a lifetime appointment, 
unaccountable to the public, we do want your commitment that 
you will follow the law faithfully, regardless of whether you 
might agree with it or have a different view, and that would be 
some of the matters that we would be questioning today.
    What do you think, Mr. Chairman, about the time?
    Senator Cardin. There is still some.
    Senator Sessions. Judge Wynn, I mentioned those two cases. 
Would you tell me how you felt about them and your view of it, 
particularly after the court of appeals ruling?
    Judge Wynn. Thank you, Senator. And I appreciate the 
opportunity to respond to the concerns that you have on those 
cases. I would note that during the tenure of my 19 years on 
the court, I have written perhaps close to 1,500 opinions and 
concurred in another 3,000 of them, and the vast majority of 
them the Supreme Court has affirmed, particularly in the 
criminal cases.
    One of the unique things about the State of North Carolina, 
I don't think another state has this system, is that in order 
to get an appeal, as a matter of right, to the Supreme Court, a 
dissenting opinion from the court of appeals would put it 
    So quite often, as you indicated, where you have factual 
situations, where the issues are close, the Supreme Court has 
made it clear that a three-judge panel cannot certify that 
appeal to the Supreme Court. The only way it can get there on 
an appeal of right would be by a dissenting judge.
    Understanding this process and the limited role that an 
intermediate court plays in the State of North Carolina and the 
opportunity for this to be reviewed by the Supreme Court, there 
are instances in which there is a fuzziness in the law or 
unclearness in the law. It perhaps is helpful to have a word 
from the Supreme Court.
    I will assure you that once the Supreme Court made its 
pronouncement in these cases, I followed that law to the letter 
thereafter and in every instance in which you have enumerated, 
it has been helpful for the court to understand how to proceed 
from that point on and there are no court cases after any of 
those cases that would appear where I have deviated to any 
degree from what the Supreme Court has mandated.
    Senator Sessions. Well, thank you. That is a direct answer 
and I appreciate it. What about, both of you, we have Federal 
sentencing guidelines that are rather significant and reduce 
the freedom that judges in state court may have had with regard 
to sentencing.
    Are you familiar with that, Judge Wynn, and are you 
committed to--how do you view, since the Supreme Court has 
reduced the binding nature of those guidelines, how do you feel 
about the general principal that sentences should be within the 
guideline range under normal circumstances?
    Judge Wynn. Senator, again, thank you. And I recognize that 
you have a great deal of knowledge in terms of the legal 
    One of the things that you know and, of course, I know is 
that over the years, there was complete discretion given to 
judges at times to sentence defendants to virtually any 
sentence, from probation to many years.
    I have, for many years, thought it was quite wise, whenever 
the legislative process was in place, to limit that discretion 
to the extent that there would be some consistency in the types 
of sentences that would be awarded.
    To the extent that the Supreme Court is interactive, of 
course, if I am selected, I will fully support the holdings of 
the Supreme Court and the rulings of Congress that are held by 
the Supreme Court to be constitutional.
    Senator Sessions. Judge Diaz.
    Judge Diaz. Thank you, Mr. Ranking Member. I appreciate the 
question. Although I am not directly familiar with Federal 
sentencing guidelines, because we operate under a state court 
system, we do have a fairly analogous system in North Carolina 
called structured sentencing, where a judge's discretion is 
cabined by the severity of the offense and the prior record of 
the offender, and that provides a grid box where the judge's 
discretion is limited by an aggravated, a mitigated and a 
presumptive range of sentences, and that system has worked very 
well for North Carolina.
    I agree that, as a general principle, it should not be to 
the detriment of a defendant who it is that he or she appears 
in front of in determining what type of sentence should be 
    So I do agree that there is some benefit to relative 
uniformity of sentences and we have had some good experiences 
in North Carolina with that process, and I would commit to you 
that I would follow the law with respect to Federal sentencing 
guidelines, if I were confirmed.
    Senator Sessions. Thank you. Both of you have dealt with 
lawyers and clients. Would you describe briefly your view about 
how an advocate ought to be treated in your courtroom and how 
you will treat them, if you are confirmed?
    Judge Wynn.
    Judge Wynn. Senator, again, thank you. Perhaps just as a 
matter of background, I grew up in a farm community in eastern 
North Carolina and I learned to respect, from my father and 
those around me, the individuals, no matter what path of life 
they came from.
