[Senate Hearing 112-72, Part 5]
[From the U.S. Government Publishing Office]
S. Hrg. 112-72, Pt.5
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
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OCTOBER 19, NOVEMBER 2, NOVEMBER 16, AND DECEMBER 13, 2011
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Serial No. J-112-4
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PART 5
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 112-72, Pt.5
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
OCTOBER 19, NOVEMBER 2, NOVEMBER 16, AND DECEMBER 13, 2011
__________
Serial No. J-112-4
__________
PART 5
__________
Printed for the use of the Committee on the Judiciary
----------
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74-981 PDF WASHINGTON : 2012
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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October 19, 2011
STATEMENTS OF COMMITTEE MEMBERS
Page
Coons, Hon. Christopher A., a U.S. Senator from the State of
Delaware....................................................... 3
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 4
PRESENTERS
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana
presenting Susie Morgan, Nominee to be U.S. District Judge for
the Eastern District of Louisiana.............................. 1
STATEMENT OF THE NOMINEES
Horowitz, Michael E., Nominee to be Inspector General, Department
of Justice..................................................... 5
Questionnaire................................................ 17
Morgan, Susie, Nominee to be U.S. District Judge for the Eastern
District of Louisiana.......................................... 53
Questionnaire................................................ 55
QUESTIONS AND ANSWERS
Responses of Michael E. Horowitz to questions submitted by
Senators Leahy and Grassley.................................... 105
Responses of Susie Morgan to questions submitted by Senator
Grassley....................................................... 116
SUBMISSIONS FOR THE RECORD
American Bar Association, Benjamin H. Hill, III, Washington, DC,
Susie Morgan, June 8, 2011, letter............................. 120
Chertoff, Michael, Covington & Burling LLP, Washington, DC,
October 5, 2011................................................ 122
Davies, John G., retired U.S. District Judge, Santa Barbara,
California, October 4, 2011, letter............................ 123
Ethics Resource Center (ERC), Michael G. Oxley, Chairman and
Patricia J. Harned, President, Arlington, Virginia, October 12,
2011, Letter................................................... 125
Glenn A. Fine, former Inspector General, Department of Justice,
October 10, 2011, letter....................................... 126
Ford, Kevin J., Managing Director, RDC Risk Consulting Services
LLC, New York, New York, October 14, 2011, letter.............. 128
Hearn, Rose Gill, Commissioner, New York City, Department of
Investigation, New York, New York, October 24, 2011, letter.... 130
Horowitz, Michael E., Nominee to be Inspector General, Department
of Justice, statement.......................................... 132
Snell, Roy, Chief Executive Officer, Society of Corporate
Compliance and Ethics, Minneapolis, Minnesota, October 5, 2011,
letter......................................................... 135
Straub, Frank G., Director, Department of Public Safety,
Indianapolis, Indiana, October 4, 2011, letter................. 137
Terwilliger, George J. III, Seth P. Waxman, Daniel J. Bryant,
Benton J. Campbell, Robert J. Cleary, Alice S. Fisher, Matthew
W. Friedrich, David N. Kelley, Wan J. Kim, Stuart A. Levey, Guy
A. Lewis, Daniel Marcus, William E. Moschella, Randoph D. Moss,
David W. Ogden, Robert Raben, Charles P. Rosenberg, Richard A.
Rossman, John R. Steer, Donald K. Stern, Johnny Sutton, Karen
P. Tandy, Larry D. Thompson, Carlyle P. Thorsen, Gregory A.
Vega, Alan Vingrad, Kenneth L. Wainstein, William W. Wilkens,
Jr., Christopher A. Wray, Attorneys, October 17, 2011, letter.. 138
White, Mary Jo, Partner, Debevoise & Plimpton LLP, New York, New
York, October 6, 2011, letter.................................. 142
WEDNESDAY, NOVEMBER 2, 2011
STATEMENTS OF COMMITTEE MEMBERS
Page
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 145
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 151
prepared statement........................................... 336
PRESENTERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Gregg Jeffrey Costs, Nominee to be District Judge
for the Western District of Texas.............................. 149
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Jacqueline H. Nguyen, Nominee to be
Circuit Judge for the Ninth Circuit............................ 146
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Gregg Jeffrey Costa Nominee to be District
Judge for the Southern District of Texas and David Campos
Guaderrama, Nominee to be District Judge for the Western
District of Texas.............................................. 148
NOMINEES
Costs, Gregg Jeffrey, Nominee to be District Judge for the
Southern District of Texas..................................... 216
Questionnaire................................................ 218
Guaderrama, David Campos, Nominee to be District Judge for the
Western District of Texas...................................... 259
Questionnaire................................................ 260
Nguyen, Jacqueline H., Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 152
Questionnaire................................................ 154
QUESTIONS AND ANSWERS
Responses of Gregg Jeffrey Costa to questions submitted by
Senators Grassley and Klobuchar................................ 322
Responses of David Campos Guaderrama to questions submitted by
Senators Grassley and Klobuchar................................ 325
Responses of Jacqueline H. Nguyen to questions submitted by
Senators Grassley and Klobuchar................................ 328
SUBMISSIONS FOR THE RECORD
American Bar Association, Allan J. Joseph, Chair, Washington, DC:
Gregg J. Costa, September 8, 2011, letter.................... 333
David Guaderrama, September 15, 2011, letter................. 334
Jacqueline Nguyen, September 23, 2011, letter................ 335
Japanese American Bar Association (JABA), Alison S. Matsumoto,
President, Los Angeles, California, statement.................. 344
Jones Day, Elwood Lui, Los Angeles, California, October 3, 2011,
letter......................................................... 347
National Asian Pacific American Bar Association (NAPABA), Paul O.
Hirose, President; Tina R. Matsuoka, Executive Director; John
C. Yang, Co-Chair, Judiciary Committee; and Wendy Wen Yun
Chang, Co-Chair, Judiciary Committee, November 1, 2011, joint
letter......................................................... 349
O'Brien, Thomas P., Paul Hastings LLP, Los Angeles, California,
October 13, 2011, letter....................................... 353
Yang, Debra Wong, Gibson, Dunn & Crutcher LLP, Los Angeles,
California, October 17, 2011, letter........................... 355
WEDNESDAY, NOVEMBER 16, 2011
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 360
prepared statement........................................... 503
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin...... 357
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 509
PRESENTERS
McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri
presenting Brian Wimes, Nominee to be U.S. District Judge for
the Eastern and Western Districts of Missouri.................. 358
NOMINEES
Keneally, Kathryn, Nominee to be Assistant Attorney General...... 361
Questionnaire................................................ 363
Wimes, Brian C., Nominee to be U.S. District Judge for the
Eastern and Western Districts of Missouri...................... 409
Questionnaire................................................ 410
QUESTIONS AND ANSWERS
Responses of Kathryn Keneally to questions submitted by Senator
Coburn, Grassley, Levin........................................ 467
Responses of Brian Wimes to questions submitted by Senator
Coburn, Grassley, Klobuchar.................................... 484
SUBMISSIONS FOR THE RECORD
Department of Justice, Taxes Attorney's, September 28, 2011,
joint letter................................................... 497
Gillibrand, Hon. Kirsten E., a U.S. Sentor from the State of New
York, statement................................................ 501
Professional Organizations, Attorney's, September 28, 2011, joint
letter......................................................... 511
TUESDAY, DECEMBER 13, 2011
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 522
prepared statement........................................... 601
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 604
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 521
PRESENTERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Paul T. Watford, Nominee to be U.S.
Circuit Judge for the Ninth Circuit............................ 522
STATEMENT OF THE NOMINEE
Watford, Paul T., Nominee to be U.S. Circuit Judge for the Ninth
Circuit........................................................ 524
Questionnaire................................................ 533
QUESTIONS AND ANSWERS
Responses of Paul T. Watford to questions submitted by Senator
Coburn, Grassley, Klobuchar.................................... 573
SUBMISSIONS FOR THE RECORD
American Bar Association (ABA), Allan J. Joseph, Chair,
Washington, DC, October 17, 2011, letter....................... 598
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
prepared statement............................................. 599
ALPHABETICAL LIST OF NOMINEES
Costs, Gregg Jeffrey, Nominee to be District Judge for the
Southern District of Texas..................................... 216
Guaderrama, David Campos, Nominee to be District Judge for the
Western District of Texas...................................... 259
Horowitz, Michael E., Nominee to be Inspector General, Department
of Justice..................................................... 5
Keneally, Kathryn, Nominee to be Assistant Attorney General...... 361
Morgan, Susie, Nominee to be U.S. District Judge for the Eastern
District of Louisiana.......................................... 53
Nguyen, Jacqueline H., Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 152
Watford, Paul T., Nominee to be U.S. Circuit Judge for the Ninth
Circuit........................................................ 524
Wimes, Brian C., Nominee to be U.S. District Judge for the
Eastern and Western Districts of Missouri...................... 409
NOMINATIONS OF MICHAEL E. HOROWITZ, NOMINEE TO BE INSPECTOR GENERAL,
DEPARTMENT OF JUSTICE; AND SUSIE MORGAN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA
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WEDNESDAY, OCTOBER 19, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 2:35 p.m., Room
226, Dirksen Senate Office Building, Hon. Chris Coons,
presiding.
Present: Senators Grassley, Cornyn, and Lee.
Senator Coons. Good afternoon, everyone. I'm pleased to
call this nominations hearing of the Senate Committee on the
Judiciary to order.
I'd like to welcome each of the nominees, their families,
and friends to the U.S. Senate and congratulate them on their
nominations. I'd also like to welcome those of my colleagues
who are here to introduce one of today's nominees.
We have today two nominees, beginning with Michael E.
Horowitz, nominated to serve as Inspector General for the U.S.
Department of Justice. Mr. Horowitz currently serves as a
partner in the Washington office of Cadwallader, Wickersham &
Taft.
We also welcome Donna Sue Morgan, or Susie, whom I've had
the pleasure of just meeting, who's been nominated to serve on
the District Court for the Eastern District of Louisiana. Ms.
Morgan is currently a partner at the New Orleans office of the
law firm of Phelps & Dunbar, and she will be introduced by her
home State Senator and my friend, Senator Mary Landrieu.
I know that my colleagues have busy schedules to attend to,
so we will start a little bit out of order today with the
introduction of our second panelist first.
Senator Landrieu, please proceed.
PRESENTATION OF SUSIE MORGAN NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF LOUISIANA BY HON. MARY LANDRIEU, A
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Landrieu. Thank you, Chairman Coons, and thank you
Senator Grassley and the members of the Committee for giving me
the opportunity to present Mrs. Morgan to you. As long as I've
known Susie I did not know her name was Donna Sue.
[Laughter.]
Senator Landrieu. So I've even learned something today that
I didn't know.
But Ms. Morgan and I have been friends for literally over
30 years, so I've known her a long time. She is also known and
so well-respected, Mr. Chairman, by so many members of the Bar
in our State. I am just going to give a brief introduction
because I know you have all the documentation before you.
First, let me say that she's joined by her husband, Larry
Feldman, and several close friends, including one of our mutual
friends, the former Chief of Staff for Senator Bennett Johnson,
who also knows this nominee very well.
Susie has earned the support of both myself and Senator
Vitter, who will I'm sure send a letter of support if he can't
be here in person today. She has practiced for many years in
State and Federal court, advocating for both plaintiffs and
defendants. One of the things that gave me great confidence
when I recommended Ms. Morgan and was pleased that the
President nominated her is just her even-handedness, fair
temperament, et cetera, which I think is important, Mr.
Chairman, on the bench.
She is a native of north Louisiana, received a Master's
degree from the University of Louisiana at Monroe. She earned
her law degree from Louisiana State, graduating in the top 5
percent of her class with Honors. She clerked for one of our
most respected Federal judges in the Fifth Circuit Court of
Appeals.
I could go on and on with many of her involvements in the
legal community. One of the things she's most proud of, and I
think it really stands out in showing you her leadership
ability and her willingness to step up and do tough work, not
just to be a leader that gets credit for the easy things, but
Susie led, and it took her almost 14 years.
She chaired the Rules Committee for the Louisiana Bar
Association, the Louisiana Supreme Court, and thanks to her
leadership the Louisiana Supreme Court agreed to replace the
antiquated system where each judicial district in Louisiana
adhered only to its own set of court rules, and she helped to
lead and implement a standardized set of rules for all the
courts in Louisiana. That is tough work, doesn't get a lot of
headlines for the general public. But of course for the lawyers
and for the plaintiffs and defendants that use the system, it's
important.
She's always been a very strong voice for women lawyers,
which I so appreciate, in advancing their opportunities and
careers. After Hurricane Katrina and Rita in our district, she
rallied the community to support so much of the legal
community, or people that needed the help of the legal
community after that disaster.
So I submit to you Mrs. Susie Morgan for the District
Court. I have every confidence that she will do an outstanding
job and that she meets all the criteria and qualifications that
this Committee and our country depend on to do an excellent job
at the Federal bench. I will be happy to answer any questions
or provide any other additional comments.
Senator Coons. Thank you, Senator Landrieu.
I believe we'll hold the record open for a week in the
event that Senator Vitter also wants to join you in your very
compelling introduction of your professional and personal
friendship with Ms. Morgan.
I know you have pressing business to attend to, so Senator
Landrieu, thank you very much for joining us this morning to
introduce our nominee.
Senator Landrieu. Thank you, Mr. Chairman.
Senator Coons. I'd now like to move to invite Mr. Horowitz
to come forward, and I'll begin with an introduction of Mr.
Horowitz, if I might.
Mr. Horowitz is currently a partner, as I mentioned, in the
Washington, DC office of Cadwallader, and during his years
there he's also served as a Commissioner on the U.S. Sentencing
Commission.
Prior to joining the firm of Cadwallader, Wickersham &
Taft, Mr. Horowitz spent 3 years in the Criminal Division of
the Department of Justice, where he served as a Deputy
Assistant Attorney General and Chief of Staff to two Assistant
Attorneys General, James Robinson, a Clinton appointee, and
Michael Chertoff, a Bush appointee.
He previously spent 8 years as a Federal prosecutor in the
Southern District of New York, where he was Deputy Chief of the
Criminal Division and Chief of the Public Corruption Unit. He
began his legal career as an associate at Devilbois & Plimpton,
and clerked for Judge Davies of the U.S. District Court for the
Central District of California. Born in New York City, Mr.
Horowitz earned his B.A. summa cum laude from Brandeis
University, and his J.D. magna cum laude from Harvard Law
School, where he was executive editor of the Harvard Civil
Rights and Civil Liberties Law Review.
Welcome, Mr. Horowitz.
Mr. Horowitz. Thank you, Mr. Chairman.
Senator Coons. Please proceed with your statement.
Mr. Horowitz. Thank you.
Senator Coons. I need to swear him, don't I? Yes, I do.
Thank you. Forgive me. I was confused by the header which says
``opening statement.'' That's for me, not for you.
STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Coons. Before we begin your testimony, Mr.
Horowitz--forgive me. I'd like to take a moment to highlight
the importance of the respective roles of our two nominees
today. The Office of Inspector General is charged with
conducting independent investigations of Department of Justice
personnel and programs to detect and deter waste, fraud, abuse,
and misconduct and promote integrity, economy, efficiency, and
effectiveness in DOJ operations.
The Office of the Inspector General is within the executive
branch, but for it to function properly it must also be
independent from it. When the Inspector General steps in it's
because of a potential political or personnel conflict which
may prevent the normal supervisory structure from operating
free of bias. Our Federal laws bestow the IG with formal
independence. It takes, however, a special personality to
shield one's self effectively from the inevitable political
pressures that are unavoidable in investigating sensitive and
controversial allegations within such an important agency as
the Department of Justice.
We rely on Inspector Generals to uncover and report truths
that can be tough to learn, but that we must learn if we hope
to form a more perfect union and have a more effective Federal
Government. The Inspector General's 2008 report within the
Department of Justice, covering the improper dismissal of nine
U.S. Attorneys, for example, provided factual background for a
vigorous public debate surrounding the importance of keeping
politics out of prosecutorial discretion, and the Office of the
Inspector General also shed critical light on national security
letter abuses by the FBI, which led to the FBI revising its
internal controls.
The IG conducts regular oversight which requires diligence,
tenacity, competency, and fairness. The IG's reports ensure
fairness in grant awards, proper information security
practices, and integrity in procurement.
I look forward to hearing from Mr. Horowitz, who comes
highly recommended regarding his qualifications to be IG, and
what principles he would use to guide that office if he were to
be confirmed.
I also look forward to hearing from Ms. Morgan, Susie, who
is nominated to serve as the District Court judge in the
Eastern District of Louisiana. Our vacancy rate today stands at
over 10 percent, and many of our judicial districts are in
crisis. I hope that my colleagues will move quickly to confirm
qualified nominees and bring down the vacancy rate. In my view,
Ms. Morgan, I sincerely hope you, if confirmed, will continue
in the long and honorable traditions of the Federal bench.
Senator Grassley, do you have any statements at this time?
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM IOWA
Senator Grassley. I welcome both of our nominees, and will
talk about the Office of Inspector General conducting
independent investigations, audits, inspections, special
reviews of the U.S. Department of Justice personnel and
programs to deter and detect waste, fraud, abuse, and
misconduct and to promote integrity, economy, efficiency, and
effectiveness in the DOJ operation.
The fundamental requirement of this office and other
Inspectors General is independence. The IG must not be swayed
by political affiliation, loyalty to institutions, personal
friendship, or concern about personal popularity or potential
embarrassment to colleagues in the Department. That is true
whether you are a Republican or Democrat nominee.
I have discussed this in a long visit that I had with Mr.
Horowitz, and I hope that he knows my concerns, and I think he
does. Much of the hearing today, and any follow-up, will be to
establish a record on willingness and ability to maintain that
independence.
In addition, we'll be considering the nomination of Susie
Morgan to be U.S. District Judge for the Eastern District of
Louisiana. The seat to which Ms. Morgan is nominated became
vacant upon the removal of Judge Thomas Porteous following his
impeachment. It gives me an opportunity to comment on the
necessity of our looking very closely at nominees, with no
intimidation toward Susie, our nominee today.
Judge Porteous was one of seven judges nominated on August
25, 1994. A hearing was held just 16 legislative days later.
All seven nominees were reported by the Committee later that
same day. The very next day, October 7th, the judge was
confirmed by voice vote, along with 20 other judicial nominees.
Clearly, this nomination, along with others, was on a fast
track.
We have no way of knowing whether the impeached judge would
have been avoided had more time been spent on reviewing the
nomination. However, I think that the compressed timeframe and
irregular process was not helpful, nor should it be repeated.
There is a reason that we take time to thoroughly review a
nominee's record.
Following a hearing, Senators are entitled to review the
hearing record and responses to follow-up questions. This is
why we routinely ask for the full period of consideration
before reporting a nomination to the Senate. Once on the Senate
floor, Senators then should be afforded time to review the
nomination. Confirmation for lifetime appointments simply
should not be rushed through the process.
Today marks the 16th nomination hearing held in this
Committee this year. We will have heard from 66 judicial
nominees. All in all, 85 percent of President Obama's judicial
nominees have received a hearing from this Congress. When my
colleagues want to compare the pace of confirmations, I note
that at this point in President Bush's presidency, only 78
percent of his nominees had a hearing.
Thank you very much.
Senator Coons. Thank you, Senator Grassley. I certainly
agree with your sentiments that it is important that we review
closely nominees for Article 3 lifetime appointments to the
bench. I am grateful that we have the opportunity for a good
and thorough hearing today.
I now would like to invite Mr. Horowitz to please stand and
raise your right hand, if you would.
[Whereupon, the witness was duly sworn.]
Senator Coons. Thank you, Mr. Horowitz. Let the record show
the nominee has been sworn and taken the oath.
Mr. Horowitz, I welcome you to acknowledge and introduce
any family members or friends you have here with you today, and
then give us your statement.
STATEMENT OF MICHAEL E. HOROWITZ, NOMINEE TO BE INSPECTOR
GENERAL, DEPARTMENT OF JUSTICE
Mr. Horowitz. I have, fortunately, family members and
friends with me today. My wife, Alexandra; my son, Frederick;
my daughter, Clia; my mom, Anne; and my in-laws, Sandra and
Charles Kauffman; and some family friends from New York where I
grew up, Milton and Janet Leiberman. Thank you.
Senator Coons. Thank you.
Mr. Horowitz. Mr. Chairman, Ranking Member Grassley,
members of the Committee, thank you for the honor of appearing
before you today as the nominee of President Obama to serve as
the Inspector General of the Department of Justice. It is an
extraordinarily important position, particularly at this moment
in time where the need to eliminate waste, fraud and abuse and
to promote integrity and efficiency has never been greater.
I am confident that my investigative, audit, and management
expertise in the public and the private sector will enable me
to undertake these challenges successfully. I will, if
confirmed, exercise my duties with the same independence that I
believe I've demonstrated throughout my career and abide by the
bedrock principle that Federal District Court Judge John G.
Davies instilled in me as his law clerk 24 years ago, that
those involved in our justice system must faithfully follow the
Constitution and the law and that ideology, partisanship,
politics, and favoritism have no role whatsoever.
That wisdom, imparted upon me by Judge Davies, served me
well as a prosecutor in the Southern District of New York,
where I ultimately became the Chief of the Public Corruption
Unit. I was entrusted with some of the office's most sensitive
cases and worked regularly with Federal, State, and local
Inspectors General, including the Justice Department Inspector
General.
We tenaciously followed the evidence wherever it brought us
and all too often exposed extraordinary abuses of the public
trust. For example, in Manhattan's 30th precinct I helped
uncover one of the largest police corruption cases in New York
City's history.
On another occasion, I used the RICO statute, the
racketeering laws, to prosecute a company and its officers who
had defrauded the New York City school system and put
children's health at risk by falsely claiming to be able to do
asbestos abatement work, which it could not do.
On another occasion, at the then Immigration and
Naturalization Service, I led an investigation that arrested 33
people, including 7 INS employees, for taking over $100,000 in
bribes in return for the issuance of green cards that should
never have been given out.
The work in the Corruption Unit wasn't always popular,
particularly when we were arresting law enforcement officers
who were working on cases in our own office with other units.
But I wasn't interested in winning popularity contests as the
head of the Corruption Unit. I was instructed by the U.S.
Attorney to doggedly pursue corruption, to be independent of
the other units in the office, and that's precisely what I did.
In many instances, our cases relied heavily on the truth-
tellers, those employees who were willing to step forward to
report on corruption in their midst. As a result, I understand
the importance of encouraging employees to report suspicious
activity, of taking whisteblower claims seriously, and of the
need to protect them from retaliation. It is a respect that
will serve me well, if I am confirmed as the Inspector General.
Over the past 9 years, my work in private practice has
involved, among other things, conducting independent internal
investigations, working with compliance officers to investigate
employee whisteblower allegations, and to protect them from
retaliation and drafting compliance and ethics programs.
Many of these matters involve financial fraud and
corruption allegations, and as a result I work closely with
internal auditors, outside forensic accountants, and audit
committees. If confirmed, I will use this public and private
sector experience to oversee and office that aggressively
pursues investigations, that makes its decisions based solely
on the facts and the law, that conducts thorough and
comprehensive audits, and that issues reports that fairly,
fully, and accurately reflect its findings.
