[Senate Hearing 106-399]
[From the U.S. Government Publishing Office]




                                                 S. Hrg. 106-399, Pt. 1
 
             CONFIRMATION  HEARINGS ON FEDERAL APPOINTMENTS

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

          CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY

                               __________

          JUNE 16; JULY 13; JULY 29; SEPTEMBER 14; OCTOBER 7; 
                     OCTOBER 26, NOVEMBER 10, 1999

                               __________

                                 Part 1

                               __________

                          Serial No. J-106-33

                               __________

         Printed for the use of the Committee on the Judiciary



[[Page 2]]

                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                  (ii)

[[Page (iii)]]



                            C O N T E N T S

                              ----------                              

                             HEARING DATES

                                                                   Page

Wednesday, June 16, 1999.........................................     1
Tuesday, July 13, 1999...........................................    79
Thursday, July 29, 1999..........................................   145
Tuesday, September 14, 1999......................................   215
Thursday, October 7, 1999........................................   247
Tuesday, October 26, 1999........................................   365
Wednesday, November 10, 1999.....................................   431

                        WEDNESDAY, JUNE 16, 1999
                    Statements of Committee Members

Hatch, Hon. Orrin G..............................................     1
Kennedy, Hon. Edward M...........................................     2
Schumer, Hon. Charles E..........................................     7
Feinstein, Hon. Dianne...........................................    10
Feingold, Hon. Russell D. (prepared statements)..................    18
Leahy, Hon. Patrick J. (prepared statement)......................    19

                        Introduction of Nominees

Lott, Hon. Trent.................................................     3
Cochran, Hon. Thad...............................................     5
Moynihan, Hon. Daniel Patrick....................................     6
    Prepared statement...........................................    12
Dodd, Hon. Christopher J.........................................     8
Lieberman, Hon. Joseph I.........................................    10
Daschle, Hon. Tom................................................    13
Boxer, Hon. Barbara..............................................    13
    Prepared statement...........................................    14
Johnson, Hon. Tim................................................    15
Hutchison, Hon. Kay Bailey.......................................    16

                         Testimony of Nominees

Marsha S. Berzon, of California, to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................    21
    Questioning by:
        Senator Sessions.........................................    22
        Senator Leahy............................................    25
        Senator Hatch............................................    27
        Senator Smith............................................    29
Robert A. Katzmann, of New York, to be U.S. Circuit Judge for the 
  Second Circuit.................................................    22
    Questioning by:
        Senator Hatch............................................    26
        Senator Smith............................................    30
Keith P. Ellison, of Texas, to be U.S. District Judge for the 
  Southern District of Texas.....................................    37
    Questioning by Senator Hatch.................................    39
Gary Allen Feess, of California, to be U.S. District Judge for 
  the Central District of California.............................    37
    Questioning by Senator Hatch.................................    38

[[Page iv]]

William Allen Pepper, Jr., of Mississippi, to be U.S. District 
  Judge for the Northern District of Mississippi.................    37
    Questioning by Senator Hatch.................................    39
Karen E. Schreier, of South Dakota, to be U.S. District Judge for 
  the District of South Dakota...................................    37
    Questioning by Senator Hatch.................................    38
Stefan R. Underhill, of Connecticut, to be U.S. District Judge 
  for the District of Connecticut................................    37
    Questioning by Senator Hatch.................................    39
T. John Ward, of Texas, to be U.S. District Judge for the Eastern 
  District of Texas..............................................    37
    Questioning by Senator Hatch.................................    39

               Alphabetical List and Materials Submitted

Berzon, Marsha S.:
    Testimony....................................................    21
    Letters in support of Marsha S. Berzon's nomination..........    52
Ellison, Keith P.: Testimony.....................................    37
Feess, Gary Allen: Testimony.....................................    37
Katzmann, Robert A.: Testimony...................................    22
Pepper, William Allen, Jr.: Testimony............................    37
Schreier, Karen E.: Testimony....................................    37
Underhill, Stefan R.: Testimony..................................    37
Ward, T. John: Testimony.........................................    37

                         Questions and Answers

Responses of Marsha S. Berzon to questions from Senators:
    Abraham......................................................41, 44
    Ashcroft.....................................................    45
    Thurmond.....................................................    49
Responses of Robert A. Katzmann to questions from Senators:
    Thurmond.....................................................    56
    Sessions.....................................................    56
    Ashcroft.....................................................    57
Responses of Keith P. Ellison to questions from Senators:
    Hatch........................................................    59
    Smith........................................................    60
    Sessions.....................................................    60
Responses of Gary Feess to questions from Senators:
    Smith........................................................    62
    Sessions.....................................................    63
Responses of W. Allen Pepper, Jr., to questions from Senators:
    Hatch........................................................    64
    Sessions.....................................................64, 65
    Smith........................................................    66
Responses of Karen Schreier to questions from Senators:
    Smith........................................................    67
    Hatch........................................................    68
    Sessions.....................................................    68
Responses of Stefan R. Underhill to questions from Senators:
    Hatch........................................................    70
    Sessions.....................................................    70
    Smith........................................................    72
Responses of T. John Ward to questions from Senators:
    Sessions.....................................................73, 76
    Smith........................................................    77
    Hatch........................................................    78

                         TUESDAY, JULY 13, 1999
                    Statements of Committee Members

Hatch, Hon. Orrin G..............................................    79
Leahy, Hon. Patrick J. (prepared statement)......................    90
Feinstein, Hon. Dianne...........................................    96

[[Page v]]

                        Introduction of Nominees

Roberts, Hon. Pat................................................    80
Graham, Hon. Bob.................................................    81
    Article: An editorial on Mr. Wilson's behalf from the Tampa 
      Tribune entitled ``The Strong Case for Charles Wilson,'' 
      dated April 15, 1999.......................................    84
    Prepared statement...........................................    86
Mack, Hon. Connie................................................    88
    Prepared statement...........................................    89
Gorton, Hon. Slade...............................................    92
Murray, Hon. Patty...............................................    92
Boxer, Hon. Barbara..............................................    94
    Prepared statement...........................................    95
Brownback, Hon. Sam..............................................    96
    Prepared statement...........................................    97

                         Testimony of Nominees

Marsha J. Pechman, of Washington, to be U.S. District Judge for 
  the Western District of Washington.............................    98
    Questioning by:
        Senator Hatch............................................   102
        Senator Sessions.........................................   107
Carlos Murguia, of Kansas, to be U.S. District Judge for the 
  Western District of Washington.................................    98
    Questioning by:
        Senator Hatch............................................   101
        Senator Sessions.........................................   107
Adalberto Jose Jordan, of Florida, to be U.S. District Judge for 
  the Southern District of Florida...............................    99
    Questioning by:
        Senator Hatch............................................   101
        Senator Sessions.........................................   108
William Haskell Alsup, of California, to be U.S. District Judge 
  for the Northern District of Florida...........................    99
    Questioning by:
        Senator Hatch............................................   100
        Senator Sessions.........................................   109
Charles P. Wilson, of Florida, to be U.S. Circuit Judge for the 
  Eleventh Circuit...............................................    99
    Questioning by Senator Hatch.................................    99

                         Questions and Answers

Responses of Marsha J. Pechman to questions from Senators:
    Hatch........................................................   111
    Ashcroft.....................................................   112
    Sessions.....................................................   114
    Smith........................................................   114
Responses of Carlos Murguia to questions from Senators:
    Smith........................................................   115
    Sessions.....................................................   116
    Ashcroft.....................................................   117
    Hatch........................................................   119
Responses of Adalberto Jordan to questions from Senators:
    Hatch........................................................   121
    Sessions.....................................................   124
    Smith........................................................   126
    Ashcroft.....................................................   127
Responses of William Alsup to questions from Senators:
    Hatch........................................................   128
    Sessions.....................................................   131
    Ashcroft.....................................................   133
    Thurmond.....................................................   135
    Smith........................................................   135
Responses of Charles Wilson to questions from Senators:
    Sessions.....................................................   136
    Ashcroft.....................................................   138

[[Page vi]]

    Hatch........................................................   140
    Smith........................................................   143

                        THURSDAY, JULY 29, 1999
                    Statements of Committee Members

Hatch, Hon. Orrin G............................................145, 153
Feinstein, Hon. Dianne...........................................   145
    Prepared statement.........................................147, 148
Torricelli, Hon. Robert G........................................   155
Schumer, Hon. Charles E..........................................   156
Leahy, Hon. Patrick J. (prepared statement)......................   162

                        Introduction of Nominees

Boxer, Hon. Barbara..............................................   149
    Prepared statement...........................................   151
Campbell, Hon. Tom...............................................   152
Bennett, Hon. Robert F...........................................   154
Lautenberg, Hon. Frank R.........................................   159
Moynihan, Hon. Daniel Patrick (prepared statements)..............   161

                         Testimony of Nominees

Maryanne Trump Barry, of New Jersey, to be U.S. Circuit Judge for 
  the Third Circuit..............................................   163
    Questioning by:
        Senator Hatch............................................   164
        Senator Smith............................................   167
        Senator Sessions.........................................   170
Raymond C. Fisher, of California, to be U.S. Circuit Judge for 
  the Ninth Circuit..............................................   163
    Questioning by:
        Senator Hatch............................................   165
        Senator Smith............................................   167
        Senator Sessions.........................................   171
Naomi Reice Buchwald, of New York, to be U.S. District Judge for 
  the Southern District of New York..............................   175
    Questioning by Senator Hatch.................................   177
David N. Hurd, of New York, to be U.S. District Judge for the 
  Northern District of New York..................................   175
    Questioning by Senator Hatch.................................   177
M. James Lorenz, of California, to be U.S. District Judge for the 
  Southern District of California................................   176
    Questioning by Senator Hatch.................................   177
Victor Marrero, of New York, to be U.S. District Judge for the 
  Southern District of New York..................................   176
    Questioning by Senator Hatch.................................   178
Brian Theadore Stewart, of Utah, to be U.S. District Judge for 
  the District of Utah...........................................   176
    Questioning by:
        Senator Hatch............................................   178
        Senator Feingold.........................................   182

                         Questions and Answers

Responses of Theadore Stewart to questions from Senator Feingold.   187
    Theadore Stewart's positive environmental record.............   189
    Various letters in support of Theadore Stewart's nomination..   190

                      TUESDAY, SEPTEMBER 14, 1999
                    Statements of Committee Members

Kyl, Hon. Jon....................................................   215
Leahy, Hon. Patrick J. (prepared statement)......................   220

[[Page vii]]

Schumer, Hon. Charles F. (prepared statement)....................   221
Feinstein, Hon. Dianne...........................................   225

                        Introduction of Nominees

Boehlert, Hon. Sherwood L........................................   216
Moynihan, Hon. Daniel Patrick....................................   216
Gorton, Hon. Slade...............................................   216
Murray, Hon. Patty...............................................   217
Wyden. Hon. Ron..................................................   219
Cleland, Hon. Max................................................   222
Coverdell, Hon. Paul D. (prepared statement).....................   223
Norton, Hon. Eleanor Holmes......................................   224
Smith, Hon. Gordon...............................................   227
    Prepared statement...........................................   227
Boxer, Hon. Barbara (prepared statement).........................   228

                         Testimony of Nominees

Ronald M. Gould, of Washington, to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................   228
    Questioning by:
        Senator Kyl..............................................   228
        Senator Kohl.............................................   229
Anna J. Brown, of Oregon, to be U.S. District Judge for the 
  District of Oregon.............................................   231
    Questioning by:
        Senator Kyl..............................................   234
        Senator Kohl.............................................   235
Florence Marie Cooper, of California, to be U.S. District Judge 
  for the Central District of California.........................   232
    Questiong by:
        Senator Kyl..............................................   233
        Senator Kohl.............................................   235
Richard K. Eaton, of the District of Columbia, to be a Judge of 
  the U.S. Court of International Trade..........................   232
    Questioning by:
        Senator Kyl..............................................   234
        Senator Kohl.............................................   236
Ellen Segal Huvelle, of the District of Columbia, to be U.S. 
  District Judge for the District of Columbia....................   232
    Questioning by:
        Senator Kyl..............................................   234
        Senator Kohl.............................................   236
Charles A. Pannell, Jr., of Georgia, to be U.S. District Judge 
  for the Northern District of Georgia...........................   233
    Questioning by:
        Senator Kyl..............................................   234
        Senator Kohl.............................................   237

               Alphabetical List and Materials Submitted

Brown, Anna J.: Testimony........................................   231
Cooper, Florence Marie: Testimony................................   232
Eaton, Richard K.: Testimony.....................................   232
Gould, Ronald M.: Testimony......................................   228
Huvelle, Ellen Segal: Testimony..................................   232
Pannell, Charles A., Jr.: Testimony..............................   233

                         Questions and Answers

Responese of Ronald M. Gould to questions from Senator Smith.....   239
Responses of Anna J. Brown to questions from Senator Smith.......   240
Responses of Florence Marie Cooper to questions from Senator 
  Smith..........................................................   241
Responses of Richard K. Eaton to questions from Senators:
    Smith........................................................   242
    Kohl.........................................................   243
Responses of Ellen Segal Huvelle to questions from Senator Smith.   243

[[Page viii]]

Responses of Charles A. Pannell, Jr., to questions from Senator 
  Smith..........................................................   244

                       THURSDAY, OCTOBER 7, 1999
                    Statements of Committee Members

Hatch, Hon. Orrin G............................................247, 249
Thurmond, Hon. Strom.............................................   249
Durbin, Hon. Richard J...........................................   257
    Prepared statement...........................................   258
Leahy, Hon. Patrick J............................................   265
    Prepared statement...........................................   261
Schumer, Hon. Charles E. (prepared statement)....................   268
Kennedy, Hon. Edward M. (prepared statement).....................   268

                        Introduction of Nominees

Hutchison, Hon. Kay Bailey.......................................   250
Gramm, Hon. Phil.................................................   251
Frost, Hon. Martin...............................................   252
Wellstone, Hon. Paul.............................................   252
    Prepared statement...........................................   252
Grams, Hon. Rod..................................................   253
Warner, Hon. John (prepared statement)...........................   254
Thompson, Hon. Fred..............................................   255
Frist, Hon. Bill.................................................   256
Fitzgerald, Hon. Peter G. (prepared statements)..................   259

                         Testimony of Nominees

Richard Linn, of Virginia, to be U.S. Circuit Judge for the 
  Federal Circuit................................................   263
    Questioning by:
        Senator Thurmond.........................................   265
        Senator Leahy............................................   266
Ronald A. Guzman, of Illinois, to be U.S. District Judge for the 
  Northern District of Illinois..................................   264
    Questioning by:
        Senator Thurmond.........................................   265
        Senator Leahy............................................   266
William J. Haynes, Jr., of Tennessee, to be U.S. District Judge 
  for the Middle District of Tennessee...........................   264
    Questioning by:
        Senator Thurmond.........................................   265
        Senator Leahy............................................   267
Barbara M. Lynn, of Texas, to be U.S. District Judge for the 
  Northern District of Texas.....................................   264
    Questioning by:
        Senator Thurmond.........................................   265
        Senator Leahy............................................   267
Diana E. Murphy, of Minnesota, to be U.S. Sentencing Commission 
  Member and Chair...............................................   271
    Questioning by:
        Senator Thurmond.........................................   273
        Senator Abraham..........................................   276
Ruben Castillo, of Illinois, to be U.S. Sentencing Commission 
  Member.........................................................   271
    Questioning by:
        Senator Thurmond.........................................   274
        Senator Abraham..........................................   279
Sterling R. Johnson, Jr., of New York, to be U.S. Sentencing 
  Commission Member..............................................   271
    Questioning by:
        Senator Thurmond.........................................   275
        Senator Abraham..........................................   278
Elton J. Kendall, of Texas, to be U.S. Sentencing Commission 
  Member.........................................................   271
    Questioning by:
        Senator Thurmond.........................................   274
        Senator Abraham..........................................   278
Michael E. O'Neill, of Maryland, to be U.S. Sentencing Commission 
  Member.........................................................   272