    It has been my intent and my practice at every stage of 
being in the judiciary to appreciate and to respect the lawyers 
and the litigants that come to the court no matter what their 
backgrounds, to allow and afford them a full hearing, to 
provide for access to justice in every instance.
    So I have attempted to and believe strongly in respecting 
individuals that come to the court and yielding and being as 
humbled as I can and recognizing the limited nature of my role 
as a judge is not to be the person in a superior position, but 
the person who is there to adjudicate with a fair and impartial 
    Senator Sessions. Judge Diaz.
    Judge Diaz. Thank you, Senator, for that question. I agree 
with my colleague. I believe that respect is the coin of the 
realm when it comes to our justice system. As important as it 
is to administer justice, it's equally important that citizens 
believe that justice is being fairly administered and part of 
that is having dignity and respect both for the process and the 
    Lawyers have a very difficult job, I know that, having been 
a civilian practitioner, as well as a military practitioner. It 
is a difficult task to balance client interests, as well as the 
integrity of the process. And judges ought not to sit as 
princesses or princes domineering the process.
    It ought to be a respectful, two-way process, with dignity 
for all participants. The judge has to be in control, 
obviously, but he can do that while ensuring dignity and 
respect for all concerned.
    Senator Sessions. Thank you.
    Senator Cardin. Thank you, Senator Sessions. We are going 
to need to take a brief recess because of the vote that is on 
the floor. I have been informed that we will not be able to 
continue the hearing at this time. So it will be a brief recess 
and we will be returning.
    [Whereupon, at 3:34, the Committee was recessed, to 
reconvene at 3:50.]
    Senator Cardin. The Judiciary Committee will come back into 
order, please. Again, we apologize for the recess. It was 
unavoidable due to a vote on the floor.
    We are joined by Senator Franken. We welcome him to the 
    Let me ask, if I might start off with some questions and 
just point out what Senator Sessions pointed out, which I think 
is critically important. The confirmation hearing is part of 
the process. Prior to your selection by the President, there 
was a long questionnaire that you had to fill out. I am sure it 
took you a long time. You probably had to recall things in your 
background that you had long thought would never be relevant 
again in your life.
    So we have a lot of material. You have written a lot of 
opinions. You have given many speeches. All that has been 
reviewed by our staffs. We have summaries of that here.
    So the confirmation hearing is one part of the confirmation 
process. As Senator Sessions pointed out, this is the court of 
appeals, where most of the court decisions are going to be 
reached in the Judicial Branch of government, because the 
Supreme Court takes very few cases. And this is a lifetime 
    So we treat the confirmation hearings very seriously and 
the confirmation process very seriously. I say that knowing 
full well that your backgrounds are incredible and your records 
are very strong.
    But let me ask a question that was asked to you before, but 
I want you to elaborate a little bit more, and that is on your 
judicial philosophy, how you will go about reaching decisions 
and how your background will impact the way in which you go 
about evaluating the decisions of the cases that come before 
    Since, Judge Wynn, we have been working with you first 
usually on the questioning, because you were first to testify, 
I am going to call on Judge Diaz first.
    Mr. Diaz. Thank you, Senator.
    Senator Cardin. You have to turn your mic on, please.
    Mr. Diaz. Thank you, Senator, for the question. I have 
tried in each and every case that has come before me, in terms 
of deciding cases, particularly as a trial judge, where the 
cases come frequently and often in a very busy docket, to rely 
on the lawyers to give me as much information as possible 
regarding the law and, obviously, the evidence that comes 
before the court.
    I think it is critically important that a judge listen 
carefully to all points of view in a courtroom and recognize 
that his or her decisions have consequences; that we are not 
dealing simply with an academic exercise, but we are affecting, 
people's lives. And I try to do that in each and every case.
    I also recognize the limits of the judicial decision-making 
process. We do not sit as a super legislature. We are not here 
to change policy, in a broad sense. We are here to decide cases 
and resolve disputes. And so I take that with me to the bench 
each and every day and hope to decide cases narrowly, with much 
restraint as possible, resolve the disputes that come before 
the court, but give all parties a full and fair opportunity to 
be heard, recognizing that I do not know everything there is to 
know about the law and certainly do not know anything about the 
facts before the parties come before me.