I also will work tirelessly to protect the office's
independence and to fulfill the office's statutory dual
reporting obligations to the administration and to the Congress
by being responsive and by providing timely and reliable
information.
My college alma mater, Brandeis University, has as its
motto, ``Truth even unto its innermost parts.'' It's a creed
that I intend to live by, if I am confirmed as Inspector
General.
I have been asked by family and friends why I'm prepared to
leave my law practice to return to the Department of Justice,
and the answer to that question for me is easy: because of my
love for public service and for our country, and because of my
deep affection for the Department of Justice. The Department is
much more than just another Federal agency, it is a guardian of
our system of justice and is responsible for enforcing our laws
fairly, without bias, and above all with the utmost of
integrity. The Inspector General plays a critical role in
fulfilling that mission and I pledge that, if confirmed, these
values will be the basis for any and all decisions that I make.
Thank you for your time, and I look forward to answering
any questions that you may have.
[The prepared statement of Mr. Horowitz appears as a
submission for the record.]
Senator Coons. Thank you very much.
We will now begin 5-minute rounds of questions.
I wanted to begin by just noting that the Committee has
received a range of very notable letters of support for your
consideration of your nomination from previous Inspectors
General at the Department, from 29 different legal
professionals who have served in both Republican and Democratic
administrations, and a particularly strong one from Michael
Chertoff, whom you worked with when he was Assistant Attorney
General in the Criminal Division under President Bush, who
wrote that you are an outstanding attorney and public servant
who's served in both Democrat and Republican administrations
and demonstrated your absolute impartiality and independence,
and your integrity is beyond reproach.
I'll ask unanimous consent that these letters be entered
into the record at the conclusion of this hearing.
[The letters appear as a submission for the records.]
Senator Coons. I'd be interested in hearing you talk a
little bit further. You mentioned your deep affection for the
Department of Justice, that being a motivating reason for
leaving a successful, vibrant, private sector law practice at a
firm.
Given that you spent years at the Justice Department, can
you assure the Committee that you will have sufficient distance
from your former colleagues to, if required, which it
inevitably will, investigate their professional behavior and
execute on the role of the IG, and how does your previous
experience in the Public Corruption Unit in New York allow us
to have any confidence about your ability to do that?
Mr. Horowitz. I absolutely make that commitment, Mr.
Chairman. I think my experience--it's not just the words that
I've mentioned, but I think my deeds will back that up, or have
backed that up, in the U.S. Attorney's Office in New York as a
corruption prosecutor.
I mentioned an instance where we arrested several law
enforcement officers, who at the time we arrested them were
about to be the key witnesses in a major drug case that another
prosecutor in the office was about to give an opening statement
on. As you might imagine, that caused some concern in the
office among other parts of the office, but nevertheless the
U.S. Attorney completely supported what we were doing, expected
us, as I said, to be entirely nonpartisan and independent of
the other unit in the office.
In another instance, I was the lead prosecutor before I
came down to main Justice on the Teamsters investigation that
resulted in the arrest of several individuals connected to the
election in the mid-1990s at the Teamsters that resulted in Ron
Carey's reelection. That matter was handled by our Civil
Division in our office.
Our investigation resulted in the arrest of several people
connected to his campaign and resulted in the election being
thrown out that our office had obviously spent a considerable
amount of time handling. But again, the message we had was, you
make the decisions, you follow the evidence in the law, you do
so with impartiality, and the results are the results. Wherever
the chips fall, they fall.
I've continued that, working in private practice for audit
committees and doing independent investigations on several
occasions having to make recommendations about misconduct by
individuals that we were working with, but that was the
responsibility that I was asked and instructed to do by the
audit committees, by the clients, and that's what I did.
Then finally, on the Sentencing Commission, I was in
private practice at the same time because it was a part-time
position by statute, and we, on several occasions, adopted
increases in penalties that I can tell you were not welcomed in
the defense bar, but nevertheless we did what we thought was
right and had to do. I heard many comments from colleagues
about that, but nevertheless it was what I was sworn to do and
the oath I took, and that would be the same oath I take here
and pledge to you.
Senator Coons. If you are to be confirmed, how would you
avoid, going forward, political pressures, either within the
Department or from elsewhere, to dispose of troublesome
investigations or to ignore uncomfortable facts? I know you've
got experience in that, but what would you actually use to
sustain you in that very difficult work?
Mr. Horowitz. Well, I think one of the things that's very
important is to understand the Inspector General isn't the only
person in the office. It's an office of about 450 people,
people with deep working relationships and understandings of
the Department, who have been there a long time. I think it's
safe to say many--I think most people would agree Glenn Fine
and Mike Bromwich, and others before him, built an outstanding
office with outstanding people.
So one of the things to do is to understand that, as
Inspector General, you need to listen to the people you're
working with and make sure they have the authority to do the
investigations and make sure you're not interfering with the
investigations, but supervising, oversee it, and giving
direction. So that's, I think, a significant part of how you do
things and make sure you follow through and do things fairly
and honestly.
Senator Coons. And what do you think--my last question.
What do you think are the most important characteristics for an
effective Inspector General, in addition to listening well?
Mr. Horowitz. Well, I think, first and foremost, is
independence and the ability to operate independently. I think
as well, as with any corruption prosecutor, the ability to
think creatively and to be tenacious. These are not easy
matters to investigate, cases to make. There are people
involved who, in most instances--for example, in investigating
law enforcement officers, they went in to do right and turned
bad in the job. They didn't go in to steal. Something turned
them. So you've got to be prepared to think creatively, be
tenacious. Never say something's impossible, because the one
thing I learned as a corruption prosecutor, anything is
possible. People in authority can do things improperly.
Then finally, given the issues as to the budget, I think
it's very important for an Inspector General to go in, to be
able to work with auditors, to push them, to pursue waste,
fraud and abuse, and that's something that I think is going to
be a very important part of this job.
Senator Coons. I couldn't agree more.
Senator Grassley.
Senator Grassley. Yes. My questions would follow along the
lines that we talked about in our private conversation in my
office. I heard what you said in your opening statement and I
heard everything that you've answered here for Senator Coons,
and that gives me a great deal of satisfaction.
But I want to be a little more direct. For instance, in
private practice you indicated that you had worked with the
Attorney General's current chief of staff--and I ask these
questions because of Fast and Furious--and that you had
contacts with him about your nomination. There are serious
questions about exactly what this chief of staff knew and what
he may have told the Attorney General about Fast and Furious.
You wrote a letter in support of Lanny Brewer to be head of
the Criminal Division. Briefly, how long have you known him?
These can be short answers if you want them.
Mr. Horowitz. Right. Sometime after 1999, when I came down.
I believe he was in private practice by then.
Senator Grassley. OK.
You indicated that you have followed the Fast and Furious
news reports. Based on what you know publicly, do you believe
that, if confirmed, you will have to investigate some of your
friends and former colleagues? For instance, Mr. Brewer or
Attorney General's chief of staff, Gary Grindler?
Mr. Horowitz. I intend, if confirmed, Senator, to pursue
every avenue in that case no matter who's involved. It's clear
to me that there are numerous people at various levels of the
administration that are--that have had questions raised, and I
will pursue them vigorously and fully, and the office will do
that.
Senator Grassley. OK.
I think you answered my next question, so let me make a
statement. I think your statement is to assure us that you
would investigate these individuals independently and
impartially, despite your previous subordinate interaction with
them.
Mr. Horowitz. Absolutely, Senator.
Senator Grassley. As you know, the Office of Inspector
General recently provided copies of some secretly recorded
audiotapes to the U.S. Attorney's Office in Arizona. On the
tapes, the cooperating gun dealer in Fast and Furious and the
ATF case agent are talking about my oversight work, and other
conversations that the U.S. Attorney's Office and the ATF had
about what to say in response to all the questions from
Congress. And by the way, they don't like me. That's what I
deduced from it.
Mr. Horowitz. I've only read the transcript. I haven't
listened to the tape yet, Senator.
Senator Grassley. So based on that, do you understand how
it interferes with our Congressional inquiry to provide
evidence like this directly to the very office we're
investigating?
Mr. Horowitz. Senator, I understand the significance of
that issue and read about it. Let me just briefly mention, I
had a similar scenario to have to deal with in the 30th
Precinct investigation I dealt with in New York, where we were
investigating police officers that the District Attorney's
Office were relying on, other parts of the office were relying
on. I clearly understand the need to be sensitive to other
matters going on and think very carefully, step by step, before
taking action.
Senator Grassley. Yes. To continue on this same line about
the tapes, the office cited discovery obligations to criminal
defendants. But does that require that the evidence be turned
over immediately, even before the inquiry is complete?
Mr. Horowitz. What I can tell you is, in the cases I've
dealt with where that situation arose, oftentimes I've reached
out to the defense lawyer and the judge to talk about the
timing of the production and try and work out an arrangement
that allowed our investigation to continue while ensuring that
any constitutional obligations were not violated. So I would
certainly approach these matters with that kind of sensitivity.
Senator Grassley. So that kind of is like you're saying
indirectly that they probably gave these tapes too soon to the
people down there.
Mr. Horowitz. Well, I'm hesitant to answer specifically as
to this, Senator----
Senator Grassley. That's OK.
Mr. Horowitz.--because I don't know the facts. I've simply
read about the tape question.
Senator Grassley. OK.
What steps would you take, if confirmed, to ensure better
cooperation and coordination with parallel Congressional
investigations?
Mr. Horowitz. In my mind, Senator, it's very important that
both investigations obviously be respected and the independence
of both investigations be respected, but that doesn't mean that
you go forward without recognizing the legitimacy of the other
investigation and working carefully to ensure that both
investigations can successfully proceed, and neither hurts the
other. It's got to be done carefully, but that's certainly
something I'm sensitive to.
Senator Grassley. The Office of Inspector General currently
does not have jurisdiction to investigate allegations of
misconduct by attorneys at the Department of Justice. Rather,
that jurisdiction falls to the Office of Professional
Responsibility, which reports directly to the Attorney General.
Former Inspector General Glenn Fine said that this creates a
conflict of interest. So my question to you: do you support
extending the jurisdiction of the Office of Inspector General
to include attorney misconduct?
Mr. Horowitz. I've talked with Glenn about that issue. I
think it's a very significant issue. The only hesitancy I have
with answering that right now, is I feel I'd have an obligation
to speak with the other people in the office to get their views
before I reached a decision on that. But I have read the
transcript of the hearing, I've read his testimony, I've talked
to him personally about this. I know how strongly he feels
about it and I understand why. He's concerned that this is the
only department in the government that doesn't have that
authority.
Senator Grassley. Thank you. I'll have a second round.
Senator Coons. Thank you, Senator Grassley.
Senator Cornyn.
Senator Cornyn. Mr. Horowitz, welcome.
Mr. Horowitz. Hi. Thank you, Senator.
Senator Cornyn. And thank you for your willingness to
serve. Congratulations to you and your family.
I also want to follow up on some of our conversation we had
in my office, and thank you for coming by and answering those.
But just so we can put this in context, other than the
Inspector General, which serves at the pleasures of the
Attorney General himself and the President, I think people are
familiar with the role of Special Counsel, which is also an
office within the Department of Justice, presumably reports to
the Attorney General himself, but has some measure of
independence. That was actually--the independent counsel
position that actually preceded that was allowed to expire by
bipartisan support in Congress because of concerns on both
sides of the aisle about overreaching that occurred, the
tremendous pressure on an independent counsel to come up with
some indictment of someone somehow for something.
Mr. Horowitz. Right.
Senator Cornyn. But I want to ask you about the--your level
of independence. I have great respect for the legal profession,
and I heard what you said about your commitment to the law and
to the facts. But can you explain to everyone listening how--if
ultimately Attorney General Holder and the President himself
can terminate you, how do you reconcile your independence with
that fact?
Mr. Horowitz. I appreciate that concern and that issue,
Senator. I can tel you from my standpoint, I'm interested in
this job and interested in serving because of the independence
in a significant way. If I felt that my independence was being
limited in a way that I thought was inappropriate I wouldn't be
interested in serving, or continuing to serve. It's----
Senator Cornyn. You'd quit?
Mr. Horowitz. I presumably would quit. I'm obviously not
committing to doing anything until a situation arose, but I've
been in the Department in both administrations and have worked
with people who made it clear that they would be willing to do
that in an appropriate circumstance. So I don't think it's just
an Inspector General, but I understand how it arises even in a
greater context with an Inspector General.
Senator Cornyn. As you know, the Fast and Furious debacle
came to the public's attention generally when Brian Terry, a
Border Patrol agent, was killed using one of these 2,000 some-
odd firearms that were bought in the United States but then
allowed to walk without the Bureau of Alcohol, Tobacco and
Firearms Agency even knowing where they were going.
Then apparently Attorney General Holder, sometime in
February-March 2011 timeframe, requested the Acting Inspector
General to do an investigation of this. Of course, we're still
waiting. That was some seven or 8 months ago.
While the properly functioning Inspector General's Office
is important to maintaining the public's confidence in the
proper operation of the Department of Justice and
accountability, it strikes me as a concern that if in fact an
Inspector General's report can--investigation can continue ad
infinitum, that there is some obligation to bring it to a
reasonable conclusion, or at least provide some sort of interim
report so it doesn't look like people are waiting for the next
election or some other event for it to occur, which would seem
to undermine the credibility of the investigation.
Would you care to comment on that?
Mr. Horowitz. Senator, in almost every context I've ever
worked in at the Department of Justice, justice delayed is
justice denied. Delay is rarely to the benefit of anybody who's
doing an investigation, and that's why I mentioned timely
reporting in my opening statement because I do care about that,
and I think it's very important, particularly in an Inspector
General position, as you said, that the Congress, the public,
the administration gets timely reports.
Senator Cornyn. If the trail in your investigation, once
you're confirmed, would lead to the Deputy Attorney General or
the Attorney General himself, would you follow this to the end
of that trail?
Mr. Horowitz. Absolutely, follow wherever the facts lead,
Senator.
Senator Cornyn. What would be a legitimate reason for the
Department of Justice to refuse to turn over a document or
provide a witness for a--to a Congressional investigation of
this matter?
Mr. Horowitz. On this matter? On the Fast and Furious
matter? Senator, I probably would have to understand more about
what the request involved. And I have, at this point, only
looked at what's public, including the reports of Senator
Grassley and Chairman Issa. But without understanding better
perhaps what the request was, I could foresee circumstances--
grand jury information for example, is by statute confidential.
So I think it would, for my mind, turn on what the specific
request was. But I'd need to know, I think, a little bit more.
Senator Cornyn. And finally, do you see any reason why the
Department can't, or shouldn't, cooperate with a legitimate
congressional investigation while simultaneously conducting its
own investigation through the Office of Inspector General?
Mr. Horowitz. To my mind, Senator, that's something that
the Inspector General's Office should try to do, and I would
try to do that, and commit to you I will do that.
Senator Cornyn. Thank you, Mr. Horowitz.
Mr. Horowitz. Yes.
Senator Coons. Senator Lee.
Thank you, Mr. Horowitz. We'll go to a second round of
questions.
To the question about timeliness and swiftness on the
shortness of justice, if you would, you mentioned a number of
compelling fact patterns of how aggressively you pursued
investigations when you were leading the public Corruption
Unit, even those that were uncomfortable or difficult for the
broader objectives either of NYPD or the U.S. Attorney's
Office.
I think you referenced one where you executed arrest
warrants on law enforcement officers who were scheduled to be
the opening witnesses in a major--tell us a little bit more
about the facts of that particular case, if you would.
Mr. Horowitz. Yes. That case involved three officers
assigned to an elite drug enforcement task force in New York
that were arrested for stealing drugs and being involved in
drug dealing themselves. They--we learned about that
information. That's obviously the kind of thing you need to
bring to a conclusion quickly.
You can't have people with badges and guns going around
when you know what they're doing, conduct such as that. And so
our obligation was to swiftly get to the end point, but at the
same time make sure you had a good case, a case that could
stand up in court. So that's the balance that has to go on, but
you have to move quickly.
Senator Coons. And what impact did your proceeding swiftly
and executing those arrest warrants have on the narcotics case
where those officers were signature witnesses?
Mr. Horowitz. We decided the case was ready to be taken
down and it didn't matter that it was the day before the
opening statements in the other trial, or the day of the
opening statements. I can't remember which it was. That was a
case where it was clear the arrests had to be made and that was
the right outcome. It didn't matter what the impact was on the
other case.
Senator Coons. You also referenced a broad procurement
fraud issue.
Mr. Horowitz. Right.
Senator Coons. I think you said you deployed--you used the
RICO statute in order to prosecute--investigate and prosecute a
New York City Schools procurement fraud case.
Mr. Horowitz. Correct.
Senator Coons. And you also referenced some immigration or
INS bribes----
Mr. Horowitz. Right.
Senator Coons.--for improper issuance of green cards. Tell
us anything else if you could that would give the Committee
some reassurance about your insistence, your independence, your
doggedness as a prosecutor, particularly in these corruption
cases, that may speak to some of the questions that have been
asked here today.
Mr. Horowitz. Well, a particularly good example comes again
out of the 30th Precinct investigation that I did. We had a
situation where we had first--what became the first take-down
in September 1994, and arrested several officers. Many people--
and a very successful case. Many people wanted us to shut it
down. We had good press, we had arrests, they were good cases,
and that should be it. No more embarrassment. We had evidence
that others were involved but we needed more time to make those
cases.
Fortunately, the police commissioner at the time,
Commissioner Bratton, and our U.S. Attorney agreed that we
should be allowed to continue. We did. Six months later we took
down a sergeant who had been training new officers and the
Assistant Integrity Control officer in the precinct. Those
people would have been allowed to stay had we not fought to do
the continuation on the investigation, but instead shut it down
simply because there was nice press and it was time to move
forward.
Senator Coons. And if you'd been in a position where you
hadn't had the support of the folks you referenced who
supported your continuing these very controversial
investigations, if you hadn't had their support and they had
insisted on your stopping when you had evidence of further
wrongdoing, what action might you have taken?
Mr. Horowitz. I would have certainly seriously considered
resigning from my position as head of the Corruption Unit. I
don't think you can have evidence like that, believe you need
to continue, and continue sitting in that position.
Senator Coons. I just want to say thank you--I will turn to
Senator Grassley, if he has additional questions--for your
willingness to serve and for your bringing such a rich, broad
range of experience to bear.
Senator Grassley.
Senator Grassley. Senator Lee, I have to be with Senator
Landrieu at 3:30. Could I go ahead of you?
Senator Lee. Yes.
Senator Grassley. OK.
I think I'm going to just ask one question, but it's kind
of a long question. I think you and I talked about my
authorship of the False Claims bill. It is my hope that, as
Inspector General, that you would also vigorously support the
False Claims bill, and particularly the qui tam provisions.
Could you inform the Judiciary Committee of your
experience, if any, with the False Claims Act?
Mr. Horowitz. My experience, Senator, has been somewhat
limited with the False Claims Act and the qui tam statute. I've
been involved with clients who have had issues that I wasn't
directly handling, was present for some meetings where those
cases were discussed, but I was never the lead lawyer on the
civil side on those matters. I was involved in some of the
discussions concerning interactions with the government that
were related to those cases.
Senator Grassley. OK.
Without violating any client-lawyer relationships you have,
have you ever advised any corporation about retaliation cases
under 31 U.S.C. 3738, the anti-retaliation portion of False
Claims? If so, what did you advise the corporation?
Also, have any clients you represented been accused of
violating that section during the course of your
representation, and have you ever advised a client to take any
personnel action which could be viewed as adverse against any
qui tam relator?
Mr. Horowitz. I have not, Senator. I have not been--no to
all three questions.
Senator Grassley. OK.
Have you ever found yourself under pressure by a corporate
client to discredit a whisteblower rather than investigate
their claim, and if so, how did you respond to the pressure?
Mr. Horowitz. I have not, Senator. In fact, I've counseled
clients in the other direction, which is to take the claim
seriously and to pursue them vigorously.
Senator Grassley. Do you have any question as to the
constitutionality of the False Claims Act and the qui tam
provision?
Mr. Horowitz. None, Your Honor--none, Senator.
Senator Grassley. As Inspector General, would you
vigorously police enforcement of the False Claims Act?
Mr. Horowitz. Absolutely.
Senator Grassley. Will you oppose any--I'm sorry that I'm
smiling, but I ask these questions of everybody from the
Justice Department.
Mr. Horowitz. It's OK. Completely understand, Senator.
Senator Grassley. Will you oppose efforts within the
Justice Department to weaken the False Claims Act and its qui
tam provision?
Mr. Horowitz. To the extent I was asked, Senator, I'd
obviously want to understand what was going on there, but I'm
guessing that issue wouldn't arise before the Inspector
General. But what I can assure you, is I would learn and
understand what was involved, and certainly anything that dealt
with retaliation against whisteblowers, I would care deeply
about.
Senator Grassley. OK.
And the last portion here, and then I'll quit. Would you
agree to promote a close working relationship between qui tam
relators' counsels and the Justice Department for the purpose
of establishing the public/private relationship envisioned--
that I envision of the False Claims Act?
Mr. Horowitz. To the extent, Senator, that the Inspector
General's Office was involved in that, I'd certainly--that's
something certainly I'd be willing to be involved with.
Senator Grassley. Thank you very much.
Mr. Horowitz. Thank you, Senator.
Senator Grassley. I wish you well.
Mr. Horowitz. Thank you.
Senator Coons. Well, thank you, Senator Grassley.
Senator Grassley. I want to apologize to Ms. Morgan. I have
to go to be with your Senator Landrieu on some foster kid cases
that we work on.
Senator Coons. Thank you for joining us today, Senator
Grassley. We'll do our best to carry on.
I just want to say in closing, if I could, Mr. Horowitz, my
thanks to your family, your in-laws, your mother, your friends,
to Alexandra, and to Frederick and Claire, for being so good
during the hearing and for answering--I have small children of
my own.
[Laughter.]
Senator Coons. I am grateful for your appearance and
testimony before this Committee today. You're excused, and we
will move to our second panel.
Mr. Horowitz. Thank you, Mr. Chairman.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Coons. I'd now like to invite Ms. Morgan to come
forward. Please raise your right hand and repeat after me.
[Whereupon, the witness was duly sworn.]
Senator Coons. Thank you, Ms. Morgan. Let the record
reflect the witness has been sworn, taken the oath.
Ms. Morgan, I'd encourage you to introduce any members of
your family or friends who might be with you and then proceed
with your statement.
STATEMENT OF SUSIE MORGAN, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF LOUISIANA
Ms. Morgan. First, I'd like to introduce my husband, Larry
Feldman. Stand up. Larry's a distinguished trial attorney in
Louisiana in his own right, and a past president of the
Louisiana State Bar Association. I'm very proud of him. I'd
also like to introduce my friend Margaret Shehee from
Shreveport, Louisiana. I appreciate her being here. And my
friends, Charlie McBride and Peggy DeBell, who are from
Washington, DC. I appreciate all of them being here to support
me. Our daughters are at home watching on the webcast: Summer,
Erin, and Jill. They couldn't be here today, but they certainly
are watching the proceedings with interest.
Senator Coons. Wonderful.
Ms. Morgan. I'd like to thank the Committee for scheduling
my hearing. I'd like to thank Senator Landrieu and Senator
Vitter for their support, and the President for his nomination.
Senator Coons. Do you have any statement you'd like to
share with us, Ms. Morgan?
Ms. Morgan. That's all.