[[Page ix]]

    Questioning by:
        Senator Thurmond.........................................   273
        Senator Abraham..........................................   278
William K. Sessions, III, of Vermont, to be U.S. Sentencing 
  Commission Member..............................................   272
    Questioning by:
        Senator Thurmond.........................................   273
        Senator Abraham..........................................   277
John R. Steer, of Virginia, to be U.S. Sentencing Commission 
  Member.........................................................   272
    Questioning by:
        Senator Thurmond.........................................   273
        Senator Abraham..........................................   277

               Alphabetical List and Materials Submitted

Castillo, Ruben: Testimony.......................................   271
Guzman, Ronald A.: Testimony.....................................   264
Haynes, William J., Jr.: Testimony...............................   264
Johnson, Sterling R., Jr.: Testimony.............................   271
Kendall, Elton J.: Testimony.....................................   271
Leahy, Hon. Patrick J.: Letter from Judge William W. Wilkins, 
  Jr., to Senators Hatch and Leahy in support of the nominees for 
  the Sentencing Commission, dated Oct. 4, 1999..................   290
Linn, Richard: Testimony.........................................   263
Lynn, Barbara M.: Testimony......................................   264
Murphy, Diana E.: Testimony......................................   271
O'Neill, Michael E.: Testimony...................................   272
Sessions, William K., III: Testimony.............................   272
Steer, John R.: Testimony........................................   272

                         Questions and Answers

Responses of Richard Linn to questions from Senators:
    Smith........................................................   293
    Grassley.....................................................   295
Responses of Ronald A. Guzman to questions from Senator Smith....   296
Responses of William J. Haynes to questions from Senator Smith...   298
Responses of Barbara M. Lynn to questions from Senator Smith.....   299
Responses of Diana E. Murphy to questions from Senators:
    Abraham......................................................   301
    Hatch........................................................   304
    Grassley.....................................................   305
Responses of Ruben Castillo to questions from Senators:
    Abraham......................................................   308
    Hatch........................................................   309
    Grassley.....................................................   310
Responses of Sterling R. Johnson Jr. to questions from Senators:
    Abraham......................................................   312
    Hatch........................................................   313
    Grassley.....................................................   314
Responses of Elton J. Kendall to questions from Senators:
    Hatch........................................................   320
    Grassley.....................................................   321
    Abraham......................................................   322
Responses of Michael E. O'Neill to questions from Senators:
    Hatch........................................................   338
    Grassley.....................................................   339
    Abraham......................................................   340
Responses of William K. Sessions, III to questions from Senators:
    Abraham......................................................   342
    Hatch........................................................   345
    Grassley.....................................................   346
Responses of John R. Steer to questions from Senators:
    Abraham......................................................   352
    Hatch........................................................   363
    Grassley.....................................................   364

[[Page x]]

                       TUESDAY, OCTOBER 26, 1999
                    Statements of Committee Members

Thurmond, Hon. Strom.............................................   365
Feinstein, Hon. Dianne...........................................   368
Leahy, Hon. Patrick J. (prepared statement)......................   369
Torricelli, Hon. Robert G........................................   373
Durbin, Hon. Richard J...........................................   374
Abraham, Hon. Spencer............................................   380

                        Introduction of Nominees

Nickles, Hon. Don................................................   366
Lautenberg, Hon. Frank...........................................   367
Inhofe, Hon. James M.............................................   368
Boxer, Hon. Barbara..............................................   371
    Prepared statement...........................................   372
Fitzgerald, Hon. Peter...........................................   376
    Prepared statement...........................................   376
Calvert, Hon. Ken................................................   377
    Prepared statement...........................................   377

                         Testimony of Nominees

Anne Claire Williams, of Illinois, to be U.S. Circuit Court Judge 
  for the Seventh Circuit........................................   379
    Questioning by:
        Senator Thurmond.........................................   382
        Senator Feinstein........................................   384
        Senator Torricelli.......................................   389
Faith S. Hochberg, of New Jersey, to be U.S. District Court Judge 
  for the District of New Jersey.................................   380
    Questioning by:
        Senator Thurmond.........................................   383
        Senator Feinstein........................................   385
        Senator Torricelli.......................................   387
Frank H. McCarthy, of Oklahoma, to be U.S. District Court Judge 
  for the Northern District of Oklahoma..........................   381
    Questioning by:
        Senator Thurmond.........................................   383
        Senator Feinstein........................................   386
        Senator Torricelli.......................................   389
Virginia A. Phillips, of California, to be U.S. District Court 
  Judge for the Central District of California...................   381
    Questioning by:
        Senator Thurmond.........................................   383
        Senator Feinstein........................................   386
        Senator Torricelli.......................................   389

               Alphabetical List and Materials Submitted

Durbin, Hon. Richard J.: Prepared statement from Congressman 
  Bobby L. Rush in support of nominee, Judge Anne Claire Williams   374
Feinstein, Hon. Dianne: Letter from Judge Terrance J. Hatter, 
  Jr., to Senators Hatch and Leahy in support of nominee, 
  Virginia Phillips, dated Sept. 17, 1999........................   370
Hochberg, Faith S.: Testimony....................................   380
McCarthy, Frank H.: Testimony....................................   381
Phillips, Virginia A.: Testimony.................................   381
Williams, Anne Claire: Testimony.................................   379

                         Questions and Answers

Responses of Anne C. Williams to questions from Senator Smith....   391
Responses of Faith S. Hochberg to questions from Senator Smith...   395
Responses of Frank H. McCarthy to questions from Senators:
    Thurmond.....................................................   399

[[Page xi]]

    Ashcroft.....................................................   399
    Smith........................................................   399
Responses of Virginia A. Phillips to questions from Senator Smith   403

                       Submissions for the Record

Numerous letters in support of nominee, Virginia A. Phillips.....   407

                      WEDNESDAY, NOVEMBER 10, 1999
                    Statements of Committee Members

Hatch, Hon. Orrin G..............................................   431
Feinstein, Hon. Dianne...........................................   438
Biden, Hon. Joseph R., Jr........................................   441
Schumer, Hon. Charles E..........................................   444

                        Introduction of Nominees

Smith, Hon. Gordon...............................................   432
Rangel, Hon. Charles B...........................................   433
Moynihan, Hon. Daniel Patrick....................................   434
Conrad, Hon. Kent................................................   434
Dorgan, Hon. Byron L.............................................   436
Pomeroy, Hon. Earl...............................................   436
Lautenberg, Hon. Frank R.........................................   437
Boxer, Hon. Barbara (prepared statement).........................   439
Roth, Hon. William V., Jr........................................   448

                         Testimony of Nominees

Thomas L. Ambro, of Delaware, to be U.S. Circuit Judge for the 
  Third Circuit..................................................   445
    Questioning by:
        Senator Hatch............................................   447
        Senator Biden............................................   458
Kermit E. Bye, of North Dakota, to be U.S. Circuit Judge for the 
  Eighth Circuit.................................................   445
    Questioning by:
        Senator Hatch............................................   447
        Senator Biden............................................   457
George B. Daniels, of New York, to be U.S. District Judge for the 
  Southern District of New York..................................   446
    Questioning by:
        Senator Hatch............................................   448
        Senator Biden............................................   457
Joel A. Pisano, of New Jersey, to be U. S. District Judge for the 
  District of New Jersey.........................................   446
    Questioning by:
        Senator Hatch............................................   449
        Senator Biden............................................   457
Fredric D. Woocher, of California, to be U.S. District Judge for 
  the Central District of California.............................   446
    Questioning by:
        Senator Hatch............................................   451
        Senator Biden............................................   456

               Alphabetical List and Materials Submitted

Ambro, Thomas L.: Testimony......................................   445
Bye, Kermit E.: Testimony........................................   445
Daniels, George B.: Testimony....................................   446
Pisano, Joel A.: Testimony.......................................   446
Woocher, Fredric D.: Testimony...................................   446

[[Page xii]]

                         Questions and Answers

Responses of Thomas L. Ambro to questions from Senators:
        Hatch....................................................   462
        Thurmond.................................................   465
        Smith....................................................   465
Responses of Kermit E. Bye to questions from Senators:
        Hatch....................................................   468
        Thurmond.................................................   471
        Smith....................................................   471
Responses of George B. Daniels to questions from Senators:
        Hatch....................................................   474
        Smith....................................................   476
        Thurmond.................................................   479
Responses of Joel A. Pisano to questions from Senators:
        Hatch....................................................   479
        Thurmond.................................................   483
        Smith....................................................   484
Responses of Fredric D. Woocher to questions from Senators:
        Hatch....................................................   486
        Thurmond.................................................   493
        Smith....................................................   494

         ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS

William Haskell Alsup, of California, to be U.S. District Judge 
  for the Northern District of Florida...........................    99
Thomas L. Ambro, of Delaware, to be U.S. Circuit Judge for the 
  Third Circuit..................................................   445
Maryanne Trump Barry, of New Jersey, to be U.S. Circuit Judge for 
  the Third Circuit..............................................   163
Marsha S. Berzon, of California, to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................    21
Anna J. Brown, of Oregon, to be U.S. District Judge for the 
  District of Oregon.............................................   231
Naomi Reice Buchwald, of New York, to be U.S. District Judge for 
  the Southern District of New York..............................   175
Kermit E. Bye, of North Dakota, to be U.S. Circuit Judge for the 
  Eighth Circuit.................................................   445
Ruben Castillo, of Illinois, to be U.S. Sentencing Commission 
  Member.........................................................   271
Florence Marie Cooper, of California, to be U.S. District Judge 
  for the Central District of California.........................   232
George B. Daniels, of New York, to be U.S. District Judge for the 
  Southern District of New York..................................   446
Richard K. Eaton, of the District of Columbia, to be a Judge of 
  the U.S. Court of International Trade..........................   232
Keith P. Ellison, of Texas, to be U.S. District Judge for the 
  Southern District of Texas.....................................    37
Gary Allen Feess, of California, to be U.S. District Judge for 
  the Central District of California.............................    37
Raymond C. Fisher, of California, to be U.S. Circuit Judge for 
  the Ninth Circuit..............................................   163
Ronald M. Gould, of Washington, to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................   228
Ronald A. Guzman, of Illinois, to be U.S. District Judge for the 
  Northern District of Illinois..................................   264
William J. Haynes, Jr., of Tennessee, to be U.S. District Judge 
  for the Middle District of Tennessee...........................   264
Faith S. Hochberg, of New Jersey, to be U.S. District Court Judge 
  for the District of New Jersey.................................   380
David N. Hurd, of New York, to be U.S. District Judge for the 
  Northern District of New York..................................   175
Ellen Segal Huvelle, of the District of Columbia, to be U.S. 
  District Judge for the District of Columbia....................   232
Sterling R. Johnson, Jr., of New York, to be U.S. Sentencing 
  Commission Member..............................................   271
Adalberto Jose Jordan, of Florida, to be U.S. District Judge for 
  the Southern District of Florida...............................    99

[[Page xiii]]

Robert A. Katzmann, of New York, to be U.S. Circuit Judge for the 
  Second Circuit.................................................    22
Elton J. Kendall, of Texas, to be U.S. Sentencing Commission 
  Member.........................................................   271
Richard Linn, of Virginia, to be U.S. Circuit Judge for the 
  Federal Circuit................................................   263
M. James Lorenz, of California, to be U.S. District Judge for the 
  Southern District of California................................   176
Barbara M. Lynn, of Texas, to be U.S. District Judge for the 
  Northern District of Texas.....................................   264
Victor Marrero, of New York, to be U.S. District Judge for the 
  Southern District of New York..................................   176
Frank H. McCarthy, of Oklahoma, to be U.S. District Court Judge 
  for the Northern District of Oklahoma..........................   381
Carlos Murguia, of Kansas, to be U.S. District Judge for the 
  Western District of Washington.................................    98
Diana E. Murphy, of Minnesota, to be U.S. Sentencing Commission 
  Member and Chair...............................................   271
Michael E. O'Neill, of Maryland, to be U.S. Sentencing Commission 
  Member.........................................................   272
Charles A. Pannell, Jr., of Georgia, to be U.S. District Judge 
  for the Northern District of Georgia...........................   233
Marsha J. Pechman, of Washington, to be U.S. District Judge for 
  the Western District of Washington.............................    98
William Allen Pepper, Jr., of Mississippi, to be U.S. District 
  Judge for the Northern District of Mississippi.................    37
Virginia A. Phillips, of California, to be U.S. District Court 
  Judge for the Central District of California...................   381
Joel A. Pisano, of New Jersey, to be U.S. District Judge for the 
  District of New Jersey.........................................   446
William K. Sessions, III, of Vermont, to be U.S. Sentencing 
  Commission Member..............................................   272
Karen E. Schreier, of South Dakota, to be U.S. District Judge for 
  the District of South Dakota...................................    37
John R. Steer, of Virginia, to be U.S. Sentencing Commission 
  Member.........................................................   272
Brian Theadore Stewart, of Utah, to be U.S. District Judge for 
  the District of Utah...........................................   176
Stefan R. Underhill, of Connecticut, to be U.S. District Judge 
  for the District of Connecticut................................    37
T. John Ward, of Texas, to be U.S. District Judge for the Eastern 
  District of Texas..............................................    37
Anne Claire Williams, of Illinois, to be U.S. Circuit Court Judge 
  for the Seventh Circuit........................................   379
Charles P. Wilson, of Florida, to be U.S. Circuit Judge for the 
  Eleventh Circuit...............................................    99
Fredric D. Woocher, of California, to be U.S. District Judge for 
  the Central District of California.............................   446

[[Page (1)]]





                          JUDICIAL NOMINATIONS

                              ----------                              - 


                        WEDNESDAY, JUNE 16, 1999

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 2:59 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, chairman of the committee, presiding.
    Present: Senators Hatch, Thurmond, Sessions, Smith, Leahy, 
Kennedy, Feinstein, and Schumer.
    The Chairman. We are just a minute early, but I think we 
will start, anyway. How is that?
    Today we are holding a judicial nominations hearing for 
eight nominees--that is rather rare--two circuit nominees and 
six district court nominees. Now, this hearing follows the 
committee's approval of two judges earlier this year, and I 
note this hearing is approximately 3 months earlier in the year 
than the first hearing for circuit and district court nominees 
in 1993, when I was in the minority on this committee. Also, I 
note that there was only one hearing for circuit and district 
court nominees in all of 1993.
    It is my expectation that the work of the committee will 
continue at a reasonable pace throughout this year. This is 
important work and I take it seriously, and we will continue to 
do our best.
    Of course, the committee cannot approve nominees that have 
not been sent to us by the President. As the Chief Justice 
noted in his most recent report on the judicial branch: The 
entire Sentencing Commission is vacant. We have seven seats 
that are still vacant, and not a single nomination has been 
made. Without any commissioners, no Sentencing Guidelines can 
be passed for new criminal statutes, no modifications can be 
made to existing guidelines to address issues raised by the 
courts. So I look forward to working with the President and 
others to ensure that this important Commission can obtain a 
slate of Commissioners and get back to work this year.
    Together, Senator Leahy and I have ensured that the 
President's nominees receive a fair hearing and that Federal 
courts are adequately staffed to perform their constitutional 
function. This committee has been instrumental in the Senate's 
confirmation of 306 judicial nominees and over 200 other 
nominees by President Clinton. By conducting thorough but 
expeditious reviews of nominees and by holding hearings, we 
should be able to keep the number of vacancies from inhibiting 
the work of the Federal courts and other bodies.
    I am confident that by the end of this session the 
committee will have done a fair and even-handed job of 
evaluating and approving