    So it is an open process and I try to be as considerate as 
possible. But in the end, I make a decision and then live with 
it and decide later on or at least the appellate authorities 
can decide later on whether or not I have made the correct 
decision. I hope to do so in every case.
    Senator Cardin. Judge Wynn.
    Judge Wynn. Thank you, Senator. And I agree with Judge Diaz 
and his comments that have been made. The role of a judge is to 
follow the law, not make the law. And in my decisionmaking 
process, I seek to apply the applicable statutes, the 
constitutional law, relevant precedent based on precedents, and 
reach a decision in the cases.
    Senator Cardin. The Fourth Circuit is one of the most 
diversified circuits in our country. Just looking at the 
numbers, it consists, of course, as you know, of Maryland, 
Virginia, West Virginia, North Carolina, South Carolina. 
Twenty-two percent of the residents are African-American. In 
North Carolina, it is even more diverse; 32 percent are 
    So I want to talk a little bit about diversity and how 
important it is to have diversity on our bench. And a related 
issue, the oath that you take as a Federal judge requires you 
to render your judgment without respect to the wealth or 
poverty of the person, to give equal justice to all, which, I 
would submit, is a goal that has not yet been reached in our 
    So my question is, how important is diversity in our bench 
and what does your background, your individual backgrounds, 
what role does that play in dispensing of your decisionmaking 
or your responsibilities on the bench?
    Judge Wynn. Thank you, Senator. I think that the role of a 
judge, of course, first and foremost, is to follow the law, not 
make the law. In every instance, the judge should treat every 
litigant with fairness and with impartiality.
    It is my belief that--and I call upon a recent case by the 
United States Supreme Court, in which Justice Scalia brought 
forth the indication of the judicial speech case. He indicated 
quite pointedly that judges come to the court quite often with 
preconceived notions on relevant issues of law and he said, and 
I quote, ``You would hardly expect anything differently. You 
wouldn't want a judge to be any different.''
    I take that to mean that the opportunity to have a wide 
range of input on relevant legal issues is important, but in 
every instance, the ultimate role of a judge, regardless of the 
background of the judge, regardless of the experience, is to 
follow the law, not make the law, to treat litigants fairly, 
and provide open access to our courts.
    Senator Cardin. Judge Diaz, does empathy have any role to 
play here? President Obama said he was looking for empathy in 
the nominees that he would submit to the courts.
    Evidently, you all passed the test. Does empathy have any 
role here?
    Judge Diaz. Thank you for the question, Senator Cardin. 
First of all, I certainly do not presume to speak for President 
Obama and what he meant by that comment. I am honored that he 
felt that I have satisfied his requirements for this nomination 
and I am pleased to be a part of this process.
    I do believe that empathy has a role to play in our 
judicial process, but not as the ultimate--as part of the 
ultimate decisionmaking process. Where I think empathy is 
important is, as I indicated earlier, in recognizing that our 
decisions have consequences and in recognizing that we, as 
judges, do not know everything there is to know, whether about 
the law or about the facts.
    So it is critically important to listen carefully to 
litigants and lawyers, to engender respect and dignity for the 
process, because as important as it is to dispense justice, it 
is equally important that our citizens have the notion that 
there is the appearance of justice, and that is where empathy 
comes in; that folks believe that they have gotten a fair 
shake, that the judge has listened carefully to what it is that 
they have to say, considered all viewpoints.
    But in the end, as my colleague, Judge Wynn, indicated, we, 
as judges, have to be fair and impartial arbiters. We do take 
that oath, if we are honored to do so, to do justice to rich 
and poor alike, and that is what I will do if I am honored by 
your vote for confirmation.
    Senator Cardin. I thank both of you for those answers. One 
last point and then I will turn it over to Senator Franken. And 
that is that is, the importance of pro bono legal services.
    I have read your resumes and your backgrounds and your 
answers to those questions that were compounded by the 
Committee. As a judge, you cannot handle pro bono cases. But as 
a leader in the Judicial Branch, you have a responsibility for 
leadership in access to justice, regardless of wealth.
    So how do you see the role you can play as an appellate 
court judge in promoting programs to provide equal access to 
justice? I am going to preface your answer by what was done by 
the head of the Maryland courts, the chief judge, when he 
required lawyers to report on their pro bono activities as part 
of their professional responsibility. He helped expand access 
in Maryland.