Senator Coons. Thank you.
Senator Landrieu gave a thorough and encouraging
introduction, a review of your professional experience and
career. I'd appreciate your beginning our first round of
questions by just briefly describing your judicial philosophy.
Ms. Morgan. Well, I believe that the judge's role is to
apply the law to the facts and to be fair and impartial, and
that the judge's opinions and personal preferences play no role
in that process, and I believe that Federal judges must be sure
that they decide only the issues before them and that they
narrow their rulings in that manner.
Senator Coons. As a District Judge, how would you see your
role in ensuring fair access to our legal system and what prior
experience might you have in ensuring access to justice that
would be relevant to your service in the court?
Ms. Morgan. Well, I know that it's important for all
citizens to have access to the courts and for them all to be
treated with respect when they come before the court,
regardless of their position in life or station. And I would
support the efforts of the Louisiana State Bar Association and
the New Orleans Bar Association and our local Federal Bar
Association to help ensure that indigent people have the right
to counsel.
Senator Coons. Thank you.
What are the most important lessons you've learned in your
various legal positions and across your practice, and how would
you apply those lessons to your service as a Federal judge, if
confirmed?
Ms. Morgan. Well, I think I've learned--I've had a lot of
different kinds of cases over my legal career and I think
that's going to help me because I've done oil and gas cases,
construction disputes, navigable waterway disputes. I've done
product liability cases, I've got--I've had a lot of varied
experience. And I've even had some criminal cases because when
I practiced in Shreveport, the way that conflicts were dealt
with was that the courts appointed private attorneys to
represent co-defendants. So I feel I've got a broad range of
experience and that that would help me in considering the very
many different kinds of cases that I would see in a Federal
District Court.
Senator Coons. And in interpreting or applying a statute,
what do you view as the role of the judiciary in sort of
defining, understanding, and applying the will of the
legislative body, whether it's a State or Federal one?
Ms. Morgan. Well, I think the most important thing, and the
first thing that the judge has to do, is look at the words of
the statute or the words of the constitutional provision and to
apply that as written--as written. If there's an interpretation
to be made or application to be made, then I think I would look
to the United States Supreme Court decisions and to the Fifth
Circuit Court of Appeal decisions. If there were no controlling
or close decisions from those courts, then I would look to
Circuit Courts from other Circuits or to analogous cases.
Senator Coons. And what do you view as the role of
precedent in reaching decisions, whether in the Federal bench
or in your previous legal practice?
Ms. Morgan. Well, I know that the role of the District
Court is to apply the law as it's written and it has been
interpreted by the higher courts, which would be the U.S.
Supreme Court, and in my case the Fifth Circuit Court of
Appeal.
Senator Coons. Thank you, Ms. Morgan.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
Thank you for joining us today, Ms. Morgan.
Ms. Morgan. Thank you.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Lee. I want to talk to you a little bit about
dispositive motions in Federal court practice. Tell me what you
think the role of dispositive motions is. How important a role
do those play in the litigation process?
Ms. Morgan. Well, the cases that I've ordinarily been
involved in have been complex litigation where there's a great
deal of motion practice, and I think the role is that we know
that it's expensive for clients to go through protracted
litigation, and if cases can be decided on the basis of
dispositive motions, and appropriately so, then that is
something that can give the parties certainty and keep it from
taking years for a dispute to be resolved.
Senator Lee. Sometimes I have suspected there's a tendency
on the part of some judges to say, well, when in doubt, if it's
a difficult case and I'm not quite sure that I should grant
this dispositive motion, maybe I should deny it because that
``will allow the plaintiff to have her day in court.'' Do you
agree with that assessment?
Ms. Morgan. Well, I do respect that people do have a right
to come into the judicial system and they should be respected
and made to feel welcome, but I don't think we can let--that a
judge can let that factor into whether to grant a dispositive
motion if in fact it fits the facts and the law dictates that
it should be granted.
Senator Lee. So in other words you could be depriving
someone else of a right if you do that just for the sake of
allowing someone to have their day in court.
Ms. Morgan. That's right.
Senator Lee. They've had their day once they've submitted
the dispositive motion. Yeah, I think that's correct.
Is it your sense that judges will occasionally deny a
dispositive motion that might be warranted in part on the basis
of what some might loosely refer to as defensive jurisprudence?
In other words, it's easier to deny a summary judgment motion
or a motion to dismiss. You don't--the order or opinion
entailed in that usually is a lot shorter if it's a denial than
if it's a grant, and normally it's not going to be subject to
an immediate appeal if you deny it. A lot of the time the
parties will settle if you just deny the motion and allow the
case to proceed. Have you ever seen that happen?
Ms. Morgan. Well, I'm not--not personally because I'm not--
I haven't been privy to what the judge's thinking was, usually.
Senator Lee. Sure. Sure.
Ms. Morgan. But I know that what my intent would be to not
have that factor into my decisions, but instead to look at the
law and the facts and make the decision and assume that the
parties will take care of the settlement process themselves.
Senator Lee. Now, you've been an advocate throughout your
career, and it looks like you've zealously and effectively
represented your clients. Do you feel this would be a difficult
transition for you at all going from being an advocate for
discrete parties to just being a judge? Is that something
you'll have any difficulty doing?
Ms. Morgan. Well, I do recognize that there's a difference
and I realize that there's also going to be a learning curve
for me in learning how to be a judge. But I realize that
there's no role for advocacy on the part of the judge, that the
judge has to be impartial and fair and apply the law to the
facts without regard to special consideration or advocacy for
one side or the other.
Senator Lee. Let's talk about Federal power for a minute.
Can you tell me, apart from the discrete facts of United States
v. Lopez and United States v. Morrison, can you think of any
real limits on Congress's power under the Commerce Clause?
Ms. Morgan. Well, I know that the Supreme Court has clearly
held that, even though the Commerce Clause is broad, that there
are limits. I'm not an expert in that area of the law, have
read some of those cases.
Senator Lee. What role do you think the courts ought to
play in making sure that those limits exist and are enforced?
Ms. Morgan. Well, I know for a District Court Judge what we
do is look to the U.S. Supreme Court and follow the rulings of
that court, and also to the Fifth Circuit Court of Appeal.
Senator Lee. OK.
And that's something that you'd be willing to do as a
judge, if confirmed? Become familiar with those limits, as
articulated in Lopez and Morrison and the other cases, to
figure out where those limits are, understanding that the
Supreme Court hasn't addressed every conceivable issue out
there and so you'll have to glean something from the principles
articulated in those cases.
Ms. Morgan. Absolutely.
Senator Lee. OK. Thank you.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator Lee.
In your 30-year career as a litigator, I note that you
spent over 1,000 pro bono hours rewriting and streamlining
procedural rules. Tell me something, if you would, about that
level of engagement in pro bono work. Senator Landrieu referred
to it. What were the challenges? Why did you undertake this
much work? What were the benefits for the administration of
justice in the State of Louisiana?
Ms. Morgan. Well, I started working on the project about 13
years ago and my first words were, ``I can't chair this
project, but I'll help you get it started.'' And so 13 years
later, it's been a real effort of love. I've enjoyed it. What
we first did, these are the rules that govern the day-to-day
operations of the court that have a big impact on litigants and
the parties.
First, we gathered all the rules that the different
District Courts had in Louisiana, and then we tried to fashion
rules that would work for everyone, and where they wouldn't
work for everyone we attached an appendix and said, in this
court--at least you know where to go to look for it in this
court. It took us about 5 years to draft.
In 2002, we went to the Louisiana Supreme Court. They
adopted and implemented--we call the Louisiana Rules for
District Court. And so since then my Committee has been
involved in educating judges and attorneys about it and being
the--accepting suggestions for changes, either amendments or
new rules. And we believe we've really made a difference in the
practice of law in Louisiana.
Some of the things we added, we got from the Federal rules.
For example, now before parties file a Motion to Compel they
have to confer and try to work out their differences, and
before they submit a judgment to the court it has to be
circulated among the parties.
Those are the kinds of just everyday, ordinary things that
make the practice of law better and that the judges have told
us reduced the burden on them because instead of having to
handle a motion to compel, the parties work it out among
themselves and only in extreme circumstances have to go to the
court. So I'm proud of the work that I did on that committee. I
really think it's made an improvement in the administration of
justice.
Senator Coons. Thank you, Ms. Morgan. I have no further
questions.
Senator.
Senator Lee. I notice you clerked on the Fifth Circuit
right out of law school.
Ms. Morgan. Yes.
Senator Lee. Tell me about that experience. Did you enjoy
it?
Ms. Morgan. Oh, I did. I worked for Hank Politz, who's from
Napoleanville, Louisiana, and he's just a wonderful man and
mentor to his clerks and to many young lawyers. And he's been a
role model for me. He passed away a few years ago, but he was a
wonder--it was a wonderful experience, and I think that's what
made me, in the beginning, become interested in being a Federal
judge.
Senator Lee. Anything in particular about his judicial
philosophy that you'd try to emulate on the bench?
Ms. Morgan. No, just that he was a very fair-minded person
and, you know, he--he applied the facts to the law, but he also
never forgot that decisions have an impact.
Senator Lee. Was he kind to his clerks?
Ms. Morgan. He was.
Senator Lee. Good.
I've noticed your practice is overwhelmingly civil, about
95 percent civil. You've handled a few criminal cases. I don't
view that as an impediment by any means. Sometimes it can be
difficult if you've had no criminal experience at all, or if
somebody is all criminal and they haven't had any civil
experience. You feel comfortable with your ability to get up to
speed quickly on the criminal standards?
Ms. Morgan. I do. I know that the Federal Judicial Center
has programs to help judges get up to date and up to speed in
areas of law they're not familiar with, and I'm looking forward
to participating in that. I've also talked to some of the
judges who sit on the Eastern District of Louisiana currently
who've offered to help get me up to speed.
Senator Lee. And it sounds like, within your civil
litigation practice, it has been fairly diverse. In other
words, you haven't been handling just one type of case. I
suspect that would help you as well in gearing up toward the
criminal cases.
I think that's all my questions. Thank you very much.
Ms. Morgan. Thank you.
Senator Coons. Well, Ms. Morgan, thank you, to you, to
Larry, to your friends. Thank you for your willingness to
serve, for your long and dedicated service in the Louisiana
Bar. Hopefully we will be able to proceed rapidly to
consideration of your nomination on the floor of the Senate.
I will keep the--we will keep the record open for a week
for any members of the Committee who were not able to join us
today and who may wish to submit letters or questions in
writing to either of our witnesses today.
And with that, this hearing is adjourned.
[Whereupon, at 3:34 p.m. the hearing was adjourned.]
[Questions and answers and submissions follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF HON. JACQUELINE H. NGUYEN, OF CALIFORNIA, TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT; GREGG JEFFREY COSTA, OF TEXAS, TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS; AND HON. DAVID
CAMPOS GUADERRAMA, OF TEXAS, TO BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF TEXAS
----------
WEDNESDAY, NOVEMBER 2, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Richard
Blumenthal, presiding.
Present: Senators Blumenthal, Feinstein, Franken, and
Grassley.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR
FROM THE STATE OF CONNECTICUT
Senator Blumenthal. I am going to begin the hearing. We are
waiting for some of the other Senators to arrive, but in the
meantime I would like to welcome our three nominees and their
families. I am pleased to call this hearing to order and thank
Chairman Leahy, the Senator from Vermont, for giving me the
chance to chair this very, very important hearing.
I am particularly glad to do my part in advancing your
nominations. I am impressed by your backgrounds,
qualifications, expertise, and experience, and I want to
welcome Judge Nguyen as well as Gregg Costa. Judge Nguyen has
been nominated to the Ninth Circuit Court of Appeals; Gregg
Costa to be District Court Judge for the Southern District of
Texas; and David Guaderrama to be the District Court Judge for
the Western District of Texas.
I hear consistently when I am in Connecticut, which is my
State, about the need for judicial nominations to move forward,
and I am glad that we are going to be doing our part today to
advance this process, and I am honored to be joined by the
Ranking Member of the Judiciary Committee, Senator Grassley of
Iowa.
We have a bipartisan interest on this Committee in
advancing these nominations because justice should be
completely without regard to party or partisan interests. We
all have in common the very strong national interest in filling
judicial vacancies when they occur. We now have about one in
ten judgeships open in the country, and I am encouraged and I
have been encouraged in the time that I have been in the U.S.
Senate, which has only been about 10 months, by the progress
that we have made in filling those vacancies. But, of course,
we need to do more because 161 million Americans live in
districts or circuits that have a judicial vacancy that should
be filled.
And I want to say to each of the nominees and your families
that nothing is more important in the United States system of
government than the jobs you are going to be hopefully filling
if you are confirmed. You are going to be the face and voice of
justice in this country.
I practiced law for about 30 years in the Federal as well
as our State courts in Connecticut, and so I saw firsthand the
importance of what you do as a prosecutor, as an Attorney
General of the State, and want to commend you and thank you for
your willingness to step forward and serve in this very, very
important role.
So, again, welcome to you, to your families who are also
making a sacrifice, and I would like to ask the Ranking Member,
Senator Grassley, to now make his opening statement.
Senator Grassley. If Senator Cornyn or Senator Feinstein
have to leave after their statement, I would be glad to defer
to either one of you now.
Senator Blumenthal. Senator Feinstein.
PRESENTATION OF HON. JACQUELINE H. NGUYEN, NOMINEE TO BE
CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. You are very kind. Thank you very much,
Senator Grassley. I very much appreciate that. And, Mr.
Chairman, thank you very much.
I am very pleased today to introduce Judge Jacqueline
Nguyen to become a circuit court judge for the Ninth Circuit
Court of Appeals. Judge Nguyen has nearly a decade of
experience as a trial court judge with a long record of
success.
I recommended that the President nominate Judge Nguyen to
the district court in 2009 after my bipartisan judicial
selection Committee gave her its highest recommendation. I
believed then that she would make an excellent district judge,
and she has confirmed that belief, performing her duties as a
Federal judge with distinction.
Her nomination is actually a historic one. Judge Nguyen was
the first Vietnamese American on the Federal bench when she was
confirmed in 2009. She will be the first Asian American female
to serve as a Federal appellate judge. I do not doubt that she
will make an outstanding addition to the Ninth Circuit.
Born in South Vietnam in the midst of the Vietnam War,
Judge Nguyen came to the United States with her family at the
age of 10 during the war's final days. The Nguyen family lived
in a tent in a San Diego refugee camp for 3 months before
moving to Los Angeles. Her parents worked two and three jobs at
a time to provide for their family. Judge Nguyen and her five
siblings labored alongside their parents after school and on
weekends until late at night, helping to clean dental offices,
to peel and cut apples, and to help her parents run a small
business--a donut shop that her parents saved every penny to
open.
As she wrote to my selection committee, and I quote, ``Like
many refugees, my parents each worked two jobs, and my siblings
and I were expected to do what we could to help the family.''
Judge Nguyen's story and that of her family shows that hard
work and determination can lead to success, and if I might add,
really shows that this country still remains a major land of
opportunity.
She wrote to my selection Committee that despite the
difficulties her family faced, and I quote, ``I nevertheless
feel incredibly fortunate because those early years gave me
invaluable life lessons that have shaped who I am today.'' As
Judge Nguyen said, she is living the American dream.
Judge Nguyen earned her bachelor's degree from Occidental
College in 1987 and her law degree from the University of
California Los Angeles School of Law in 1991. Following law
school, she practiced commercial law as a litigation associate
for the prestigious firm of Musick, Peeler & Garrett for 4
years. Her caseload included complex contract disputes and
intellectual property cases.
In 1995, she entered public service, becoming an Assistant
U.S. Attorney in the U.S. Attorney's Office in Los Angeles. As
a Federal prosecutor, she prosecuted a broad array of crimes--
violent crimes, narcotic trafficking, organized crime, gun
cases, and all kinds of fraud. She handled all phases of these
prosecutions from indictment through trial and ultimately on
appeal. She tried ten cases to verdict, and she handled
numerous appeals to the Ninth Circuit. She frequently helped
prepare other Federal prosecutors in Los Angeles for their
appellate arguments as well.
She spent about 5 years in the public corruption and
government fraud section of the office, prosecuting complex
fraud cases, including one case that was described by the
United States Customs Service as its largest commercial
smuggling case. She also spent 6 months in the organized crime
strike force section, handling a Title II wiretap investigation
of a Russian organized crime group responsible for smuggling
sex slaves into the United States from the Ukraine.
In 2000, she received a special commendation from FBI
Director Louis Freeh for obtaining the first conviction ever in
the United States against a defendant for providing material
support to a designated terrorist organization. The Justice
Department recognized her with three additional awards for
superior performance as an Assistant United States Attorney,
and in 2000 she was promoted to deputy chief of the general
crimes section.
Judge Nguyen is a distinguished jurist with nearly a decade
of experience as a trial judge. She left the U.S. Attorney's
Office in 2002 when Governor Gray Davis appointed her to the
Los Angeles Superior Court. She has served as a Federal
district court judge since 2009 when she was nominated by
President Obama and confirmed 97-0 by the Senate.
Over the course of her nearly 10-year-long judicial career,
she has presided over thousands of cases, including 75 jury
trials and 12 bench trials. Forty percent of her cases have
been civil proceedings, and 60 percent have been criminal
cases. On the bench, she prizes fairness and integrity. She
believes in treating all parties with respect and deciding
cases in a well-reasoned fashion based on the facts of the case
and on the applicable law.
Her colleagues on the bench as well as attorneys from all
sides of the bar have praised her for her first-rate legal mind
and judicial temperament. In short, she has everything and all
the experience to make an excellent addition to the Ninth
Circuit. I urge my colleagues to support her nomination.
I thank you for this courtesy, Mr. Chairman. It is very
much appreciated.
Senator Blumenthal. Thank you, Senator.
I do not know whether Senators Cornyn and Hutchison would
like to introduce their nominees before the Ranking Member
makes his statement, but we would be glad to hear you.
PRESENTATION OF GREGG JEFFREY COSTA, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, AND HON. DAVID CAMPOS
GUADERRAMA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF TEXAS, BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR
FROM THE STATE OF TEXAS
Senator Hutchison. Thank you very much, Mr. Chairman, and
thank you, Senator Grassley, for allowing us to go forward.
Nice to see you, Senator Feinstein.
Senator Blumenthal. Thank you, Senator Feinstein.
Senator Feinstein. Thank you.
Senator Hutchison. I am very pleased--and, of course,
Senator Franken, thank you, too. We never want to forget
Senator Franken.
Let me just say I am very proud of the two nominees that
Senator Cornyn and I have put forward. First I want to
introduce Mr. Gregg Costa, who has been nominated to serve as a
Federal District Judge for the Southern District of Texas in
Galveston. He was born in Baltimore, Maryland, but made his way
to Texas as soon as he could at the age of 1. Mr. Costa
attended Dartmouth where he graduated with a degree in
government and then continued his studies at my alma mater, the
University of Texas School of Law, where he was editor in chief
of the Texas Law Review and received his juris doctorate with
highest honors in 1996.
He started his professional career in Houston, where he
resides today. He was a law clerk in 1999 and then continued as
a fellow in the Department of Justice's Office of the Solicitor
General in 2000. In 2001, he became a law clerk for Supreme
Court Chief Justice William Rehnquist and then in 2005 became
an Assistant U.S. Attorney. He is the co-lead counsel for the
U.S. prosecution of Robert Allen Stanford. In addition, during
the nearly 6 years as an Assistant U.S. Attorney, he has tried
more than 15 cases in matters involving visa fraud, identity
theft, human smuggling, and firearms.
His impressive professional career is complemented by his
dedication to serve and teach others in the legal community. In
addition to being an Assistant U.S. Attorney, he has taught in
an adjunct professor position at the University of Houston Law
Center and currently is the co-chair of the Southern Texas
chapter of the American Bar Association's White Collar Crime
Subcommittee.
He has a wealth of experience and passion for his work, I
think it is clear, and I believe he will be an asset to the
Federal bench. His family has been with him every step of the
way, and his wife, Jennifer, and two sons, Elijah and Joshua,
who are here--I guess daughter Rebecca, age 1, is not here, but
we understand why. We are glad to have all of you and recommend
Mr. Costa to you for this judgeship.
Our second nominee is Judge David Campos Guaderrama, who
has been nominated for the Western District bench in El Paso.
He is originally from New Mexico, but he, too, realized that
the other side of the State line was worthy and moved to El
Paso at a young age. He attained two bachelor's degrees from
New Mexico State University in political science and psychology
and then earned his juris doctorate from the University of
Notre Dame School of Law in 1979. Upon his graduation, he began
his law career in law offices in El Paso, and after 6 years of
private practice was appointed the first chief public defender
of El Paso County in 1987.
In 1995, he was elected for the first of five successive
terms to preside as judge of the 243rd judicial district court.
In October of last year, he began serving as a magistrate in
the U.S. District Court for the Western District where he is
today.
During his three decades in the Texas legal system, he has
earned many accolades. He helped launch the first adult
criminal drug court in El Paso County. He co-chaired the
Committee to implement a new jury selection plan and was
assigned by Chief Justice of the Texas Supreme Court, Wallace
Jefferson, to oversee several cases of the Eighth Court of
Appeals. He has served in the Texas judicial system for 30
years, and I recommend him highly to the Committee.
Senator Blumenthal. Thank you, Senator.
Senator Cornyn.
PRESENTATION OF GREGG JEFFREY COSTA, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, AND HON. DAVID CAMPOS
GUADERRAMA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF TEXAS, BY HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman. Senator Grassley,
thanks for the courtesy. Senator Franken. It is good to be
sitting on this side of the bench today as a member of the
Judiciary Committee to join my colleague Senator Hutchison in
recommending two outstanding nominees to the Federal bench.
I am proud first to join Senator Hutchison in supporting
Gregg Costa to serve as United States District Judge for the
Southern District of Texas in Galveston. Just a word about the
process. We have worked very closely with the White House and
our bipartisan judicial evaluation Committee that is comprised
of leading lawyers around the State, and Senator Hutchison and
I have made it a point, with the advent of the Obama
administration, to work very hard with the White House to,
through our bipartisan judicial evaluation committee, recommend
some of the best and brightest legal minds for the White
House's consideration, and clearly they have taken our advice
on these two nominees.
I will mention Mr. Costa, who was selected for numerous
honors and awards, including membership in the Chancellors
Society, and his work on the Texas Law Review, two distinctions
I am proud to say he shares with my older daughter, who is
practicing law in Austin, Texas, now.
After law school, he went on to clerk both for Judge
Randolph of the D.C. Circuit and, as Senator Hutchison has
said, William Rehnquist at the Supreme Court. His most relevant
legal experience, though, comes from his work as Assistant U.S.
Attorney, as you have heard from Senator Hutchison.
As a former State district court judge myself, I can say
with confidence that we need more trial judges that actually
have trial experience. This should not be an on-the-job-
training exercise, but in this case we certainly have in Mr.
Costa's case somebody who has an outstanding record as a
practicing lawyer, in this case a prosecutor, who now will take
that knowledge with him to the bench.
This is especially a challenge in our State because of the
extensive backlogs because of our relative proximity to the
U.S.-Mexico border, immigration cases, drug cases, and the
like. But I have no doubt that Mr. Costa will more than
competently and efficiently administer his docket, increasing
access to justice.
Let me just close by quoting one of Mr. Costa's colleagues.
