[Senate Hearing 107-584]
[From the U.S. Government Publishing Office]
S. Hrg. 107-584, Pt. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 18, OCTOBER 25, NOVEMBER 7, DECEMBER 5, AND
DECEMBER 18, 2001
__________
PART 2
__________
Serial No. J-107-23
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
82-503 WASHINGTON : 2002
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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THURSDAY, OCTOBER 18, 2001
STATEMENTS OF COMMITTEE MEMBERS
Page
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 1
PRESENTERS
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico
presenting M. Christina Armijo, Nominee to be District Judge
for the District of New Mexico................................. 14
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Charles W. Pickering, Sr., Nominee to be Circuit
Judge for the Fifth Circuit.................................... 7
Domenici, Hon. Pete V., a U.S. Senator from the State of New
Mexico presenting M. Christina Armijo, Nominee to be District
Judge for the District of New Mexico........................... 13
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Charles W. Pickering, Sr., Nominee to be District
Judge for the Fifth Circuit.................................... 5
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma
presenting Stephen P. Friot, Nominee to be District Judge for
the Western District of Oklahoma............................... 12
Pickering, Hon. Charles W., Jr., a Representative in Congress
from the State of Mississippi presenting Charles W. Pickering,
Sr., Nominee to be Circuit Judge for the Fifth Circuit......... 8
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting Larry R. Hicks, Nominee to be District Judge for the
District of Nevada............................................. 9
Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama
presenting Karon O. Bowdre, Nominee to be District Judge for
the Northern District of Alabama............................... 14
STATEMENTS OF THE NOMINEES
Armijo, M. Christine, of New Mexico, Nominee to be District Judge
for the District of New Mexico................................. 78
Questionnaire................................................ 79
Bowdre, Karon O., of Alabama, Nominee to be District Judge for
the Northern District of Alabama............................... 112
Questionnaire................................................ 113
Friot, Stephen P., of Oklahoma, Nominee to be District Judge for
the Western District of Oklahoma............................... 147
Questionnaire................................................ 148
Hicks, Larry R., of Nevada, Nominee to be District Judge for the
District of Nevada............................................. 189
Questionnaire................................................ 190
Pickering, Charles W., Sr., of Mississippi, Nominee to be Circuit
Judge for the Fifth Circuit.................................... 15
Questionnaire................................................ 17
QUESTIONS AND ANSWERS
Responses of M. Christina Armijo to questions submitted by
Senator Leahy.................................................. 262
Responses of Karon O. Bowdre to questions submitted by Senator
Leahy.......................................................... 264
Responses of Stephen P. Friot to questions submitted by Senator
Leahy.......................................................... 266
Responses of Larry R. Hicks to questions submitted by Senator
Leahy.......................................................... 268
Responses of Charles W. Pickering, Sr. to questions submitted by
Senator Leahy.................................................. 269
SUBMISSION FOR THE RECORD
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama,
statement in support of Karon O. Bowdre, Nominee to be District
Judge for the Northern District of Alabama..................... 271
THURSDAY, OCTOBER 25, 2001
STATEMENTS OF COMMITTEE MEMBERS
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 518
Edwards, Hon. John, a U.S. Senator from the State of North
Carolina....................................................... 273
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 505
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 275
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 502
PRESENTERS
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico:
presenting Harris L. Hartz, Nominee to be Circuit Judge for
the Tenth Circuit.......................................... 275
presenting William P. Johnson, Nominee to be District Judge
for the District of New Mexico............................. 276
Breaux, Hon. John B., a U.S. Senator from the State of Louisiana
presenting Kurt D. Engelhardt, Nominee to be District Judge for
the Eastern District of Louisiana.............................. 276
Domenici, Hon. Pete V., a U.S. Senator from the State of New
Mexico:
presenting Harris L. Hartz, Nominee to be Circuit Judge for
the Tenth Circuit.......................................... 274
presenting William P. Johnson, Nominee to be District Judge
for the District of New Mexico............................. 275
Hyde, Hon. Henry J., a Representative in Congress from the State
of Illinois presenting Sharee M. Freeman, Nominee to be
Director of the Community Relations Service, Department of
Justice........................................................ 278
Landrieu, Hon. Mary L., a U.S. Senator from the State of
Louisiana presenting Kurt D. Engelhardt, Nominee to be District
Judge for the Eastern District of Louisiana.................... 277
Morella, Hon. Constance A., a Representative in Congress from the
State of Maryland presenting John D. Bates, Nominee to be
District Judge for the District of Columbia.................... 279
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia presenting John D. Bates, Nominee to be
District Judge for the District of Columbia.................... 281
Vitter, Hon. David, a Representative in Congress from the State
of Louisiana presenting Kurt D. Engelhardt, Nominee to be
District Judge for the Eastern District of Louisiana........... 280
Warner, Hon. John W., a U.S. Senator from the State of Virginia
presenting Sharee M. Freeman, Nominee to be Director of the
Community Relations Service, Department of Justice............. 278
STATEMENTS OF THE NOMINEES
Bates, John D., of Maryland, Nominee to be District Judge for the
District of Columbia........................................... 377
Questionnaire................................................ 378
Engelhardt, Kurt D., of Louisiana, Nominee to be District Judge
for the Eastern District of Louisiana.......................... 333
Questionnaire................................................ 334
Freeman, Sharee M., of Illinois, Nominee to be Director of the
Community Relations Service, Department of Justice............. 469
Questionnaire................................................ 472
Hartz, Harris L., of New Mexico, Nominee to be Circuit Judge for
the Tenth Circuit.............................................. 283
Questionnaire................................................ 284
Johnson, William P., of New Mexico, Nominee to be District Judge
for the District of New Mexico................................. 411
Questionnaire................................................ 412
QUESTIONS AND ANSWERS
Responses of John D. Bates to questions submitted by Senator
Leahy.......................................................... 506
Responses of John D. Bates to questions submitted by Senator
Durbin......................................................... 507
Responses of Kurt D. Engelhardt to questions submitted by Senator
Leahy.......................................................... 509
Responses of Kurt D. Engelardt to questions submitted by Senator
Durbin......................................................... 510
Responses of Harris L. Hartz to questions submitted by Senator
Leahy.......................................................... 511
Responses of Harris L. Hartz to questions submitted by Senator
Durbin......................................................... 513
Responses of Harris L. Hartz to a question submitted by Senator
Edwards........................................................ 514
Responses of William P. Johnson to questions submitted by Senator
Durbin......................................................... 514
Responses of William P. Johnson to questions submitted by Senator
Leahy.......................................................... 516
WEDNESDAY, NOVEMBER 7, 2001
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 519
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 735
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 754
PRESENTERS
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas
presenting Julia A. Robinson, Nominee to be District Judge for
the District of Kansas......................................... 525
Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky
presenting Danny C. Reeves, Nominee to be District Judge for
the Eastern District of Kentucky............................... 522
Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma
presenting Joe L. Heaton, Nominee to be District Judge for the
Western District of Oklahoma................................... 520
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona
presenting Frederick J. Martone, Nominee to be District Judge
for the District of Arizona.................................... 527
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky
presenting Danny C. Reeves, Nominee to be District Judge for
the Eastern District of Kentucky............................... 521
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma
presenting Joe L. Heaton, Nominee to be District Judge for the
Western District of Oklahoma................................... 522
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas
presenting Julie A. Robinson, Nominee to be District Judge for
the District of Kansas......................................... 523
STATEMENTS OF THE NOMINEES
Heaton, Joe L., of Oklahoma, Nominee to be District Judge for the
Western District of Oklahoma................................... 569
Questionnaire................................................ 570
Land, Clay D., of Georgia, Nominee to be District Judge for the
Middle District of Georgia..................................... 600
Questionnaire................................................ 601
Martone, Frederick J., of Arizona, Nominee to be District Judge
for the District of Arizona.................................... 638
Questionnaire................................................ 639
Reeves, Danny C., of Kentucky, Nominee to be District Judge for
the Eastern District of Kentucky............................... 674
Questionnaire................................................ 675
Robinson, Julie A., of Kansas, Nominee to be District Judge for
the District of Kansas......................................... 529
Questionnaire................................................ 530
Rogan, James E., of California, Nominee to be Under Secretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office, Department of Commerce..... 710
Questionnaire................................................ 712
QUESTIONS AND ANSWERS
Responses of Joe L. Heaton to questions submitted by Senator
Leahy.......................................................... 741
Responses of Clay D. Land to questions submitted by Senator Leahy 744
Responses of Frederick J. Martone to questions submitted by
Senator Leahy.................................................. 745
Responses of Danny C. Reeves to questions submitted by Senator
Leahy.......................................................... 747
Responses of Julie A. Robinson to questions submitted by Senator
Leahy.......................................................... 750
Responses of James E. Rogan to questions submitted by Senator
Leahy.......................................................... 752
SUBMISSIONS FOR THE RECORD
Cleland, Hon. Max, a U.S. Senator from the State of Georgia,
statement in support of Clay D. Land, Nominee to be District
Judge for the Middle District of Georgia....................... 754
Miller, Hon. Zell, a U.S. Senator from the State of Georgia,
statement in support of Clay D. Land, Nominee to be District
Judge for the Middle District of Georgia....................... 755
Senate Republican High Tech Task Force, letter in support of
James E. Rogan, Nominee to be Under Secretary of Commerce for
Intellectual Property and Director of the United States Patent
and Trademark Office........................................... 756
WEDNESDAY, DECEMBER 5, 2001
STATEMENTS OF COMMITTEE MEMBERS
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 757
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 759
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 763
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 758
PRESENTERS
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado
presenting Marcia S. Krieger, Nominee to be District Judge for
the District of Colorado....................................... 768
Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of
Colorado presenting Marcia S. Krieger, Nominee to be District
Judge for the District of Colorado............................. 761
Ensign, Hon. John, a U.S. Senator from the State of Nevada
presenting James C. Mahan, Nominee to be District Judge for the
District of Nevada............................................. 772
Graham, Hon. Bob, a U.S. Senator from the State of Florida
presenting Mauricio J. Tamargo, Nominee to be Chair of the
Foreign Claims Settlement Commission of the United States...... 767
Gramm, Hon. Phil, a U.S. Senator from the State of Texas
presenting Philip R. Martinez, Nominee to be District Judge for
the Western District of Texas.................................. 769
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Philip R. Martinez, Nominee to be District
Judge for the Western District of Texas........................ 764
Meek, Hon. Carrie, a Representative in Congress from the State of
Florida presenting Mauricio J. Tamargo, Nominee to be Chair of
the Foreign Claims Settlement Commission of the United States.. 775
Miller, Hon. Zell, a U.S. Senator from the State of Georgia
presenting C. Ashley Royal, Nominee to be District Judge for
the Middle District of Georgia................................. 773
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting James C. Mahan, Nominee to be District Judge for the
District of Nevada............................................. 760
Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the
State of Florida presenting Mauricio J. Tamargo, Nominee to be
Chair of the Foreign Claims Settlement Commission of the United
States......................................................... 774
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama
presenting Callie V. Granade, Nominee to be District Judge for
the Southern District of Alabama............................... 770
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Mauricio J. Tamargo, Nominee to be Chair of the
Foreign Claims Settlement Commission of the United States...... 766
STATEMENTS OF THE NOMINEES
Granade, Callie V., of Alabama, Nominee to be District Judge for
the Southern District of Alabama............................... 776
Questionnaire................................................ 778
Krieger, Marcia S., of Colorado, Nominee to be District Judge for
the District of Colorado....................................... 825
Questionnaire................................................ 826
Mahan, James C., of Nevada, Nominee to be District Judge for the
District of Nevada............................................. 873
Questionnaire................................................ 874
Martinez, Philip R., of Texas, Nominee to be District Judge for
the Western District of Texas.................................. 907
Questionnaire................................................ 908
Royal, C. Ashley, of Georgia, Nominee to be District Judge for
the Middle District of Georgia................................. 963
Questionnaire................................................ 964
Tamargo, Mauricio J., of Virginia, Nominee to be Chair of the
Foreign Claims Settlement Commission of the United States...... 1012
Questionnaire................................................ 1014
QUESTIONS AND ANSWERS
Responses of Mauricio Tamargo to questions submitted by Senator
Leahy.......................................................... 1033
Responses of Mauricio Tamargo to questions submitted by Senator
Durbin......................................................... 1035
SUBMISSIONS FOR THE RECORD
Nelson, Hon. Bill, a U.S. Senator from the State of Florida,
statement in support of Mauricio J. Tamargo, Nominee to be
Chair of the Foreign Claims Settlement Commission of the United
States......................................................... 1036
Reyes, Hon. Silvestre, a Representative in Congress from the
State of Texas, letter in support of Philip R. Martinez,
Nominee to be District Judge for the Western District of Texas. 1036
Shelby, Hon. Richard C., a U.S. Senator from the State of
Alabama, statement in support of Callie V. Granade, Nominee to
be District Judge for the Southern District of Alabama......... 1037
MONDAY, DECEMBER 10, 2001
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1042
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1039
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1089
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 1129
PRESENTER
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky
presenting David L. Bunning, Nominee to be District Judge for
the Eastern District of Kentucky............................... 1048
STATEMENT OF THE NOMINEE
Bunning, David L., of Kentucky, Nominee to be District Judge for
the Eastern District of Kentucky............................... 1049
Questionnaire................................................ 1051
WITNESSES
Famularo, Joseph L., Deputy Secretary, Commonwealth of Kentucky,
Frankfort, Kentucky............................................ 1126
Forester, Hon. Karl S., Chief Judge, U.S. District Court for the
Eastern District of Kentucky, Lexington, Kentucky.............. 1121
Hood, Hon. Joseph M., Judge, U.S. District Court for the Eastern
District of Kentucky, Lexington, Kentucky...................... 1124
Trimmier, Roscoe, Jr., Chair, American Bar Association Standing
Committee on Federal Judiciary; and David C. Weiner, Sixth
Circuit Representative, American Bar Association Standing
Committee on Federal Judiciary; accompanied by Judah Best,
American Bar Association Standing Committee on Federal
Judiciary, Washington, D.C..................................... 1097
Wilhoit, Hon. Henry R., Jr., Senior District Judge, U.S. District
Court for the Eastern District of Kentucky, Ashland, Kentucky.. 1117
QUESTIONS AND ANSWERS
Questions submitted to the American Bar Association by Senator
Leahy.......................................................... 1131
Questions submitted to the David L. Bunning by Senator Leahy..... 1131
Questions submitted to the Judicial Panel by Senator Leahy....... 1132
SUBMISSIONS FOR THE RECORD
Chandler, Hon. Albert B., III, Attorney General, Commonwealth of
Kentucky, Frankfort, Kentucky, statement....................... 1133
De Falaise, Louis, Attorney, Fairfax, Virginia, letter........... 1133
Duncan, Robert M., Treasurer, Republican National Committee,
letter......................................................... 1134
Dusing, Gerald F., Attorney, Adams, Stepner, Woltermann & Dusing,
P.L.L.C., Covington, Kentucky, letter.......................... 1134
Famularo, Joseph L., Attorney, Lexington, Kentucky, letter....... 1135
Hatfield, Martin L., Somerset, Kentucky, letter.................. 1136
Hellings, Harry P., Jr., Attorney, Hellings & Pisacano, P.S.C.,
Covington, Kentucky, letter.................................... 1136
Jackson, Sarah, Union, Kentucky, letter.......................... 1137
Mando, Jeffrey C., Attorney, Adams, Stepner, Wolthermann &
Dusing, P.L.L.C., Covington, Kentucky, letter.................. 1137
Parry, Ron R., Attorney, Parry Deering Futscher & Sparks, P.S.C.,
Covington, Kentucky, letter.................................... 1138
Prewitt, Thomas A., Attorney, Graydon Head & Ritchey, LLP,
Florence, Kentucky, letter..................................... 1139
Rawlins, Robert E., Attorney, Lexington, Kentucky, letter........ 1139
Ream, Randy, Attorney, Mt. Washington, Kentucky, letter.......... 1140
Robinson, William T., III, Attorney, Greenebaum Doll & McDonald,
PLLC, Covington, Kentucky, letter.............................. 1141
Schaffner, Charles H., Attorney, Covington, Kentucky, letter and
attachment..................................................... 1142
Smith, J. Stephen, Attorney, Taft, Stettinius & Holllister LLP,
Covington, Kentucky, letter.................................... 1143
Storm, Beverly R., Attorney, Arnzen & Wentz, P.S.C., Covington,
Kentucky, letter............................................... 1143
Taliaferro, Philip, Attorney, Taliaferro, Mehling, Shirooni,
Carran & Keys, PLLC, Covington, Kentucky, letter............... 1144
Vesper, Paul J., Attorney, Covington, Kentucky, letter........... 1144
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ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS
Armijo, M. Christine, of New Mexico, Nominee to be District Judge
for the District of New Mexico................................. 78
Bates, John D., of the District of Columbia, Nominee to be
District Judge for the District of Columbia.................... 377
Bowdre, Karon O., of Alabama, Nominee to be District Judge for
the Northern District of Alabama............................... 112
Bunning, David L., of Kentucky, Nominee to be District Judge for
the Eastern District of Kentucky............................... 1049
Engelhardt, Kurt D., of Louisiana, Nominee to be District Judge
for the Eastern District of Louisiana.......................... 333
Freeman, Sharee M., of Illinois, Nominee to be Director of the
Community Relations Service, Department of Justice............. 469
Friot, Stephen P., of Oklahoma, Nominee to be District Judge for
the Western District of Oklahoma............................... 147
Granade, Callie V., of Alabama, Nominee to be District Judge for
the Southern District of Alabama............................... 776
Hartz, Harris L., of New Mexico, Nominee to be Circuit Judge for
the Tenth Circuit.............................................. 283
Heaton, Joe L., of Oklahoma, Nominee to be District Judge for the
Western District of Oklahoma................................... 569
Hicks, Larry R., of Nevada, Nominee to be District Judge for the
District of Nevada............................................. 189
Johnson, William P., of New Mexico, Nominee to be District Judge
for the District of New Mexico................................. 411
Krieger, Marcia S., of Colorado, Nominee to be District Judge for
the District of Colorado....................................... 825
Land, Clay D., of Georgia, Nominee to be District Judge for the
Middle District of Georgia..................................... 600
Mahan, James C., of Nevada, Nominee to be District Judge for the
District of Nevada............................................. 873
Martinez, Philip R., of Texas, Nominee to be District Judge for
the Western District of Texas.................................. 907
Martone, Frederick J., of Arizona, Nominee to be District Judge
for the District of Arizona.................................... 638
Pickering, Charles W., Sr., of Mississippi, Nominee to be Circuit
Judge for the Fifth Circuit.................................... 15
Reeves, Danny C., of Kentucky, Nominee to be District Judge for
the Eastern District of Kentucky............................... 674
Robinson, Julie A., of Kansas, Nominee to be District Judge for
the District of Kansas......................................... 529
Rogan, James E., of California, Nominee to be Under Secretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office, Department of Commerce..... 710
Royal, C. Ashley, of Georgia, Nominee to be District Judge for
the Middle District of Georgia................................. 963
Tamargo, Mauricio J., of Virginia, Nominee to be Chair of the
Foreign Claims Settlement Commission of the United States...... 1012
NOMINATION OF CHARLES W. PICKERING, SR., OF MISSISSIPPI, TO BE CIRCUIT
JUDGE FOR THE FIFTH CIRCUIT; M. CHRISTINA ARMIJO, OF NEW MEXICO, TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO; KARON O. BOWDRE, OF
ALABAMA, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA;
STEPHEN P. FRIOT, OF OKLAHOMA, TO BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF OKLAHOMA; AND LARRY R. HICKS, OF NEVADA, TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA
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THURSDAY, OCTOBER 18, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:06 p.m., in
room S-128, United States Capitol, Hon. Charles Schumer
presiding.
Present: Senators Schumer, Leahy, Kennedy, Durbin, and
DeWine.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. The Committee will be in order. I want to
thank all of my colleagues and our nominees today for coming.
First, on behalf of all of us, I want to apologize to
everybody that we are under such cramped circumstances. We know
what an important and happy day this is for the families of
those who are coming before us. Usually, we have a much nicer
room across the way, but obviously due to the circumstances you
have all read about, we can't be there. This room is more
beautiful than the one we usually have the hearings in. I think
even our Chairman would agree with that, but it is not as big,
it is not as large. But we thank you.
We wanted to meet today, and that was a decision made by
Senators Daschle and Lott, and Senators Leahy and Hatch,
because we think it is very important that we continue the
business of the Senate. We want to set a tone for the Nation,
and the fact that we are here today sends a message that while
the terrorists may force us to close our buildings for a few
days, they won't close the Senate for even one. So we are
meeting here, even though our buildings where we usually have
the hearings are closed.
So we are getting on with the business of the country and
we are not going to let the misguided acts of an evil few keep
us from doing our work for the many. So that is why we are
here, Republicans and Democrats, united as Americans, to ensure
that our courts can continue.
We appreciate all our colleagues who have come, and we will
get right on to their statements. And we very much appreciate
all the families who have come from far away, many of you, to
be here today. Thank you for understanding where we are at.
With that, let me call on Senator DeWine. Senator Sessions
is the ranking member of our Subcommittee, but couldn't be here
today and is ably substituted for by Senator DeWine from Ohio.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator DeWine. Mr. Chairman, thank you very much. I thank
you for holding the hearing today, and I certainly do not want
to hold up our colleagues here. It is quite a distinguished
group of Senators and Congressmen, and I am looking forward to
hearing the testimony.
Senator Schumer. Thank you.
Senator Leahy, the Chairman of our Committee.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. I appreciate you holding this hearing. This
is the Appropriations Committee room. A number of us here serve
on Appropriations and are familiar with it. I also apologize to
everybody, but we either held it here or we didn't have a
hearing at all.
Senator Lott and Senator Daschle are right to have us in
session today. I understand the police have required the major
office buildings where our offices are to be closed, but I
agree with Senator Schumer that the United States Senate should
always be open for business; even in a truncated fashion, it
should be. We represent a quarter of a billion people and we
should be here. Just as we can ask some 17-year-old to stand
sentry duty in Kosovo next to a mind field in the middle of the
night, U.S. Senators should be here. I am glad to have the two
Republican Leaders and the Democratic Leader here.
Actually, we received Judge Pickering's nomination just
before the August recess. It was returned and came back on
September 5, so this hearing will be on the September 5
nomination. We have had some vacancies in the Fifth Circuit.
Since April 7, 1999, the seat previously occupied by Judge Duhe
has been vacant.
President Clinton nominated Alston Johnson to fill that
vacancy on April 22, 1999. He was never given a hearing by the
Judiciary Committee, under different Chairmanship. I mention
this just so people understand the history of what is going on
here.
Since January 23, 1997, four years ago, Judge Garwood's
seat on the Fifth Circuit has been vacant. President Clinton
nominated Jorge Rangel to fill this vacancy in July of 1997.
Mr. Rangel was never even given a hearing by this Committee.
His nomination was returned to the President without Senate
action on October 21, 1998. On September 16, 1999, President
Clinton nominated Enrique Moreno to fill the same vacancy. This
Committee never gave him a hearing and it was returned.
I just mention this because we had 23 months, 2
nominations, without action. Finally, President Bush withdrew
the last of the Clinton nomination names. So in the last 7
years, there has not been a nomination hearing on any of
President Clinton's nominees to the Fifth Circuit.
The first nomination hearing on a nominee to the Fifth
Circuit in 7 years was the one I noticed for October 4, 2001,
at which the Committee heard from Judge Edith Brown Clement, of
Louisiana. After 7 years without a single hearing, this hearing
for Judge Pickering is the second nomination hearing on a
nominee to the Fifth Circuit this Committee has held this
month.
I would point out that President Clinton made dozens upon
dozens upon dozens of nominations to fill a lot of these
vacancies, including on the Fifth Circuit. The predecessor
Committee refused to even hold hearings on them. We have held
two hearings in a month.
I thank the Senator from New York, who, of all people, with
all that has gone on in New York, would have had every reason
to cancel these hearings today and gone back to his State,
where he has done unbelievable service to the people of New
York in trying to put that State and that city back together,
as have Governor Pataki and Mayor Giuliani and Senator Clinton,
and the Members of the House, Republican and Democrat, from
that State. I thank him for holding the hearing.
I will put everything else in the record. Because there
seems to be some confusion from the statistics I have heard on
the floor, I thought it might be good to put this in the
record.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I begin by thanking Senator Schumer, the Chair of the Courts
Subcommittee, for also chairing this hearing on judicial nominations.
This is an extraordinary time in the Senate. All three Senate office
buildings have been closed in the wake of Senate employees testing
positive for anthrax. Nonetheless, the Judiciary Committee is seeking
to proceed with this hearing today.
Judge Charles W. Pickering was first nominated to a vacancy on the
5th Circuit on May 25. Unfortunately, due to the change in
the nomination process adopted by President Bush, his ABA peer review
was not received until late July, just before the August recess. At
that point we were concentrating on expediting the confirmation hearing
of the new Director of the Federal Bureau of Investigation, who was
confirmed in record time before the August recess. As a result of the
objection of the Republican Leader to a request to retain nominations
pending before the Senate, including all judicial nominations, through
the August recess, that initial nomination of Judge Pickering was
required by Senate Rules to be returned to the President without
action. Judge Pickering was renominated last month, on September 5. It
is that September 5 nomination of Judge Pickering on which we proceed
today, less than six weeks after receiving the President's nomination.
Judge Pickering is nominated to serve on the United States Court of
Appeals for the Fifth Circuit, which encompasses the States of
Mississippi, Texas and Louisiana. This is one of the many Circuits that
were left with multiple vacancies through the end of the Clinton
Administration. Since April 7, 1999, the seat previously occupied by
Judge Duhe of the 5th Circuit has been vacant. Although
President Clinton nominated Alston Johnson to fill that vacancy only 15
days later, on April 22, 1999, Mr. Johnson was never granted a hearing
by the Judiciary Committee, then chaired by Senator Hatch. Since
January 23, 1997, Judge Garwood's seat on the 5th Circuit
has been vacant. Despite the fact that President Clinton nominated
Jorge Rangel to fill this vacancy in July of 1997, Mr. Rangel never
received a hearing and his nomination was returned to the President
without Senate action on October 21, 1998. On September 16, 1999,
President Clinton nominated Enrique Moreno to fill the same vacancy.
Once again, the nominee did not receive a hearing and his nomination
was returned to the President without action.
Over the last several years I have commented on those vacancies as
I urged action on the nominations of Jorge Rangel, Enrique Moreno and
Alston Johnson to fill vacancies on the 5th Circuit. None of
those nominees was ever provided a hearing before the Judiciary
Committee or acted upon by the Senate. After 15 months without action,
Mr. Rangel asked not to be re-nominated. After 15 months and two
nominations, Enrique Moreno's nomination was returned to the President
without action. After nearly 23 months and two nominations without
action, Mr. Johnson's nomination was withdrawn by President Bush in
March of 2001.
For the last seven years there has not been a nominations hearing
on any of President Clinton's nominees to the 5th Circuit.
The first nominations hearing on a nominee to the 5th
Circuit in seven years was the one I noticed for October 4, 2001, at
which the Committee heard from Judge Edith Brown Clement of Louisiana,
who is another pending nomination of President Bush to the
5th Circuit. After seven years without a single hearing,
this hearing for Judge Pickering is the second nomination hearing on a
nominee to the 5th Circuit that this Committee has held this
month.
Since 1999, Chief Judge King of the 5th Circuit has
declared the 5th Circuit in a state of emergency such that
the hearing and determination of cases and controversies could be
conducted by panels of three judges selected without regard to the
qualification in 28 U.S.C. Sec. 46(b) that a majority of each panel be
composed of judges of the 5th Circuit. That means that
5th Circuit cases are being heard and decided by three-judge
panels with only one 5th Circuit judge. I recall when delays
in the confirmation process threw the 2nd Circuit into a
similar emergency in March of 1998, and how hard I worked to get those
vacancies filled to end that emergency in my Circuit. By proceeding
with Judge Clement and Judge Pickering this Committee has adopted a
different approach from the last several years and is proceeding to
consider President Bush's nominees to the 5th Circuit.
Since the Senate was allowed to reorganize and the Committee
membership was set, we have maintained a sustained effort to consider
judicial and executive nominees. Today, at our Executive Session, the
agenda contained the names of another 13 nominees for United States
Attorneys, the Assistant Attorney General for the Office of Legal
Counsel and four additional District Court nominees from Oklahoma,
Kentucky and Nebraska. We have already confirmed since July more Court
of Appeals nominees than were confirmed during the first year of the
Clinton Administration and, for that matter, more Court of Appeals
nominees than were reported by this Committee in all of last year. With
two hearing on two candidates to the 5th Circuit this month,
I hope that we will soon be able to send that Circuit some help, as
well.
At this hearing we consider five more judicial nominees. Along with
Judge Pickering, we have before us nominees for District Court
vacancies in Alabama, New Mexico, Nevada and another in Oklahoma.
Despite the upheaval we have experienced this year with the shifts in
the Senate majority and, more importantly, the need to focus our
attention on responsible action in the fight against international
terrorism, we are ahead of the pace for hearings and confirmations of
judges during the first year of the Clinton Administration and during
the first year of the first Bush Administration.
The recent vicious attacks on our people have given all of us a
heightened awareness of the critical importance of our civil liberties,
of the many possible threats to those freedoms, and of the necessity of
responding to the challenge of international terrorism without
sacrificing what is best about America. This is serious and important
work and our federal judges will be a key component in guarding our
freedoms. Our system of checks and balances requires that the judicial
branch review the acts of the political branches. I will want to be
confident that the nominees before us today will take this
responsibility seriously and will rely on their experience and on our
rich history of judicial precedent to make wise decisions in the
challenging times ahead.
I apologize to the nominees, their families and most importantly to
the public for the manner in which we are being required to proceed.
Our normal hearing room is closed to us. This is a beautiful room and
one of my favorite Senate rooms. The distinguished Chairman of the
Appropriations Committee has graciously extended to us his hospitality.
We thank him for making it possible for us to proceed at all.
Unfortunately, the room does not accommodate the number of people we
would like and are used to being able to be present. We are doing the
best that we can under these extraordinary circumstances.
Senator Schumer. Thank you, Senator Leahy.
Senator Kennedy?
Senator Kennedy. No, thank you, Mr. Chairman.
Senator Schumer. Then let us move right along to our first
panel of witnesses. We will be hearing from the nominees on the
second panel. We thank all of you for coming. We know you are
very busy, so let's get right on to the business and let me
start with Senator Lott to speak about the nomination of
Charles W. Pickering for the Fifth Circuit Court of Appeals.
PRESENTATION OF CHARLES W. PICKERING, SR., NOMINEE TO BE
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. TRENT LOTT, A U.S.
SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Thank you, Chairman Schumer, and thank you,
Chairman Leahy. I am even more honored than usual to appear
before this fine Committee, because you are having this hearing
today in spite of many distractions and in these particular
facilities which are not quite large enough, but are very
historic, and also because of the number of judges that you are
hearing about today, and about Judge Charles Pickering.
One of the reasons why the room is a little crowded is
because a few of the very large Pickering clan happen to be in
the room, including Ms. Pickering who is over here with four or
five of the grandchildren. I lost count of how many
grandchildren they have. The son of Judge Pickering,
Congressman Chip Pickering, is here today, and Chip's wife,
Leisha, is here. This is an outstanding family and I just had
to refer to them.
In view of the fact that we have got so many of my
colleagues here, I am going to be brief, but let me just say
that I have known Judge Pickering for, I guess, about 40 years.
I know him to be a gentleman and a scholar.
He has had an outstanding record for 11 years now as a
Federal Judge for the Southern District of Mississippi. He is
widely supported by Democrats and Republicans and by plaintiff
and defense attorneys, and is generally recognized as having
been a very active judge and has done an awful lot to clear up
the backlog on the docket.
When I said he is a scholar, he graduated first in his
class from law school and received his undergraduate degree
with honors. He has always been very involved in academic
efforts and involved in bar association activities, and he is
very much involved in religious and charitable pursuits, also,
in Mississippi.
He served on the board of directors of the Institute for
Racial Reconciliation at the University of Mississippi, our
alma mater. He headed the March of Dimes in his home county. He
has headed the Red Cross in his home county. He is involved in
the Drug Education Council, and the list is endless.
He also, interestingly enough--you might want to know
this--he was one of the forerunners and founders of the cat
food--catfish industry in Mississippi.
Senator Cochran. Cat food?
[Laughter.]
Senator Lott. Cat food, yes. Some people think that is what
it is good for.
Chairman Leahy. Does that qualify him?
Senator Lott. Yes, that does qualify him.
Chairman Leahy. Senator Cochran has made sure I have gone
to some of those places.
Senator Lott. And raising the catfish and the business
aspects of it, and also how you can't fail in some agricultural
pursuits. He was the first president of the National Catfish
Farmers Association. Now, this is an important part of this
man's--
Chairman Leahy. You keep right on there, Mr. Leader; you
keep right on there.
[Laughter.]
Senator Lott. He has got a breadth of experience and
qualifications, and I am pleased that the President has
nominated him for the Firth Circuit and eventually he will be
credit to the Fifth Circuit. I apologize for the catfish
industry for mutilating that.
Thank you, Mr. Chairman.
[The prepared statement of Senator Lott follows:]
Statement of Hon. Trent Lott, a U.S. Senator from the State of
Mississippi
I am pleased to be here today to personally introduce Judge Charles
Pickering to this Committee, and to Strongly support his nomination to
be a United States Court of Appeals Judge for the Fifth Circuit.
As many members of this Committee will recall, Judge Pickering was
unanimously approved by the Committee in September of 1990 to be a
United States District Court Judge for the Southern District of
Mississippi. He was then unanimously confirmed by the full Senate. He
has served honorably in this position for 11 years, and I am happy that
the President has nominated Charles for a promotion to the Fifth
Circuit.
Charles and I have known each other for approximately 40 years,
which doesn't seem possible, and I can personally attest that there is
no other person in the State of Mississippi who is more eminently
qualified to serve on the Fifth Circuit Court of Appeals.
Charles Pickering graduated first in his class from the University
of Mississippi Law School in 1961, and received his B.A. degree from
Ole Miss with honors in 1959. He practiced law for almost 30 years in
Jones County, Mississippi, serving stints as the prosecuting attorney
for Jones County the City of Laurel during the 1960's. From 1972 to
1980, Charles served in the Mississippi State Senate. This was a part
time position--with full-time demands I might add--that allowed him to
continue his law practice during this period.
Judge Pickering has had an impeccable reputation on the bench in
Mississippi, and he is respected by all sectors of the Mississippi and
national legal community. A substantial majority of the members of the
ABA's Standing Committee on the Federal Judiciary found him Well
Qualified for appointment as a Fifth Circuit judge.
Furthermore, he is highly respected within the federal judiciary.
He served on the Board of Directors of the Federal Judges Association
from 1997until this year, and was a member of the Executive Committee
for the final two years of this term. He currently serves on the
Judicial Branch Committee of the Judicial Conference of the United
States, having been appointed by Chief Justice Rehnquist in 1997.
Judge Pickering has been involved in numerous community and public
service endeavors. He serves on the Board of Directors of the Institute
for Racial Reconciliation at the University of Mississippi, our mutual
alma mater, and in the past has headed the March of Dimes campaign in
Jones County, Mississippi, and served as Chairman of the Jones County
Chapter of the American National Red Cross.
He has also volunteered for the Jones County Heart Fund, the Jones
County Drug Education Council, and the Economic Development Authority
of Jones County. He has always been very active in his church, serving
as a Sunday School teacher, Chairman of the Deacons, Sunday School
Superintendent, and Church Treasurer. From 1983-85, he was the
President of the Mississippi Baptist Convention.
In addition to his many professional and civic activities, Charles
Pickering has also been a good farmer. He was the first president of
the National Catfish Farmers Association and was a leader in catfish
farming during the early days.
Perhaps most importantly, thought, is the fact that Charles has
always put his family first, even with the commitments I have just
described. He has a wonderful wife and four grown children with spouses
and families of their own. I want to particularly welcome his son,
Congressman Chip Pickering, who is a former member of my staff.
Mr. Chairman, I am pleased that the Committee has moved forward
with this hearing today, because the Senate needs to act quickly to
confirm Judge Pickering. He is exceptionally well-qualified for
elevation to the Fifth Circuit, and I strongly endorse his nomination.
Senator Schumer. Thank you, Senator Lott.
In New York, Judge, we are more familiar with cat food than
catfish anyway, so that wasn't so bad from our point of view.
Also here to support the nomination of Judge Pickering to
the Fifth Circuit is Senator Cochran.
PRESENTATION OF CHARLES W. PICKERING, SR., NOMINEE TO BE
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. THAD COCHRAN, A
U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much for the
convening of the hearing and the consideration of this
nomination.
In my view, Judge Pickering is one of the finest district
judges we have had to serve in our State. He has demonstrated a
sense of fairness and judicial demeanor that has reflected
credit on the Federal judiciary. He has become known as
somebody who tries to do what is right, but he is also guided
by the predictable principles of law and procedure that he has
enforced with a very even hand. I think he will serve with
distinction on the court of appeals, as well, because of his
keen intellect and his conscientious approach to his duties, as
he has demonstrated as a United States District Judge.
Before he became a judge, he was an outstanding and
respected lawyer in Mississippi. He handled some controversial
cases in his home county of Jones County. He demonstrated that
he had courage and a sense of community responsibility to help
make decisions that were in the best interests of the entire
community. These involved in some cases racial relations, labor
union strikes against a corporation in his hometown. I remember
both instances very well and came to appreciate his sense of
public responsibility as a private attorney.
He served with distinction in the Mississippi State Senate.
He was elected by the people of his district there, and
reelected. He was Chairman of the Mississippi Republican Party,
which duties he handled in a way that reflected credit on our
fledgling Republican Party in Mississippi. It was not the
majority party; it probably still isn't. Looking at the number
of elected officials, it is a minority party.
He has shown himself capable of rising to the occasion in
whatever capacity he has been given in either government, in
his church, in politics, and I think he will do the same in the
Federal Judiciary on the Fifth Circuit Court of Appeals. So I
recommend him wholeheartedly to the Committee for confirmation.
Senator Schumer. Thank you, Senator Cochran.
Before I turn to Senator Reid, we usually don't hear from
House members, but we have a special House member. He is the
son of Judge Pickering, Congressman Pickering, from
Mississippi. Just as important as both of those qualities, he
was a former staff member of Senator Lott.
Senator Lott. So he has got good Senate roots.
Senator Schumer. Congressman?
PRESENTATION OF CHARLES W. PICKERING, SR., NOMINEE TO BE
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. CHARLES W.
PICKERING, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
MISSISSIPPI
Representative Pickering. First, thank you for the courtesy
of allowing me to come and do a very unique and unusual
experience, or have a unique and unusual experience for me, and
that is to introduce my father. Usually, the father introduces
the son to the world. This is a great opportunity for me to
return all the great blessings and favors he has given to me in
my lifetime. In most cases when we introduce someone, we have
their bio and their experience. I have a lifetime of experience
of watching my father.
I have three sisters, and on behalf of our family, the 4
children and now 18 grandchildren, we want to thank the Senate
for leading the charge on the educational savings accounts so
that grandparents can contribute to the education of their
grandchildren.
My father has set an example from the courage, commitment,
and of character. As Senator Cochran mentioned, I was born 38
years ago, in 1963, August 10. On that day, my father was
elected as the prosecuting county attorney in Jones County, and
that was one of the most difficult and turbulent times in the
South and in our home State. I watched as he took principled,
courageous stands in fighting the efforts of the Klan. He
testified against the Imperial Wizard of the Ku Klux Klan, Sam
Bowers.
In 1964, he also took another unusual and courageous step,
and that is he left the Democratic Party to join the Republican
Party.
Senator Reid. You can carry things too far.
Senator Schumer. Yes. Are you trying to win votes for your
father, or what? [Laughter.]
Representative Pickering. I will say he was defeated in his
next election.
Senator Schumer. And that is when he went to the cat food
industry. [Laughter.]
Give the Congressman an extra few minutes, please.
Representative Pickering. He did that because he believed
it was in the best interests of the State to have a healthy
two-party system that could participate not only in building a
party in our State, but to give our State in national policy
and national politics.
Throughout my life, as we went into integration through our
public schools, he led the community to maintain support for
the public school system. All four of his children went through
that public school system, so that it was a fully integrated
educational experience, and I have been blessed as a result of
that.
His efforts in racial relations, including today his
leadership at the University of Mississippi and the Institute
for Racial Reconciliation--so in his faith he has been active,
in his community he has been active, and in his public life he
has been committed. And it has given me, as his son, not only a
good name, which is better than riches, gold and silver, but
has carried me and our children and all the grandchildren of
the family to a very fortunate place and position.
And so I just want to recommend to this Committee and
endorse the nomination of my father, a good man, a good father,
a good husband, a good grandfather, a good judge, a good
lawyer, a good, committed public servant.
Thank you for your consideration.
Senator Schumer. Thank you, Congressman, and we all know
what a proud day this is for you.
We will now move on to our next witness.
Just to explain to the audience, sometimes with the press
of business some of the Senators who testify on behalf of their
nominees have to leave, and we understand that you folks have
to go, as well, and others.
We are now ready to hear from our colleague, Senator Reid,
in support of the nomination of Larry Hicks to the District
Court for the District of Nevada.
PRESENTATION OF LARRY HICKS, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S. SENATOR FROM
THE STATE OF NEVADA
Senator Reid. My nominee has a cat.
[Laughter.]
Chairman Leahy. And if he doesn't, he will by the end of
this hearing.
Senator Reid. Mr. Chairman, thank you very much for holding
this hearing. I say that because my nominee, that of Senator
Ensign and me, Larry Hicks, traveled almost 3,000 miles to get
here. What a disappointment it would have been for him and his
family not to have this hearing.
When I talked to Chairman Leahy last night and inquired as
to whether there would be a hearing, he said somewhere we are
going to have the hearing; I don't know where, but we are going
to have it. I immediately was very appreciative of the decision
made by the two of you to have this hearing because, I repeat,
what a disappointment it would have been for the Hicks family,
who are seated behind me. This is a day--a hearing--for which
Larry Hicks has waited for such a long, long time.
While Chairman Leahy is here, I would also like to commend
him for his work on moving forward these nominations. There are
many excuses that could have been put forward not to hold this
hearing, and no one could have criticized you because there was
every reason in the world not to hold this hearing.
Your decision to hold this hearing demonstrates your
leadership. I know that you also held an emergency meeting
earlier today to report out additional nominations. So I think
we should all commend and applaud you. I know I do, and I think
the country should be very happy with what you have done.
In addition--I haven't had a chance to say this publicly,
but I will say it--I appreciate the work that you have done on
antiterrorism legislation. I have been supportive of this
legislation that you have worked on with Senator Hatch. It
hasn't been easy, but we produced a bill that I could proudly
vote for, as I did. So thank you very much for holding this
hearing and for the work that you have done generally.
I would ask permission for my full statement to be part of
the record, Mr. Chairman.
Senator Schumer. Without objection.
Senator Reid. I am pleased to appear today on behalf of
Senator Ensign. As you can see, I am here in this row with a
number of the minority, but all nominations that come from
Nevada are supported by both of us. John Ensign does not have
to do that, but he has done so. Any nominee that he has sent to
the President had myu approval before hand.
The first name he submitted to me was Larry Hicks, and that
was easy. The Hicks family is wonderful, and well-respected.
Larry Hicks is simply just one of the best. He is presently a
partner in a very large, prestigious law firm in Nevada, the
McDonald Carano firm, Where he is Chairman of the litigation
section. He is a lawyer's lawyer. He has an extensive trial
court record, and is a stong appellate court advocate.
Larry Hicks is also a settlement judge, and has been since
1998, by direction and order of the Nevada Supreme Court. He is
admitted to practice in all the State and Federal courts of the
State of Nevada, the Circuit Court of Appeals for the Ninth
Circuit, and the United States Supreme Court.
Larry served as an elected public official in Washoe
County--Reno--Nevada. He was elected District Attorney of
Washoe County, the chief law enforcement officer of the second
largest county in the State of Nevada. He received his
undergraduate degree proudly from the University of Nevada at
Reno. He received his law degree from the University of
Colorado School of Law, in Boulder.
He has received numerous awards and recognition from a
variety of organizations, including the Nevada State Bar, where
he served on the prestigious Board of Governors, and also as
president. Larry has also been joined here today by his wife
Marianne, his brother, Don Hicks, and Don's wife, Judy.
It is with great pleasure and truly an honor for me to
recommend the next judge to the U.S. District Court for the
District of Nevada, Larry Hicks.
[The prepared statement of Senator Reid follows:]
Statement of Hon. Harry Reid, a U.S. Senator from the State of Nevada
Mr. Chairman, I would like to thank you, Chairman Leahy, and the
entire Senate Judiciary Committee, for holding this hearing today,
especially under such trying circumstances.
This Committee should be commended for its work on moving judicial
nominations forward in a timely and reasonable manner.
Senator Leahy, your decision to hold this hearing today when all of
the Senate Office buildings are closed--including the main hearing room
for the Senate Judiciary Committee where this hearing would normally
take place--demonstrates your leadership and genuine desire to move as
quickly as possible on all of President Bush's nominees, especially
nominations to the Federal bench.
Futhermore, I, along with every Member of the Senate, knows how
hard you have been working on comprehensive anti-terrorism legislation
that will provide our nation's law enforcement with the necessary tools
to fight the war against terror.
I know that after several weeks of hard work and intense
negotiations, you have just reached a compromise with the
Administration and your House counterparts on a comprehensive counter
terrorism package.
I congratulate you for this critical contribution to our national
security and the ongoing war against terrorism.
Yet, Mr. Chairman, despite your leadership and achievements on the
anti-terrorism legislation, despite the fact that you have held
judicial nominations hearings since September 11, and despite the fact
that you have lost your offices and hearing room until next week yet
still found a way to hold this hearing today, there are some in the
Minority who have charged that you haven't done enough on judicial
nominations, and have attempted to literally shut down the Senate until
they get their way.
The Minority party has even endangered the war against terrorism by
voting against cloture on the motion to proceed to the Foreign
Operations Appropriations bill, legislation that includes not millions
but billions of dollars to fight terrorism around the world.
Funding for our key allies in the Middle East, especially Israel
and Egypt, both of whom will have to play a central role in the war
against terrorism, is included in the Foreign operations Appropriations
bill that Republicans are blocking.
Mr. Chairman, we have all heard how this Senate and this Committee
is moving slower that the 1993 Senate during the first year of
President Clinton's first term and the 1989 Senate during the first
year of President George Bush's term.
And you know, Mr. Chairman, we have heard a lot of numbers to make
that claim.
Well, I have some interesting numbers as well.
This year, under Senator Leahy's leadership, the Senate Judiciary
Committee, which was not reorganized until June 29, 2001--51
legislative days ago--has held hearings on 14 judicial nominees and has
confirmed 8-4 to the Circuit Courts of Appeals and 4 to the District
Courts.
During the 71 legislative days that Republicans were in control of
this Committee and the Senate, you know how many hearings were held on
judicial nominations--ZERO.
You know how many judicial nominees were confirmed--that's right,
ZERO.
Moreover, when compared to this same time in 1989 and in 1993--the
Senate has confirmed twice as many judges.
In 1989 and in 1993, the Senate had confirmed only 4 judges by this
time, as compared to the 8 that this Committee has confirmed under a
shortened calendar and during such trying times for this nation.
In summary, Mr. Chairman, the record speaks for itself.
This Committee has worked extremely hard to move President Bush's
judicial nominations, and this Committee is to be commended for its
efforts.
I am pleased to appear before this Committee in support of one of
those nominees--Mr. Larry Hicks of Reno, Nevada, to be the next judge
on the United States District Court for the District of Nevada.
May I say on behalf of our colleague, Senator Ensign, who is unable
to be here today, that Larry Hicks has the unequivocal support of both
Senators from Nevada.
IN fact, Senator Ensign and I have discussed every candidate that
he has recommended to President Bush, and I fully support his
selections.
It has truly been a bipartisan approach with respect to the federal
bench in Nevada.
Larry Hicks is currently a partner in the Reno law firm of
McDonald, Carano, Wilson, McCune, Bergin, Grankovich & Hicks.