    How do you see your role as an appellate court judge in 
helping us achieve the goal of equal access to our courts?
    Judge Diaz, we will start with you again.
    Judge Diaz. Thank you for the question, Senator Cardin. And 
I appreciate the importance of what it is that you are getting 
    I do believe, and I tried, in my private practice, in 
particular, to honor the commitment to pro bono work. We have a 
privilege as lawyers to practice law. It is not a right and it 
is something that we have an obligation to give back to 
whenever we can, and I have tried to do that and did that when 
I was in private practice. You have that information before 
    As a judge, I think it is critically important that we 
serve as role models in encouraging, not dictating--I do not 
think that we can dictate those requirements, because I do not 
know that required pro bono is necessarily effective pro bono 
work, but certainly encouraging lawyers to come forward and 
give of themselves and give of their time and service.
    I have often chaffed against the notion that judges need to 
live a monkish lifestyle. We serve as role models. We ought to 
be public officials out amongst the public, understanding our 
limitations. We have to be careful about what it is that we 
    But because of our role as judges, we have an important 
responsibility to ensure that lawyers are encouraged to give 
back in every way that they can. And so I commit to you, 
Senator, that I would do that.
    Senator Cardin. Thank you.
    Judge Wynn.
    Judge Wynn. Thank you, Senator. And I, of course, agree 
with Judge Diaz's comments. As a lawyer, I offered and provided 
a number of pro bono hours. In fact, I received an award from 
the North Carolina Bar Association one year for having provided 
pro bono services during that year.
    As a judge, it has been incumbent upon me to reach back 
into the community, such as the one that I came from, out of 
Martin County, North Carolina, where, unfortunately, sometimes 
the economic times have made it very difficult in those times.
    I have so many great friends and supporters there, and I 
especially feel a need to go back quite often and reach back 
into the community through the high schools and through 
community activities to help to educate about the legal process 
and to afford our citizens an opportunity to learn more about 
the judiciary and to offer more back to our community.
    Senator Cardin. Well, I thank both of you. I was very 
impressed with your backgrounds and very impressed by your 
appearance here today, and I wish you only the best.
    I am going to turn the gavel over to Senator Franken. When 
he is completed, he will adjourn the Committee.
    Senator Franken. [Presiding] Thank you.
    Senator Cardin. You are chairman.
    Senator Franken. I guess, yes, I am chairman.
    Senator Cardin. Seniority moves quick around here.
    Senator Franken. Well, congratulations to both of you for 
your nominations. I want to go back to diversity again, because 
you are both military judges. Right?
    Judge Wynn. That is correct, Senator.
    Judge Diaz. Yes, Senator.
    Senator Franken. Do you think that is a good idea to have 
two military judges on the same appellate court? That is not 
unusual, is it; or is it?
    Judge Wynn. I am not sure in terms of how many individuals 
on the appellate courts have been former military judges. But I 
am certainly honored to be here with a fellow military judge 
who happened to be a Marine. I, of course, am Navy and I am 
quite honored that we are able to sit together in this 
    Judge Diaz. But only for an hour or so, Senator, no longer.
    Senator Franken. But, say, if a Marine came before you, 
that would not matter, you would give them equal justice, or 
    Judge Diaz. Absolutely, Senator. Absolutely.
    Senator Franken. How about if Army came in front of you?
    Judge Wynn. Absolutely, sir. Absolutely.
    Senator Franken. Seriously, how do you think your 
experiences in the military inform your work as a judge not in 
the military and especially on an appeals court?
    Judge Wynn. Well, I think the level of discipline and the 
level of respect that we have in the military--it is a very, 
very tight community. Whenever we had individuals who would 
come before the court, regardless of the crime, we ensured--we 
had to understand that these individuals had volunteered to 
serve in the military and that their rights were something that 
needed to be protected; but at the same time, military 
discipline is important.
    And I think that in being able to serve as a military judge 
at bases literally around the country and around the world--and 
I might add that the Navy is composed both of the Marine and 
the Navy. So I had cases on Marine Corps bases, as well as 
Naval bases.
    Senator Franken. Judge Diaz.
    Judge Diaz. Senator, I agree with my colleague, Judge Wynn. 