He said, ``Mr. Costa has an outstanding work ethic. He is a
skilled trial lawyer. He is highly respected by his colleagues
and the judges, and he is the go-to lawyer in the U.S.
Attorney's Office. He is really smart, and he is by far the
most productive prosecutor in the office. I have no doubt that,
if given the opportunity, Gregg will be a fine Federal judge.''
So I join Senator Hutchison in congratulating Mr. Costa and
his family for this great honor, and I have no doubt that the
Committee will move expeditiously to recommend to the full
Senate his nomination.
Now, if I may, let me say just a few words about our second
nominee, David Guaderrama. Of course, as Senator Hutchison
pointed out, Judge Guaderrama currently serves as a United
States magistrate judge, so he has a very up close and personal
view of the Federal dockets in one of our busiest districts in
Texas and, indeed, in the United States. That is the Western
District of Texas in El Paso.
Like Mr. Costa, Mr. Guaderrama was a consensus nominee
recommended to the President by our bipartisan Federal judicial
evaluation committee. Of course, Judge Guaderrama possesses a
wealth of experience to qualify him for this honor, and he has
learned the value of hard work at an early age, serving as a
hand on his family's farm in New Mexico.
During college, Judge Guaderrama also worked a variety of
jobs, including positions as a gas station attendant and
furniture delivery man, and I mention those only because of my
firm conviction that it is important that judges who preside
over these very important cases understand not only the legal
perspective but the perspective of the jurors and the people
who seek access to justice in our courts. And so I think the
breadth of his legal experience and his personal experience
will help him in that regard.
Like Judge Guaderrama, as I indicated earlier, I am both a
former State district court judge and a former gas station
attendant, and I cannot help but wonder whether the long days
pumping gas in the Texas heat somehow uniquely prepared both of
us for our jobs as judges. And to this day, I still have
questions which job was actually better.
In all seriousness, Judge Guaderrama had bigger plans, and
he went to school, as you have heard, at Notre Dame Law School.
After law school, he gained extensive experience in El Paso, as
you have heard, and I believe that given the large number of
criminal and narcotics cases occupying the Federal docket in El
Paso, coupled with the procedural complexities that they often
present, Judge Guaderrama's experience with both of these types
of cases will well qualify him.
So, Mr. Chairman, thank you for allowing Senator Hutchison
and myself both to come before the Committee this morning and
recommend these two consensus nominees. It is my sincere hope
that Chairman Leahy will put these nominations after this
hearing on a markup, that we can get them voted out of
Committee, that we can get them to the floor of the Senate, and
that Senator Reid will allow us the opportunity to confirm both
of these outstanding nominees so they can go on to serve the
people of our State and our country in these important
positions.
Thank you very much.
Senator Blumenthal. Thank you to both Senators for your
very excellent introductions.
Senator Hutchison.
Senator Hutchison. Could I just mention that I failed to
introduce Mr. Guaderrama's wife, Annalisa, who is with him, and
I think it is so nice that both of them are there. So I wanted
to put that in the record as well. Thank you.
Senator Blumenthal. Thank you, Senator. Knowing how busy
both of you are, thank you very, very much for being with us
today.
And now I would like to turn to Senator Grassley for his
statement.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Well, like the Chairman and our
colleagues, I welcome the nominees appearing today as well as
their proud families and friends.
A nominee's hearing is a very important event for the
nominee, their families, and, of course, for this institution,
the Senate, and for the public that expects us to be very
careful about who gets on the bench with lifetime appointments.
The Committee takes this responsibility seriously. Today's
hearing is the 17th nominations hearing held during this
Congress, meaning during this year. After today, we will have
reviewed the qualifications of 69 judicial nominees throughout
this year. That means that after today's hearing nearly 92
percent of President Obama's judicial nominees have had a
hearing. In total this year, we have made real progress in 86
of the 99 nominations submitted during this Congress. We have
confirmed 53 judicial nominees this year, making this session
of Congress one of the most productive over the last 30 years.
In total, more than 70 percent of President Obama's judicial
nominees have been confirmed through this process, so that is
real progress.
Mr. Chairman, today we have two nominees to be district
judges in Texas: Mr. Gregg Costa, the Southern District of
Texas, presently an Assistant U.S. Attorney in Houston; and
Judge David Guaderrama, presently serving as U.S. magistrate
judge, the Western District of Texas.
Judge Nguyen, nominated to be United States Circuit Judge
of the Ninth Circuit, was confirmed by the Senate less than 2
years ago as district judge for the Central District of
California. She was nominated for elevation just 41 days ago.
Although she has trial court experience, I am less familiar
with her appellate experience, so I will be asking questions
about some of her decisions there.
I also hope to hear from each of the nominees regarding
their basic judicial philosophy.
I am going to put the rest of my statement in the record
which has the full biography of the nominees, and I welcome
them once again.
Thank you, Mr. Chairman.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Blumenthal. Thank you, Senator Grassley.
Today, as we have mentioned, we have three nominees. We are
going to consider them in two panels. The first will be Judge
Nguyen, who, as you have heard, is currently on the United
States District Court for the Central District of California.
She has been nominated to be United States Circuit Judge for
the Ninth Circuit.
On the second panel, we will consider the nominations of
Gregg Costa to the United States District Court for the
Southern District of Texas, and he has worked as a Supreme
Court law clerk, a fellow in the Office of the Solicitor
General at the Justice Department, and he is currently an
Assistant United States Attorney in the Southern District of
Texas.
And we will also consider on that panel the nomination of
David Guaderrama to the United States District Court for the
Western District of Texas. He has served as a magistrate judge
in that district since 2009, and he previously served four
terms as a Texas trial judge.
Judge Nguyen, if you could please come forward, I am going
to ask you to raise your right hand. Do you affirm that the
testimony you are about to give before the Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Judge Nguyen. I do.
Senator Blumenthal. Welcome, Judge Nguyen, and if you would
like to make some opening remarks and introduce your family,
please feel free to do so.
STATEMENT OF HON. JACQUELINE H. NGUYEN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT
Judge Nguyen. Thank you. Good morning, Mr. Chairman,
Senator Grassley, and Senator Franken. It is nice to see you
again. I have no formal opening statement, but I would like to
take this opportunity to express my appreciation to all of the
members of the Judiciary Committee for considering my
nomination to the U.S. Court of Appeals for the Ninth Circuit.
I want to thank in particular you, Senator Blumenthal, for
chairing today's hearing and Ranking Member Senator Grassley as
well and Senator Leahy for scheduling today's hearing. I would
like to thank also President Obama for my nomination.
I am joined today by my family, friends, and other
supporters, and first, if it is all right with you, Mr.
Chairman, I will ask them to stand as I do the introductions.
Senator Blumenthal. Please go ahead.
Judge Nguyen. First, my husband, Pio Kim, and my two
children, 9-year-old Avery and 12-year-old Nolan; my brother,
Charlie Nguyen; and I am especially proud to introduce to you
today my parents, Binh and Hoa Nguyen.
I am especially happy to have my parents both be here with
me today. My father was 41 years old when he was forced to
leave everything behind and begin a new life here in the United
States, and without all of the sacrifices that they both have
done, I would not be sitting here before you today. So it is
very meaningful for me that they are present. It is a very
proud day for them.
Also, finally, I would like to acknowledge the presence of
my three very talented law clerks who have all chosen to fly
here from Los Angeles to support me, and that is Christine
Golno, Ellen Landsben, and Steven Feldman, as well as numerous
other colleagues and friends and family who are watching the
webcast at home.
Thank you very much.
[The biographical information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Blumenthal. Thank you, Judge Nguyen, and a special
welcome to your family and friends and most especially to your
parents who are here today.
I have just a few questions for you. First, we have heard
and I have read about your very powerful story, about your
background and your achievements and your family's
achievements, and I wonder if you could talk briefly about how
those experiences would inform or shape your views of your role
as a judge on the Ninth Circuit.
Judge Nguyen. When I was appointed to the State court, mine
was a historic appointment because I was the only Vietnamese
American appointed to the Los Angeles County, and when you have
a position like that, it carries with it tremendous privileges
and responsibilities. So I do take my role as a role model for
the community very seriously. But I do not believe that the
background of judges changes the law. Regardless of gender or
ethnicity, the law remains the same, and my task as a judge is
to strictly adhere to the law and apply them to the facts of
each case that comes before me. That is what I have done both
at the State court level and have done for the past 2 years on
the district court, and I will continue to do that as a Ninth
Circuit judge if I am fortunate enough to be confirmed.
Senator Blumenthal. Given the feelings that anyone has
about litigants who come before him or her as a judge, do you
find that difficult to do, that is, to apply the law
dispassionately to cases that may have an impact on you
emotionally?
Judge Nguyen. I have always been able to set aside my
personal feelings and beliefs and emotions and adhere to the
law in every case. I attempt to do that. I think my background
occasionally gives me an understanding as to the burdens and
challenges that litigants may face as well as victims and
witnesses who may appear before me, and I think that is
appropriate to do that. But at the end of the day, it is really
the law that controls the disposition of every single case.
Senator Blumenthal. How do you view the role of a judge who
sometimes encounters counsel who may be inferior or less than
competent or not fully adequate to the case before you?
Judge Nguyen. Well, certainly in my 9 years on the bench, I
have had numerous situations where one side is better resourced
or better represented than the other side, and I do not believe
a judge's role is to assist one side or the other. I cannot in
my capacity as a judge equalize resources, if you will. I
attempt to be very clear to the parties early on as to what the
court's expectations are in order to make sure that counsel for
both sides are prepared, and so if I see an issue with an
attorney, then I may schedule extra status conferences and
really be very clear about communicating the court's
expectation. I have written standing orders, and I also go
through them if I believe it is necessary in court during
status conferences to make sure that by the time we get to a
dispositive motion or a trial that both sides are prepared.
Senator Blumenthal. What has been for you the hardest part
or the toughest aspect of being a judge?
Judge Nguyen. I think that in my 9 years on the bench there
are certainly cases that are more challenging than other,
particularly, for example, since taking the district court
bench, the Central District of California has a high percentage
of intellectual property cases in the area of patent
litigation. I do not have an extensive background in that, so
it is a challenge to get past the learning curve. But I find
that very interesting, and that is part of the reason that I
was very attracted and drawn to the district court.
I think sentencings are particularly difficult because it
involves somebody's liberty interest, so I am always very
careful to thoroughly review all of the relevant information
before a sentencing hearing.
Senator Blumenthal. Thank you very much.
Senator Grassley.
Senator Grassley. Thank you very much. Welcome once again.
Judge Nguyen. Thank you, Senator.
Senator Grassley. I am going to refer to a couple cases,
and then I have one question about Sentencing Guidelines.
In a case, I believe you pronounce it, Guengerich v. Baron,
a pro-life group brought suit against Los Angeles City College
alleging, among other things, that their First Amendment right
to free speech, free exercise of religion, and to assemble
peaceably were violated. You held on summary judgment for the
college on grounds that the college campus was not a public
forum, the ban on outside speech was viewpoint neutral, and the
restriction supported the valid purpose of preserving the
campus for its intended purpose. I have two or three questions
on this case.
Why was this case disposed of on summary judgment rather
than letting it go forward on the merits?
Judge Nguyen. The moving party in that particular case
filed a motion for summary judgment, and so when a motion is
before me, I look at the standard on summary judgment, and if
there are no triable issues of material fact in my view, given
the case law at the time, then that is an instance when a
motion for summary judgment would be granted.
Senator Grassley. Has this case been appealed?
Judge Nguyen. You know, Senator Grassley, I am not certain
as to what the status of the case is. I do believe that the
case is possibly pending before the Ninth Circuit so I want to
be careful not to comment beyond what is reflected in the
ruling. And it was a written decision where I attempted to very
clearly lay out the court's rationale for review by the
appellate court.
Senator Grassley. OK. I have a case that you decided after
you had appeared before us as a district court nominee but
before you were confirmed by the Senate, so you might wonder
why it is coming up now and did not come up then, but we were
not aware of it at that time. While you were serving as a
Superior Court Judge in 2009, a California appeals court held
that you abused your discretion when you departed from the
State's three-strikes law. In that case, People v. Dorsey, the
defendant was arrested after being observed casing a liquor
store. When he was arrested, the police discovered a number of
robbery-related items in his car, including a ski mask, rubber
gloves, handcuffs, and a loaded handgun. The defendant was a
parolee who had been convicted of multiple armed robbery
offenses in the past. Because it was his third conviction, the
defendant would have been subject to a 26-years-to-life prison
term. You determined that the conduct was outside the spirit of
the three-strikes law and that the 20-years-to-life sentence
``does not match the crime'' and ``the defendant had been crime
free for 2 years.'' Therefore, you struck all but the
defendant's prior convictions.
Question: Why didn't you apply the three-strikes law and
sentence the defendant to a prison term called for by the
statute?
Judge Nguyen. In that particular case, Senator Grassley,
the court has the discretion to impose either a two-strikes
sentence or three-strikes sentence under California's three-
strikes law. There are certain factors that you look to in
determining whether it is appropriate to exercise your
discretion to strike the strikes in order for the defendant to
be eligible for a second-strike sentencing. I had a number of
discussions with lawyers from both sides and determined that it
was appropriate for me to exercise that discretion. The
California court of appeal held that under the particular
factual circumstances of that case that it was an abuse of
discretion. In my 9 years as a trial judge, that is the only
reversal that I suffered, but in retrospect and in reviewing
the California court of appeal decision, I do concur that it
was error for me to do that.
Senator Grassley. OK. So then my next question dealt with
the court of appeals, and you just stated that you did know
their decision. Do you recall the basis of their decision?
Judge Nguyen. The basis of their decision is that it was an
abuse of discretion under the factual circumstances of the
case. There are many cases filed under the three-strikes law,
and during the plea bargaining negotiation process, either the
prosecution makes the call as to whether the defendant should
be sentenced to a three-strike or a two-strike sentence, and
the motion gets filed. It is called a Romero motion. And if the
motion is filed, then the court has the discretion to make that
determination.
Senator Grassley. OK. You just answered my next question,
so let me go on. Many jurisdictions, including the Federal
Government, have enacted three-strike laws as a mechanism to
remove violent criminals from the streets. Do you have any
concern about the constitutionality of three-strike laws?
Judge Nguyen. The three-strikes law has been enforced and
upheld, and as a trial judge, I have imposed many, many
sentences under the three-strikes law, including the 25-to-life
sentence. Those cases come up with a fair degree of frequency
if you sit in a heavy felony calendar, and I frequently applied
that case law. That was the one instance where the court of
appeal determined that it was abuse of discretion to do that.
But I work with that law all the time and have imposed numerous
sentences under that particular sentencing scheme.
Senator Grassley. So I think it is fair for me to conclude,
which was my next question, but it is fair for me to conclude
that you do not have any personal reservations or views that
would prevent you from enforcing three-strike laws.
Judge Nguyen. I do not, Senator. The sentencing schemes are
legislated determinations, and whatever the law is, I am
comfortable applying that law.
Senator Grassley. Senator, I have got three more questions.
Do you care if I go on? And then I will not have to have a
second round.
Senator Blumenthal. That is fine.
Senator Grassley. OK. A second issue in People v. Dorsey
was the State's challenge that you engaged in improper plea
negotiations with the defendant to discuss the possibility of
dismissing the defendant's prior convictions if the prosecutor
added an additional charge and the defendant pleaded guilty.
The prosecutor did not add the charge, but over the objections
of the prosecution, you dismissed all but one of the
defendant's prior convictions anyway. The appellate court did
not rule on this issue because it reversed you on other
grounds. Nonetheless, the court said that it was ``troubled''
by the extent of the trial court's involvement in the plea
bargaining process. This concerns me. The record seems to
suggest that you were trying your best to find a way not to
apply the statute, and at the end of the day you did not apply
the statute.
Is that accurate? Were you trying to find a way around the
three-strikes law? Do you think it was appropriate to engage in
the plea negotiation process as you did?
Judge Nguyen. No, Senator Grassley, it was not accurate. I
was not trying to find my way around the application of that
particular statute. If I may put it in context, unlike Federal
court with the prohibition of Rule 11, in State court it is
very common for judges to sit in chambers with the parties in
order to discuss disposition of cases. And my practice was to
do so if the parties requested such a chambers meeting. And
part of the reason for that is because the volume of the cases
in State court is so incredibly heavy that that is the most
efficient way to resolve matters is to have that informal
discussion.
I did so at the request of the parties in this case and
held an in-chambers conference with them, and during those
discussions, the parties each expressed their view as to what
the appropriate sentence in this case may be. And when I take
the bench again, I perhaps inarticulately attempted to reflect
those discussions in chambers. Now, I do not discuss one case
at a time because of the crushing caseload. I sit in chambers,
and we may talk about five, six, seven cases at a time at the
request of the parties. So when I take the bench, and there is
all these people waiting, then I attempt to in a very brief and
succinct way reflect what it was that we talked about.
One of the things discussed in chambers in the Dorsey case
was whether there could be an amendment to the indictment such
that the second-strike sentence would be enhanced, so something
in between the second- and the third-strike sentence, and there
were no charges that would be fairly reflective of the facts,
and that is what I was attempting to do on the record.
Senator Grassley. OK. Under the Supreme Court's decision,
U.S. v. Booker, the Federal Sentencing Guidelines are now
advisory rather than mandatory. In light of Booker, what do you
see as the role of the guidelines in making sentencing
determinations?
Judge Nguyen. As a former Federal prosecutor at a time when
the Sentencing Guidelines were mandatory--this is the pre-
Booker era--I am very comfortable with the guidelines. I do
believe in the value of uniformity in sentencing. I do not
think that defendants should be sentenced differently just
because they happen to walk down the hallway and be in front of
a different judge. In my 2 years as a district court judge, I
start with the Sentencing Guidelines, and in the vast majority
of cases, I end with the Sentencing Guidelines.
Now that Booker is in effect, obviously judges are directed
to also look to factors that are set out by statute, 18 United
States Code Section 3553, and if appropriate under the
guidelines as well as looking at these factors, then judges may
vary from the guidelines. But that is the exception and not the
rule.
Senator Grassley. OK. My last question deals with basic
judicial philosophy, and I am going to refer to Justice
Scalia's speech that he gave 5 or 6 years ago: ``I think it is
up to the judge to say what the Constitution provided, even if
what it provided is not the best answer, even if you think it
should be amended. If that is what it says, that is what it
says.''
So two questions. Do you agree with Justice Scalia? Second,
do you believe a judge should consider his or her own values or
policy preferences in determining what the law means? And if
so, in the latter case, under what circumstances?
Judge Nguyen. If I could answer your second question first,
the answer is no, I do not believe that a judge should consider
her own personal policy preferences in determining what the law
is. My role, if confirmed to the Ninth Circuit, would be to
apply the precedent that is within my circuit and precedent
that is set forth by the Supreme Court.
As for Justice Scalia's comment, I am not familiar with
that speech, and so I am not sure of the context in which that
comment was made. But the Constitution provides certain core
principles, and judges are called upon to interpret and apply
those principles. Judges do not determine what the Constitution
says. Those principles are enduring.
Senator Grassley. OK. Thank you.
Thank you, Mr. Chairman. And thank you, Senator Franken.
Senator Blumenthal. Thank you, Senator Grassley, and thank
you, Senator Franken. Please proceed.
Senator Franken. Thank you, Mr. Chairman and Mr. Ranking
Member.
Judge Nguyen--and that is how you pronounce it, ``win'' ?
Judge Nguyen. Yes.
Senator Franken. Is that always how you pronounced the
spelling of your last name or are there different
pronunciations?
Judge Nguyen. I have heard various pronunciations over the
years, but ``win'' is the most phonetically correct spelling,
and so that is what I have stayed with.
Senator Franken. OK. It is your name, so you are Judge
Nguyen. And congratulations, by the way, for your nomination.
Judge Nguyen. Thank you, Senator.
Senator Franken. You know, I was here for your nomination
to the district court, and----
Judge Nguyen. You chaired that hearing.
Senator Franken. I chaired it? Of course I did. I remember.
[Laughter.]
Senator Blumenthal. He would have chaired this one if we
let him.
Senator Franken. I think that might have been the one where
at the time the Ranking Member was Senator Sessions and he saw
me chairing at that time, and he said, ``A meteoric rise.''
Judge Nguyen. He was very complimentary, if I recall
correctly.
Senator Franken. Well, I said, ``And well deserved.''
[Laughter.]
Senator Franken. ``Right back at you.''
Speaking of Senator Sessions, Senator Sessions would always
ask judges or nominees who had talked about the need for
diversity in court about what that meant. I was struck with
Senator Cornyn talking about David Guaderrama, and he talked
about his experience pumping gas. And he said that his breadth
of personal experience will help him in that--I think he said
``regard.'' I wrote ``garage,'' but I know it could not be
that. So I think it was ``regard.'' You know, sometimes I am
writing, and I do not--and it reminds me of something you said,
and I think we talked about it the last time you were here. In
a speech you gave before the Vietnamese American Bar
Association, you said that a lack of diversity on the bench
contributes to mistrust of the justice system in many minority
communities. I agree with that. And so I guess it just--and
then I think that whenever that was in a nominee's history of
saying something about the importance of diversity, then-
Ranking Member Sessions would always ask, ``Well, doesn't that
mean that''--you know, ``Isn't every person who comes before a
judge entitled to complete objectivity? '' And the answer is
always yes, of course. But I just want to maybe get in a little
discussion with you about that because--I mean, Senator Cornyn
is basically saying that the experience of pumping gas is
important. One, you speak to the mistrust of the justice system
if it is all--if the court does not reflect the community as a
whole. Isn't that because, two, the quality of justice is
different if all the judges have the same kinds of experiences?
Judge Nguyen. Well, what I meant by that speech is that
diversity obviously is very important. The judiciary is a
public institution, and judges are public servants. And so if
the judiciary does not better reflect the communities in which
we serve, the credibility of the judiciary is hurt, and that is
an issue that is important to all public institutions. And so
that is what I meant by the value of diversifying not just the
judiciary but other public institutions as well.
But as I indicated to Senator Sessions, who was then the
Ranking Member the last time I was before this Committee, the
law does not change merely by virtue of a judge's gender or
ethnicity, background or experiences. Those principles of law
remain the same.
Senator Franken. Sure.
Judge Nguyen. And a judge's role is to interpret that law
and then apply it to the facts of each case that may come
before the court.
Senator Franken. And I think that is important, and that is
the answer that Senator Sessions and all of us are looking for.
But I think it is just unrealistic to think that a judge's
personal experience does not in some way--I think Oliver
Wendell Holmes said that experience is the law, or something to
that extent. And that is going to inform his or her judgment. I
mean, it is ``judgment.'' ``Judge'' must be the root word of
``judgment.'' Am I correct on that?
Judge Nguyen. Well, I cannot really speak to other judges'
backgrounds or experiences. My background and experience I
think has helped my judicial temperament. It gives me an
appropriate sense of humility when I review the facts of each
case. I have an understanding and appreciation of how
intimidating the court system can be, and so I think it does
inform my temperament and my sense that judicial restraint is
the appropriate way to handle each and every case.
So I cannot divorce myself from my background. I think it
does inform my conduct on the bench in that way. But, again,
Senator Franken, I do not think it changes the law.