The Chairman of the litigation section, Larry has been with the
firm since 1979.
He has extensive trial court, appellate court and settlement
experience, having served as a settlement judge since 1998 for the
Nevada Supreme Court.
Larry is also admitted to practice in all state and federal courts
of the State of Nevada, the Circuit Court of Appeals for the Ninth
Circuit and the United States Supreme Court.
Prior to his private practice, Larry served the people of Northern
Nevada for 11 years in the Office of the Washoe County District
Attorney.
In 1975, he was elected District Attorney of Washoe County.
Larry received his undergraduate degree from the University of
Nevada in Reno and received his law degree from the University of
Colorado School of Law in Boulder.
He has also received numerous awards and recognition from variety
of organizations, including the Nevada State Bar, where he has served
on the Board of Governors--and as President--the American Bar
Association, the Association of Trial Lawyers of America and the
International Association of Gaming Attorneys.
Larry has also been blessed with a beautiful family and is joined
here today by his wife Marianne, his brother Don Hicks and Don's wife,
Judy.
He and Marianne are the proud parents of three children, Carrie,
Amy and Christopher, all of whom are graduates of the University of
Nevada in Reno.
He is a fine man, a fine Nevadan, and I am sure that he will be a
find judge.
Larry Hicks enjoys my full support, and I would urge the Senate to
confirm his nomination to the District of Nevada as quickly as
possible.
Thank you Mr. Chairman.
Senator Schumer. Thank you very much, Senator Reid, and we
very much appreciate your testimony and your making the time to
come.
Chairman Leahy. I thank you for those very kind words.
Senator Schumer. Our next witness is Senator Nickles, who
is here to testify on behalf of the nomination of Stephen Friot
to the Western District of Oklahoma.
PRESENTATION OF STEPHEN FRIOT, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF OKLAHOMA, BY HON. DON NICKLES, A U.S.
SENATOR FROM THE STATE OF OKLAHOMA
Senator Nickles. Thank you, Mr. Chairman, and Chairman
Leahy, Senator Kennedy and Senator DeWine. Thank you very much
for holding this hearing, especially under these rather unusual
circumstances. Also, thank you for reporting out a few nominees
earlier today.
On behalf of Senator Inhofe and myself, we are delighted to
introduce to the Committee Mr. Friot. We are very excited about
his nomination. We think he will be an outstanding District
Judge for the Western District of the State of Oklahoma.
His son, Andrew, is here. He is an ROTC cadet, right behind
us back here.
Senator Schumer. From Syracuse University.
Senator Nickles. He happens to be at Syracuse, that is
right. He is an outstanding young man, and his father, as you
will get to know, is an outstanding attorney and he will be an
outstanding district court judge.
He is an attorney in the law firm of Spradling, Alpern,
Friot and Gum; he has been their for the last 29 years, serving
as a partner for 26. His practice has included corporate
defense and aviation litigation. Fifty-eight percent of his
court appearances for trial were in Federal court.
He has also served as a judge on the temporary court of
appeals for the State of Oklahoma, as a judge pro tem for the
Oklahoma Court on the Judiciary, and has as an adjunct
professor at the University of Oklahoma. In addition to that,
he has been president of the county bar association, and I have
every confidence that he will be an outstanding member of the
court, representing, I think, this country extremely well. He
is admitted to practice before the Supreme Court and the U.S.
Courts of Appeals for the Fifth, Eighth and Tenth Circuits.
Mr. Chairman, it is a great pleasure and privilege for me,
and Senator Inhofe as well, to introduce to the Committee Mr.
Friot, who will do an outstanding job as a U.S. District Court
Judge for the Western District of Oklahoma.
Senator Schumer. Thank you, Senator Nickles, very much. We
appreciate it.
Our next nominee is M. Christina Armijo, for the District
of New Mexico, and here to testify on behalf of Ms. Armijo are
both Senator Domenici and Senator Bingaman.
Senator Domenici?
PRESENTATION OF M. CHRISTINA ARMIJO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW MEXICO, BY HON. PETE V. DOMENICI,
A U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Domenici. Mr. Chairman, thank you so much for
holding the hearing and for placing the name of Ms. Armijo
before you for confirmation.
I am very pleased that Senator Bingaman has been supporting
our nominee from the very beginning, and that he has indeed
spoken to the Chairman of his personal considerations. I thank
him personally and publicly for that.
Out in the West and in parts of the country where the first
settlers were Hispanic, and not as they were on the East Coast,
you have before you a nominee who is a 12th-generation Hispanic
American from northern New Mexico. She also, incidentally,
comes from a lineage that loves the law, in that her
grandfather served as a judge for the longest period of time of
any judge in the history of New Mexico, actually for 35 years.
It was broken by a 6-year piece when he was not a judge, but he
served for 35 years as a judge. No one comes close to that in
New Mexico.
That means that if any of us believe in the laws of passing
talents down to some extent, we ought to conclude that we have
a very talented nominee who has the qualities of judgeship.
There is no doubt in my mind that when you confirm her and
send to New Mexico a Hispanic woman to sit on the bench at the
U.S. District Court, that will do all of us justice. I
personally want to thank you for that. I think New Mexicans
will feel very proud that at the highest level of judgeship
they have one of their own, one of the original Hispanics that
came to our State.
I am sure my friend, Senator Bingaman, will talk a little
bit about her record. I would just say she serves in an
appellate position within the New Mexico system, and she was
elected to that. She was appointed prior to that, and frankly
has a very excellent reputation in terms of academics. Her
degree is a good, solid one.
Everybody knows her to be very, very fair. And while the
word ``compassionate'' is being bandied around a great deal, I
don't think there is any question that her record, both of
service as a lawyer for 22 years and being on the bench for a
number of years--fairness and firmness are just part of this
woman's life. She will do a special job in that regard, and I
am hopeful that her nomination which came forth from our
President some time ago will end soon and we can confirm her in
the Senate and send her to New Mexico, where the dockets are so
full because of the border problems.
Mr. Chairman, it has reached the point where the judges who
are sitting there are writing to us and calling us, asking that
we hurry because they are almost unable to handle the docket.
Thank you for helping with that. That is helping with justice.
I appreciate being before you, and thank you, Senator
Kennedy, Mr. Chairman, and Senator DeWine.
Senator Schumer. Thank you, Senator Domenici.
Senator Bingaman?
PRESENTATION OF M. CHRISTINA ARMIJO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW MEXICO, BY HON. JEFF BINGAMAN, A
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Bingaman. Thank you, Mr. Chairman. Thanks again for
having the hearing, and thanks to all of you for taking the
time to do this.
I join Senator Domenici in supporting Christina Armijo, our
court of appeals judge in New Mexico now. She was appointed to
our court of appeals and then she was elected to that position.
She is extremely well-respected in our State.
She went through the University of New Mexico and the
University of New Mexico School of Law. In fact, I think she
was a student of my wife's when she was at the University of
New Mexico School of Law. She has a very respected record of
public service, in addition to her time in private practice and
her professional career.
I am persuaded, as Senator Domenici stated and as he
indicated, that she has the character and the temperament and
the reputation that we need for a position of this importance.
So I recommend her, just as Senator Domenici did, and I hope we
can move quickly to confirm her here in the Senate.
Senator Schumer. Thank you, Senator Bingaman, and the fact
that you are both here is a real tribute to Judge Armijo.
Last but not least, we have the nomination pending of Karon
Bowdre for the Northern District of Alabama, and here to speak
in support of that nomination is Senator Richard Shelby of
Alabama.
PRESENTATION OF KARON BOWDRE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ALABAMA, BY HON. RICHARD SHELBY, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Shelby. Thank you, Senator Schumer, Senator DeWine,
Senator Kennedy. First of all, I don't mind being last in a
situation like this. As a matter of fact, I appreciate the
Judiciary Committee coming to the Appropriations Committee and
holding today's hearing. As a matter of fact, I am sitting in
my normal seat in the Appropriations Committee, but not at the
proper place for the Judiciary Committee.
Having said that, I want to thank Senator Leahy, I know he
just left, but I want to thank him for holding this hearing,
and I don't mind at all coming to your Committee in a situation
like this with Senator Lott, Senator Nickles, Senator Reid,
Senator Domenici, Senator Bingaman, all senior to me.
Senator Schumer. Yes. I hope I got it in the right order
here.
Senator Shelby. Absolutely, you got it right.
It is a distinct honor and privilege for me to introduce
and to recommend Karon Owen Bowdre to be a Federal District
Judge for the Northern District of Alabama. I have known Karon
Bowdre since she was an undergraduate student. She had a
distinguished record as an undergraduate and in law school.
She clerked for a Federal district judge upon graduation
from law school. She then entered and became a partner in a
prestigious law firm in Birmingham, where she as a young woman
became very accomplished as a litigator. Subsequent to that,
she went and became a law professor and she has distinguished
herself again with her many publications, and also in the
classroom.
It is without any reservation, Senator Schumer, that I
recommend, and Senator Sessions, who is not here, joins me in
recommending Karon Owen Bowdre to be Federal District Judge for
the Judical vacancy we have in Birmingham. I am hoping that
your Committee will act upon her favorably and report her to
the full Senate and we can confirm her in the fall because we
have a lot of cases that need to be heard in Birmingham, in the
Northern District of Alabama.
Senator Schumer. Well, thank you, Senator Shelby.
Senator Shelby. She is here with her husband and others.
Senator Schumer. Well, thank you, Senator Shelby.
Senator Shelby. Thank you.
Senator Schumer. Thank you for your patience and your
statement. We appreciate it.
Now, I would like to call our five nominees forward. Would
they please come forward? I think they will have little name
plates for you. Please remain standing because I will just
administer the oath.
Would the nominees please come forward? Please raise your
right hand and repeat after me.
[Witnesses sworn.]
Senator Schumer. Thank you. Please be seated.
Now, I am going to call on each of our nominees to make a
brief statement, and they may also, if they choose, introduce
their family members who are here with them. So we will start
with Judge Pickering.
STATEMENT OF CHARLES W. PICKERING, SR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE FIFTH CIRCUIT
Judge Pickering. Mr. Chairman, I would certainly like to
thank you and Chairman Leahy and the other members of the
Committee and staff for scheduling this hearing today, and
especially after things happened yesterday and the buildings
were closed, not only to show that you all are about doing the
people's business, but the inconvenience and the courtesy
extended to the five of us to allow us to go ahead and have the
hearing while we were here today.
I would be remiss if I didn't thank Senators Cochran and
Lott for their friendship over the years and for the kind words
that they shared here today.
What does a father say about a son? And I am delighted to
have with me today not only my son, Charles Pickering, Jr.,
Chip Pickering, but his wife, Leisha, and my wife, Margaret
Ann. About 42 years ago, I married my high school sweetheart,
who was the principal's daughter, and the best day of my life
was when I married my high school principal's daughter.
In addition to my wife and daughter-in-law, we have 5 of
our 18 grandchildren--Will, Ross, Jack, Asher and Harper. And I
would be remiss, after having mentioned these grandchildren,
not to mention our regret that due to school and distance that
my three daughters and their families are not able to be here:
my oldest daughter, Mrs. Rick Dunkerton, their children,
Aubrey, Jeremy, Elise, Sara, Hannah and Emily and Jeremy--or
excuse me--Thomas. I knew that somewhere down the line I was
bound to twist my tongue, as they were fooling around with
catfish and cat food.
Incidentally, Mr. Chairman, you were right. Catfish farming
did come when I was out of politics and the catfish farmers
needed free legal services, so that is how I wound up being
president of the Catfish Farmers of America.
The other two children are our middle daughter, Mrs. Jerry
Montgomery, their children John, Mary Ivon, Robert and Margaret
Anne. And our youngest daughter, if she were here, Mrs. Clint
Chapman, from Alabama, would have brought their two children,
Allie and Emma, and she would have also brought our as yet
unborn 19th grandchild.
So, Mr. Chairman, thank you very much for the hearing and
the courtesies that you have extended thus far.
[The biographical information of Judge Pickering follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Thank you.
Judge Armijo?
STATEMENT OF M. CHRISTINA ARMIJO, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO
Judge Armijo. Thank you, Mr. Chairman, Senator Kennedy,
Senator DeWine. Let me first express my gratitude to my
Senators Domenici and Bingaman. I greatly appreciate the
courtesies that each of them has extended to me throughout this
very, very long process, and especially the encouragement.
I am very, very proud to be here, especially under the
circumstances when the business of our country must go on and
this particular profession that we all represent here on this
side of the table is so critical to that process. I am honored
to be here.
I would like to introduce the family members that are with
me today: my mother, Mary, who is here. Mom is from Las Vegas,
New Mexico, the first Las Vegas. That is my hometown, 1836.
Senator Schumer. I am glad Senator Reid left before you
said that.
[Laughter.]
Judge Armijo. And my brother Luis Armijo, here. Luis lives
in Albuquerque. I have two sisters, Patricia and Francesca, who
are unable to be here, but are here in spirit.
I do have, Senator Schumer, two good friends from your
State, the State of New York, and I am so happy that they
traveled through the late hours last evening, Fran and Jim
Lieu, good friends of mine with a New Mexico connection.
Senator Schumer. Welcome.
Judge Armijo. I am very, very honored to be here and wish
to thank you.
[The biographical information of Judge Armigo follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Thank you, Judge Armijo.
Ms. Bowdre?
STATEMENT OF KARON O. BOWDRE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ALABAMA
Ms. Bowdre. As everyone else, I want to thank you again for
holding this hearing under these adverse circumstances. I think
it is very important that the business of Government go on, and
thank you for having this hearing.
I also want to thank Senator Shelby for speaking on my
behalf, and for Senator Sessions who could not be here, but has
been so supportive during this whole process.
And I must thank my husband, who is here with me, Birch
Bowdre, who has lent his support throughout this, and my sons,
Beau and Barrett, who were very upset about missing school to
be here.
[The biographical information of Ms. Bowdre follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Thank you.
Mr. Friot?
STATEMENT OF STEPHEN P. FRIOT, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF OKLAHOMA
Mr. Friot. Senator, I echo what has been said about holding
this hearing under these circumstances. I think it speaks to
everything that you spoke to a few minutes ago, and I am very,
very appreciative of holding this hearing under these
circumstances. I also am very grateful for the support of
Senators Nickles and Inhofe, and for the introduction from
Senator Nickles.
My wife, Nancy, is the most dedicated kindergarten teacher
in the State of Oklahoma, and for that reason she could not be
here, but she is here in spirit. My son, Andy--if you will
stand--is here. He came down from Syracuse and I am glad he is
here because he can take the straight story home after we are
through here.
I sincerely appreciate the opportunity to be here under
these circumstances.
[The biographical information of Mr. Friot follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Thank you, Mr. Friot.
Finally, Mr. Hicks.
STATEMENT OF LARRY R. HICKS, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF NEVADA
Mr. Hicks. Thank you, Senator Schumer, Senator Kennedy and
Senator DeWine. From a personal standpoint, I obviously thank
you for your consideration in continuing with this hearing
under circumstances which obviously were not convenient. But I
think, more importantly, I salute you for getting on with the
business of Government under these circumstances. I speak on
behalf of all my family and friends when I say your actions in
continuing this hearing today are deeply appreciated.
It is my pleasure to introduce my family who are here
today: my wife of 36 years, Marianne. Would you stand, please?
My brother, Don, standing back here with the camera--He is
the cameraman in the family--and his wife, Judy, over here. And
I have to say that my other brother, Bud, would have been here
but for the uncertainties of yesterday in the travel schedule
from the West. And he and his wife, Suzette, both would have
been here and are sad not to be here.
I also very much appreciate that two of my law partners
from Nevada have attended this proceeding today, Mr. Bill
Magrath, who is the partner in the next-door office to me in my
office in Reno, and Mr. Brian Clark, who is a partner in the
Las Vegas section of our office. And I am honored that these
men would travel this great distance to be here for this
hearing.
Thank you very much.
[The biographical information of Mr. Hicks follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Thank you, Mr. Hicks.
Now, we will begin the questioning. I know that Senator
Kennedy has to leave.
Senator Kennedy. No, no, that is all right.
Senator Schumer. Well, thank you, and we are going to try
to move this along as quickly as possible and each of us may
say a few words. I have just a few questions of the witnesses,
but before I do I just want to make a couple of points about at
least my view in terms of selection of judges, since this is
the first time I am chairing the hearing for the full
Committee.
Before the September 11 tragedy, we had a number of
hearings in our Subcommittee, Senator Sessions and I, talking
about the role of Federal judges and the role of the Senate in
the nomination of those judges, and we touched on the role of
ideology in the judicial selection process. At least I came to
the conclusion that one's judicial philosophy, one's judicial
ideology, is, has been and should be a part of the process;
that we shouldn't sweep that under the rug and simply play
``gotcha'' politics, look back 30 years and say, oh, somebody
did something back then, and knock them out, when the real
reason was we didn't agree with their philosophy. We ought to
have an open discussion of that above-board.
We also addressed the question of whether nominees bear a
burden of proving themselves worthy of confirmation or they
should come before the Senate with the presumption that they
should be confirmed. Again, I came to the conclusion that,
given the importance of the position to which you are
nominated, as well as the lifetime nature of it, the burden
really falls on the nominee to prove that he or she is worthy
of being a judge.
We have also talked a little bit about how we choose
judges. I have three criteria that I usually use when I play a
role in selecting judges in New York and help guide me here.
They are: excellence, moderation and diversity, excellence
meaning legal excellence. I prefer moderate judges, not too far
left, not too far right. I don't like idealogues on the bench.
And diversity, meaning that we ought to not just have white
males on the bench. So that is where I am coming from in this
process, just to give you a little knowledge of that.
Now, I guess the major questions I have are for Judge
Pickering, so I would like to first focus here.
Judge we recently had the pleasure of hosting your
colleague, Judge Edith Brown Clement. As you know, she is a
district court judge, like yourself, nominated to the Fifth
Circuit, and the two of you have been on the trial bench for
about the same period of time.
She has published approximately 1,400 cases. You have
published about 95. I don't think that is necessarily an issue
because I realize that many district court judges decide not to
publish opinions when they deal with cut-and-dried matters of
law. But at least my opinion is 95 is a little too few to
choose somebody for the court of appeals.
So I guess what I am asking is do you know actually how
many unpublished opinions you have had? Do you have an idea?
Give us a ball-park; it doesn't have to be--
Judge Pickering. Senator Schumer, when the request came
from Chairman Leahy two days ago while I was leaving to come
for this hearing, I went back and the best records that we have
available--since I was appointed to the bench 11 years ago, I
have disposed of somewhere between 4,000 and 4,500 cases.
Senator Schumer. Right.
Judge Pickering. My best judgment is that there were
opinions of some kind that were written in about 1,100 of those
cases. I think I probably have published--our count was, I
think, around 92 or something like that.
Senator Schumer. Okay.
Judge Pickering. And so that would leave approximately a
little over 1,000 unpublished opinions.
Senator Schumer. Right.
Judge Pickering. If I may give the reason for that--
Senator Schumer. Please.
Judge Pickering. John Nesbitt, in his book Megatrends, at
the beginning of the last decade of the last century, wrote
that Americans were drowning in information and starving for
knowledge. I have thought about the volumes and volumes of law
that have been written since I start practicing law in 1961,
and we have absolutely too much. No lawyer can read it all.
If you are not establishing precedent, why make lawyers
have to read, and judges--and if they don't they could be sued
for malpractice? I just think there is too much being written
out there.
Senator Schumer. So, generally, you decided to publish the
opinions that you thought were of some precedential value.
Judge Pickering. That is correct.
Senator Schumer. Is that your general guideline?
Judge Pickering. Yes, that was generally my criteria.
Senator Schumer. Okay. Let me ask you this: In your
responses to the Committee's questionnaire you reported 28
cases in which you were--this is a standard question, by the
way, just to inform the audience here, but there were 28 cases
which you were reversed or sharply criticized in the Fifth
Circuit.
Now, as I understand it, 21 of those 28 are unpublished.
That is at least the record we have, 75 percent. So I don't
know whether that is a high percentage or not because we have
never really done a detailed study, but if the unpublished ones
are supposed to be non-controversial, cut-and-dried, it does
raise a question.
So I guess a request that I would make as Chairman of the
Subcommittee on Courts is could you get to us within a quick-
as-possible period of time, because we don't want to delay
this, certainly the 21 cases, the unpublished cases, for which
there was reversal, and do your best to give us the bulk of the
unpublished opinions.
Now, there are a lot of them, but again this is such an
important position, in such an important circuit, and you do
have a record as a judge, which I always regard as the best way
to regard somebody when you take the awesome responsibility of
voting on a lifetime appointment for an Article III judge. Give
us an idea of how we can get hold of certainly those 21 and
then the vast bulk of the rest.
Judge Pickering. Certainly, those 21, if they are available
and we can get them, I will get to the Committee. When Senator
Leahy first relayed the request, I stopped my staff from doing
other work and we were in--the first request was not for copies
of the unpublished opinions. It was for a list of those 1,100
cases.
And I wrote Senator Leahy and I told him that it would be
impossible for us to get the entire list, but that we would do
the best we could. And I am not sure how many that would have
been, several hundred. In fact, I think it would have probably
been most of them because after a while you dispose of these
matters.
Let me touch back on--you mentioned the 28 reversals. You
know, when the Senate asks you to give a summary of all the
cases that have been reversed, you read 28 times and you read
this; you can get a little depressed. And I looked back and
sort of did the figures, and that was less than 1 percent of
the cases I disposed of.
Senator Schumer. Yes.
Judge Pickering. And as far as the cases that were appealed
to the Fifth Circuit, in whole or in part I was affirmed 91
percent of the time.
Senator Schumer. Right.
Judge Pickering. And affirmed totally some 83 or 84 percent
of the time.
Senator Schumer. Right.
Judge Pickering. Now, some of the opinions where the
reversals came in came where the people did not appear in my
court. I entered an order and then there was an appeal taken.
So at the time the decision was made, it did not seem that
significant or that important.
And in most of them, I look back over and, you know, as
some of my colleagues on the Fifth Circuit have told me, they
said, you know, we reversed you; that doesn't mean we are
right, it means we have the last say. Some of those opinions, I
still think my position was correct. On some of the others, I
think, gee, I goofed there, I missed that one. And I think that
happens in life, in general, but certainly I try.
Now, as far as getting you copies of all of these, since I
have been on the bench we have changed computer systems three
times. There is no system of keeping those opinions. What we
did yesterday to get you--in fact, you asked for four areas. We
got all of those, and in those four areas I have not been
reversed by the Fifth Circuit, to my knowledge, a single time
in any of those four areas. But we reproduced those from
searching our computer hard disk and we will do the same thing
and get you copy of every one of them that we can find.
Senator Schumer. The areas, just to inform my colleagues, I
think--I don't have the four, but one was employment
discrimination.
Judge Pickering. Yes.
Senator Schumer. And one was voting rights. Was it voting
rights?
Judge Pickering. No, sir. I think it was--
Senator Schumer. What were the four?
Judge Pickering. The ADA, the ADEA, Title VII, and equal
pay.
Senator Schumer. Okay.
Judge Pickering. And those were the four areas that I--
Senator Schumer. We may have a few others. I mean, in order
to make your search a little easier, perhaps what we could--
Judge Pickering. That does make it a lot easier.
Senator Schumer. I would add voting rights to that list, if
we could get those, and my colleagues may want to add a few
others. But if we can focus on those areas and get all your
opinions on those, that would make it a little easier, plus the
reversible ones.
Judge Pickering. That would make it much easier for me.
Senator Schumer. Right.
Judge Pickering. And I did send you some voting rights
cases.
Senator Schumer. Great. I appreciate that.
I have spoken with Chairman Leahy. He has agreed, since it
will be hard for us to judge, to invite you back for a second
hearing, hopefully under better circumstances than we have
today, after we have had a chance to review these unpublished
opinions and conduct a more thorough evaluation. So we will try
to pick a mutually convenient time.
Judge Pickering. Certainly, if that is necessary, I will do
whatever I am requested.
Senator Schumer. Great.
Judge Pickering. I would hope that that would not be
necessary, but I am certainly going to do everything I can to
get the Committee all of the information they want and be
responsive totally to what you request.
Senator Schumer. We very much appreciate that.
I am going to have a few more questions for the witnesses
and maybe for Judge Pickering, but let me now call on my
colleague, Senator DeWine, and then go to the other Senators.
Senator DeWine. Mr. Chairman, I apologize that I had to
slip out for just a moment, and I wonder if you could repeat
what I heard as I was coming back in the door in regard to a
second hearing.
Senator Schumer. Yes. We didn't try to do it while you were
out.
Senator DeWine. No, no, no. I understand that. We are all
operating on a strange day.
Senator Schumer. What we were saying was because Judge
Pickering has such a high percentage of unpublished opinions,
which is not a reflection on what those opinions say or his
quality as a judge, we have asked that, first, the 21 cases
where he was reversed that are unpublished be given to us, and
he has agreed. He has agreed to do everything we have asked.
Second, all the unpublished opinions in certain particular
areas. Voting rights, employment discrimination, ADA, and I
think ADEA were the four that were mentioned. There may be one
or two others. Then, when the Committee had a chance to review
those, we would invite Judge Pickering back, if people that it
was necessary, to go over those. That was basically it.
Senator DeWine. I wonder if I could inquire of the chair
how many published opinions do we have now?
Senator Schumer. Ninety-five.
Senator DeWine. We have 95.
Senator Schumer. Out of 1,400.
Senator DeWine. Let me ask the judge--and you may have
already asked the judge. I apologize.
Senator Schumer. Please, go ahead.
Senator DeWine. How long does the judge think it will take
to find the 21 specific cases where you were reversed and all
the other unpublished opinions in regard to voting rights, ADA?
Judge Pickering. You know, the 21, as far as the reversals,
if we have them, if I had left them--I am not sure whether I
have them in my briefcase or whether they were left in my
office, but I will get them to you tomorrow if they are still
in my office.
Senator DeWine. That would be good.
Judge Pickering. If I brought them in my briefcase, it
would be Monday before I could fax them back to you. Now, some
of those actually were not even opinions. One of them, I know,
was just a bench opinion, where there was an argument before
the court, I ruled, and it was appealed.
Senator DeWine. Judge, what about the other ones? How long
will that take?
Judge Pickering. If they are limited to subject matter, we
can search our computers and we can pull up--on the subject
matters, we can pull those up in a few days. If they are not,
you know, unless we get 900 cases--and, of course, we jammed
the fax machine over at the Justice Department the other night
trying to send them up here. And there is a volume of paperwork
because these opinions are going to be 10 to 20 pages long, so
it is going to be a tremendous amount of paperwork. It is going
to take some time. If they are limited subject matter, it will
make it a lot easier and we can get them a lot quicker. But
if--
Senator DeWine. Judge, are you clear what the subject
matter is from the Chair?
Judge Pickering. I understand they are going to give me
that.
Senator Schumer. Yes. Why don't we, by tomorrow, get you
just a list of the--I mean, I think we would want to ask our
colleagues who are not here if they have any particular subject
matters, but as far as I know, there are four or five.
Judge Pickering. Does that then mean that it will be the
whole list?
Senator Schumer. Probably not, no.
Senator DeWine. Mr. Chairman, I just wonder if we couldn't
get that--while we are here, get that list down so we know
before we adjourn for today. I think the judge is more than
willing to find the cases, but we are dealing with a lot of
cases.
Senator Schumer. We couldn't say it is a complete list
because I would want to talk to Senator Leahy and a few of my
other colleagues who have expressed interest. But we will give
you the list, and my guess is those five, six, seven topics
will be the bulk, because I think we are all interested in the
same areas.
Senator DeWine. Mr. Chairman, I don't know what the
precedent is on the Committee for a second hearing. I would
assume that the precedent is--and I don't know this--I assume
that there has to be a pretty compelling reason to have a
second hearing. And I assume that if there something that comes
out of these cases that we would not have had an opportunity to
question about today, then that would be reasonable. But the
judge is here, and it seems to me that now is the time to ask
questions.
Senator Schumer. Well, I do intend to ask some questions on
the subject matter.
Senator DeWine. I know you do.
Senator Schumer. I just want to give you all a chance
first.
Senator DeWine. Well, I appreciate that. But, again, I
guess I want to say that I think the decision about whether we
need a second hearing is something that this Committee
certainly needs to talk about. And I think we all would want to
be heard on that because I think there is not a great deal of
precedent for bringing the nominee back here.
Senator Schumer. Well, again, I would say that if, when we
get these opinions, there are no questions, we are not going to
have a second hearing. But certainly that option Senator Leahy
made explicit to me and asked me--
Senator DeWine. Well, I understand. I guess I just want to
make it plain that my position is that there ought to be a
compelling reason to do that. I suspect that that has been the
precedent in the Committee. I mean, I don't have the precedents
for the last hundred years of the Committee, but I suspect that
that is basically the precedent. There has to be a pretty
compelling reason to come back here, and it is not just that
people want to get into an issue.
I will yield to the Chair.
Senator Schumer. Thank you, Senator.
Senator Kennedy?
Senator Kennedy. Thank you very much, and I thank Senator
DeWine.
I congratulate all of you on very wonderful, warm
statements of support. I was particularly touched, as I think
all of us have been, to have your son, Mr. Pickering, make that
presentation. I think that was very impressive indeed.
I would like to just give a partial response to Senator
DeWine and just elaborate perhaps on what our Chairman has said
about the unpublished cases. The division between published and
unpublished is dramatic in these circumstances, and there have
been those who will not have the opportunity to testify who
have raised questions about the nominee's commitment to some of
the core constitutional values, particularly in the areas of
civil rights and women's issues.
They have looked over those that make up this whole
circuit, and 45 percent of the inhabitants are Latino or
African American. So these issues of civil rights and
commitment to these core values are enormously important to
them.
I think, just following what Senator Schumer, the Chairman,
has said, no one is saying that these are going to be
reflective of an attitude that is going to be hostile
necessarily, but we ought to at least carry forward the
responsibility and have the chance to examine those.
People have suggested, although certainly not in this
case--and I want to make it very clear, not in this case--that
in some instances some have, and I think it has been
demonstrated, not filed the cases or published the cases
because they didn't want to give the reasons and the rationale
for their decisions. I am not suggesting that in this, but some
have.
I think rather than to leave this out there, the idea of
just having the cases that Senator Schumer has mentioned--and I
am not certainly, for one, interested in prolonging the search
list, but I would hope that they would include the cases on
housing and housing discrimination. Civil rights cases, I
believe, are included, and the voting rights, the privacy,
which would be reproductive rights, and any labor cases with
regard to workers.
I raise the labor cases because, as I understand it, out of
all of the cases that have been published, only one of your
published decisions was a Title VII employment discrimination
decision. This published decision involved a white male filing
a so-called reverse discrimination case.
So while you have published no employment discrimination
cases other than one involving reverse discrimination, I don't
know whether they haven't come up through the courts. We have
seen these cases pursued there. I don't know whether you
remember having them.
I am not trying to fly-speck you, really, on these kinds of
cases, if you can remember them, but that would be an area that
I was interested in. I don't know whether you want to make any
general kind of comment, or we can just say we will wait until
we see these results and you can add whatever comments you like
on them.
Judge Pickering. Senator Kennedy, I will be happy to send
all of those in the areas that you have mentioned. I have been
thinking while you were asking the question, and to the best of
my knowledge I have not been reversed in any of the areas that
I have heard discussed here today. My opinions, whether they
were published or unpublished, have been in accordance with the
law, or there would have been some reversal, with one
exception.
There was a labor case that came up that dealt more with
arbitration than it did with labor law, and in that instance,
while I had some questions about the facts of the decision, I
affirmed the arbitrator's award, ordered reinstatement of the
employee, and stated in my opinion that if she was entitled to
reinstatement, she was entitled to back pay. But the arbitrator
had specifically said no back pay, and I understood Fifth
Circuit law to say that if the arbitrator said no back pay,
that was it, that I didn't have any discretion, and I said so
in the opinion.
The Fifth Circuit did say that she should have been given
back pay, and to my knowledge that is the only reversal I have.
Senator Kennedy. Good.
Judge Pickering. And that one you have; you already have
that opinion because that was a published opinion. And that is
the only reversal in any of this area that I am aware of.
You know, I never dreamed that I would ever get in a
controversy for not publishing. Again, I just think there is
too much out there, and I must confess that I published more
when I first went on the bench. And I think part of it--the
novelty wears off, and then again if you don't have anything to
add to it that is going to be helpful to somebody, you are just
cluttering up the information.
Senator Kennedy. Well, I would appreciate it just in those
areas, and we can narrow those.
Let's get to an area where you were overruled.
Judge Pickering. Yes, sir.
Senator Kennedy. I am concerned that at times you appeared
to show an impatience in dealing with some cases, particularly
those involving prisoners, many of whom did not have counsel.
In 1995 you wrote in Rudd v. Jones, ``Law-abiding citizens
also have rights. Those rights involve not having court
calendars clogged with frivolous proceedings, not having their
elected or appointed officials at taxpayers' expense spending a
disproportionate amount of time defending frivolous lawsuits in
Federal court.''
You went on to state, ``It is likewise clearly obvious that
many inmates and their sometimes almost professional jailhouse
writers have abused the process merely to go through the
exercise to challenge the system, again to get a trip out of
the penitentiary for a court hearing.''
In reading a few of your opinions, I wonder if that concern
about frivolous lawsuits by prisoners has led you to unfairly
give short shrift to even those claims by prisoners that may
have merit or that, at minimum, warrant additional examination.
In several such cases, you were reversed by the Fifth Circuit.
For instance, in Heptinstall v. Blount, the Fifth Circuit
held that you abused your discretion in dismissing, with
prejudice, a case of a pro se litigant who had brought a claim
that his arrest, pre-trial detention and subsequent conviction
violated his constitutional rights. In finding that you abused
your discretion, the Fifth Circuit stated that the sanction of
dismissing a complaint with prejudice was a drastic remedy that
should only be used a a last resort.
Similarly, in the case of Johnson v. Forrest County
Sheriff's Department, in 1999, you were reversed pro curiam by
the Fifth Circuit for dismissing an inmate's First Amendment
challenge to a policy that prevented inmates from receiving any
magazines, including religious material, in the mail.
In another case, Garlotte v. Mississippi Department of
Corrections, you were reversed by the Fifth Circuit for
dismissing the constitutional claims of three inmates without
providing them a chance to amend their complaint or to submit
affidavits in support of their claims.
I am not asking you to remember the facts or specific
rationale of each of these cases. I am interested, however, in
how you respond to the concern that in your haste to deal with
frivolous lawsuits you unfairly dismiss claims by pro se
litigants.
Judge Pickering. Senator Kennedy, the question of pro se
complaints has been something which I have a concern about from
the procedures that we have in place today, and I have really
even thought about publicly speaking on that issue.
I do think that there are some legitimate complaints that
prisoners have in prisons, and I sometimes think that those
complaints are not really brought out in these complaints. I
have sometimes wondered if maybe an ombudsman working in those
areas would be better than just bringing lawsuits, because I
think nationwide, if you studied the statistics, percentage-
wise I doubt if more than 1 percent of those cases across the
entire Nation are ever successful.
There are a lot of frivolous lawsuits out there, a
tremendous number of frivolous lawsuits out there now. Again, I
think in this three instances--and I would have to go back--
those were recommendations from, I think, a magistrate judge in
all three of those cases. They conducted the hearings and, you
know, without looking at them, I don't know of anything else
that I could say to you except--
Senator Kennedy. Is this the standard if they have these
kinds of abuses? Do other judges have these kinds of reversals
or these kinds of conclusions that were made by the Fifth
Circuit where they talked about the fact that it was a drastic
remedy that should only be used as a last resort? These were
reversed with a considerable statement or comment by the
circuit court in finding trouble with your logic in those kinds
of cases.
Judge Pickering. Senator, I would need to see the opinion
before I--
Senator Kennedy. Okay. Let me, if I could, go to another
area, and that is in 1976--I know you have been over this
subject--you chaired the Human Rights Responsibility
Subcommittee of the Republican Party which approved a plank in
the party protesting the Supreme Court decision in Roe v. Wade
and calling for an amendment to the Constitution to ban
abortion.
In examining your opinions since you have been on the
district court, I have not seen any involving reproductive
rights. Have you had an occasion to deal with that issue?
Judge Pickering. Sir, I cannot recall a single case
involving that. In some of these other areas that you have
mentioned, I have not had that many cases percentage-wise.
Senator Kennedy. So you don't remember having any cases.
There might have been, but they don't come to mind?
Judge Pickering. Yes, sir, that is correct.
Senator Kennedy. And do you have any opinion on Roe? Have
you made a decision about whether that was correctly or wrongly
decided?
Judge Pickering. Senator, the Supreme Court of the United
States has made its ruling on that, and it would be my duty as
an appellate, just as a district judge, to follow the law as
the Supreme Court has interpreted it, and I would do that.
Senator Kennedy. Just another minute, Mr. Chairman.
Senator Schumer. Keep going.
Senator Kennedy. In recent years, the district and
appellate courts have addressed the question of--and maybe I
would hear from you, if I could, Judge Pickering, and the panel
just on this one question--have addressed the question of when
a public university can constitutionally consider race as a
factor in admissions. The issue in these cases is whether
Justice Powell's decision in Bakke v. University of California,
which stated that a university has a compelling interest in
pursuing racial and ethnic diversity, should be followed.
So, in your view, under what circumstances can a public
university constitutionally consider race as one factor in
admissions, and do you believe that racial and ethnic diversity
is a compelling government interest in public education?
Judge Pickering. Senator, I think my job on the appellate
Fifth Circuit, if I should be fortunate enough to be confirmed,
would be to follow the precedents of the Supreme Court, and I
would do that in that area. That would be the guide that I
would follow in that area.
Whether legal or not, beginning when I testified against
the Imperial Wizard of the White Knights of the Ku Klux Klan
and on numerous other occasions I have tried to build bridges
between, because I think the future of America is not nearly as
great if we don't solve racial problems. And I think that
attempts to reach out and bring in and recruit are entirely
appropriate.
I think that there need to be efforts to, you know, solve
some of the problems that are out there from that standpoint.
So I think from a moral perspective--but, again, I can't make
decisions based on what I morally think is right and we should
be doing. They would have to be in accordance with the
precedents of the Supreme Court.
Senator Kennedy. Judge Armijo?
Judge Armijo. Senator Kennedy, I think the approach that I
would use in looking at a question like that is to recognize
that we apply a strict or heightened level of scrutiny, that
there must be some demonstration that there is no alternative
means of achieving that particular right that is trying to be
enforced; that is, the admission based on a classification such
as race. I would follow, of course, the rulings of our Supreme
Court in that regard and look at that matter very carefully.
Senator Kennedy. Judge Pickering gave his own sort of
personal view about life experience that troubled him in the
past and expressed sort of a moral position, although obviously
he reflected that he would follow the law. I was interested in
whether you had anything you could say about the nature of the
make-up of a university in terms of one of the principal
vehicles in terms of education and the future of our society.
Judge Armijo. Well, education is our future, and I guess I
have to reflect back on my own life experiences, really, almost
to my grandfather, who struggled very much to become an
attorney. He was licensed in 1915, but educational
opportunities were very rare, extremely rare. It was very, very
difficult, particularly in New Mexico which did not have many
universities at all. So if families could not afford to go out
of the State or procure some form of private opportunity,
education simply was not available. So I think that from the
point of view of a public institution, those opportunities need
to be there and those doors need to be open.
Senator Kennedy. Thank you.
Ms. Bowdre?
Ms. Bowdre. Well, I would have to echo the comments of my
colleagues. Certainly, on any matter that would come before me,
if I am fortunate enough to be confirmed, I would follow the
law. And on a personal level, while teaching at Cumberland, our
school has made great strides in trying to attract a diverse
student body, as well as a diverse faculty. And in my own
position as Director of Legal Research and Writing, I have
tried to hire minorities to be both teaching assistants and
also instructors in our program.
I believe that diversity in education is very important,
and as the first graduate of college from my family I certainly
understand the importance of having educational opportunities
available to all.
Senator Kennedy. Good.
Mr. Friot?
Mr. Friot. Senator, in addition to echoing what has been
said by my colleagues, I would state my personal view that just
as diversity is, in my opinion, one of the strengths of our
country, it should be one of the strengths of any college
campus. And I think any college campus would be really a less
attractive place for everyone if it were not reflective of the
various constituencies and minorities that make up our country.
Senator Kennedy. Mr. Hicks?
Mr. Hicks. Senator, I agree with the comments of my
colleagues. Certainly, education is a very important
opportunity throughout the United States. My role as a district
judge would be to follow the law and that would be the
guideline I would follow, and not just the guideline. I would
feel that I was compelled to follow that, and particularly the
mandates of the United States Supreme Court.
Senator Kennedy. Thank you very much, Mr. Chairman.
Senator Schumer. Thank you, Senator Kennedy.
I just wanted to let the record read in reference to
Senator DeWine's question, in the 8 years that President
Clinton was President, we had 9 second hearings. So it is not
unprecedented, it is not common.
Senator DeWine. Not unprecedented, but not common.
Senator Schumer. Right.
Senator Durbin?
Senator Durbin. Thank you very much, Senator Schumer, and I
might also add that, of the 9, it appears that 6 of them were
circuit court judges. Also, some of them were delayed for
periods of time of up to two-and-a-half years between the two
hearings under Chairman Hatch. I am certain that that is not
going to occur under this leadership. I hope it does not.
Judge Pickering, since 1960, America has changed a great
deal and we have all changed personally a great deal, those of
us who remember those days. You were a law student back in that
period of time and you were writing law review articles about
Mississippi statutes involving miscegenation, interracial
marriage. America is a lot different today. I would like for
you to reflect on who you were then and who you are today when
it comes to that issue.
Judge Pickering. Senator Durbin, the article you are
talking about had to do with miscegenation, and let me say
first off that I firmly believe that who ones marries is a
personal choice and that there should not be legislation on
that.
The particular note that you referred to was a
miscegenation statute, and at that time more than half of the
States in the Nation had those. The Supreme Court had declined
to review those twice in the 5 years before that. I predicted
in that article that those statutes would be changed in the
future, and suggested what was sufficient as far as the
legislature was concerned.
I also wrote--I only wrote two notes. They were what we
call notes, law journal notes, and the other one was on the
right of privacy. But certainly things have changed
tremendously since this. Even then, I had a sense in the early
1960s that I would not say that things have drastically changed
in the South. My thought processes have changed, everyone's
thought process--just like September 11 has greatly changed us
as a Nation.
But even back in the 1960s, I spoke out against the
mistreatment of minorities as far as the Ku Klux Klan. I
testified earlier I testified against it in 1967, which was a
tough thing for a 30-year-old prosecutor with four children to
do.
But I attended the FBI briefings, because they trusted me,
when they were looking for the folks who were trying to do
violence to those who were trying to assert their civil
rights--voting primarily at that time. And I am committed to
equal rights for all Americans, certainly.
Senator Durbin. Thank you. I would like to ask the other
members of the panel, as well. One of the most serious
challenges we face in terms of justice in America is, I guess,
characterized by the shorthand ``racial profiling,'' where
minorities in this country feel that they are
disproportionately arrested, convicted and incarcerated for
certain crimes, particularly in the area of drug crimes, and I
think the statistics are rather overwhelming in that area.
I have made it a policy of asking every Attorney General
and every Assistant Attorney General with jurisdiction in this
area what they thought about the fact that although we have 12
percent of our American population African American and only 11
percent whom we can say commit drug crimes, when we look at the
rates of arrest and conviction they approximate 50 percent of
the convictions for drug crimes are African Americans and over
58 percent of the incarcerations are African Americans.
If we hope to maintain credibility in our system for all
Americans so that the laws are seen as just, what is the
responsibility of a judge in this context? Are you only to take
the cases as they are brought to you or do you have a larger
responsibility when it comes to the issue of racial profiling?
Judge Armijo. Senator, certainly statistics, as those you
have quoted, raise red flags, and I don't think any of us can
ignore statistics like that. The question is what can a judge
do. I think in a very practical sense and in a very basic
sense, you take each case one by one and very carefully attend
to the issues in that case, and I think as a judge ensure very,
very carefully that there is due process in the proceedings
that are under your control as a jurist, whether it is pre-
trial matters, whether it is the course of a lengthy trial.
But I think first and foremost as a judge you ensure that
the process is fair and you attend to the immediate litigant,
the defendant who is before you. It is a tougher question on a
broader scale how you as a judge influence perhaps
circumstances that are not immediately before you. I think you
do, in a sense, by doing your job the way it should be done.
Certainly, my caseload is not going to be limited to one
defendant. It would be broad. As I grow into this position as a
trial judge, and it being a lifetime appointment, there are
many defendants, many cases, a multitude of cases that are
going to be influenced by the way in which I conduct myself as
a jurist.
Senator Durbin. Yo were involved, were you not, in defense
of criminal defendants?
Judge Armijo. Yes. Early in my career, I shared a contract
with another attorney with the New Mexico Public Defender
Department. They did not have in-house counsel in a tri-county
area where I lived, and so we shared a contract and for three
years handled all felony cases, misdemeanors, and a number of
murder trials. So I have some familiarity with that.
And also touching on that to some extent, although not
quite in the arena of criminal law, was a 7-year stint where,
by contract, in addition to my civil practice, I prosecuted
child abuse cases on behalf of the State.
Senator Durbin. Would you mind responding as well, Ms.
Bowdre?
Ms. Bowdre. Certainly, the statistics that you mentioned
give pause and should give pause, I believe, in the
administration of justice in our country. If confirmed as a
district judge, I would do my best to make sure that everyone
who came before me, regardless of race, received a fair trial.
Beyond making sure that every person got a fair trial, I don't
know what I as an individual judge would really be able to
contribute to that consideration.
Senator Durbin. Within that definition of ``fair trial,'' I
assume, as you noted, it would involve an adequate defense.
Ms. Bowdre. Absolutely, absolutely.
Senator Durbin. In our State where our Republican governor
has suspended the imposition of the death penalty, it was
because in so many cases defendants were not adequately
represented in capital cases. I would hope that all of us could
learn a lesson from that.
Mr. Friot?
Mr. Friot. Senator, in addition to agreeing with what has
been said by my colleagues, I would add only that there is a
fairly well-developed body of law on the subject of selective
prosecution, and I would, without hesitation, apply the Tenth
Circuit and Supreme Court precedents on that subject if I were
so fortunate as to be confirmed as a district judge.
Senator Durbin. Mr. Hicks?
Mr. Hicks. I would concur with the previous comments,
particularly those of Judge Armijo. I feel that she has very
well spoken to the issue. This is clearly an issue that I am
sure has been developing in the courts, will be developing
further in the courts. And as a district judge, I will follow
the lead of the Supreme Court and the Ninth Circuit.
Senator Durbin. Mr. Pickering, would you like to comment on
that?
Judge Pickering. Senator Durbin, I recently gave a talk and
one of the things that I said in that talk was that I am tired
of sending people to the penitentiary. You are right on the
statistics, and it leaves a devastating hole in the African
American community when you take out that many young men.
The Sentencing Guidelines for youthful offenders are too
severe. I think sometimes they don't weigh enough for career
offenders. But every time that I have been able to--when I have
had young African Americans before me, if there were any chance
that they could under the Guidelines qualify for something less
than jail time, I try to do that.
Recently, I convened a group in Laurel that we dubbed
``Working for Kids at Risk,'' and I made that same statement to
them. We need to do something in our communities where the
disadvantaged are and try to have some programs where there are
not so many that I have to send to the penitentiary.
So I share your conviction in that area, but we only
sentence under the laws that are passed by Congress, and that
situation has been caused as a result of the law we are called
upon to enforce.
Senator Durbin. Well, thank you.
Judge Pickering. But I do share your concern about that.
Senator Durbin. Thank you very much, and thank you, Mr.
Chairman.
Senator Schumer. Thank you, Senator Durbin.
I will just have a few more questions and then either of my
colleagues who have others may go, as well.
This is to everybody: Chief Justice Rehnquist while he was
in President Nixon's Department of Justice provided a
definition of strict constructionism. He said, and this is a
quote from him, ``A judge who is a strict constructionist in
constitutional matters will generally not be favorably inclined
toward claims of either criminal defendants or civil rights
plaintiffs, the latter two groups having been the principal
beneficiaries of the Supreme Court's broad constructionist
reading of the Constitution.''