[[Page 2]]

judicial nominees just as it has done in previous years. I look 
forward to working with my colleagues on the committee to 
accomplish this.
    Now, today we have three panels. The first panel will 
consist of the sponsors of the nominees who will make short 
statements on behalf of their nominees. The second panel will 
consist of the two circuit court nominees, and the third panel 
will consist of the six district court nominees.
    So if I could call those who are going to speak for the 
judges forward. Senator Lott and others, if you will take your 
seats here, we would appreciate it.
    Excuse me. Senator Kennedy is here. We will be glad to turn 
to him.
    Senator Kennedy. Thank you, Mr. Chairman. I wanted to 
express my appreciation for scheduling the hearing, and we look 
forward to our pending nominees. I am particularly pleased that 
the nominations of Marsha Berzon and John Ward and Karen 
Schreier are among those we will be reviewing today.
    Ms. Berzon is an outstanding attorney with an impressive 
record. She has written more than 100 briefs and petitions to 
Supreme Court, argued several cases there. When she was first 
nominated last year, she received strong recommendations and 
had a bipartisan list of supporters, including our former 
colleague, Senator Jim McClure. Fred Alvarez, a Commissioner on 
the Equal Employment Opportunity Commission and Assistant 
Secretary of Labor under President Reagan, supports here. I 
hope we can move expeditiously on her nomination. It was first 
received in the committee in January 1998, and she has answered 
numerous questions on a wide range of topics during a previous 
hearing and in writing.
    John Ward has over 30 years of legal experience, 20 years 
as a founding and managing partner of his own law firms. He has 
conducted 150 full trials in Federal and State courts. He has 
extensive experience in civil jury trials and also as a county 
prosecutor.
    Karen Schreier is a distinguished United States Attorney 
for the District of South Dakota, confirmed to that position by 
the Senate. She has served for 6 years representing the United 
States as both plaintiff and defendant in Federal court in 
South Dakota. She manages the U.S. Attorney's Office, 
supervises a staff of over 20 Federal prosecutors. She has also 
assisted Congress on numerous occasions, testifying in House 
and Senate hearings on important issues involving juvenile 
crime.
    We know the magnitude of the task before us. There are 
currently 65 vacant judgeships in the Federal judiciary; 12 
additional vacancies are likely to open up in the coming months 
when more and more judges retire from the Federal bench. Of the 
65 current vacancies, 28 have now been classified as judicial 
emergencies by the Judicial Conference of the United States, 
which means they have been vacant for 18 months or more. In the 
District of Western Pennsylvania, one position has been vacant 
since November 1994, four and a half years, inexcusably long by 
any standard.
    So I want to commend you, Mr. Chairman, for having the 
hearing. I look forward to working with you so we deal 
effectively with the backlog and meet our constitutional 
responsibilities in the confirmation process.

[[Page 3]]

    I thank the Chair.
    The Chairman. Well, thank you, Senator Kennedy.
    I think we will turn to the distinguished Majority Leader 
first and then Senator Cochran and then, if I could, I will 
turn to the distinguished Senator from New York. I will try and 
do this, if I can, on a seniority basis. If Senator Daschle 
arrives, we will interrupt and allow him to make his speech 
because we know our Leaders have a lot to do in addition to all 
of us, but we will show that kind of deference.
    So, Senator Lott, we are happy to hear from you.

STATEMENT OF HON. TRENT LOTT, A UNITED STATES SENATOR FROM THE 
                      STATE OF MISSISSIPPI

    Senator Lott. Thank you, Mr. Chairman, Senator Kennedy, 
Senator Leahy, and my colleagues here in the panel. I was just 
noting to Senator Lieberman and Senator Dodd--
    The Chairman. Senator Lott, if I can interrupt you, the 
ranking member is here and he wants to make his statement.
    Senator Leahy. No, no. That is all right. I am just so 
excited to be at the first confirmation hearing this year, the 
longest the Senate has ever gone in history, at least in the 25 
years I have been here. I am so excited that I really wanted to 
be here and see this.
    I will give a statement. I don't want to hold up this 
distinguished panel, all of whom are good friends.
    Senator Lott. Thank you, Senator Leahy. And, Mr. Chairman, 
again, I was just saying with this panel, if we could do a 
little legislative business while we were here, there is no 
telling what we could get done right here at this table.
    [Laughter.]
    The Chairman. This is a good bunch to do it with.
    Senator Lott. I appreciate my senior colleague from 
Mississippi for allowing me to go ahead and get started. It is 
a great honor for me today to be here and introduce to the 
committee the President's nominee to the U.S. District Court in 
the Northern District of Mississippi, Mr. William Allen Pepper, 
Jr. He has his wife, Ginger, here with him; his son, William 
Allen Pepper III; his sister, who is one of his greatest 
assets, Lou Anne Cossar, and her husband. I don't know what 
your protocol is here, but I am very proud of this family, and 
I would like to ask them if they would to stand and be 
recognized. Here they are right here.
    The men may not look like much, but the ladies compensate.
    [Laughter.]
    Senator Lott. Let me just say, I would ask, Mr. Chairman, 
that my statement be put in the record.
    The Chairman. Without objection, we will do that.
    Senator Lott. I have known Allen Pepper since 1959. I 
remember the night we met. We were at the same place as 
freshmen, and we wound up around the piano singing. And we sang 
together for the next four years in a quartet--a quartet I 
might say, to your great relief, I am sure, one that was better 
than the singing Senators that we now sing with. He became my 
roommate for 3 years at the University of Mississippi. I have 
known him then and over the years to be one of the most 
honorable men I have ever met in my life. That is the life he 
lived even in the college days, and that is

[[Page 4]]

the one he continues to live in an exemplary way in Cleveland, 
Mississippi.
    He has had quite a distinguished career. After he 
graduated, he did go off and serve 2 years in the 101st 
Airborne in the Army. He returned and got his law degree from 
the University of Mississippi Law School. He has had a very 
active practice. In fact, he calls me quite regularly and says, 
well, I am representing another one of your criminal relatives, 
wanting to know what he should do with them, and I say, Well, 
just get them out of jail and do the best you can.
    But he was one of those sole practitioners that you don't 
have a lot of anymore in a small town. He was in this solo 
practice for 26 years. He had a significant solo litigation 
practice. Yes, Senator Kennedy, he was a trial lawyer. As a 
matter of fact, he was president of the Mississippi Trials 
Lawyers Association, but he worked with the Bar Association as 
a whole, served in a number of positions there, was actually 
nominated to be president of the Bar Association. He was the 
director of the Young Lawyers Group, president of the 
Mississippi Bar Foundation. He was a leader in the Mississippi 
pro bono project. He was very active with the university there 
at Cleveland, Delta State University.
    He served as an elected official. He was elected as a 
Democrat to be an elections commissioner in Bolivar County. He 
also served for a number of years, maybe as many as 12 years, 
as the attorney for the Board of Education in that county.
    He has all the usual civic activities and Lions Club to 
Junior Auxiliary activities, but he is the kind of person that 
we need to have serve on the bench. He has had a diversity of 
practice. He has been very much involved in his community and 
his State, and he is a man of the highest possible integrity. 
And so even though he has this one blot on his record of being 
my former roommate and closest friend probably I have had in my 
life, I am very proud that President Clinton has selected him 
as his nominee for this vacancy and on the U.S. court in the 
Northern District of Mississippi.
    Thank you for allowing me to be here with my colleague, 
Senator Cochran.
    [The prepared statement of Senator Lott follows:]
    The Chairman. Thank you, Mr. Leader. We will certainly turn 
to Senator Cochran. That is very high praise for Mr. Pepper, 
and we really appreciate having your testimony here today.
    Senator Cochran?

 STATEMENT OF HON. THAD COCHRAN, A UNITED STATES SENATOR FROM 
                    THE STATE OF MISSISSIPPI

    Senator Cochran. Mr. Chairman, it is a pleasure to join my 
colleague in presenting and recommending to this committee 
Allen Pepper to be a United States district judge. He is very 
well qualified. As a lawyer, he has earned the highest rating 
that Martindale-Hubbell gives a practicing attorney. He is a 
person who has shown that he has the respect of the fellow 
members of the bar with whom he has practiced and worked. He 
has been chairman of the Lamar Order of the University of 
Mississippi Law Alumni Association, one of the most prestigious 
positions in our State.

[[Page 5]]

    Senator Lott has also pointed out already that he has been 
president of the Mississippi Bar Foundation, another position 
for which he was selected by his fellow lawyers.
    He has been one of the most civic-minded attorneys in his 
home town of Cleveland, Mississippi. He has served in positions 
of responsibility, as director of a leading bank in Cleveland. 
He has headed up charitable fund-raising activities. He is 
looked to for leadership in a number of important activities. 
In education locally and in local political life of his 
community, he has been a leader and an influence for good and 
stable government in that part of our State.
    So it is a pleasure for me to recommend him. I can't match 
the close relationship that my colleague has had. I am glad 
that Allen has overcome those early relationships that he had 
at the University of Mississippi.
    [Laughter.]
    Senator Cochran. Frankly, I did meet him when he was a 
student there in 1961. I recall meeting him, and he was 
introduced to me as the brother of Lou Anne Pepper. Well, I 
knew right away he had to be a person of intelligence and 
ability because she was at that time one of the most popular 
and visible television stars in Mississippi, a person of great 
charm and intelligence and great talent. So I knew that Allen 
Pepper had to be somebody you had to take very seriously, and 
he turned out to be just that.
    So it is a pleasure for us to recommend him to the 
committee, and we hope that the committee will report him 
favorably to the Senate for confirmation.
    The Chairman. Thank you, Senator Cochran. You both have 
things to do. We will be happy to release you at this time, but 
we will certainly move ahead with this nominee.
    Senator Leahy. We can't ask him a whole lot of questions?
    The Chairman. No, no.
    Senator Cochran. Ask about the rule in Shelley's case.
    [Laughter.]
    The Chairman. I said the rule against perpetuities.
    Senator Lott. Let me just say one final point I left out. I 
have never known a nominee for the Federal court system that 
had broader breadth of support than I have heard exhibited on 
behalf of this nominee. It comes from leaders of the Democratic 
Party, elected officials across the State, across the spectrum, 
Republican leaders, leaders in the African American community. 
His selection was met with universal approval and a feeling 
that he would make an excellent judge. So I just wanted to add 
that one additional point.
    The Chairman. Thank you, Mr. Leader.
    Senator Thurmond. You both favor him.
    Senator Lott. Yes, sir.
    Senator Thurmond. We can't turn him down, then.
    Senator Lott. Thank you, Supreme Commander.
    The Chairman. I think that is something--
    Senator Leahy. Don't argue with that, Trent.
    The Chairman. We are proud to have both of you here 
speaking.
    We will turn to Senator Moynihan and then Senator Schumer, 
and then we will turn to Senator Dodd after that.

[[Page 6]]

  STATEMENT OF HON. DANIEL PATRICK MOYNIHAN, A UNITED STATES 
               SENATOR FROM THE STATE OF NEW YORK

    Senator Moynihan. Thank you, Mr. Chairman, Senator Leahy, 
and distinguished members of the committee. I have the honor 
and great personal pleasure to introduce to this committee a 
brilliant lawyer and scholar, Professor Robert A. Katzmann, the 
Walsh Professor of Government and Professor of Law at 
Georgetown University. He comes to you as the nominee for the 
Second Circuit Court of Appeals.
    Upon his nomination, I stated that ``Robert Katzmann is the 
finest lawyer/scholar of his generation. He will serve the 
court of Learned Hand with honor and distinction.''
    His distinctions began early, sir. He graduated summa cum 
laude from Columbia, took his master's and Ph.D. at Harvard in 
government, and has his juris doctor from Yale Law School, 
where he was article editor of the Law Journal. After clerking 
in the U.S. Court of Appeals for the First Circuit, he joined 
the Brookings Institution and has been there at Georgetown 
since.
    He is the author of many books. A citation from the 
University of Oregon captures the spirit of his work. It says: 
``He has committed himself to interdisciplinary research that 
is often applied rather than pure academic scholarship. That 
work seeks to make a `real world' difference.'' A principal 
thrust in his career has been a concern with the practical 
aspects of the legal system. An example of his involvement over 
the past decades, the Federal Judicial Center asked him to 
bring to fruition a project on managing appeals in Federal 
court. The result was ``Managing Appeals in Federal Court,'' 
the leading study of its kind, as I believe.
    A major focus of his career has been a project to enhance 
the understanding between the judicial and the legislative 
branches, as explained in his recent book, ``Courts and 
Congress.''
    Judge Diarmuid O'Scannlain of the U.S. Court of Appeals for 
the Ninth Circuit described this book as ``most timely and 
insightful'', indeed, ``must reading.''
    I believe, sir, you would recall that more than a year ago 
we met with you and your staff to discuss one of his projects, 
an effort whereby court opinions identifying perceived problems 
in statutes are sent from the courts of appeal to Congress for 
its review. The project holds the promise of enhancing mutual 
understanding of how the judiciary interprets legislation.
    May I finally say, sir, apart from his professional 
accomplishments, on a personal note, I can attest to his 
unquestioned integrity and fairness. I thank you for your great 
courtesy.
    [The prepared statement of Senator Moynihan follows:]
    The Chairman. Thank you, Senator Moynihan. I appreciate the 
high praise that you have given.
    Senator Schumer, on this nominee?

 STATEMENT OF HON. CHARLES E. SCHUMER, A UNITED STATES SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman, and I would like 
to take this opportunity to commend you for holding this 
hearing and add to the introductions and praise for Professor 
Katzmann as well as Marsha Berzon.