Senator Franken. No, and I do not think anyone who suggests
that a judge's experience is important is at the same time
saying that that changes the law. But I think that it would be
defying common sense to think that a judge's life experience
does not inform how he or she judges. And I think that is a
good thing to--that is why it is a good thing to have diversity
on the bench because, otherwise, you know--I am sorry. Anyway,
I think you know what I am saying, and I congratulate you on
your nomination.
Judge Nguyen. Thank you, Senator.
Senator Franken. Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Franken.
Thank you very much, Judge Nguyen. We appreciate your being
here, and good luck to you, and thank you for your service to
our Nation.
Judge Nguyen. Thank you, Mr. Chairman.
Senator Blumenthal. I would like to call the second panel:
Mr. Costa and Judge Guaderrama. If you could stand. Do you
affirm that the testimony you are about to give to the
Committee is the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. Costa. I do.
Judge Guaderrama. I do.
Senator Blumenthal. Thank you. We welcome you to the
Committee and will give you a chance to make an introductory
statement and introduce your family. I would like to say we
appreciate having your families here, and, Mr. Costa, if you
would like to begin.
STATEMENT OF GREGG JEFFREY COSTA, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF TEXAS
Mr. Costa. Thank you, Senator Blumenthal, Ranking Member
Grassley, Senator Franken, and the entire Committee for the
opportunity to be here today and answer your questions.
I want to, of course, thank President Obama for the great
honor of this nomination. I want to thank Senators Hutchison
and Cornyn for their generous remarks today and for
recommending me to the President and to their judicial
evaluation Committee which has supported me in this process.
I also want to thank the Texas Democratic House delegation
who first recommended me to the President, and in particular,
to Representative Al Green from Houston and his judicial
evaluation Committee who first contacted me about this
position.
I am fortunate today to be joined by a few members of my
family and friends who are really the people who are the reason
I am here today because of the support and opportunities they
have provided me with over the years. And I would start with my
mother and father, Robert and Susan Costa, who are here from
Texas. My father spent most of his career in public service as
a Federal employee and has set a great example for me to try to
live up to.
My wife, Jennifer, who is the kindest, most decent person I
have ever met, is here today, along with my two sons, Elijah
and Joshua. I am pretty sure they are far more excited about
missing school today than they are about my nomination. But I
do hope that by being here today they will learn something
about how our great Constitution works. Also, my daughter,
Rebecca, is at home, as Senator Hutchison mentioned. I say
hello to her. And my sister, Allison, who lives in this area,
is here as well.
Then I am also fortunate, I have a couple friends from
probably the genesis of my legal career when I was a high
school debater at Richardson High School outside of Dallas. And
then I have two former colleagues who I taught with in the
Mississippi Delta for 2 years before I attended law school. So
I thank them for being here, and I again thank the Committee
for the opportunity today.
[The biographical information follows:]
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Senator Blumenthal. Judge Guaderrama.
STATEMENT OF HON. DAVID CAMPOS GUADERRAMA, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS
Judge Guaderrama. Thank you, Senator Blumenthal, Senator
Grassley, and Senator Franken. I very much appreciate your
inviting me to be here before you. I am truly honored to be in
this room before this Committee. Thanks so much.
A very special thanks to President Obama for the tremendous
honor he does me with his nomination. I would also offer a very
warm thanks to Senator Hutchison and Senator Cornyn for their
very kind and generous words of introduction.
I would also like to recognize my Congressman, Congressman
Reyes, who is here in support. I am very grateful to him as
well.
Senator Hutchison, Senator Cornyn, and Congressman Reyes
and their staffs have been tremendously supportive of my
efforts in this process, and I am very, very grateful to all of
them for that.
I want to introduce to you my wife and sweetheart,
Annalisa. We have been a couple and sweethearts for 12 years
now. Annalisa is the deputy director of the State Probation
Department in El Paso County. She has been extremely supportive
of all the things that I have endeavored during the last 12
years and very supportive throughout this nomination.
I would also recognize numerous family members and friends,
coworkers and colleagues who were unable to be here today, but
they are following the proceedings on the webcast, and I thank
them for a lifetime of support and for all the prayers they
have offered during the nomination process.
Finally, Senators, I would like to dedicate my purpose here
today to my parents, who were cotton farmers south of Deming,
New Mexico. They had but an eighth-grade education, and they
dedicated their lives to raising and educating their children.
Today would have been a day of tremendous pride for the two of
them.
Thank you for the opportunity to address you. I have no
opening statement, and I look forward to answering your
questions.
[The biographical information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Blumenthal. Thank you both, and I would just like
to begin my questioning by observing that both of you have very
distinguished careers of public service, even before your
nomination--Mr. Costa as an Assistant United States Attorney,
as a volunteer in Teach for America, also as a public servant
in numerous bar association groups, and your pro bono
activities, among other community activities; and Judge
Guaderrama as chief public defender and as a judge magistrate.
Both of you have served your community and State and country,
and certainly I want to thank you, and I know the Committee
appreciates all that you have done.
Let me begin by asking you, Mr. Costa, I know that your
recent career has involved a good deal of prosecution in the
white-collar public corruption area. Do you think that the laws
of the United States need to be strengthened or toughened to
really encourage or empower stronger prosecutions in those
areas?
Mr. Costa. Thank you, Senator, for the question. I think
there are on the books a number of statutes that are available
to Federal prosecutors, and I know in some recent Supreme Court
decisions, the Skilling decision has cut back on one of those
statutes, the honest services statute. I know there are
proposals in Congress to make amendments in response to that
decision. But I do think that the arsenal Federal prosecutors
still have is broad, and it takes hard work and sometimes
creativity to find the right statute that applies to criminal
misconduct. But Congress obviously should continue to look at
ways to meet new challenges that you often have out there
because of technology and other things that are expanding even
the global reach of some of these criminal networks.
Senator Blumenthal. And I know you are involved in the
Stanford case as the lead co-counsel and have written about the
honest services fraud statute in the Skilling case. I wonder if
you have any comments on that issue in particular which you
have just mentioned without talking about any particular case.
Mr. Costa. Right, and I do not want to recommend any
particular legislation. I do think in the writings I have
looked at, there has been a reduction in honest services
prosecutions in the 15 months or so since Skilling was decided.
And in cases I looked at, part of that is prosecutors are just
using alternative statutes, but then there may be some
instances in which prosecutions are not available at the
Federal level in light of that decision.
Senator Blumenthal. And would your experience as a
prosecutor--I recognize you have also served as a pro bono
defense attorney at the behest of the NAACP Legal Defense Fund,
so you have experience on both sides. But how do you think
those experiences would inform your service as a United States
district court judge?
Mr. Costa. I think obviously the criminal cases, in
particular sentencing, is probably the most awesome
responsibility a Federal judge has, and so I think the
experience I have had prosecuting criminal cases will be
helpful in that regard, but also, as you mentioned, before I
had ever prosecuted anyone, I represented a defendant pro bono,
along with some others, a defendant from--there was an infamous
drug sting in a town called Tulia in the Texas Panhandle. We
represented him pro bono in a habeas post-conviction matter. He
was wrongfully convicted, and fortunately both our defendant,
Mr. Towery, and all the other defendants who were convicted in
that sting were pardoned by Governor Perry.
So I think that one experience I have on the defense side
is a great illustration of the imperfections that do exist in
the criminal justice system, but I would certainly look forward
to the criminal cases on my docket as well as the civil cases.
Senator Blumenthal. Judge Guaderrama, how would your
experience as a public defender, do you think, shape your views
of your role as a United States district court judge?
Judge Guaderrama. Thank you, Senator, for that question. My
role as a public defender I suppose would have some influence
upon me if I were fortunate enough to be appointed to the
bench. More influential would be my service as a State district
court judge because there I served for 16 years and tried
numerous cases of all different kinds. And so I feel like the
influence of my service on the district court bench would
influence my service on the Federal district court bench, if I
were appointed to that, more so than my service as a public
defender.
I had a great time serving as a public defender. I enjoyed
that work, but it has been over 16 years since I represented a
criminal defendant.
Senator Blumenthal. And you have served as a magistrate
judge, which in many respects is a similar role to the U.S.
district court judge, isn't it?
Judge Guaderrama. Yes, sir. We play a minor role. We are a
servant to the district court judge, and we see all the
criminal cases that come into the district court come through
the doors of magistrate court.
Senator Blumenthal. And I do not know how it works in your
district, but I know in Connecticut magistrate judges write
opinions, they take pleas, they hear motions, pretty much--
well, a great deal of the duties that a district court judge
does.
Judge Guaderrama. Yes, Senator, that is correct. Every
jurisdiction uses their magistrates differently. In our
jurisdiction, because of the large number of criminal cases, we
are used primarily for criminal matters, so we do the initial
appearances, bail and detention hearings, preliminary hearings,
those matters. We do take felony pleas for the district courts,
and we write reports and recommendations for them on those
matters as well.
Senator Blumenthal. Thank you.
Senator Grassley.
Senator Grassley. Mr. Costa, tell me what you learned from
being a clerk for two distinguished judges, Chief Justice
Rehnquist and Judge Randolph.
Mr. Costa. Well, those were two of my first jobs in the
law, two great mentors. Judge Randolph ran an incredibly
efficient chambers, was a fantastic writer, and a brilliant
judge. The experience with the Supreme Court was really the
experience of a lifetime, and with respect to the Chief
Justice, Chief Justice Rehnquist was probably the most
efficient lawyer I have ever seen. He also had a wonderful
sense of humor, and while he had serious disagreements with his
colleagues, he never let those become personal disagreements
and always interacted with his colleagues in a professional,
civil manner and always with that great sense of humor.
Chief Justice Rehnquist also knew every single employee in
that Supreme Court building. He did not just know their names.
He knew about their families. He knew who their favorite
football team was, and that was whether it was one of the other
Justices or one of the cafeteria workers. I think that is also
just a great lesson for all lawyers and all people to treat
everyone with respect and understand the important role
everyone plays in a courtroom or out in society.
Senator Grassley. Do you think all those experiences have
stayed with you and will help you be a good district judge?
Mr. Costa. Absolutely. I hope so.
Senator Grassley. I want to ask you something about Justice
Rehnquist. He was often considered a conservative judge who
relied heavily on the text of the Constitution and statutes to
determine their meaning. And then we have Harvard law professor
Larry Tribe taking this view: ``All fundamental constitutional
principles require an elaborate process of inference and
construction far beyond anything that is simply deductible or
even readily inferable from the fixed text.''
So to what extent would you agree with Professor Tribe?
Mr. Costa. I am not too familiar with all those remarks in
their context. You mentioned Chief Justice Rehnquist's approach
to constitutional analysis. He would give the text considerable
deference and focus, but he would not exclusively look at that.
He would consider certainly precedent, certainly the history of
that constitutional provision, and the structure of the
Constitution, how that provision might interact with other
provisions.
So judges do have those different tools that Chief Justice
Rehnquist and other Justices use to interpret constitutional
provisions, and if I were fortunate enough to be confirmed, I
would use those tools to try to come up with the most
consistent ruling consistent with the intent of that provision.
Senator Grassley. You sound closer to Justice Rehnquist
then than what I quoted from Larry Tribe. Is that a fair
conclusion?
Mr. Costa. I do not know where I would be on that spectrum.
Again, I am not too familiar. But I obviously would use the
commonly accepted tools of interpretation when faced with those
types of issues.
Senator Grassley. You told me a lot about Justice Rehnquist
and his personal life and interrelations with other people.
What influence did he have in the development of your views of
constitutional and statutory interpretation?
Mr. Costa. I think certainly seeing how the Court worked, I
would say not just Chief Justice Rehnquist, but you get to
interact as a clerk with other Justices. I learned a great deal
from all of them, and certainly the seriousness which they all
approached their job with. Bringing an open mind to cases and
not having preconceived notions is something that I think the
Justices all try to do, and it is certainly how I would hope to
approach those issues if fortunate enough to be confirmed.
Senator Grassley. Well, if confirmed--and you probably will
be--what will you look to when interpreting provisions of the
Constitution or Federal statutes?
Mr. Costa. I think you start with the text. You also want
to look at, again, the Constitution, the history behind that
amendment or provision. You want to look at, concerning
constitutional cases, the structure. In statutory cases you
want to look, again, first at the text and the plain language.
There are also well-accepted canons of statutory interpretation
that should be applied if there is ambiguous language. And
then, of course, you want to look--especially as a district
court judge, you are bound by precedent from both the Supreme
Court and the circuit court of appeals, and you would want to
look at that precedent as well as perhaps authority from other
courts that might not be binding precedent. They might be from
other circuits or other district courts, but you would
certainly look at that as persuasive authority.
Senator Grassley. Judge, let me ask you a few questions.
Prior to becoming a judge, you were primarily a defense counsel
in your private practice as well as public defender. What was
most difficult for you in transitioning from your role as an
advocate to that of a neutral arbiter? Do you believe that you
have successfully made that transition?
Judge Guaderrama. Yes, thank you, Senator. I do believe I
have successfully made that transition, and I am not so sure
that it was a hard thing to do, but I had to step out of my
role as an advocate and step into the role of being a fair and
neutral and detached magistrate or determiner of the law. So
that was the most difficult thing, just to be able to give an
opportunity to be heard to both sides and to consider both
sides before reaching any kind of a decision. I did not find
that particularly difficult. I thought it was actually fairly
easy.
Senator Grassley. OK. As chief public defender there in El
Paso, you defended your office in one particular case where
there were accusations that your office violated its duty of
candor to the court. The Texas Committee on Professional Ethics
agreed with you that there was no violation of duty. Having now
been a judge, would you share with the Committee your
perspective on the view you took as chief public defender?
Judge Guaderrama. Yes, sir, Senator. Thank you. In that
particular case it involved a sentencing hearing in which the
prosecution had a rap sheet of our client's criminal history,
and that rap sheet did not include a prior conviction that our
client had. So at the sentencing, I believe--I am going from
memory here, and I am hoping this is correct. But I believe the
court asked the prosecution whether or not he had a criminal
history. The prosecutor, looking at the rap sheet, said, ``No,
he has no convictions.'' He turns to the lawyer from our office
and says, ``Right? '' And our lawyer knew full well that he did
have a prior conviction, and so he stood mute. He did not say
anything. He just stood mute because he as a lawyer cannot give
up his client's secrets and tell the prosecutor, ``Yes, he does
have these convictions.'' So in order to live by his oath as an
attorney to hold his client's confidences, he stood mute, which
is what he is required to do. He did not in any affirmative way
assist in the misinformation that was being given to the court.
Once the case was over, the judge had heard about the
client had a prior conviction, contacted me, and was concerned
about that. So then we contacted the Ethics Commission, asking
them for some guidance, because we knew this situation would
repeat itself. And we understood that the client's Fifth
Amendment privilege, his right to counsel, and some Texas Code
of Criminal Procedure sections would be violated if we were to
give up the information that the Canons of Ethics required. And
so we sought the advice of the Ethics Commission, and they
decided that our position was correct, to stand mute and not
encourage the misinformation.
Senator Grassley. You sat by designation of the Texas Court
of Appeals in State v. Alderete, I believe is the name of it.
Judge Guaderrama. Yes, sir.
Senator Grassley. At issue in that case was whether
officers had reasonable suspicion to make an investigatory stop
of a suspected drunk driver. While the majority found
reasonable suspicion, you dissented. The majority criticized
your analysis for engaging in ``a divide and conquer approach,
arguing assumptions that were not presented to the trial court,
which the United States Supreme Court and Court of Criminal
Appeals have condemned.''
Would you mind addressing the majority's criticism of your
analysis?
Judge Guaderrama. Yes, Senator, thank you. That was the
word that was used in the opinion. I certainly recognize that
that is the majority opinion. I do not have any conflicting
things to say about that.
My opinion was different. I do not believe that I engaged
in a divide and conquer type of analysis; rather, I thought I
was applying the Gates totality of circumstances test exactly
the way the Supreme Court had set it out, which is you consider
the entire circumstances, all the circumstances, not just one
particular fact. And so the point of my dissent was considering
the entirety of the circumstances, then there is not sufficient
reasonable suspicion for the stop at the point they made the
stop.
Senator Grassley. I have one more question, and then I
might submit a couple for answer in writing.
In 2000, you presided over a drunk driving case of David
Renteria. This case was the third instance Mr. Renteria was
caught driving under the influence while on probation for the
previous crime, the fondling of a 6-year-old girl. Despite
recommendations from the county's Adult Probation Department
that Mr. Renteria be sent to prison to serve his 10-year
sentence, you went along with the prosecutor's request for
continued probation. Approximately 1 year later, Mr. Renteria
was charged with the murder of a 5-year-old girl. Learning
about that arrest, you stated, ``Obviously our whole community
feels terrible about the death of the 5-year-old girl, and
those of us who were close to this case are losing sleep over
it, wondering where did we go wrong and what would we do
differently next time.''
Could you explain your rationale behind letting the three-
time parole violator continue his probation? Second, during
this period of reflection, what, if anything, did you determine
you did wrong? And, three, what did you change to ensure that a
similar circumstance would not occur in a later case?
Judge Guaderrama. Yes, sir, thank you, Senator. First, I
would like to say that to this day I am very regretful for what
happened to Alexandra Flores as a result of that case. In that
case, the probation that I extended to that defendant was
recommended by the prosecution. This was a prosecutor's plea
bargain with the defendant, and it was not a plea bargain that
was outside the norm of those bargains that are given to
defendants who are similarly situated. And so there was not
anything unusual about that case that would somehow foretell to
us that this drunk driver was going to be a future killer.
And looking back, I have had numerous cases that were
similar in nature and similar circumstances where nothing bad
happened. In this one case, a disaster happened.
I am not sure, looking back, that there is anything that we
would change in that the plea bargaining process is something
that is important to the criminal justice system. It is
something that is freely engaged in by the prosecution and the
defense. And I certainly regret what happened; however, I
probably did the same thing in numerous other cases where we
did not have these poor results.
Senator Grassley. Thank you, Judge.
Judge Guaderrama. Thank you, sir.
Senator Grassley. Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Grassley.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Mr. Costa, as you might know, I am a copyright holder, and
I care a tremendous amount about preventing and prosecuting
intellectual property theft. You successfully prosecuted a case
where two brothers in Texas were selling counterfeit Cisco
products manufactured in China. As I understand it, you won an
award for your work in that case, and I first just want to say
thank you for that. We need more prosecutors like you who are
aggressively pursuing intellectual property theft.
From where I sit, it seems that China has an entire segment
of its economy dedicated to IP theft, and I fear we will never
be able to halt this problem with prosecutions alone. Do you
think that that is a fair statement? And do you have any ideas
of what we could do to put more pressure on China to address
its piracy problems?
Mr. Costa. You are correct, Senator. It is a large problem
that threatens Americans who own this intellectual property, a
large number of American workers. The case you mentioned, it
was a Cisco product. Cisco employs thousands of Americans in
California. There are a number of tools to combat it, in the
extreme cases criminal prosecution, and I think the customs
officials have stepped up that enforcement. There is a new
Federal task force the last couple of years. My prosecution was
part of that.
I also had another prosecution where an individual in
Houston was importing counterfeit Cisco parts again, and he was
planning to fulfill a contract for the Marines in Iraq. And,
fortunately, he was caught before he transmitted those to the
Marines because in that situation it could have caused security
harm for the Marines who were relying on that computer network
and thinking they were getting genuine safe parts.
In addition to the criminal remedies, there are civil
actions, obviously, that can be taken. It is difficult in China
because--obviously, the reach of the law does not extend that
far. In both of the cases I prosecuted, we had some information
about the Chinese manufacturers and suppliers. Obviously, we
would like to bring them to justice, but China does not
extradite--it does not have an extradition treaty with the
United States.
So I think some of those challenges of actually reaching
the manufacturers in China would really have to be dealt with
at the diplomatic level and through maybe 1 day having
extradition rights with China.
Senator Franken. Thank you.
Judge, I am interested in learning about alternatives to a
traditional adversarial criminal justice system, and I am a
proud cosponsor of Senator Webb's National Criminal Justice
Commission Act, which I hope we take up again because it
narrowly--it was filibustered. And that would provide us with a
comprehensive review of the entire justice system.
I understand that you implemented the first drug court in
El Paso. You wrote in the El Paso Bar Journal that drug courts
``are successful in many cases.'' Can you elaborate on your
experience in that and on your experience with drug courts?
Judge Guaderrama. Yes, sir, thank you, Senator. The drug
court experience in the world of the State district court judge
was very rewarding because in the drug court we are able to see
successes that we did not normally see in the regular business
that we did at the court. Drug courts, of course, are for--
there is a national model, and there are some requirements for
those individuals that come into drug court. One, they cannot
have a violent criminal history. They cannot be drug dealers of
any kind. They need to be drub abusers or addicts. And they
have to have a criminal history of the nature that the district
attorney would not feel uncomfortable in recommending those
individuals for the drug court.
But once we have them in the drug court, as you mentioned,
it is an alternative to the adversarial system. It is a
therapeutic system where basically everyone on the team--and
there is a team of an assistant district attorney and assistant
public defender, a police officer or sheriff's deputy, a
probation officer, and a number of treatment providers that
come together to form a therapeutic unit where we are trying to
address this individual's drug use.
We also try to address their life problems, which
oftentimes dictate their drug use. We found often that many of
the people in our drug courts were dually diagnosed and that
they had mental illness as well as an addiction. And so we had
a number of challenges in the drug court trying to address
these things, but it was a very rewarding challenge.
One of the most rewarding things I did on the district
court bench was to operate that drug court. When you saw
successes, when you saw people turn their life around, when you
saw people start to care about themselves again and their
families that they had alienated before, start drifting back
into their lives and making them whole and productive members
of our society, it was a great thing.
They are time-consuming, they are expensive, but for those
successes that we had, they were worth it.
Senator Franken. You say they were time-consuming and
expensive, but would you say that on balance the use of drug
courts saves society money or is more expensive than not?
Judge Guaderrama. I would think we need more research into
that. My gut feeling is that the money we would save from
incarcerating this individual, which current estimates are
between $30,000 and $50,000 to incarcerate that person for 1
year, if we spend $6,000 or $7,000 up front in treatment, we
might be able to save society that extra cost on the back side.
And so that basically was the premise that we were operating
under, and I just do not have any hard facts----
Senator Franken. How long were you involved in the drug
court?
Judge Guaderrama. Ten years.
Senator Franken. OK. Well, over a 10-year period, you must
have taken some kind of--you must have an opinion on those. I
am not asking you for data. I am asking you for your opinion.
Judge Guaderrama. My opinion is that drug courts work and
do save society money. I do not have any hard facts about that.
It would have been nice to have had the money to do that sort
of study, but the few resources we had, we plowed them into
services for our clients.
Senator Franken. Well, thank you both, and you are both
very impressive, and I thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Franken.
Again, thank you both, and especially your families and
friends for being here today. I want to just close by observing
I was a law clerk to Justice Blackmun on the Supreme Court.
Before that, I was a law clerk to a district court judge, and
the clerkship on the Supreme Court was, as you have observed,
Mr. Costa, life-changing. But the district court I think
changed my perspective equally so and in my view is, without
meaning any disrespect, as important a job as being a Supreme
Court Justice because of the lives that you affect and the
people you touch. So I join in the hope and belief that you
will be confirmed, speaking just personally, and I wish you
well and, again, thank you very much for your service and thank
your families for being here. Thank you so much.
Mr. Costa. Thank you, Senator.
Judge Guaderrama. Thank you, Senator.
