[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 ---------- 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 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 ---------- U.S. GOVERNMENT PRINTING OFFICE 74-981 PDF WASHINGTON : 2012 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin 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 ---------- 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 ---------- 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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 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.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]