In other words, what he was saying is that if rights are
not expressly written into the Constitution, strict
constructionists are unlikely to find them there. That would
include, for example, the right to privacy, never mentioned in
the Constitution once; the right to interracial marriage, an
issue that Senator Durbin and Judge Pickering discussed; the
right to education, and many other rights that I think, at
least, Americans have come to rely on as our Constitution has
grown.
So my question to each of you is do you consider yourself a
strict constructionist, and if so do you agree with that
definition of strict constructionism. If you disagree with
Chief Justice Rehnquist's definition, how does your definition
differ from his?
Judge Pickering?
Judge Pickering. I would be hesitant to label myself
anything in that area. I do think that we do need to rely on
the plain meaning of language. I would certainly not want to be
associated with the definition that you gave in that regard.
But, again, I think that from the standpoint of appellate
judges, most of those areas have been spoken to by the Supreme
Court. So we are guided by precedent and I will follow those
precedents.
Senator Schumer. Judge Armijo?
Judge Armijo. Senator, I too would hesitate to label myself
in any such category, but I have to wonder how much of the
passage of time we must erase or should we erase in terms of
trying to say things ought to be the way they were 50 or 60
years ago, or 30 years ago.
We are an evolving society. Issues present themselves
almost daily that could not have been imagined these days, 5,
10, 20, 30 years in the past. I think we have to apply
initially the plain language rule, look very carefully at. I
don't think we need to try to find ambiguity where none exist,
but there are circumstances perhaps that would compel use of
other tools in interpreting a statute. Precedents must be a
guidance. Where that is lacking, I think we must look to
analogous cases or examples within our circuit, for example,
outside of the circuit where none exist, to be guided. But I
think that we are far beyond the situation where we pigeon-hole
ourselves anymore. I think that door is open.
Senator Schumer. Ms. Bowdre?
Ms. Bowdre. Well, in my opinion, certainly the starting
point would be the Constitution and its language. But we have
200-something-plus years of precedent from the United States
Supreme Court interpreting that Constitution, and my role as a
district court judge would be to apply the law as the Supreme
Court has pronounced it to be. And I would agree with my
colleagues about not being labeled or pigeon-holed into the
label of strict constructionist, as defined there.
Senator Schumer. Thank you.
Mr. Friot?
Mr. Friot. Senator, if I were called upon to address a
constitutional issue that had not authoritatively been resolved
by the Supreme Court, I would look to the closest available
precedents from the Supreme Court, the precedents from the
Tenth Circuit, also for that matter to the policy apparently
sought to be advanced by the provision in question. And I would
try to be informed by all of those sources rather than taking
any one narrow approach.
Senator Schumer. Mr. Hicks?
Mr. Hicks. Senator, I too would be leery of any labels. I
feel that construction or definition of the law is probably in
almost situation involving a district court judge very well-
defined, and it is my duty to follow that law.
Senator Schumer. Let's turn to a specific one that has
aroused lots of controversy. It is not in the Constitution, at
least in those words, and that is the right to privacy. Do each
of you--and I will let you elaborate later, but I prefer a
quick, succinct, even yes or no answer--believe the
Constitution guarantees a right to privacy?
Judge Pickering. The Supreme Court has said yes. I will
follow that.
Judge Armijo. Yes.
Ms. Bowdre. Yes.
Mr. Friot. Yes.
Mr. Hicks. Yes.
Senator Schumer. Do you believe that right to privacy
includes a woman's right to choose whether to have an abortion?
Judge Pickering. You know, as to personal feelings, I
would--
Senator Schumer. No. I mean the constitutional right.
Judge Pickering. The constitutional, yes.
Senator Schumer. Your interpretation of the Constitution.
Judge Pickering. Well, the Supreme Court has given two
decisions on that and they are the law and I would follow it.
Judge Armijo. I would follow that law.
Ms. Bowdre. I would follow the controlling precedent of the
Supreme Court.
Mr. Friot. I would do the same.
Mr. Hicks. Casey and those decisions would be controlling
on me.
Senator Schumer. So at the district court level or even up
on appeal, because some district court decided differently, if
somebody brought a case to overturn Roe v. Wade, you would
overrule that, is that correct?
Judge Pickering. I would follow Supreme Court precedent.
Senator Schumer. And do you believe the Supreme Court
precedent--
Judge Pickering. The Supreme Court has spoken very plainly
in Roe and Casey.
Senator Schumer. And so you would vote to overrule it?
Judge Pickering. I would apply that law in ruling.
Judge Armijo. As I would. I am bound by that precedent.
Ms. Bowdre. I would be, too.
Mr. Friot. I think the prerogative of overruling Supreme
Court decisions rests exclusively with the Supreme Court.
Mr. Hicks. I could and would follow that law.
Senator Schumer. Thank you. Now, I want to turn to
something that--again, this is a while ago--Judge Pickering,
you brought up. In a speech to the Mississippi Baptist
Convention, in 1984, you stated that the Bible should be
``recognized as the absolute authority by which all conduct of
man is judged.''
You are, by all accounts, a man of deep faith. I respect
that. I am a person of faith myself. I would assume that if you
were at the bar association of Mississippi, you would make a
different statement than at a religious convention. In other
words, I don't take your comments to mean that the Bible would
trump the United States Constitution in a court of law,
although, of course, our Constitution relishes, as it should,
the freedom of religion and the practice of religion.
Judge Pickering. Senator, you are absolutely correct. That
was a meeting of how we as Christians should live. I do think
it is not quoted exactly as I said it and I am not absolutely
of that because I don't have it, but I think the exact quote
was ``by which we should live and teach.'' I think that is what
I probably said.
Now, that same Bible I said we should live by says render
to Caesar that which is Caesar's and render to God that which
is God's. That means that whenever you take an oath to follow
the Constitution, you follow the Constitution, and I will do
that. So I don't see any conflict in there. And I did provide
you another speech on jury nullification and said exactly what
you said, that we should have a rule of law and we should abide
by that.
Senator Schumer. Okay, thank you.
Let me ask each of you another question. Again, I believe
these help us understand your reasoning as judges.
In the past few years, there has been a marked change in
the way the Supreme Court handles federalism. This may relate
to some interpretation of strict constructionism. I don't know.
Part of what has concerned me is that these cases lack
deference to Congress as a coequal branch of us making our own
findings and acting legislatively to address compelling needs.
Judge Breyer wrote what I would regard, and many others, I
think, as an eloquent dissent in the Broncalla case, the
Violence Against Women Act case, in which he said, ``Since
judges cannot change the world, it means, within the bounds of
the rational, Congress, not the courts, must remain primarily
responsible for striking the appropriate State/Federal
balance.''
First, I would like to know if each of you agrees with
Justice Breyer's comment. And then, second, in overturning
congressional acts, especially in the area of civil rights, the
courts have created what some have called a new federalism that
fundamentally alters the structure of our Government, and at
least in the view of me and others, is altering it for the
worse in the sense that they want to go back--this is the
Supreme Court--to the 1930s, 1890s, and, say, Congress'
interpretation of the Commerce Clause. Remember, the Commerce
Clause back in the 1890s and through the 1920s stopped things
like child labor laws and other kinds of things, the Supreme
Court interpreted it.
So I would like for each of you to just postulate a little,
so we can see how you think, on this new federalism and on the
Supreme Court's recent decisions--and precedent here is
changing all the time, so your opinions are going to matter--
the Supreme Court's view that Congress has exceeded its bounds
when it has made a whole number of laws related to the Commerce
Clause, 11th Amendment, and things like that.
Judge Pickering?
Judge Pickering. Mr. Chairman, I think that our Nation
would not have lasted 200 years if it were not for the
separation of powers. I think that is one of the real beauties
of our system to keep any one body from having absolute power.
I think we would have real difficulties if that occurred.
I think that Acts of Congress should be presumed
constitutional. We should start off with that deference to
them. Without any question, I think when Congress states an
intent as a part of the preamble, as part of the bill, that
that intent should be controlling in the situation. I think the
courts should be very careful before they find any statute to
be unconstitutional.
Senator Schumer. I just wanted to follow up a little bit on
that. Does what you are saying apply to the deferring to the
findings of Congress in terms of the national need? In this
case that I mentioned, there was a view, well, Congress said we
needed this under the Commerce Clause, but we don't think their
findings really justify it. That sent a good number of us in a
bit of a tizzy, and there were lots of findings.
I mean, it seemed to me in that instance the Court was
really seeking to replace its own judgment in terms of the
finding for Congress'. I helped write that law and I will tell
you, Senator Biden, who is on this Committee but couldn't be
here today, spent years of his life writing it. And we came to
a pretty strong conclusion that violence against women did
impede our national commerce in lots of different ways, and
here was the Court saying not that we didn't have findings, but
basically saying those findings weren't good enough. It was
really substituting its judgment for ours, and that is what
created such a strong dissent on the part of the Court.
Judge Pickering. As best I could, I have tried--I have
given you some personal opinions, but I have tried not to do
those in the areas that I thought were not settled by the
Supreme Court and there might be an issue, so that there
wouldn't be a disqualification.
Let me say that I feel very strongly that any findings by
Congress should be given great deference. Now, to go further
than that, I feel, might prejudice my being able to sit on a
case such as that, and I would like to see the briefing and
would like to see what the facts are. And I think that would be
as far as I would feel comfortable, but I certainly do feel
that the findings of Congress are entitled to great deference.
Senator Schumer. Judge Armijo?
Judge Armijo. Senator Schumer, I too believe very strongly
that statutes are presumptively constitutional, that we need to
look at that and understand that initially, and that great
deference should be given to the findings.
I have to just think about the potentials here of domestic
violence in a different way. Some years ago, I did a fair
amount of work in the area of stalking, and again that touches
in a similar vein where you don't have limitations to one's
State necessarily. And I think that the decision you refer to
can affect other scenarios.
As I think about that, what I also have to look back on is
how does one afford protection to those that the congressional
statute was intended to protect or to serve. And I have to look
back under the current state of the law that we look to our
States and hope that within our structure, perhaps under own
constitutions--and I must say that New Mexico is a State which
has relied very heavily on its own constitution to secure
protections for individuals. Perhaps that may be at this point
the remedy or the place to look for the protections that we
feel that we have lost or that have been lost as a result of
the cases which you have mentioned.
Senator Schumer. Ms. Bowdre?
Ms. Bowdre. Certainly, our forefathers did us a great
service in putting together the Constitution that they did, and
I think that the separation of powers is such a strong part of
our Government. In their wisdom, certainly they saw that the
legislative branch would have the resources available to make
findings and to announce legislation for the country.
And I agree with my colleagues that the findings of
Congress and the enactments of Congress certainly are due a
presumption of constitutionality. At the same time, though, our
forefathers did set up the checks and balances and the
opportunity to test the enactments of Congress to see if they
meet with the provisions of the Constitution.
There is a fine tension there between those two powers. But
as a district court judge, if I am fortunate enough to be
confirmed, I would first look to the legislation, look to any
pronouncements of the Supreme Court that would be binding upon
the decision in making my judgment in the case.
Senator Schumer. Mr. Friot?
Mr. Friot. Senator, in addition to associating myself with
that which has been said by my colleagues, I would only add
that I think from the perspective of a district court judge, it
would be especially presumptuous for a district court judge to
set him or herself up as a reviewing court, if you will, to
critique congressional findings underlying legislation either
under the Commerce Clause or section 5 of the 14th Amendment or
otherwise.
Senator Schumer. Mr. Hicks?
Mr. Hicks. I agree strongly with the comments of Mr. Friot
and my colleagues who have preceded me.
Senator Schumer. I am finished with questions. I thank each
of you for bearing with us.
Senator DeWine?
Senator DeWine. Mr. Chairman, thank you very much.
With the exception of Judge Pickering, who, if confirmed,
will go to the appellate court, each one of you will be at the
trial court and you will certainly be dealing with important
legal issues, but you will also be dealing with people on a
daily basis.
You will be really for many people their only real,
meaningful contact with the Federal Government. You will
undoubtedly make a lasting impression on every person that
comes into your courtroom.
Describe to me how you see your role as a Federal judge,
and in doing so give me an example--I certainly would not want
you to attach a name to it, but give me an example of the
conduct of a Federal district court judge that you would not
like and talk to me a little bit about what a Federal court
judge should do.
Judge Pickering, I am going to start with you because you
have had the opportunity to practice this for a long time, and
the type of district court judge you are today is probably a
pretty good indication of what kind of circuit court judge you
will be.
Judge Pickering. Senator, when I started out practicing
law, I was in the Federal court from time to time and they used
to have a procedure where all the lawyers that were going to
come before them for motions that day had to get there and sign
up and you waited, if necessary, all day. Lawyers would get
there as early as six o'clock in the morning to sign up and
they would be there all day.
When I went on the bench, I determined that I was not going
to keep everybody sitting around, so I scheduled motions and
things of that nature 45 minutes apart, trying to make it as
convenient to the attorneys to where they didn't waste any more
time that is necessary.
I also felt that judges took up too much time with the
lawyers after the jury was selected handling matters that they
should have handled before the jury ever got there. So I was
very mindful of jurors' time and tried to make sure that we
disposed of it, and tried to run a pretty tight ship of lawyers
to say we are going to take care of our business beforehand.
Sometimes, that wasn't easy, but it worked out most of the
time.
Senator DeWine. Good. Thank you.
Judge Armijo. Senator, approximately 5 years ago the New
Mexico State Bar undertook a study of public confidence in the
courts and it was very enlightening in our State. Certainly,
one thing that was realized is when we talk about that, we
certainly don't limit ourselves to the judge, the courtroom,
the courthouse. We look at the courtesies extended, we look at
witnesses, we look at preparation of attorneys, how we might
facilitate a fair hearing.
I think there is always a temptation, particularly at the
Federal level, as I perceive it--and this a very personal
answer--that you lose touch at that level. I think there has to
be great care taken to ensure that you always remember your
responsibilities as a public servant, always.
I think when I have heard of example--and I have not heard
of many, but a sense that perhaps the ivory tower has become
too high, it has been in situations where perhaps one has lost
touch with the reasons why you are before the public in that
profession.
I think temperament is important. Collegiality--even though
as a district judge we don't maintain the same contact that I
would have with my current colleagues on the appellate court,
we are part of the team and I think that is extremely
important.
But I think that when we talk about how we appear, we do
not limit ourselves to the courtroom and our chambers. I think
every witness is important, and every attorney, and I would
certainly commit and have committed to taking that very, very
seriously and never losing touch.
Senator DeWine. Thank you.
Ms. Bowdre. Senator, when I first started practicing law, I
had been clerking at the Federal district court and so I was
kind of designated the Federal court associate and got to be
involved in just about all the cases we had in Federal court. I
also had a lot of cases in our State court, and I must
preferred being in Federal court because the judges that we had
on the bench in Federal court made sure that everybody played
by the same rules. In State court, it often depended upon who
had contributed to the judge's campaign as to what rules were
applied there.
So one thing I would like to further, assuming I am
confirmed, would be that same approach that everyone in the
court plays by the same rules and knows what the rules are
going in. One thing that I noticed that our State court judges
do who are elected is, after every jury trial, they write
letters thanking the jurors for participating. Of course, there
is a political motive for doing that, but I would like to do
that as a Federal judge. It is not done often there as far as I
know, but I think it is important that we thank our citizens
who do take the time out to participate in that most valued
role as a juror.
Senator DeWine. Thank you.
Mr. Friot. Senator, I believe that the--not to over-
dramatize it, but I believe that the highest calling of a
Federal district judge is to do right those things which can
only be done right at the trial level, and many of them are
effectively unreviewable.
I think that a misguided Federal district judge can deny
justice in a way that can never be rectified, and for that
reason, as an example, I would not emulate those judges with
whom I have had experience who have prided themselves on being
absolutely inflexible on scheduling matters. That can be a tool
of oppression that can force unfair settlements in situations
in which a little more leeway would have let justice be done.
And that is the kind of thing with which I would hope never to
be associated as a Federal district judge, if I should be so
fortunate as to be confirmed.
Senator DeWine. Thank you.
Mr. Hicks?
Mr. Hicks. In my view, the Federal district court is the
trial court and is the court which will have the greatest
contact with the citizens of these United States. I believe it
is absolutely important that there be as much respect for the
court as possible, and I believe that that respect starts with
respect by the judge toward the people who are in the
courtroom. It extends to the litigants and it extends to the
counsel, and respect for our judicial system and a level
playing field by the judge is all-important.
Senator DeWine. I appreciate your answers. I believe there
are many good lawyers out there who are certainly intelligent
enough to be Federal district court judges. What we have a hard
time, I think, sometimes sorting out, whether it is a home
State or in cases like today where you are on a panel and
taking your testimony, is what your demeanor is going to be and
what your judicial temperament--you used the term ``judicial
temperament.'' I have never seen a good definition of it.
It is kind like the Justice from the State of Ohio on the
Supreme Court, Potter Stewart, said about obscenity; you know
when you see it. It is kind of hard to define. The same way
with judicial temperament. We certainly know it when we see it,
and let me just say as one Senator I certainly appreciate it
when I see it. I think it is very, very important and it is
ultimately what will assure fairness in your courtroom.
You all are intelligent and you all know the law. The
question is how you conduct that courtroom and what your
demeanor is and your relationship with the attorneys. As you
all have pointed out, the relationship with the attorneys will
ultimately impact the jury and it will ultimately affect the
clients of those lawyers who are maybe innocent of the
transgression that might have been committed by a lawyer on a
particular day.
Judge Pickering, let me close with you. Tell us again why
you would give up a position as a trial court judge, which many
judges think is the greatest job in the world, to go into a
situation where you have less contact with litigants, no
contact with litigants, really, and less contact with anybody
to render decisions--a lot of hours of reading, a lot of hours
of isolation. Why do you want to do it?
Judge Pickering. Senator DeWine, shortly after it was known
that I was to be recommended for this position, one of my
colleagues who is on the Fifth Circuit called even before I had
finished breakfast the day it got out and wanted to know if I
had lost my mind.
Senator DeWine. Well, maybe that is what I was saying.
[Laughter.]
Senator DeWine. I was a little more subtle. I don't know
you as well.
Judge Pickering. You know, I think at different stages of
one's life, different positions hold more attraction. I must
confess that 11 years ago when I was nominated for this
position, I declined an opportunity at that time to be
considered for the appellate position because I did not think
that--I had been in the courtroom trying cases and I realized
that there would be more of an ivory tower on the appellate
level and I just felt like I didn't want to do that at that
stage of my life. So I have had 11 years on the bench and I
feel that I am ready to move up to the next level.
Senator DeWine. Thank you. Mr. Chairman, thank you very
much.
Senator Schumer. Thank you, and I appreciate you being
here, Senator DeWine.
Just a couple of notes and then we will close. Senator
Sessions asks that his submitted statement on behalf of Ms.
Bowdre be submitted into the record. Without objection, I will
do that and leave the record open for introductory statements
of any other Senator for a week.
Senator Schumer. In addition, I just want to let each of
you know that we are going to keep open for the purpose of
submitting questions the record for one week for the four
district court nominees. So you may get written questions
within the next week and then have to submit them to us. We may
need more time--we will see--in terms of Judge Pickering as
soon as we get the production of some of the unpublished cases
that we talked about.
With that, let me thank each of you and your families--I
know they are very proud--for being here today under these
difficult circumstances. But, again, I would like the people
halfway around the world to watch that they can't stop us from
doing our job, no matter what they try to do to us, even if we
have to move the room or do whatever else.
So I thank you for being here and we are adjourned.
[Whereupon, at 3:59 p.m., the Committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
QUESTIONS AND ANSWERS
Responses of M. Christina Armijo to questions submitted by Senator
Leahy
Public Questions
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background information reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct you attention to that
report for a response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of share decisis? Does the commitment to
share decisis vary depending on the court?
Answer: A sitting trial judge should strongly adhere to the
doctrine of share decisis. I believe that a trial judge should
interpret the law and not make it. If confirmed, I will follow
governing precedent of the Circuit and the Supreme Court. At the same
time, I recognize that there is sometimes a lack of precedent for cases
that present new or novel issues or questions, statutes and
regulations. Where there is no direct precedent, a judge should look to
analogous situations and try to draw from these a solution that most
closely follows what the law has been in his or her jurisdiction. A
judge should resist second-guessing what the legislative body intended.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: When national security is threatened, every citizen's
freedom is at risk. There is a delicate balance here, as between the
right to individual liberties and the significant interest in national
security. Every instance of tipping that balance against a citizen's
liberty interest must be done with the greatest of care and scrutiny. I
believe, however, that the magnitude of the risk to national security
and the extreme consequences as occurred on September 11, are proper,
significant factors in assessing how this delicate balance is affected.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: In reviewing recent opinions of the Supreme Court, I agree
that some federal legislation which has been struck down resulted in
the narrowing of the scope of Congress' power.
If confirmed, I will faithfully apply governing Supreme Court and
Circuit precedent to these issues, while also respecting the strong
presumption of constitutionality applicable to all acts of Congress.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: On aspect of the expansion of sovereign immunity is whether
States may be sued in federal courts. The case of Seminole Tribe vs.
Florida dealt with a federal law which required the Indian tribes be
able to negotiate in good faith with state governments to allow
gambling on reservations. The law imposed a duty upon the states to
negotiate in good faith. The Supreme Court in Seminole said that
Congress can authorize suits against the states only when it acts under
Section Five of the Fourteenth Amendment, and not when it is using any
other power. In City of Boerne vs. Flores, the Supreme Court addressed
the scope of Congress; authority under Section Five of the Fourteenth
Amendment. The Court has said that if Congress provides remedies to
prevent a violation of an existing right, such remedies must be in
proportion to the nature or extent of the violation. In reviewing this
case, and others, one important factor this is apparent is the extent
of the legislative record available (including documentation) to
support the proposed legislation intended to remedy a violation of a
right. I believe that where Congress has made a record, including
findings supported by documentation, that those finding and owned
deference by the courts to the extent consistent with applicable
Supreme Court precedent.
If confirmed, I will faithfully apply governing Supreme Court and
Circuit precedent to these issues, while also respecting the strong
presumption of constitutionality applicable to all acts of Congress.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: In South Dakota vs. Dole, 483 U.S. 203 (1987) the Supreme
Court upheld the constitutionality of federal legislation which
required the states to set a twenty-one year old drinking age in order
to receive federal highway funds. In the case, the court stated that
such conditions may be placed on grants as long as the conditions are
expressly stated and so long as the conditions relate to the purpose of
the particular spending program.
While I do not have an opinion, nor will I speculate, as to whether
the holding in Dole night be reconsidered at some future time in light
of the Court's more recent ``federalism'' cases, I do not a recent
Tenth Circuit case, Kansas vs. United States, 214 F.3d 1196
(10th Cir. 2000) This case involved the federal welfare
program. As a condition of the states receiving monies under this
program, the states are required to consider certain conduct, including
child support enforcement, as conditions. The State of Kansas argued
that such conditions violated the Tenth Amendment. The Tenth Circuit
upheld the constitutionality of this federal law. The Tenth Circuit did
not depart from the holding in Dole and once again declared and
reaffirmed the holding in Dole that federal laws that place strings on
grants are constitutional where the terms are clearly stated and where
the conditions imposed relate to the purpose of the program.
If Congress provides money to a state and places conditions on the
funding, and if those conditions are clearly stated and relate to the
purposes of the program funded, then I believe the Congress may enforce
those conditions consistent with the principles set forth in Dole and
other related Supreme Court precedent.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
I presume that all federal states are constitutional, and any
review or consideration of the constitutional merits of such a law
must, first and foremost, begin with that presumption. I am unable to
address the merits of the constitutionality of any particular statute
because, as a sitting judge, such a question may come before me.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: I presume that all federal statutes are constitutional and
any review or consideration of the constitutional merits of such a law
must, first and foremost, begin with that presumption. I am unable to
address the merits of, or render an opinion as to, the
constitutionality of any particular statute because as a sitting judge,
such a question may come before me.
Responses of Karon O. Bowdre to questions submitted by Senator Leahy
Public Questions
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report on me, I respectfully direct your attention to that report for a
response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of share decisis? Does the commitment to
share decisis vary depending on the court?
Answer: For eleven years, I have taught law students that the
doctrine of share decisis forms the bedrock of our legal system. Other
components of that foundation include the supremacy of the Constitution
as interpreted by the Supreme Court, and the rule of law. The only
authority to overrule or modify prior Supreme Court decisions lies with
the Supreme Court itself. Similarly, the circuit courts can overrule or
modify their own rulings in accordance with their procedures and if the
Supreme Court has not addressed the issue. But a federal district court
judge must follow binding precedent of the controlling circuit and the
Supreme Court.
If confirmed as a district court judge, I would be bound to follow
controlling precedent from the Supreme Court and the Eleventh Circuit
Court of Appeals. Not to adhere to the critical role of share decisis
would put me at odds with what I have taught and what I firmly believe
is a central part of our system of justice.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: On questions of such magnitude, the legislative branch of
government is uniquely suited with the necessary resources and the
knowledge to address issues that affect all Americans so greatly.
Without addressing specifics and running the risk of prejudicing myself
should such an issue come before me, a balance must be struck between
the civil right of the individual and the national need for measures to
increase security. The most important role of the federal government,
however, is to provide for national security while respecting
constitutional rights.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: Certainly, as stated above, the decisions of the United
States Supreme Court bind district court judges on the issues decided
in those cases. Supreme Court precedent on analogous issues should also
be consulted. However, enactments of congress carry a presumption of
constitutionality with the burden resting heavily on the opponent of
the legislation to establish that it contravenes the Constitution. At
the same time, the separation of powers and the checks and balances
system have generally worked well for centuries, with some exceptions.
On matters challenging the constitutionality of legislation on
which the Supreme Court has not ruled, if confirmed, I would first
thoroughly examine the legislation itself and any relevant legislative
history, including Congressional findings and statements of purpose. I
would then compare the legislation with the Constitution, the supreme
law of our land, and any controlling or analogous pronouncements by the
Supreme Court. In making a decisions, I would give deference to the
Congressional findings and to the presumption of constitutionality.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: The Supreme Court has stated that when Congress seeks to
subject states to private suits to enforce constitutional rights, the
legislation must have ``a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.''
City of Boerne v. Flores, 521 U.S. 507, 520 (997). More recently, in
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356
(2001), the Court elaborated on the restrictions on Congress' ability
to abrogate states' immunity. When no suspect class is involved, the
legislation subjecting states to private lawsuits for money damages
must be supported by evidence of a pattern of discrimination by the
states. The remedy crafted by Congress must be congruent and
proportional to the wrong sought to be remedied.
When Congressional action meets this test, it can subject states to
private suites for damages for discrimination that does not involve
strict scrutiny. Because this question involves issues that may well be
presented to me should I be fortunate to be confirmed, I hesitate to
make any statement that might prejudice my ability to rule on such a
case. Should such an issue be presented to me, if confirmed, I would
first thoroughly examine the legislation itself and any relevant
legislative history, including Congressional findings and statements of
purpose. I would then compare the legislation with the constitution,
the supreme law of our land, and any controlling or analogous
pronouncements by the Supreme Court. in making a decision, I would give
deference to the Congressional findings and to the presumptions of
constitutionality.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: The Supreme Court, in South Dakota v. Dole, 483 U.S. 203
(1987), held that Congress in certain circumstances can condition
receipt of federal funds on specific state action. Those conditions
include that the exercise of the spending power as an inducement of
state action be in pursuit of the general welfare; that the means
chosen be calculated to advance the general welfare; that the condition
of the states' receipt of federal funds be stated unambiguously so that
states can make a knowing choice; and that a national concern be
addressed by the condition of funds. The Court also cautioned that such
exercise of the spending power must not be independently barred by some
other constitutional provision, and must not be so coercive as to turn
into compulsion.
Any action of Congress to condition receipt of federal funds on a
waiver of sovereign immunity would have to meet these constitutional
standards. Because this question involves issues that may well be
presented to me should I be fortunate to be confirmed, I hesitate to
make any further statement that might prejudice my ability to rule on
such a case. Should such an issue be presented to me, if confirmed, I
would first thoroughly examine the legislation itself and any relevant
legislative history, including Congressional findings and statements of
purpose. I would then compare the legislation with the Constitution,
the supreme law of our land, and any controlling or analogous
pronouncements by the Supreme Court. In making a decision, I would give
deference to the Congressional findings and to the presumption of
constitutionality.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Federal statutes are contained in fifty Titles, filling numerous
volumes of books. I have not studied or even read all the hundreds of
thousands of statutes. Therefore, I could not presume to know whether
any of those statutes for constitutional scrutiny but to only rule on
those issues brought before me. On matters challenging the
constitutionality of legislation itself and any relevant legislative
history, including Congressional findings and statements of purpose. I
would then compare the legislation with the Constitution, the supreme
law of our land, and any controlling or analogous pronouncements by the
Supreme Court. In making a decision, I would give deference to the
Congressional findings and to the presumption of constitutionality.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: Federal statutes are contained in fifty Titles, filling
numerous volumes of books. I have not studied or even read all the
hundreds of thousands of statutes. Therefore, I could not presume to
know whether any of those statutes violate the Constitution. Moreover,
if confirmed, my job as a judge would not be to ferret out statutes for
constitutional scrutiny but to only rule on those issues brought before
me. On any such issues, if confirmed, I would first thoroughly examine
the legislation itself and any relevant legislative history, including
Congressional findings and statements of purpose. I would then compare
the legislation with the Constitution, the supreme law of our land, and
any controlling or analogous pronouncements by the Supreme Court. In
making a decision, I would give deference to the Congressional findings
and to the presumption of constitutionality.
Responses of Stephen P. Friot to questions submitted by Senator Leahy
Public Questions
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely addressed the type of information called for by this
question. Without waiving the confidentiality of the FBI background
investigation report prepared on me, I respectfully direct your
attention to that report for a response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of share decisis? Does the commitment to
share decisis vary depending on the court?
Answer: In my opinion, a United States District Judge should
faithfully adhere to the doctrine of Stare decisis. It is well
established that, in some situations, the United States Supreme Court
is somewhat less constrained by the doctrine of Stare decisis. However,
the fact that the Supreme Court is, in some situations, relatively less
constrained by Stare decisis should be of no moment to a District
Judge. If confirmed, I will follow the precedents of my circuit and the
Supreme Court as the doctrine of Stare decisis requires.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: In my opinion, if we strip ourselves of our civil
liberties, the terrorists will have won an important battle. For that
reason, although I believe that there is now some justification for
enhanced investigative powers, I believe that it would be advisable to
treat the most intrusive of the new investigative powers as being
experimental and subject to stringent oversight.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: A common thread which may be found in most of the Supreme
Court's recent federalism decisions is that the Court's rationale is
frequently based, at least in part, upon either an absence of
Congressional findings satisfactory to the Court or upon the presence
of Congressional findings which the Court concluded were unsupported by
the legislative record. See, e.g., United States v. Lopez, 514 U.S.
549, at 562 (1995) (absence of findings); City of Boerne v. Flores, 521
U.S. 507, at 531 (1997) (legislative record insufficient to support
findings); and Kimel v. Florida Board of Regents, 528 U.S. 62, at 89
(2000) (conclusion, based upon the legislative record, that legislation
was ``an unwarranted response to a perhaps inconsequential problem'').
In my opinion, a Federal District Judge should proceed with utmost
restraint when confronted with a claim calling upon the District Court
to critique, review or otherwise weight the propriety of Congressional
findings or the sufficiency of the evidence in the legislative record
supporting those findings. Indeed, federal statutes are presumed to be
``constitutional exercise[s] of legislative power.'' Indeed, federal
statutes are presumed to be ``constitutional exercise[s] of legislative
power.'' Reno v. Condon, 528 U.S. 141, 148 (2000) (internal quotation
omitted). Among the many important duties of a trial judge, the
foremost obligation is, in my view, to serve as the guarantor of the
integrity of the process by which disputed issues of fact are tried and
reduced to judgment by way of verdict of judicial findings. This is not
a philosophical exercise and cannot be accomplished at any other level
in our judicial system. In my opinion, trial judges serve the public
interest best when they concentrate their time and energies upon the
numerous tasks (many of which are tedious and time-consuming) which
collectively result in the fair and trustworthy discharge of those
judicial duties which are unique to the trial court level.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: ``Congress is not limited to mere legislative repetition of
this Court's constitutional jurisprudence. Rather, Congress' power to
enforce the [Fourteenth] Amendment includes the authority both to
remedy and to deter violation of rights guaranteed thereunder by
prohibiting a somewhat broader swatch of conduct, including that which
is not itself forbidden by the Amendment's text.'' Board of Trustees of
the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, at
963 (2001) (internal quotation omitted), citing City of Boerne v.
Flores, 521 U.S. 507 (1997) and Kimel v. Florida Board of Regents, 528
U.S. 62 (2000). In my opinion, the Supreme Court's recent decisions
dealing with the scope of Congressional authority under Section 5 of
the Fourteenth Amendment were not intended to, and do not, render the
Section 5 grant of remedial legislative power illusory. In City of
Boerne, the Court after reaffirming several basic tenets of Section 5
jurisprudence, id. at 520, In Kimel, the Court (i) reaffirmed that
Congressional intent to abrogate Eleventh Amendment immunity must be
made ``unmistakably clear.'' 528 U.S. at 74. (ii) held that the Section
5 power will indeed trump Eleventh Amendment immunity if the Section 5
legislation is found to be ``appropriate legislation,'' id. at 644, and
(iii) concluded, applying the Boerne congruence and proportionality
test in light of the legislative record before it, that the legislation
in question was so ``out of proportion to a supposed remedial or
preventative object that it cannot be understood as responsive to or
designed to prevent, unconstitutional behavior,'' Id. at 86 (internal
quotation from Boerne omitted). It is clear that the perceived
``indiscriminate scope of the Act's substantive requirements'' was
crucial to the Court's decision. Id. at 650. Garrett clarified the
analytical framework and reiterated the principle that Section 5
legislation must comport with the contours of the constitutional
guarantee at issue as defined by the Court. 531 U.S. at ----: 121 S.
Ct. at 963. Under Garrett, the first analytical step is to ``identify
with some precision the scope of the constitutional right at issue..''
Id. The next step is to determine whether Congress identified a history
and pattern of unconstitutional state conduct sufficient to support the
exercise of Section 5 legislative power. Id. at 964. The Court
concluded, in Boerne, that the record did not reveal ``a pattern of
[unconstitutional] discrimination by the States'' sufficient to support
the exercise of Section 5 power. Id. at 967. If confirmed, I will apply
the principles of these and future Supreme Court cases to any cases
before me that raise these issues.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: The Supreme Court has held that Congress may encourage
states to consent to suit by offering them funding if they waive
sovereign immunity. See South Dakota v. Dole, 483 U.S. 203 (1987); cf.
Oklahoma v. United States Civil Service Commission, 330 U.S. 127
(1947).
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
I am aware of none.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: I am aware of none. If confirmed. I will apply the
presumption of constitutionality to all acts of Congress.
Responses of Larry R. Hicks to questions submitted by Senator Leahy
Public Questions
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation routinely
address the type of information called fro by this question. Without
waiving confidentiality of the FBI background investigation report
prepared on me. I respectfully direct your attention to that report for
a response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of share decisis? Does the commitment to
share decisis vary depending on the court?
Answer: A federal district court judge is bound to follow the
doctrine of Stare decisis and the doctrine is not subject to variance.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: It is evident that there is a great public concern and
focus upon the need for legislation to address the risk of more
terrorist attacks. However, I do not believe that constitutional rights
can be ``traded-off'' by the legislature regardless of the alternative.
Any legislation designed to provide greater security will have to fall
within constitutional limitations.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: My view is that the district court judge is obligated by
the doctrine of Stare decisis to follow the law as pronounced by the
Supreme Court. If the district judge's personal views should vary from
the law established by the Supreme Court, the Judge's obligation is to
set side his or her personal views and be bound by the law established
by the Supreme Court. If confirmed, I would apply the presumption of
constitutionality to all Act of Congress.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: Based upon the United States Supreme Court's decision in
Bd. of Trustees of the Univ. of Alabama v. Garrett 531 U.S. 356, 121 S.
Ct. 955 (2001), it would appear that Congress can subject states to
private suits for damages for discrimination where it can identify a
history and pattern of unconstitutional discrimination by the states.
When a pattern of discrimination is shown, the rights and remedies
which may be enacted by Congress must then be congruent and
proportional to the targeted violation. This reflects my impression of
the Bd. of Trustees of the Univ. of Alabama v. Garrett decision which
appears to be the controlling authority relative to this question. If
confirmed, I would examine all relevant authority on this issue
carefully and would follow the law established by my district's Circuit
Court of Appeals and the United States Supreme Court. I would also
apply the presumption of constitutionality to all Acts of Congress.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: The United States Supreme Court's decision in South Dakota
v. Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987) is relevant precedent in
responding to this question. However, without further definition of the
certain ways in which federal funds might be used by the state, the
extent of the state's waiver of sovereign immunity, the elements of a
private action and definition concerning what constitutes misuse of
such funds, this is a question which I cannot answer in a simple yes or
no fashion. If my nomination is confirmed, I assure the Committee I
would follow all controlling precedent of my district's Circuit Court
of Appeals and the United States Supreme Court. And, as stated above, I
would apply the presumption of constitutionality to all Acts of
Congress.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
I know of now such law. If confirmed, I would apply the presumption
of constitutionality to all Act of Congress.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: I know of none. All federal statutes and sections thereof
are presumed to be constitutional and, in the event that I should be
fortunate enough to have my nomination confirmed, it would require a
clear and convincing showing before I would allow the presumption of
constitutionality to be overcome.
Responses of Charles W. Pickering, Sr. to questions submitted by
Senator Leahy
Public Questions
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of share decisis? Does the commitment to
share decisis vary depending on the court?
Answer: In our legal system the doctrine of stare decisis is very
important. It provides stability and continuity in the law. It helps
fulfill the maxim that we are ``a government of laws, not men.'' In my
opinion, district courts are firmly bound by the doctrine of stare
decisis as to cases decided by their circuit and the U.S. Supreme
Court. Circuit judges are firmly bound by the decisions of the Supreme
Court, as well as the Circuit's precedent, unless overruled by the en
banc court.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: Our Constitution was adopted to create a government to
provide appropriate services, and basic protection to our citizens,
while at the same time guaranteeing them great freedom and liberty
under the Bill of Rights. There will always be tension between the need
to protect our citizenry in times of peril and to protect
constitutional rights of individuals at the same time. Although there
is great need to protect our nation from terrorism, we must not change
the character of our nation which makes our people the freest people on
earth.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: The circuit courts are bound to follow Supreme Court
precedents in this area as in all others. Congressional acts are
nevertheless presumed to be constitutional. If confirmed, I will adhere
to these basic principles.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: Again, circuit courts are bound to follow the precedents
established by the Supreme Court in this area. In a case of first
impression, the circuit courts, under the doctrine of stare decisis,
should try to determine what the Supreme Court would do based on
previous Supreme Court precedent. The Supreme Court has announced the
standard by which states can be subject to private suits for money
damages. If that standard is met, then a state can be subject to the
type of suit suggested in this question.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: Under Supreme Court precedent, Congress can require that
states do certain things as a condition of receiving federal money. If
the conditions of waiver of sovereign immunity meet the standards
outlined in Supreme Court precedent, then it should be upheld.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: The Federal Code now consist of 50 titles and over 250
volumes. It would take an analysis of a specific statute to determine
whether it violates the sovereign immunity doctrine. Further, acts of
Congress are presumed to be constitutional.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: The Federal Code now consists of 50 titles and over 250
volumes. It would take an analysis of a specific statute to determine
whether it violates the sovereign immunity doctrine. Further, acts of
Congress are presumed to be constitutional.
SUBMISSION FOR THE RECORD
Statement of Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama, in support of the Nomination of Karon Owen Bowdre
I am pleased to introduce to the Committee a first-rate judicial
nominee. Karon Bowdre has been a student, practitioner, and professor
of the law. She graduated cumlaude from Cumberland School of Law. She
served as the associate editor of the Cumberland Law Review.
Mrs. Bowdre also served as a law clerk for the Honorable J. Foy
Guin, Jr. in the Federal District of Northern Alabama, the court to
which she has been nominated. So she is very familiar with the federal
district court.
Prior to becoming a full-time professor, Mrs. Bowdre spent several
years as an associate and partner, practicing law at the well respected
law firm of Rives & Peterson. During a substantial part of that
practice, she litigated a number of cases in the federal court system.
Mrs. Bowdre has spent the last eleven year's teaching students
about the rule of law. As a professor and the Director of the Legal
Research and Writing Program at the Cumberland School of Law, she has
authored numerous articles on insurance law and legal ethics.
In addition, she has been called to testify as a legal expert on
insurances issues. And she has been involved in lecturing at Continuing
Legal Education seminars.
Mrs. Bowdre knows how to deal with lawyers, with witnesses, and
with parties. These experiences have no doubt prepared her for service
on the federal bench.
Mrs. Bowdre's reputation as a lawyer and as a scholar has earned
her broad support. I would like to quote a letter submitted by one of
the most successful plaintiff lawyers in the State of Alabama, Jere
Beasley. Even though Mrs. Bowdre, as an insurance defense attorney, was
generally arguing the opposite position of Mr. Beasley, he had this to
say on her behalf:
``I have known Karon for a number of years and believe that she
will be an outstanding U.S. District Judge. She will have wide
acceptance from lawyers. . .regardless of whether they represent
plaintiffs or defendants. While my practice is one that represents
plaintiffs or defendants. While my practice is one that represents
plaintiffs only, I am convinced that Karon will be fair and competent
to all concerned and that is all that any lawyer should ask of a judge.
She is highly qualified and, in my opinion, will do an outstanding
job.''
Karon Bowdre's integrity, experience, and commitment to the rule of
law are outstanding. I commend Chairman Leahy for placing her on the
agenda for today, and I recommend her to my colleagues on the Committee
without reservation.
NOMINATION OF HARRIS L. HARTZ, OF NEW MEXICO, TO BE CIRCUIT JUDGE FOR
THE TENTH CIRCUIT; KURT D. ENGELHARDT, OF LOUISIANA, TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA; JOHN D. BATES, OF
MARYLAND, TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; WILLIAM P.
JOHNSON, OF NEW MEXICO, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW
MEXICO; AND SHAREE M. FREEMAN, OF VIRGINIA, TO BE DIRECTOR OF THE
COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE
----------
THURSDAY, OCTOBER 25, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:18 p.m., in
Room SR-385, Russell Senate Office Building, Hon. John Edwards
presiding.
Present: Senators Edwards, Leahy, Hatch, and Kyl.
OPENING STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM THE
STATE OF NORTH CAROLINA
Senator Edwards. Welcome, and thank you all for being here.
Before we get started, I want to thank and commend Senator
Leahy, who is not here at this time, for keeping this train
running at a very stormy time. You won't find another Committee
in the Congress that has been more productive than the
Judiciary Committee, which Senator Kyl and I both serve on,
over the last 6 weeks.
Since taking leadership of this Committee in July, the
Chairman has held 8 hearings; he has held 4 after September 11
and he has held 2 since our offices were shut down last week,
all at the same time that all of us were working on a massive
antiterrorism bill. He has held more hearings and moved more
judges through the Committee than the Judiciary Committee moved
by the same date in 1989 and 1993, the last time we had a
first-term President, and he has broken those tallies in spite
of the events of September 11.
One final comment. We are now holding hearings at a time
when many people, myself included, do not have access to our
offices. While we have been able to prepare for this hearing, I
am not certain whether all my colleagues on the Committee have
been able to do that. So we are going to ask to leave
additional time for written questions after this hearing.
I will now ask Senator Domenici to introduce our nominee
from New Mexico.
PRESENTATION OF HARRIS L. HARTZ, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT, BY HON. PETE V. DOMENICI, A U.S. SENATOR
FROM THE STATE OF NEW MEXICO
Senator Domenici. Thank you very much, Mr. Chairman. Do you
want me to do the circuit court first?
Senator Edwards. That is fine.
Senator Domenici. Thank you very much, Mr. Chairman and
Senator Kyl. I will be very brief.
First of all, I want to say that we have a very
distinguished lawyer in our State, a very distinguished, and
while we know that he would do wonderful work in New Mexico,
where he has served on our circuit court and been a pinnacle of
everything a judge should be, we are now prepared today to
share him with our country. He is going to be a great circuit
court judge. His name is Harris Hartz.
He has with him today some very dear people and I just want
to have them stand up very quickly: his wife, Deborah; his
mother, Muriel; and his son, Andrew. They are as pleased as any
of us to be here. Even though our buildings are not exactly
what they thought, they are delighted to be here and very
grateful to you for permitting their son and husband to be
confirmed today.
Senator Edwards. Welcome. We are happy to have you all
here.
Senator Domenici. Mr. Chairman and Senator Kyl, let me just
say if you are looking for somebody to be on the circuit court
of appeals who has many academic credentials as you can
possibly vest in a human being--if that is what you are looking
for, he has got that. He is a very brilliant lawyer.
Wherever he attended either undergraduate school or law
school, both at Harvard University, he graduated at or near the
top of his class; in undergraduate, magna cum laude from
Harvard, in the very, very highest echelons, and editor of one
of their student papers.
From our standpoint, whenever we look around and say is
there a Republican that can please the judiciary, be they
Democrat or Republican, one who stands head and shoulders over
most lawyers in every respect, including ethics, we are very
pleased to have this man in our midst.
All I want to say today is you won't go wrong. I don't want
to take any more of your time because this is as right a
candidate as I could produce from New Mexico, and I am so
grateful that Senator Bingaman has done an awful lot to help
move this along and support him.
Senator Edwards. Thank you very much.
Senator Bingaman, I want to go to you next, but before I do
let me see if my colleague had a statement he would like to
make.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Mr. Chairman, in view of the time, let me just
put my statement in the record, but commend all of the nominees
for being here, and welcome all of the witnesses. We have an
impressive array of witnesses to introduce them. I will not
impinge on their time.
I also congratulate them, welcome their families, and just
note in advance that the fact that there are not a whole bunch
of Senators up here ready to spend a lot of time grilling these
witnesses is not an expression of disinterest, but rather a
confirmation of your qualifications and the fact that they have
been thoroughly vetted. You wouldn't be sitting here today if
you weren't in a very good position to be confirmed quickly,
and that is the reason why I hope and imagine that this will go
very quickly for you.
Senator Edwards. Senator Bingaman?
PRESENTATION OF HARRIS L. HARTZ, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT, BY HON. JEFF BINGAMAN, A U.S. SENATOR
FROM THE STATE OF NEW MEXICO
Senator Bingaman. Thank you very much, Mr. Chairman. I am
very pleased to be here with Senator Domenici in support of
this nomination.
Harris Hartz is one of our very best lawyers in New Mexico
and is recognized as that by all members of the bar as far as I
know. He is admired for his contributions to our State and our
community, as well, and I know that in all respects he has
strong support, Democratic support, Republican support, non-
partisan support, throughout our State.
So I compliment the President on nominating him, I
compliment Senator Domenici on recommending the nomination, and
I urge the Committee to act quickly on his nomination and get
him confirmed.
PRESENTATION OF WILLIAM P. JOHNSON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW MEXICO BY HON. PETE DOMENICI, A
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Domenici. Mr. Chairman, could I continue with the
district court nominee from New Mexico?
Senator Edwards. That is fine.
Senator Domenici. Thank you very much. I will be very
brief.
We have a district court judge who serves in the district
court in the 5th Judicial District of New Mexico. That is a
court of general jurisdiction, Senator Kyl.
Recently, I went down to that part of New Mexico to see
what he did, and we are going to have a United States District
Judge that has been at every level of courts of general
jurisdiction. He will have a special empathy wherever the
United States Government has relationships in their court to
young people because he has been head of the juvenile court
down there for part of his judicial career. He has been in
arduous trials, where he has come out of them with both
plaintiffs and defendants thinking that they couldn't find a
better person sitting behind the bench than him.
I know, in particular, Senator Kyl, you are always
concerned about judges and the quality of them. And, Senator
Edwards, that is where you made your life for a long time. You
had to have good judges. You had to have judges that understood
the law, applied it fairly, and let the jury decide when they
are supposed to. We have got a man here that is going to do
that in the Federal system for a long time.