Senator Blumenthal. I am going to adjourn this hearing and
leave the record open for 1 week in case there are additional
questions from any of the Senators. Thank you very much.
[Whereupon, at 11:29 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF KATHRYN KENEALLY, NOMINEE TO BE AN ASSISTANT ATTORNEY
GENERAL; AND, BRIAN C. WIMES, NOMINEE TO BE UNITED STATES DISTRICT
JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF MISSOURI
----------
WEDNESDAY, NOVEMBER 16, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:34 p.m., Room
226, Dirksen Senate Office Building, Hon. Herb Kohl, presiding.
Present: Senators Schumer and Grassley.
OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Kohl. Good afternoon. Today we meet regarding two
important nominations before this committee.
Ms. Kathryn Keneally, nominated to be the Assistant
Attorney General in the Tax Division at the Department of
Justice, and Brian Wimes, nominated to be District Court Judge
for the Eastern and Western Districts of Missouri.
We welcome these distinguished nominees and their families
and friends who have come here in support. We also thank
Senator McCaskill, and possibly Senators Schumer and Blunt, who
will be here to introduce them.
We can all agree on the importance of the tax division.
Senator Schumer. It is more possible than you think, Mr.
Chairman.
Senator Kohl. It sure is. Ever present.
[Laughter.]
Senator Kohl. We can all agree on the importance of the tax
division. It carries out a critical mission on behalf of all
taxpayers to fairly and consistently enforce our tax laws. In
doing so, the division collects hundreds of millions of dollars
in restitution and fraudulent refunds every year. It also
promotes voluntary compliance with the law and maintains the
public's confidence and the integrity of our tax system.
The division has been without a confirmed head for more
than 2 years now. And so we look forward, Ms. Keneally, to
hearing from you about the values you will bring to the
division and the priorities that you will set.
Judge Wimes, just as our top Department of Justice
officials are charged with maintaining public confidence and
the enforcement of our laws, judges have a solemn duty to
uphold the public's trust in our justice system.
Day in and day out, our Federal district court judges are
the faces of the justice system for all types of litigants,
from businesses with commercial disputes to victims and
defendants in criminal cases.
Judge Wimes, this will be our only opportunity to hear from
you and learn about what sort of judge you will be, should you
be confirmed for this lifetime appointment to the Federal
bench.
The Senate takes its duty seriously to advise and consent
on executive and judicial nominees and to ensure that each
nominee possesses the qualifications, the integrity, and the
intellect to carry out his or her responsibilities.
This hearing is an important step in that process. We thank
you for being here. We look forward to your testimony.
We turn now to my friend and colleague, Senator Grassley,
for his remarks.
Senator Grassley. You know what I am going to do? I am
going to let our two colleagues go ahead of me, if that is OK
with you, Mr. Chairman, Senator McCaskill, and you have a
nominee you want to introduce. So why do not either one of you
go ahead of me?
Senator Kohl. Terrific. Senator McCaskill? And then Senator
Schumer.
PRESENTATION OF BRIAN WIMES, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE EASTERN AND WESTERN DISTRICTS OF MISSOURI BY HON.
CLAIRE MCCASKILL, A U.S. SENATOR FROM THE STATE OF MISSOURI
Senator McCaskill. Thank you, Mr. Chairman. And thank you,
Senator Grassley. It is a pleasure to be with you today.
I was reviewing the nominee's resume and it brought back
such pleasant memories for me, because what jumped out at me,
looking at his resume, was the fact that in 1995 he received
the Rookie of The Year Prosecutor Award in the Jackson County
prosecutor's office, and I remember deciding that Brian Wimes
should be the Rookie of the Year and why he got that award. And
it was because he stood out immediately as a very young
prosecutor as a leader; as someone who his follow prosecutors
looked to even though he was a brand new attorney in the
office; and, someone who I could rely on and be confident of
his judgment. And, clearly, his character was reflected in the
work that he did.
He went on from being an assistant line prosecutor in the
office, having major felony responsibility, to being a Drug
Abatement Response Team coordinator, which meant that I put him
out in the community, where he worked with communities trying
to identify and use creative strategies to shut down drug
houses and make neighborhoods whole again that had been
decimated by unfortunate, too frequent occurrences of drug
houses in our community.
He then went on to be a community prosecutor, where he
worked with communities doing even more than shutting down drug
houses, looking at all of the concerns a neighborhood had that
related to crime and public safety; a senior prosecuting
attorney; and, then, by judges of the circuit, he was selected
to be a drug court commissioner. And that is important because
he had appeared in front of all these judges as a prosecutor.
And for the judges to select Brian Wimes to be a
commissioner to run the drug court was a very high honor,
because it meant that they saw in him his ability to be fair
and have the right kind of demeanor and attitude on the bench.
From drug court commissioner, he went on to be appointed a
circuit judge in Kansas City, where he has been a trial judge
for a number of years, presiding over a trial docket and having
some 300 different cases that may be going at one time;
obviously, presiding over dozens and dozens and dozens and
dozens of jury trials.
So this will be a Federal judge that knows what it is like
to be in the courtroom and knows what it is like to be on the
bench, letting the lawyers try their cases, being swift and
efficient, but also very fair.
He is here with his wife, Michelle, who is the brains of
the operation. She is also an attorney and has a very
successful law practice in Kansas City. And their three
beautiful daughters--I cannot believe they are this grown up--
Sydney, Gabby & Saige are all here with them today.
This is a great family. This is a good man. He will wear a
lifetime appointment with the kind of humble attitude that we
so desperately need on the Federal bench. This is not someone
who will ever get robeitis. This is not someone who will ever
take his position for granted. This is someone who will treat a
lifetime appointment with the respect that it deserves.
I am so thrilled that he is here today, and I hope the
Committee gives him very quick and favorable consideration.
Thank you Mr. Chairman.
Senator Kohl. Thank you for that great introduction.
Senator Schumer.
Senator Schumer. Thank you. And I want to thank my friend
and colleague from Missouri for her wonderful introduction. I
always learn something. I have never heard of the expression
``Robeitus.'' I guess that is a prosecutor's term. I guess you
take Robitussin to get rid of it.
[Laughter.]
Senator McCaskill. Change of judge.
Senator Schumer. Change of judge, we cannot do that in
Washington at the Federal level. So that is why your comments
are so important. But thank you, and I welcome your nominee
here and his beautiful family, including those beautiful girls
here, as well.
And now it is my honor to introduce a great New Yorker,
Kathryn Keneally. She is a lifelong New Yorker, unless you
count her first 6 months of life when her father was stationed
at the Wright Patterson Air Force Base near Dayton, Ohio. And
her roots are deep.
Her mother--her grandmother was a garment worker. So was
mine. Her grandfather was a taxi driver. So was my father-in-
law. So we are sort of a little similar that way.
Ms. Keneally's mother retired from teaching sixth grade in
Hicksville, Long Island, which is a great school district, and
now has become the minister of the Unity Church of Christianity
in Valley Stream, where we are trying to get the flood zones
changed, I want to let you know, Ms. Keneally, so they do not
have to pay in their houses.
I do not know if it is in your part of Valley Stream where
your church is, but the flood insurance was just tacked onto a
whole lot of people there, and we are working to get it back.
Her father, who has passed away, I am sure he is looking
down from Heaven very proud of his daughter, was an engineer at
Sperry Rand on Long Island. So you were really a vintage Long
Islander to have a mother as a school teacher, a father an
engineer at Sperry Rand, now your mother a minister, that is
great.
Anyway, Ms. Keneally stayed in New York for her higher
education from two of the best institutions in New York and the
country. She graduated from Cornell University and was first in
her class at Fordham Law School, and that is a very competitive
law school. So that is extremely impressive.
Although New York will miss her, though we hope you keep
your legal residence in New York, Ms. Keneally is imminently
qualified to head DOJ's tax division, and I am proud to support
her. She received her LLM in tax law from New York University
School of Law, another outstanding New York institution; has
spent over 25 years representing clients in tax controversies.
She is currently a partner in Fulbright & Jaworski's New
York office. She serves as vice chair of the ABA taxation
section. She has represented clients in every area of tax law
from making presentations to the IRS on tax treatment issues to
try in criminal tax enforcement matters.
Now, maybe more than ever as we face these difficult
economic times, it is really important to have someone in this
position who is fully dedicated to making sure that our tax
laws are enforced firmly and evenly and who has the expertise
to make it happen.
I look forward to Ms. Keneally's leadership in this
important area, when she is confirmed, as I am sure she will
be.
Thank you, Mr. Chairman, Mr. Ranking Member, for the
opportunity to introduce her today.
Senator Kohl. Thank you. Thank you very much for that great
introduction.
Senator Grassley? I am sorry. Senator Schumer, now we turn
to Senator Grassley.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Well, of course, like everybody else, I
welcome the nominees before us today, and I particularly
enjoyed a conversation with Ms. Keneally yesterday in my
office. She is nominated to be an assistant attorney general.
I am pleased that Chairman Leahy and I were able to reach
an agreement on the timing and format for her hearing today. I
express my appreciation to Chairman Leahy for the way that we
are proceeding on the nomination.
If confirmed, Ms. Keneally will head the tax division. The
mission of that division is to enforce the Nation's tax laws
fully, fairly, consistently, through both criminal and civil
litigation. It has a duty to ensure compliance with the tax
laws, maintain public confidence and the integrity of our
system, and promote the sound development of law.
The assistant attorney general for tax is an important and
unique position. In order to be effective, this person must
have a strong command of the tax laws and maintain a strong
working relationship with the IRS.
Given the severe debt and deficit situation facing our
country, it is imperative that the IRS collect every dollar of
tax that is owed to the government.
I have always said that taxpayers should pay what they owe,
not a penny more, not a penny less. The assistant attorney
general for tax plays an important role in helping the IRS
collect their taxes.
It is disappointing that we have not been able to get a
qualified candidate into this position for 3 years. The first
nominee for this position, while very qualified for any number
of other legal positions, had no tax experience and was wholly
unqualified for this tax position.
After her nomination was withdrawn, it took over a year for
the President to submit Ms. Keneally's nomination. In contrast
to the first nominee, Ms. Keneally has significant tax
experience and will hopefully be a valuable addition to the
Department of Justice.
I was pleased to meet with her yesterday, as I just said.
We had a good visit, and I will look forward to her testimony
and my opportunity to question her.
In addition, we will be considering the nomination of Brian
Wimes, nominated to be a U.S. District Judge for the Eastern
and Western Districts of Missouri.
I would note that we are making real progress with regard
to the nominations of President Obama, to the Federal
judiciary. Today marks the 18th nominations hearing held in
this Committee this year, and we will have heard from 70
judicial nominees.
All in all, nearly 89 percent of President Obama's judicial
nominees have received a hearing. The Senate has confirmed 20
Article 3 judicial nominees during the past month and a half,
and we have now confirmed 58 judicial nominees in this Congress
alone.
With the confirmation of two judges yesterday, over 70
percent of the President's nominees have been confirmed.
I am going to have a full statement for the record, and I
yield the floor.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Kohl. Thank you very much.
Ms. Keneally, will you step forward, please? Raise your
right hand and take the oath.
[Witness sworn.]
Senator Kohl. So we will now accept your recognition and
introduction of your family, as well as a statement, and then
we will get on to the questions.
STATEMENT OF KATHRYN KENEALLY, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL
Ms. Keneally. Thank you, Senator Kohl and Senator Grassley.
I just want to state that I am appreciative of the
comments, the very, very kind and generous comments that
Senator Schumer made. I'm deeply grateful, also, to my
wonderful husband, Tom Marshall, who is here today, for his
constant love and support. He is joined here today by my
mother, Reverend Joanna Keneally, who's constant guidance is
central in my life.
I'm also grateful for this moment to acknowledge my father,
who we lost many years ago, but who I know would be proud
today.
I would also appreciate the opportunity to acknowledge my
sister, Theresa Palmisano, who is a charter school teacher in
Florida, and my nephew, Billy, and my niece, Katie. I believe
that they are watching with some of my students--my sister's
students at the Franklin Academy on the committee's Webcast.
And I would like to express my gratitude to my colleagues
at Fulbright & Jaworski who I also believe are watching the
committee's Webcast.
I also want to express my profound gratitude to the
President for his confidence and the confidence he's shown in
nominating me to the attorney general, for his strong support,
and to the members of the Committee for holding this hearing
and for considering my nomination.
If I am confirmed, I will do my very best to be worthy of
the privilege of serving as the assistant attorney general for
the tax division. And I look forward to the committee's
questions.
Thank you.
Senator Kohl. Thank you so much.
[The biographical information follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Keneally, the tax division has been operating, as you
know, without a confirmed head for more than 2 years now. What
challenge does this pose? And should you be confirmed, what
priorities will you set for the division?
Ms. Keneally. Thank you, Senator, for that question. I have
the greatest of respect for the tax division. I believe it is
doing very good work today.
In terms of priorities, my very first priority will be to
listen and to learn what the tax division is currently doing,
if I'm fortunate enough to be confirmed.
I do understand that a current priority is offshore tax
compliance and the offshore tax compliance initiative, and I
think that is a very important priority. And if I'm fortunate
enough to serve, I would be very supportive of that priority.
In addition, I think it is always important that the tax
division pursue enforcement against fraudulent tax schemes and
those who promote fraudulent tax schemes, including
professionals who lead taxpayers into false returns or
fraudulent positions. And if I'm fortunate enough to serve, I
would see that as a priority. And I understand it is always a
priority that we enforce the laws against tax defiers.
Senator Kohl. What is your background that brings you here
today in terms of your professional experience?
Ms. Keneally. My practice area is in representing taxpayers
both in civil and criminal tax matters. I've been doing that
for well over 25 years.
My education is in tax law. I have an LLM in tax. I've also
served in various capacities at the ABA tax section. I chaired
the Committee on Civil and Criminal Tax Penalties. I chaired
the Committee on Standards of Tax Practice, which is the ethics
Committee of the tax section. And I'm now a vice chair of the
tax section. And in those capacities, I have worked with the
IRS, with the tax division, with the Treasury Department in
terms of making recommendations on tax enforcement policies.
Senator Kohl. Ms. Keneally, last year, the tax division
collected $566 million in unpaid taxes, and, yet, the IRS data
suggested that the annual tax gap between taxes paid and the
amount of remaining unpaid tax revenue in this country is close
to $300 billion a year.
I understand now that the tax division's role is limited to
certain civil litigation and criminal cases that are referred
to you or to it by the IRS.
Nevertheless, what more can or would your division do,
working with the IRS, to help close that tremendous tax gap?
Ms. Keneally. I appreciate that issue, Senator, very much.
I believe that it is important that the tax laws be enforced so
that those taxpayers who are in compliance have confidence in
the integrity of the tax system and that it is--that they are
treated fairly because those who are not in compliance are
pursued.
I believe that the selection of cases, in order to get the
message out and to create the deterrence and voluntary
compliance by everyone else, is a very effective way to close
the tax gap.
So if I am fortunate enough to be confirmed, I believe a
commitment to full enforcement is important and priority.
Senator Kohl. How many lawyers are there in this part of
the DOJ?
Ms. Keneally. My understanding is that it is--I've seen
numbers that say between 350 and 400, if the numbers that I've
seen----
Senator Kohl. Well, you have a great staff there, at least
in terms of numbers and, I am sure, quality to pursue
collection of unpaid taxes.
Ms. Keneally. Senator, I've had the privilege of
representing taxpayers in matters where--well, I've been on the
other side of the table from the Department of Justice tax
division. I know them to be great and dedicated lawyers.
Senator Kohl. All right. The tax division has recently made
a major push to prosecute individuals and corporations that
hide their income and assets in offshore bank accounts to avoid
paying taxes.
This costs the government, according to some estimates, up
to $100 billion a year in lost revenue.
In written commentary, you've been critical of certain
enforcement efforts against citizens and corporations accused
of hiding profits in foreign tax shelters.
Given these views, can we count on you to continue the
division's efforts and to do an even better job in aggressively
pursuing offshore tax shelters?
Ms. Keneally. Absolutely, Senator. I applaud the work done
by the Internal Revenue Service and by the tax division in its
offshore enforcement. I have made some comments that were
directed to certain aspects of how matters were handled, some
of which have resulted--both the IRS and the division have made
certain changes over time in the practices as result of some
things that the private bar has called to its attention, but I
absolutely applaud that effort and would be committed,
absolutely, to the enforcement in the offshore tax matters. I
view that as an absolute priority.
Senator Kohl. Thank you. Finally, what leads you to this
job possibly here today? You have been a successful
practitioner in private litigation and, I am sure, making a lot
more than you are going to make as a public servant.
So what brings you here today?
Ms. Keneally. It is an absolute privilege to serve one's
country and I would value that privilege, if I am fortunate
enough to be confirmed. This is an area that has been the heart
of my career and it is a place where I think I can bring
experience and skill to serve my country, and I would welcome
that opportunity.
Senator Kohl. Thank you.
Senator Grassley.
Senator Grassley. Thank you once again for coming to my
office yesterday. A couple questions I am going to ask you
first are questions that I ask every assistant attorney general
and maybe other people in other departments.
Would you commit to working with Congress, the Government
Accountability Office, and any inspector general, where
applicable, in a timely and constructive manner, to address the
oversight and other needs of Congress and would you also
encourage others to do so, even in, in encouraging others to do
so, yo might not get them to do it?
Ms. Keneally. I am sorry, Senator, I----
Senator Grassley. Maybe I should not have ad libbed the
details.
[Laughter.]
Ms. Keneally. I am sorry, Senator. I just want to make sure
I understand the question, because I would take any Committee
seriously.
Senator Grassley. Let me just repeat it, please. Will you
commit to working with Congress, the Government Accountability
Office, and any IG, where applicable, in a timely and
constructive manner to address the oversight and other needs of
Congress, and will you encourage others to do so?
Ms. Keneally. Senator, I understand this question from our
discussion yesterday. I would certainly, as I said to you
yesterday, be responsive to any inquiries, absolutely, from
your office or from the Senate or any other branch of the
government, as appropriate.
Senator Grassley. Thank you. The second question that I ask
everybody is along the same lines, but be a little more
specific, because a lot of times, we do not get correct
answers; sometimes, not ever, but generally not in the first
response.
Would you respond in a timely and substantive manner to any
requests that I make?
Ms. Keneally. Senator, I cannot imagine that I would not
respond to an inquiry that would come from a Senator.
Senator Grassley. Why not stop there?
[Laughter.]
Senator Grassley. As we also discussed yesterday, for more
than 10 years as Chairman and then Ranking Member of the Senate
Finance Committee, I joined Chairman Baucus to close the tax
gap.
In addition to closing loopholes, we also provided the IRS
with tools to root out tax evasion, including mandatory
disclosure of possible tax shelters. In the April-May 2007
edition of the Journal of Tax Practices and Procedures, you
expressed concern that, ``The war on tax shelters will give
rise to entrenched enforcement mindset.''
Later that year, in the October-November 2007 edition of
the same publication, you published another article titled,
``The Increasing Risky Business of Tax Gap Evasion and
Voluntary Disclosure.''
I would like to better understand your position, so I would
ask these questions. One, over the course of your long career
as a tax professional, apart from your tax controversy work,
did you ever conduct tax planning for clients?
Ms. Keneally. No, sir.
Senator Grassley. No, sir. You said no.
Ms. Keneally. No, Senator. I did not conduct tax planning
and----
Senator Grassley. That is OK. Did you help develop any tax
shelters or advise your clients to participate in them or in
any listed transactions?
Ms. Keneally. Certainly not, Senator.
Senator Grassley. It seems from the April-May 2007 article
that you believe that the IRS is focusing too much on tax
shelters and listed transactions. How would you reconcile this
position with the fact that many of us in Congress and,
particularly, the public at large, believe just the opposite?
Ms. Keneally. Senator, thank you for the opportunity to
clarify. I believe that the IRS and the tax division accorded
necessary resources to the enforcement against the tax shelter
industry. I believe that that was an essential battle for tax
enforcement and that the IRS and the tax division should be
commended for the very good work that they did.
My article was directed at the need for fairness to all
taxpayers who come before the IRS. There were certain
mechanisms that were put in place that were important and
useful in tax shelter enforcement that may be a bit much in the
average examination of the ordinary taxpayer, and my article
was intended to get at that. And we have recently seen that the
IRS has made some changes along the lines that were suggested
in that article. But I am firmly committed to tax shelter
enforcement and, frankly, it has been my experience as a
private practitioner that you see it arise in the vacuum of
enforcement, and I think there always needs to be diligent
enforcement in that area.
Senator Grassley. Do you want your second round now?
Senator Kohl. Go ahead.
Senator Grassley. Thank you. I would like to ask about the
Internal Revenue Service whistleblower program. While there is
a longstanding whistleblower reward program at the IRS, I
authored changes to those provisions in 2006. The changes were
made to incentivize whistleblowing on big dollar tax fraud.
A recent Government Accountability Office report indicates
that my efforts were successful. The IRS has received tips on
more than 9,500 taxpayers from 1,400 whistleblowers in just 5
years.
However, I remain concerned that the IRS, like the Justice
Department, with the False Claims Act revisions that I did in
1986, continue to treat whistleblowers kind of like skunks at a
picnic.
For example, the IRS' offshore compliance program likely
would not have achieved the success it has without the
knowledge it received from foreign bank employees. Yet, as I
stated in a letter to the IRS commissioner, June last year, I
have serious doubts that the IRS effectively utilized the
information provided to it by a UBS whistleblower.
Information from whistleblowers should result in easy money
for the IRS, which is really easy money then for the Federal
Government.
My first question. Many practitioners and corporations are
opposed to the IRS whistleblower program. Do you support the
IRS whistleblower program? What concerns, if any, would you
have about it, if you have any concerns?
Ms. Keneally. Senator, I support the IRS whistleblower
program. I have actually had the privilege of doing at least
one panel presentation on the whistleblower program. I think it
is an excellent program and I think we will see rewards in the
years to come from it.
Senator Grassley. In the UBS case, the Department of
Justice sat on the information provided by the whistleblower
for a very long time before acting on it. The IRS has a policy
that whistleblower cases will not be prioritized over other
audits.
Do you agree with this policy?
Ms. Keneally. Senator, I am not familiar with that policy.
Senator Grassley. OK. Then could you study it and answer it
in writing?
Ms. Keneally. I would be delighted to take a look at that
policy and to respond in writing, yes, Senator.
Senator Grassley. OK. I think we will submit two more
subsets to that. I think I will have you answer each of them in
writing. OK?
Ms. Keneally. I look forward to that. Thank you.
Senator Grassley. The IRS is currently in the midst of a
historic enforcement action against offshore tax evasion and
the Justice Department is playing a key role. These questions,
I think, are a little more pointed than what Senator Kohl just
asked.
Is your opinion regarding the offshore voluntary compliance
effort the same as your opinion regarding efforts regarding the
disclosure of tax shelters and listed transactions? If not,
please explain why they should be considered differently.
Ms. Keneally. As with tax shelters and listed transactions,
I believe that the IRS' initiatives and the tax division's
initiatives in offshore voluntary compliance are important,
vital, and have been very effective to date.
Senator Grassley. In other words, I think you just answered
then, in regard to my last statement, that you do not--that
they should not be considered differently.
Ms. Keneally. I view them as equally important goals for
the Service and tax enforcement.
Senator Grassley. Another pointed question. Are you now
representing or have you represented any clients that are
participating or have participated in the IRS amnesty program?