[[Page 7]]

    I can hardly hope to match the eloquence of my colleague or 
the erudition from New York's Senator Moynihan, so I shall not 
try. I simply want to commend him for recommending the 
nomination of such a fine candidate for the Second Circuit as 
Robert Katzmann, and I look forward to working with you, Mr. 
Chairman, to bring Dr. Katzmann's nomination to the floor and 
for his eventual confirmation.
    Dr. Katzmann's extensive research and writing and works on 
matters relating to the Federal judiciary are indeed 
impressive. Senator Moynihan has catalogued some of the works 
of Dr. Katzmann, although in all modesty he left out my 
favorite, which was his recent book entitled ``Daniel Patrick 
Moynihan: The Intellectual in Public Life.''
    [Laughter.]
    Senator Schumer. I would also like to join Senators 
Feinstein and Moynihan in reintroducing you to Marsha Siegel 
Berzon. Although she is now a Californian and has been 
nominated to serve on the Ninth Circuit, Ms. Berzon grew up in 
a place I know pretty well, Brooklyn, New York, my home town, 
and then she moved to Long Island and East Meadow, ultimately 
graduating from East Meadow High School, and her affiliation 
with New York also includes study at Columbia University and 
service as a distinguished practitioner in residence at Cornell 
University Law School in Ithaca. And we New Yorkers are glad to 
be able to claim Ms. Berzon as one of our own as well as a 
Californian because she is an extremely well regarded appellate 
litigator and scholar. And we also like the idea of putting 
native New Yorkers on the bench outside our great State. It 
stands to improve the quality of justice in the country.
    Anyway, in the interest of time--
    The Chairman. Don't make it rougher than it is. Okay?
    [Laughter.]
    Senator Schumer. In the interest of time, I will say no 
more except to thank you, Mr. Chairman, for the opportunity to 
testify at this hearing.
    The Chairman. Thank you, Senator Schumer.
    Senator Moynihan. Mr. Chairman, may I say I last year 
introduced Ms. Berzon to the committee, and Senator Feinstein 
will add a statement I have made at the conclusion of her 
statement.
    The Chairman. Thank you, and we recognize your strong 
support. This has been good praise for your nominee, Mr. 
Katzmann, and for Ms. Berzon. We appreciate it.
    We would be glad to release you from the table. We 
appreciate you taking time from your busy schedules to be here.
    Senator Dodd, Senator Lieberman, and then I think we will 
go to Senator Feinstein and Senator Boxer, and then we will 
wind up with you, Senator Hutchison.

STATEMENT OF HON. CHRISTOPHER J. DODD, A UNITED STATES SENATOR 
                 FROM THE STATE OF CONNECTICUT

    Senator Dodd. Thank you very much, Mr. Chairman and Senator 
Leahy and other members of the committee. I want to thank you 
for scheduling this important set of confirmation hearings. It 
is a very distinct pleasure to join my colleague, Senator 
Lieberman, in

[[Page 8]]

support of the nomination of Stefan Underhill to be a district 
judge for the District of Connecticut.
    Stefan Underhill, Mr. Chairman, is a distinguished scholar, 
a superb attorney, and, most importantly, a truly fine human 
being. I have never been more impressed, Mr. Chairman, with the 
personal and professional qualifications of a candidate for the 
bench in Connecticut.
    Stefan Underhill is joined today by his wife, Mary Pat, and 
their four children: Mariah, Mark, Devin, and Kerry. Maybe they 
would stand up as well and be recognized if that is 
appropriate, Mr. Chairman, the Underhill family.
    The Chairman. We welcome you all.
    Senator Dodd. You may not see Kerry. She is 4 years old. 
There she is. She is recording history by dozing through all of 
this.
    Senator Leahy. You have some grandfathers up here. We see 
her.
    Senator Dodd. Mr. Chairman, I know that our colleague and 
resident historian, Senator Byrd, is fond of extolling the 
unique contributions that the United States Senate has made to 
civilization, and I would not presume to disagree with him on 
that point. I would, however, add one item to his list of great 
American contributions to the civilized world, and that is an 
independent judiciary.
    Yesterday, Mr. Chairman, I noted a lead editorial in the 
New York Times that compared the American with the British 
legal systems. I found it ironic that the nation that in many 
ways spawned our common law system two and a quarter centuries 
ago is now struggling with whether to create a truly 
independent judiciary that is modeled, ironically, on our very 
own. The British judicial system is in many respects unfamiliar 
to us. Its high court consists of 12 law lords. They are 
members of the House of Lords where they sit on the Judicial 
Committee. The chairman of that committee is known as Lord 
Chancellor. He also serves as Speaker of the House of Lords and 
is a member of the Prime Minister's Cabinet.
    Mr. Chairman, were such a person to exist in the United 
States Senate, he or she would simultaneously hold the position 
of chairman of the Senate Judiciary Committee, Majority Leader 
of the United States Senate, Chief Justice of the Supreme 
Court, and the Attorney General. I leave it to you, Mr. 
Chairman, to meditate on that possibility. I am sure that it is 
not without some appeal to you as well.
    [Laughter.]
    The Chairman. I am sure that it would be very unappealing 
to many others.
    Senator Dodd. I can see you already taking notes on this.
    My point, Mr. Chairman, is simply this: Our judiciary is 
revered throughout the world for the high caliber of justice it 
has dispensed over time. It is a beacon light of fairness not 
only because of its independence from the legislative and 
executive branches, but also because of the qualities of mind 
and heart possessed by those we confirm to be Article III 
judges.
    Mr. Chairman, in my experience as a member of this body, 
there is no responsibility that we Senators hold more dear than 
that of advising and consenting to the nominees to our Article 
III courts.

[[Page 9]]

 History will record that it is a responsibility that the 
United States Senate throughout time has discharged remarkably 
well. Of some 2,792 judges confirmed by this body, only 7 have 
been removed from office throughout the history of our Nation. 
That reflects the extraordinary level of care that this 
committee and the Senate as a whole has always taken in 
considering judicial nominees.
    Stefan Underhill, Mr. Chairman, represents the very best 
that the Senate and our legal profession has to offer to the 
quality of justice in America. He holds outstanding academic 
credentials: a graduate of the Yale Law School, a Rhodes 
Scholar, a graduate of the University of Virginia. He clerked 
for one of the Nation's outstanding appellate court judges, Jon 
Newman of the Second Circuit, and since then he has 
distinguished himself among his peers as an associate and then 
partner of the Connecticut law firm of Day, Berry & Howard.
    It has been said that if you want to know what kind of a 
judge a person will make, look to what kind of a person he or 
she is. Stefan Underhill has all the blue-chip credentials a 
brilliant lawyer can attain. But far more importantly, or as 
importantly, Mr. Chairman, he is committed to his community and 
devoted to his family. He is, simply put, a very good and 
decent man. He provides legal guidance to local non-profit 
child-care organizations. He sits on the board of directors of 
the Connecticut Legal Services Corporation. He is a Cub master 
of the local Cub Scout pack in his community. Colleagues and 
friends described him, and I quote, as ``a true family man, 
bright, insightful, and principled, with a deep respect for the 
rule of law.''
    Stefan Underhill's experience as a clerk for Judge Newman 
kindled his desire to become a judge. He admires Judge Newman 
not just for his intellect but because he strives to do what is 
right and because he brings his life experiences to bear when 
making judicial decisions.
    Stefan believes in judicial restraint and having an open 
mind. In Judge Newman, Stefan found a role model. He has 
revealed himself to be someone committed to applying the law 
not creating it, to opening his mind not closing it, and doing 
justice not ignoring it.
    In closing, Mr. Chairman, I note that a few days ago 
Stefan's 4-year-old daughter, Kerry, who you just met, who is 
dozing in the back here, was on line with her mother at the 
post office in Connecticut. She tugged on the skirt of a 
strange woman standing next to them and asked the woman, ``Do 
you think my daddy should be a judge?'' To 4-year-old Kerry, I 
believe the answer to that question is yes, and I hope that the 
committee will agree with you as well in their consideration of 
this fine nominee.
    Thank you, Mr. Chairman.
    The Chairman. Well, thank you, Senator Dodd.
    Senator Lieberman, we will turn to you.

STATEMENT OF HON. JOSEPH I. LIEBERMAN, A UNITED STATES SENATOR 
                 FROM THE STATE OF CONNECTICUT

    Senator Lieberman. Thank you. Thank you, Lord Hatch.
    [Laughter.]

[[Page 10]]

    Senator Leahy. Joe, don't do that. It is hard enough living 
with him on this committee as it is. Don't make it any worse.
    Senator Dodd. Lord Chancellor Hatch.
    The Chairman. It has taken a long time to get that 
recognition, is all I can say.
    Senator Lieberman. Thanks, Mr. Chairman, for convening this 
hearing and for moving some of these judicial nominations along 
and including Mr. Underhill on this list. I am very proud to be 
joining with Senator Dodd in introducing Stefan Underhill to 
you as the nominee for the U.S. district court judgeship.
    I was moved when Senator Lott described his college 
roommate. Actually, if I may assume for a moment the role of 
pro bono counsel, I want to advise Mr. Pepper that he is under 
no obligation to answer the committee's questions about Senator 
Lott's conduct while at Ole Miss.
    [Laughter.]
    Senator Lieberman. That is off limits.
    But as close as I can get to the same relationship is that 
Mr. Underhill and I were privileged to go to the same law 
school, but it ends about there. He was there much more 
recently and did much better than I did, I assure you, at the 
law school. He was Articles and Book Reviews editor, one of 
five members of the Articles Committee, a finalist in the 
coveted Harlan Fiske Stone Prize Argument, and as Senator Dodd 
has indicated, has just a first-rate record, clerking for Judge 
Newman, being one of our State's premier litigators, one of our 
State's premier law firms, an outstanding lawyer, a person of 
genuine judicial temperament, a great citizen of this State. In 
every regard, I think this is a superb nominee, and I guess I 
would add that I was particularly struck that he listed on his 
CV the fact that he is Cub master of Pack 197 in Fairfield, 
Connecticut, which experience I think will come in handy in 
dealing with many of the lawyers and litigants who will come 
before his bench.
    [Laughter.]
    Senator Lieberman. I am very honored to join in Senator 
Dodd's support of this nominee, and thank you for scheduling 
him today.
    The Chairman. Well, thank you very much, Senator Lieberman. 
We appreciate both of you Connecticut Senators being here.
    Kay, we are going to hold you until last, if that is all 
right. You have two nominees, and we will turn to Senator 
Feinstein next and then Senator Boxer.

  STATEMENT OF HON. DIANNE FEINSTEIN, A UNITED STATES SENATOR 
                  FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman and 
members of the committee. I would like to speak on behalf of 
two people. One is Marsha Berzon and the other is Gary Feess.
    Mr. Chairman, I believe it was last July 30th, and I 
believe Senator Sessions and I were the committee that heard 
Marsha Berzon. I want to pay special tribute to Senator 
Sessions. He was thorough, he was probing, he was intrepid. I 
think the hearing went on for just about 2 hours, and virtually 
I felt at the end of it that this was equal to a hearing that 
the full committee had for an Associate Justice of the United 
States Supreme Court. Virtually every ques

[[Page 11]]

tion I have ever heard at one of those hearings had been asked 
of Mrs. Berzon, and I want the committee to know how very well 
she acquitted herself, and I think Senator Sessions would agree 
with that.
    I also want the committee to know, Mr. Chairman, that 
Marsha Berzon, believe it or not, had a life after Brooklyn, 
New York. She went West where the major portion of her career 
began to unfold in California. And she is a highly skilled 
attorney. She has appeared numerous times before United States 
circuit courts, district courts, and every level of California 
State courts. She has argued four cases before the United 
States Supreme Court. She has filed dozens of briefs on a wide 
variety of cases before the Supreme Court.
    She was a distinguished student at Boalt Hall, the 
University of California. She was Order of the Coif, and she 
was Articles editor for the California Law Review.
    Prior to entering private practice, she clerked for United 
States Court of Appeals Judge James Browning and for United 
States Supreme Court Justice William J. Brennan. She has 
practiced law with the San Francisco law firm of Altshuler, 
Berzon, Nussbaum, and Rubin since 1978. She has been a partner 
of the firm since 1990. She has won, in fact, impressive 
support from Democrats and from Republicans as well as 
virtually a wide panoply of law enforcement agencies.
    Let me read just a couple of samples. Former Republican-
appointed Deputy Attorney General and Administrator of the EPA, 
William Ruckelshaus, says, and I quote, ``Her intelligence and 
genuine good judgment allow her to transcend partisanship. She 
would make an excellent addition to the Ninth Circuit Court of 
Appeals.''
    J. Dennis McQuaid, an active Republican and partner at the 
San Francisco law firm of McQuaid, McQuaid, Metzler, McCormick 
& Van Zandt, writes, and I quote, ``I can recommend Marsha for 
confirmation without reservation. She enjoys a reputation that 
is devoid of any remotely partisan agenda and that her service 
on the court will be marked by decisions demonstrating great 
legal acumen, fairness, and equanimity.''
    The National Association of Police Organizations states, 
``Mrs. Berzon would be fair and impartial to law enforcement 
officers and open-minded to their concerns. She apparently 
understands the myriad of problems and difficult situations 
facing the line patrol officer every day.''
    Mr. Chairman, I strongly support Marsha Berzon's candidacy, 
and I am very pleased to be here today to help with my 
colleague, Senator Boxer, and others introduce her to you. And 
if might also on behalf of Senator Moynihan submit a statement 
to the record?
    The Chairman. Without objection, we will place the 
statement in the record.
    [The prepared statement of Senator Moynihan follows:]
    Senator Feinstein. Now, Mr. Chairman, I would also like to 
just quickly introduce Judge Gary Feess, who with his wife is 
sitting directly behind me, with their two children, David and 
Tim. Judge Feess is the nominee to the District Court for the 
Central District of California, the Los Angeles area. Judge 
Feess has a vast experience as a private attorney and 
Government service. He has earned

[[Page 12]]

distinction as a litigator, an interim U.S. attorney, and a 
superior court judge in Los Angeles.
    Again, he earned his law degree from the University of 
California at Los Angeles. He also was selected for the Order 
of the Coif, and in private practice, he joined the U.S. 
Attorney's Office where he quickly rose up through the ranks, 
becoming division chief of the major frauds unit in 1984 and 
assistant chief of the criminal division.
    In 1998, he served six months as interim U.S. attorney. He 
returned to the private sector as a litigation partner for 
Jones, Day, Reavis & Pogue, and later Quinn, Emanuel, Urquhart 
& Oliver.
    In 1997, Governor Pete Wilson appointed him to the Los 
Angeles County Supreme Court where he has earned rave reviews.
    He has also done some things in the private sector, the 
civic sector. He was deputy consul general for the Christopher 
Commission, which explored alleged abuses by the Los Angeles 
Police Department. He also served on the attorney general's 
Economic Crime Council and the Los Angeles Coordinating Crime 
Committee.
    He has received a flood of endorsements from the Los 
Angeles District Attorney, former U.S. Attorney Robert Bonner, 
Lane R. Phillips, former U.S. Attorney and Federal judge 
appointed by Ronald Reagan, and the American Bar Association's 
Judicial Nominations Committee has determined that he is well 
qualified for the position of district judge.
    He was my nominee to the President, and I am very proud to 
present him to this committee.
    The Chairman. Thank you so much, Senator Feinstein.
    I notice the distinguished Minority Leader is here, and I 
want to accommodate him and his heavy schedule at this time. So 
if we could, and then I also notice--I think Tim is here. Maybe 
we should move on your judge then at this time.