He has with him some people very dear to him. I am just
going to quickly mention them. His wife, Loretta, is here from
New Mexico; his father, John; his mother, Shirley; and his
brother-in-law, Errol Chavez. I just introduce them to you.
I now yield to Senator Bingaman, whom I thank profusely for
helping with these nominees. He will not be sorry, New Mexico
won't, and you won't.
Thank you.
Senator Edwards. Thank you, Senator Domenici.
Senator Bingaman?
PRESENTATION OF WILLIAM P. JOHNSON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW MEXICO, BY HON. JEFF BINGAMAN, A
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Bingaman. Well, thank you again, Mr. Chairman and
Senator Kyl. I also strongly support this nominee.
In the case of Harris Hartz, I have known him for nearly 30
years and have had the opportunity to observe him for all that
period and admire his abilities. But in the case of Judge
Johnson, I have not known him for any period of time. I did get
a chance to meet with him and I know him by reputation in the
communities that he has served in, particularly in Roswell,
where he is a district court judge. He is extremely well
respected by the bar in the community. I know of his interest
in delinquent youth, in particular, and his work with Camp
Sierra Blanca, which is a model for the kind of rehabilitation
program we need to see much more of in this country.
So I believe that he will be an excellent addition to the
Federal bench and I recommend that the Committee go ahead with
his confirmation as quickly as possible.
Senator Edwards. Thank you. Senator Domenici and Senator
Bingaman, thank you both very much.
Senator Breaux?
PRESENTATION OF KURT D. ENGELHARDT, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON. JOHN B.
BREAUX, A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman. Senator
Landrieu and I and Congressman Vitter are all here to strongly
support the nomination of President Bush of Kurt Engelhardt, to
be a Federal district judge for the Eastern District of
Louisiana.
Kurt will bring to this position, I think, the type of
qualifications that are very important in the sense that he is
a graduate of Louisiana State University Law School. All of
your nominees will have a great deal of academic experience and
legal qualifications, but he also has a history of having a
local practice in two of the major firms in the greater New
Orleans area, in Metairie and in New Orleans, and really brings
an understanding to the bench of what it is like to have a
local practice dealing with everyday, real problems in the real
world.
In addition to that, he also has experience in the academic
world, having clerked and worked for one of our distinguished
professors of law at Louisiana State University. So he has had
the academic experience, he has had the real-world experience,
and he has also had experience which I think is very important
from the judicial side in having clerked for a Federal district
judge from Louisiana.
I think it is important to note that, in addition to that
judicial experience, Kurt served with great distinction as the
Chairman of the Louisiana Judiciary Commission, which was a
very difficult position in the sense that you had to look at
ethical complaints against sitting judges, something that
obviously is not an easy task, and Kurt served with great
distinction.
So I think he will bring to this position both practical,
real-world experience, a good academic background and academic
experience in the teaching profession, as well as actually
serving the judicial system through his work as Chairman.
The only thing that I can note that caught my eye of his
earlier errant ways is when Kurt served as the Chairman of the
Louisiana Term Limits Campaign. Of course, now that he is
getting a lifetime appointment, I know he sees the error of his
earlier days.
[Laughter.]
Senator Breaux. I enthusiastically support Kurt and am
delighted to have his wife, Ann, with us today, as well.
Senator Edwards. Thank you, Senator Breaux.
Welcome, Ann. We are glad to have both of you here.
Senator Landrieu?
PRESENTATION OF KURT D. ENGELHARDT, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON. MARY
LANDRIEU, A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Landrieu. Thank you. I am going to submit my
statement to the record, Mr. Chairman, because you have been
very gracious to have three Louisianians here before you. And
because our Congressman is a very, very good friend of the
nominee, he can give us more detail.
Let me just support the comments of my senior Senator, send
my statement for the record, and say that this nominee has my
full support. I am confident, based on his academic
credentials, his reputation as a lawyer, and his civic
involvement in our community, that he will be an excellent
addition to the bench.
Thank you very much.
Senator Edwards. Thank you very much, Senator Landrieu and
Senator Breaux.
Congressman Vitter, with your permission, I am going to go
to Senator Warner, who needs to leave to go to a briefing.
Senator Warner, I couldn't see you over there hiding behind
the bench.
Senator Warner. That is fine, Mr. Chairman.
Senator Edwards. We are glad to hear from you now.
PRESENTATION OF SHAREE M. FREEMAN, NOMINEE TO BE DIRECTOR OF
THE COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE, BY HON.
JOHN W. WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. I am about to start a hearing of the Armed
Services Committee as the ranking member, but this is a
privilege that we have here in the United States Senate in the
confirmation process to appear on behalf of distinguished
Americans who are willing to step up and serve as public
servants, and we have an extraordinary one today in Sharee
Freeman. While I have not known her that well, this curriculum
vitae tells the story of accomplishment.
As a courtesy to the Chairman of the International
Relations Committee in the House, for whom she worked for these
many years, I would like to have my statement appear in the
record following the Members of the House who are here on her
behalf.
She is undertaking a job which will place her on the front
lines of challenges in America. It is called the Community
Relations Service. It helps local communities resolve serious
racial and ethnic conflicts. That is a challenge, particularly
at this point in our history where this Nation is at war and a
particular sect of people, Muslim-Americans, who are wonderful
Americans, who are now subjected in ever-increasing numbers to
this problem. This will be among her earliest tasks.
So I shall leave it to our distinguished Chairman and ask
that my statement appear behind the House Members on behalf of
this distinguished American, Sharee Freeman.
Thank you very much.
Senator Edwards. Thank you very much, Senator. We
appreciate you being here.
Welcome to all of our colleagues from the House. We are
very delighted to have you here.
Congressman Hyde, I think we will start with you, please.
PRESENTATION OF SHAREE M. FREEMAN, NOMINEE TO BE DIRECTOR OF
THE COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE, BY HON.
HENRY J. HYDE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
ILLINOIS
Representative Hyde. Thank you very much, Senator. Senator
Warner did it exactly right. Sharee Freeman is the nominee for
the important post of Director of the Community Relations
Service and currently is a counsel for the International
Relations Committee, where we kidnapped her from the Judiciary
Committee where she served 4 years as one of the leading
counsel over there. She was responsible for civil rights
issues, fair housing, crime, religion, and the Constitution,
and did a brilliant job.
She came to the Hill from the Department of the Interior,
where she served as Acting Assistant Solicitor for General
Indian Legal Activities and as an attorney adviser. She spent
13 years with the Department of the Interior, and worked
intimately and extensively with Indian tribes throughout the
U.S. concerning education, the ADA, housing, civil rights,
welfare, and social service issues.
She developed an expertise in appropriations law and
Government contract work, and I am proud to say she was an
assistant district attorney in Philadelphia from 1982 to 1984.
She is a native New Yorker. She received her bachelor of arts
from St. Lawrence University and her juris doctorate from
Georgetown.
As soon as she finished law school, she became a clerk to
the Honorable Norma Holloway Johnson, of the U.S. District
Court for the District of Columbia.
What I am most proud of about Sharee is she is an advocate
of community service and she regularly cooks and serves dinner
for the homeless of the metropolitan area with the Step Ahead
program. She is a mentor volunteer for Hispanic, black and
Indian high school and college students. She assists them in
securing employment, internships, higher education, advanced
degrees, and financial aid.
Let me just say this: I know Sharee very well. She has been
on my staff on the Judiciary Committee for 4 years, and a year
on International Relations. She takes the tough jobs, she does
the heavy lifting. She does it willingly and she does it well.
I am very proud of her and I am very proud that the President
named her for this important post.
Senator Edwards. Thank you very much. That is a ringing
endorsement.
Congresswoman Morella, please.
PRESENTATION OF JOHN D. BATES, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLUMBIA, BY HON. CONNIE MORELLA, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND
Representative Morella. Thank you, Mr. Chairman. I thank
you for the opportunity to come before you to introduce my
constituent, John D. Bates, who has been nominated by President
Bush for the position of United States District Judge for the
District of Columbia.
It is a great privilege to introduce him because he is a
constituent. I am very proud of him. He is an extremely well
qualified attorney and he has considerable experience. He has
served his community with distinction, and I am confident he
will make an excellent judge.
Mr. Bates has a long and distinguished resume, and in the
interests of time I will only highlight some of the impressive
qualifications for the Committee.
He is currently a member of the law firm of Miller and
Chevalier in Washington, D.C. He received his B.A. from
Wesleyan University, his J.D. from the University of Maryland
School of Law, and from 1968 to 1971 he served in the United
States Army, including a tour in Vietnam. He was awarded the
Bronze Star for exemplary service.
For almost 20 years, Mr. Bates served in the office of the
U.S. Attorney for the District of Columbia as an Assistant U.S.
Attorney. He tried a wide variety of Federal cases and argued
over 30 appeals in the U.S. Court of Appeals for the D.C.
Circuit.
He has handled many sensitive cases dealing with national
security and constitutional issues. From 1987 through 1997, he
was the chief of the Civil Division of the U.S. Attorney's
office. He served on detail as deputy independent counsel from
1995 to 1997, and received very wide praise for his fair and
thorough approach to his judicial work.
I just wanted to point out that I happened to see the Legal
Times, two issues, June 21 of this year and July 16, and I
would call to your attention, Mr. Chairman, the fact that he
has received applause, approbation, high praise on both sides
of the aisle; for example, Eric Holder, Jr.; David Kendall;
Joseph Sellers, who is a noted civil rights lawyer; Mark
Tuohey, III, a former D.C. Bar president, and I could go on and
on. This says something about the feeling and the sentiment
that others have who have worked side by side with him and who
have seen his work. He brings outstanding credentials
educationally, through his experience both in the private
sector and in the public sector, in the military, as well as in
the community.
He is here with his wife, Carol Ann Rhees, his daughters
and his son, and I wonder if they might just stand.
Senator Edwards. Welcome. We are glad to have you.
Representative Morella. Imagine two partners, both being
lawyers, and I have often said behind every successful man is a
surprised mother-in-law. Well, I don't think that that was the
case in this situation.
Mr. Chairman, I am confident that John Bates will perform
his very important duties as a U.S. District Judge for the
District of Columbia with the utmost integrity and fairness.
With his past experience, his long record of service, his
commitment and his judicial temperament, he will serve our
Nation with honor. So it is my pleasure to present him to you.
Thank you.
Senator Edwards. Thank you very much.
Congressman Vitter, thank you very much for your patience.
PRESENTATION OF KURT D. ENGELHARDT, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON. DAVID
VITTER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
LOUISIANA
Representative Vitter. Absolutely, Mr. Chairman. Thank you
very much for the courtesy of allowing me to be here and speak
briefly. Because my two Senators have already outlined Kurt
Engelhardt's qualifications, I will be very brief and just hit
a couple of high points.
First of all, let me say I have known Kurt very, very well
for 15 years, and I couldn't think of anyone I would rather be
here on behalf of and anyone I could recommend more highly in
terms of professionalism and professional capacity, in terms of
intellectual capacity for the job, and most importantly to me
in terms of personal integrity. I say that very sincerely, so I
couldn't recommend him more highly.
I think there are two things about his background and
resume which I would like to point out, and I won't go through
it exhaustively. You obviously have his resume and the Senators
have touched on it more broadly, but I wanted to pinpoint two
things.
First of all, Senator Breaux mentioned something that is
very important. He served on what is called the Louisiana
Judiciary Commission, and for part of that service he was
Chairman of the Commission. That is a body established under
State law to deal with alleged ethical violations of State
courts judges, and so obviously it is a very important and very
delicate position.
Kurt, by all accounts, by everyone's account, handled
himself really, really well in that capacity. First of all, he
did the difficult work that had to be done, including
recommending and following through on the censure of certain
judges, even as he was a practicing attorney. As a former
practicing attorney yourself, you can imagine that that is not
an easy role to fill. He did that and made tough decisions,
along with his fellow Commission members.
But he also did something which hadn't been done on the
Commission before. He worked very proactively on a widespread
education effort, reaching out to the judiciary, quite frankly
to avoid problems from arising, nipping problems in the bud,
educating the judiciary about all aspects of the Louisiana Code
of Judicial Ethics so that problems would not arise and have to
come to the enforcement stage. He gets very, very high marks in
Louisiana on both aspects of that service, and I think that is
very important in terms of his qualifications for a judgeship.
The second thing I would point out is his very broad
practice in the law and, as a result, his very broad-based
support for this position. As you know, his file is full of
very sincere recommendations from across the spectrum,
Democrats and Republicans and folks he has met in every aspect
of his practice--defense bar members, trial bar members, judges
and others. I think that speaks very, very highly, a truly
broad spectrum of support which in part recognizes his broad
practice.
I think that is also evidenced by the exceedingly smooth
process his whole appointment has been. In every stage of
vetting, whether it is the White House or the FBI or our two
Democratic Senators or hearing from the local bar, there has
been really unanimous praise and not even a speed bump along
the way, which I think speaks very highly of him. He was the
consensus choice by all of the folks in Louisiana whom the
President asked for recommendations. He was the first choice
for an Eastern District judgeship and he was immediately agreed
to by our two Democratic Senators.
So those are some highlights. I thank you for your courtesy
and, of course, I encourage you to move as expeditiously as
possible on his nomination.
Thank you.
Senator Edwards. Thank you very much, Congressman Vitter.
Congresswoman Norton, welcome. We are honored to have you
here.
PRESENTATION OF JOHN D. BATES, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLUMBIA, BY HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you very much, Mr. Chairman. I am
here to recommend to you John Bates for the United States
District Court for the District of Columbia. I am here because
it is our district court, but the District of Columbia has no
Senators. I will call that anomalous, to be polite about it.
President Clinton granted me senatorial courtesy. The
Chairman of this Committee has agreed to consult with me on all
nominees for the district court in my district, and I am very
pleased to say that the White House has agreed to do that as
well.
It is in that capacity that I was asked to meet with Mr.
John Bates and became impressed with him. He is now associated
with a major law firm in this city. What recommends him best as
far as I can see to you is his experience, Mr. Chairman, as a
trial lawyer, something I think you will understand is
important if one is going to be a district court judge. One
wonders if one is even qualified to be a district court judge
if the lawyer has not been a trial lawyer.
Mr. Bates is essentially a career United States Attorney.
He spent 17 years in the office of the United States Attorney
here in the District of Columbia, trying a broad variety of
cases so well that he rose to be Chief of the Civil Division of
the U.S. Attorney's office.
He was detailed for a couple of years to the Independent
Counsel's office while still at the U.S. Attorney's office, and
won high marks there for balance and impartiality. He is well
regarded by the bar of this city, for example, as Chairman of
the Litigation Section of the Federal Bar Association. He
serves on the board of directors of the Washington Lawyers
Committee for Civil Rights Under Law. He is well educated, a
B.A. from Wesleyan, a noted editor of the Maryland Law Review,
Order of the Coif.
This is a well-qualified nominee, Mr. Chairman. I am
pleased to support his nomination.
Senator Edwards. Thank you very much, and I thank my
colleagues. Your support of these nominees is very helpful to
us. We appreciate your comments and appreciate your testimony.
We are honored to have you with us.
Could I ask, when of this panel has left, all the nominees
to come forward, please?
If you would stand, please, and raise your right hand?
Do you swear the testimony you are about to give before the
Committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Judge Hartz. I do.
Mr. Engelhardt. I do.
Mr. Bates. I do.
Judge Johnson. I do.
Ms. Freeman. I do.
Senator Edwards. Judge Hartz, would you remain, and if the
rest of the panel would step back for now?
Judge welcome. We are happy to have you here. We heard the
testimonials from those who came before you who obviously have
a very high opinion of you, and you have a very impressive
file.
Let me ask you first whether you have an opening statement
and whether you have members of your family that you would like
to introduce for us.
STATEMENT OF HARRIS L. HARTZ, NOMINEE TO BE CIRCUIT JUDGE FOR
THE TENTH CIRCUIT
Judge Hartz. Thank you very much, Mr. Chairman. I do not
have an opening statement. I just wanted to thank you for
conducting this hearing today in the extraordinary
circumstances facing the country. I am very grateful to Senator
Domenici and Senator Bingaman for their kind words and their
support.
If I may introduce my family, my wife, Debby--
Senator Edwards. And ask them to stand, if you don't mind.
Judge Hartz. Please stand.
My son, Andrew, and my mother, Mrs. Hartz.
Senator Edwards. Good afternoon, and welcome. I know you
all are proud to be here and I know how proud you are of your
husband, father and son, and we are glad to have him here.
[The biographical information of Judge Hartz follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Judge let me start by asking you just a few questions. As
you well know, there is a substantial disagreement about how
some of the broad guarantees that are embodied in our
Constitution, like equal protection and freedom of speech, are
to be interpreted.
Some judges believe that the constitutional provisions
stand for principles or values, and that judges should have
some leeway or discretion in interpretation of those
provisions. Others think that that kind of approach gives
judges too much discretion.
I just wonder if you can tell me generally what your
feeling is about that issue.
Judge Hartz. Well, as a member of the New Mexico Court of
Appeals, and I hope as a member of the Federal court, my duty
would be to follow the approach taken by the United States
Supreme Court. They have the very difficult decisions you are
talking about, but the role of any inferior judge would be
simply to apply the laws set forth in opinions of the U.S.
Supreme Court.
Senator Edwards. Can you tell me whether you have a view in
terms of your judicial approach about protection of privacy in
cases like Roe v. Wade and Griswold v. Connecticut?
Judge Hartz. My approach as a judge would be to apply the
decisions by the United States Supreme Court to the best of my
ability.
Senator Edwards. And what about the same issue with respect
to equal protection, particularly in the context of race? Do
you have any particular approach to that?
Judge Hartz. I think all of us in this country feel very
strongly about racial discrimination and oppose that, and that
is the way the United States Supreme Court has been ruling for
the most part. But in any event, I feel committed to apply the
decisions handed down by the United States Supreme Court.
Senator Edwards. I noticed in looking at a note that you
had written while you were--I guess you edited it, a note while
you were at Harvard Law School, where you said, and I am
quoting you now, ``Equal protection is about the elimination of
stigmatizing State action.'' Does that remain your view today?
Judge Hartz. If that is the one I--I assume that is the
case note on Palmer v. Thompson.
Senator Edwards. I don't have the citation here, so I don't
know.
Judge Hartz. I expect that is the case. As the editor, I am
not responsible for writing the language.
Senator Edwards. I understand that.
Judge Hartz. My friend, Peter, Bombush, who is an attorney
here in town, is the author of that, and I would just be there
to--my role would be to make sure that it is properly analyzed.
We would discuss matters, but those would represent his views,
not mine. So I don't remember that particular sentence, I am
afraid, in any event.
Senator Edwards. That is actually not surprising. Having
been involved in writing and editing law review notes, I don't
remember anything that was in them. That probably says good
things about you.
One of the questions that was on the judicial questionnaire
had to do with the issue of judicial activism, and I think I am
quoting your answer now. You said, ``Every judge must always
keep in mind that the judiciary is just one branch, the non-
political branch of government.''
With that comment in mind, could you tell me what your view
is about recent Supreme Court decisions? The New York Times
has--I am quoting the New York Times now--has said that the
present Supreme Court has ``struck down more Federal laws per
year than any Supreme Court in the last half century.''
Do you have any view with respect to that?
Judge Hartz. In my work as a judge, I always employed a
very strong presumption in favor of the constitutionality of
legislative enactments, and I think that general presumption is
applied by the United States Supreme Court, also. But to the
extent that the U.S. Supreme Court has ruled statutes
unconstitutional and applied certain doctrines to strike down
those statutes, a member of any inferior court would be
obligated to do the same.
Senator Edwards. Cass Sunstein, who is a well-known law
professor--I don't know if you are familiar with him or not.
Judge Hartz. I am familiar with the name.
Senator Edwards. He wrote in the Times that we are now in
the midst of a remarkable period of right-wing judicial
activism. Do you agree with that statement?
Well, let me ask it another way. Let me ask it a little
more innocuously.
Judge Hartz. Thank you.
Senator Edwards. Do you personally have some explanation
for why there has been such a high invalidation rate over the
last few terms of the Court?
Judge Hartz. I hadn't thought about that. I am sure a lot
of new doctrines in law usually come about because academics
and others think about policy issues and write about it, and
eventually it seeps its way into the judiciary. But I don't
have a theory behind it, no, Mr. Chairman. I am sorry.
Senator Edwards. For years, the prevailing view seemed to
be that the sovereignty of States--this is on the issue of
federalism--received enough protection from the political
process from the influence of governors and Senators, for
example, so courts didn't need to intervene to try to protect
State authority. It seems that the present Supreme Court has
rejected that view.
Do you have a view about whether the--or what is your
sense--I guess I will ask it that way--about whether the
political process is adequate to protect States' rights?
Judge Hartz. Again, I said I think it is important for the
judiciary to be very deferential to the legislative branch. I
don't think it would be appropriate for a lower court judge to
comment on the propriety of what the Supreme Court has done in
that area. I don't know that I can say more about that.
Senator Edwards. Let me ask you, if I could, Judge, about--
we have looked at some of the opinions you have written on the
New Mexico Court of Appeals. They are well-reasoned and well-
written, I might say, first of all.
Judge Hartz. Thank you very much.
Senator Edwards. You have got a strong body of work, but in
some of the opinions that we have seen--some of the opinions
were, of course, majority opinions and some were your opinions
as dissents. There were six dissents that you listed in
constitutional cases. I looked at each of those and in all six
of the dissents, if I understood them correctly--this is what I
want you to comment on--you seem to argue that the majority of
the court made a mistake in finding that the government had
violated an individual's constitutional rights. In other words,
the majority found there was a violation and you did not
believe there was a violation.
Can you comment on that in terms of anyone who might have a
concern that that was an indication that you had a view that
was out of the mainstream on that particular issue, which is an
issue that is obviously one that we think is critically
important?
Judge Hartz. I think someone familiar with my entire body
of work would not find me to be at all out of the mainstream,
and some of my dissents in areas have been maybe not formally,
but in practice adopted in our court. I know I wrote some
dissents in speedy trial cases where I thought New Mexico
courts had gone beyond what other jurisdictions had done, and
my impression has been that the decisions of our courts in
recent years have been more in line with the approach I took in
my dissents, although I wasn't that far removed from what the
majority said.
If you look at the opinions I have written in criminal
cases where the supreme court has reversed, I think you will
find that in two of those cases my opinion was in favor of the
defendant and the supreme court reversed in favor of the
government. And of the other two, one was really procedural
where my opinion, the opinion I wrote for the court, we said
that the issue should be resolved on remand--or not on remand--
there should be a hearing on whether the attorney had provided
the defendant adequate representation. But--
Senator Edwards. In a couple of--excuse me.
Judge Hartz. I am sorry, sir.
Senator Edwards. No. I am sorry. I don't want to interrupt
you. I apologize.
Judge Hartz. I am through.
Senator Edwards. Okay. There were a couple of the opinions
that did deal with speedy trial, and then there were a couple
that appeared to deal with the issue of double jeopardy. One
was New Mexico Taxation and Revenue Department v. Whitener. Do
you remember that case?
Judge Hartz. Yes.
Senator Edwards. And another was the State v. Gaddy case,
which apparently had to do with habitual offender sentencing
enhancement.
Judge Hartz. Yes.
Senator Edwards. Can you just comment on those cases? It
appears that in the New Mexico Taxation and Revenue Department
case the supreme court rejected your view, although only by a
five-to-four vote.
Judge Hartz. Yes. My decision in Whitener was wrong. In
that case, I was trying to interpret U.S. Supreme Court
decisions on double jeopardy in the context of a forfeiture.
And the U.S. Supreme Court, when it addressed the issue in the
same type of statute as involved in Whitener, changed its
analysis completely. Its prior analysis was not workable, so I
don't feel too bad at having, I have to admit, goofing in that
case because I was trying to figure out what they would rule.
Senator Edwards. Hard work sometimes, isn't it?
Judge Hartz. Yes. In Gaddy, I still think I was right in
that case.
Senator Edwards. And then there were a couple of cases that
had to do with--State v. Vasquez was one of the cases you
listed, which had to do with the court granting a motion to
suppress based on the Fourth Amendment.
Judge Hartz. Yes.
Senator Edwards. And you found no violation. Would you like
to comment on that? Do you remember the case?
Judge Hartz. Is that the case involving Border Patrol
agents? I am sorry.
Senator Edwards. I can't tell from what I have here.
Judge Hartz. I can see someone nodding, yes. I don't think
I differed from the court in whether there was a violation or
not. I think the majority agreed that there was no violation of
the Federal Constitution. The question was whether the U.S.
Border Patrol officers had violated the State Constitution of
New Mexico, and if so what remedy there would be.
And my opinion was--and, again, I am afraid I still think I
was right--was that the New Mexico constitution did not control
the conduct of U.S. Border Patrol agents. The New Mexico
constitution did not control the conduct of United States
Border Patrol agents at a Border Patrol checkpoint in New
Mexico. That is where I differed, and then the question was
whether suppression would be appropriate.
Senator Edwards. Two other areas I want to ask you about
very quickly. We are in the midst in the Congress now of
obviously dealing with the events of September 11 and the
aftermath, and trying to make sure that the Attorney General
has the necessary tools to fight this war on terrorism which we
all as Americans feel very strongly about. In fact, we just
passed the bill in the United States Senate just before I came
over here.
There is little doubt in any of our minds that there will
probably be constitutional challenges to some of the provisions
of the antiterrorism legislation that we just passed. There has
been a fair amount of history in this country where the courts
have taken different roles at different times with respect to
the protection of civil liberties in the context of war time
situations.
Can you just comment on that for me and sort of tell me
what your perspective is on that?
Judge Hartz. My involvement in that issue goes back a long
ways because when I was in law school, I was the developments
editor of the Harvard Law Review and the president of the
Review, and I decided that the developments issue would be on
national security and civil liberties. I was the editor of
that, so again I did not write material in that developments
issue of a couple hundred pages.
Basically, the reason for having that work as a couple
hundred pages, as I think I said, was because there hadn't been
an overall analysis of the issue in any legal journal, and we
felt we could add some perspective to the issue, to a lot of
related issues. And a point made in that developments issue was
courts, and the political branches as well, need to be very
careful about infringing on civil liberties in the name of
national security.
There are very important interests of protecting our
Government and our way of life, but we shouldn't jump hastily
to remedies that may infringe civil liberties, and I think that
approach should guide any judge and any Senator and any Member
of Congress in addressing the issue.
Senator Edwards. I agree with that.
Let me ask you one last question. Can you identify for me
two or three Supreme Court opinions over the years that you
have found to be particularly important, well-written, well-
reasoned, that you think have made a real impact on the
country? What are your favorites? That is really what I am
asking.
Judge Hartz. Well, some of my favorites are not the most
important. One of my favorites last term was an eight-to-one
decision by Justice Breyer in Illinois v. McArthur because it
adopted essentially the views in my law review note of 30 years
earlier. But I don't think anyone would say that is a very
important case.
Senator Edwards. It is important to you.
Judge Hartz. Yes.
The most important cases in my lifetime would be Brown v.
Board of Education, certainly, for obvious reasons. That has
been so important to the Nation. Mapp v. Ohio--
Senator Edwards. Did you think Brown was a well-reasoned
opinion?
Judge Hartz. I have not read Brown recently and I have
heard some people criticize its rambling, and so on, but
sometimes being best-reasoned is not necessarily the best
opinion. There were very important political issues there and
Chief Justice Warren had to work together, get a unanimous
Court and try to explain the importance of this issue to a lot
of people in the country who didn't believe that way. So I
would not fault it if it were not as tightly reasoned as one
would try to make one's own opinions as a judge.
Senator Edwards. And you were about to identify another
opinion.
Judge Hartz. One where you certainly couldn't say--I think
it is extremely important--well, I mentioned Mapp v. Ohio, and
that was very important because it increased judicial
supervision of the law enforcement community in the States.
And one that I don't think you could say is well-reasoned
because there were so many opinions, but the Pentagon Papers
case was extremely important in establishing the high regard
the First Amendment has in our political system.
Those would be the ones I would think would be the most
important ones in my lifetime.
Senator Edwards. Judge, thank you very much. We appreciate
your testimony. I actually got a telephone call about 10
minutes before I walked over here from someone in North
Carolina who was a strong supporter of yours.
Judge Hartz. That is nice to hear.
Senator Edwards. You are obviously held in high esteem by a
lot of people and I think you will make a terrific member of
the bench. So thank you for being here.
Judge Hartz. Thank you very much.
Senator Edwards. Judge Hartz, you are free to go if you
would like. You are more than welcome to stay if you would
like, too. But we have finished your portion of the hearing, so
you are free to go if you would like.
Judge Hartz. I think will leave, then.
Senator Edwards. Absolutely.
Now, if we could have Mr. Bates, Mr. Engelhardt, and Judge
Johnson, please.
Mr. Engelhardt, we will start with you. Do you have either
an opening statement or members of your family or friends you
would like to introduce?
STATEMENT OF KURT D. ENGELHARDT, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF LOUISIANA
Mr. Engelhardt. Thank you, Senator Edwards. I have no
opening statement, except to thank the Committee, and in
particular Senator Leahy, for allowing me this opportunity to
attend the hearing, and to thank you for being here today to
Chair the hearing. I also want to thank Senators Breaux and
Landrieu for their remarks earlier today, and Congressman
Vitter for his kind remarks as well.
My guest is my wife, Ann, who is seated directly behind me.
[The biographical information of Mr. Engelhardt follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
With that, I will defer to the next nominee.
Senator Edwards. Well, thank you, and we welcome Ann. We
welcome you to Washington and to this hearing.
Mr. Bates?
STATEMENT OF JOHN D. BATES, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLUMBIA
Mr. Bates. I have no opening statement, Mr. Chairman. I
would like to thank the Committee and you for having us here
today, affording us this opportunity especially in these
extraordinary times, and thank Chairman Leahy as well for the
work that he is doing.
I have a few introductions, if I might--
Senator Edwards. Please.
Mr. Bates. --in addition to thanking, of course,
Congresswoman Morella and Congresswoman Norton for their kind
introductions today.
My wife, Carol, is with me, as well as my three children,
who were introduced earlier.
Senator Edwards. Why don't they stand?
Mr. Bates. In reverse chronological order: Kelly, a
freshman at Walt Whitman High School.
Senator Edwards. Now, you are going to have to tell us who
is who. This is Kelly. Your wife is telling us.
Mr. Bates. My son, Brian, who is a senior at Walt Whitman
High School, and my daughter, Lauren, who flew down from New
Hampshire where she is a junior at Dartmouth. I am most proud
of all of them and happy to have them with me today.
Senator Edwards. Welcome. We are happy to have you all
here.
Mr. Bates. I also have a few other family members. My
brother, Richard D. Bates, Jr., is here. He is a professor of
chemistry at Georgetown University, and his two children, my
nephew, Spencer, who is a senior at Northwestern University,
and my niece, Dunlea, who is a junior at Bethesda-Chevy Chase
High School.
Senator Edwards. Are they all here?
Mr. bates. They are here.
Senator Edwards. Would you all please stand? Come on, you
can stand. Welcome. We are glad to have you here, too.
Mr. Bates. I have a number of friends here from my law
firm, as well as Neille Russell, who will be working with me, I
hope, if the Senate sees fit to confirm me. And I am very happy
to have them here as well.
Senator Edwards. Thank you, Mr. Bates, very much.
[The biographical information of Mr. Bates follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Judge Johnson?
STATEMENT OF WILLIAM P. JOHNSON, TO BE DISTRICT JUDGE FOR THE
DISTRICT OF NEW MEXICO
Judge Johnson. Mr. Chairman, I am very honored to be here
today. I don't have any formal remarks other than to say I
thank Senator Leahy and I thank you for chairing me this
Committee and affording me the opportunity to be here. I am
also very grateful and honored for the support of Senator
Domenici and Senator Bingaman.
As far as my guests today, my wife, Loretta, is here.
Senator Edwards. Welcome, glad to have you.
Judge Johnson. Because of the time and distance and school
commitments, our four children could not travel with us from
New Mexico. But my mother and father, John and Shirley Johnson,
are here.
I might add that all my mother's relatives hail from
Salisbury, North Carolina. So, Mr. Chairman, Salisbury was my
home away from home growing up.
Senator Edwards. You have got a leg up already, I will tell
you that.
[Laughter.]
Judge Johnson. My brother, John, he is an attorney in
Roanoke, Virginia. He could not be here today, but I am very
honored that my brother-in-law, Errol Chavez, is here. Errol is
the special agent-in-charge of the San Diego field office for
the Drug Enforcement Administration.
[The biographical information of Judge Johnson follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Edwards. Terrific, terrific. Welcome. Thank you for
what you are doing. Well, thank you all. Thank you for being
here.
Most of these questions will be directed to all three of
you, so we will just ask you each to comment on them.
As all three of you know, I am sure, for years Federal
judges had a wide discretion in sentencing criminal defendants,
and that discretion has been fairly severely limited through
the Sentencing Guidelines, although they do continue to have
the authority in extraordinary circumstances to make changes.
I would just like for each of you, if you would, to comment
on how you perceive the responsibility of a Federal district
court judge should play out in trying to deal with the tension
between fairly restrictive sentencing guidelines and a need you
may feel in an individual case to deal with the particular
circumstances of the case.
Judge why don't we start with you? You obviously have some
experience in this area.
Judge Johnson. Well, Mr. Chairman, from, I guess, a
personal standpoint, I like the idea of having, you know, the
guidelines, and I believe they came about because of, you know,
wide discrepancies in sentencing that were being handed down by
Federal district judges. And certainly what could be a light
sentence in one area of the country, another area could be, you
know, a very lengthy sentence. So I think the uniformity is
good.
I am in a jurisdiction where there are for some offenses
mandatory minimums that the legislature has enacted, and quite
frankly I think that is good. It tends to promote more uniform,
you know, and consistent sentencing patterns, and I think
overall that is good.
And I would certainly have no difficulty in following the
Sentencing Guidelines, although, again, I haven't, you know,
been in the Federal system. But as I understand, there are
procedures for, you know, departing either upwards or downwards
based on factors that are set forth in the Guidelines.
Senator Edwards. Thank you very much, Judge.
Mr. Bates?
Mr. Bates. The Sentencing Guidelines are obviously an
important issue, and they sprang from very important
considerations that Congress took into account. And they don't
always play out perfectly in every instance, I am sure. I would
attempt, if confirmed as a district judge, to apply them under
the rule of law, consistent with what is required as enacted,
but certainly bringing to bear where I could my desire to have
fair, impartial justice administered through the criminal
justice system.
Senator Edwards. Mr. Engelhardt?
Mr. Engelhardt. Yes. Mr. Chairman, I would echo my
colleagues' comments and I would point out, too, that I have
had the opportunity to discuss the Sentencing Guidelines with
some of the members of the bench in my jurisdiction and they
seem to believe that the uniformity that has come about as a
result of them is something that is very desirable on their
behalf.
As you pointed out, they do afford some departure one way
or the other in certain limited circumstances, and I think it
is important that the judge have the discretion within the
Guidelines. And from what I have been told by judges in my
jurisdiction, they believe that that discretion is something
that affords them the degree of flexibility that they like.
Senator Edwards. Okay, thank you very much.
In Griswold and Roe v. Wade, the U.S. Supreme Court found
that there was a constitutional right to privacy. I have a
couple of questions related to that.
First, do you believe there is a constitutional right to
privacy? Second, do you believe that constitutional right to
privacy includes a woman's right to have an abortion?
Judge Johnson?
Judge Johnson. Senator, Roe v. Wade, Griswold v.
Connecticut, those Supreme Court cases--that is well-settled
precedent. Roe is almost approaching 30 years. I believe
Griswold was decided in around 1965 or 1966.
Senator Edwards. In the 1960s, yes.
Judge Johnson. But, again, you know, they were part of a
line of cases dealing with the privacy rights and it is well-
settled precedent. And if I am confirmed to be--fortunate
enough to be confirmed by the United States Senate, then I
would certainly follow that binding and controlling Supreme
Court precedent.
Senator Edwards. Thank you, Judge.
Mr. Bates?
Mr. Bates. I agree with Judge Johnson. It is well-settled
precedent. Privacy rights have been identified in a number of
contexts by the Supreme Court, and as a district judge I would
certainly abide by the rulings of the Supreme Court and follow
them very faithfully.
Senator Edwards. Mr. Engelhardt?
Mr. Engelhardt. Yes. Mr. Chairman, I also agree that it is
well-settled law; both of those cases are well-settled law. I
think the Supreme Court has cited those cases in opinions that
have followed over the years, and I would have no qualms or
reservations certainly about applying those concepts were I to
be confirmed on the district court level. I would certainly
apply those to the letter and the spirit in which they have
been rendered by the U.S. Supreme Court.
Senator Edwards. Thank you all.
As you all know very well, we have had a real problem with
Federal judges having huge caseloads. While nobody understands
better than you and I how important it is for individual cases
to get the attention they need and they deserve, it is also
true that when justice is delayed, it is justice denied in many
cases. It is important for these cases to move.
I wonder if I could get each of you to sort of tell me what
your view, your perspective is on how you balance the need to
move cases, particularly given the caseloads that Federal
judges carry today, against the need to have each case receive
the attention that it deserves.
Judge Johnson. Senator, I have got, I guess, a little bit
of experience in the State court system. In my court, we have a
very high criminal caseload and I know some of the procedures I
have used. I mean, I have gotten a case to the jury on a
Wednesday afternoon, and then while the jury is deliberating
Thursday morning I will start the next case.
So I mean part of it may mean, you know, burning the
midnight oil and having the lawyers, you know, get the case
tried. I think, again, docket control, the use of techniques
such as trailing dockets--and I am sure from your days as a
litigator, you know, you probably didn't like if you had cases
set on a trailing docket. But that avoids a situation where if
the case settles right in advance or if there is a plea in a
criminal case, then there is another case to step up and to
move it. So, you know, there are ways you can do that.
In the civil cases, again, you know, you give the attorneys
enough time to do the discovery and get the case, but don't
grant continuances. Lots of times, you know, a firm trial
setting is the best way for a case to get resolved or to get
settled.
In New Mexico--and certainly the work that this Committee
is doing by having the confirmation hearing last week of the
other nominee from New Mexico, and certainly giving me an
opportunity to have a confirmation hearing--in New Mexico, the
United States District Court, according to the Administrative
Office of the Courts, has the third highest caseload per judge
of any Federal district in the Nation.
A lot of that is attributable to increased caseload in Las
Cruces, and it is border-related activity. But the current
judges now--you know, they are extensively using senior judges.
We also--and, again, this is what I understand; a lot of
districts don't do this, but the Federal magistrates a very
valuable there.
They are involved in the rotational assignment on civil
cases, so they are assigned a civil case. And, of course, if a
party wishes to have an Article III judge hear the case, then
they can strike the magistrate. But the Federal magistrates in
our district, many of them have former experience as State
judges.
Senator Edwards. Magistrates are trying jury cases?
Judge Johnson. They are trying jury in civil--
Senator Edwards. With the consent of the parties?
Judge Johnson. With the consent of the parties, and many
times the parties, you know, will consent to that because
otherwise they are going to get a quicker trial setting.
Senator Edwards. Do you have any particular techniques to
get cases settled? Alternative dispute resolution--do you
involve yourself in that process? What is your approach to
that?
Judge Johnson. In a State court system, I do a lot of civil
mediation for--I am in an 8-judge district, and obviously I
don't think it is appropriate for a trial judge to mediate the
case that is pending before him.
Senator Edwards. They do it all the time.
Judge Johnson. They do. I don't.
[Laughter.]
Senator Edwards. In my experience, they do.
Judge Johnson. My colleagues, they will refer cases to me.
We mediate cases for one another, particularly on the civil
cases.
Senator Edwards. But generally speaking, you don't mediate
and get involved in the mediation if you are going to actually
try the case?
Judge Johnson. I don't think it is right because the
mediation techniques that I use--basically, there is an order
entered by the judge, say, if I am the mediator. Both sides
have to submit a confidential settlement paper where they lay
their cards out on the table. I don't let the attorneys see
what the other side is presenting, but as a mediator it helps
me to see if there are some areas where I can push the parties
toward mediation and then I kind of do some shuttle diplomacy
and go back and forth. So with that kind of disclosure, I
personally feel it is inappropriate for the trial judge, you
know, to have that information ahead of trial.
Senator Edwards. I agree with that.
Judge Johnson. But we have gotten a lot of cases settled
that way. There is mandatory mediation in the Federal courts,
and I think that is good. The only reservation I have about
that is, you know, some cases--I mean, you can force the
parties to go to mediation, but there are just some cases that
aren't going to settle. So I think you need to get a sense from
the attorneys whether or not it is a waste of time.
Senator Edwards. Sure.
Mr. Bates, same issue. How do you balance the need to move
cases with the heavy caseload? Also, the second question: Do
you have ideas about how you can participate and be involved in
helping cases get resolved?
Mr. Bates. I think that participation is very important. A
district judge needs to be a participant in the management of
the cases and to come up with ideas, but also prompt the
parties to move things.
It is fortunate in the district court that I have been
nominated for that there are some very valuable tools
available. There are excellent magistrate judges for part of
the process, not just to try some cases with the consent of the
parties, but also in handling discovery issues and other things
along the way in cases.
Also, there is a mediation program that I think is very
valuable to the court, using local practitioners to try to
resolve cases as impartial mediators or early neutral
evaluators. And I would certainly expect to use all the tools
available to me, but the primary one is probably hard work. I
think a judge needs to be very aggressively involved in
prompting the movement of cases towards speedy resolution.
Senator Edwards. I agree with that. Thank you, Mr. Bates.
Mr. Engelhardt?
Mr. Engelhardt. Yes. Senator, we have in my jurisdiction a
very strong magistrate system that I find greatly aids in the
discovery process. An issue is joined, trial dates are assigned
and cut-off dates are assigned promptly. Cases are moved
through, with the help of the magistrates on discovery type of
issues, and trial dates are honored.
As a matter of fact, some of the attorneys in my area, in
the New Orleans area, don't enjoy practicing in Federal court
for that reason. However, I as a practitioner have always
enjoyed that and have found it to give a lot more certainty to
the process. And I think it cuts down on a lot of the more
expensive aspects of litigation because it forces the parties
to fine-tune the issues very, very promptly in the litigation.
With regard to trying to resolve cases, I think that one of
the things that district court judges should do is to try to
mediate each other's cases, and I guess this goes back to
something that Judge Johnson mentioned in his State
jurisdiction.
We have magistrates in my jurisdiction that do mediate
cases, where the judge refers the case to the magistrate for
that purpose. But I think it is also important--if the parties
feel more comfortable with a district judge mediating the case,
I, if confirmed, would be willing to do that for other members
of the bench because, as was indicated earlier, a lot of
parties don't want the judge--especially if it is not a jury
trial, don't want the finder of fact exposed to the arguments
of counsel and perhaps some evidence that may or may not be
admissible once you get to trial.
But I think that in my jurisdiction we have got a good
record of moving cases forward, and I certainly want to uphold
that, along with the system that our clerk of the court has
developed and that our judges have employed up to this point.
Senator Edwards. Well, I want to say thank you to all of
you. You all come with impressive backgrounds. You are
obviously held in high esteem by your colleagues. Your family
friends who are here and your family and friends who are not
here should take great pride in the service you have provided
and the service you are going to provide to your country.
On a personal note, I would hope that when you are
confirmed, as I believe you will be--Senator Hatch has just
appeared and he may want to ask a question or two--when you are
sworn and you begin your service, the need to move cases, which
we all know is important--it is also critically important that
everybody get their day in court and that everybody be treated
exactly the same. It is something that I personally feel very
strongly about, the little guy having a fair chance and a fair
day in court. So I am confident from what I have heard from all
of you and from all the wonderful testimonials and testimony
that we have had about you that all three of you will do that.
Senator Hatch, did you want to make a comment or ask
questions? Welcome, we are glad to have you here.
Senator Hatch. It is nice to be with you, Senator Edwards.
Let me just make a comment because I believe all three of
these gentlemen are tremendous candidates and nominees. I have
done a lot of checking and I have done a lot of work on it, and
I just want to compliment each of you for being willing to
serve because I know it is a sacrifice to serve on the Federal
bench. It is not only a sacrifice of time and effort, it is a
sacrifice for those of you who are as successful as you have
been to go on the bench and frankly make less than a number of
first-year law review graduates.
If it was money, we probably wouldn't serve, if that were
the issue. The issue is service to our country, and I don't
know of any branch of service in this country that does more to
save and preserve and protect the Constitution of this country
than the judicial branch. So I just want to personally thank
each of you for being willing to serve, and I am going to
support you and hopefully we can get you through as quickly as
we can.
Thank you, Senator Edwards.
Senator Edwards. Thank you, Senator.
Thank you all very much for being here.
Judge Johnson. Thank you, Mr. Chairman.
Mr. Bates. Thank you, Mr. Chairman.
Mr. Engelhardt. Thank you, Mr. Chairman.
Senator Edwards. You are free to go, if you would like.
Ms. Freeman, if you will come up, please.
Do you have either an opening statement and/or members of
your family and friends you would like to introduce?
STATEMENT OF SHAREE M. FREEMAN, NOMINEE TO BE DIRECTOR OF THE
COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE
Ms. Freeman. I have an opening statement. My family is not
here, but I claim the rest of the room. They are all my
supporters and I thank them for coming.
Senator Edwards. We are glad to have them and we will be
happy to hear from you.
Senator Hatch. It looks like a suspicious bunch to me.
[Laughter.]
Ms. Freeman. Mr. Chairman and Senator Hatch, good
afternoon, and thank you for scheduling this hearing in view of
the pressing matters that confront this Nation as we proceed
forward from the tragedy of September 11. Please also allow me
to extend my humble and sincere thanks to Senator Warner and
Chairman Hyde for their kind and gracious words.
That I sit before you here today to be considered for the
position of the Director of the Community Relations Service is
a testament to the dreams and struggles that so many of you
embraced in the 1950s and 1960s. I wish that my parents were
alive to see this day. They played a definitive role in leading
me to the path of public service.
Before the United States Supreme Court rendered its opinion
in Brown v. Board of Education, Ralph and Leona Freeman were
overcoming and surviving racial prejudice and discrimination.
My father, a John F. Kennedy devotee, would often echo the
President's inspirational words and remind my older brother,
Rene, and myself that the world and times were changing.
He would pat my head and say, ``Let the word go forth from
this time and place to friend and foe alike that the torch has
been passed to a new generation of Americans, born in this
century, tempered by wars past, disciplined by a hard and
bitter peace.''
At 6 years of age, his words resonated, but were not clear.
As I matured, I held tightly to his dream of a new generation
committed to service to this country. My father died when I was
7 and left a young widow to raise two children in a world that
practiced segregation, from the water fountains to the
restrooms and everyplace else in between.
My mother worked as a transit clerk for the New York City
subway, and cleaned homes after hours to ensure that I could
attend parochial elementary and high schools. Sometimes, I
tagged along with her. Though my mother's highest academic
achievement was a GED, she used to press wrinkled dollars in my
palm after a long day's work and fervently whisper in my ear,
``This is for college.''
My mother also made time to be active in and about the
community, particularly in Birmingham, Alabama, where her
family had its roots. When other children were attending swim
meets and taking ballet lessons, it was not uncommon for my
mother to take me and my brother to a freedom fight march. I
grew up on the words of Reverend Martin Luther King.
After attending a peaceful demonstration, we would gather
at a relative's home and talk about everything from politics to
how a sit-in participant covers one's head to avoid fatal blows
if hit by a billy club of an over-zealous State trooper.
While my mother had no delusions about the world in which
she lived, she clung to her dreams of a better world for her
children. She used to tell me, ``You must be the change you
wish to see in the world,'' and then remind me that Gandhi was
a fine example of practicing what you preach.
I was already enrolled in college at St. Lawrence
University when my mother died, but she left a legacy of
service and hard work and a believe that I could accomplish
anything.
For me, this nomination is a crossroads and a culmination
of a career devoted to public service. When attending
Georgetown University Law School, I had the opportunity to
intern in the Criminal Division for Roger Adelman, of the U.S.