Ms. Keneally. Yes, I have.
Senator Grassley. Last year, this Committee considered a
bill to reauthorize an earmark for the Boys' and Girls' Club of
America, the national umbrella group for hundreds of clubs
around the country.
After learning about the executive compensation of the
organization's CEO, I joined some of my colleagues on this
Committee in asking questions about this organization's
activity.
As a result, we learned that this National umbrella group
held tens of millions of dollars offshore to avoid taxes on the
income generated by these investments.
Let me say, parenthetically, here that that is specifically
what the organization said that they--that they put the money
offshore to avoid taxes. So, question.
Have you set up any offshore blocker entities or advised
clients to invest in such vehicles?
Ms. Keneally. Never, Senator.
Senator Grassley. Do you believe it is appropriate for
Federal grants to be awarded to entities that utilize such
blocker entities? And let me say, in regard to that, Boys' and
Girls' Clubs get a lot of Federal money. So, obviously, we are
asking the question, why should we give Federal money to them
if they have got money offshore, $50 million or $60 million
offshore, that is not paying taxes or why would they not be
using that for the good of the organization. But you heard my
question.
Ms. Keneally. Yes, Senator.
Senator Grassley. Do you want me to re-read it?
Ms. Keneally. No. I understand the question. I am a very
firm believer in tax compliance. In my representation of
clients with offshore bank accounts, my efforts have been to
bring them back into tax compliance. I do not feel qualified to
comment either specifically on the situation that you are
describing or----
Senator Grassley. And I am not asking you to comment on the
Boys' and Girls' Club. I just was using that as an example.
Ms. Keneally. It is also outside my own experience or
expertise, I believe, to comment on how grant money should be
accorded. But I do believe that tax compliance is important and
that offshore--the use of offshore accounts and offshore assets
for non-tax compliance is something that is vital to law
enforcement.
Senator Grassley. And I can understand maybe why you would
want to not comment on the Federal grant.
This will be my last question. It involves revolving door
and conflict of interest.
In your discussion yesterday, you mentioned that you have
good working relationships with many at the IRS and the
Department of Justice Tax Division. The Committee has also
received letters of support from a distinguished group of
bipartisan tax attorneys, including several who have served in
the position for which you are nominated.
I have been concerned for many years about the revolving
door at the Securities and Exchange Commission. Professionals
frequently move from industry to the SEC and then back to the
industry where they came from.
I am increasingly concerned about the phenomenon at IRS,
Justice Tax Division, and, also, the Treasury Department. I
appreciate that the government benefits from the experience of
the professionals that are on the ground and vice versa.
However, I remained concerned about equal enforcement of the
laws; in this case, the tax laws.
It is difficult for individuals to set aside prior
relationships when they move into government positions. I would
appreciate your thoughts on how you intend to balance the
demands of this new position that you are going to with your
longstanding relationships with the tax practitioner community.
Ms. Keneally. Senator, I appreciate that question. Thank
you. I am aware of the ethical obligations. I have been an
advocate my entire career. I will be as strong or stronger an
advocate, if I am given the opportunity to serve my country in
this position.
I have served in the past, as I stated, as the chair of the
Standards of Tax Practice Committee of the ABA tax section,
which is the ethics Committee of the tax section.
I will remain very aware of all conflict issues, both the
written ones and the others that come up through personal
relationships, and will always remain conscious, if I am given
this opportunity, that my duties lie toward law enforcement and
to the division.
Senator Grassley. Thank you, Ms. Keneally.
Thank you, Mr. Chairman, for your courtesy.
Senator Kohl. Thank you, Senator Grassley.
Ms. Keneally, as a defense attorney for tax and white
collar crime, you will bring a unique perspective to the
division's criminal enforcement activities.
How will this experience inform your decisions and your
strategy to make you even better at the job than someone
without your experience might be?
Ms. Keneally. Senator, I have had a large number of years
of knowing the cases from the other side. I believe I will have
an appreciation for what arguments will be made, what
strategies may be taken in cases, and, frankly, an appreciation
for how tax evasion and tax avoidance occurs, because I have
been deep in it for many, many years.
Senator Kohl. All right. Ms. Keneally, effective
enforcement of tax laws requires close coordination between the
IRS and the tax division. From your perspective, having
represented individuals and businesses on tax matters both
before the IRS and the tax division, do you think that current
coordination between these two organizations is sufficiently
effective?
How can it be better and what will you intend to do to see
that the coordination is better?
Ms. Keneally. Senator, I am neither at the IRS nor the tax
division at the moment, so I can't speak directly to what their
coordination efforts are.
As a private practitioner, it appears to be a very good
working relationship. I have every understanding that there is
mutual respect and cooperation between the Service and the tax
division. I would do everything in my power, if I am fortunate
enough to be confirmed, to foster that.
I have, through both my practice and my role at the ABA tax
section, developed some very good relationships with various
people at the Internal Revenue Service, as well as in the tax
division, and I would work to encourage those relationships and
good working relationships.
Senator Kohl. All right. At this time, I would like to ask
consent to add to the record a statement in support of Ms.
Keneally's nomination from Senator Gillibrand, and, also, a
letter from top tax officials from previous Democratic and
Republican administrations.
[The letters appears as a submission for the record.]
Senator Kohl. You have done a very good job here today. We
appreciate your coming, and we will allow you to leave the
stand at this time.
Ms. Keneally. Thank you.
Senator Kohl. Now, we would like to ask Judge Wimes to step
forward, please. Please raise your right hand and repeat after
me.
[Witness sworn.]
Senator Kohl. Thank you. You may be seated.
Judge Wimes, we will be happy to take your introductions of
your family members who are with you, as well as your
statement, before we ask you questions.
STATEMENT OF BRIAN C. WIMES, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF
MISSOURI
Mr. Wimes. Thank you, Senator. First, I would like to thank
this body, the Judiciary Committee, Senator Kohl, Senator
Grassley, for holding this hearing. I am truly grateful and
honored to be here and look forward to answering your
questions.
I would like to thank the President, President Obama, for
the nomination. Again, I am truly grateful and humbled by that.
I want to acknowledge my home State Senators, Senator
Claire McCaskill for her introduction. She's had an impact on
my career. Also, I would like to acknowledge Senator Blunt for
his support and whose family has had an impact.
His son, former Governor Matt Blunt, appointed me to my
current position I hold now.
I'd like to introduce my family. I have my wife here. I
have my youngest right next to her, Saige, she's 7 years old. I
have my middle child, Gabrielle, who is 12. Here, also, Sydney,
my oldest, she's 14, a freshman. Thank you.
I'd like to acknowledge my dad, who's here with me; my
great uncle, Charles Wimes; my great uncle, Uncle John, he
turned 90 this May and he made it down from New York this
morning. Him and my cousin, Jill, his daughter, and they're
representing our family from New York.
Further, I'd like to acknowledge I have my other cousin,
who is here locally from Virginia, our good friend, Patricia
Campbell, who sits on the bench. She's here with her daughter,
supportive.
And, last, here with me, my current law clerk, Matthew
Sparks, who wanted to make this trip and I'm glad he did, and
my incoming law clerk, Maggie, or Margaret, Boyd, who also
joined us here today.
And, last, Senators, I want to thank those family and
friends and colleagues who are viewing on the Webcast.
Thank you.
Senator Kohl. Would you like to make any remarks, a
statement of any sort?
Mr. Wimes. None other than those, Senator.
Senator Kohl. All right.
Mr. Wimes. Thank you.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Kohl. Judge Wimes, as you know, district court
judges are bound by precedent of their circuit and the
precedent established by the Supreme Court.
Should you be confirmed, from time to time, you will be
called upon to decide cases where there is no precedent or
where there is no Supreme Court decisions in the matters that
you would have under your consideration.
So how do you intend to approach these kinds of cases where
there is no clear precedent?
Mr. Wimes. Well, thank you for the question, Senator Kohl.
First, you would look to the plain language of the statute, if
that's the case. Then, certainly--and see if you can determine
from the plain language of the statute.
Then you would look to an analogous situation from the
United States Supreme Court. Then I would look to what would be
the eighth circuit, where the district court for Missouri sits,
to analogy in terms of the law. And, last, Senator, you would
look to persuasive law from any of the other circuits in terms
of making a determination on your decision-making process.
Senator Kohl. Is it fair to say you would try just as hard
as you can in every case to find precedent to work with?
Mr. Wimes. Yes. I would say that. I can tell you, I've sat
on the bench for 10 years on the state court, 6 years as a
commissioner, and 4.5 years as a general jurisdiction judge,
and I think that's incumbent upon lower courts, district
courts, to rely on the precedent of higher courts. And if I was
so fortunate to be confirmed, I would do the same on the
Federal bench.
Senator Kohl. Good. How would you describe your judicial
philosophy in a very general way?
Mr. Wimes. I think it's very important for a judge to have
integrity. That means they're fair, impartial. I think some
characteristics of judges, they are open-minded, even
temperament, decisive. But overall, the philosophy is you apply
the facts of the case, the particulars, to the applicable law,
and I think that would sum up how I approach it and how I
believe I've been on the bench.
Senator Kohl. What is it about being a judge that appeals
to you?
Mr. Wimes. Senator, that's a good question. I think from a
very young age, my parents taught me the value in public
service. I always took the public service interest in our
government. I think as I grew and developed, I really had
enthusiasm and a passion for the law, and I think because of
that, I knew that public service and I knew that sitting on the
bench was something I wanted to do. And I think to serve--if
I'm fortunate enough to serve on the Federal level, that would
be the highest honor for me in representing the citizens of the
United States and doing it is something that I've always had an
enthusiasm and a passion for doing.
Senator Kohl. Judge Wimes, I believe that life experiences
do influence the decisions that people make, but judges, more
than anyone else, have a duty to ensure that they do not cross
the line to allow their background to inappropriately influence
the outcome of cases.
Where do you draw this line and at what point does personal
experience, in your opinion, improperly impact judging? How
have you and how will you ensure that your personal experiences
do not improperly influence your judicial decisions?
Judge Wimes. Well, thank you for the question, Senator. I
don't believe--in my 10 years that I have sat on the bench, I
don't think my personal views or any biases I may have play any
role in my decision-making process.
Certainly, having a background in certain areas brings a
certain level of sensitivity to a particular issue, if you have
a background. But I think, ultimately, what rules the day is
the facts and circumstances of the particular case and the law
that applies.
Again, I would like to think over my time on the bench that
I have done that and, if confirmed, I would continue to do that
on the Federal bench.
Senator Kohl. All right. Before I turn it over to Senator
Grassley, I would like to ask your three daughters a question
and they could just raise their hand. Is your daddy a fair man?
Could we count on him to be a fair judge? Raise your hand if it
is yes. All right. That is the strongest affirmation of your
candidacy.
Judge Wimes. Well, thank you, Senator.
Senator Kohl. Senator Grassley.
Senator Grassley. Yes, and congratulations, sir.
Judge Wimes. Thank you, Senator.
Senator Grassley. As a circuit court judge, you served on a
16th judicial district strategic planning committee. In 2008,
this Committee produced a strategic plan, including factors
which the Committee believed would affect the successful
implementation of the plan.
One factor identified was, ``challenges to the judiciary
and oversight by the Supreme Court.''
You and the Committee expressed concern regarding the
Supreme Court noting it will, ``increasingly attempt to
influence and become more heavily involved in local state court
matters, decreasing autonomy of Missouri courts.''
I am not sure which Supreme Court you were referring to, of
the State of Missouri or the U.S. But regardless, I would like
to have you explain how either Supreme Court is, ``increasingly
attempting to influence courts in the Missouri 16th judicial
district.''
And let me follow-up with a second question, and answer
both of them at the same time, of whether or not you think it
is inappropriate for a Supreme Court to influence lower
appellate or trial courts.
Judge Wimes. Senator, I will attempt to answer your last
question first. No, I don't think it's improper for a Supreme
Court, because that is the governing body for the judiciary and
the State of Missouri.
I think in the context of that report which we put out, it
was a report that not only the judges who were involved or one
of the Committee members that were involved, it also involved
the other judges of the circuit. It involved our stakeholders,
who we believe and we interviewed, the public at large. We also
interviewed attorneys who utilized the court system.
And what we attempted to do throughout that report is to
put together a plan that encompassed all those different
individuals.
Now, more specifically to your question of the influence,
I'm not sure, Senator, the context of how we represented that.
I'd be more than happy to look at that report.
Senator Grassley. Why do we not make it easy for you----
Judge Wimes Sure.
Senator Grassley [continuing]. And ask you to respond to
that point in writing.
Judge Wimes. That would be fine. I'd be more than happy to
do so.
Senator Grassley. A follow-up of the second question I
asked you, which you have answered already. How would you
describe the proper relationship between a Federal district
court and the circuit court of appeals, a Federal district
court and the Supreme Court of the United States? So that is
kind of two questions, the Federal district court and the
circuit court of appeals, and the Federal district court and
the Supreme Court of the United States.
Judge Wimes. And the question is how would I describe or
how would I see that relationship?
Senator Grassley. Yes. Yes.
Judge Wimes. I would see it--I suspect I would see it in
much the same way that I see the relationship on the state
court in terms of our district court, our appeals court, and
our Supreme Court, and that is this. I believe, those three
bodies, we have a great working relationship, but I will tell
you, Senator, with respect to the Supreme Court and procedure
and rules, that is the body--and I think they do or at least in
Missouri they do so in communication with the other courts,
promulgate rules and whatever rules they establish, obviously,
as a lower court, we would follow that.
So we have a great amount of respect, and, obviously, the
Supreme Court in the State of Missouri, I think, in putting
together rules and procedures, they work with the lower courts
and, ultimately, their decisions the lower courts would follow.
Senator Grassley. Would that statement you just made apply
to the Federal district court and the courts of appeal and the
Supreme Court?
Judge Wimes. Most certainly, Senator.
Senator Grassley. You and the Committee also listed as a
concern that, ``hostility towards criticism and the
politicization of the judiciary by legislatures.''
How do legislatures show hostility toward a judiciary?
Judge Wimes. I think in terms of that report and the State
of Missouri, I think the focus was--in the State of Missouri,
there's the nonpartisan court plan and there had been some
criticism of the nonpartisan court plan.
The urban areas or larger area in the State of Missouri are
appointed. The out-state of Missouri are elected. There has
been a movement in terms of that all the positions in the State
of Missouri should be elected, and they have--they have looked
at the nonpartisan court plan or eliminating the nonpartisan
court plan.
So in the context of the bigger scheme, that's what we were
referring to. And I don't believe it refers to the legislature
itself, because there are a great number of the legislature
that is supportive of the current court plan that we have,
Senator.
Senator Grassley. Is it your view that the U.S. Congress
has politicized the Federal judiciary, and, if so, how?
Judge Wimes. That's not my belief.
Senator Grassley. In your view, what is the proper
relationship between the Federal judiciary and the Congress?
Judge Wimes. Senator, I believe three branches of
government. I think the judiciary certainly is one branch, the
legislative is another branch, and, obviously, the executive is
their branch.
There is a relationship to the extent that funding for the
judiciary is through Congress. So there is that relationship in
that sense in terms of appropriations.
But I think in terms of--legislators make the law and the
court follows the law.
Senator Grassley. I am concerned by your lack of Federal
court experience. According to your questionnaire, you have
practically no Federal court experience in your legal career.
As a state court judge in Missouri, you do have the
opportunity to review Federal issues. What assurances can you
provide to this Committee and to future litigants that your
judgment on Federal law and procedure will be sound and
informed?
Judge Wimes. Senator, I appreciate that question. Starting
my legal career, I worked in the Department of Justice Bureau
of Prisons. At that time, I handled actions that were filed
against the Bureau of Prisons by way of Federal Tort Claim Act,
habeas corpus actions, and Bivens actions.
As a circuit judge, you are correct, Senator, I do have
issues that involve Federal issues, whether it's Title 7 in
some of the employment cases that I have; certainly, in
criminal cases, the Fourth Amendment and the Sixth Amendment.
And I can tell you this, Senator. When I took the bench on the
state court, there were certainly those matters which, coming
from the background in criminal court, some matters civilly I
hadn't dealt with.
But I've had the opportunity to interpret Missouri
statutes. I had the opportunity to interpret provisions of the
Missouri constitution, and I have done so. I have ruled and
those rulings have been reviewed by higher courts and I have
been affirmed on those decisions.
So I believe I would take that same competence level to the
issues that I face on the Federal level in terms of the
preparedness on those matters and issues that appear in front
of me.
Senator Grassley. This is my last question. There are a
number of different theories explaining how judges should
interpret the Constitution. Some theories emphasize original
understanding. Some emphasize literal meaning, and some focus
on general principles underlying the Constitution and applying
a contemporary meaning to those principles.
While all nominees recite the mantra that they will apply
the law to the facts, I am looking for an answer with a little
bit more thought behind it. So this question.
What constitutional interpretation model will guide you
when faced with constitutional questions?
Judge Wimes. Thank you, Senator. That's an important
question and I'll try and answer it as thoughtful----
Senator Grassley. Would you like to answer it in writing?
Judge Wimes. If you'd like me to, I would.
Senator Grassley. I want to do what you want to do. Do you
want to answer it now or do you want to answer it in writing?
Judge Wimes. Well, I could answer it now and----
Senator Grassley. Go ahead and answer it now, then.
Judge Wimes. OK. Well, I'll attempt to answer it now.
Senator, I think it's important, especially as a district
judge, when you're asked, ``What is your interpretation,'' I
follow precedent. I follow the precedent of the Supreme Court
of--it would be of the eighth circuit. And as a circuit judge,
that's my determination on what the law--the applicable law to
facts and circumstances of any particular case that I may have
in front of me, and I think that the work of a district judge
is just that.
The decisions you make are based upon precedent and based
upon the higher courts.
Senator, I don't know if that addressed your question. I
can still address it maybe fuller in writing, if you like.
Senator Grassley. When I review the record and if it does
not answer, I will ask you a question for answer in writing.
Thank you, Mr. Chairman.
Judge Wimes. Thank you, sir.
Senator Kohl. Thank you very much, Senator Grassley.
Judge Wimes, Federal judges serve a meaningful role in
their communities beyond hearing and deciding cases. Our vision
of a trial court judge today is a person who is actively
involved beyond his courtroom and understands the importance of
such things as drug diversion programs and alternative
punishments for juvenile offenders, as you well know.
Would you take a moment to discuss your own vision of what
it means to be a Federal judge with a focus on the importance
of each judge in their community?
Judge Wimes. Thank you for the question, Senator.
I have always tried in my career to be involved in the
community as a prosecutor, as a drug court commissioner, and as
a circuit judge.
I think to the extent--and I would carry that over, if I'm
fortunate enough to be confirmed on the Federal district court,
I think that is important for the bench to be active within the
community, obviously, within the--nothing that would create an
appearance of impropriety.
So I can tell you, if confirmed, I would continue to be and
I think it's important to be active in the community, visible
in the community, to the extent I could.
Senator Kohl. Tell us a little bit about some of your
activities, visibility in your community right now.
Judge Wimes. Well, I've been involved in many things over
time. The Hope House, which is a domestic violence shelter, the
mental health, Association of the Heartland, I have been a Big
Brother, I'm a watchdog at my kids' school, which means a dad
of great students and it gets dads involved.
Overall, what I've attempted to do is to, one, especially
as it relates to students and students in school, to inspire
them to maybe think beyond what--their possibilities.
So oftentimes I talk to students. I have students in my
courtroom. I prepare and have them put mock arguments. And I've
done that because the influence in my life are those folks who
took the time--took the time to talk with me, and I want to
make sure, to the extent I can, to continue to be actively
involved, especially in young people's lives, to get them to
maybe aspire to do what I do or to aspire to do something
bigger than what they thought.
Senator Kohl. All right. I would like to ask that Chairman
Leahy's statement be inserted in the record.
[The prepared statement of Chairman Leahy appears in the
appendix.]
Senator Kohl. And this hearing will remain open for a week
for any follow-up, written questions and responses.
Judge Wimes, you have done a great job. We appreciate you
being here today, and we look forward, should you be confirmed,
to a long and honorable career in the Federal judiciary.
Thank you so much.
Judge Wimes. Thank you, Senator Kohl.
Senator Kohl. The hearing is adjourned.
[Whereupon, at 3:34 p.m., the hearing was concluded.]
[Quesions and answers and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF PAUL J. WATFORD, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE
NINTH CIRCUIT
----------
TUESDAY, DECEMBER 13, 2011
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,
presiding.
Present: Senators Feinstein and Grassley.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Good morning. The hearing will come to
order.
We are here today to consider the nomination of Paul J.
Watford to the United States Court of Appeals for the Ninth
Circuit. I welcome Mr. Watford and his family and friends to
the U.S. Senate.
We have a statement for the record from Senator Boxer in
support of the nominee, and she has mentioned to me her
confidence in him. But given the week that we are about to have
and the role of the Environment and Public Works Committee,
which she chairs, and trying to defend against some, what many
of us consider, extremely ill-advised attacks on our pollution
control regimes, our environmental policies, she is unable to
be here. So with unanimous consent, her statement will be
admitted to the record.
[The prepared statement of Senator Boxer appears as a
submission for the record.]
Senator Whitehouse. I will simply say that voting to
confirm an individual to the Federal bench is one of the most
important decisions that a Senator can make. Every day of our
lives, Federal judges make decisions that affect Americans'
lives in all walks of life.
In doing so, judges must respect the role of Congress as
representatives of the American people. They must decide cases
based on the law and the facts, and not prejudge any case. They
must listen to every party that comes before them fairly. They
must respect precedent, and they must limit themselves to the
issues that are before the court to decide.
Judicial nominees also must have the requisite legal skill
to serve as a Federal judge. Mr. Watford has an impressive
record of achievement that has earned him a unanimous Well
Qualified rating from the American Bar Association.
It is important to fill this seat on the Ninth Circuit in a
timely manner. There are currently four judicial emergency
vacancies on the Ninth Circuit. The Chief Judge of the Ninth
Circuit, Alex Kozinski, along with the members of the Judicial
Council of the Ninth Circuit, have written to this Committee,
describing the Ninth Circuit's ``desperate need for judges''
and urging the Senate to ``act on judicial nominees without
delay.'' Chief Judge Kozinski wrote of the extensive vacancies
on the Ninth Circuit: ``We fear that the public will suffer
unless our vacancies are filled very promptly.''
In the interest of efficiency, let me outline how this
hearing will proceed. The Ranking Member will make his remarks,
Senator Feinstein will then introduce Mr. Watford, and Senators
who are here for the hearing will have 5-minute rounds for
questioning of the nominee.
With that, I turn to our distinguished Ranking Member,
Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM IOWA
Senator Grassley. Thank you to Chairman Leahy, because he
worked very closely with us on scheduling this hearing and the
agenda for the hearing, and I am pleased that we were able to
reach an agreement. Today as you have said, Paul Watford is
before our Committee as a nominee for the Ninth Circuit. We
have gone over his biography so I am not going to go into that,
but I am going to have a full statement I am going to put in
the record.
Before that statement goes in the record, I would note that
we are making real progress in regard to the nominations of
President Obama to the Federal judiciary. Today marks the 19th
nomination hearing held in this Committee this year, and we
will have heard from 71 judicial nominees. That would be nearly
88 percent of President Obama's judicial nominees that have
received a hearing. We have confirmed 63 judicial nominees in
this Congress alone, and in total that would be 72 percent of
President Obama's nominees being confirmed on the Senate floor.