STATEMENT OF HON. TOM DASCHLE, A UNITED STATES SENATOR FROM THE 
                     STATE OF SOUTH DAKOTA

    Senator Daschle. Well, Mr. Chairman, I thank you very much 
for your indulgence and that of my colleagues. I will be very 
brief.
    With you and members of the committee, I am extraordinarily 
pleased to introduce to the committee someone that I am very 
proud to have known for a long time. Karen Schreier and her 
husband, Tim Dougherty, are both here, and I would like them to 
stand, if they would.
    I have known both of their families for a long, long time. 
I have known Karen's father, know her family, know Tim's family 
quite well. And I must say they are South Dakota's finest.
    Karen has been the U.S. Attorney in the State of South 
Dakota now for about 6 years and has just done an extraordinary 
job. She has been recognized as one who has worked very 
effectively with law enforcement agencies, especially on the 
drug issue. She has reached out to the Native American 
community as effectively as anybody I know.
    I honestly believe that she has been the finest U.S. 
Attorney the State of South Dakota has ever had. So when it 
came to the opportunity to nominate a new district judge, it 
was an easy choice for us. We are delighted that she has been 
willing to take on this addi

[[Page 13]]

tional responsibility. We highly recommend her to you, Mr. 
Chairman, and to the members of the committee. We know that she 
will do an outstanding job as our next district judge.
    The Chairman. Thank you, Senator. That is high praise.
    I think all of the nominees have been very well praised 
here today by excellent Senators, and so we are grateful to 
have you here.
    We will be glad to excuse you at this time because I know 
how busy you are.
    Senator Daschle. Thank you.
    The Chairman. Tim, if we could go to Senator Boxer first 
since we can finish those two judges, and then we will come 
back to you, and then we are going to wind up with Senator 
Hutchison.

 STATEMENT OF HON. BARBARA BOXER, A UNITED STATES SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Senator Boxer. Thank you very much, Mr. Chairman. I will be 
very brief, and I would ask unanimous consent that my entire 
statement be placed in the record.
    The Chairman. Without objection.
    Senator Boxer. And I will summarize.
    First, I want to associate myself with the comments of 
Senator Feinstein as it pertains to Judge Feess. I am very 
proud that he has been recommended. I see that the younger one 
has dozed off, which is interesting. The kids seem to get to 
the heart of the matter sometimes. So the rest of us are awake, 
and we are here for a purpose, and that is to convince you of 
the value of our nominees.
    I have been asked by Marsha Berzon to say a few words about 
her, and rather than going through my statement, I thought I 
would just pick out some highlights and first ask if Marsha 
would stand. She is here with Stephen, her husband, and their 
daughter, Allie, and son, Jeremy, who happens to be a newspaper 
reporter in Riverside, California.
    You have heard about Marsha's qualifications, a woman who 
has argued cases before so many of the courts, including the 
Supreme Court. All of her accolades are in my statement, so I 
thought I would actually close with just a few brief statements 
from Republicans because I think it is important that we show 
the broad support that Marsha brings.
    Former Republican--well, let me start off with Senator 
Specter, a longstanding member of this committee, who wrote 
that he was impressed with Ms. Berzon's ``intellect, 
accomplishments, and the respect she has earned from labor 
lawyers representing both management and unions.'' And I thank 
Senator Specter for those comments.
    Former Republican Senator James McClure wrote, ``What 
becomes clear is that Ms. Berzon's intellect, experience, and 
unquestioned integrity have led to strong bipartisan support 
for her appointment.'' And Dennis McQuaid, who was mentioned by 
Senator Feinstein, I wanted to share with you, he ran against 
me the first time I ran for the Congress. So we finally found 
something we agree on, Marsha, Dennis and I. And he wrote 
wonderful words about Marsha. And W. I. Usery, former 
Republican Secretary of Labor, said of Marsha, ``She has all 
the qualifications needed, as

[[Page 14]]

well as the honest and integrity that we need and deserve in 
the court system. I know she will be dedicated to the 
principles of fairness and impartiality.''
    Charles Curtis, who opposed Marsha in a case, United Auto 
Workers v. Johnson Controls, her opposing lawyer, said, ``All 
who have worked with or against her know she is fair, 
reasonable, respectful toward opposing views.''
    And, finally, corporate secretary for Chevron, Lydia Beebe, 
has written that Marsha ``has a reputation of being a brilliant 
attorney and of imposing an extremely high intellectual 
standard to whatever she does. She has the support of many in 
the employment and labor law community, both on plaintiff and 
management side.''
    So, with that, Mr. Chairman, I hope you will look kindly on 
these two people. They are good people. They are strong people. 
They will make great judges.
    Thank you very much.
    [The prepared statement of Senator Boxer follows:]
    The Chairman. Thank you, Senator Boxer.
    Senator Johnson, if you could finish up on your judge.

STATEMENT OF HON. TIM JOHNSON, A UNITED STATES SENATOR FROM THE 
                     STATE OF SOUTH DAKOTA

    Senator Johnson. Yes, thank you, Mr. Chairman, and I will 
be very brief. I want to associate myself with the remarks of 
the Minority Leader, Senator Daschle, relative to Karen 
Schreier and her husband, Tim.
    Karen has been a friend and a colleague for many, many 
years. She was born in Sioux Falls, South Dakota, educated at 
St. Louis University and St. Louis University School of Law. 
Her intellect, character, legal skills, and her integrity are 
all highly regarded by everyone who has known her. She has 
strong support from my fellow members of the South Dakota Bar. 
She went on to distinguish herself with a clerkship with the 
South Dakota Supreme Court, quickly became an associate and 
partner in Hagen, Wilka, Schreier and Archer law firm in Sioux 
Falls, South Dakota, then moved on to become U.S. Attorney for 
South Dakota in 1993, where her performance has been absolutely 
extraordinary.
    Karen has been a leader on issues of juvenile crime and 
youth violence for a number of years, has worked closely with 
me and with my office on methamphetamine problems and drug 
problems we have in the State of South Dakota. She has been an 
aggressive U.S. Attorney on the side of aggressive enforcement 
of the law. And for that she has widespread bipartisan respect 
and admiration from people throughout our State.
    I would hope again that your committee will look favorably 
and with an expeditious manner on the handling of this 
important nomination. This is a woman who will serve America 
and South Dakota well as U.S. district judge, the kind of 
person that we need in public service, the kind of person that 
we need on the bench.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Johnson. We are happy to 
excuse you and appreciate the good comments you made.
    Senator Hutchison, sorry that you have to be the last one 
here, but we know that you have two nominees, and I would like 
to men

[[Page 15]]

tion that Congressmen Ralph Hall and Max Sandlin have been here 
in the past. I was hoping they could get back. That is one 
reason why we delayed until now. But they have been here in 
support of these two Texas nominees. So we will turn to you at 
this point, and if the two Congressmen come, I will certainly 
introduce them.

STATEMENT OF HON. KAY BAILEY HUTCHISON, A UNITED STATES SENATOR 
                    FROM THE STATE OF TEXAS

    Senator Hutchison. Good. I would like to ask that 
Congressman Hall and Congressman Sandlin be allowed to be 
introduced if they are able to come back. But they did tell me 
they were here in support, and I would like to introduce first 
T. John Ward, who is here with his wife, Elizabeth Ward, and I 
would like to ask them to stand.
    The Chairman. We are happy to welcome you all to the 
committee. I apologize. If you see the two Congressmen, I 
apologize. I should have introduced them before, but I thought 
they would be here.
    Senator Hutchinson. I will tell them.
    The Chairman. They apparently had a vote, and I apologize 
to them.
    Senator Hutchison. I will mention to them that you did 
recognize them.
    John is a native of Bonham, Texas, and he practices in 
Longview with the Austin law firm of Brown, McCarroll & Oaks 
Hartline. He is a graduate of Texas Tech University and Baylor 
University Law School. Early in his career, he was an assistant 
district attorney, and he has extensive civil litigation 
practice both in the State and Federal courts.
    I believe John Ward is going to be a common-sense Federal 
judge. When he was nominated in January, a constituent of mine, 
one of many who wrote on his behalf, said, ``John Ward brings 
complete preparation, a studied atmosphere, and a balance. He 
will be a great judge.'' He is a member of the Board of 
Governors of the Fifth Circuit Bar Association, and I just urge 
that you confirm Mr. Ward to the bench in East Texas.
    The second nominee I have is Keith Ellison, who is a 
resident of Houston, and we are looking at the Southern 
District bench there. Mr. Ellison is a graduate of Harvard 
University where he was a Phi Beta Kappa and graduated summa 
cum laude. He is a Rhodes Scholar. He is a graduate of Yale Law 
School and was editor of the Yale Law Journal. He was a law 
clerk to Supreme Court Justice Harry Blackmun and Judge Skelly 
Wright of the U.S. Court of Appeals in the D.C. Circuit.
    He has also been 20 years in civil litigation. He was a 
partner in Baker & Botts, and then went out on his own. He 
serves on the Yale Law School Association Executive Committee, 
and he wrote to the committee that Senator Gramm and I have 
that interview all of the judicial candidates that, ``By not 
applying the law, a judge introduces an element of 
unpredictability that breeds more litigation.'' I think that is 
a pretty common-sense approach, too, and I can't think of 
anyone more qualified and intellectually qualified for the 
bench than Keith Ellison.

[[Page 16]]

    Keith is here with his wife, Kathleen, and I would like to 
ask them to stand as well.
    So, Mr. Chairman, I appreciate your having this hearing. 
Both of these nominees have been in the pipeline for quite a 
while, and it is my hope that we can have an early 
confirmation. I recommend them. Senator Gramm recommends them. 
They passed with flying colors our bipartisan judicial 
selection committee that screens all the nominees, and I think 
you have two very highly qualified individuals and two benches 
that are in dire need of some help. So I would urge you to 
confirm.
    The Chairman. Thank you, Senator Hutchison. That is high 
praise indeed, and we appreciate your taking time to be here. 
Sorry we had you be last.
    Senator Hutchison. That is fine.
    The Chairman. Okay.
    The Chairman. If I could have all the judgeship nominees 
stand and be sworn, we will swear you all in. If you could just 
stand, raise your right hands. Do we have all of you up there? 
Okay. Do you swear the testimony you shall give in this hearing 
shall be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Ms. Berzon. I do.
    Mr. Katzmann. I do.
    Mr. Ellison. I do.
    Judge Feess. I do.
    Mr. Pepper. I do.
    Ms. Schreier. I do.
    Mr. Underhill. I do.
    Mr. Ward. I do.
    The Chairman. Thank you very much. I think what we will do, 
I think we will start with the two circuit nominees: Marsha S. 
Berzon and Robert A. Katzmann. And then we will go to the 
district court nominees in the second panel--third panel, 
rather.
    Senator Leahy. Mr. Chairman, at an appropriate point, I 
have two statements from Senator Feingold that I want placed in 
the record.
    The Chairman. Without objection, we will place them in the 
record. Please take your seats.
    [The prepared statement of Senator Feingold follows:]
    Senator Leahy. Mr. Chairman, while I did not give an 
opening statement, I would put my statement in the record.
    [The prepared statement of Senator Leahy follows:]
    Senator Leahy. I do want to point out again on the hearings 
that we should not compare this to 1993, the first year, as 
compared to the seventh year of a President's term in office. 
The first few months of that administration we had a 
confirmation of a new Attorney General that took four hearings 
over 3 months. We had 6 days of hearings in May and June of 
other top Justice Department nominations and a Supreme Court 
nomination. This year we have not had a hearing on executive 
branch nominations, and the average time for Senate action on 
the judges confirmed was about 200 days.
    The Chairman. Let's be glad we are having a hearing now.
    Senator Leahy. I am delighted, and I compliment you on 
that. I really do. And I mean that most sincerely.

[[Page 17]]

    The Chairman. We are happy to welcome both of you here. We 
hope you will introduce your family members of friends that you 
have with you, and if you have any statement you would care to 
make, we will start with you, Ms. Berzon, and then with you, 
Mr. Katzmann.

  TESTIMONY OF MARSHA S. BERZON, OF CALIFORNIA, TO BE UNITED 
           STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT

    Ms. Berzon. I do not have any statement. I would like very 
much to thank you, Mr. Chairman, for holding this hearing. I 
would like to introduce, in addition to my husband and my 
children, who were already introduced, my parents, Jack and 
Sylvia Siegel, who are here from New York. My mother was not 
able to join us last year at the hearing. I am very pleased 
that she is here this year. Also, my sister, Mary Berzon, who 
is from Virginia; my brother, Arthur Siegel, who is an 
accountant in New York; and my long-time law partner and 
friend, Fred Altshuler, who is here as well.
    Finally, I would like to see that my sister, Beth Siegel, 
from Massachusetts was not able to be here today, and my 
mother-in-law, Ethel Spitzen, from Boca Raton, Florida, was 
also not able to be here today because of her health.
    The Chairman. We are happy to welcome your family and your 
friends and relatives here, and we are grateful we finally have 
you here for this second hearing, really, and we are going to 
try and move ahead as quickly as we can.
    Do you have any further statement to make, Ms. Berzon?
    Ms. Berzon. No, I don't. Thank you very much, Mr. Chairman.
    The Chairman. Mr. Katzmann, we will turn to you. Introduce 
your family and friends or whoever you have with you.

  TESTIMONY OF ROBERT A. KATZMANN, OF NEW YORK, TO BE UNITED 
          STATES CIRCUIT JUDGE FOR THE SECOND CIRCUIT

    Mr. Katzmann. Mr. Chairman, I would like to thank you for 
your great courtesy and the courtesy of your staff over these 
past several months, and also Senator Leahy. I would like to 
introduce my parents, John and Sylvia Katzmann; my brothers, 
Gary Katzmann, who is a career--my identical twin brother, Gary 
Katzmann, who is a career prosecutor in the U.S. Attorney's 
Office; my brother Martin Katzmann; and my many friends who are 
here as well. My sister, Susan, unfortunately, could not make 
it, and her family as well.
    Finally, I would like to say a special word of thanks to 
Senator Schumer and Senator Moynihan for their very generous 
introductory remarks. Nearly a quarter century ago, Professor 
Moynihan prepared me for my generals in American Government at 
Harvard, and in the ensuing years, there is no one who has had 
a greater impact on my life in his role as teacher, mentor, and 
friend. And I am so grateful to him and to Liz Moynihan and to 
Michael Patrick for coming here today. They are really friends 
for hard winters.
    Thank you.
    The Chairman. We are happy to welcome your family and, of 
course, we are very proud of Senator Moynihan ourselves. He has

[[Page 18]]

been a great Senator. He came to the Senate at the same time I 
did, and so we have been good friends all through these years.
    We are happy to have both of you here. Now, we have a roll 
call vote, so I hope that some will go vote now and then come 
back so you can ask questions.
    Senator Sessions. Mr. Chairman, I am supposed to preside at 
4:00. I don't know if others have a pressing need, but if you 
could allow me a few questions at the beginning. If not, I will 
understand.
    The Chairman. I will be happy to yield my time to you, 
Senator, and we will let you take the time, and then if others 
could go vote and then come right back, then Senator Leahy and 
I can go.
    Go ahead, Senator.
    Senator Sessions. Thank you, Mr. Chairman. I think both of 
these are extraordinarily skilled lawyers, and I appreciate 
your abilities, and I did enjoy very much, Ms. Berzon, our 
conversations. Maybe we did take too long, but it was almost--
it was a very interesting discussion, and I enjoyed it very 
much. And I thought I would ask a couple of follow-up 
questions.
    And you know--and I think I made it clear, and I have made 
it clear to others--that I am concerned about the Ninth 
Circuit. The New York Times has said the Supreme Court 
considers it a rogue circuit. It was reversed, I believe, 27 
out of 28 times last year. And in evaluating a nomination for 
the Ninth Circuit, I have publicly said I want to be sure that 
nominee is going to bring it back into the mainstream of 
American law as set by the Supreme Court. And so any questions 
I make, maybe in a different circumstance at a different time I 
wouldn't be as persnickety about it. But I think it is 
important. And I don't intend to support nominees unless I 
really believe that it has a possibility of improving that 
court.
    I remember I asked you about Justice Brennan's decision on 
the unconstitutionality of the death penalty. He believed that 
the death penalty was unconstitutional. And I told you I 
thought that that was unfounded because there are multiple 
references to the death penalty and capital crimes in the 
Constitution. And I asked you whether or not you shared my view 
and how you felt about Mr. Justice Brennan's view, and you said 
you did not like to say what you agree with and what you do not 
agree with when you haven't had time to think about it. Fair 
enough.
    Have you had time now and would you like to comment now?
    Ms. Berzon. I would like to say first that I also very much 
enjoyed our discussion last year, and I certainly have had a 
chance to think about it and to go back and look at the 
Constitution. And having done so, I would certainly agree that 
the indications of that document are that the Framers of the 
Constitution understood that capital punishment would be 
permitted under that Constitution.
    There are, as you note and as the Supreme Court noted in 
Gregg v. Georgia, many references in the Constitution which 
indicate that the Framers certainly understood that there would 
be capital punishment under the Constitution.
    Senator Sessions. And as a justice, do you feel it would be 
your duty to ratify in your opinions the understanding of the 
Framers when they adopted that Constitution and carry out its 
intent?