Attorney's Office for the District of Columbia. I gleaned
firsthand the nuts and bolts of interaction between
metropolitan law enforcement and the interaction with Federal
law enforcement. Never has such cooperation become more
poignant as now, in the aftermath of September 11.
After graduation, I had the privilege of clerking for Norma
Holloway Johnson, in the U.S. District Court for the District
of Columbia. This provided me the opportunity to observe some
of the country's finest trial lawyers in action. I had a bird's
eye view of the intricacies of civil practice, some of which
included racial discrimination cases filed against Federal
Government agencies.
At the conclusion of my clerkship, I joined the
Philadelphia district attorney's office in 1982, prosecuting
cases at the lowest level of the legal totem pole. I handled
the regular fare of cases--theft, forgery, robbery, aggravated
assault and sexual assault.
For me, the highlight of this position was the opportunity
to mentor the local high school students and serve as a manager
for a fledgling victim witness assistance program. These
positions allowed me constructive interaction with the
community and local residents.
Mentoring has been part of my personal life for a long,
long time. I have mentored students from Philadelphia, to
Anacostia High School, to California. These children have the
sheer determination and guts to leave behind rough backgrounds
and overcome tough personal hurdles and graduate from college,
in some cases graduate school, land good jobs and start stable
families of their own.
In 1984, I joined the U.S. Department of the Interior as an
attorney adviser for the Indian Division of the Solicitor's
Office. In the early 1980s, Indian gaming did not exist and
resources were severely limited. Tribes and tribal members were
struggling for self-preservation and self-determination in
harsh and very prejudiced environments.
That these good people were treated with loathing and
contempt was an eye-opening and unforgettable lesson for me.
Every time I visited the West, I was given an American history
lesson, a lesson taught by the other side, the Indian side. I
learned of cultures steeped in history and enduring traditions
that resisted assimilation, not out of pride, but out of a
sense of preservation of customs and heritage.
It was during my tenure at Interior that I first became
acquainted with the Community Relations Service. The Washington
magazine refers to CRS as ``the pint-size agency with a world-
class mission, rated as one of the seven best places to work in
the Federal Government.'' I worked closely with CRS regional
offices regarding an Indian tribe and allegations concerning
education-related discrimination against a group of Indian
students. CRS came through with flying colors.
Four years ago, I joined the House Judiciary Committee as a
counsel for the full Committee, and was responsible for fair
housing, ADA, hate crimes, racial profiling, voting rights, and
a host of other civil rights issues. This position provided me
with an opportunity to work on some of the most emotionally-
charged and controversial issues that came before the
Committee. I worked with a diverse group of people with even
more diverse political views.
It is indeed a special honor for me to be considered for
this position. I extend my serious gratitude to the President
and the Attorney General for the confidence and honor that they
have bestowed upon me by selecting me to be the Director of the
Community Relations Service.
My personal thanks to Chairman Hyde and his chief of staff,
Tom Mooney, for having faith in me and encouraging me to expand
and explore my horizons. I thank the members from both sides of
the aisle, the civil rights organizations, the minority
community, and my family and friends for their patience and
support.
The Community Relations Service is an important cog in the
Department of Justice and I am committed to its mission. From a
Birmingham jail in 1964, the Reverend King wrote, ``Injustice
anywhere is a threat to justice everywhere. We are caught in an
escapable network of mutuality, tied in a single garment of
destiny. Whatever affects one directly affects all indirectly.
We must maintain our vigilance in pursuit of justice.''
Finally, Mr. Chairman, be assured that I recognize and
fully appreciate the importance of working closely with you and
your colleagues in Congress on issues and situations that
impact the well-being of our constituents. If confirmed, I
would be honored to serve as the Director of the Community
Relations Service.
I look forward to answering your questions.
[The biographical information of Ms. Freeman follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Edwards. Thank you very much, Ms. Freeman. That was
a very impressive statement, and I can tell you that your
mother and father would be very, very proud of you today.
Ms. Freeman. Thank you, Mr. Chairman.
Senator Edwards. Our Chairman has now arrived and I want to
give him an opportunity to make a statement or anything he
would like to say.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Thank you, Mr. Chairman. I am going to be
here for about two minutes and then I am going to have to leave
again. Senator Hatch and I have both been on the floor with the
terrorism legislation and I need to return shortly.
However, I just wanted to thank Senator Edwards. Senator
Hatch and I and our staffs and everybody have been operating
under strange situations in the last few days, everybody kind
of crowding in my office, which is upstairs. We have one room
that looks like a strange action central, with computers and
wires and everything else hanging all over the place and
everybody pushed together.
Senator Edwards hasn't been able to get into his office and
Senator Hatch hasn't been able to get into his in the Dirksen
Building, and the Judiciary Committee staff hasn't been able to
get back to the Dirksen Building. I think it is a compliment to
our staffs to be able to put together all the hearings today,
because we could have very easily canceled all of this and
everybody would have understood. I compliment the staffs on
both sides of the aisle for working hard to get it put
together, and Senator Edwards, who is operating everywhere he
can find, anything from an empty phone booth to the cloak room.
Senator Edwards. The car.
Chairman Leahy. And the car, that is right. As a matter of
fact, I have seen you out there. So it has been a strange thing
and I just came by to thank you and Senator Hatch for his
cooperation in doing this so we could go forward with these
hearings because otherwise they all would have had to be
canceled, and with our schedule it would have been hard to get
them back. So I thank you all very much.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I begin by thanking Senator Edwards for agreeing to chair this
hearing involving judicial nominations. This is an extraordinary time
in the Senate. Our Committee offices and hearing room have been
unavailable to us for more than a week in the wake of Senate employees
testing positive for anthrax exposure. Senator Edwards had not had
access to his Senate office over that time. Nonetheless, the Judiciary
Committee is seeking to proceed with this hearing today.
This will be the eighth hearing involving judicial nominees since
July 10 when the Committee membership was set. This will be the fourth
hearing involving judicial nominees since the terrorist attacks on
September 11 and the third hearing for judicial nominees this month.
Since the Senate was allowed to reorganize, we have maintained a
sustained effort to consider judicial and executive branch nominees.
At this hearing we will consider four additional judicial nominees,
including one for the Court of Appeals for the 10th Circuit,
as well as the President's nomination to head the Community Relations
Service at the Department of Justice.
This Committee has reported and the Senate has confirmed 12 judges
so far this year, including four to the Courts of Appeals. The running
total of 12 confirmations as of October 23 this year is well ahead of
the pace in the first year of the first Bush Administration, when seven
of President George H.W. Bush's judicial nominations had been acted
upon, and well ahead of the pace in the first year of the Clinton
Administration, when by that date eight of President Clinton's judicial
nominees had been confirmed.
Since July, we have already confirmed more Court of Appeals
nominees than were confirmed during the first year of the Clinton
Administration, more than were confirmed in all of 1996 and, for that
matter, more Court of Appeals nominees than were reported by this
Committee last year, when only three were reported all year. The Senate
is only one Court of Appeals confirmation short of the total achieved
in all of 1989, the first year of the first Bush Administration. I have
confidence that we will match that record and, with cooperation from
all Senators, we can exceed it by the end of the year.
Instead of cooperation, however, we have seen unprecedented
obstructionism. The Senate was prevented from proceeding to
consideration of the Foreign Operations appropriations bill for three
weeks by a Republican filibuster. Republicans twice voted as a block to
filibuster proceeding to the appropriations bill that funds our
nation's foreign policy. They reversed course late Tuesday. I am glad
that the Republican caucus decided to reverse itself.
The Foreign Operations appropriations bill relates to America's
security. The bill contains $5 billion in assistance for Israel, Egypt
and Jordan, all critical allies and vital to the prospects of long-term
peace and stability in the Middle East. It contains $175 million to
strengthen surveillance and response to outbreaks of infectious
diseases overseas, programs that help provide the United States with
early warning against some of the world's deadliest infections,
including anthrax and other agents used in bioterrorism. It contains
$327 million for non-proliferation and anti-terrorism programs which
help foreign countries strengthen the security of their borders as well
as programs to get rid of land mines. It contains $450 million for
programs to combat HIV/AIDS, the worst global health crisis in half a
millennium. It has $3.9 billion in military assistance, which includes
aid to NATO allies and nations in Eastern Europe and Central Asia. It
has $1 billion in refugee and disaster assistance to deal with
humanitarian crises around the world from Afghanistan to Sudan, to help
with circumstances that has left millions at risk of starvation,
exposure and disease. It has $856 million in export assistance to help
U.S. companies find markets for their products and generate jobs during
this economic downturn. It is an important bill, a vital appropriations
bill. It is hard to imagine what was gained by the weeks of delay
caused by the Republican filibuster.
In addition to the 12 judges confirmed so far this year another
seven have participated in hearings and four more will participate
today. With this hearing we will have held more hearings involving
judicial nominees than were held during the entire first year of the
first Bush Administration and more than were held during the entire
first year of the Clinton Administration. Thus, despite the upheaval we
have experienced this year with the shifts in the Senate majority, the
need to focus our attention on responsible action in the fight against
international terrorism, and the need to overcome Republican efforts to
obstruct the work of the Senate, we are ahead of the pace for hearings
and confirmations of judges during the first year of the first Bush
Administration and during the first year of the Clinton Administration.
Today we will meet nominees to fill vacancies on the United States
Court of Appeals for the 10th Circuit and District Courts in
Louisiana, New Mexico and the District of Columbia. The 10th
Circuit is one of many Courts of Appeals with multiple vacancies, and
which has had multiple vacancies since before I became Chairman of this
Committee this summer. My recollection is that President Clinton had at
least two nominees for vacancies on the 10th Circuit pending
before this Committee in 1999 and for several months last year, but
neither ever was accorded a hearing before this Committee or a vote
before the Judiciary Committee or before the Senate. Had they been
acted upon favorably in years past, of course, the circumstances in the
10th Circuit today would not be so dire. I hope that Judge
Hartz, who is strongly supported by both Senator Domenici and Senator
Bingaman, will meet with approval of this Committee and the Senate had
help us finally to send help to the 10th Circuit after years
of neglect.
Among the District Court nominees, I note that Mr. Bates is
nominated to a vacancy that has existed in the District of Columbia
since 1996. I recall President Clinton's nomination of James Klein to
that vacancy in 1998 and his renomination in 1999. Unfortunately, that
nomination was another on which no hearing was ever held and on which
no vote of the Committee or the Senate was ever allowed by the
Republican majority. I recall another nominee to a vacancy on that
court, Rhonda Fields, who was nominated in 1999 and never received a
hearing or vote before the Committee or a vote by the Senate. By
contrast, I convened a hearing on the nomination of Reggie Walton to a
vacancy on this District Court during the August recess and he has
already been confirmed.
The recent vicious attacks on our people have given all of us a
heightened awareness of the critical importance of our civil liberties,
of the many possible threats to those freedoms, and of the necessity of
responding to the challenge of international terrorism without
sacrificing what is best about America. This is serious and important
work and our federal judges will be a key component in guarding our
freedoms. Our system of checks and balances requires that the judicial
branch review the acts of the political branches. I want to be
confident that the nominees before us today will take this
responsibility seriously and will rely on their experience and on our
rich history of judicial precedent to make wise decisions in the
challenging times ahead.
Senator Edwards. Thank you very much, Mr. Chairman, and
thank you, by the way, for letting my staff use your office.
Very helpful to us.
Ms. Freeman, I just have a couple of questions. I echo what
our Chairman said that you are absolutely very well-qualified.
Can you tell me what you believe the top priorities are for
CRS?
Ms. Freeman. I think the top priorities are going to be
trying to balance the work that they were already doing in
communities with now the situation that has been created after
the September 11 tragedy and the number of attacks and
incidents that have happened with our Arabic American, Muslim
and Sikh brothers and sisters.
I think all of us are dealing with the load that the
September 11 tragedy has put on our offices.
Senator Edwards. Actually, you just covered two or three of
my questions in that answer because I am concerned about some
of the acts of violence we have seen against our Sikh and
Muslim, as you say, brothers and sisters.
Tell me what role you see CRS playing in that.
Ms. Freeman. CRS has already started, as I understand, an
educational program to familiarize and work with some of the
other agencies in the Government in terms of customs and
cultures of the Arabs, the Sikhs and the Muslim Americans.
There has also been a 20-plus-1 pamphlet put out, advising
police forces how to deal with and understand better those
cultures.
There also is some work, I understand, being done with the
Department of Education to put out a brochure for school
administrators in dealing with harassment and comments made in
school situations. So that is the start and it is a good step
in the right direction, I think.
Senator Edwards. Tell me what experience you have in the
area of mediation and negotiation.
Ms. Freeman. I actually look back to my time in the
Department of the Interior, in which I worked as the lawyer for
the Secretary on negotiating a set of rules that would control
how Indian tribes would contract all kinds of programs, which
was quite a bit of a back-and-forth struggle in order to figure
out what those rules were going to be because we had full-blown
negotiated rulemaking. And that was done with 500 or so Indian
tribes, with their representatives.
Senator Edwards. What about mediation? Have you been
involved in mediation?
Ms. Freeman. I haven't done that much in terms of
mediation.
Senator Edwards. Is it something you are interested in
learning more about as you go forward?
Ms. Freeman. Yes, absolutely.
Senator Edwards. Good, good. Thank you very much, Ms.
Freeman.
Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Ms. Freeman. We are really proud
of you and proud of the service you have given. I know Chairman
Hyde thinks the world of you, and we all think the world of him
as well as you, so I am really pleased to have you here.
I like that quote that your mother gave you. I didn't get
it written down, the one about ``you must be''--
Ms. Freeman. I am sorry, sir.
Senator Hatch. The quote that your mother gave you. Can I
remember it? You gave it in your speech.
Ms. Freeman. She used to quote Gandhi quite often and she
used to tell me, ``You must be the change you wish to see in
the world.''
Senator Hatch. Well, I think that is a great quote, and I
just want to write that down because I really enjoyed that.
I notice that you were a Nu Skin distributor at one time.
Ms. Freeman. A long time ago, yes, out of Utah.
Senator Hatch. That is one of our companies out there in
Utah, yes.
Ms. Freeman. There you go.
Senator Hatch. Well, you can't be all bad, then, is all I
can say.
[Laughter.]
Senator Hatch. I am very proud of you and you will do a
great job here. You have tremendous experience.
Ms. Freeman. Thank you, Senator.
Senator Hatch. I have been very proud of the way you have
come through all of your hardships in life and you have reached
this pinnacle of working for Chairman Hyde. He is one of the
people I most admire in the whole Congress and I know that he
doesn't tolerate fools gladly very often, so you have to be
good to work with him. He is about as good as they come around
here.
I am just grateful that the administration has chosen you
for this position, and I really don't have any questions. I
know how good you are and I just want to do everything in my
power to help you to be able to fill this position and to
continue to expand your horizons and your abilities to serve
your country.
Ms. Freeman. Thank you, Senator. I look forward to working
with you and your staff.
Senator Hatch. Thank you.
Ms. Freeman. I am going to miss working with your staff on
the other side of the fence.
Senator Hatch. I just want to thank Senator Edwards for
chairing this hearing and for the good work he does in our
Committee. It meets a lot to me.
Senator Edwards. Thank you very much, Senator Hatch.
Thank you, Ms. Freeman. We thank you for the service you
have given so far and the service you are going to give.
Ms. Freeman. Thank you, Mr. Chairman.
Senator Edwards. This hearing is adjourned.
[Whereupon, at 3:43 p.m., the Committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
QUESTIONS AND ANSWERS
Responses of John D. Bates to questions submitted by Senator Leahy
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely addressed the type of information called for by this
question. Without waiving the confidentiality of the FBI background
investigation report prepared on me, I respectfully direct your
attention to that report for a response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of share decisis? Does the commitment to
share decisis vary depending on the court?
Answer: Stare decisis is a fundamental part of our judicial
process. As a District Judge, if confirmed I would strictly adhere to
and apply the controlling decisions of the Supreme Court and the D.C.
Circuit. Unlike those courts, which have prescribed (but limited)
methods for reexamining their prior precedents, the District Court is
bound by controlling decisions of superior federal courts.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: Balancing liberty and security in the context of
legislation addressing the risks posed by terrorist attacks can present
difficult but important issues. It is vital to preserve the protections
required by the Constitution even where extraordinary measures to
protect our national security and safety are warranted. As a District
Judge, I would review such issues carefully and impartially, giving due
weight to the deference normally accorded to Congressional judgments
and assessments regarding relevant factors and bearing in mind the
presumption of constitutionality of Congressional enactments.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: These are important issues involving the confluence of
jurisprudence under the Commerce Clause, the Tenth Amendment and the
Eleventh Amendment. The evolving developments reflected in the Supreme
Court's decisions in these areas may reflect some enhancement of state
autonomy and authority. A District Judge is, of course, bound to follow
and apply the decisions of the Supreme Court in these as well as other
arenas, regardless of the judge's personal views.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: The Supreme Court has recently grappled with this issue
under the Fourteenth and Eleventh Amendments in the context of the Age
Discrimination in Employment Act in Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000), and the Americans with Disabilities Act in Bd. of
Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 955 (2001). As a
District Judge, I would attempt to apply carefully, fairly and
impartially the ``congruence and proportionality'' standard established
by the Supreme Court were I called upon to review legislation that
raised this issue, giving due regard to Congressional assessments of
relevant factors within the proper Constitutional framework.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: If Supreme Court has recognized that congress may,
consistent with state sovereignty and immunity principles embodied in
the Tenth and Eleventh Amendments, use funding incentives to obtain
state cooperation in certain contexts, which may in the future be held
to include Congressional inducements to states to consent to suits by
private parties through offers of federal funding in exchange for the
waiver of state immunity from suit. Any legislation in this area should
be reviewed carefully by a District Court in appropriate cases through
examination of the relevant language of the Constitution and the
statute and the application of controlling Supreme Court or Circuit
precedent. Such fair and impartial judicial review should also include
a careful assessment of the relevant facts, mindful of general
principles of deference to Congress's weighing and balancing of
material factors, before any judgment on the constitutionality of a
particular funding incentive to the states can properly be rendered.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
I am not aware of any at this time, although I have not been called
upon to review, and thus cannot claim to have scrutinized, all possible
federal statutes under the pertinent provisions of the Constitution and
controlling Supreme Court precedent.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: I have had no occasion to review, and thus cannot claim to
have scrutinized, all possible federal statutes under the pertinent
provisions of the Constitution and controlling Supreme Court precedent
in order to determine whether any federal statute goes beyond
Congress's enumerated powers under the Constitution. In assessing a
specific federal statute or section thereof, a District Court should
thoroughly review and analyze the relevant language of the Constitution
and the statute and apply controlling Supreme Court and Circuit
precedent, while being appropriately reluctant to overturn carefully
considered Congressional judgments embodied in legislation.
Responses of John D. Bates to questions submitted by Senator Durbin
Question 1: Describe your work in the Office of Independent
Counsel. What conclusions did you draw about the feasibility of the
Independent Counsel Law, since expired? What is your reaction to the
widespread consensus, in reaction to Ken Starr's investigation and
others, that the government should not have federal prosecutors who are
wholly independent from the Justice Department?
Answer: I was detailed to the Office of Independent Counsel from my
position as a career Assistant United States Attorney upon the approval
of then--United States Attorney Eric Holder and Attorney General Janet
Reno. As the Deputy Independent Counsel for the initial stages of the
Whitewater Investigation from 1995 through mid-1997, I coordinated and
conducted a broad range of criminal investigations involving
allegations of obstruction of justice, false statements, perjury, mail
and wire fraud, bribery, conflicts of interest, and other possible
offenses. This was the ``pre-Lewinsky'' portion of the Whitewater
Independent Counsel investigation. My responsibilities included not
only managing large portions of the investigation and the office, but
also personal responsibility for certain aspects of the investigation
focused on activities in the White House. I had extensive appearances
before the Grand Jury as well as other significant criminal
investigative experience relating to sensitive issues involving the
highest levels of the Executive Branch, and I handled complex issues
before the District Court and on appeal. My responsibilities included
being the principal contact with the President's counsel, both his
private counsel and the White House Counsel, as well as dealing
directly with the Attorney General and her designees and many of the
other most significant figures involved in the investigation. I was
also principal liaison with both the Senate Whitewater Committee and
the relevant House committees.
Although I recognize that there are some countervailing arguments,
my view both before and since my experience in the Office of the
Independent Counsel has been that the career, professional prosecutors
in the Department of Justice (including United States Attorneys'
offices) are best suited to handle investigations and prosecutions of
possible violations of federal law, including matters within the scope
of the since-expired Independent Counsel law.
Question 2: Washington, D.C. is one of the locales exempted by law
from the requirement that federal judges live within the district in
which they serve. Do you think that your place of residence outside the
District will affect or possibly inhibit your performance? Do you have
any intention of moving to the District?
Answer: I have worked in the District of Columbia for virtually my
entire professional career (over 25 years), primarily in the Office of
the United States Attorney for the District of Columbia serving the
country and the citizens of the District of Columbia. That experience,
I believe, will significantly enhance my performance as a United States
District Judge for the District of Columbia, should I be confirmed, and
I do not believe my place of residence just outside the District will
adversely affect my performance in any way. My two teen-aged children
are deeply rooted and involved in their current public high school
experience, which would make it difficult for us to move at this time.
Question 3: Please cite examples in your career as a judge or a
practitioner that show that you have a demonstrated commitment to equal
rights for all and that your are committed to continuing the progress
made on civil rights, women's rights, and individual liberties?
Answer: I believe my professional experiences are reflective of my
commitment to equal rights and the continued advancement of civil
rights, women's rights and individual liberties. For example, I have
always attempted to find time for appropriate participation in
activities serving the disadvantaged, in both my personal and
professional lives. While in law school, I worked at Legal Aid. During
my brief time in private practice from the fall of 1977 to the spring
to 1980, I handled several time-consuming pro bono cases. In one, I
obtained political asylum in 1979 for a black South African woman who
was in legitimate fear of persecution if forced to return to the
apartheid conditions existing in South Africa at the time. In another,
I assisted in persuading the federal government to change its policy
and permit our client to treat a serious medical condition with
government-produced and controlled marijuana.
I was in public service with the federal government from 1980
through 1997. Beyond that public service itself, during that period I
focused considerable attention on bar activities, including those that
supported programs assisting the disadvantaged. I served on the Board
of Governors and on several key committees of the District of Columbia
Bar and was Chair of the Litigation Section of the Federal Bar
Association, in addition to serving both the United States Court of
Appeals for the District of Columbia Circuit and the United States
District Court for the District of Columbia on committees dealing with
court rules and procedures.
Since I have been in private practice at Miller & Chevaliers
starting in 1998, I have been a leading supporter of our pro bono
program; for example, I have well over 250 hours of pro bono service
this year alone. I have also served on the Board of Directors of the
Washington Lawyers' Committee for Civil Rights and Urban Affairs. I
have personally handled two substantial pro bono cases with the
Washington Lawyers' Committee involving race discrimination and hostile
work environment claims. In the first, we achieved through settlement
one of the largest recoveries to that date in an individual
discrimination case brought by the Washington Lawyers' Committee. As
part of the resolution of the case, the employer agreed to substantial
programs and changes in policies that benefit all of the its minority
employees. The second case was recently tried in the United States
District Court for the District of Maryland, and the jury returned a
$2.4 million judgment for our client, which is the largest individual
award ever in any case involving the Washington Lawyers' Committee, and
one of the largest awards ever nationally in a case of this kind. These
efforts are indicative of my commitment to equal rights and the
advancement of civil rights and liberties.
Responses of Kurt D. Engelhardt to questions submitted by Senator Leahy
Public Questions
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that the background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for a response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of share decisis? Does the commitment to
share decisis vary depending on the court?
Answer: The doctrine of stare decisis is the fundamental bedrock of
our system of justice. In order for not only the Bar, but also our
citizenry to appreciate the law and adjust our conduct accordingly,
there must be a certain degree of predictability, which comes from the
doctrine of stare decisis. Indeed, the ability to follow precedent is
an important characteristic of a good judge. I do not believe that the
commitment to stare decisis should vary depending on the court, but
rather is a concept that permeates our system of justice. If confirmed,
I will follow the precedent of the Fifth Circuit and the U.S. Supreme
Court.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: Although I am aware of the important debate of the recent
anti-terrorism bill on Capitol Hill. I am not privy to the particular
arguments for and against the provisions of that bill. Of course, as
Americans, we greatly value the liberties which have been protected and
handed down through the years. On the other hand, one of the primary
obligations of our federal government is to ensure our security. Hence,
the ``trade-off'' as reflected in the recent anti-terrorism bill is not
an issue to be taken lightly, however, as a judicial nominee, I do not
have a particular opinion of what the trade-off should be, but will
respect the intentions of Congress as reelected in its legislation, and
will afford such legislation the strong presumption of
constitutionality. If confirmed, I will follow the precedent of the
Fifth Circuit and the U.S. Supreme Court.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: I have viewed these developments with great interest, as
this is obviously an evolving area of the law of critical importance. I
would assume my duties as district court judge with the strong
presumption of the constitutionality of all Congressional enactments.
Moreover, Supreme Court jurisprudence reflects that some areas of our
society must be subject to federal regulation in order to be effective,
while respect must be given to the authority of the states in other
areas. If confirmed, I am duty-bound to follow the Supreme Court's
rulings on this and any other issues, and will do so.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: Congress has the authority to subject non-consenting states
to suit pursuant to a valid exercise of its power under Section 5 of
the Fourteenth Amendment, under existing Supreme Court precedent
governing this issue. Moreover, private individuals may recover damages
from a state, under circumstances wherein a pattern of discrimination
by a state exists in violation of the Fourteenth Amendment.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: Congress may exercise its power under the spending clause
to place restrictions or obligations on states that choose to accept
federal funding. The Supreme Court has touched upon this issue in South
Dakota v. Dole, 483 U.S. 203 (1987). If confirmed, I will follow the
Supreme Court precedent in this area.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: I have not undertaken a review of any particular federal
statutes or sections thereof with the intent to formulate such an
opinion, and I, as a district court nominee, would be reluctant to
offer such an opinion when a case involving such issue might be
presented to me as a district court judge. Moreover, I believe that
this questions presents a constitutional issue which will ultimately be
addressed by the Supreme Court, and which ruling I as a district court
judge am prepared to follow, and remain duty-bound to follow.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: Federal statutes enacted by Congress and signed into law by
the President have a strong presumption of constitutionality, and I am
unaware of any such statutes that go beyond Congress's enumerated
powers, except those which have already been deemed unconstitutional,
As to those holdings, I fully intend to follow the controlling
authority of the U.S. Supreme Court and the U.S. Fifth Circuit.
Responses of Kurt D. Engelhardt to questions submitted by Senator
Durbin
Question 1: According to your questionnaire, you are a member of
Louisiana Lawyers for Life. What is the extent of your involvement?
What efforts have you undertaken to promote the goals of the pro-life
movement?
Answer: My membership in Louisiana Lawyers for Life consists of
paying $25.00 per year in order to be a member. The group meets on an
occasional basis, perhaps two or three times a year. I have never been
to a meeting. I hold no officership, directorship, or any other
positions with the organization, except for my membership. Thus, the
extent of my involvement has been payment of annual dues in order to
maintain membership.
Aside from my membership in Louisiana Lawyers for Life, I have not
been involved in any litigation surrounding the issue of the pro-life/
pro-choice debate. Accordingly, I have personally not undertaken any
efforts to promote the goals of the pro-life movement, nor with regard
to the issue in general.
In connection with my nomination and prospective confirmation, I
have recently resigned my membership in Louisiana Lawyers for Life, as
I think it appropriate under the Code of Judicial Conduct to avoid
event the appearance of an affiliation with any particular group which
might be identified with one side or another of any particular issue.
Question 2: Do you agree with the Supreme Court's decisions in
Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood v. Casey?
Do you agree that the doctrine of stare decisis counseled the Court
against overruling Roe in 1989, As a judge, would you be able to apply
the law as it stands now, including the constitutionally recognized
right to terminate an unwanted pregnancy?
Answer: I agree that the Supreme Court's decisions in Griswold v.
Connecticut, Roe v. Wade, and Planned Parenthood v. Casey are well-
settled law as enunciated by the Supreme Court. I further agree that
the doctrine of stare decisis counseled the Court against overruling
Roe 1989, thus reaffirming the correctness of those decisions. If
confirmed as a district court judge, I will, without reservation, apply
the law as enunciated by the Supreme Court, in all respects, including
the constitutionally-recognized rights set forth in Griswold, Roe and
Casey. As a district court judge, I am duty-bound and ethically-bound
to follow superior authority from the U.S. Supreme Court, as well as
the U.S. Fifth Circuit, on this issue and any others.
Question 3: Please cite examples in your career as a lawyer that
show that you have a demonstrated commitment to equal rights for all
and that you are committed to continuing the progress made on civil
rights, women's rights, and individual liberties?
Answer: In my career as a lawyer, my most exposure regarding equal
rights would come in connection with the Americans with Disabilities
Act. As I indicated in my Senate Questionnaire, I have been involved in
negotiating with the local public school board to afford disabled
students equal opportunity in the school system. I have represented
numerous parents of disabled children in that endeavor, many on a pro
bono basis.
In addition, I have supported my law firm's efforts to seek out and
hire qualified minority attorneys. In addition, my personal clientele
includes several minority business owners and individuals. I have
represented an African-American client in the real estate business with
regard to discrimination in a fair housing issue, vis-a-vis the local
municipal authorities. He is a regular client of mine of other issues.
With regard to women's rights, I and other members of my firm have
had the opportunity to confer with clients regarding discrimination in
the workplace, and to assist corporate clients in developing and
establishing appropriate guidelines to make the workplace comfortable
and acceptable to women, including payment of equal wages and other
benefits for similar work, and removal of other workers whose behavior
did not respect the rights of women to participate in the workplace.
Responses of Harris L. Hartz to questions submitted by Senator Leahy
Public Questions
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for in this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for a response to this question.
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of stare decisis? Does the commitment to
share decisis vary depending on the court?
Answer: Respect for stare decisis is essential to the proper
functioning of a well-ordered society. Lower courts must be scrupulous
in complying with precedents handed down by superior courts. And panels
of appellate courts should not overturn decisions of prior panels--such
overruling should occur only after en banc consideration. Although
there may be occasions when a court should set aside its own
precedents, those occasions are rare.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: Our nation has the right of self-preservation. But that
right does not require the abrogation of civil liberties. On various
occasions civil liberties have been unnecessarily infringed in the name
of national security. All branches of the government must take great
care before deciding the national security justifies a particular
restriction on a liberty interest that would otherwise be recognized.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: The Supreme Court's decisions certainly bear upon the
balance of power between state governments and the federal government.
As an appellate judge, my role would not be to evaluate the merits of
the decisions but only to apply them with the great care that the
importance of the subject demands.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: Recent decisions of the United States Supreme Court
concerning state sovereign immunity (such as the Seminole Tribe case)
and the scope of Congressional authority under the Fourteenth Amendment
(such as City of Boerne) will have a significant impact on how courts
analyze this issue. As an appellate judge, my duty would be to begin
with the presumption of constitutionality afforded all federal statutes
and then determine whether that presumption has been overcome in light
of applicable precedents of the United States Supreme Court.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: As recognized by the United States Supreme Court in South
Dakota v. Dole, Congress can use its spending power to induce action by
the states that Congress cannot directly. The Supreme Court has,
however, recognized some limitations on this power. Whether a
particular exercise of such power is constitutional would depend on the
specifics of the statute involved and the application of Supreme Court
precedent, always giving the deference to Congress provided by the
presumption of constitutionality.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: There are thousands of federal statutes, and I am not
familiar with most of them. All are presumed constitutional. As a
judge, I would need to consider the specifics of each statute and rule
it unconstitutional only if Supreme Court precedents made clear that
the presumption of constitutionality had been overcome.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: Again, there are a great many federal statutes, and I have
had occasion to become familiar with only a small fraction of the
total. Judges must presume that each federal statute was enacted within
the bounds of Congress' constitutional authority. As a judge of the
court of appeals, my duty would be to uphold the statute unless the
precedents of the United States Supreme Court compel a ruling that the
presumption of constitutionality has been overcome.
Question 9: In 1972, you wrote an article for the Harvard Law
Review entitled ``Health Regulation of Naturally Hazardous Foods: The
FDA Ban on Swordfish.'' In this article, you argued that the Food and
Drug Administration had gone too far in its 1970 action of removing
swordfish from commercial markets after two weeks of FDA testing had
shown higher than recommended methyl mercury levels in the food. You
equated this action to a `ban'' that destroyed the industry and, while
acknowledging that FDA acted within the law, strongly argued that FDA
should have gone through a formal, public rulemaking on swordfish
mercury tolerances rather than adjudicate the issue in private
meetings. You also noted that, except in emergency situations, the FDA
should fully educate consumers about any food risks--possibly with
warning labels such as those on tobacco--but ultimately give them the
final choice about whether or not to consume certain foods.
I agree with you that FDA, and all other regulatory agencies,
should fully educate consumers about the risks of products. I also
agree that warning labels would be a good interim effort for many
consumables.
Yet, based on your writing in this case, I am interested in what
you consider the standards of evidence needed for an agency to
Implement protective regulation on consumer products. While you believe
the FDA went too far in the swordfish case of 1970, I would argue that
the agency has not yet gone far enough. FDA's own records show that the
agency stopped monitoring domestically-caught seafood for mercury
contamination in 1998 despite the fact that their own 1997 data shows
that several samples of domestically-caught tuna, swordfish, and shark
exceeded their own action level.''
(A) During the past 30 years, how do you think the legal and
regulatory system could have provided sensitive populations
with better protection from harmful methyl mercury levels in
seafood?
(B) Where might you set evidence standards today for regulating
a possible-harmful contaminant in consumable products?
(C) How would you try to balance the concerns of a possibly-
harmful contaminant in a consumable product against industry
pressures to keep a product on the market until all scientific
studies have been completed?
Answer: The law review article was written by another student. My
role was to edit the article. The views expressed are those of the
author and are not necessarily the views of the editor or of the
Harvard Law Review itself. Regulation of potentially dangerous food is
a matter of the highest importance. But I have had very little occasion
to think carefully about the subject during the past 30 years, so any
position I expressed now would be much closer to a tentative guess than
a well-considered view.
Responses of Harris L. Hartz to questions submitted by Senator Durbin
Question 1: During your tenure as a judge in New Mexico, you were
appointed by the Governor, you were retained by the voters, and you ran
in a partisan election. The federal judiciary is quite different in its
selection process. What lessons do you draw from your first hand
experience as an elected judge? If confirmed, how will your life tenure
affect you judicial outlook?
Answer: I have thought a great deal about the process of selecting
judges, although I have not reached any firm conclusions. Election of
judges may make judges more responsive to the views of the electorate,
but that is not always good. My greatest concern about election of
judges is the election process itself. Fund raising can, at the least,
create cynicism about how judges decide cases; and judges are pressed
opinions on matters that may well come before them. Perhaps most
importantly, many men and women who would make excellent judges are
unwilling to campaign for office.
As for the effect on me personally, I do not think the manner of
selection influenced my work as a judge. I did my best to exercise
sufficient self-discipline to keep political interests from affecting
my decisions. As a federal judge, I hope (and expect) to maintain that
self-discipline; given life tenure, that task should be easier than it
was on an elected state court.
Question 2: Please describe your recent work for the Teamsters
Union. Do you feel that you have had success in helping to reform that
institution and rid it of corruption? Have you completed your
assignment?
Answer: Although the project I have been working on included some
efforts to attack remnants of corruption in the Teamsters Union, my own
efforts have focused almost entirely on the future. In my view, the
fundamental task of ending the influence of organized crime on the
union is essentially complete. In such a large institution there will
always be some miscreants, but the present Teamsters leadership is
committed to running a clean union.
My role has been to work with a 22-member Teamster task force to
create a code of conduct and a system for compliance and enforcement so
that future attempted encroachments by organized crime and other
systemic corruption will be thwarted. I am very proud of the code and
system that has emerged from our work. Once they are implemented, the
Teamsters will be a model for integrity within the labor movement.
There is still plenty of work to do in coordinating with the Justice
department and instituting the Task Force's plan, but I have no doubt
that this work can be done quite well without my further involvement.
Question 3: Please cite examples in your career as a judge or a
practitioner that show that you have a demonstrated commitment to equal
rights for all and that your are committed to continuing the progress
made on civil rights, women's rights, and individual liberties?
Answer: As a first-year law student I worked with the law school's
Voluntary Defenders and then joined the first group in the Prisoner
Legal Assistance Project. Those experiences taught me that the best way
to protect civil liberties was to be a government lawyer who respected
the law. As a result, my first job was not as a public defender but as
an assistant U.S. Attorney. Later, I served with the New Mexico
Governor's Organized Crime Prevention Commission and the New Mexico
State Racing Commission. I am proud that in each of those jobs I
aggressively protected the public interest while being scrupulous in
observing the rights of those being investigated or prosecuted.
In my capacity as a judge, I endeavored to keep my personal views
from influencing my decision-making. But I believe that my record shows
a clear respect for civil rights, women's rights, and individual
liberties. New Mexico is a wonderfully diverse state. I am proud that
in each of my campaigns for judicial office I received strong support
from leaders in the Hispanic, Black, and Native American communities
within the state; and women were the backbone of my campaign support.
Response of Harris L. Hartz to a question submitted by Senator Edwards
Question 1: Shortly after your appointment to the Court of Appeals,
you sensitively commented that ``what struck me most is that on the
Court of Appeals, we make law every day. . . .There's no way to get
around it.'' Last week, at your hearing, I asked you how you would
construe broad constitutional guarantees like ``equal protection.'' You
answered that the Supreme Court must make those kinds of ``very
difficult'' interpretive decisions; you would simply ``follow the
approach taken'' by the Supreme Court.
In ``making law every day,'' do you think that a court of appeals
judge can follow the Supreme Court approach and nothing more? And would
you care to elaborate on your answer to my question--do guarantees like
``equal protection'' stand for general principles that judges have
leeway in articulating, or do those guarantees instead embody their
framers' specific intentions and expectations?
Answer: When I made the quoted comment early in my judicial career,
I suspect that I was simply reacting to the surprising number of
undecided issues that came before the state court of appeals. I do not
believe that a judge should ``make law'' in the sense of imposing his
or her personal policy preferences in resolving the issues presented in
a case. Reliance on personal policy preferences is not only improper,
it is also unnecessary. When novel issues arise, judges are not writing
on a blank slate. They must carefully study the pertinent texts and
judicial precedents. In my experience as an appellate judge, such study
provides sufficient guidance to determine the decision.
I am aware of the continuing debate regarding the generality with
which constitutional language should be interpreted. But numerous
opinions of the Supreme Court have addressed the various provisions, so
a federal appellate judge would receive considerable guidance in
resolving constitutional questions ranging from the scope of the Equal
Protection Clause to the extent of the right of confrontation in
criminal trials. My statement that I would follow the approach taken by
the Supreme Court was intended to convey that I would endeavor to apply
the reasoning of Supreme Court precedents rather than imposing any
personal view I may have regarding how to interpret the Constitution.
Responses of William P. Johnson to questions submitted by Senator
Durbin
Question 1: You have spent the last six years as a trial judge in
the New Mexico state judiciary. Based on that experience, how would you
assess the quality of legal representation provided to indigent
criminal defendants? As a judge, what steps have you taken to assure
that all defendants received competent counsel? If confirmed as a
federal judge, what steps would you take in the future?
Answer: I am a district judge in New Mexico's Fifth Judicial
District which comprises the three counties in Southeastern New Mexico.
Chaves County, the county in which I sit, has a very high crime rate
and so the District attorney's office ends up filing a lot of felony
cases. I share the Chaves County criminal docket with two other judges
and the three of us meet routinely to discuss case management and
docket control issues in order to maintain a consistent and uniform
approach for the criminal docket. If there is an issue regarding
representation of indigent criminal defendants, then the three judges
usually act in concert and this has the advantage of not pitting one
judge against a particular attorney. For example, there was concern
amongst the judges that the public defenders were not meeting
frequently enough with their clients in the detention center and that
defendants were not reviewing their plea agreement paperwork well
enough in advance of court hearings to make a truly informed decision
whether to accept the plea agreement. The judges met with the public
defender supervisor and implemented a uniform policy where no pleas
would be accepted unless the defense attorney had met with his or her
client outside of the courtroom and in advance of the plea hearing.
Other issues the three judges have dealt with collectively concerned
expanding the attorney visitation hours at the detention center,
establishing uniform procedures and guidelines for setting bail and
conditions of release, developing alternatives to detention and
community service for misdemeanor defendants and expanding the
availability of substance abuse treatment programs.
The Sixth Amendment right to counsel for a criminal defendant
includes effective assistance of counsel and the trial judge has the
duty to ensure that a criminal defendant is afforded his Sixth
Amendment right to counsel. If I am confirmed by the Senate and become
a federal judge, then I will work with the other judges, the Clerk of
the Court, the U.S. Marshal and the federal public defender to ensure
that the necessary resources are devoted to criminal cases so that due
process is afforded to all criminal defendants.
Question 2: You are a graduate of the Virginia Military Institute.
What is your opinion of the Supreme Court's decision in Virginia v.
United States, requiring that VMI cease its practice of excluding women
cadets? Do you agree with the Court's reasoning?
Answer: I made the decision to attend the Virginia Military
Institute (``VMI'') in the fall of 1976 when I was seventeen years old
and in my senior year of high school. I chose VMI because the school
was founded on the concept of the citizen soldier which appealed to me
and because of the unique aspects of the VMI educational experience.
VMI's all-male admissions policy if anything was a factor against
attending VMI; however, the fact that my father was a VMI graduate and
the fact the there are several all-female colleges in close proximity
to VMI negated what I perceived in 1976 as disadvantages of VMI's all-
male admissions policy.
Last April, I had the occasion to go to VMI to attend my
20th class reunion. From all accounts and from my own
observations, VMI has made the transition to co-education as
demonstrated by the number of female cadets who have earned rank and
other positions. Applications for admission to VMI have increased and I
recently received a letter from VMI's Superintendent mailed to all
alumni expressing pride in how VMI scored in the U.S. News & World
Report's Annual Survey on Colleges and Universities. Finally, if I am
confirmed then I will follow Supreme Court precedent in the VMI case
and all other Supreme Court and applicable circuit precedent.
Question 3: Please cite examples in your career as a judge or a
practitioner that show that you have a demonstrated commitment to equal
rights for all.
Answer: During my years in private practice and as a judge, I have
devoted a significant amount of my time and effort in helping
disadvantaged or at-risk youth. In 1987, I accepted a pro bono
appointment for an abused and neglected child as her guardian ad litem.
I was a commercial litigator at the time and was accustomed to
litigating on behalf of an against large corporations which were
represented by very effective counsel. I was shocked over what I felt
was a lack of resources devoted to helping abused and neglected
children. This experience prompted me to become involved in
organizations that help at-risk or disadvantaged youth and I have been
involved with the following organizations:
a. chaves county casa program
CASA stands for court appointed special advocate and a CASA is a
trained volunteer who advocates for and assists the child's attorney in
child abuse and neglect cases. The Chaves County CASA Program, a non-
profit entity, was formed in 1988 and I helped form the Board of
Directors and served on the Board from 1988 to 1994 in the capacity of
Board Chairman, Vice-Chairman and Member. The Chaves County CASA
Program has expanded from not only advocating for children in abuse and
netglect cases, but also advocating for children in domestic violence,
juvenile delinquency and domestic relations cases.
b. juvenile justice advisory committee (``jjac'')
The New Mexico JJAC as created by statute and the members are
appointed by the Governor. I served on JJAC from March of 1995 until
October of 2001 as a member and as Vice-Chairman. Under the Federal
Juvenile Justice Act, each state receives certain federal funds to be
disbursed by each state through grant funding for juvenile delinquency
and prevention grants. In New Mexico, JJAC is the entity which awards
units of local government grant awards for delinquency prevention and
intervention initiatives. During the time I served on JJAC, the members
developed a strategy of funding communities that were committed to
building a continuum of services for at-risk youth.
camp sierra blanca (``csb'') and associated marine institutes (``ami'')
In 1997, CSB was formed as a non-profit organization whose mission
is to help delinquent male youth develop into responsible, productive
citizens through a disciplined, value oriented and supportive learning
environment. I was recruited to serve as CSB's Board Chairman and have
served in that capacity from November of 1997 until the present. AMI, a
non-profit organization headquartered in Tampa, Florida, operates CSB
pursuant to a contract with the State of New Mexico which requires CSB
to provide residential programming for 50 adjudicated, non-violent
delinquent make youth, ages 14 to 18. Residents stay at the program
from six to twelve months. CSB is an accredited high school and
residents can earn their GED. Since CSB opened up in August of 1997, 18
residents earned their high school diploma and 112 residents earned
their GED. The three year recidivism study showed that 80% of the
residents who left CSB did not re-enter the juvenile justice system.
The three year recidivism study also showed that for the first three
years of CSB's operation, 56% of the residents were Hispanic, 6% were
African-American, 14% were Native American, 22% were Caucasian and 2%
were other races or ethnicities. During my tenure as CSB Board
Chairman, I served as the Vice-Chairman of the AMI Program Development
Committee. During this time, AMI opened up the Wings Program in San
Antonio, Texas for delinquent female youth who are pregnant and give
birth to children while in custody of the Texas Agency which houses
delinquent female youth. This program is designed to allow delinquent
teen mothers to bond with their children, go to school and learn
parenting skills while they are serving their juvenile sentence.
Responses of William P. Johnson to questions submitted by Senator Leahy
Question 1: Please state whether you have ever been arrested for,
charged with, or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition, and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (``FBI'')
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for a response to this question
Question 2: In you opinion, how strongly should judges bind
themselves to the doctrine of stare decisis? Does the commitment to
stare decisis vary depending on the court?
Answer: Federal district judges must strongly bind themselves to
the doctrine of stare decisis, as the trail judge has the duty to apply
the law enacted by the Congress and to follow Supreme Court and
precedent of the circuit in which the trial judge sits. Circuit judges
likewise must follow Supreme Court and precedent of the circuit
precedent. While the doctrine of stare decisis is equally important to
the Supreme Court, it is the final authority on interpretation of the
Constitution and may depart from or overrule established precedent.
Question 3: I'm sure that you have followed debate here on Capitol
Hill and, in fact, across the country, about the need for legislation
to address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Answer: On September 11, 2001, over 6,000 Americans and citizens of
other countries were viciously killed in terrorists attacks associated
with the hijacking of four commercial airplanes. Since September
11th, various entities and institutions of government
including all three branches of government have come under biological
attack through anthrax contaminated mail. Part of the response to all
of these attacks included the President proposing and the Congress
recently enacting anti-terrorism legislation which the President has
now signed into law. While I am not familiar with the specific
provisions of the anti-terrorism legislation, as an act of Congress the
legislation is presumptively constitutional. The President and the
Congress have the power to take actions to protect this Country and its
citizens even if such actions result in the curtailment of some of the
freedoms Americans enjoy provided that such actions do not violate the
fundamental liberties provided by the Constitution. The Congress is
uniquely situated to evaluate the appropriate balance between liberty
and security in evaluating legislation.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably, in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: The Constitution in all its brilliance created the three
branches of government with a system of checks and balances that has
and continues to serve this Nation. I strongly believe in the concept
of separation of powers and if I am fortunate enough to be confirmed by
the Senate as a federal district judge, I can assure you and your
distinguished colleagues that I would have the utmost respect for the
work of the Congress. Legislation enacted by the Congress is the
product of hard work by both chambers of the Congress often occurring
after lengthy public hearings and public debate. Legislation enacted by
the Congress is presumptively constitutional and I believe the role of
a district judge is to apply the law as enacted by the Congress and to
follow precedent of the Supreme Court and precedent of the circuit in
which the district judge sits.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: Under current Supreme Court precedent, Congress may, under
Section five of the Fourteenth Amendment, enact legislation that
override states' sovereign immunity provided there is a ``congruence
and proportionality between the injury to be prevented or remedied and
the means adopted to that end. City of Boerne v. Flores, 521 U.S. 507,
521 (1997). The Supreme Court has held that states are immune from
state employees' age discrimination and Americans with Disabilities Act
lawsuits although age and disabilities are not suspect classes entitled
to ``strict scrutiny.'' With regard to other classifications, such as
gender that have been held not to be suspect classes entitled to
``strict scrutiny,'' I am not aware of Supreme Court precedent as this
question posed and thus am reluctant to state an opinion on an issue
that could come before me as federal district judge if I am fortunate
enough to be confirmed by the Senate.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts funding to waive its sovereign immunity to
private actions for money damages if the state is misusing such funds?