Part of what little success I have enjoyed as a civilian judge 
I attribute directly to my experiences in the military.
    I served as both a military trial judge and an appellate 
judge. So I have had some appellate experience while serving in 
the military. It has been my honor to serve my country.
    I also think that, as a practical matter, having that 
experience is going to be useful on the Fourth Circuit, because 
we do deal or would, if we were confirmed, deal with cases 
involving national security on occasion in the Fourth Circuit 
that come up from the Eastern District of Virginia, and I 
believe that our collective experiences as military officers 
would hold us in good stead with respect to those cases.
    Senator Franken. I was fascinated with Judge Wynn's answer 
on experience and talking about Justice Scalia's idea that, of 
course, you are going to come to the court with certain ideas 
about the law and that is what you want.
    So sometimes we have this argument in this Committee about 
the role of diversity and it seems to me that when you talk 
about experience, I think it was Oliver Wendell Holmes who said 
experience is the law.
    Help me, if you can, make this distinction where we have 
lots of nominees come before us who have said something like 
diversity is very important, experience is very important, and 
then we get a little pushback from people saying, ``Ah, but you 
have to be completely neutral as a judge.''
    What is a good way to reconcile--how would you put 
reconciling those two?
    Judge Wynn. Well, it looks like the Marine is deferring to 
the Navy guy here, so I will start out, Senator. Thank you, 
Senator, for that question.
    I think the important aspect that we have to understand is 
that the judiciary depends a great deal on the public 
    Alexander Hamilton I think was the one who said that--when 
he was talking about separation of powers, he said the 
legislature has the money, the executive power has the force, 
and the judiciary has neither. And I think what you can glean 
from that is that the power of the judiciary in terms of 
enforcing the decisions lie in the fact that the public has 
confidence and they trust the judiciary and they have 
confidence in the integrity of the judicial decisions; in other 
words, they respect them.
    If they do not respect them, then enforcing them will be 
difficult. And in order to respect and have public confidence, 
quite often, it may be necessary at least that the judiciary 
reflect at least an openness, at least some degree of diversity 
in terms of the individuals who may be there or the 
    The individuals who may come from rural communities or may 
come from urban communities or individuals of wealth or 
individuals of not so much wealth, to have a diversity of 
experience, I think most people can agree that, generally, that 
adds to the ultimate product, that is, yield, as a result of 
the decisionmaking process.
    But ultimately, in every instance, regardless of the 
individuals who are there, the ultimate role of a judge is to 
follow the law, not make the law, not make it based on their 
past experiences, not make it based on things outside of that 
that is before them, but to use their best efforts to reach the 
results based upon the applicable law.
    Senator Franken. So, Judge Diaz, that sort of assumes that 
experience--people just intuitively understand that experience 
is going to inform judgment. It just is.
    In other words, if you trust the judiciary because there is 
a diversity of experience there, if that creates that more 
trust, that is because human beings understand that experience 
informs judgment, and, yet, your job is to treat everyone 
equally and to be neutral and judge on the law.
    Is there a conflict there or is there not a conflict there?
    Judge Diaz. I do not think there is, Senator. I think in 
the end, as my colleague, Judge Wynn, said, one of the 
principal benefits of having a diverse bench is to inspire 
confidence in our larger institutions.
    A few years ago, the Supreme Court decided a case involving 
diversity in law school admissions processes and Justice Sandra 
Day O'Connor emphasized the importance of diversity in bringing 
together differing views in order to enrich the academic 
    And in part, she said one of the reasons why it was 
important to have a diverse legal profession was the importance 
of lawyers in the governance of our institutions and military 
institutions and the executive branch and in the judiciary.
    It is critically important that people have--our citizens 
have an understanding that not only justice is being done, but 
the appearance of justice is being satisfied, and I think that 
is where having a diverse set of views comes into play and 
encourages that conclusion.
    Senator Franken. Well, I would like to thank both of you 
and congratulate both of you. Like Senator Cardin, I am 
incredibly impressed with your background and your experience.
    We are going to keep the record open for 1 week for written 
questions, and our hearing is adjourned. Thank you, gentlemen.
    Judge Diaz. Thank you, Mr. Chairman.
    Judge Wynn. Thank you, sir.
    [Whereupon, at 4:09 p.m., the hearing was concluded.]
    [Questions and answers and submissions for the record