[[Page 19]]

    Ms. Berzon. As a judge of the Ninth Circuit, my primary 
duty and initial duty will be to follow the direction of the 
United States Supreme Court. The United States Supreme Court on 
this question has been quit clear about its conclusion that the 
death penalty is constitutional, and I will, of course, 
faithfully and completely apply that conclusion.
    Senator Sessions. How do you feel about Justice Brennan's 
view that somehow despite these references and clear, explicit 
statements of approval of the death penalty in the Constitution 
explicitly written that he still would find it 
unconstitutional? Do you affirm or reject that view?
    Ms. Berzon. I was a law clerk to Justice Brennan, as you 
know. I admire him enormously as a man and as a mentor. I do 
not agree with everything that he said, and I think in 
particular that I intend to take a more literal view to 
statutes and to constitutional provisions than he does. It 
makes me more comfortable, and it is the way I tend to think.
    The Chairman. Could I interrupt for just a second? I notice 
our two Congressmen from Texas are here in support of the two 
Texas nominees, and we just want to recognize both of you. 
Congressman Hall, you have been a friend for a long time, and 
we are really glad to have you here. And also you, Congressman 
Sandlin, we are very appreciative that you would come over and 
lend support to these two Texas nominees.
    Mr. Hall. Thank you, Mr. Chairman and members.
    The Chairman. I apologize for not introducing you first. I 
should have done that.
    Mr. Hall. We had to vote.
    The Chairman. That is what I figured. You went to vote, and 
I certainly wanted to--
    Senator Leahy. We understand that.
    The Chairman. I recognized you in absentia. We will put it 
that way. But we are happy to have you back.
    Go ahead, Senator. I am sorry.
    Senator Sessions. All right. Briefly, I asked you 
previously about--I followed up in writing with a question I 
raised at our initial hearing, and to refresh your 
recollection, you responded in August of 1998, and I had asked 
you that if when you were vice president of the ACLU in 
Northern California you approved the ACLU's filing of a lawsuit 
in Michele AG v. Nancy S. case. In that case, the ACLU's 
argument was that a homosexual partner who is neither an 
adopted or biological parent could be deemed a ``parent in 
fact,'' and that was rejected by the California--that position-
-the ACLU did take that position, and it was rejected by the 
California Court of Appeals. And I was conferring a little bit 
with your answer and would like to follow up.
    In your written answers, when I asked you about your 
connection with this lawsuit, you replied that you ``had no 
recollection of this case until asked about it in connection 
with the hearing.'' Then you later in those written answers 
said you ``checked with the ACLU NC''--Northern California--and 
learned that you were ``not present at the meeting at which the 
case was considered,'' even though you were Chair of that legal 
committee that set them--approved the filings. And then next 
you stated that you ``learned on inquiry'' that

[[Page 20]]

a close vote by the board as to whether or not to file that had 
occurred. It had been proposed by the staff, but that you ``do 
not recall'' how you voted or whether you voted and that the 
ACLU had no records specifying how you voted.
    However, in your testimony before the committee, it 
indicates that voting on cases is not a routine proceeding by 
the ACLU, and it only occurs if ``there is a dispute in the 
legal committee,'' which you chaired, or if someone 
specifically asked for a vote. In fact, you written answer 
indicated that it was a close vote by the over 30-member staff.
    Given the controversial nature of that case and as 
evidenced by the fact that the board you chaired was closely 
divided over the issue and the fact that the votes of this kind 
appear to be an exception rather than the norm for the 
committee, would you share with us how it is that we ought to 
understand you don't remember that? And did you take a position 
that--have you been able to recall any position you took, and 
can you tell us more about your participation in that?
    Ms. Berzon. The case, just to clarify for some of the other 
members who were not at the hearing and may not have read the 
questions, was one that dealt, as I understand it from reading 
the reported opinion--and I want to make clear that I have 
never seen the brief that the ACLU filed in this brief--in this 
case. I don't ordinarily see them. I would not have ordinarily 
seen them. And in this particular case, it was under seal, so I 
couldn't see it even after I was asked.
    Not having seen it, I can only react based on the written 
opinion that resulted, and that opinion indicates that while 
the particular individuals who were having a visitation dispute 
here were homosexual partners who had been parenting this 
child, the issue in the case really had nothing to do with them 
being homosexual partners--that is, one could have been a 
grandparent who was rearing the child or a step-parent who was 
rearing the child or a foster parent who had been with the 
child for a long time. And the issue was one of whether people 
of that kind who the child will be severed from have some 
interest in visitation.
    The issue is a very complicated one, as the justice who 
wrote the opinion for the California Supreme Court noted, on a 
policy basis and one he concluded was properly for the 
legislature, and I would agree with that conclusion.
    I have no specific recollection of the debate, although I 
did learn, as I said in my answers, that it was a closely 
divided vote. I suspect--and I very much hesitate to say how I 
might have voted because I don't have a clear recollection, but 
I suspect that in a circumstance like that I would probably 
abstain. And the reason I suspect that is I tend in my 
participation in the ACLU to be most interested in issues and 
most concerned about issues having to do with the First 
Amendment, with the rights of free speech and religion, and 
with discrimination, gender discrimination in particular. And 
issues of this kind are very far from my expertise or concern, 
and when it became as contentious as it did, apparently, from 
the vote, I would probably feel that I had little to add to the 
debate and probably would not have contributed. But I really 
don't remember.

[[Page 21]]

    Senator Sessions. So you don't remember how you voted on 
that.
    Ms. Berzon. I don't remember.
    The Chairman. Senator, your time is up.
    Now, Senator Leahy would like to just ask a question or two 
before we go and vote.
    Senator Leahy. Ms. Berzon, you are familiar with the 
doctrine of stare decisis, I am sure.
    Ms. Berzon. I certainly am.
    Senator Leahy. And do you accept that doctrine?
    Ms. Berzon. I absolutely do.
    Senator Leahy. And so I can assume from that answer that 
the decisions of the U.S. Supreme Court you would feel would be 
compelling on your circuit?
    Ms. Berzon. Absolutely, and if confirmed as a judge, I will 
follow them faithfully and carefully.
    Senator Leahy. And you would give great weight to prior 
decisions of your circuit?
    Ms. Berzon. I will definitely do that.
    Senator Leahy. So it is safe to say that on decisions of 
the Supreme Court you feel your circuit is bound by that, and 
you as a judge would be bound by that.
    Ms. Berzon. Definitely the Ninth Circuit is bound by the 
decisions of the Supreme Court, and I as a judge would be bound 
by them as well.
    Senator Leahy. But you as a judge are not bound in any way 
by past decisions of any organization, whether it is the ACLU 
or a social organization or any other organization. Those are 
not decisions that bind you. Am I correct?
    Ms. Berzon. To the contrary, as a judge I will, of course, 
be bound only by precedent, by the language of any statutes, by 
the language of the Constitution, by precedents in other 
circuits to the degree that they are relevant and convincing, 
and I absolutely will give no credence whatever to the views of 
any organization, including the ACLU. Indeed, I would expect 
that I would rule against the position of the ACLU as often as 
that of any other organization.
    Senator Leahy. Looking at your background, I would not have 
expected any different answer. I am extremely impressed with 
your background. I hope that you will soon be sitting on that 
court.
    Thank you.
    The Chairman. Thank you, Senator. We are going to have to 
go vote. As soon as Senator Smith gets back, he will ask some 
further questions, but we will recess until he gets back or 
until another Senator gets here and proceed as soon as I can 
get back.
    [Recess from 4:02 p.m. to 4:30 p.m..]
    The Chairman. If we could begin, I apologize for the delay. 
I am going to put the written questions of Senator Thurmond 
into the record, and I would hope that you would answer them as 
quickly as possible. He directs questions to both you, Ms. 
Berzon, and you, Mr. Katzmann, and then he sends questions to 
the other judges as well. So I would hope that you would answer 
any and all written questions as quickly as possible. We will 
keep the record open to have written questions to the nominees 
until Friday, the end of business on Friday, if that is all 
right.
    [The questions of Senator Thurmond follow:)

[[Page 22]]

    The Chairman. Now, Senator Smith, would you like to ask 
some questions or would you like me to go ahead?
    Senator Smith. Go ahead, Mr. Chairman. I will be ready in a 
minute. Why don't you go ahead?
    The Chairman. Thank you. Okay.
    Now, you have heard the questions, Mr. Katzmann, of Senator 
Sessions. Do you have anything to say about those particular 
questions?
    Mr. Katzmann. No, I don't.
    The Chairman. Okay. How would you answer them?
    Mr. Katzmann. The questions that were asked were in a 
sense--most of the questions seemed to be particular to various 
cases.
    The Chairman. Right, that involve California, so you really 
don't have anything to say about that.
    Mr. Katzmann. Right.
    The Chairman. Let me ask you, Ms. Berzon, you certainly 
have an extensive record in the area of labor law, something 
that I take a great deal of interest in as well, representing 
various labor organizations and some very renowned cases. Now, 
when many people hear labor law, they generally think of cases 
between unions and employers. Your experience, as I understand 
it, however, includes instances in which you have been an 
advocate for unions in litigation against the employees they 
represent on issues ranging from the right of employees who 
choose not to follow the union's lead in striking to the right 
of employees not to pay a portion of union dues used for 
purposes with which they disagree.
    Now, Ms. Berzon, given your experience, can you assure this 
committee that you can be fair and impartial in adjudicating 
the rights of employees vis-a-vis their unions?
    Ms. Berzon. Yes, absolutely. In all of those cases, I was, 
of course, representing a client as an advocate. I am keenly 
aware of the difference between an advocacy position and the 
position of a judge on the Ninth Circuit or any other court of 
appeals. In that position, if I am fortunate enough to be 
confirmed, I am certain that I will be able and I commit that I 
will leave behind all positions of all of my clients and look 
with an open mind at the statutes at hand, at the precedents 
that are relevant, and at any constitutional provisions that 
are pertinent and so on.
    The Chairman. So you will be abide by the precedents as 
established by the Supreme Court?
    Ms. Berzon. I am sorry?
    The Chairman. You will abide by the precedents established?
    Ms. Berzon. I absolutely will.
    The Chairman. Okay. I presume you will, too, Mr. Katzmann.
    Mr. Katzmann. Absolutely.
    The Chairman. Now, Ms. Berzon, in correspondence to this 
committee last July, you identified Ho v. San Francisco Unified 
School District--that is a recent Ninth Circuit court case--as 
one in which the ACLU of Northern California participated while 
you were a board member.
    Now, I have looked at the amicus brief the ACLU of Northern 
California filed in that case and was interested to note that 
the principal argument advanced in that brief is that the court 
``should apply intermediate scrutiny'' not strict scrutiny as 
the appropriate

[[Page 23]]

level of review n a challenge to a racial quota that had the 
effect of limiting the percentage of Chinese school children 
who could attend San Francisco's public schools.
    Now, do you agree with the position advanced by the ACLU of 
Northern California that the quota at issue was constitutional 
even though there had never been a judicial finding that 
segregation existed in San Francisco's school system?
    Ms. Berzon. I am at something of a disadvantage because I 
first saw a part of this brief, and only a part of it, last 
evening and I read the opinion of the Ninth Circuit as well. I 
was actually under the impression--and I could be wrong--that 
there was a judicial finding or at least that there was a 
consent decree that served as a--that was confirmed by the 
court and, therefore, served as a judicial finding. But I am 
not sure it is relevant to the issues that were addressed in 
the amicus brief.
    I know, as you do, Mr. Chairman, that the Supreme Court in 
Adarand v. Pena held that racial classifications are subject to 
the strictest of scrutiny, meaning that there has to be a 
compelling interest, and that any classification of that kind 
has to be extremely narrowly tailored. The Ninth Circuit held 
that the issues in that case as to meeting those standards were 
sufficiently undecided, that there should be a trial on the 
question, and actually I know only from the newspapers that the 
case was settled before trial.
    In my role on the board of the ACLU, as Senator Sessions 
noted, there are only votes held by the board in rare 
instances, and in this instance there was no vote held by the 
board and I was not on the legal committee. I did have a chance 
to check that much.
    The Chairman. Okay. And--did I interrupt you?
    Ms. Berzon. I am sorry.
    The Chairman. I thought I had interrupted you.
    Ms. Berzon. Okay.
    The Chairman. You have mentioned the Adarand v. Pena case. 
Do you agree that the quota at issue in this matter should have 
been tested under only an intermediate scrutiny rather than 
strict scrutiny?
    Ms. Berzon. It seemed to me that the Ninth Circuit opinion 
holding that it was subject to strict scrutiny was fully 
consistent with Adarand, and I would have no problem in 
applying that standard at all.
    The Chairman. They indicated that it would be subject to 
only intermediate scrutiny not strict scrutiny.
    Ms. Berzon. I am sorry?
    The Chairman. They indicated that it would be subject to 
only intermediate scrutiny not strict scrutiny.
    Ms. Berzon. They so argued, and it is not a position that I 
advocated. And as I say, I didn't vote on it either.
    The Chairman. So you would be for strict scrutiny.
    Ms. Berzon. I was fully comfortable with Judge Newman's 
opinion in the Ninth Circuit.
    The Chairman. Now, Mr. Katzmann, the Founding Fathers 
believed that the separation of powers in a government was 
critical to protecting the liberty of people. Thus, they 
separated the legislative, executive, and judicial branches 
into three different supposedly co-equal branches of 
government, the legislative power