Answer: Congress may include the states to consent to suit by
offering them federal funds in exchange for the states' waiver of
sovereign immunity provided that the federal statute is consistent with
the Supreme Court's spending clause jurisprudence, although
historically any such waiver has been limited to remedies such as
injunctive or declaratory relief as opposed to monetary damages. I am
not aware of any prohibition against the Congress offering the states
federal funds in exchange for a waiver of sovereign immunity to private
actions for money damages if states misuse such funds although
resolution of this issue will require further guidance from the Supreme
Court.
Question 7: Are these any federal statues, or sections thereof,
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: Question 7 asks if there are any federal statutes or
sections thereof of which the Supreme Court has not yet ruled that
violate the Eleventh Amendment. If I am fortunate enough to be
confirmed by the Senate and become a federal district judge, I will
follow Supreme Court precedent and circuit precedent from the circuit
in which I sit. I am, however, reluctant to offer an advisory opinion
on matters that could possible come before me or could come before the
Supreme Court. Additionally, if confirmed, I would faithfully apply the
presumption of constitutionality accorded to any act of Congress under
the law.
Question 8: Are there any federal statutes, or actions thereof,
that go beyond Congress' enumerated powers under the Constitution?
Answer: There are literally thousands and thousands of federal
statutes or sections thereof the constitutionality of which has never
been challenged. When Congress enacts a federal statute, there is a
presumption in favor of its constitutionality. If I am fortunate enough
to be confirmed by the Senate and become a federal district judge, I
will follow Supreme Court precedent and circuit precedent from the
circuit in which I sit. I am, however, reluctant to offer an advisory
opinion on matters that could possibly come before me or could come
before the Supreme Court.
SUBMISSION FOR THE RECORD
Statement of Hon. Richard J. Durbin, a U.S. Senator from the State of
Illinois
Thank you, Mr. Chairman. I have a few brief remarks. I want to
thank you for chairing this hearing, and thank the nominees for
traveling out here at a time when many people would probably prefer to
simply stay home. Terrorists, whether international or home grown, are
clearly trying to disrupt the workings of our government. It is
important that we send a signal that the business of the people of the
United States will continue as before.
Today marks the third judicial nominations hearing this month. It
is a rather extraordinary event, because only twelve times in a recent
span of over six years did this Committee hold as many as two hearings
in the same month. Since the Democrats assumed control of the Senate,
the Committee has held multiple hearings on judicial nominations in
July, within days of taking over; in August, when the Senate was in
recess and none of the President's nominations were pending before it;
and in October, when the building that houses the Committee offices and
hearing room was closed. Chairman Leahy has demonstrated impressive
resolve in moving forward with judicial nominations.
Today also marks the eighth judicial nominations hearings this
year. That is an extraordinary achievement, more hearings than were
held in 1989 and 1993, the first years of the elder President Bush's
term and President Clinton's term. It is even more extraordinary when
one considers that all eight of these hearings have occurred since
July, when the Democrats assumed control; that these hearings continued
even while this Committee consumed with work on anti-terrorism
legislation in response to the September 11 attacks; and that these
hearings continue today even while our offices and hearing room have
been quarantined for over a week.
Today's judicial nominees are an example of the type of selections
we would like to see more of. They are individuals of real experience
and accomplishment. They enjoy widespread bipartisan support. They are
not ideologues, bent on frustrating the popular will and imposing a
stilted form of federalism on the American people. I look forward to
hearing from them.
I also look forward to hearing from Sharee Freeman, the President's
choice to head the Community Relations Service. That office has played
an important role since its creation in 1964, mediating racial and
ethnic conflicts that have afflicted local communities. The employees
of CRS bring experience and expertise to bear, as well as an outside
perspective that is often crucial to resolving long-simmering disputes.
Off course, it is unfortunate that the services of CRS are still very
much in demand, even in the wake of September 11. But I am confident
that Ms. Freeman is committed to the mission of the office.
NOMINATION OF JULIE A. ROBINSON, OF KANSAS, TO BE DISTRICT JUDGE FOR
THE DISTRICT OF KANSAS; JOE L. HEATON, OF OKLAHOMA, TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA; CLAY D. LAND, OF GEORGIA,
TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA; FREDERICK J.
MARTONE, OF ARIZONA, TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA;
DANNY C. REEVES, OF KENTUCKY, TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF KENTUCKY; AND JAMES E. ROGAN, OF CALIFORNIA, TO BE UNDER
SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE
UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE
----------
WEDNESDAY, NOVEMBER 7, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein, presiding.
Present: Senators Feinstein, Leahy, Hatch, Kyl, Brownback,
and McConnell.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. Good morning, everyone. This hearing of
the Judiciary Committee will come to order.
I am delighted that we have so many distinguished Senators
here. I am informed that we will go down the line in strict
seniority, so if I may just indicate what that is, it is
Senator Nickles, if he is present, first, Senator Inhofe
second, Senator McConnell third, Senator Bunning fourth,
Senator Kyl fifth, Senator Brownback sixth, and Senator Roberts
seventh, Senator Cleland eighth, and Senator Miller ninth. So
we will follow that order unless I hear objection from someone
on the Committee. Hearing none, we will proceed.
Is Senator Nickles present? He is not. Senator Inhofe?
PRESENTATION OF JOE L. HEATON, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF OKLAHOMA BY HON. JAMES INHOFE, A U.S.
SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Madam Chairman. I think it is
the first time since 1994 that I have gone first by seniority,
so I am not used to that.
Senator Feinstein. Time marches on.
Senator Inhofe. That is right.
Senator McConnell. That first ten years I was here really
did not count.
Senator Inhofe. Yes, that is right. I was thinking about
that, too. Anyway, I will be glad to defer to you, Senator
McConnell.
Senator McConnell. No, go ahead.
Senator Inhofe. Let me just briefly say that quite often,
Madam Chairman, when the Senators have this perfunctory,
sometimes obligation, sometimes privilege to present someone
for the bench, it is more of a duty. In this case, this is one
that it is a real honor for me because this guy that I used to
call this young guy was Joe Heaton, who is right behind me
here.
I can remember the first time I met him. I was in the State
Senate of Oklahoma and I was asked to attend an event where
they honored the outstanding students at a school that is
called Northwestern Oklahoma State University, where he was
recognized as the outstanding business and professional
graduate of that school, and I knew a lot of people who knew
him and everyone said he was going to have a great future in
law and in the courts.
In 1976, he was here in Washington. We were talking about
how it has changed since then. But he was here working for
Senator Dewey Bartlett. Senator Dewey Bartlett was actually the
reason I got involved in politics in the first place, when he
ran and created a vacancy and I ended up running. At that time,
there was a good friend of mine in Oklahoma who was a Federal
judge. His name is Ralph Thompson. Ralph Thompson said he
really believed that this young man who was working for Dewey
Bartlett by the name of Joe Heaton has the intelligence and
temperament to be a really great judge someday.
So he got involved in the Western District of Oklahoma at a
very early age with the U.S. Attorney's Office. He served as
Special Assistant to the U.S. Attorney. He held the position
for quite a number of years. He also had other positions in the
Western District. Early on, he served as the Chairman of the
Civil Justice Advisory Committee for the U.S. District Court
for the Western District of Oklahoma, so he is very familiar
with that district and he was nominated by the President to be
the District Court Judge for the Western District of Oklahoma
and I am here today to introduce him to you and heartily
recommend him as someone who is a great find and is going to
have a great future of service for his country.
Senator Feinstein. Thank you very much, Senator Inhofe. I
appreciate those comments.
Let me correct my prior statement, because I look at this
list and as Senator Kyl just reminded me, the seniority list
needs to be revised.
Senator Inhofe. Let me remind you, Madam Chairman, I have
three days' seniority over Senator Kyl.
Senator Feinstein. And you will not let him live it down.
[Laughter.]
Senator Feinstein. Senator McConnell, you are speaking on
behalf of--
Senator McConnell. Judge Reeves, or Judge-to-be Reeves.
Senator Feinstein. Why do you not go ahead, if you do not
mind.
PRESENTATION OF DANNY C. REEVES, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. MITCH MCCONNELL, A
U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator McConnell. Thank you, Madam Chairman. It is my
pleasure to introduce to the Committee Danny C. Reeves,
President Bush's nominee for a seat on the U.S. District Court
for the Eastern District of Kentucky. Danny is a well respected
lawyer in our State and possesses the legal experience,
character, and personal qualities that will enable him to be an
outstanding Federal jurist.
He grew up in Southeastern Kentucky and demonstrated his
strong work ethic early on by putting himself through both
college and law school. He graduated with honors from Eastern
Kentucky University in just three years and received his law
degree from Salmon P. Chase College of Law.
After law school, Danny clerked for two years with Judge
Eugene Siler when Judge Siler was on the U.S. District Court
for the Eastern and Western Districts of Kentucky. Judge Siler,
who now sits on the U.S. Court of Appeals for the Sixth
Circuit, was one of Kentucky's most respected trial judges. No
doubt the insight and experience Danny gained from Judge Siler
were invaluable.
Danny then joined Greenebaum, Doll and McDonald, one of
Kentucky's largest and most prestigious law firms. He became a
partner in 1988 and has distinguished himself in private
practice, representing companies such as Ashland Oil and
Newport Steel in major commercial litigation and representing
the Kentucky High School Athletic Association in a whole range
of matters.
Danny's peers have recognized his sound judgment and have
trusted him with important responsibilities in several legal
organizations in Kentucky. He served on the Kentucky Bar
Association Judicial Concerns Commission, which makes
recommendations to the KBA on various administrative issues,
including questions regarding the selection and retention
process for State judges. For five years, he was an officer of
the Kentucky Chapter of the Federal Bar Association, including
serving as its President.
So, Madam Chairman, Danny Reeves is an accomplished
litigator with extensive Federal Court litigation experience.
He possesses a sound legal mind and is held in high regard by
the judges in the Eastern District with whom he has worked and
before whom he has practiced. He will be a valuable addition to
the Federal Court in Eastern Kentucky and I am confident he
will serve with distinction. I enthusiastically support his
nomination and commend President Bush on an outstanding choice.
Senator Feinstein. Thank you very much, Senator McConnell.
Senator Nickles, would you like to proceed at this time.
PRESENTATION OF JOE L. HEATON, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF OKLAHOMA BY HON. DON NICKLES, A U.S.
SENATOR FROM THE STATE OF OKLAHOMA
Senator Nickles. Madam Chairman, thank you very much, and I
appreciate your conducting this hearing and appreciate my
colleague, Senator Inhofe, introducing my friend, Joe Heaton,
nominee to be the Western District Court judge in Oklahoma.
I have had the pleasure of knowing Joe Heaton for a long
time. He served in the Oklahoma House of Representatives for
several years, eight years, I believe, including ten years as
assistant and also as minority leader. He did an outstanding
job in that capacity. It was my pleasure to recommend that he
be U.S. Attorney for the Western District back in 1992 and he
did a fantastic job in that capacity. He has also served for
the last several years as First Assistant U.S. Attorney for the
Western District. In addition to that, he has had several years
in private practice.
He is well regarded in the legal community. He has done an
outstanding job in the U.S. Attorney's office, both as U.S.
Attorney and First Assistant, and I am very confident that he
will do an outstanding job as a Federal District Court Judge
for the Western District of the State of Oklahoma.
I would, one, thank the Committee for having this hearing.
I urge you to move forward as quickly as possible and thank you
for doing that. I have every confidence that Joe Heaton will
make an outstanding Federal District Court Judge for the State
of Oklahoma.
Senator Feinstein. Thanks very much, Senator Nickles. I
appreciate that you took the time to be here.
We will now go to Senator Bunning, also on behalf of Mr.
Reeves.
PRESENTATION OF DANNY C. REEVES, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. JIM BUNNING, A
U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator Bunning. Madam Chairman, I am pleased to join
Senator McConnell in introducing Danny Reeves to the Committee.
Earlier this year, we recommended Danny to fill one of the
vacancies in the Eastern District and we are proud that the
President saw fit to nominate him.
Danny is a Kentucky native, born and bred. He grew up in
Eastern Kentucky and went to school at Chase Law School in
Northern Kentucky. Later, he clerked in the Eastern District
for one of our finest judges ever, Gene Siler. Since then, over
the past 20 years, Danny has worked on a variety of complex
civil litigation matters for a prominent Kentucky law firm.
To be honest, I did not know Danny before we began talking
to prospective candidates, but early on, it was easy to see
that he had the temperament, intellect, and demeanor to make a
real difference on the Federal bench. He is going to be a fine
judge and I strongly recommend him to the Committee.
Madam Chairman, this hearing today is especially important
to us in Kentucky. The Chief of the Eastern District, Judge
Forrester, has written to Senator McConnell and myself, as well
as this Committee, about judicial emergencies facing the
Eastern District of Kentucky right now. There have been a
number of vacancies on the bench there and the backlog has
become critical. By quickly confirming Danny Reeves, the
Committee can help make sure that justice is handed down more
swiftly and evenly for the people of Kentucky.
Thank you, and I urge the Committee to move the nomination
as quickly as possible.
Senator Feinstein. Thanks very much, Senator Bunning. I
appreciate it.
Senator Kyl, we will now go to you on Frederick Martone.
Senator Kyl. Madam Chairman, could I defer to my colleagues
who are at the dias, since they may need to go and I can stay
for a little while.
Senator Feinstein. You certainly can. That is very helpful.
Senator Brownback, you are next on the list.
Senator Brownback. I will defer to my colleagues. I will
let my colleagues go forward, because I will be here.
Senator Feinstein. All right. Senator Roberts, would you
proceed, please.
PRESENTATION OF JULIA A. ROBINSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF KANSAS BY HON. PAT ROBERTS, A U.S. SENATOR
FROM THE STATE OF KANSAS
Senator Roberts. First, Madam Chairman, I want to thank
Senator Kyl and my senior Senator for yielding. I might add
that Senator Brownback is, indeed, the senior Senator from
Kansas, but he refers to me as the dean of the delegation.
[Laughter.]
Senator Brownback. That is how we parsed it.
Senator Roberts. I am more than happy to join--
Senator Brownback. It is age before beauty.
[Laughter.]
Senator Roberts. I am more than happy to join my senior
Senator as dean and say with a great honor that I introduce and
support the President's nomination of Julie A. Robinson as our
Federal District Judge for the State of Kansas.
Madam Chairman, one only has to glance very briefly at her
extensive record, spanning over two decades, to know she is
highly qualified for this important responsibility. She is a
skilled litigator, fully schooled in both criminal and civil
areas of the law. Judge Robinson served with distinction as an
Assistant U.S. Attorney for 11 years, ultimately attaining the
position of the Senior Litigation Counsel.
Then in 1994, she ascended to the bench as our United
States Bankruptcy Court Judge, and shortly thereafter, she sat
on the United States Bankruptcy Appellate Panel of the Tenth
Circuit. Her transition from being an advocate of the law to
the interpreter of the law certainly came naturally, with very
thoughtful opinions and judicious applications and unquestioned
professionalism. She gained deep respect that she has now
within the entire Kansas legal community.
Judge Robinson does command respect from all who have been
with her in the courtroom and in her courtroom, both losers and
winners. Just as important, she commands respect, admiration,
and affection from all who know her, both personally and
professionally.
An observation, Madam Chairman. Our task of confirming
judges, in my opinion, is vitally important. Everybody on this
Committee knows that. More so than ever in recent history, the
landscape of our law is changing rapidly and is taking us
further and further into new, uncharted territory. So our
judicial vacancies must be filled by individuals that really
possess more than just highly developed legal minds.
Our nation's system faces serious challenges. On the one
hand, we demand the toughest of legal actions against those who
attack our country. On the other, we look to our courtrooms and
our judges to protect our basic individual liberties and our
freedoms. This is a very difficult balancing act, but I am very
confident that Judge Robinson is the right nomination at the
right time.
Now, more than ever, we need judges who understand the
human element within the law. A judge's ruling not only affects
the primary participants in a case but the future, as well.
Unforseen lives can be changed drastically by a single opinion.
With so many changes occurring in the law, we need judges
such as Julie Robinson who grasp this concept. It is this
foresight that is needed now more than ever in these volatile
times.
Above all, it seems to me that this position requires a
steward of the law with an impenetrable character. I assure my
colleagues you will find no dissent with--
Chairman Leahy. If the Senator could withhold just for a
moment, we have a medical problem, and if you could withhold
just for a moment.
[Pause.]
[Recess.]
Senator Feinstein. Thank you very much for your patience.
We will resume the hearing.
I would like to quickly just state how we will proceed. I
would like to introduce for the record the statements of
Senator Cleland, the finishing statement of Senator Roberts,
the statement of Senator Miller, and also a letter that Senator
Leahy is submitting on behalf of Mr. Rogan. That will be the
order.
[The prepared statement of Senator Roberts follows:]
Statement of Hon. Pat Roberts, a U.S. Senator from the State of Kansas
Mr. Chairman, it is with great honor that I introduce and support
President Bush's nomination of Julie A. Robinson as Federal District
Judge for the state of Kansas.
One only has to glance briefly at her extensive record spanning
over two decades to know she is highly qualified for this important
responsibility. A skilled litigator fully schooled in both criminal and
civil areas of the law, Judge Robinson served with distinction as
Assistant U.S. Attorney for 11 years, ultimately attaining the position
of Senior Litigation Counsel.
In 1994, she ascended to the bench as United States Bankruptcy
Appellate Panel of the Tenth Circuit. Her transition from advocate of
the law to interpreter of the law came naturally. With thoughtful
opinion, judicious applications, and unquestioned professionalism she
gained deep respect with in the Kansas legal community. Judge Robinson
commands respect from all who have been in her courtroom-both losers
and winners. Just as important, she commands respect, admiration and
affection from all who know her, both personally and professionally.
Our task of confirming Judges is vitally important--more so than
ever in recent history. The landscape of the law is changing rapidly,
taking us further and further into new, uncharted territory. Judicial
vacancies must be filled by individuals possessing more than just
highly developed legal minds.
Our nation's judicial system faces serious challenges. On the one
hand, we demand the toughest of legal actions against those who attack
our country. On the other, we look to our courtrooms and our judges to
protect our basic individual liberties and freedoms.
We know this is a difficult balancing act. However, I am confident
that Judge Robinson is the right nomination at the right time.
Now, more than ever, we need judges who understand the human
element within the law. A judge's ruling affects not only the primary
participants in a case, but future litigants. Unforeseen lives can be
changed drastically by a single opinion. With so many changes occurring
in the law, we need judges such as Julie Robinson who grasp this
concept. It is this foresight that is needed now more than ever in
these volatile times.
Above all, this position requires a steward of the law with an
impenetrable character. I assure my colleagues you will find no dissent
within the state of Kansas as to her moral fitness or professionalism.
Character envelopes the core of her keen intellect--not to mention her
down-to-earth good natured common sense.
The Senate has both the duty and privilege to confirm Judge
Robinson. Her abilities will benefit not only the state of Kansas, but
the entire country. It is with great pride that I can come before you
today in support of this remarkable woman. With so much cynicism
directed towards the legal community today, Julie Robinson elevates
this position to new levels. Supported by the entire Kansas
Congressional delegation and the state of Kansas, she is ready for this
challenge. Examine her record, consult her colleagues, but more
importantly look closely at her character. You will be more than
satisfied.
Again, I urge her confirmation at the committee's earliest
convenience. An emergency exists within the Kansas district caused by a
vacancy in Topeka. We need Judge Robinson and board as soon as possible
to erase what is becoming a serious backlog of cases.
Senator Feinstein. Directly following the statements made
by Senators Kyl and Brownback, we will begin the hearings and
all the judge candidates will come forward. You will be sworn
in en banc. We will take Judge Robinson first, and then go down
the line of other judges. Mr. Rogan will then follow.
This room apparently is wanted at 12:30 for another
Judiciary Committee meeting, so we are going to try to move as
rapidly as we can and hopefully truncate our statements and our
questions.
Let me proceed, then. I would also like to incorporate in
the record all opening statements of those who wish.
Senator Roberts has left, so if we can proceed now with the
Senator from Arizona, Senator Kyl.
Senator Kyl. Since the candidate from Kansas was being
discussed, would Senator Brownback like to go ahead and finish
that, and then I will make my statement.
Senator Feinstein. Senator Brownback, please, go ahead.
PRESENTATION OF JULIA A. ROBINSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF KANSAS BY HON. SAM BROWNBACK, A U.S.
SENATOR FROM THE STATE OF KANSAS
Senator Brownback. Thank you very much for yielding. I
appreciate that from the Senator from Arizona. Thank you very
much, Madam Chairman, for helping out in the difficult
circumstance. I am happy to tell everybody it appears as if she
will be fine. She is headed to the hospital for some routine
tests, but thank you for your quick response to her.
Senator Feinstein. You are welcome.
Senator Brownback. That was Judge Robinson's aunt, who
lives back here in the Baltimore area, whose son is a
cardiologist, so will be in good hands here in a short period
of time.
Senator Roberts had already mentioned about Julie
Robinson's background, which I am delighted to support for this
judicial nomination position. If I could, I want to put my
entire statement in the record and I just want to add a few
bits of personal information.
Judge Robinson and I were in law school together at the
University of Kansas, the always fighting, every might
Jayhawks, particularly in basketball, better there than in
football, but she was an outstanding student at the University
of Kansas. She clerked for a District judge in Kansas. She then
went to the U.S. Attorney's Office and was a lead litigator
there and was appointed by President Clinton to the Bankruptcy
Court and has served as a bankruptcy judge. So her legal
pedigree is outstanding.
Her blood line is incredible. She is a fourth generation
Kansas from the Exoduster tradition, and for those people who
do not know what an Exoduster is, it was a group of freed
slaves that had moved out of the deep South after the Civil
War. So in the 1860s, her family lineage came to Kansas and
settled there and have been in Kansas ever since, fourth
generation. They have shown themselves outstanding. Her father
was a veteran of both the Korean and Vietnam conflict, was an
intelligence warrant officer in the Army. He has since
deceased, but I am certain that he is looking down from heaven
today and quite pleased with his daughter, Julie Robinson.
She is married. They have two children. They live in
Kansas. She is very active in her community. She has been a
disciple buddy Bible study facilitator. She works on racial
reconciliation at her church. The American Bar Association has
given her a unanimous ``well qualified'' recommendation.
Suffice it to say, Madam Chairman, I think what we have
here is a candidate that is both qualified with her
qualifications in the legal profession and qualified by her
heart, by what all she has already done and the pedigree and
the legacy that she carries on in an excellent, outstanding
family, and I am very pleased to be here to support her
candidacy.
Senator Feinstein. Thank you very much, Senator Brownback.
[The prepared statement of Senator Brownback follows:]
Statement of Hon. Sam Brownback, a U.S. Senator from the State of
Kansas
Madame Chairman, fellow members of the Judiciary Committee, thank
you for allowing me to appear before you on this side of the dais to
introduce an outstanding nominee for the District Court for the
District of Kansas. As the senior Senator from Kansas, I take great
pride in her nomination, and I am thrilled to be here today to
introduce Judge Julie Robinson and her Beautiful family to you.
As a new member of the Judiciary Committee in this Congress, I took
very seriously the job of finding a the best candidate to suggest to
the President to fill the seat vacated by Judge Van Bebber for the
District Court in Kansas. I undertook a lengthy process to interview
candidates for this position, enlisting the assistance and input of
excellent advisors in Kansas from both the private sector and academia.
I pleased to state before this Committee, that Judge Robinson stood
head and shoulders above all the other candidates I considered for the
position of District Judge for the District of Kansas.
Julie Robinson is a fourth-generation Kansan, whose roots in Kansas
go back to the 1860s, when her father's mother's family, the Bakers,
moved west as part of a movement known as the Exodusters, and settled
in Hiawatha, Kansas, where they reside to this day. Julie Robinson in
the great-granddaughter of those pioneers. Many of my colleagues from
the East may not have heard of the Exodusters. Between the mid- 18602
and the 1880s, thousands of African-Americans settled in Kansas
Oklahoma, and other part of the American West. Nicodemus, Boley, and
other black towns where the product of long-distance migration of
blacks from the Deep South. These were newly-freed slaves drawn to the
American West to create new communities for people desperately seeking
opportunity. In fact, the oldest and only remaining black settled town
in the West is Nicodemus, Kansas, now a notional historical site.
Judge Robinson's parents served their country with distinction, a
tradition which she has already followed in her current position, and a
tradition which I am sure she will continue as a federal district judge
for Kansas. Judge Robinson's late father was a veteran of Korea and
Vietnam, and served for many years overseas as a Intelligence warrant
officer in the Army. I am sure he is very product of his daughter
today. Judge Robinson's mother, Charlene Robinson, who is here with
here daughter today, served many years overseas as a nurse-practitioner
with the Department of Defense, and also with the Veterans
Administration here in the States. Due to her family's service to their
country, Judge Robinson grew up in places as diverse as Germany and the
Panama Canal Zone.
Judge Robinson's family finally settled back in Kansas, where she
had the opportunity to earn both an undergraduate degree in journalism
and a law degree from the University of Kansas. I must not here that
Julie's brother Thomas Robinson, who is also here today, is also a
graduate of the University of Kansas Law School. After graduating from
law school in 1981, Judge Robinson clerked for the Honorable Benjamin
E. Franklin, then the Chief Bankruptcy Judge for the District of
Kansas. From 1983 to 1994, Judge Robinson was an Assistant U.S.
Attorney in the District of Kansas, litigating both civil and criminal
cases. From 1992 to 1994, Judge Robinson was designated Senior
Litigation Counsel for the U.S. Attorney's Office. Judge Robinson also
taught trial practice at the University of Kansas law School from 1989
to 1990. In February, 1994, President Clinton appointed Julie Robinson
to her current position as a United States Bankruptcy Judge for the
District of Kansas. She also currently serves as a Judge on the Tenth
Circuit Bankruptcy Appellate Panel.
Finally, Judge Robinson is active in here church as a leader of
Disciple Bible Study, a facilitator on racial reconciliation, and she
serves as a member of the South Africa mission team as well as several
other ministries.
Madame Chairman, fellow members of the Committee, it is my distinct
honor and great pleasure to know Judge Julie Robinson, and to give here
my highest recommendation to the Committee for the position of District
Judge for the District of Kansas. Kansas is indeed blessed to have such
a wonderful human and outstanding attorney willing to serve in the
Third Branch of our nation's federal government. I strongly urge the
Chair and my colleagues on the Judiciary Committee to act swiftly to
approve the nomination of Judge Julie Robinson, and to quickly confirm
here as the newest District Judge for the District of Kansas before the
107th Congress adjourns.
Thank you Madame Chairman.
Senator Feinstein. Senator Kyl?
PRESENTATION OF FREDERICK J. MARTONE, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF ARIZONA BY HON. JON KYL, A U.S.
SENATOR FROM THE STATE OF ARIZONA
Senator Kyl. Thank you, Madam Chairman. I am a little bit
biased because I have known Justice Frederick Martone now for
almost 30 years and know his family. His son is an avid hiker
of the same mountain that I hike when I can, and he can go up
and down about four times for every one time I can.
But Frederick Martone is known as one of the brightest
legal minds in the State of Arizona, and he came to Arizona
after growing up in the East. He was an officer of the United
States Air Force. He clerked for a judge on the Supreme Court
of Massachusetts after his school, which began with a
bachelor's degree from Holy Cross University, his law degree
from Notre Dame Law School, and then a Harvard Law School
L.L.M. I will not get into all of the awards and the
achievements in school, but would note that he was an editor of
the Notre Dame Law Review.
But he came to Phoenix, because that is where his wife's
family was from, in 1973 and joined one of the most prestigious
and largest law firms in the State of Arizona, where he
practiced for 12 years. He had an extensive practice in Federal
court. I am very familiar with that practice. That is, I think,
where he acquired, as I said, a very strong reputation for keen
legal mind and also, I would say, for being a superb writer.
He was appointed to the Superior Court in Arizona, which is
the trial court for the State, where he served for seven years,
and then was appointed by the Governor of the State of Arizona
to the Supreme Court of the State of Arizona, and he has served
on the Arizona State Supreme Court now for nine years. He
naturally has chaired many judicial type positions and is a
leading member of the bar in the State of Arizona.
In view of the circumstances, I will not further describe
his qualifications except to say that, as I said, I have known
Justice Martone now for almost 30 years, all of that time as a
lawyer or judge, and I can truthfully say that there is nobody
in the State of Arizona that I can think of that would come to
the Federal District Court with higher qualifications, better
experience than Justice Fred Martone.
Therefore, I am very pleased to be able to introduce him
here today and to say that my colleague, John McCain, who could
not be here this morning, also strongly endorses Justice
Martone for this position, and I am just delighted that the
President has nominated him for the Federal District Court in
Arizona.
Senator Feinstein. Thank you very much, Senator Kyl.
I believe this completes the statements of the Senators on
behalf of the nominees, and now if the nominees would please
come forward and take their places at the table. The clerk will
put out a little identity sign. Judge Robinson, you are over on
the far left. Mr. Heaton is next, Mr. Land, Justice Martone,
Mr. Reeves, and Mr. Rogan on the far right, you will be happy
to know.
[Laughter.]
Senator Feinstein. Since you are here we will talk with you
as soon as we finish with the judges, if that is agreeable. If
the judicial candidates could come forward, please. If you will
remain standing and raise your right hand and simply affirm the
oath after I complete its reading by saying either, ``I do'' or
``I will.''
Do you swear that the testimony you are about to give
before this Committee is the truth, the whole truth, and
nothing but the truth?
Judge Robinson. I do.
Mr. Heaton. I do.
Mr. Land. I do.
Judge Martone. I do.
Mr. Reeves. I do.
Mr. Rogan. I do.
Senator Feinstein. Thank you very much. Please be seated.
Now, I will ask each of the nominees if they have a brief
statement. We would appreciate your brevity, but by all means,
we would love to have you introduce your family or friends who
are here. Judge Robinson, if you would go first, please, and
then we will go right down the panel.
STATEMENT OF JULIE A. ROBINSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF KANSAS
Judge Robinson. Thank you, Madam Chairman. I would like to
introduce my family members that are here, my husband, William
Thurman, my children, Jordan and Brooke Thurman, my mother,
Charlene Robinson, my brother, Tom Robinson. My aunt and uncle
have previously left, Uncle Lawrence and Aunt Ruth, and I have
some bankruptcy judge colleagues who are also here, Tom
Cornish, Marcia Krieger, and Dana Rasher.
Senator Feinstein. Terrific. I think we should give you all
a big round of applause. Thank you very much.
[Applause.]
[The biographical information of Judge Robinson follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Mr. Heaton?
STATEMENT OF JOE L. HEATON, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF OKLAHOMA
Mr. Heaton. Senator, my wife and sons are not here. They
have told me they expect a full report, but they are not with
me today.
[The biographical information of Mr. Heaton follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Thank you very much.
Mr. Land?
STATEMENT OF CLAY D. LAND, NOMINEE TO BE DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF GEORGIA
Mr. Land. Thank you, Madam Chairperson. I have a five,
eight, and 11-year-old and I have found that their schedules
are far more complicated than mine.
Senator Feinstein. I am sure that is right.
[Laughter.]
Mr. Land. Neither they nor my wife were able to be here. My
five-year-old gave me some good advice as I left, I believe it
was yesterday or the day before. He said, ``Daddy, just don't
mess up,'' so I will try not to do that.
[Laughter.]
Senator Feinstein. Thank you.
[The biographical information of Mr. Land follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Justice Martone?
STATEMENT OF FREDERICK J. MARTONE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA
Judge Martone. Madam Chairperson, my wife, Jane, and my
children, Jonathan and Anne, are not here today, but I know
they are very supportive of me and thinking of me at this time.
Thank you.
[The biographical information of Judge Martone follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Thank you very much.
Mr. Reeves?
STATEMENT OF DANNY C. REEVES, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF KENTUCKY
Mr. Reeves. Thank you. My wife is here with me today, Cindy
Reeves.
Senator Feinstein. Welcome.
Mr. Reeves. I am certainly pleased to have her here. My
children could not make it today, Adam, who is 16, and Joseph,
who is 11. They are both in school and are looking forward to a
full report also.
[The biographical information of Mr. Reeves follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Thank you very much.
Mr. Rogan?
STATEMENT OF JAMES E. ROGAN, NOMINEE TO BE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED
STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE
Mr. Rogan. Madam Chair, my wife, Christine, is here with
me.
Senator Feinstein. Christine, if you would stand.
Mr. Rogan. My nine-year-old twin daughters, Dana and
Claire, figured they have heard enough of their daddy's
speeches to last a lifetime.
[Laughter.]
Mr. Rogan. I would like to introduce to the Committee also,
and I am very pleased to have him join me, the Deputy Secretary
of Commerce, Dr. Samuel Bodman, is also here.
[The prepared statement and biographical information of Mr.
Rogan follow.]
Statement of the Hon. James E. Rogan, Nominee to be Under Secretary of
Commerce for Intellectual property and Director of the United States
Patent and Trademark Office, Department of Commerce
Madame Chairman and Members of the Committee:
It is a great honor to join you today as President Bush's nominee
for the position of Under Secretary of Commerce for Intellectual
Property and Director of the United States Patent and Trademark Office.
I am grateful to the President for nominating me to this important
post, and to Secretary Evans for his recommendation and support.
Madame Chairman, I am especially blessed to be joined by my wife
Christine and our young twin daughters, Dana and Claire.
I want to thank Chairman Leahy and you, Madame Chairman, for
scheduling this hearing. My gratitude is magnified when I reflect upon
the unprecedented and grave issues with which this Committee must
grapple following the cowardly attack on our people two months ago.
Madame Chairman, we cannot overstate the importance of intellectual
property in today's global economy. For over 200 years American
intellectual property has fueled our economic growth and will continue
to do so. We need to do all we can on both the domestic and
international level to promote and protect this invaluable resource.
The individual confirmed by this body to be Under Secretary of
Commerce for Intellectual Property plays a significant role in that
effort. Not only does the Under Secretary oversee the issuance of
patents and trademarks, but he or she also advises the President,
through the Secretary of Commerce, and our Federal agencies, on all
national and international intellectual property policy issues. Those
issues include the negotiation and implementation of international
treaties and improvements to those treaties; review of intellectual
property provisions in trade agreements; dispute resolution; and
consultation with foreign governments that look to develop or improve
their intellectual property systems.
If confirmed, Madame Chairman, my priorities will include working
to improve the quality of patents granted and trademarks registered,
and to minimize the processing times. USPTO customers deserve a quality
product delivered in the shortest possible time. Since that requires
substantial human and technical resources, I will work to ensure that
USPTO has appropriate funding to do the job. I know the Administration
and Congress already are working toward that important goal.
On the international side, we need to continue reaching out to our
foreign trading partners to encourage their support for strong
intellectual property laws and enforcement systems. U.S. industries
suffer enormous losses overseas through piracy and ineffective
enforcement.
As the record of this Committee shows, intellectual property-
related matters traditionally are addressed in a bipartisan manner. The
same holds true for the House Judiciary Committee, where I was
privileged to serve during the 105th and 106th
Congresses. If confirmed, I will work diligently to continue that
spirit of bipartisanship and cooperation as we deliberate on
intellectual property-related policies.
Madame Chairman, we already have the best intellectual property
system in the world. If confirmed, I will do all I can to work with
your Committee and with my former colleagues in Congress to make it
even more effective and cost-efficient.
Again, Madame Chairman, thank you for holding this hearing. I thank
this Committee for its consideration of my nomination. I am pleased to
answer any questions.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Thank you very much. Thanks very much,
Mr. Rogan.
I am going to begin with one question to ask the entire
panel, and if you would just answer it, we will just go right
down the table, of course, with the exception of Mr. Rogan, who
is not required to answer these questions. The question is, in
your opinion, how strongly do you believe judges should bind
themselves on the doctrine of stare decisis? Does the
commitment to stare decisis vary depending on the court?
Judge Robinson. Madam Chairperson, I believe that judges,
it is their sworn duty to be bound by the doctrine of stare
decisis and to be bound by those courts who sit in positions
relative to their court by which their precedent would be
binding.
Senator Feinstein. Thank you very much.
Mr. Heaton. I agree, Senator. There may be some difference
in the circumstance for Supreme Court Justices, but certainly
for those of us who seek to be on the District bench, we are
bound to follow the decisions of the higher appellate courts
and I would certainly do that.
Senator Feinstein. Thank you.
Mr. Land. Madam Chair, I also agree that trial judges
should be bound by prior precedent in their circuit and of the
Supreme Court and do accept and understand the doctrine of
stare decisis.
Senator Feinstein. Thank you.
Judge Martone. Madam Chairperson, I agree. I think the
doctrine of stare decisis is an important component of the rule
of law itself. I think every judge takes an oath to support
that.
Senator Feinstein. Thank you.
Mr. Reeves. I would certainly agree with the comments that
have been expressed previously and understand the importance of
stare decisis, especially at the District Court level.
Senator Feinstein. Thank you very much.
I am sure that you followed the debate here in Capitol
Hill, and, in fact, across the country, about the need for
legislation to address the risk of more terrorist attacks.
Without getting into any specific proposals, what do you think
the trade-offs--this is an interesting question--what do you
think the trade-offs need to be between liberty and security?
Please, Judge Robinson?
Judge Robinson. Madam Chairperson, I do not know that I can
be specific in my answer. The Supreme Court has given us
direction in terms of our liberty interests under the United
States Constitution and those should be foremost in our mind.
But at the same time, our country is facing a serious problem.
I do think that is something that would have to be answered in
the context of a case that has been prosecuted or indicted
under a particular statute and the language of that statute.
Senator Feinstein. Thanks very much.
Mr. Heaton?
Mr. Heaton. I agree with that, Senator. I certainly
appreciate the need for us to strike the appropriate balance in
making sure that our responses to the security threats to the
country do not undercut our civil liberties or cause us to lose
our commitment to those. Certainly as a District judge, if I am
confirmed, I would approach any issue that might come before me
of that sort from the presumption that an act of Congress is
constitutional but would apply the accepted constitutional
norms to evaluate that in a particular case.
Senator Feinstein. Thanks very much.
Mr. Land?
Mr. Land. Madam Chair, this body and Congress has that
awesome responsibility, I believe, of balancing those different
interests. As a judge, I believe that if I were to be
confirmed, my job would be to try to determine the most
analogous precedent that exists under the doctrine of stare
decisis and apply it to any law that is applied. I do not
believe the judge should be making the law in that area, but
the judge's job would be to interpret what this body and what
Congress does in that area and should follow precedent that is
closely analogous to what would be before the judge and try to
follow in that way.
Senator Feinstein. Thanks very much, Mr. Land.
Justice?
Judge Martone. Madam Chairperson, liberty and security are
two sides of the same coin and it goes back to really political
science in terms of how we order society. You cannot have
liberty without order and you cannot have order without
liberty. And I agree with what has been said, that it really is
up to bodies like this to properly reflect the will of the
American people in terms of striking the appropriate balance at
any given moment in history.
Senator Feinstein. Thank you.
Mr. Reeves. Again, I certainly agree with all the comments
that have been made by the other nominees and would agree
certainly to evaluate any liberty interest under the
legislation that has been passed.
Senator Feinstein. Thanks very much. I appreciate it.
Now after those softball questions, I am going to turn to a
very tough questioner and really observe seniority. Senator
Kyl?
Senator Kyl. Thank you, Senator Feinstein. I might add that
Senator McConnell has seniority in his tenure in the Senate,
but by the Committee process, I got on this Committee first,
and that might clear up a little bit of confusion for those of
you who are aware of his longer service here in the Senate.
Rather than ask a question, I am going to make a brief
statement, primarily for the benefit of those of you who are in
the audience who care about one or more of the nominees who are
at the table here.
This hearing should be viewed as literally the tip of the
iceberg. All of the work that has gone into the President's
decision on who to nominate for these important positions, the
Committee staff, all of these people, primarily younger people
sitting behind us, have spent a great deal of time going over
all of the material that has been submitted in the applications
and from the White House and Justice Department relative to the
nominations here. The American Bar Association has done its
evaluation of the nominees, and other groups that may have an
interest have submitted to us.
So by the time we get to the hearing, in fact, the mere
scheduling of the hearing itself is a recognition in almost
every case that the candidate is ready to move forward, that
nobody has a problem with that. Now, there are a few rare
exceptions to that, and, in fact, the hearings that you have
seen on television or read about, perhaps, are those rare
exceptions where there is a real question about a particular
nominee and all of the Senators gather around and we really
have a good old knock down, drag out questioning period with
tough questions and debate and then we reach our conclusion and
have a vote, however that might come out.
But for most of the nominees, the genius of our process
here is that the President does a great deal of vetting. He
communicates with the Senators from the State and then the
process in the Committee here advances in the same way so that
by the time we get to this hearing, all of the tough questions
have been asked and the cream rises to the top. These are the
very best, and so the chances are we do not need to ask a lot
of tough questions. You have already seen from Senator
Feinstein's questions, every one of these nominees knows
exactly why they are here, what the law is, and how they will
apply it.
So if you were expecting a huge crowd of Senators here or a
long hearing, a lot of questions and that kind of thing, the
reason you are not seeing it is because you are here in support
of a very qualified candidate who we have already figured out
is very qualified. In that sense, this is part of the process
that we have to go through, but you should not view it as one
in which we are trying to trip anybody up.
All of these people are supremely qualified, and I just
want you to know that the fact that we may be able to conclude
this hearing in a relatively quick form and without a great
deal of fireworks does not suggest a lack of interest on our
part, but rather the degree to which these nominees have
already been found to be highly qualified. So that is my
statement without a question.
Senator Feinstein. Thank you, Senator Kyl, very much.
Senator McConnell?
Senator McConnell. Senator Feinstein, let me also echo what
Senator Kyl has said. Congratulations to all of you for having
run the gauntlet and having gotten to this stage. The
inquisition is really not necessary at this point. You have all
been through that at a prior stage and I want to congratulate
you all for having gotten to this point, particularly, of
course, Danny Reeves, the President's nominee from Kentucky. I
am proud of your record over the years which has earned this
appointment and we fully anticipate that you will be an
outstanding District Judge in the Eastern District of Kentucky.
Mr. Reeves. Thank you, Senator, very much.
Senator Kyl. [Presiding.] I might say that the vote that
was scheduled for 11:15 has now commenced and Senator Hatch and
Senator Feinstein will go vote. I plan to stay here, and then
when they come back, I will go vote and they will continue to
chair the meeting.
Senator McConnell, did you have anything else at this
point?
Senator McConnell. No, I do not think so, Senator Kyl.
Senator Kyl. Senator Brownback?
Senator Brownback. Thank you very much, Senator Kyl.
I want to put forward a statement, as well, because of the
nature of the questioning that has already been conducted in a
great deal of thoroughness with all the background checks that
have been done on each of you and the vetting that each of you
have gone through.
The position that you will hopefully soon attain, and you
will, I think is one of the most important ones within our
government. You hold decisions over people's lives that are a
very personal and a very real impact. My wish for each of you
is just for wisdom in being able to do these in a way that is
right for the people involved in the litigation and right for
the people that are impacted by the broad swath of the decision
that you make, and a lot of these decisions will move on up the
tree, whether it is appellate court or Supreme Court and shape,
then, our land in a non-legislative way, in many regards, and
yet we retain for the legislative vehicle to really be the one
to change our land.
So you have an enormous impact directly on the people's
lives that you are going to be involved with in the litigation
and indirectly through the laws that you help shape that we
pass here.
I hope that none of you ever get stale in the job. A number
of you are younger. I still consider myself in that category,
as well. To be on the bench for a lifetime, I hope you will be,
I hope that 50 years from now when you are still deciding cases
that you will walk into that same courtroom with the same zest
and yearning to do the right thing that I know you will enter
into it right now. There is a tendency, I think, for some us,
after a while, we get used to it and think, well, it is not
that big of a deal, but it is a big deal and it really touches
people's lives and souls in a very key way.
This is one of the most important positions that we put
people into in the Federal Government, one of the most
important positions in government outside of a county
commissioner. I guess I always think they touch people's lives
about as much as anybody does, as well.
But all the best to each of you and to your families in
going through this and the sacrifices that you will have in our
land in making these tough calls and interpreting the laws and
their impact on people. My wish is just all for the best for
each of you. Godspeed.
Senator Kyl. Thank you, Senator Brownback.
There are a couple of questions I would like to ask. One is
a more practical question, perhaps. Given the fact that a lot
of our courts are not fully staffed, and even with your
accession to the bench will continue not to be fully staffed,
and we are seeing increasing caseloads, some of you have
already served as judges, but a general question for any of you
who would like to volunteer and answer first. Given the
inevitability of increasing caseloads and yet the need to do
justice, do you have any specific ideas or experience in
handling cases, in handling your caseload in such a way as to
provide perhaps suggestions to others or to give us an idea of
how you will manage that difficult balancing act. Is there
anybody who would like to volunteer for that?
Mr. Reeves. Senator Kyl, I will go first, if that is
appropriate.
Senator Kyl. Sure.
Mr. Reeves. As a practitioner now for nearly 18 years, I
have observed in Federal Court, in particular, that the judges
who take control of cases early, understand the cases, and use
the civil rules and the other rules that are available, are
able to manage their dockets a little better. The Federal Rules
of Civil Procedure certainly give us an opportunity to do that,
with Rule 16 and with other rules for conducting hearings and
scheduling conferences early, and I would hope that if my
nomination is confirmed that I would certainly be able to do
that and to take charge and take control early in the process.
Senator Kyl. As a fellow litigator who had the same
frustrations sometimes, I appreciate that answer. Thank you.
Mr. Heaton?
Mr. Heaton. Senator, in the Western District of Oklahoma,
in addition to that, which I certainly agree with, ten or 15
years ago, we had precisely the experience that you have
described of substantial caseloads and so on, and as a result,
our district became very aggressive in its use of alternative
dispute resolution techniques in making sure that the various
opportunities for settlement were at least fully explored with
the parties. I do not think that is something that should
necessarily supplant the litigation process, but it is an
available option, and I think as a part of the early
intervention by the Court, those are options that can help to
move cases along quickly.
Senator Kyl. I appreciate that. Do any others want to add
something, or I will move on to another question.
I have always been fascinated, of course, when you a
District Judge, as all of you have said, you follow the Supreme
Court precedents, but occasionally there is something that we
like, at least some lawyers will characterize as a case of
first impression. Sometimes they are not really. But if you see
a case that at least appears to you to be a case of first
impression, how then do you approach that in terms of
precedents of the Supreme Court, general rules of construction,
and so on? What is your philosophy about approaching a case
with constitutional aspects that at least appears to be a case
of first impression? Again, I will just ask the question
generally for anybody who would like to address it. Justice
Martone?
Judge Martone. Well, I think one would first look to the
text, and if the text is clear or if you think it is clear,
then that should be the end of the inquiry. If a consideration
of the text leads to an absurd result, then it might take you
down a different avenue.
If consideration of the text is insufficient to produce a
sensible answer to the question, then one would look at the
context in which the statute exists, the statute taken as a
whole, try to get a feel for what the legislative purpose was
articulated either in that particular statute or the chapter of
which it is a part, look to what precedents may exist to give
sort of guidances to at least what the general framework of
analysis is.
And then in the end, apply reason and common sense to see
if reason and common sense can ultimately have an influence and
come to bear on a resolution that makes sense.
Senator Kyl. Any other--
Judge Robinson. I agree fully with what Justice Martone
said. The only other thing I would add is that if it does have
constitutional implications, and I am assuming we are talking
about statutory construction, the canon that you begin with a
presumption that the statute is constitutional is a very
important one.
Senator Kyl. As a legislator, I appreciate that.
Let me ask you a question about judicial temperament. One
of the things that is difficult for us to measure objectively
when we read the resumes and we get the reports from folks is
just what kind of judicial temperament a candidate will have,
and that is not always easy to measure. But in the interviews
that are conducted about each of you, one of the questions that
is asked is, how about this matter of judicial temperament, how
they will treat litigants who come before them in the court,
how they will deal with colleagues and so on, a very important
matter in the qualifications of a judge.