Again, I welcome the nominee, his family, and look forward
to the testimony. I will have a few questions, and maybe some
questions to submit in writing. But I would like to have a full
statement put in the record.
Senator Whitehouse. Without objection, that will be so.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Whitehouse. Now to introduce the nominee from her
home State, I turn to the distinguished Chairman of the
Intelligence Committee and a senior member of this Committee,
Senator Dianne Feinstein.
PRESENTATION OF PAUL WATFORD, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE NINTH CIRCUIT BY HON. DIANNE FEINSTEIN, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
Welcome, Mr. Watford.
I am very pleased to express my strong support for the
nomination of Paul Watford to the United States Court of
Appeals for the Ninth Circuit. If confirmed, Mr. Watford would
be only the fourth African-American ever to sit on the Ninth
Circuit. He would also be one of only two African-American
active judges on a 26-member court.
He has a distinguished record that has prepared him well
for the Circuit: he served as a Federal prosecutor in Los
Angeles, and has over a decade of appellate experience in
private practice. He has earned the respect from attorneys on
both sides of the aisle, and I am confident that, if confirmed,
he is going to serve with distinction on the court. I urge my
colleagues to support his nomination.
He is a native Californian, born in Garden Grove, and has
had a 17-year legal career. He has earned degrees from two of
California's finest public universities: his bachelor's from
U.C. Berkeley in 1989, and his law degree from the University
of California Los Angeles School of Law in 1994. He was an
editor of the UCLA Law Review and graduated Order of the Coif.
After finishing law school, Mr. Watford clerked for Ninth
Circuit Judge Alex Kozinski, an appointee of President
Reagan's, and he then clerked for Justice Ruth Bader Ginsburg
on the Supreme Court.
Following his two clerkships he spent a year in private
practice at a very prestigious law firm, Munger, Tolles &
Olson, and then moved into public service as a Federal
prosecutor in 1997. He has prosecuted a broad array of crimes,
including bank robberies, firearms offenses, immigration
violations, alien smuggling, and various types of fraud.
He has served in the Major Fraud section of the Criminal
Division, focusing on white collar crime. Among his many cases,
he successfully prosecuted the first case for online auction
fraud on Ebay in California. As a Federal prosecutor, he tried
seven cases to verdict. He appeared in court frequently,
typically several times a week.
He also argued for cases before the Ninth Circuit. In one
such case, a cocaine dealer had already convinced a State court
that a drug seizure had violated his Fourth Amendment rights.
But Mr. Watford prevailed on appeal, forcing the dealer to
forfeit over $100,000 in drug proceeds.
In 2000, he rejoined the firm Munger, Tolles & Olson, where
he is a current partner. This is one of the premier appellate
law firms in California. Mr. Watford has focused on appellate
litigation at Munger for the last 10 years. In total, he has
argued 21 cases in the appellate courts. He has also appeared
as counsel in over 20 cases in the United States Supreme Court.
Like most law firms, Munger's docket is dominated by
business litigation, thus, the focus of his work has been
appellate litigation for business clients. For example, Mr.
Watford represents Verizon Communications in a consumer class
action that has already seen one appeal to the Ninth Circuit.
He represented the technology company Rambus in two complex
patent infringement cases, including on appeal. He also
represented Shell Oil in an antitrust case. After Shell lost in
the Ninth Circuit, Watford and his colleagues at Munger won a
9-0 reversal in the United States Supreme Court.
He has also represented numerous other American businesses:
the Coca-Cola Company, Berkshire Hathaway, as well as business
executives, nonprofits, and municipal government agencies. His
extensive appellate experience will serve him well on the Ninth
Circuit.
Beyond his legal practice he has shown an admirable
dedication to the community, as well as to the judiciary. He
has been a board member and treasurer of Neighborhood Legal
Services of Los Angeles County, an organization that provides
legal representation to more than 100,000 people each year.
He has been an active member of the American Bar. He was
co-chair of the ABA's Appellate Practice Committee, and he
served on the Amicus Committee, as well as the Practitioners'
Reading Group of the Standing Committee on the Federal
Judiciary.
For 6 years, he served on the Magistrate Judge Merit
Selection Panel in the Central District of California,
assisting the District Court in choosing highly qualified
lawyers to serve as magistrate judges. He is also well-regarded
by attorneys on both sides of the aisle.
Jeremy Rosen, former president of the Los Angeles chapter
of the Federalist Society says that Watford is ``open-minded
and fair'' and that he is ``a brilliant person and a gifted
appellate lawyer.''
Daniel Collins, a colleague of Mr. Watford, clerked for
Justice Antonin Scalia and worked in the Justice Department
during the administration of President George W. Bush. Mr.
Collins says Watford is ``incredibly intelligent and has solid
integrity and great judgment.'' He says that Watford ``embodies
the definition of judicial temperament: very level-headed and
even-keeled.'' I believe that Paul Watford will make an
excellent addition to the Ninth Circuit and I urge my
colleagues to support his nomination.
Thank you very much, Mr. Chairman.
Senator Whitehouse. Thank you, Senator.
May I ask now for Mr. Watford to come forward to be sworn?
[Whereupon, the nominee was duly sworn.]
Senator Whitehouse. Please be seated.
We have the happy tradition in these hearings of beginning
by allowing the nominee to make introduction of family and
friends who are present, and I would invite you, Mr. Watford,
to do that now.
STATEMENT OF PAUL T. WATFORD, NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE NINTH DISTRICT
Mr. Watford. Thank you very much, Mr. Chairman.
Senator Whitehouse. Is your microphone on?
Mr. Watford. Thank you very much. I would like to first
thank Senator Feinstein for that very kind introduction. I
would like to thank Senator Feinstein, as well as Senator
Boxer, for their strong support of my nomination. I am very
grateful for that.
I would like to thank the Committee for scheduling this
hearing. It is a tremendous honor to be here. And I would of
course also like to thank the President for nominating me for
this position.
I have a couple of introductions I would like to make, if I
could. I have several close friends and two of my former
partners, in fact, who are here with me at the hearing. I'm
very grateful for their support. I have a number of family
members, friends, and colleagues who are watching via the
webcast that are up early in California this morning to watch.
I am happy that they were able to see the proceedings.
But most significantly, I would like to introduce my wife
Sherry, who is seated just to my right. We have been married
for 22 years now and she is just the most supportive spouse
anyone could ask for. I am very lucky to be married to her and
I am thrilled that she could be here.
And other than that, I don't have any further introductory
remarks. I'd be happy to answer the Committee's questions.
Senator Whitehouse. Thank you, Mr. Watford. Well, you
certainly come with a gold-plated appellate resume, from an
editor of your Law Review, to the Order of the Coif, to
clerking for a Circuit Court of Appeals judge, to clerking for
a Supreme Court judge, to co-chairing the ABA Appellate
Practice Committee. It would be hard to quarrel with those
qualifications, and so I am very delighted that you're here. I
note that there is not a significant attendance, which for
somebody in your position is a very good sign.
Senator Feinstein. Yes, it is.
Senator Whitehouse. Non-conversy. That's what you want. You
want the Chairman, the Ranking Member, and the member on the
Committee from your home State, and that is what you have and
no more. So, don't be discouraged by the fact that you haven't
attracted a bigger crowd, be encouraged by that fact.
I want to just ask you two questions. One has to do with
the role of appellate courts with respect to findings of fact.
Could you describe what role appellate courts have in making
findings of fact, and if an appellate court does make findings
of fact, what sort of deference those findings are entitled to
higher up in the appellate spectrum or on review or with
respect to later precedent?
Mr. Watford. Sure. Well, I think as a general matter
appellate courts don't have any role in finding facts. The
facts are usually found at the District Court level and the
appellate court would typically review the record when it comes
up on appeal and, again, typically would give great deference
to the factual findings that the trial court made.
I can't think of really any circumstance where an appellate
court in the first instance would be called upon to make its
own findings of fact.
Senator Whitehouse. At least not properly.
Mr. Watford. At least not properly. That's exactly right.
Senator Whitehouse. Very good.
The other thing I'd like to ask you about is the role of
the jury, not just as a fact finder--and it is one of the ways
in which finding of fact takes place in our judicial system--
but also more broadly within the constellation of government
institutions that are constitution established. What is your
view about the role of the jury as an institution of
government, of liberty, of protecting rights, as a part of the
Constitutional process, not just a part of the legal process?
Mr. Watford. Well, I think the jury has an extremely
important role to play in our system of government. It is one
of the reasons why the right to jury trial was protected in the
Bill of Rights. The Founders viewed it as an essential
protector of liberty. I, you know, had the privilege of
appearing before juries on behalf of the United States and have
seen the jury system work up close, and it's one of the most
awesome institutions to see in action because you take,
literally, 12 random people from the community who don't know
one another, don't know any of the parties involved, and at
least in criminal cases are charged with a very significant
responsibility of deciding whether somebody should be deprived
of their liberty.
And it's--again, as you--as you indicated, it's one of the
real foundational protections our system of government provides
for--especially for people accused of crimes, that there is
this intermediary between the government and them being
deprived of their liberty, and that's the jury.
Senator Whitehouse. Good. Well, I can't ask you to make any
promises or pledges about what you will do as a member of the
Ninth Circuit, but given what I think is that common and
accepted understanding of the role of jury, I hope that as you
serve the people of the Ninth Circuit in this role, assuming
that you are confirmed, that you will not view with equanimity
efforts that deprive people of access to the jury, given its
core constitutional role.
Can you just say a quick word about what you did as an
AUSA? I was a U.S. Attorney and I always admired the
professional staff that I had the chance to work with. Where
did you work, and what were you assigned to, and what did you
do?
Mr. Watford. Well, I was an Assistant U.S. Attorney in Los
Angeles for the Central District of California. The rotation we
have in that office, is you spend a year on what's called
Rookie Row, handling just pretty much anything that comes in
the door, all post-indictment cases.
Senator Whitehouse. Yes.
Mr. Watford. So I handled a wide, wide variety of----
Senator Whitehouse. Gun cases, drug cases, the sort of
standard----
Mr. Watford. Exactly.
Senator Whitehouse. Yes.
Mr. Watford. We then at that time moved into a section
called Complaints, where pretty much for about 6 months all you
did were search warrants, arrest warrants, indictments, that
kind of thing. You didn't actually try any cases. And after
that, I moved to the Major Fraud section, where I focused
primarily on white collar crime.
Senator Whitehouse. As a line prosecutor, not as an
appellate advocate?
Mr. Watford. That's right. That's right. We did have a
separate appellate section within the office, but I was not a
member of that section. I got to know the people quite well in
that section because I had a real strong interest even then in
appellate work and often asked to be assigned to additional
appeals.
Senator Whitehouse. Good. Well, I wish you well as you go
forward. I will ask unanimous consent that Chairman Leahy's
statement in support of your nomination be incorporated into
the record. Without objection, it will be.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Whitehouse. I turn to the distinguished Ranking
Member, Senator Grassley.
Senator Grassley. You signified you don't have any more
questions. If I take more than 10 minutes, or I mean more than
5 minutes, is that OK?
Senator Whitehouse. OK.
Senator Grassley. OK. Thank you.
Senator Whitehouse. We can have multiple rounds and I'll
just have not much in my round.
Senator Grassley. OK. OK. Well, I'm not saying you
shouldn't have. I just wanted to know. I know we want to get
this done quickly.
I want to ask some of your thinking about some of the
immigration cases that you've argued. On July 14th last year
you gave a speech on why the notable Arizona statutes were
unconstitutional.
This was in addition to your work as pro bono counsel for
the plaintiffs of Friendly House v. Whiting that opposed that
Arizona law. You also worked on a brief for Friendly House
plaintiffs in U.S. v. Arizona. In Friendly House v. Whiting you
argued the statute violated the First Amendment by making it
illegal for persons in the U.S. unlawfully to apply for work,
solicit employment, or accept any work in Arizona.
The District Court dismissed the claim, stating
``individuals who are unlawfully present in the United States
and unauthorized to work do not have a right to solicit work.''
So I have four questions that follow on this entry.
Could you explain your legal reasoning behind the argument
that prohibiting people here illegally from soliciting work is
a First Amendment violation?
Mr. Watford. Sure, Senator. I'd be happy to address that.
The work solicitation provisions there that we challenged in
the lawsuit were--they were in fact directed just at immigrants
who were unauthorized to work, but the arguments that were
presented there actually overlapped quite a bit with another
Ninth Circuit case.
The City of Redondo Beach case was another case directed
not specifically at people who were in the country unauthorized
to work, but who would gather at day laborer sites to try to
solicit work. There was quite an ongoing battle within the
Ninth Circuit over whether those types of laws, as a general
matter, violated the First Amendment.
Initially a panel of the Ninth Circuit ruled that those
laws were OK, and in fact when we first filed the complaint in
the Friendly House case we actually withdrew the First
Amendment claims in light of this recent Ninth Circuit panel
decision that came down.
What happened, though, was that the Ninth Circuit granted
en banc review in that case and ultimately reversed the three-
judge panel's decision. At that point we asked the judge to
reinstate the First Amendment claims, and I believe those
claims are now still pending.
I will be honest with you, Senator, my involvement in the
case lasted pretty much only through the filing of the
preliminary injunction motion. I was brought in at the request
of one of our senior partners at the firm, really to help him
think through the legal issues and to help edit that particular
brief.
Once we filed the preliminary injunction motion, however,
as you know, the United States filed its own action and at that
point the District Court really paid--focused all of its
attention on the Federal Government's suit.
Senator Grassley. OK. My second question in regard to that
opening I gave: what constitutional protections do you think
that undocumented persons should be afforded in U.S. courts?
Mr. Watford. Well, as a--I guess I won't try to offer any
kind of a personal view. I would obviously have to follow
whatever binding precedent was established by the Supreme Court
or the Ninth Circuit in addressing that question.
I don't know--I can't tell you off the top of my head the
full range of constitutional rights undocumented immigrants
might have, but I do know that at least with respect to the
preemption arguments that we made in the Friendly House suit,
that there is, at least under existing Supreme Court
precedent--I think there are strong arguments that an
individual State doesn't have the authority to set its own
immigration policy, and those are really--the preemption
arguments were the main focus of the lawsuit.
Senator Grassley. I think the most important part of the
answer you just gave me, if I could bring emphasis to it, is
that you feel very much compelled to follow Ninth--or Supreme
Court precedents as a member of the Ninth Circuit Court of
Appeals?
Mr. Watford. Absolutely.
Senator Grassley. And the reason I might say that, as you
probably know, and I don't know the exact figures, but one time
it was 37 out of 39 appeals from the Ninth Circuit went to the
Supreme Court that were overturned.
Mr. Watford. Yes.
Senator Grassley. And I would think people in the Ninth
Circuit wouldn't be particularly proud of that. But I don't
know how they feel about it, but that's just how I view it as a
non-lawyer.
Mr. Watford. Sure.
Senator Grassley. Following up then on the same
introduction I gave, do you believe States lack the right to
police their own borders and detain or investigate persons who
may be residing there illegally?
Mr. Watford. Well, again, let me just speak in terms of
what existing law provides. There are certain respects in which
States can cooperate with the Federal Government in enforcing
Federal immigration law. There's no question about that.
Congress has enacted several statutes that provide for the
mechanisms through which that kind of cooperation can take
place.
I think the arguments that we were making in the Friendly
House case, though, turned on the fact that Arizona was not
attempting to cooperate with the Federal Government, Arizona
felt--perhaps rightly--I don't take any position on that--that
the Federal Government's immigration policy was not working for
the State and therefore attempted to establish its own
immigration policy.
That is really the focus of the argument we made, is that
immigration policy has to be established at the national level.
That's what Congress has directed. It has allowed the States to
participate in the enforcement of immigration law, but only in
certain very narrow circumstances that didn't apply in the
Friendly House case.
Senator Grassley. OK. Following on the same introduction I
gave to this series of questions and getting to the point of
your decision to recuse or not recuse, the Supreme Court
recently agreed to hear the appeal on U.S. v. Arizona. Justice
Kagan recused herself, assumedly due to her work as Solicitor
General when the Federal Government originally filed the case.
If a challenge to a State immigration statute or practice
were to come before you in the Ninth Circuit, how would you
handle it, considering your past experiences litigating and
commenting on these cases? Would you recuse yourself?
Mr. Watford. Well, certainly if any aspect of the Arizona
law came back before the Ninth Circuit, and it may well, I
would certainly have to recuse myself from any involvement in
that case, I have no doubt about that. If another State passed
a very similar law that raised the same sorts of preemption
issues, I would have to consider very carefully whether to
recuse myself.
I know that there are statutes and codes of conduct that
govern that. The main question would be whether my impartiality
could reasonably be subject to question, and if it could I
would have no hesitation in recusing myself. I know that there
is a Committee within the Ninth Circuit that one can consult on
questions of that sort, and I would certainly take advantage of
that if the question came up.
Senator Grassley. Now I will defer to the Chairman. I've
got----
Senator Whitehouse. Go ahead.
Senator Grassley. I've only got one other series of
questions.
Senator Whitehouse. Go ahead.
Senator Grassley. Go ahead?
Senator Whitehouse. Proceed.
Senator Grassley. OK.
The brief filed by your client, Friendly House v. Whiting,
cited reaction from the international community to the passage
of the Senate bill--or this Arizona bill 1070. Specifically, it
noted two travel advisories enacted by Mexico and El Salvador
that said SB 1070 ``threatens basic notions of justice.''
So three follow-up questions to that introduction: do you
think the opinions of foreign leaders should have an impact on
judicial decisions in U.S. Federal courts?
Mr. Watford. No. As a general matter, no.
Senator Grassley. OK.
Then let me follow up then. Why did you include statements
by those foreign governments in your brief?
Mr. Watford. Well, I'm hesitating only because when you say
``why did I include them''----
Senator Grassley. OK.
Mr. Watford. My role really was to edit that brief.
Senator Grassley. OK.
Mr. Watford. I was not the principal drafter of it, so I
don't want to take responsibility, I guess, in my own right for
including them. But I can tell you that one of the arguments
that the United States made in its own motion and that echoed--
or our arguments echoed some of the arguments the United States
made, was that the reason immigration law needs to be
established at the national level is that it has very serious
foreign affairs or foreign relations implications, some of
those being, how are our citizens treated when they're in a
foreign country and don't have legal status, obviously, to be
here.
The concern, I think, was that if Arizona's law were
applied to the maximum extent it could be, there were folks who
were here in the country lawfully, right, who we had allowed
from other countries to come here and stay, either temporarily
or as permanent residents, who would be subjected to adverse
treatment under the law, and in return that could cause foreign
countries to retaliate against our citizens when our citizens
were in their countries.
Senator Grassley. OK.
Then I could add to that part of my question, taking off on
what you said. I'm sorry, I lost my train of thought.
Mr. Watford. OK.
Senator Grassley. So I may come back to it.
C, here. If the international community had an
overwhelmingly negative reaction to a challenge to a Federal or
State statute that found its way to your court, how strongly
would you consider the international community's opinion in
your decision-making process?
Mr. Watford. I would not consider the international
community's reaction in any way. What I would consider,
however, is if the United States itself, the Federal
Government, came in and said this law, or at least applications
of this law, are going to have serious foreign affairs
implications for our Nation, if the Federal Government
expressed that concern I think that is a relevant consideration
that needs to be taken into account in some situations, some
circumstances. But I don't think the fact that foreign leaders
themselves are voicing concerns, standing on its own, should
have any impact on a United States judge--a United States
judge--judge's decision.
Senator Grassley. I will submit some questions for answer
in writing, please.
Mr. Watford. OK.
Senator Grassley. And let me suggest to you, you'll
probably do it anyway, and answer them as forthrightly as you
can and as completely as you can. But sometimes, needlessly,
nominees are held up just because they don't answer questions
or answer them fully. So try to get that done. And even after
your nomination might go to the floor, you need to consider
that for members that maybe aren't on this Committee.
Mr. Watford. OK.
Senator Grassley. Although it doesn't happen too often, but
it does happen sometimes.
[The questions appear under the questions and answers.]
Senator Whitehouse. So just to--I'd like to just follow-up
briefly on the exchange that you just had with Senator
Grassley. Would it be fair to characterize your answer as
saying that as a judicial matter the opinion of foreign
governments carries no weight, but to the extent that as a
judge you would be evaluating the position, the authorities,
the determinations made by the executive branch of government,
you could take into account as a fact what the executive branch
is telling you about the consequences of actions or the
importance of whatever is happening internationally to the
discharge of executive authorities?
Mr. Watford. Yes. That is an exact summary of the position
I tried to articulate----
Senator Whitehouse. Yes.
Mr. Watford [continuing]. Maybe not as well as you did. And
Senator--Mr. Chairman, I would just add to that, I've been
involved in cases in which the courts have actually invited the
State Department to submit its views when a particular issue
came up that seemed to have very serious foreign affairs
implications. That's something that I've seen the courts do,
and it does seem to me that it's appropriate in that
circumstance.
Senator Whitehouse. Because there are times when the
Constitution obliges the judiciary to defer to the executive
branch of government, and at those times the opinion of the
executive branch of government is of significance, of
relevance.
Mr. Watford. That's exactly right.
Senator Whitehouse. And with respect to constitutional
rights for undocumented persons, when you were prosecuting
folks as an AUSA there was no separate standard for
undocumented persons with respect to their constitutional right
to a trial, the constitutional right to have search and seizure
restrictions, the various constitutional boundaries that
prosecutors operate within.
Mr. Watford. That's correct.
Senator Whitehouse. OK.
Senator Grassley. I remember now what I wanted to ask you
on that second part. You said you edited that document and
didn't write it. I don't know what authority editors have, but
would you have thought about at the time of saying that these
statements in regard to foreign points of view and foreign law
shouldn't have been--or in this case was travel advisories--
maybe shouldn't have been referenced?
Mr. Watford. I certainly could have. If that's what you're
asking, yes, I certainly could have in my role as an editor.
Senator Grassley. Yes. But you didn't find it important to
do that?
Mr. Watford. No, Senator, I did not. And as I said, the
reason for that is that the United States itself had asserted
there that there were foreign affairs implications that arose
from enforcement of this law and those statements that we
referenced, I think, in the brief were indicative of that.
Senator Grassley. OK. Thank you. And I'll appreciate
answers in writing.
Mr. Watford. Thank you, Senator.
Senator Whitehouse. Well, Mr. Watford, thank you. I
appreciate this. I would highlight, emphasize, and double
underline what Senator Grassley warned you about the importance
of prompt answers. The more quickly the written answers can be
provided to us, the more quickly your nomination can move
forward.
Let me congratulate you on your period of service to our
country. Let me hope that it is precedent to a longer period of
service to our country as a judge on the Ninth Circuit Court of
Appeals. As I said, you are as gold-plated on the record and on
your resume a candidate as one could hope for for United States
Circuit Court of Appeals judge. I think you've acquitted
yourself very well in this hearing and I look forward to
supporting your nomination as we go forward. May the rest of it
be as uneventful as today's hearing.
Thank you very much. We'll keep the record open for 1 week
in the event of any further questions or statements that
anybody wants to put into the record, but subject to that, the
hearing is adjourned.
[Whereupon, at 10:40 a.m. the hearing was adjourned.]
[The Biographical information, questions and answers and
submission follow.]
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