[[Page 24]]

being the power to balance moral, economic, and political 
considerations and make law, the judicial power being the power 
only to interpret laws made by the Congress and by the people.
    Now, in your view, is it the proper role of a Federal judge 
when interpreting a statute or the Constitution to accept the 
balance struck by Congress or the people or to rebalance the 
competing moral, economic, and political considerations?
    Mr. Katzmann. I firmly believe that it is the role of the 
judge to accept the balance struck by the Congress and the 
people. It is inappropriate for a judge to reorient the 
calculus.
    The Chairman. Making of law to me is a very serious matter. 
To make constitutional law, two-thirds of each House of 
Congress and three-quarters of the States must formally approve 
the words of an amendment. To make statutory law, only a 
majority of each House is necessary, and usually the President 
must formally approve the words of a statute.
    This formal approval embodies the expressed will of the 
people through their elected representatives and thus raises 
the particular words of a statute or constitutional provision 
to the status of binding law. Words, theories, and principles 
that lack this formal approval are not backed by the will of 
the people and thus do not rise to the level of legitimate law.
    Would you agree that the further a judicial opinion varies 
from the text and the original intent of a statute or 
constitutional provision, the less legitimacy it has?
    Mr. Katzmann. I certainly do agree with that. I think in an 
article, which I, frankly, quoted in my book, ``Courts and 
Congress,'' which you wrote in the Harvard Journal of Law and 
Public Policy, you talk about the slippage that can occur the 
further one gets away from the text of the statute. And I 
believe that clearly that is a problem if a judge inserts his 
or her own views about what a statute should mean by moving 
away from the words of the statute.
    The Chairman. Let me ask both of you this question: Under 
what circumstances do you believe it appropriate for a Federal 
court to declare a statute enacted by Congress 
unconstitutional? Let's start with you, Ms. Berzon.
    Ms. Berzon. The circumstances in which it is appropriate 
for a court to declare a congressional statute unconstitutional 
are, of course, quite rare. Such statutes come to the Court 
with a strong presumption of constitutionality, and in looking 
at such constitutional arguments, if I were confirmed, I would 
look carefully at any precedents of the Supreme Court or of the 
Ninth Circuit. But absent a compulsion by them to declare a 
statute unconstitutional, I would do so only when it appeared 
to be compelled by the constitutional language or by the clear 
intent and the meaning of the Constitution.
    Mr. Katzmann. I think, Mr. Chairman, that a court should be 
very wary about declaring unconstitutional an act of Congress. 
When you look at the constitutional structure, there is Article 
I, the legislative article, Article II, the executive, and 
Article III, the judiciary. I would submit that the order 
suggests that there should be caution on the part of the 
judiciary in terms of upsetting the law that Congress has made. 
So I believe that only in the rarest of circumstances would it 
be appropriate to declare an act of Congress

[[Page 25]]

unconstitutional. There would have to be clearly a very 
compelling reason to do so. It would have the presumption--an 
act of Congress has the presumption of constitutionality.
    The Chairman. Thank you. My time is up.
    Senator Smith, do you have questions?
    Senator Smith. Thank you, Mr. Chairman. Good afternoon to 
both of you.
    I missed Senator Leahy's questioning, but I understand, Ms. 
Berzon, that Senator Leahy asked you if you felt that the death 
penalty was unconstitutional, and you replied that it was 
constitutional. Is that correct?
    Ms. Berzon. Yes. The United States Supreme Court has so 
held.
    Senator Smith. I am sorry. Senator Sessions' question.
    Ms. Berzon. Senator Sessions did ask me that, and, yes, I 
agreed with him that--
    Senator Smith. Is that your view as well, Mr. Katzmann?
    Mr. Katzmann. Yes. The Supreme Court has firmly spoken on 
that issue, making note of a number of clauses in the 
Constitution which suggest that there is room for capital 
punishment.
    Senator Smith. Do either of you have any moral or religious 
or any other personal convictions that would keep you from 
voting to apply the death penalty in an appellate case?
    Ms. Berzon. I do not.
    Mr. Katzmann. Neither do I.
    Senator Smith. On the issue of judicial precedent, what is 
your view on judicial precedent? I think Senator Leahy asked 
you about judicial precedent, and I missed that. I think you 
replied that you supported judicial precedent. Is that correct?
    Ms. Berzon. I certainly do. I would be constrained as a 
Ninth Circuit judge to follow the precedent of both the Supreme 
Court and the Ninth Circuit, and I would do so.
    Senator Smith. Even if you viewed the decision to be wrong?
    Ms. Berzon. Yes, even if I viewed the decision to be wrong, 
with the minor caveat that in the Ninth Circuit there are times 
when there are votes as to whether to hear a case en banc, and 
in that case I would vote in accordance with the guidelines of 
the Ninth Circuit whether to hear the case en banc.
    Senator Smith. Is that your view as well, Mr. Katzmann?
    Mr. Katzmann. Yes. I think that if you don't follow 
precedent, you are inviting judicial activism, which I would 
deplore.
    Senator Smith. Well, let me ask you a tough question on 
judicial precedent. Were you to have been on the Supreme Court 
in 1867 when the Dred Scott case came down, Judge Tawney 
indicated in that decision, the majority decision, that Dred 
Scott was a personal property and, therefore, could not sue in 
Federal court. We now had precedent that was never overturned 
by the courts, but it was overturned by some amendments to the 
Constitution. So if you had had the chance to vote to reverse 
that judicial precedent, how would each of you have voted?
    Ms. Berzon. If you would like me to begin, it is a 
provocative question, and I note that there is also a set of 
precedents from the Supreme Court regarding the very rare 
circumstances in which overturning precedent is appropriate. 
And one of those circumstances is that it is more appropriate 
in constitutional than in

[[Page 26]]

statutory cases because, with regard to statutory cases, 
Congress can alter the statute much more easily than it can 
alter the Constitution.
    Now, you have actually pointed to one instance in which 
Congress did alter the Constitution, or Congress and the people 
altered the Constitution, but that is relatively rare.
    So there is slightly more room in a constitutional case, 
but, again, as a Ninth Circuit judge, it would be quite rare 
because that prerogative is primarily that of the Supreme 
Court.
    Senator Smith. Same question, sir.
    Mr. Katzmann. I would emphasize, too, that in terms of the 
position for which I am being considered as an appellate judge, 
I am bound to follow precedent. The issue as to what I would do 
if I were a Supreme Court Justice is not something that I have 
actually fully considered at this moment. But in the case of 
Dred Scott, when we think about precedent, there are a lot of 
different questions that one might think about.
    One issue might be how long has the precedent been in 
existence, how long has it stood in existence. That might be of 
some use. But, on the other hand, if you always stick to 
precedent at the Supreme Court level, then you would never have 
had a reversal of Plessy v. Ferguson.
    Senator Smith. That was my next question.
    Mr. Katzmann. So that there are circumstances in which at 
the Supreme Court level, where because there is a recognition 
that a decision was clearly wrong, that there may be some basis 
for a change in precedent. But at the appellate level, I think 
the obligation of the judge is to follow the precedent 
regardless of whether the appellate judge agrees with it or 
not.
    Senator Smith. Do you have the same view on Plessy v. 
Ferguson, Ms. Berzon?
    Ms. Berzon. Yes, I do. And as I said, the considerations 
here with regard to the Supreme Court and appellate courts are 
really quite different.
    Senator Smith. No, I understand, but the issue in a generic 
sense was judicial precedent, and I think you both admittedly 
stated that you didn't feel that would necessarily be the case 
at the appellate level. You did give a qualifier on both your 
answers. I just want to make sure the record is straight. You 
both gave me a qualifier on judicial precedent on both Plessy 
v. Ferguson, which was overturning segregated schools, and Dred 
Scott, which was not allowing a black man who was considered 
property to sue in Federal court. So you did give two 
qualifiers.
    I don't want to misrepresent what you said, but that is the 
way I read what you said. So now I am going to get you to the 
least controversial of all the questions I have asked so far, 
but that is why I wanted to hear your answers to these 
questions first, which is--I was being funny--the issue of 
abortion, which is obviously one of the most controversial 
issues of the day. So if we use the issue of judicial precedent 
in Roe v. Wade, what is your view on Roe v. Wade, each of you?
    Ms. Berzon. The Supreme Court, as you know, spoke to that 
precedent in Casey v. Planned Parenthood, both with respect to 
its continuation as precedent and with respect to the precise 
standard

[[Page 27]]

that is applicable under Roe v. Wade as modified by Casey. 
Casey fully explored the stare decisis considerations, and, 
again, as a circuit court judge, I am bound by Casey in that 
regard.
    Casey held that balancing the women's--the State's concern 
for fetal life beginning at conception against women's 
constitutional right that the applicable standard is whether 
there is an undue burden on that right, and in applying that 
standard has held certain regulations of abortion, including 
parental consent, waiting periods, and others, valid. Again, as 
a Ninth Circuit judge, I would apply both the general standard 
and the particular precedents carefully and faithfully, and I 
would have no opportunity really to consider whether it should 
be changed, and I would not do so.
    Senator Smith. Mr. Katzmann?
    Mr. Katzmann. As an appellate judge, I am bound to follow 
the precedent of the Supreme Court. Casey is, in a sense, the 
defining case as it modifies Roe v. Wade, suggesting that 
restrictions on abortion would be upheld so long as there is 
not an undue burden.
    As an appellate judge, I am bound to follow that regardless 
of my own personal preferences.
    Senator Smith. In a personal sense, if both of you could 
answer this, do you believe that an unborn child is a human 
being?
    Ms. Berzon. As I said, Senator, my role as a judge is not 
to further anything that I personally believe or don't believe, 
and I think that is the strength of our system and the strength 
of our appellate system.
    The Supreme Court has been quite definitive quite recently 
about the applicable standard, and I absolutely pledge to you 
that I will follow that standard as it exists now, and if it is 
changed, I will follow that standard. And my personal views in 
this area, as in any other, will have absolutely no effect.
    Mr. Katzmann. My concern, Senator, is that when judges 
enact their personal preferences, whether for or against a 
particular issue, there is a danger of judicial activism. It is 
a recipe for judicial activism because it then means that 
judges pick and choose what they want to enforce in the law 
according to their own personal preferences.
    What I can say to you is that I will faithfully apply the 
law as the Supreme Court has laid it down, whatever the 
precedent of the Supreme Court might be in that area at any 
time.
    Senator Smith. Well, look, and I want to say to both of you 
I appreciate the fact that you are answering my questions. That 
is not always the case here, and you are, I think, making an 
honest attempt to answer the questions, and I appreciate it. 
But I think what we have in the case of--I agree with you on 
judicial activism on either side of the political spectrum. I 
am not in favor of judicial activism. I think that judges and 
Justices should support the Constitution pretty much in a 
constructionist way as it is written.
    The difficulty for me, and I think for many, on Roe v. Wade 
is that by making abortion the law of the land, many would say 
there is nothing in the Constitution that would provide for 
that kind of decision to be made. There is no mention of 
abortion in the Constitution. There is mention of life and the 
protection of life, but there is no mention of abortion.

[[Page 28]]

    And so I think what we have here is an opportunity to say 
that a life could be taken at any stage; although it is not 
frequently done in the third stage, there is no restriction on 
that. And that is the reason I am asking the question. Does the 
unborn child have a right to life at any point during the 9 
months of pregnancy? And if so, at what point? And I think that 
is a fundamental question that I don't think is an unfair 
question for a person who, although it is the appellate court, 
could very well at some point be considered at a higher court, 
and also very well could face a decision dealing with that 
issue on the appellate court.
    So that is the question that I would like to ask. Does the 
unborn child have a right to life at any point during the 
pregnancy? And if so, when, in your view?
    Ms. Berzon. My understanding of what the Supreme Court 
ruled in Casey, which is the case that I would be constrained 
to apply if I am confirmed to the Ninth Circuit, is that the 
State does have an interest in the life of the child from the 
time of conception, but that there is a competing interest as 
well in the women's medical rights and otherwise, and that the 
result of balancing those competing rights, the Supreme Court 
has instructed us is that the right to abortion is upheld as 
long as--only if there is no undue burden on the right to 
abortion.
    I have no choice but to answer you that that is what I 
would apply if I was on the Ninth--if I was confirmed to the 
Ninth Circuit. And if I answered anything else, I would not be 
faithful to the role that I will have as an appellate judge.
    Mr. Katzmann. I think that the Court recognizes that the 
State has an interest in the protection of the child, but there 
are these competing interests and concerns. One is bound to 
follow the precedent of Casey, and I think that in a sense, if 
I might say, that when there are nominees to the Supreme Court, 
that is where one can really change, if one wants to, influence 
the direction of policy because at the appellate level you are 
supposed to follow the precedent regardless of how one 
personally would come out on a particular issue.
    I know that is an answer of judicial restraint, but I 
firmly believe it.
    Senator Smith. Well, let me move it all the way to the end 
to the most dramatic of all abortions, which is the so-called 
partial-birth abortion. There is a possibility, although not 
likely, that we will overturn the President's veto on this. 
Were that to happen, it would be in the courts, and the 
constitutionality would have to be determined of that act.
    Is the partial-birth abortion ban, as we now know it, the 
law, the bill that has been passed that has not become law, is 
that in your view constitutional or unconstitutional as you 
interpret the Constitution? Mr. Katzmann, why don't you start?
    Mr. Katzmann. I would say that that is an issue that--
Senator, that is a very important issue, and that as a judge, I 
would really have to evaluate that issue in the context of a 
law that is actually passed, and then in terms of a case or a 
controversy. In terms of adjudication, there are restrictions 
on judges rendering advisory opinions on particular pieces of 
legislation in the advance of pas

[[Page 29]]

sage. And then even after passage, I think what a judge has to 
do is to evaluate the case in the context of a real case or 
controversy.
    I think the questions that you raise are very important 
ones and serious ones, and you can be sure that if I ever had a 
chance to rule on that kind of an issue, I would really be as 
faithful as I could to the Constitution, recognizing the 
presumption of legislation to be constitutional.
    Ms. Berzon. And I essentially agree with that answer. I 
note again that the Casey standard would be the applicable one, 
and that the answer might turn on the details of the particular 
statute. I understand that there have been some partial-birth 
or late-term abortion statutes that have been held 
unconstitutional, but apparently for reasons having to do with 
the particular scheme at hand.
    Again, the standard would be whether there was an undue 
burden on the right to abortion, taking into account the 
State's interest in life from the time of conception, and that 
is the standard I would apply. It would be obviously 
inappropriate to say anything further than that precisely 
because the issue might come before a court on which I or Mr. 
Katzmann could be sitting.
    Senator Smith. Your term ``competing interests,'' though, 
is an interesting one because you are viewing the term 
competing interests between the mother and the unborn child. 
Would you take that competing interest to two individuals, one 
of whom tried to kill the other one? You don't carry it that 
far, do you?
    Ms. Berzon. Again, I am simply repeating the standard that 
the Supreme Court has articulated, and it is not my standard.
    Senator Smith. But we indicated twice now in two different 
examples, by your own admission, that the Supreme Court was 
wrong at least twice in American history, once in Dred Scott 
and once in Ferguson, very dramatic and important cases.
    And I would say just for the record--and I am not looking 
to argue; I have learned after many years of this that arguing 
doesn't do any good, but discussing sometimes does. I would 
argue that in the case of Ferguson, segregation was a horrible 
situation, as was the situation of determining that a black 
person was property and therefore had no legal right to sue. 
Those were both dramatic departures from the norm from what is 
right and wrong in America.
    And I would venture to say I would add number three to 
that, and that is the taking of a life of an innocent unborn 
child, 35 million of which, 35 million of which, have been lost 
since the Roe v. Wade decision in 1973. They will never have a 
chance to be a judge. They will never have a chance to be a 
mother or a father because of a law that was passed--a Court 
decision that was made, excuse me, which denied them that 
opportunity.
    And neither one of you are willing to sit here and tell me 
that you think that is wrong. Is that correct? I mean, I 
haven't heard anybody say it yet. So 35 million children never 
have a chance to be here or to be up here or to be out there 
and have the opportunity to live their dream because of a Court 
decision.
    And had it not been for the guts of somebody in Ferguson 
and the guts of somebody who wrote those 13th, 14th, 15th 
Amendments, we may still have slaves in this country that would 
never be able to sue. And we may very well have segregation in 
this country.