It is an open-ended thought or question, but do any of you
have any thoughts or advice to others about how to approach
this question of judicial temperament in order to do your job,
pressing the lawyers, for example, as Mr. Reeves said, within
the bounds of the law, but doing it in a way that enhances the
respect for the bench?
Mr. Land. Mr. Chairman, I will try that one. I think that a
judge not only needs to be fair and unbiased but he needs to
have the appearance of being fair and unbiased. I think that he
needs to present himself in a way on the bench to where the
litigants feel that the judge is fair and unbiased, and I think
that means being courteous. I think it means being respectful
and understanding that every person there in the courtroom has
a job to do.
I think that those things can be done while maintaining the
decorum and order in the courtroom. But I think that the judge
needs to demonstrate that type of demeanor so that every person
that has come before that judge realizes that the judge,
regardless of the final decision, has been fair and has been
unbiased in deciding the particular case.
Senator Kyl. The rule of law that Justice Martone referred
to earlier is such a basic component of our society as a whole.
If people accept a decision even though it may be counter to
their interests, that enhances the rule of law. Today, there
are so many young people coming before the court on criminal
charges, many of them who are--well, in fact, in my own State
of Arizona, many who came from another country very recently,
maybe legally, maybe not legally, and so you end up with a lot
of cross-currents in terms of the kind of people who appear
before you as a judge.
I wonder if any of you have any thought about how you
maintain the temperament in that situation in a way as to maybe
even perhaps influence that young person's life for the better,
though he or she stands before you accused of a crime. That is
an additional challenge that the judge really bears heavily in
our society today, it seems to me. Any thoughts about how you
assume that extra responsibility, I guess we will put it that
way? Mr. Heaton?
Mr. Heaton. Senator, I think the answer is essentially what
was just described to us, and that is that we need to be
mindful of the need to even-handedly and fairly deal with
everybody in the courtroom, regardless of their circumstances
or the job that they are there to play, because that ultimately
does contribute greatly to the public confidence in what we are
doing and public confidence in the judicial system.
Senator Kyl. I think especially with a lot of these young
people appearing before you, what they think when they leave
that courtroom, wherever they are going, is very, very
important for the future of our country.
Just one final question. We are talking here about the
Federal District Court and most of you had experience in the
State Court system in one way or another. We are very desirous
of protecting that proper relationship between the Federal
Government and the States, and as a Federal District judge,
obviously your primary responsibility is dealing with Federal
statutes, but I know the Federal judiciary frequently complains
about Congress federalizing more and more and more in terms of
the legal requirements.
Do you have any thoughts about this proper balance between
the Federal and the State and how, as a Federal District judge,
you would deal with some of the conflicts that come about,
where you may have a State Court case and a Federal Court case,
for example, or particular State interests but you are dealing
with a Federal statute. Any general thoughts on that from any
of you?
Judge Martone. Senator Kyl, let me at least begin by saying
that in Arizona, and I think in most States and in most
circuits, there are State Federal Judicial Councils consisting
of Federal judges and State judges who meet together, go over
areas of common concern that exist between and among the
various courts. Ours meets twice a year. We have addressed such
things as capital case litigation, trial conflicts between the
State and Federal Courts, the disruptive effect of bankruptcy
stays on proceedings in the State trial court, and it has been
absolutely marvelous in terms of the coordination and
communication that goes on and now exists between the State and
Federal judges in the State.
Senator Kyl. Thank you. I appreciate that, and I presume
other States have that same kind of coordination. I would hope
that they do.
Senator Feinstein had some questions, and since she will be
back here in just a moment, let me just maybe refer to one or
two of them, so I will ask these questions on her behalf.
Mr. Land, she was going to ask you this question. Noting
your legal experience focusing on civil matters, most notably
insurance litigation, she asks, if you are confirmed, how you
respond to the challenge of handling the criminal matters that
will be before you, and particularly she also wondered what led
you to sponsor a bill in 1996 to create a Civil Justice Reform
Commission and what you learned as Chairman of that commission.
Mr. Land. Thank you, Mr. Chairman. First of all, with
regard to the first part of the question regarding my criminal
litigation experience or lack thereof, you are correct that my
practice has been primarily in the civil litigation area, but I
have had exposure to the criminal justice system and those
issues, having served in the Senate Judiciary Committee during
the entire time that I was in the Georgia General Assembly.
Ninety-five percent of the litigation, or the legislation that
affected the criminal justice system came through our Committee
and, therefore, I did have exposure to analyzing those issues,
those proposed statutes, how they were affected by our
Constitution, and those types of things. So I have had some
exposure as a member of the Senate Judiciary Committee.
Second, I was also chairperson of the Georgia Indigent
Defense Council, which is an agency in Georgia that provides--
is a mechanism for providing funding for indigent defendants
who are accused of crime and it also provides certain
guidelines, minimum guidelines for providing criminal defense
for indigents. In that capacity, I have had exposure to those
types of issues involving our criminal justice system, so I
think I do have some exposure to those issues.
Thirdly, although not presumptuous but as a matter of
preparation for hopefully being confirmed, I have taken it upon
myself with a law professor who is now an associate dean at the
University of Georgia Law School who has provided me with a
couple of good treatises on Federal criminal procedure and I
have taken it upon myself to try to review those. The law
professor said that the worst thing that could happen is, if
you are not confirmed, at least you will have learned a little
something.
[Laughter.]
Mr. Land. So I have done those things with regard to trying
to get up to speed in the area of the criminal side of the
equation, understanding that my experience has been on the
civil side.
With regard to the question about the Civil Justice Reform
Act that I sponsored in 1996 and, in fact, it was a bipartisan
piece of legislation, there were cries in the State of Georgia,
as there are in Congress, I am sure, about our civil justice
system and whether there are any improvements that should be
made.
There were a number of legislators on both sides of the
aisle in the State of Georgia who felt that in order for us to
make decisions that were that important, we needed information,
and in order for us to find that information, we needed to
establish a commission or the civil justice--this was a Civil
Justice Improvement Commission, I think, to analyze those
issues, and we did that. Although the General Assembly was
Democratic at the time, the Lieutenant Governor at that time
appointed me as chair to look into that. It was a broad
bipartisan effort.
We held hearings and tried to determine an analysis of our
civil justice system in Georgia, and what we basically
concluded was we did not have a data collection system that
could give us the information we needed to make good decisions.
So the ultimate recommendation of our commission was to
establish a data collection system that would allow us to
obtain the necessary data from the courthouse, from the filing
to the end result with verdicts and those types of things so
that we could look and see what our system was rather than
making decisions solely for maybe political reasons but base it
on fact, and that is what we ended up doing.
I am proud to say that I subsequently sponsored the bill to
establish that data collection system and it has made its way
through the legislative process and we are starting now to
collect better data so that legislators can make those
decisions. I am long-winded and I apologize.
Senator Kyl. No, I will just ask you to repeat everything
you just said for Senator Feinstein. I have to run to vote now,
Senator Feinstein. Thank you.
Senator Feinstein. [Presiding.] Thank you very much,
Senator Kyl. I appreciate it.
Senator McConnell, do you have questions?
Senator McConnell. I do not, Senator Feinstein, at least
until I hear what you might have to ask.
Senator Feinstein. All right. If I may, then, Mr. Heaton, I
have got a couple of questions for you. Among a number of your
actions in the Oklahoma legislature, you voted against tabling
a bill that sought to ban all post-viability abortions except
to save the life of a woman. You also voted for a bill that
would require a young woman to wait 48 hours after a parent had
been notified that she is seeking abortion services. Could you
explain the rationale for these votes?
Mr. Heaton. Well, Senator, I frankly do not remember the
specifics of those bills. There has been a fair amount of water
under the bridge since I cast those votes. I would just say
that, in general, I certainly recognize that Roe v. Wade is the
law of the land, as it has been modified in the Casey and other
decisions, and if I am fortunate enough to be confirmed, I
certainly would follow those decisions. There is nothing in my
personal viewpoint that would preclude me from following the
law as articulated in those decisions.
Senator Feinstein. I see. Thank you. That is very helpful.
I appreciate that.
Mr. Reeves, hello.
Mr. Reeves. Hi.
Senator Feinstein. If I may, in Griswold v. Connecticut,
the Supreme Court for the first time recognized the
constitutional right to privacy. It went on to reaffirm and
expand this right in Eizenstat v. Baird. Following these
decisions, the Supreme Court then recognized a constitutional
protectional for a woman's right to choose in Roe v. Wade, as
you well know. Do you support and believe in a constitutional
right to privacy?
Mr. Reeves. I certainly recognize the Supreme Court cases
and the cases in my circuit that have recognized a right to
privacy. As the other nominees have said, I would certainly
apply and enforce those decisions.
Senator Feinstein. So how would you quantify your
understanding of the constitutional right to privacy?
Mr. Reeves. Well, as you indicated, I think the first case
you mentioned was the contraceptive case, the Griswold
decision, which clearly has been enforced and should not be in
any doubt at this point, as well as subsequent decisions that
recognize a right to privacy, not only for contraceptive issues
but the right to choose, as Mr. Heaton had indicated in Roe v.
Wade and the Casey decision and the other cases that have
followed. That provides the contours of the right to privacy
that has been recognized.
Senator Feinstein. One more question, if I may. In your
1993 brief for the case of Horner v. Kentucky High Schools
Athletic Association, you mentioned Congressional intent a
number of times. For example, you state that, and I quote,
``Simply because Congress may have intended to broaden the
coverage of Title IX does not invalidate the approach used in
the Kleczek court determining whether an entity is a recipient
for Title IX purposes.''
You also wrote that, quote, ``While the Kentucky High
School Athletic Association does not dispute that Congress may
have intended to provide broader coverage to Title IX, it does
not follow that the Kentucky High School Athletic Association
is subject or has violated its provisions via its actions.''
What degree of investigation into Congressional or
legislative intent do you think Federal judges have a duty to
pursue?
Mr. Reeves. Well, certainly if there is an ambiguity or if
there is some question, for example, in the case that you
mentioned, the Horner case, the whole issue of the programmatic
approach that was discussed in the Kleczek case from Rhode
Island was really an open issue at that time. There had only
been a couple of cases that had really discussed that issue.
And under those circumstances, when there is such an open
issue, such an open question, and we are really not sure, then
I think it is certainly appropriate to look at what the
legislature intended.
Senator Feinstein. As a Federal judge, how would you give
deference to legislative intent?
Mr. Reeves. Well, certainly the cases have helped us
determine when that would occur, especially some of the recent
cases where we look at congruence and proportionality when we
are examining a statute under the 14th Amendment, Section 5,
and that is certainly important. But it is the court's analysis
that really has to take place. The court has to examine those
issues and to reach the right decision based upon the
precedent.
Senator Feinstein. Thank you very much.
Senator McConnell, any questions?
Senator McConnell. Let me just point out that in the case
to which Senator Feinstein was just referring, you were
representing your client, were you not, the Kentucky High
School Athletic Association?
Mr. Reeves. Absolutely.
Senator McConnell. and arguing as best you could on behalf
of your client the various points you thought might apply.
Mr. Reeves. Certainly.
Senator McConnell. But, in fact, you have no hostility to
Title IX, I--
Mr. Reeves. Oh, none whatsoever. As a matter of fact, I
have and do speak frequently on those issues. I volunteer a lot
of time to discussions among various school groups, boards of
education, booster clubs--
Senator McConnell. Trying to help them understand how to
comply with Title IX, is that correct?
Mr. Reeves. Yes, exactly.
Senator McConnell. Thank you.
Senator Feinstein. Senator Hatch, you are up.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. We are happy to welcome all of you to the
Committee. I am sorry I have been so pressured today I have not
been able to be here for most of this hearing. We have been
working on the Job Protection Act, the stimulus package, and a
whole raft of other things, as well.
But I know each and every one of you and I just want to
tell you that we are very proud that you have been nominated to
these positions. These are important positions, among the most
important in our whole society, and we are grateful that you
are willing to make the sacrifices and that you are so well
qualified to be able to fulfill these positions.
So we are grateful to have you all here. I do not have any
questions. I think I know enough about each of you to be a
strong supporter. That is all I care to say. We wish you the
best and we will do everything we can to get you through as
soon as we can.
Senator Feinstein. Thanks very much, Senator.
[The prepared statement of Senator Hatch follows:]
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
It is both an honor and a pleasure to be here this morning with six
extremely well-qualified nominees for important positions in the
Federal Judiciary and the department of Commerce. I congratulate all of
you on being selected by President Bush to serve in high office. After
reviewing your distinguished records, I have no doubt that you will do
great service for the citizens of this country upon confirmation.
First, our judicial nominees. Joe Heaton is a native Oklahoman with
an outstanding record of legal experience and public service. After
graduating from the University of Oklahoma College of Law--where he was
Order of the Coif--he maintained a general civil practice with an
emphasis in business and commercial matters. For eight years, Mr.
Heaton served as a member of the Oklahoma House of Representatives,
including several years as Minority Leader. Then in 1996, Mr. Heaton
began serving in his current position as the First Assistant U.S.
Attorney for the Western District of Oklahoma, where he has earned a
good reputation while handing a wide variety of legal matters.
Clay D. Land, our Nominee for the Middle District of Georgia,
brings to the bench extensive legal experience gained from a career
blending private practice and public service. After graduating cum
laude from the University of Georgia law school in 1985, Mr. Land
returned to his home town of Columbus, Georgia, where he has maintained
a general civil practice. In 1993, he served as chairman of the Georgia
Indigent Defense Council, which is charged with the responsibility of
overseeing the funding and implementation of indigent criminal defense
programs in the state. From 1993 to 1994, he served on the Columbus
City Council, where he was a strong advocate for anti-drug programs in
poor neighborhoods, and led the effort to provide transportation for
disadvantaged children to attend Saturday tutorial programs. And from
1995 to 2000, he served as a Georgia state senator, where he was a
member of the Judiciary Committee.
Today's nominee for the District of Arizona is no stranger to the
bench. Justice Frederick J. Martone currently serves on the Supreme
Court of Arizona, Justice Martone was educated further East; he
graduated from Holy Cross College, from the Notre Dame Law School, and
earned and LL.M. from the Harvard Law School.
Danny C. Reeves is our nominee for the federal bench in the Eastern
District of Kentucky. He began his legal career as a law clerk for
then-district Judge Eugene Siler, who now sits on the Sixth Circuit.
Mr. Reeves then joined the Lexington office of Greenebaum, Doll &
McDonald, where he rose to the rank of partner in 1988. Despite his
busy legal carrier, he has served as a director of the Volunteer Center
of the Bluegrass, the Kentucky Museum of Natural History, and the
Bluegrass Youth Hockey Association.
Julie A. Robinson, today's nominee for the District of Kansas,
graduated from the University of Kansas School of Law and then went to
work as a law clerk to the Chief Bankruptcy Judge for the District of
Kansas. She must have liked the clerkship--for the last six years, she
has been sitting as a Bankruptcy Judge on that very same court, and
also currently serves as a Judge on the Tenth Circuit bankruptcy
Appellate Panel. In between, Judge Robinson gained a wealth of both
criminal and civil experience as an Assistant U.S. Attorney in the
District of Kansas.
Now, I'll turn to our Administration nominee. James E. Rogan has
been nominated to serve as Under Secretary of Commerce for Intellectual
Property and Director of the U.S. Patent and Trademark Office at the
Department of Commerce. The position of Undersecretary for Intellectual
Property is an exceptionally important position, being the
Administration's primary intellectual property policy maker, and
overseeing the Patent and Trademark Office in its mission of serving
and protecting American innovators and businesses plays a crucial role
in keeping America on the leading edge of technology and competitive in
the global marketplace. I am pleased that the President has nominated
Mr. Rogan, and that Mr. Rogan has chosen to serve, in these important
roles. In his service in the House of Representatives, he became
familiar with many of the issues he will face in this new role.
The pace of American innovation is continuing to increase.
Consequently, the Patent and Trademark Office faces daunting challenges
as it seeks to improve the quality and efficiency of its work while the
volume of that work continues to climb in an era of increasing
technological complexity. Many of the issues the patent office faces--
retention of good examiners, good databases to support the issuance of
quality patents in complex areas such as biotech patents, business
methods, or other developing areas, harnessing technology for a more
user-friendly and convenient interface through electronic filing--these
and many other issues require resources to be addressed adequately.
The resources that support the Patent and Trademark Office come
entirely from user-fees have been siphoned off to serve other
governmental purposes. This is a practice that I have worked against
together with Chairman Leahy over the years. We agree that it ought to
stop, and the fees collected from American innovators be used to serve
them better so that their work can benefit all of us and our economy.
Mr. Rogan is perhaps uniquely qualified among nominees to this office
to address this issue, to raise the visibility of intellectual property
issues, generally, and to help lead the way into a new ear of
innovation through the protection of the intellectual property rights
of Americans. I look forward to seeing him confirmed soon and working
with him on these important issues.
Again, it is a great pleasure to welcome all of you to the
Committee. I look forward to this hearing, and to working with the
Chair, with Chairman Leahy, and with others to make sure the Committee
and the full Senate hold timely votes on your nominations.
Senator Feinstein. If any of the other judicial candidates
wishes to address the Committee in any way, please do so now.
Otherwise, I am going to dismiss this panel and we will go to
Mr. Rogan.
[No response.]
Senator Feinstein. If not, then thank you very much for
being here. We appreciate it.
As you are leaving, if people can do so reasonably quietly,
I would like to welcome former Congressman James Rogan. Jim is
a fourth generation San Franciscan now nominated to head the
United States Patent and Trademark Office. Congressman Rogan
arrives at this nomination after a very long and diverse
career, from a high school dropout to a member of the House of
Representatives, from stacking tires and scrubbing toilets to
prosecuting the impeachment trial of a President on the floor
of the United States Senate.
He did not come from the easiest of backgrounds, but Jim
Rogan put himself through UC-Berkeley and then UCLA Law School.
Later, he prosecuted gang murders in Los Angeles. He was named
by California Lawyer magazine as one of the State's most
effective prosecutors for his work. He was subsequently
appointed by Governor George Deukmajian to the Glendale
Municipal Court as California's youngest sitting judge, and at
age 35, he was unanimously elected by his colleagues as the
court's presiding judge.
Mr. Rogan then ran for and won a special election to the
California State Assembly, where he was unanimously elected
during his freshman term to serve as the first Republican
majority leader in almost 30 years. In 1996, he won the first
of two consecutive terms to the United States Congress, where
he served on the House Judiciary Committee, including time as a
member of the Intellectual Property Subcommittee of that
Committee, a position that will serve him well in his new
capacity, should he be confirmed.
Many Americans now know Mr. Rogan only as one of the House
prosecutors in the Senate trial, but his years of service to
the people of California show him to be much more than that,
and I warmly welcome him before this Committee today.
Mr. Rogan. Madam Chairman, thank you so much for that
wonderful introduction. Of all those qualities that you have
articulated, the one that you left out is that I never showed
the incredibly poor judgment of running for the U.S. Senate
against you.
[Laughter.]
Mr. Rogan. As you ponder my nomination, I hope you will
keep that in the back of your mind.
[Laughter.]
Mr. Rogan. Thank you. Thank you for that introduction.
Senator Feinstein. Thank you. Senator Hatch?
Senator Hatch. Welcome to the Committee, Mr. Rogan.
Mr. Rogan. Thank you, Senator.
Senator Hatch. We have a great deal of respect for you.
This position happens to be one of the most important positions
in government. Of course, it is basically administering
something that even the Constitution recognizes as that
important.
The intellectual property that you will be supervising is
one of our real balance of trade surpluses and it is important
that we handle it correctly, that we do it right, and that we
set an example for the rest of the world. In many cases, we do
have piracy of intellectual property that really should not
exist in a civilized world. The countries that do that
basically are going to have a difficult time really coming into
this century the way they should.
But I will not go through all of the incredibly important
things about your appointment and your background. We all know
you. We have respect for you. You are a person of integrity, a
person who stands up for what he believes. To me, that is very
important and I particularly appreciate you and your family
willing to make this sacrifice and to do these things to help
you serve in this position.
The Patent and Trademark Office faces daunting challenges
as it seeks to improve the quality and the efficiency of its
work while the volume of that work continues to climb in an era
of increasing technological complexity. Many of the issues the
Patent Office faces--retention of good examiners, good
databases to support the issuance of quality patents in complex
areas, such as biotech patents, business methods, or other
developing areas, and harnessing technology for a more user-
friendly and convenient interface through electronic filing.
These and many other issues require resources in order to
address them properly.
The resources that support the Patent and Trademark Office
come entirely from user fees, but a large portion of those user
fees have been siphoned off to serve other governmental
purposes. Now, this is the practice that I have worked against,
together with Chairman Leahy, over the years. We agreed that it
ought to stop, and that the fees collected from American
innovators ought to be used to serve them better so that their
work can benefit all of us and our economy.
I believe you, Congressman Rogan, are uniquely qualified,
among nominees to this office, to address this issue, to raise
the visibility of the intellectual property issues generally,
which is important, and to help lead the way into a new era of
innovation through the protection of the intellectual property
rights of all Americans.
I look forward to seeing you confirmed soon and I look
forward to working with you on these important issues. So, it
is a great pleasure to have you here. I am very proud of you
and we will do everything we can to assist the Chairman and
others in getting you through the Senate as soon as possible.
Mr. Rogan. Senator, thank you. I had the privilege during
my tenure in Congress to work with you and Senator Leahy and
members of this Committee on that very issue which you
addressed, the diversion of funds. I cannot tell you how the
administration is going to come down on the subject. What I can
tell you is that the administration is committed to ensuring,
one way or another, that the U.S. PTO has the appropriate funds
to do the job, so that as you so rightly said, the examining
board, the examining members would be able to do the job and
help move us into the 21st century.
Senator Hatch. Thank you.
Senator Feinstein. I am going to ask you, if I may, one
question along those lines. The Patent and Trademark Office has
reported that in 2000, patent applications were up 12 percent
over the prior year. Trademark applications were up 27 percent.
The number of issued patents increased by 15 percent, and
issued trademark registrations was up 21 percent. They expect
that the rate of increase will continue, and it is now taking
about 14 months to process a patent application and six months
to process a trademark registration request.
How do you intend to address that situation, which some
have characterized as an impending crisis? I know you will be
new to the job, but I would be very curious if you have any
thoughts on that.
Mr. Rogan. Madam Chairman, I think the first thing that the
next director should do is view it exactly as you just said, an
impending crisis. In fact, the information I have seen from the
Commerce Department and from the Patent and Trademark Office
paints even a more bleaker picture than what you have just
described. I think the average pendency right now is about two-
and-a-half years, and by 2006, they expect that pendency rate
to go to about three-and-a-half years. That makes it very, very
difficult for entrepreneurs, for investors, and for
particularly those that are investing resources in high-tech
patents to basically sit and wait to see if their investment is
going to pay off.
In a large way, we are a victim of our technological
successes, because as we move to more high-tech patents, the
examination process becomes far more complex. I read of one
patent that was sent over to the U.S. PTO with background
materials that filled up 12 disks that would be the equivalent
of six million pages of supporting material.
These are very, very technical issues, and on top of that,
we have run into the problem of losing a very highly trained
examination core to the private sector. Whoever has the
privilege of being confirmed by this body to that position is
going to have to work very hard, first, to see that we have the
resources to hire and to retain qualified examiners and also to
find ways that we can give them more flexibility in reviewing
the materials that they have to go through so that we can turn
out a quality product.
Senator Feinstein. So, of course, your position as a former
House member would put you in a rather unique position to do
the necessary lobbying for the funds you might require for your
staff.
Mr. Rogan. Yes and no, Madam Chairman. I think had I never
served in the House, I would perhaps approach the job with the
illusion that it would be easy to talk to appropriators to give
up their power.
[Laughter.]
Mr. Rogan. That is a double-edged sword.
Senator Feinstein. Thanks very much.
Senator Hatch, do you have any questions for Mr. Rogan?
Senator Hatch. I know Mr. Rogan very, very well, and
frankly, I do not have any questions for him. We have chatted
about these areas and I have every confidence that he is going
to do a great job and we are going to help him.
I appreciate you, Madam Chairman, and your fairness on this
Committee. I think you have been a pillar of decency on the
Judiciary Committee during good times and bad and it has always
meant a lot to me.
Senator Feinstein. Thank you.
Senator Hatch. But I fully and strongly support Mr. Rogan.
I believe he will be one of the greatest heads of this
Department who has ever sat there, and I am counting on him
being there because I take a tremendous interest, as do Senator
Leahy and other members of this Committee, in all the
intellectual property issues because we think that is where an
awful lot of where we are going in this country really is, and
in the world.
Mr. Rogan. Thank you, Senator.
Senator Hatch. It is extremely important that we have good
people there, and I consider you very highly qualified for this
job, one of the best to ever be nominated for it. So I am
grateful to be with you and I am grateful to support you.
Mr. Rogan. One lesson I have learned in politics is quit
while you are ahead, and I do not think I will add anything
else.
Senator Hatch. I think you have shown a number of lessons
here today in some of your comments. I particularly enjoyed
those ones about Senator Feinstein.
[Laughter.]
Mr. Rogan. Senator Hatch, I do not know if you were there
for the initial introduction, but I want to assure everybody
that when I sent my biographical materials over to the
chairwoman's office, it was no accident that I put in that I am
a fourth generation San Franciscan.
[Laughter.]
Senator Hatch. Will you stop at nothing?
[Laughter.]
Senator Feinstein. You are very good on the uptake today.
Senator Hatch. Thank you. We are grateful to have you
serving, grateful for your wife and family, and we will be
there with you.
Mr. Rogan. Thank you, Senator.
Senator Feinstein. Thanks very much, Jim.
Mr. Rogan. Thank you, Madam Chairman.
Senator Feinstein. Much of the best, and thank you, ladies
and gentlemen, for bearing with us during this morning's
hearing. The candidate is excused.
Before I adjourn, we will keep the record open for one
week, until the close of business on November 14, for written
questions. Thank you all. The hearing is adjourned.
[Whereupon, at 11:54 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
QUESTIONS AND ANSWERS
Responses of Joe L. Heaton to questions submitted by Senator Leahy
Question 1: Please state whether you have ever been arrested for,
charged with or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes'', please
provide the relevant dates of arrest, charge, and disposition and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for a response to this question.
Question 2: Throughout your legal career, you have served in both
legislative and executive capacities and at both the state and federal
level--first as a member of the Oklahoma House of Representatives and
now as First Assistant U.S. Attorney in the Western District of
Oklahoma. What perspective have these experiences given you on the
relationship between the federal judiciary and the states? Between the
judicial and executive branches of the federal government?
Answer: These varied experiences have given, me a heightened
appreciation for the separate roles played by the various branches and
levels of government and for the importance of respecting the functions
and prerogatives of each branch. These experiences should help to keep
me mindful of the proper limits of judicial power, including the need
to defer to the policy judgments of the legislative branch so long as
constitutional standards are met. I believe the diffusion of power in
our government, including the separation of powers doctrine and the
federal system, is important to the preservation of our freedoms. I
would be conscious of the need to maintain the appropriate balance
between branches and levels of government, in accordance with the
standards articulated by the higher courts.
Question 3: As you know, the role of legislator and federal judge
are very different. As a state lawmaker, you weigh policy concerns,
your own personal ideology, and even politics in writing bills and
voting on proposed legislation. As a federal judge, you are charged
with a far different task: decide a case oar controversy based on the
facts in front of you and apply the controlling legal authority without
regard to your own personal views.
Answer: I am in complete agreement with this statement.
Question 4: Press reports indicate that in 1990, as a state
legislator, you opposed a bill that would provide a private cause of
action to any individual who had been intimidated or harassed by hate
groups because of his race or their religion. Many of your colleagues
apparently supported the legislation because they felt it would provide
compensation to people who had been injured by such hurtful behavior
and would drive hate groups out of business.
Do you believe that civil causes of action against private citizens
or groups are appropriate tools for enforcing individuals
constitutional and civil rights?
Do you believe that as a district judge you would have any problem
fairly adjudicating claim such as the one contemplated by this
legislation?
Answer: My view is that private rights of action are one of several
tools which might be appropriately employed to provide an enforcement
mechanism for constitutional, civil or other rights. As a policy
matter, whether a private cause of action is the appropriate remedy for
a particular class of rights or in a particular set of circumstances
would depend on any number of factors, including the effectiveness of
criminal enforcement or the existence of some other statutory
enforcement scheme. Once a legislature has made a judgment on these
factors, I am confident I could, if confirmed, fairly adjudicate a
claim based on a statute or legislation like that described in the
question or any other duly enacted legislation. I do not recall the
specific basis for my vote on the bill alluded to, but assume my
objection would have been based on preferring other means of attacking
hate crimes. I had earlier supported legislation imposing criminal
penalties for intimidating or harassing others on the basis of race,
religion and other factors.
Question 5: In 1989, in Texas v. Johnson, 491 U.S. 397 (1989), the
United States Supreme Court held that the First Amendment does not
allow states to criminally prosecute people who burn American flags as
a political protest. The Court said that, ``IMP there is a bedrock
principle underlying the First Amendment, it is that the government may
not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.'' Johnson, 491 U.S. at 414.
Immediately following the ruling, you called the Supreme Court's
decision ``out of whack'' and advocated for a state resolution urging
Congress to propose a constitutional amendment banning flag
desecration. (Source: Ron Jenkins, Lawmakers Ponder Proposed Flag-
Burning Amendment, Tulsa World, July 2,1989, at A2.]
Do you continue to adhere to this characterization of the Supreme
Court's opinion that the majority was ``out of whack?"
Do you believe that flag burning is a form of political expression,
which, no matter how offensive we might find it, is protected by the
Constitution's free speech guarantees?
Would you have any difficulties adhering to the letter and the
spirit of this decision if it provided controlling legal authority in a
case before you?
Answer: In light of the decision in Johnson, the law is clear that
flag burning is a form of political expression protected by the
Constitution's free speech guarantees and I would certainly have no
difficulty in applying that rule and standard in any case coming before
me. My earlier characterization of the Supreme Court decision as a
legislative policy matter would have no bearing on my rulings if
confirmed as a district judge.
I recognize the critical, central role of free speech (including
expressive conduct) in our constitutional scheme and in our society
generally, and would have no difficulty in adhering to the letter and
spirit of the controlling authorities in this area.
Question 6: Also during your tenure in the Oklahoma state
legislature, you advocated for a bill that would require death
sentences to be carried out within 60 days of a court's decision in a
prisoner's last appeal unless a court or the Governor granted a stay.
As you may know, since 1973, 98 people in 22 states have been
released from death row after evidence of their innocence was
discovered. While some of these cases were in the federal habeas
process, many were on appeal in state court. In a recent high profile
case, prisoners were exonerated after journalism undergraduates--not
lawyers or even law students--uncovered exculpatory evidence. In light
of these disturbing statistics, do you continue to support such a
legislative proposal?
What role, if any, do you believe a federal district court judge
plays in balancing a criminal defendant's right to a full and fair
trial, especially in capital cases, and the state's interest in
punishing the convicted in an expeditious manner?
Answer: My recollection is that the referenced bill would have
applied only if direct appeals and collateral review had been
exhausted. It was designed to assure that if arguable grounds for stay
of the judgment existed at that point, they be actively pursued either
by presentation to a court or to the Governor rather than allowing
indefinite delay in execution of the sentence.
Any instance of the wrongful conviction of an individual is
disturbing. That is particularly so in capital cases. Given the obvious
difference between the death penalty and other types of punishment, the
Supreme Court has in various ways required heightened reliability in
the adjudicative process leading to a death sentence. Moreover,
Congress and state legislatures are uniquely qualified to consider
other means by which DNA evidence or other facts for determining a
defendant's guilt or innocence are available during trial and post-
conviction proceedings. In light of governing precedent and statutes, I
believe it is appropriate for me to defer to legislative judgment on
these matters. If confirmed as a nominee to the federal bench, I would
take very seriously the need to assure a full and fair trial through
rigorous application of all applicable constitutional and statutory
procedures.
Question 7: During your career as a state legislator, you were a
strong proponent of right-to-work legislation and supported a number of
legislative initiatives that would make it more difficult for workers
to secure basic protections from their employers.
How will you set aside these views in your capacity as a district
court judge if matters involving federal labor laws or workers' rights
come before you?
Answer: I don't view my legislative record as one of denying basic
protections to workers. However, regardless of how a particular
legislative initiative might be characterized, the fundamental answer
to the question is the same in this area as in others: I recognize that
a judge's job is to put aside personal policy preferences or personal
ideology, to decide the cases on the basis of the facts in the case
before him or her, and to apply the controlling legal authority without
regard to his or her personal views. I am committed to that principle
and will follow it in matters involving federal labor laws or workers
rights, as well as in any other area of the law.
Question 8: While you were serving in the state legislature, you
said that ``Goldwater was my original hero, later supplanted by
Reagan.'' [Source: Jim Meyers, New House GOP Leader a Fast Mover, Tulsa
World, Jan.17,1989, at Al.] Now that you have been nominated to serve
as a federal judge, who do you consider your judicial hero and why?
Answer: I don't know that I have thought of him as a ``hero'' but,
since reading many of his opinions in law school, I have greatly
admired former Supreme Court Justice John M. Harlan as a model of what
a good appellate judge should be. His opinions seemed to me to
consistently reflect excellence in the judicial craft--mastery of the
record, incisive analysis and discussion of the legal issues involved
in the case, and clear explanation of his decision and the basis for
it. His opinions tended to stay focused on the specific issues raised
by the case before the court and avoid dicta. His opinions also
reflected respect for the principle of separation of powers and for the
federal system, as well as the limitations inherent in being a judge
rather than a policymaker.
Question 9: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental area,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: The determination of the outer limits of Congressional
power in various areas has always been difficult and I recognize that
the Supreme Court has struck down several significant acts of Congress
in recent years. In evaluating the constitutionality of any
.legislation which might come before me as a District Judge, I would
start from the presumption that an Act of Congress is a constitutional
exercise of legislative power. In determining whether there was a basis
for overcoming that presumption, I would be bound by and apply the
applicable constitutional tests as set out by the higher appellate
courts.
Question 10: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: My general understanding of applicable precedent is that
Congress has the power to abrogate a state's sovereign immunity where
it unequivocally expresses the intent to do so and where it acts
pursuant to a valid grant of constitutional authority. Kimel v. Florida
Bd of Regents, 528 U.S. 62 at 73 (2000). Section 5 of the Fourteenth
Amendment potentially provides such a grant of power. Kimel at 80.
Congress' power to enforce the Amendment's protections against
discrimination extends to prohibiting a ``broader swath of conduct''
than that proscribed by the Amendment itself. Board of Trustees of
Univ. of Alabama v. Garrett, 531 U.S. 356, at 363 (2001). Whether
particular legislation is a permissible exercise of this power depends
on whether the legislation exhibits ``congruence and proportionality
between the injury to be prevented or remedied and the means adopted to
that end.'' City of Boerne v. Flores, 521 U.S. 507 at 520 (1997).
Garrett and other cases address the question of how the ``congruence
and proportionality'' standard would be applied. Whether an enforcement
scheme involving a private right of action for discrimination could
theoretically meet this standard would have to be evaluated under the
constitutional tests set forth in Garrett and other cases.
Question 11: If Congress provides money to a state on condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
the funds?
Answer: The Supreme Court has held Congress may, in the exercise of
its spending power, giant funds to States on condition that the States
take some action which Congress could not directly require them to
take. South Dakota v. Dole, 483 U.S. 203 (1987). This would appear to
include a condition that the States voluntarily waive their immunity to
suit, although there is some suggestion in the cases that the financial
inducement offered by Congress could conceivably be so coercive as to
undercut the voluntariness of the waiver of immunity. College Savings
Bank v. Florida Prepaid Post secondary Education Expense Board, 527
U.S. 666 (1999); Dole, supra, at 211. The specific condition addressed
in the question would have to, be evaluated in the context of a
specific case raising the issue.
Question 12: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: I am unaware of any such statutes or sections. As noted
previously, I would, if confirmed, apply the presumption of
constitutionality to all acts of Congress.
Question 13: Are there any federal statutes or sections thereof
that go beyond Congress' enumerated powers under the Constitution?
Answer: I am unaware of any such statutes or sections. As noted
previously, I would, if confirmed, apply the presumption of
constitutionality to all acts of Congress.
Responses of Clay D. Land to questions submitted by Senator Leahy
Question 1: Please state whether you, have ever been arrested for,
charged with or convicted of a crime, within twenty years of your
nomination., other than a minor traffic violation, that is reflected in
a record available to the public, If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition anal then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background
investigation. report prepared on. me, I respectfully direct your
attention to that report for a response to this question.
Question 2: In response to a question about ``Judicial activism''
in your questionnaire, you wrote that ``Judges should interpret the law
based upon their discernment of the drafters' intent.'' If confirmed,
as a judge what factors would you consider iii discerning legislative
intent?
Answer: First, one should look at the plain' language of the
statute. If that language is unclear, then a review of other cases
interpreting the provision in question may be helpful. General rules of
statutory construction may also aid in the interpretation of
legislative intent. Finally, legislative history of the provision in
question may aid in the interpretation of the statute.
Question 3: In. ,the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights arid prerogatives of our snore vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted by the Commerce Clause. These cases have
been described as creating a new power for state governments, as
federal authority is being diminished. At the same time, the Court has
issued several decisions, most notably in the environmental arena,
granting states' significant new authority over the use of land anal
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: Judges should exercise restraint understanding their proper
role in our system of government. In deciding the constitutionality of
a statute, judges should approach their inquiry with a presumption of
constitutionality and a genuine respect for the constitutional role
assigned to the other two branches of government. In deciding cases
under the Commeree Oat and under Section 5 of the Fourteenth Amendment
as a federal district court judge, I would be bound to follow the legal
precedent set by the United States Supreme Court and the United States
Circuit Court of Appeals for my circuit.
Question 4: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: If. confirmed, I would be bound by the legal precedents set
by the United States Supreme Cow and the United States Circuit Court of
Appeals for my circuit. It is my understanding that under the current
state of the law, Congress can address the sovereign immunity issue by
offering federal funds in exchange for a waiver. of sovereign immunity
(South Dakota vs. Dole, 483 U.S. 203 (1987)) and/or by enacting
legislation under Section 5 of the Fourteenth Amendment to remedy or
prevent constitutional violations. It is my understanding that the
Supreme Court has stated that for this type legislation under Section 5
of the Fourteenth .Amendment, there needs to be a ``congruence and
proportionality between the injury to be prevented or remedied and the
means adopted to that end.'' (City of Boerne vs. Flores. 521 U.S, 507,
520 (1997)). The Supreme Court has further expanded on the application
of this standard in subsequent cases. See Kimel vs. Florida Bd. of
Regents, 528 U.S. 62 (2000)) and Bd. of Trustees of the Univ. of
Alabama vs. Garrett, 531 U.S. 955 (2001)). If I am confirmed, I would
be required to apply the standard set forth by the Supreme Court to the
individual case before me.
Question 5: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
funds?
Answer: It is my general understanding that Congress nay induce
states to consent to suit by offering them federal funding in exchange
for the state's waiver of immunity. South Dakota vs. Dole. 483 U.S. 203
(1987). However, the Supreme Court has also explained that Congress'
power to place conditions on funding is not unlimited. Id. If
confirmed, I would apply the governing precedent in thus area, as well
as Supreme Court precedent regarding abrogation of state sovereign
immunity cited above in response to question 4. I would also approach
an inquiry as to a statute's constitutionality with the presumption
that Acts of Congress are constitutional.
Question 6: Are there any federal statutes of sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: Not that I am presently aware of If confirmed, I would
approach any inquiry as to the constitutionality of an Act of Congress
with a presumption as to its ,constitutionality.
Question 7: Are there any federal statutes of sections thereof that
go beyond, Congress' enumerated powers under. the Constitution?
Answer: I am presently unaware of any federal statutes or sections
thereof concerning which the Supreme Court has not yet ruled that go
beyond Congress' enumerated powers under the Constitution. The Supreme
Court has nailed in previously decided cases that there are limits on
Congress' Commerce Power. See United States vs. Lopez, 514 U.S. 549
(1995). If confirmed, I would be bound by the precedents established by
the Supreme Court and the Circuit Court of Appeals for my Circuit. When
confronted with a constitutional question, I would also approach the
constitutional inquiry with a presumption as to the constitutionality
of the statute in question.
Responses of Frederick J. Martone to questions submitted by Senator
Leahy
Question 1: Please state whether you have ever been arrested for,
charged with or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes'' please
provide the-'relevant date of arrest, charge, and disposition and their
describe the particulars of the offense.
I am informed that background investigation reports on nominees
prepared by the Federal Bureau of Investigation (FBI) routinely address
the type of information called for by this question. Without waiving
the confidentiality of the FBI investigation report prepared background
on me, I respectfully direct your attentions to that report, for a
response to this question.
Question 2: You have extensive experience on the bench in Arizona,
and I believe your, record on the state Superior and Supreme Courts is
commendable. What are the most important lessons you learned in these
positions that are relevant to service on the federal district court?
Answer: A judge must be patient anal consider the views of others,
but also must be decisive and have the moral courage to make difficult
decisions. A judge should be mindful that even though we are doing
serious work, we should not take ourselves too seriously. A judge, must
be diligent but flexible. With experience; one can grow in wisdom. A
judge should be prompt and not fear reversal. In our aspiration for
justice, fairness and common sense count for much.
Question 3: As you may know, I support enacting legislation to
reform the death penalty as it applied in this country. Since 1973, 98
people in 22 states have beer released from death row with evidence of
their innocence. Many of these cases were on appeal in state court,
others were in the federal habeas process. Some prisoners were
exonerated after journalism undergraduaties--not lawyers or even law
students--uncovered exculpatory evidence.
Answer: In 1995 you gave a speech at a symposium sponsored by the
Goldwater Institute and the Federalist Society. In it, you discussed
the slow pace of capital litigation from state courts to federal habeas
review. You, said, ``it's scandalous for (the Arizona Supreme Court) to
be reviewing cases that are eighteen and twenty years old.'' You
continued, ``it raises the question that if we can't do it any better
than that, consistent with fundamental fairness, then maybe we
shouldn't be doing it at all.''
Please explain what you meant in the above-quoted statement.
By the quoted sentences, I meant to suggest that back in 1995 our
court was considering cases in which the time elapsed between the
offense and the carrying out of the sentence (18-20 years) was nearly a
generation. I was suggesting that we needed to examine ways in which we
could reduce unnecessary delay without compromising fundamental
fairness or the rights of the defendant. In 1996, Congress enacted the
Antiterroism and Effective Death Penalty Act (AEDPA), P.L. 104-132, to
address these issues. It further adjustments are necessary, Congress is
especially equipped to make additional amendments to the federal habeas
provisions. I would be bound by any such enactments and the decisions
of the Supreme Court construing them.
Question 4: What role, if any, do you believe a federal district
court judge plays in balancing a criminal defendant's right to a full
and fair trial--especially in capital cases--against the state's
interest in punishing the convicted in an expeditious manner?
Answer: An effective trial judge can properly balance the interests
of both sides to a capital case. The trial judge has an obligation to
ensure that the defendant has a full and fair trial and sufficient time
and resources to mount an appropriate defense at both the guilt and
penalty phase of, a capital case. If the government is going to seek
the death penalty, then it must ensure that the system has the proper
resources, including competent; defense counsel, investigators, and
expert witnesses, to ensure a full and fair proceeding. The trial court
can also be sensitive to the needs of victims of crime and treat them
with dignity and respect. Legitimate delays in the processing of a case
should be explained to them so they will understand that the case is
proceeding in a fair way.
Question 5: In 1995, you observed that perhaps the time had come to
abandon diversity jurisdiction in the U.S. District Courts. You quoted
others as calling diversity jurisdiction ``a federal social program
that subsidizes otherwise well-financed non-federal litigation.'' You
said that state courts would not be greatly burdened by absorbing the
litigation of diversity cases then in the U.S. District Courts. Is this
an opinion that you still hold? Would you elaborate on this view?
Answer: Federal diversity jurisdiction had its origin in the
understanding that at one time in America it was thought that state
courts might have. difficulty in being fair to out-of-state litigants.
While that may have been true at one time in America, it does not
comport with my own experience as a lawyer or judge in Arizona. As a
lawyer, I selected a federal forum, not because of fear of local
prejudice, but for other tactical reasons. As a judge, I have never
seen or had a case in which anyone ever suggested unfairness as a
result of the state residency of a litigant. Of course, I acknowledge
the existence of diversity jurisdiction and its constitutional basis,
and would protect and respect its exercise as an Article III judge.
Question 6: In the past few years, the Supreme court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have bean described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions most notably in the environmental arena,
granting states' significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: All legislation is presumed) to be constitutional. The
governing precedents in this area include City of Boerne v. P.F.
Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997) and United States v.
Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). Under Boerne, Congress has
the power to enforce the provisions of the Fourteenth Amendment, where
there is congruence and proportionality between the injury to be
prevented and the means adopted to that end. Under Lopez, Congress has
the power to regulate the use of the channels of interstate commerce,
the instrumentalities of interstate commerce persons or things in
interstate commerce, and activities having a substantial effect on
interstate commerce. I would be bound to follow precedent established
by the Supreme Court.
Question 7: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: Board of Trustees of the University of Alabama v.
Garrett,----U.S.----, 121 S. Ct. 955 (2001), Kimel v. Floresda Board of
Recents, 528 U.S. 62, 120 S. Ct. 631 (2000), and City of Bourne v.
Flores, 521 U.S. 501-7, 117 S. Ct. 2157 (1997) address these issues and
better de-fine the power of Congress. While Congress is the final
authority on public policy, in order to authorize actions for money
damages against a state, consistent with the Eleventh. Amendment and
section 5 of the Fourteenth Amendment, there must bee pattern of
discrimination which violates the Fourteenth Amendment and the remedy;
imposed must be congruent and proportional.
Question 8: If congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is missing
such funds?
Answer: Under South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793
(1987) , Congress may condition the receipt of funds on the adoption of
legislation under Congress' spending power. The exercise of the
spending power most be in pursuit of the general welfare. Deference
should be given to Congress. The conditions must be stated
unambiguously so a state may know the consequences of its choice and
must be related to a federal interest. Finally, there must be no other
provision of the Constitution that independently bars a conditional
grant.
Question 9: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: I am unaware of any. All legislation is presumed to be
constitutional.
Question 10: Are there any federal statutes or sections thereof
that go beyond Congress' enumerated powers under the Constitution?
Answer: I am unaware of any. All legislation is presumed to be
constitutional.
Responses of Danny C. Reeves to questions submitted by Senator Leahy
Question 1: Please state whether you have ever been arrested for,
charged with or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected is
a record available to the public, If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports an
nominees prepared by the Federal Bureau of 'Investigation (FBI)
routinely address the type of information called for by the question-
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for a response to this question.
Question 2: You represented the Kentucky High School Athletic
Association in a Title IX case that went on for a number of years,
Horner v. Kentucky High School Athletic Association (``KHSAA''). When
this case went before the Sixth Circuit in, 1994 (Hornet I), your brief
contained a number of arguments, including the following: (1) You
argued that KHSAA was not subject to Title XX, even though the
association performed the statutory duties of a recipient of federal
funds (the management of into interscholastic athletics) pursuant to
state law. (1) You argued that only programs that directly received
federal funds are covered by Title IX, every though Congress had passed
the Civil Rights Restoration, Act of 1987 with the clear intent to
ensure that Title IX (and the other analogous civil rights statutes),
would be interpreted broadly. The Sixth Circuit rejected your arguments
and found that KHSAA was covered by Title IX. Your argument that the
specific program or activity must receive federal financial assistance
appears to ignore that in passing the Civil Rights Restoration Act of
1987, Congress clearly stated that the ``purpose of the Civil Rights
Restoration Act of 1987 is to reaffirm the pre-Grove City College
judicial and executive branch interpretations and enforcement practices
which provided for broad coverage of the anti-discrimination provisions
of [the] civil rights statutes.'' S.Rep. No. 100-64, at 2 (1987).