[[Page 30]]

    The Chairman. Senator, if I could--
    Senator Smith. A last point, Mr. Chairman. You have been 
very patient.
    The Chairman. Yes.
    Senator Smith. And I think in this particular case, I would 
add abortion to that list, and I would say that 35 million 
children lost is a terrible comment on American society. And I 
deeply regret, really, with all due respect to both of you, 
that neither one of you can say that.
    The Chairman. Well, Senator, if I could interrupt, you have 
asked some very appropriate and good questions. I interpret it 
a little bit differently. Both of them, in my opinion, have 
said that they are not sure how they would decide that case, 
and that they wouldn't want to give the opinion that they have 
now anyway without hearing all the facts and the evidence.
    Senator Smith. Well, I didn't ask about a specific case, 
Mr. Chairman.
    The Chairman. No, but I mean--
    Senator Smith. I asked about their point of view, whether 
or not life was--
    The Chairman. But they both say that that could likely come 
before them and they are going to have to decide it at that 
time. And that is a little different from saying that they 
would not find that process unconstitutional. And I don't know 
how they can say much more than that at this point in this 
meeting.
    But I share the distinguished Senator's feelings and I 
share his point of view that it is a tragedy that we have had 
this issue go as far as it has in our American way of life. And 
I just hope that both of you will look at the precedents, and 
also look at what is right and wrong, if that case ever comes 
before you.
    Senator Smith. Well, I would just make a final point.
    The Chairman. Sure.
    Senator Smith. In the case of the Missouri case where you 
represented the ADA in your amicus brief in the Webster case, I 
mean I assume you agree with the ADA's position on that case.
    Ms. Berzon. Actually, in the--you are referring to me?
    Senator Smith. Yes, ma'am.
    Ms. Berzon. In my brief, which was an extremely limited 
one, I did not address any of the abortion issues in that case 
as such. The only issue that I addressed was a First Amendment 
issue regarding the communication between doctor and patients 
and that is all.
    The Chairman. I think the question I would like to ask is 
will you set aside your own personal views and feelings in 
order to decide the case on the law rather on what your 
personal views are?
    Ms. Berzon. Absolutely, and I believe that I have so 
indicated.
    The Chairman. I will be honest with you, Ms. Berzon. On the 
Ninth Circuit Court of Appeals, we have people there that could 
care less what the law says. I mean, I hate to say it, and that 
is what causes me all kinds of problems here on the committee 
with putting Ninth Circuit Court of Appeals judges through 
because they are so afraid that we will just have more of the 
same.
    And I have had very liberal judges come up to me and say it 
is a disgrace what they are doing out there, and they are 
hurting all

[[Page 31]]

of us who are sincere liberals who really want to abide by the 
law and implement the law as it is written.
    Senator Smith. Mr. Chairman, could I just make a point on 
that? I understand what both of the nominees have said here, 
and as far as judicial activism is concerned, I agree with what 
Mr. Katzmann said about judicial activism. But what I am saying 
is if you apply the standard of judicial precedent strictly 
that you never overturn the law, the you never make a decision, 
then you would never have overturned--
    The Chairman. Nobody is going to--
    Senator Smith. Excuse me. You would never have overturned 
the Ferguson case of segregation and you never would have 
overturned the Dred Scott decision if there had been such a 
vote before the Court. And that is my only point and I am just 
saying that I believe abortion belongs in the same league with 
those other two cases. That is my point.
    The Chairman. Well, it is a good point, no question.
    Let me just say this, that I have seldom seen better 
qualified nominees for circuit court positions than the two of 
you. While we may differ on certain philosophical points, the 
fact of the matter is you are both highly qualified. You both 
have extensive experience in the law. And in your case, Ms. 
Berzon, you have been here--this is your second time, and it 
was an extensive, extensive hearing before that went on for 
hours and there is an extensive record with regard your 
nomination.
    There is another vote, so let me just say this. We are 
honored to have you here. The President has submitted both of 
you and we will see what we can do to move your nominations 
ahead. And we appreciate the forbearance that you have had, in 
particular, Ms. Berzon. And, Mr. Katzmann, I have known you for 
quite a period of time. I have great regard for you, as well as 
Ms. Berzon.
    There are many other questions we probably could ask, but I 
think in your case, Ms. Berzon, an awful lot of them have been 
asked. In your case, Mr. Katzmann, I am reasonably satisfied as 
to your qualifications and will do what I can to see that you 
both have an opportunity to serve on your respective circuits.
    I would just ask that when you get there, don't be activist 
judges; be judges who really abide by the law and set a 
standard for judges that help us so that it doesn't come down 
to an issue of liberal or conservative, but it comes down to an 
issue of understanding the role of judges in our society so 
that we don't hurt our society.
    But in any event, unless you have any further questions, 
Senator Smith, I think we will release both of you for today. 
We congratulate your families. I am going to do my best to have 
all of these judges who are up today on next week's markup. I 
can't do it by tomorrow because we do have written questions, 
and so forth. But by next week's markup, I will try and have 
you on the--and some of you may be put over for a week, so just 
understand the process. Anybody can put any item that appears 
first on the list over for one week, but then it has to be 
voted upon at the next markup. So we will move as expeditiously 
as we can.
    Ms. Berzon. Thank you very much, Senator Hatch.
    Mr. Katzmann. Thank you very much, Mr. Chairman and Senator 
Smith.

[[Page 32]]

    The Chairman. Thank you both for being willing to serve.
    [The questionnaires of Ms. Berzon and Mr. Katzmann follow:]
    The Chairman. Now, we have got about 15 minutes before I 
have to--we have got less than 15 minutes before I have to 
leave. I wonder if I can get the rest of you judgeship nominees 
to come take your seats. We have six chairs, so that ought to 
be all right.
    Now, let me say at the outset that I believe this is an 
excellent panel of judgeship nominees. We have extensively 
looked at your backgrounds and your service to your communities 
and to the legal profession at large. So I come at this from a 
position of wanting to support each and every one of you. But 
let me quickly go through some questions so that we won't keep 
you too long here today, and then I think what we will do is 
just start with you Mr. Ellison and go right across.
    Now, in general, Supreme Court precedents are binding on 
all lower Federal courts, and circuit court precedents are 
binding on all district courts within that particular circuit, 
as you all know.
    Now, is each of you committed to following the precedents 
of the higher courts faithfully and giving them full force and 
effect even if you personally disagree with such precedents?
    Mr. Ellison?

 TESTIMONY OF KEITH P. ELLISON, OF TEXAS, TO BE UNITED STATES 
       DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS

    Mr. Ellison. Yes, I am, Mr. Chairman.

  TESTIMONY OF GARY ALLEN FEESS, OF CALIFORNIA, TO BE UNITED 
  STATES DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Judge Feess. Yes, Mr. Chairman, without question.

  TESTIMONY WILLIAM ALLEN PEPPER, JR., OF MISSISSIPPI, TO BE 
   UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 
                          MISSISSIPPI

    Mr. Allen. Yes, sir, I am.
    The Chairman. Ms. Schreier?

 TESTIMONY OF KAREN E. SCHREIER, OF SOUTH DAKOTA, TO BE UNITED 
     STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA

    Ms. Schreier. Yes, Mr. Chairman, I definitely am.

TESTIMONY OF STEFAN R. UNDERHILL, OF CONNECTICUT, TO BE UNITED 
     STATES DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT

    Mr. Underhill. Absolutely, sir.

   TESTIMONY OF T. JOHN WARD, OF TEXAS, TO BE UNITED STATES 
        DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS

    Mr. Ward. Absolutely, Mr. Chairman.
    The Chairman. Thank you.

[[Page 33]]

    What would you do if you believed the Supreme Court or the 
court of appeals had seriously erred in rendering a particular 
decision? Would you nevertheless apply the decision on your own 
best judgment of the merits?
    Take, for example, the Supreme Court's recent decision in 
City of Boerne v. Flores, where the Court struck down the 
Religious Freedom Restoration Act.
    Mr. Ellison. Whether I agree with the decision or not, it 
is my obligation to apply it. The only option for a judge who 
bitterly disagrees with the decision of a higher court is to 
tender his resignation, never to disregard a higher court's 
authority.
    Judge Feess. I agree with that, Mr. Chairman.
    Mr. Pepper. I agree with that, Mr. Chairman.
    Ms. Schreier. I, too, Your Honor, would feel bound by the 
decision of the Supreme Court and would apply it.
    Mr. Underhill. I would feel compelled, Mr. Chairman, to 
apply the decision regardless of my personal views.
    The Chairman. No matter how lame-brained it may be?
    Mr. Underhill. Absolutely.
    Mr. Ward. That is correct. I agree one hundred percent.
    The Chairman. Well, I would be looking for some way of 
finding a way around the lame-brained decision, but the fact is 
you have all answered that the way I would like you to answer 
it.
    [Laughter.]
    The Chairman. You have stated that you would be bound by 
Supreme Court precedent and, where applicable, the rulings of 
the Federal circuit court of appeals for your district. There 
may be times, however, when you will be faced with cases of 
first impression.
    Now, I am tired of picking on you, Mr. Ellison, so I am 
going to start with you, Mr. Feess, because everybody agrees 
with you all the time. I get tired of that.
    [Laughter.]
    The Chairman. What principles will guide you, or what 
methods will you employ in deciding cases of first impression, 
Mr. Feess?
    Judge Feess. Mr. Chairman, I think that the first question 
that the judge should ask himself is, is it really first 
impression, because lawyers are always trying to convince you 
that they have got the new case, the different case, the case 
of first impression. So I think the first job is to determine 
is it truly a case of first impression.
    If so, the next step is to find out whether or not there is 
analogous precedent; is there something in another field or 
related field, something similar that the court can go to. If 
you are talking about a novel interpretation of a statute, of 
course, you have to go to the words of the statute and try to 
determine from the text what was contemplated in this unusual 
situation, as you posit it.
    But I think first determine is it truly novel; second, if 
it is really novel, find analogous precedent and then try to 
determine what--based upon recent Supreme Court jurisprudence 
where the Supreme Court might go with it if they had the 
question.
    The Chairman. I presume most all of you would agree with 
that. Anybody care to add anything to that?
    [No response.]

[[Page 34]]

    The Chairman. All right. Let's start with you, Ms. 
Schreier. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness under the Equal Protection Clause of the 14th 
Amendment and Federal civil rights laws, of the use of race, 
gender or national origin preferences in such areas as 
employment decisions, hiring, promotion or layoffs, college 
admission and scholarship awards, and the awarding of 
government contracts. In other words, what would be your best 
independent legal judgment?
    Ms. Schreier. Mr. Chairman, under the Adarand decision, if 
race were to be used in giving a preference in hiring decisions 
or any other decisions, the court would have to apply a 
standard of strict scrutiny to determine whether or not that 
preference met a very narrow limit to address the reason for 
using that racial preference.
    Under that strict scrutiny standard, it would be a very 
difficult standard to meet. It is a very high standard. And, in 
addition to that, the remedy would have to be tailored to 
address the reason why the preference was being used.
    The Chairman. Okay. Does anybody differ with that answer?
    [No response.]
    The Chairman. Now, you have heard the questions asked of 
the prior two panelists on capital punishment. Would any of you 
have any difficulty personally or otherwise in enforcing 
capital punishment?
    Mr. Underhill.
    Mr. Underhill. No, Your Honor--excuse me--
    The Chairman. That is all right.
    Mr. Underhill. No, Mr. Chairman, I would not.
    The Chairman. Mr. Ward?
    Mr. Ward. No, Mr. Chairman, I would not.
    The Chairman. Ms. Schreier?
    Ms. Schreier. No, Your Honor.
    Mr. Pepper. No, Mr. Chairman, I would not.
    Judge Feess. No, and, in fact, Mr. Chairman, I have 
presided over death penalty cases in my current position.
    The Chairman. Mr. Ellison?
    Mr. Ellison. I would be able to preside over such a case, 
Your Honor.
    The Chairman. I would have difficulty enforcing the death 
penalty. Even though I am for the death penalty, I would want 
it used very sparingly. But the fact is it is the law and you 
would be sworn to uphold that law and you are going to have to 
do it.
    Do you have any moral beliefs or legal beliefs which would 
inhibit you from applying the law in that area, any of you?
    Mr. Ellison. No.
    Mr. Ward. No, sir.
    The Chairman. Do you believe that 10-, 15-, or even 20-year 
delays between conviction of a capital offender and execution 
is too long? Do you believe that once Congress or a State 
legislature has made the policy decision that capital 
punishment is appropriate and that the Federal courts should 
focus their resources on resolving capital cases fairly and 
expeditiously--and I am talking about my own habeas corpus 
reform that the Supreme Court has upheld-

[[Page 35]]

-do you believe that we should have 15- and 20-year delays in 
enforcing capital punishment, Mr. Ward?
    Mr. Ward. Well, I would follow the reforms that you 
sponsored without question, Mr. Chairman, and I certainly think 
that 15 or 20 years is too long.
    The Chairman. Well, we found through the years that 
innovative lawyers just bring up appeal after appeal after 
appeal. And what we have done is we have provided for very 
extensive appeals rights, both up through the State courts and 
the Federal courts, but ultimately a finality to it that 
literally stops it from being much more than 3 years.
    Does anybody find any difficulty with that?
    Mr. Ward. No, sir.
    The Chairman. Doggone, there is no controversy in this 
group at all.
    [Laughter.]
    The Chairman. It is starting to bother me just a wee bit 
here. There are a lot of other questions that I have for you. I 
think what I am going to do is submit Senator Thurmond's 
questions and some of mine in writing.
    [The questions of Senator Thurmond follow:]
    [The questions of Senator Hatch follow:]
    The Chairman. I have confidence that all six of you--that 
each of you will make tremendous district court judges. I think 
you are good selections. I am proud to preside over your 
hearing, and I want to congratulate each of you and the 
President for having picked you.
    Now, I am going to keep the record open for additional 
questions until the close of business on Friday, and I would 
suggest that you immediately answer those questions because if 
you don't, I can't put you on next week's markup. So we will 
need those answers right back and I want to process you as 
quickly as I can.
    So I just want to congratulate each and every one of you 
and the President himself. You are all outstanding people, and 
we have had terrific Senators come and speak for you today and 
I have been very impressed with the remarks that they have had 
for each of you. So you ought to thank them because that plays 
a very significant role in this process, believe it or not.
    So with that, I think we will just recess until further 
notice and we will try to put you all on next Thursday's 
markup, the Thursday after tomorrow.
    Thank you so much.
    Mr. Ellison. Thank you, Mr. Chairman.
    Judge Feess. Thank you, Mr. Chairman.
    Mr. Ward. Thank you, Mr. Chairman.
    [The questionnaires of Mr. Ellison, Judge Feess, Mr. 
Pepper, Ms. Schreier, Mr. Underhill, and Mr. Ward follow:]
    [Whereupon, at 5:16 p.m., the committee was adjourned.]
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