Do you agree that in passing the Civil Rights Restoration Act of
1987, Congress clearly expressed its intent to overturn the program-
specific reading of the Grave City case, even though you appear to have
asserted this program-specific interpretation in your brief?
Answer: Arguments made as an advocate in this and other matters do
not necessarily reflect my personal feelings or opinions, If confirmed,
I agree to follow the doctrine of stare decisis and faithfully apply
all applicable precedents to the facts presented in all cases
regardless of Whatever personal feelings or opinions I might have.
Review of relevant authorities indicates that Congress intended to
expand the scope of Title IX beyond the holding of Grove City College
v. Bell, 465 U.S. 555 (1984) through the Civil Rights Restoration Act
of 1957. However, I do not believe that the arguments made in Horner
are inconsistent with Congressional intent. Questions remained after
1987 concerning the extent of Title IX expansion as it related to
entities such as the Kentucky High School Athletic Association (KHSAA),
which do not directly receive federal funds. For example, four years
after passage of the 1987 amendments, the court in Kleczek v. Rhode
Island Interscholastic League, 768 F.Supp, 951 (D.R.I. 1991), concluded
that the provisions of the statute did not extend beyond the entity
actually receiving the federal funds. In Horner the court recognized
that no program or activity of the KHSAA received federal funding.
Further, no evidence was presented that any member of the KHSAA used
federal funds to pay membership dues. Likewise, as the Sixth Circuit
explained, the party delegating authority to the KHSAA (the Kentucky
State Board of Elementary and Secondary Education) also did not
directly receive federal funds. Horner 43 F.3d 265, 272 (6th
Cir. 1994). Therefore, the question in did not raise the same question
that had been presented earlier in Horner. Instead, the issue presented
involved separate entities. Review of relevant authorities decided
before Grove City also supported the arguments made on behalf of the
KHSAA in Horner. See Yellow Spring Exempted Village School Dist. Bd. of
Educ. v. Ohio High School Athletic Ass'n, 647 F.2d 651 (6th
Cir. 1981).
Question a: Do you agree, as the Sixth Circuit in Homer ruled, that
Title IX properly reaches entities such as KHSAA, that perform the
duties of a recipient of federal funds?
Answer: For the reasons outlined above, it would be incorrect to
characterize the KHSAA as performing the duties of a recipient of
federal funds inasmuch as the Sixth Circuit hold that the Kentucky
State Board of Education (as contrasted with the Department of
Education) was not a federal funds recipient. However, I understand and
appreciate the basis of the Sixth Circuit's ruling in Hornet concerning
direct versus indirect recipients of federal funds. I would follower
and other relevant decisions if my nomination Is confirmed.
Question b: Additionally, do you agree, as the Sixth Circuit
indicated, that Congress has made it clear that the scope of Title IX's
equal education opportunity obligations go to ``the furthest reaches of
an institution's programs? ''
Answer: As noted above, I understand and appreciate the basis of
the Sixth Circuit's ruling and would follow it in any applicable cases
that would come before me if my nomination is confirmed.
Question 3: In Horner II, you argued, in part, that the appellants
disparate treatment claim should fail because they ``failed to offer
any evidence of gender-based discriminatory animus or conduct on the
part of KHSAA.''
Do you believe that animus is part of the required showing in a
disparate treatment cast, despite the Supreme Court's decision in UAW
v. Johnson Controls holding that a sex-based classification policy
constituted intentional discrimination regardless of motivation?
Answer: As an initial matter, the issues presented in Horner II are
distinguishable from UAW v. Johnson Controls. Horner II involved an
implied cause of action for monetary damages under Title IX, a statute
enacted under the Spending Clause. For the reasons outlined and
explained in Franklin v. Gwinnett County Public Schools 503U.S. 58
(1992) and Pennhurst School and Hospital v. Halderman 451 U.S.1 (1981)
monetary damages are not appropriate for unintentional violations of
the statute. Based upon these authorities, evidence of intentional
discrimination is necessary in order to seek recovery of monetary
damages for an alleged violation of Title IX is the athletic context.
Conversely, the plaintiff asserted that monetary damages could be
recovered absent such proof of intentional discrimination. The Sixth
Circuit agreed with the KHSAA's position. In relevant part, the court
held that the case was the ``Title TX equivalent'' of Guardians Assn.
v. Civil Serv. Conn'n of New York City, 463 U.9. 582 (1983). While
holding that the plaintiffs had not provided any evidence of
intentional discrimination (applying either a discriminatory animus or
deliberate indifference standard), the court also held that the
plaintiffs had failed to establish the elements of a Title IX claim.
On the other hand, International Union UAW v. Johnson Controls, 499
U.S. 187 (1991) involved a challenge under Title VII to an employer's
policy of barring fertile women from jobs involving exposure to lead
exceeding OSHA standards. Unlike Title IX, Title VII applies to
employers without regard to federal funding and was not enacted under
the Spending Clause. Therefore, Title VII does not have the attendant
notice requirement for Title IX claims requiring a showing of intent to
discriminate. Title VII aims to compensate injured parties through
monetary damages not to control federal funding of an activity. See
(Gebser v. Lago Vista Independent School District, 524 U.S. 274, 286-
290 (1998).
Again, if confirmed, I will follow the doctrine of stare decisis
and apply all governing Supreme Court and Sixth Circuit precedent with
respect to all such issues.
Question: In the athletics context, do you agree that intent can be
established as a matter of law by the facial sex-based classification
of separate men's and women's programs?
Answer: In considering whether discriminatory intent can be
established as a matter of law solely based on having separate athletic
programs for men and women a court would be required to consider that
``a recipient may operate or sponsor separate teams for members of each
sex where selection for such teams is based upon competitive skill or
the activity involved a contact sport.'' 45 CFR Sec. 86.41. See also
Yellow Springs Exempted Village School District Board of Education v.
Ohio High School Athletic Ass'n., 647 F.2d 651, 657 (6th
Cir. 1981) (``Separate teams may to a large extent aid in this [gender]
equalization not only because they provide more opportunities but also
because they make monitoring of the opportunities provided easier.'')
If confirmed, I will follow all governing Supreme Court and Sixth
Circuit precedent with respect to such issues.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The supreme court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental arena,
granting states' significant now authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: As an initial matter, I understand and appreciate the
limitations imposed by the United States Constitution upon all branches
of the Federal government. The powers delegated by the Constitution, to
the federal government are limited and defined, whereas those which
remain with the states are numerous and undefined. The framers intended
that this balance would ``reduce the risk of tyranny and abuse from
either front.'' Gregory v. Ashcroft, 501 U.S. 452 (1991). Beginning in
Gibbons v. Odgen, 9 Wheat 1 (1824), the Court has attempted to define
the nature, scope and extent of Congress' commerce power. While
subsequent decisions may be viewed as either expanding or limiting
Congressional power and authority in this area, all cases recognized
that the effect upon interstate commerce should not be so remote or
indirect that the distinction between what is national and what is
local is rendered a nullity. NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1, 37 (1937). I am also familiar with recent cases which have
imposed certain limits on legislative power in areas traditionally
reserved to the states. See, e.g., United States v. Lopez, 514 U.S. 549
(1995), City of Boerne v. Flores 521 U.S. 507 (1997) and United States
v. Morrison, 529 U.S. 598 (2000).
As a general rule, Federal statutes come to the courts with a
presumption of constitutionality, absent a binding judicial
determination that the statute is unconstitutional. If confirmed, I
would be mindful of this presumption. In addition, I would be bound by
the doctrine of stare decisis.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: To abrogate the States' Eleventh Amendment immunity,
Congress must unequivocally intend to do so and must act pursuant to a
valid grant of constitutional authority such as Section 5 of the
Fourteenth Amendment. Further, legislation enacted under Section 5
which exceeds the scope of the guarantees enumerated in Section 1 of
the Fourteenth Amendment must exhibit congruence and proportionality
between the injury to be prevented and the means adopted to that end.
Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct.
955 (2001); Kimel v. Florida Bd, of Regents, 120 S.Ct. 631 (2000).
Again, Federal statutes come to the courts with a presumption of
constitutionality, absent a binding judicial determination that the
statute is unconstitutional. If confirmed, I would be mindful of this
presumption.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
such funds?
Answer: Whether Congress may abrogate state sovereign immunity in
the circumstances described will depend upon the application of
principles developed in related Supreme Court cases to a specific set
of facts. If confirmed, I will faithfully apply governing precedents
while respecting the presumption of constitutionality applicable to all
acts of Congress. See South Dakota v. Dole, 483 U.S. 203 (1987);
College Saving Bank v. Florida Prepaid Postsecondary Education Expense
Board, 527 U.S. 666; 689 (1999).
Question 7: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: I am unaware of any specific federal statutes or sections
of statutes that are unconstitutional. If confirmed, I will faithfully
apply governing precedents while respecting the presumption of
constitutionality applicable to all acts of Congress.
Question 8: Are there any federal statutes or sections thereof that
go beyond Congress' enumerated powers under the Constitution?
Answer: I am aware of cases decided by the United States Supreme
Court holding that particular federal statutes or sections exceed
Congress' enumerated powers. Several of those cases are cited above. If
confirmed, I will faithfully apply governing precedents while
respecting the presumption of constitutionality applicable to all acts
of Congress.
Responses of Julie A. Robinson to questions submitted by Chairman Leahy
Question 1: Please state whether you have ever been arrested for,
charged with or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' Please
provide the relevant dates of arrest, charge and. disposition and then
describe the particulars of the offense.
Answer: I am informed that background investigative reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for a response to this question.
Question 2: In February of this year, I offered an amendment to the
Bankruptcy Reform Act to increase the number of bankruptcy judgeships.
You might be interested to know that the amendment was accepted and is
part of the bill that passed the Senate and is now in conference with
the House.
In addition to increasing the number of bankruptcy judgeships, are
there other reforms that you believe we should consider to help the
federal courts better handle the heavy docket of bankruptcy cases?
Answer: As bankruptcy case filings continue to escalate each year,
additional bankruptcy judgeships will significantly foster the
efficient handling and adjudication of bankruptcy cases. Because both
the Senate and House versions of the Bankruptcy Reform Act include a
number of changes that will substantially affect the administration of
bankruptcy cases, it is important that the final legislation include a
means of evaluating the effect of these changes.
Question 3: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably, several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state government,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental arena,
granting states' significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they, appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: In a series of cases, the Supreme Court has interpreted the
Commerce Clause of Article I, as well as the scope of sovereign
immunity under the Eleventh Amendment, as placing contain limitations
on federal legislation as applied to states. In Bd. of Trustees of the
Univ. of Alabama v. Garrett, 531 U.S. 955 (2001) and City of Boerne v.
Flores, 521 U.S. 507 (1997), the Supreme Court has addressed the scope
of Congress's power to abrogate sovereign immunity under Section 5 of
the Fourteenth Amendment. If confirmed as a United States District
Judge, I would follow the precedent of the United States Supreme Court
in these cases, also respecting the strong presumption of
constitutionality applicable to all Acts of Congress.
Question 4: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: In City of Boerne v. Flores, 521 U.S. 507 (1997), the
Supreme Court ruled that Congress may use its power under Section 5 of
the Fourteenth Amendment to abrogate sovereign immunity from
legislation that remedies or prevents constitutional violations; but
there must be a "congruence and proportionality between the injury to
be prevented or remedied card the means adopted to that end." The Court
has not ruled per se, that Section 5 of the Fourteenth Amendment may
not be the basis for legislation creating a private cause of action
against states for discrimination analyzed under rational basis
scrutiny. While the cases that have come before the Court to date have
implicated classes requiring strict or heightened Scrutiny, the Court
presumably will have occasion to consider the application of the
congruence and proportionality test to other legislation.
Question 5: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
such funds?
Answer: The Supreme Court has ruled, with respect to the Tenth
Amendment, that while Congress may not enact legislation that
appropriates or controls the functions of state government, it may gain
a state's cooperation in accepting duties imposed by federal law by
providing the incentive of federal funding. This-question raises an
interesting issue, Congress's ability to enforce such an agreement with
a state who later violates the agreement. If confirmed, I would follow
the precedents of the Supreme Court in this, as in all areas.
Question 6: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: It is possible that a state may claim sovereign immunity
from one of the hundreds of other federal statutes, as to which the
Supreme Court has not yet ruled; but it is only the in context of an
actual case or controversy, brought by affected parties with standing,
when the matter is ripe for decision, that judges should endeavor to
determine the constitutionality of a statute. Statutes should generally
be presumed constitutional, in recognition of the separation of powers
and the judiciary's role of interpreting and applying legislation.
Question 7: Are there any federal statutes or sections thereof that
go beyond Congress' enumerated powers under the Constitution?
Answer: Judges must start with the canon that statutes represent
the will of the people as expressed through their elected
representatives; and as such, statutes have a presumption of
constitutionality. If confirmed, I will apply this principle of
construction to any challenge to a federal statute on this basis.
Responses of James E. Rogan to questions submitted by Senator Leahy
Question 1: Please state whether you have ever been arrested for,
charged with or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition and then
describe the particulars of the offense.
Answer: No.
Question 2: The development and commercialization of useful
intellectual property has been one of the most critical hallmarks of
American leadership in the global economy. The PTO has reported that in
2000, patent applications were up 12% over the previous year, and
trademark applications were up 27%. The number of issued patents
increased by 15%, and issued trademark registrations was up 21%. The
PTO expects that rate of increase to continue, but at the same time, it
is taking about fourteen months to process a patent application and six
months to process a trademark registration request. How do you intend
to address this situation, which some have characterized as an
impending crisis, of ever more applications and ever longer delays in
addressing them?
Answer: My understanding is that, in fact, the filing of trademark
applications has decreased. I would work within the Administration and
with Congress to ensure adequate funding for the USPTO to support its
investments in human and technological resources.
The USPTO is fully fee-funded by its customers. It does not receive
a nickel of taxpayer money. USPTO, however, remains subject to the
appropriations process, and not all fees collected are appropriated
back to the USPTO. This adversely affects the agency's ability to meet
increased workload demands. The most obvious effect of the current,
unpredictable funding scheme is the agency's inability to process the
work it has received or to make critical investments in staff and
automated systems to improve services or manage future workloads. Since
the USPTO does not generate a surplus, examination time is escalating,
service to fee-paying customers is suffering, and automation programs
designed to streamline operations are being postponed.
During my congressional service I was pleased to work with you, Mr.
Chairman, in fighting to end the diversion of funds. I strongly support
adequate funding for the USPTO, and I am troubled by the diversion of
USPTO fees to other government programs. People who pay fees for a
particular USPTO service should not have a portion of that transferred
to unrelated programs.
USPTO customers deserve a quality product delivered in the shortest
possible time. I recognize that the USPTO, like any other government
agency, must be held accountable. USPTO needs to effectively
communicate just what resources it needs and how it will use them to
provide the very best service to its customers.
Question 3: What are your views about whether the PTO has any role
to play in assisting the Federal Trade Commission in its investigations
of possible abuses of patent protection, to the detriment of consumers
and the competitive process, by pharmaceutical companies?
Answer: Consistent with the provisions of the American Inventors
Protection Act, I would advice any Federal department, as necessary, on
matters of intellectual property policy in the United States and
intellectual property protection in other countries. I would look
forward to working with all agencies within the Administration on any
issues involving intellectual property.
Question 4: While in the House of Representatives, you served on
the Court and Intellectual Property Subcommittee of the House Judiciary
Committee. What did you learn about the PTO from that experience, and
how do you intend to bring that experience to bear as Director of the
PTO?
Answer: I learned that the PTO is an organization consisting of
dedicated individuals committed to delivering quality products and
services to its customers. The PTO is the lynch pin for the best
intellectual property system in the world. I would work within the
Administration, with Congress, and with PTO's customers to maintain and
improve it to make it even more efficient and cost-effective.
Question 5: As intellectual property issues are increasingly at the
forefront of global marketplace debates, what is your view about
whether the United States should join the rest of the world's nations
in adopting a system for awarding priority of invention based strictly
on application on filing dates, rather than on a determination through
lengthy interference proceedings about who is the first inventor?
Answer: The merits of a first-to-file system versus our current
first-to-invent system have been debated for many years. I would
hesitate to endorse any change in our patent laws without a thorough
exchange of views and discussions within the Administration and with
Congress and representatives of the patent community. I would always be
willing to consider adoption of suggested best practices that could
serve to improve the quality of our intellectual property system.
Question 6: How do you intend to attract talented and dedicated
individuals to serve as patent examiners, especially in the computer
software, biotechnology, and other high technology areas, particularly
when people with the relevant skills are likely to be highly sought
after in the private sector?
Answer: I would build on the many employee-friendly initiatives
currently underway at PTO, including pay incentives, recruitment
bonuses, flexible work schedules, tuition reimbursement and a
telecommuting pilot program.
Question 7: There have been some worrisome rumors that examiners
are rewarded or compensated based on how many applications they grant,
rather than on the actual quality of those applications. Is that the
case, and if it is, how do you intend to address the issue?
Answer: My understanding is that the PTO's current evaluation
system includes quality considerations. I would work to ensure that an
examiner's performance rating and related compensation continue to be
based on standards that focus on qualitative as well as quantitative
factors.
Question 8: During the recent anthrax crisis here on the Hill,
Senator Schumer had suggested that the federal government should over-
ride Bayer's patent rights in Cipro and pay a number of other
manufacturers to start producing that antibiotic. What is your view
about whether and when such actions--subsuming intellectual property
rights in the name of the public interest--would be appropriate?
Answer: I believe there is sufficient flexibility under our laws,
international agreements, and alternative medical supplies to deal with
any current emergency. Any future contemplated action should be
thoroughly deliberated and should strike a balance that promotes
distribution of life-saving drugs while maintaining incentives to
innovate, develop and commercialize those drugs.
Question 9: While trademarks and patent are dealt with at the PTO,
copyrights are another tremendously important variety of intellectual
property, especially as we move to an ever more global economy. What is
your view of the role of the Copyright Office in international and
domestic copyright policy?
Answer: The USPTO has, within the Executive Branch, the lead
responsibility for policy formulation in all areas of intellectual
policy patents, copyrights and trademarks. In that capacity, I would
ensure that the PTO maintains close contact with the Copyright Office
of the Library of Congress to make certain that these two entities with
responsibility for copyright policy formulation work together to the
greatest extent possible. In discharging our executive responsibility
for the conduct of international policy formulation, we would consult
regularly with the Copyright Office to ensure their participation.
Some three months ago I met informally with the Registrar of
Copyrights to personally assure her that if I am confirmed I will look
forward to working with her as part of a team.
Question 10: Business method patents have been the topic of
considerable press in recent months, as fewer patents are sought for
``widgets'' and more are sought for business methods, particularly in
the arena of electronic commerce. Last year, the PTO initiated some
efforts to enhance the quality of its review of these applications, and
sought to involve the e-commerce and other high tech communities in
that effort. Do you believe this effort has been successful? More
generally, what is your view on such patents, and how they should be
viewed and handled within the existing patent system?
Answer: My understanding is that the PTO is pleased with the
results so far of its Business Methods Patent Initiative, and that
feedback from industry has been positive as well. I believe we should
be very careful before we carve out any area of technology for special
treatment under patent law. Patent law is generally technology neutral
and has served our nation quite well over the past two hundred years.
The statutory standard for patentability requires the invention be
new, useful and nonobvious. I would expect any business methods patents
that issue to meet that standard, rather than merely reducing to
software that which has been anticipated or used previously. If some
special attention is necessary, it would be my hope that it could be
handled administratively.
SUBMISSIONS FOR THE RECORD
Statement of Hon. Max Cleland, a U.S. Senator from the State of Georgia
Thank you, Madam chairwoman for giving me the opportunity to
introduce Clay Land to this Committee during his confirmation hearing.
It is my pleasure to recommend him for the position of United
States District Court Judge for the Middle District of Georgia.
Mr. Land has had over 16 years of experience as a litigator and has
earned the respect of his colleagues in the legal and political
communities and is, therefore, well qualified to serve as District
Court Judge. Clay graduated magna cum laude from the University of
Georgia and, subsequently, attended the University of Georgia School of
Law where he served on the Law Review and was inducted into the Order
of the Coif.
Following graduation from law school, Mr. Land returned to his home
town of Columbus where he practices as a civil litigator, first, with
the firm of Hatcher, Stubbs, Land, Hollis & Rothschild and, then, with
the firm he co-founded, Buchanan & Land. At the age of 32, Mr. Land
succeeded his father as a member of the Columbus Consolidated City
Council. After serving a brief time on the City Council, Mr. Land was
elected to the Georgia State Senate. Mr. Land served as a State Senator
for three terms, but retired after the 2000 session in order to spend
more time with his young family.
As a State Senator, Mr. Land served on the Judiciary Committee and
was Chairman of the Study Committee on Civil Justice Reform. In 1990
and 1991, he served as the co-Chairman of the Columbus Pro Bono Project
Committee and in 1993 was chairman of the Indigent Defense Council. Mr.
Land is currently on the Advisory Board of the Columbus Bank & Trust
Company and on the Board of Directors of Land, Inc. of Columbus, of the
Springer Opera House, Inc., and of Twin Cedars Youth Services, Inc.
Clay Land has proven himself to be an excellent attorney and public
servant to the state of Georgia. I believe that Mr. Land would make a
solid District Court Judge for the Middle District of Georgia, and, as
such, I have given him my full support. I hope that he will be approved
by the Committee and confirmed by the full Senate as soon as possible.
Thank you, Madam Chairwoman.
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I want to thank Senator Feinstein for chairing this important
hearing. In addition to hearing from James Rogan, the nominee to head
the Patent and Trademark Office and serve as Under Secretary of
Commerce for Intellectual Property, we will hear from five judicial
nominees.
I had a productive meeting with Mr. Rogan a few weeks ago and have
spoken with Secretary Evans about this nomination. Senator Feinstein
and I both know the importance of intellectual property to our economy
and look forward to working with the new Under Secretary in the days
and months ahead.
Since July 10, 2001, the Senate has confirmed 16 judges, including
four to the Courts of Appeals. We have already confirmed more District
Court judges this year than were confirmed in the entire first year of
the first Bush Administration in 1989 and more Court of Appeals judges
than were confirmed in the first year of the Clinton Administration in
1993.
Within two days of the terrible events of September 11, I chaired a
confirmation hearing for the two judicial nominees who drove to
Washington while interstate air travel was still disrupted. Then on
October 4, 2001 we held another confirmation hearing for five judicial
nominees, which included a nominee from Nebraska who was unable to
attend the earlier hearing because of the disruption in air travel.
On October 18, in spite of the closure of Senate office buildings
in the wake of the receipt of a letter containing anthrax spores and
Senate staff and employees were testing positive for anthrax exposure,
the Committee proceeded under extraordinary circumstances in the United
States Capitol to hold a hearing for five more judicial nominees. The
building housing the Judiciary Committee hearing room was closed, as
were the buildings housing the offices of all the Senators on the
Committee. Despite these disruptions, we stayed on course.
Two weeks ago, while the Senate Republicans were shutting down the
Senate with a filibuster preventing action on the bill that funds our
nation's foreign policy initiatives and provides funds to help build
the international coalition against terrorism, the Judiciary Committee
nonetheless proceeded with yet another hearing for four more judicial
nominees on October 25, our third hearing involving judicial nominees
in October.
Today we convene the fifth hearing for judicial nominees within
eight extraordinary weeks--weeks not only interrupted by holidays, but
by the aftermath of the terrorist attacks of September 11, the receipt
of anthrax in the Senate, and the closure of Senate office buildings.
In addition, during the same time we devoted our attention and efforts
to expedited consideration of anti-terrorism legislation. Far from
taking a ``time out'' as some have suggested, this Committee has been
in overdrive since July and we have only redoubled our efforts since
September 11.
We could not make this progress without the commitment and
dedication of Senators like the Senator fromCalifornia, who volunteered
to chair this hearing, and the Senators from North Carolina, New York
and the Senior Senator from Wisconsin, who each chaired a hearing
during this difficult time. I thank them and commend them for their
work.
Statement of Hon. Zell Miller, a U.S. Senator from the State of Georgia
Thank you, Madam Chairman, for allowing me to say a few words in
support of the nomination of my fellow Georgian--Ashley Royal. As Sen.
Cleland has already stated, Mr. Royal is well qualified to be a United
States District Judge for the Middle District of Georgia. It is my
pleasure to recommend him to the committee today.
Senator Cleland has outlined some of the details of Mr. Royal's
distinguished career. I would like to focus on Mr. Royal's experience,
which I believe shows him to be uniquely qualified public defender. His
experience in private practice includes work on a wide array of civil
matters including insurance defense, asbestos litigation, employment
discrimination, and Section 1983 cases. Further, Mr. Royal's extensive
experience trying cases in state and federal courts dates all the way
back to his third year of law school. Mr. Royal also has significant
experience in mediating cases and has taught at the University of
Georgia Law School. All of this work history will serve him well on the
Federal bench.
In short, Madam Chairman, I join Senator Cleland in giving Ashley
Royal my full support. Throughout his career, he has shown himself to
be a committed public servant. He is a smart, honest, and able
attorney. He will be an exceptional judge. I hope that the Committee
will approve his nomination and he will be confirmed by the full Senate
as soon as possible.
Thank you, Madam Chairman.
Senate Republican
High Tech Task Force
October 31, 2001
The Hon. Patrick J. Leahy
Chairman, Senate Committee on the Judiciary
224 Dirksen Building
Washington, D.C. 20510
Dear Mr. Chairman:
As members of the Senate Republican High Tech Task Force
(``HTTF''), we respectfully urge you to schedule prompt Committee
consideration of the nomination of James E. Rogan to be Under Secretary
of Commerce for Intellectual Property and Director of the United States
Patent and Trademark Office (``PTO''), whom the President nominated on
May 24. We know of your substantial efforts to modernize the U.S.
patent system and bolster our intellectual property laws, and know that
you share our desire to have an effective and dynamic leader at the
helm of the PTO. We believe that Mr. Rogan is exactly that type of
leader.
When the HTTF released its Policy Agenda earlier this year, the
issue of PTO funding was a top priority: ``The Task Force believes that
the explosion of technology patents has made it more necessary than
ever to ensure that the PTO has adequate fund through its own fee
mechanisms, rather than siphoning off these fees for general government
use.'' Also in April we wrote the Appropriations Committee requesting
that no PTO funds be diverted to general revenue use.
The Senate version of the Commerce, Justice, State and the
Judiciary Appropriations bill predicates increased funding for the PTO
on its ability to produce a long-term strategic plan by January 15,
2002. Having Jim Rogan promptly confirmed as PTO Director and able to
contribute to such a plan would be a major step forward for the PTO in
its quest for full use of its collected fees.
Mr. Rogan offers unique experience with intellectual property
issues, having served on the House Judiciary Committee's Courts and
Intellectual Property subcommittee. His service was marked be effective
work on technology and intellectual property issues which should serve
him well as PTO Director in addressing cutting edge issues such as
biotechnology and business method patents.
Earlier this month, a coalition of 25 leading intellectual property
and technology associations wrote you in support of the Rogan
nomination. They commented that: ``Prompt action on Mr. Rogan's
nomination will help ensure that the PTO has the tools necessary to
produce quality patents and trademark registrations on a timely
basis.''
We agree and respectfully ask that you schedule a hearing for Mr.
Rogan as the first step towards his confirmation this year.
Sincerely,
Senator George Allen
Chairman, Senate Republican
High Tech Task Force
Senator Wayne Allared
Senator Sam Brownback
Senator John Ensign
Senator Gordon Smith
Senator Rick Santorum
Senator Orrin Hatch
Ranking Member
Senate Committee on the Judiciary
Senator Bob Bennett
Senator Susan Collins
Senator Kay Bailey Hutchison
Senator Kit Bond
Senator Jeff Sessions
NOMINATION OF CALLIE V. GRANADE, OF ALABAMA, TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF ALABAMA; MARCIA S. KRIEGER, OF COLORADO, TO BE
DISTRICT JUDGE FOR THE DISTRICT OF COLORADO; JAMES C. MAHAN, OF NEVADA,
TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA; PHILIP R. MARTINEZ, OF
TEXAS, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS; C.
ASHLEY ROYAL, OF GEORGIA, TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT
OF GEORGIA; AND MAURICIO J. TAMARGO, OF VIRGINIA, TO BE CHAIR OF THE
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES
----------
WEDNESDAY, DECEMBER 5, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Richard
Durbin, presiding.
Present: Senators Durbin, Leahy, and Sessions.
OPENING STATEMENT OF HON. RICHARD DURBIN, A U.S. SENATOR FROM
THE STATE OF ILLINOIS
Senator Durbin. Good morning. I would like to call this
hearing to order, if you will please take seats. This is a
hearing of the full Senate Judiciary Committee to consider five
of the President's nominees for the U.S. District Court and the
President's choice to head the Foreign Claims Settlement
Commission.
I want to welcome the nominees, their families, friends,
and the sponsors from the Senate and the House who will be with
us today. Many of our visitors today have traveled significant
distances and we appreciate that.
This is the tenth judicial nominations hearing since the
Senate reorganization in July. It is the 14th time we have
considered executive branch nominees during that same time
period. You might not know it from the newspapers, but this
Committee has been working very hard. We have held
unprecedented nomination hearings, two of them during the
August recess, which may turn out to be the last recess we ever
have. We held nomination hearings through terrorist attacks and
the closure of our offices due to anthrax contamination. We
continued to approve nominees even while we debated
comprehensive anti-terrorism legislation in response to
September 11.
A lot has been written and devoted to the subject of
judicial nominations. Let me be the first to pay tribute to the
five nominees for the Federal bench who join us today. Based on
everything I have read and seen, they are men and women of
exceptional integrity and accomplishment. They enjoy
widespread, bipartisan support, records which demonstrate a
commitment to our values as a nation, including the protection
and advancement of civil rights and liberties for everyone.
Simply put, we would not have disputes over judicial nominees
if the President continues to send us nominees like the five
before us today, especially for the Federal Courts of Appeal.
This basic fact is many times lost in the din of partisan
rhetoric.
My colleagues across the aisle have taken Chairman Leahy to
task for not approving all of the President's nominees. I would
just say, in five months, we have overcome many obstacles in
the Senate. Chairman Leahy has held more judicial nomination
hearings than the other party held in all of 1996, 1997, 1999,
and 2000. When all is said and done, the Senate will confirm
more judicial nominees this year than were confirmed during the
first year of President Clinton's and former President Bush's
terms in office.
I am going to make the rest of this statement a matter of
record without reading it in detail because we have an
exceptional situation here.
Our Senate Majority Whip, Senator Reid from Nevada, is here
and he can inform me if my information is correct, but I think
we have two roll call votes which are scheduled to start around
10:15, if I am not mistaken. So what we are going to try to do
is to invite our panel of House and Senate members to make
their statements and put other statements in the record before
we break for a vote, and I apologize to everyone in attendance
if this is a bit disjointed. We will start and stop a couple
times here today, but we will get the job done, so bear with
us.
We will now move to our first panel of witnesses, and I
ask, Senator Sessions, do you want to make an opening
statement?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Mr. Chairman, we are delighted that this
excellent panel is brought forward. There are some great
nominees who I think will be a real asset to the Federal Bench
and I thank you for your leadership in moving this forward.
Senator Durbin. Thank you, Senator Sessions.
I would like to insert into the record a statement from
Senator Hatch.
[The prepared statement of Senator Hatch follows:]
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
It is both an honor and a pleasure to be here this afternoon with
six extremely well qualified nominees for important positions in the
Federal Judiciary and the Department of Justice. I congratulate all of
you on being selected by President Bush to serve in high office. After
reviewing your distinguished records, I have no doubt that you will do
great service for the citizens of this country upon confirmation.
Before I say a few words about each nominee, however, I'd like to
make a more general comment about the current status of the nominations
process. Believe it or not, I am not the only one who has noticed that
the Committee is making slow work of its job this year.
The Washington Post editorialized last week that the Committee
should hold more judicial confirmation hearings, concluding that
``[f]ailing to hold then in a timely fashion damages the judiciary,
disrespects the president's power to name judges and is grossly unfair
to often well-qualified nominees.'' The Washington Times, after
reviewing a raft of statistics it had received in a letter to the
editor, wrote on December 3rd that it had concluded that the
Committee ``must have confirmed about 223 judicial nominees, give or
take a take a dozen hearings.'' As we know, this is far from the actual
case. As the Wall Street Journal observed on November 27, there is a
``pattern of judicial obstruction that has left 108 current vacancies
on the federal bench. . . .With only days to go before the Senate
adjourns for the year, only 28% of George W. Bush's nominees have been
confirmed.''
Among the nominees being held back by this Committee is Michael
McConnell, whom the President has nominated to serve on the Tenth
Circuit. Professor McConnell has received the ABA's highest rating, and
he has tremendous bipartisan support in the Senate. It seems to me that
holding hearings and votes on the persons whom President Bush has
nominated to the bench would be much more helpful to the war against
terrorism than our ongoing effort to determine whether Osama bin Laden
is entitled to the benefit of Miranda warnings.
but non of what I just said takes anything away from my support and
appreciation for the tremendously talented nominees before the
Committee today.
Callie Virginia Grande clerked for Judge Godbold of what was then
part of the Fifth Circuit. She then embarked on what was to become a
24-year career as a federal prosecutor. She has served in just about
every capacity in the U.S. Attorney's Office--line prosecutor, senior
litigation counsel, criminal division chief, First Assistant U.S.
Attorney, and now interim U.S. Attorney.
Chief Bankruptcy Judge Marcia Krieger attended Lewis & Clark
College, from which she graduated after three years Summa cum laude,
and earned her law degree from the University of Colorado School of
Law. She began her legal career in a general practice, and eventually
developed a specialty in bankruptcy. She has served as a Bankruptcy
Court Judge since 1994.
Judge James Mahan practiced law at the same firm in Law Vegas for
17 years, primarily focusing on business and commercial litigation, and
in the process earned an ``Av'' rating from the Martindale Hubbell
legal directory--as well as the respect of his peers. In February 1999,
he was named a judge on the Clark County District Court. Since taking
the bench on March 8, 1999, Judge Mahan has heard civil and criminal
matters and trials involving a 3,000 case docket.
Judge Philip Martinez graduated from Harvard Law School in 1982 and
developed a commercial litigation practice involving antitrust,
securities, fraud, deceptive trade practices, contract, and banking
issues. He has served as a judge in EL Paso County Since 1991, and has
been particularly active in juvenile justice issues.
Ashley Royal graduated from the University of Georgia Law School in
1974, but he had already gained substantial litigation experience
before then. During the summer of 1973, he worked as an Intern District
Attorney under the Third Year Practice Act at the Chatham County
District Attorney's Office. The Act authorized their-year law students
to try cases as long as they were supervised during trial by a member
of the bar. During his internship, Mr. Royal served as lead counsel in
five jury trials, including and armed robbery and a murder case. He
also handled approximately 30 bench trials. After graduating from law
school, Mr. Royal worked as an Assistant District Attorney, as a Public
Defender, and in private practice.
Last but certainly not least, Mauricio Tamargo was born in Cuba and
fled to the United States with his family when he was four years old.
He received his B.A. in History from the University of Miami and his
J.D. from the Cumberland School of Law at Stamford University. His
Legal experience includes working in various positions for U.S.
Congresswoman Ileana Ros-Lehtinen and serving as Staff Director for
several subcommittees of the House International Relations Committee.
Again, it is a great pleasure to welcome all of you to the
Committee. I look forward to this hearing, and to working with Chairman
Leahy and Others to make sure the Committee and the full Senate hold
timely votes on your nominations.
Senator Durbin. We will proceed in order of seniority with
our colleagues who are in attendance. I have a list here, and I
hope that it is complete, and it appears that the most senior
member is Senator Reid of Nevada. Senator?
PRESENTATION OF JAMES C. MAHAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEVADA BY HON. HARRY REID, A U.S. SENATOR
FROM THE STATE OF NEVADA
Senator Reid. Thank you very much, Mr. Chairman, and I do
appreciate your brief statement. There is no question that
today is like many other days and it shows the difficulty of
having these hearings. I think that you are right in commending
Chairman Leahy for organizing this hearing.
Mr. Chairman, Jim Mahan is, in my opinion, a lawyer's
lawyer. Before I came here, I was a trial lawyer. I practiced
law. I tried cases before juries, did administrative work, did
what trial lawyers do, and Jim Mahan has had excellent
training.
He began his practice that I noted working with one of the
finest lawyers we have ever had in Nevada, a man by the name of
John Peter Lee. He then formed his own law firm. He is now a
judge in a court of unlimited jurisdiction where he has at his
grasp literally thousands of cases. It is in Las Vegas and he
is extremely busy, but he, in the short time he has been on
that bench, has been a judge of note.
He is always ranked as one of the top judges in that
district and I cannot say enough about Senator Ensign's
recognizing his talents. I appreciate Senator Ensign coming to
me and giving me Jim Mahan's name. I mean, it took five
seconds. This is a fine lawyer, a great judge, and the country
will be better for having Jim Mahan as a judge.
I ask unanimous consent that my full statement be made a
part of this record.
Senator Durbin. The Senator's statement will be made a
complete part of the record here.
[The prepared statement of Senator Reid follows:]
Statement of Hon. Harry Reid, a U.S. Senator from the State of Nevada
Mr. Chairman, I would like to thank you, Chairman Leahy, and the
entire Senate Judiciary Committee, for holding this hearing today.
Today's hearing is yet another example of how the distinguished
Senator from Vermont and this Committee have gone out of their way to
move judicial nominations forward in a timely and reasonable manner.
This committee has worked extremely hard to move President Bush's
judicial nominations, and you and this entire Committee are to be
commended for your efforts.
I am pleased to appear before this committee in support of one of
those nominees--Judge James C. Mahan, of Las Vegas, to be the next
judge on the United States District Court for the District of support
of both Senators from Nevada. Senator Ensign has made some excellent
recommendations to the President and fully support his selections.
Jim Mahan currently serves as a Judge on the Eighth Judicial
District Court in Clark County, Nevada. So respected by his peers and
officials in Nevada, Jim Mahan was Governor Kenny Guinn's first
judicial appointment to the Clark County District Court in February
1999. Since taking the bench on March 8, 1999, he has retained a docket
of more than 3,000 civil and criminal cases. Despite this heavy docket,
Judge Mahan also hears on a regular basis probate matters, drug court
and grand jury returns. And as of January, 2001, Judge Mahan is also a
Business Court Judge.
As my colleagues have heard me state on numerous occasions, Las
Vegas has been the fastest growing metropolitan community in the United
States for more than a decade, and such hard work and dedication is
required of our judges, policemen, firemen, and other civil servants on
a daily basis.
These qualities will serve Judge Mahan well on the U.S. District
Court for the District of Nevada, whose docket has increased at a rate
that mirrors the explosive growth of my home state, especially in Las
Vegas.
Mr. Chairman, I am so proud to have played a role in creating three
additional judgeships for the District of Nevada over the last few
years.
Prior to the Senate's confirmation of Roger Hunt and Kent Dawson
last year, and Larry Hicks last month, Nevadans seeking justice in
federal court were forced to wait up to three years before their case
went to trial. And these delays may have been worse had it not been for
such hard working judges, including our senior judges. In fact, when we
were pushing for the creation of additional judgeships in Nevada, our
two senior judges were hearing, on average, more cases than many active
judges throughout the country.
Although the docket remains one of the busiest in the federal
judiciary, these judgeships--and the fine jurists who have filled
them--have had an immediate impact on the federal bench in Nevada.
When confirmed, Jim Mahan will fill a District Court under the
leadership of Chief Judge Howard McKibben that is arguably the fines in
the nation. Judge Mahan has demonstrated leadership in is own right on
the Eighth Judicial District Court, where he chairs the Committee to
Review and Revise that Court's Rules. He also serves as Chairman of the
Clark Regional Judicial Council, as a member of the Joint Task Force on
Civil/Criminal Specialization, and was appointed by the Nevada Supreme
Court to the Study Committee to Review the Nevada Rules of Civil
Procedure.
His leadership was confirmed by a 2000 survey conducted by the Las
Vegas Review Journal in which Judge Mahan received a 95% retention
rating and a 96.3% adequacy rating. Those percentage ratings were the
highest rating of any sitting Judge in Nevada's Municipal Courts,
Justice Courts, District Courts and Supreme Court. In short, Mr.
Chairman, Jim Mahan has already proven that he is an excellent judge,
and will be an outstanding addition to the federal bench in Nevada.
Prior to taking the bench, he and Frank A. Ellis III formed the law
firm of Mahan & Ellis, Chartered, where they practiced law primarily in
the areas of business and commercial litigation for seventeen years in
Las Vegas.
A long-time resident of Las Vegas, having lived and practiced law
continuously since 1973, Jim was admitted to practice in Nevada in 1974
in both state and federal court, the Ninth Circuit Court of Appeals in
1975, and the U.S. Supreme Court in 1980.
Jim Mahan was born in El Paso, Texas, on December 16, 1943. His
family eventually moved to Grand Junction, Colorado, where he graduated
from high school. Jim graduated from the University of Charleston in
Charleston, West Virginia, in 1965, and received his law degree from
Vanderbilt University School of Law in 1973. In between his graduate
and law school studies, Jim served in the United States Navy.
Jim has also been blessed with a beautiful family and is joined
here today by his wife of 33 years, Eileen as well as his long-time
assistant, Jeri Winters. He and Eileen are the proud parents of one son
James, Junior, who is a graduate of the University of Southern
California.
Like Larry Hicks, who was considered by this Committee in October,
and approved by the full Senate in November, Jim is a fine man, a fine
Nevadan, and I am sure that he will be a fine judge.
He enjoys my full support, and I would urge this Committee--and the
Senate--to confirm his nomination to the District of Nevada as quickly
as possible.
Senator Durbin. Senator Campbell is here.
PRESENTATION OF MARCIA S. KRIEGER, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO BY HON. BEN NIGHTHORSE CAMPBELL, A
U.S. SENATOR FROM THE STATE OF COLORADO
Senator Campbell. Thank you, Mr. Chairman. I would also ask
unanimous consent to include my complete statement in the
record. We have a number of people that want to introduce
different nominees, and with a vote coming up, I think I will
try and be very brief, if I can.
I am very delighted and honored to introduce to the
Committee today a tremendous legal mind and a very outstanding
person from our State of Colorado, Judge Marcia Krieger, who is
sitting behind us in the second row here. Judge Krieger is a
third-generation native of Colorado and the daughter of retired
Judge Donald P. Smith, Jr., who served on the Colorado State
District Court and the Colorado Court of Appeals. I believe her
to be overwhelmingly qualified and definitely the right person
to serve on the Colorado Federal District Court.
I am not going to go through her legal accomplishments on
the bench. They are a matter of record. I am sure the Committee
will look them over. But I was quite impressed with them. As a
layperson, of course, some of the things I do not understand
that go on the bench, but I will tell you what, I think I
understand human nature very well and Judge Krieger is not only
an outstanding legal mind but participates in the community in
a variety of ways. In fact, before we came in, I asked her of
the couple of boards that she serves on that I was not aware
of, trying to help children in Africa, for instance, and a
board to help elevate the health of people who have AIDS in
many countries. She has just been a good human being as well as
a good judge.
As the Chief Judge for the United States Bankruptcy Court
for the District of Colorado, she has a long and distinguished
career, along with a distinguished record, too. She built a
solid and respected law practice on the principle of trying to
find common ground and using common sense, and I think that has
served her well on the bench and certainly will in her future
endeavors.
Along with her other notable accomplishments, she helped
open the channels of communication between the bench, the bar,
and the general public in regard to court policies and
procedures. That includes the implementation of a pro bono
representation program.
In addition to her seat on the Bankruptcy Court, she also
is a member of the Tenth Circuit Bankruptcy Appellate Court,
where she sits with other bankruptcy judges to consider appeals
from bankruptcy courts operating in all the States of the Tenth
Circuit except Colorado. She was appointed by Chief Justice
Rehnquist in the fall of the year 2000 to serve as one of the
three bankruptcy judges on the Bankruptcy Administration
Committee of the Judicial Conference of the United States. In
that capacity, she considers issues of importance to the
administration of the bankruptcy system nationwide.
I think that I will stop with that because of our very
short time, but I would hope that the Committee would read our
full statements of her great accomplishments. I just want to
tell you and the other Committee members, Mr. Chairman, that
any person that can find time to raise a family, to balance the
difficulty of being in a very, very high-stress lifestyle in
public office or on the bench and still participate with the
Boy Scout troops and other community groups is a person that is
the kind of person I think we need more in public service.
Thank you, Mr. Chairman.
Senator Durbin. Thank you, Senator Campbell.
There are three remaining members of the panel, but Senator
Leahy overheard that I had mentioned his name at the opening
and wanted to come down and defend himself and I would like to
give him the chance to say a few words.
[Laughter.]
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Actually, Mr. Chairman, I wanted to thank
you for holding this. Of course, I am delighted to see my
colleagues here and seeing Senator Campbell, as I have told him
several times this year, also attempted to tell Senator Allard,
but as I told Senator Campbell several times this year, of
course we would have these hearings before we went out. We are
actually holding the 16th nominations hearing since the Senate
reorganized this summer, the tenth on judicial nominations.
That is since July, the middle of July, when we had a
reorganized Committee. I thank you, Senator Durbin and Senator
Sessions, for doing this today.
We have withstood terrorist attacks, anthrax attacks,
closing of buildings and everything else. We have had 27
judicial nominations reported favorably to the Senate. That
includes six to the Court of Appeals. That is actually twice
the total number of judges that were confirmed in all of the
first year of the first Bush administration, twice as many
judges to the Courts of Appeal than were confirmed in the first
year of the Clinton administration, more judges than confirmed
in all of the 1996 session.
We can consider these five on an expedited basis and I
would assume Senator Hutchison and Senator Allard and Senator
Campbell and Senator Ensign, and I know Senators Cleland and
Warner would not object to us moving on an expedited basis.
Then we would confirm 32 judges. That is approximately double
the number the first year of the first Bush administration,
actually more than the first year of the Clinton administration
when the White House and Senate were controlled by the same
party, so the number in the 12 months of 1997 or all of 1999.
I mention this because we are able to do it, basically, in
five months. And just so people will know, we are holding more
hearings on more judicial nominees faster and reporting and
confirming more than during the last six-and-a-half years.
Each of the judicial nominees participating in this
morning's hearing have been pending for less than 60 days since
receipt of the ABA peer review. As we know, all judges are
going to have to have that peer review.
We also have Mauricio Tamargo to head the Foreign Claims
Settlement Commission, and I am pleased by the number of
letters I have received on his behalf from Republicans and
Democrats alike in Florida and also from the Republican
Senators from Virginia, Democratic Senators from Florida on his
behalf and that is very helpful.
I also might say, just as a matter of compliment to the
White House and to Senator Hatch, there was some difficulty in
moving some of these nominees because of a concern about
nominees answering a couple of basic questions, questions
actually far less intrusive than you would need to answer to
get a job in the parking garage at the Department of Justice
for most courts. I compliment the President and Senator Hatch
and others in agreeing to go forward and answer those
questions. I think when they did that last week, we passed out,
what, eight or nine people within just a few hours of them
agreeing to that, so I appreciate the cooperation of all.
That is all I have to say, but I did want to thank Senator
Durbin and Senator Sessions, both of whom have enormously busy
schedules, for taking the time to do this, and all of you.
Senator Durbin. Thank you, Chairman Leahy.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick G. Leahy, a U.S. Senator from the State of
Vermont
Today, the Judiciary Committee is holding its sixteenth nominations
hearing and its tenth judicial nominations hearing since the Senate
reorganized this summer. I thank Senator Durbin for volunteering to
chair today's hearing for these six nominees. Since July, when the
Senate was allowed to reorganize and the Committee's members ship was
set, we have maintained a strong effort to consider judicial and
executive nominees.
During these last six, difficult months, the Committee has worked
hard to report 27 judicial nominations favorably to the Senate,
including six to the Court of Appeals. This is nearly twice the total
number of judges that were confirmed in all of 1989, the first year of
the first Bush Administration, and it includes twice as many judges to
the Courts of Appeal as were confirmed in the first year of the Clinton
Administration. It is also more judges than were confirmed in all of
the 1996 session. In addition, if we are able to consider today's five
judicial nominees on an expedited basis, the Senate may be able to
confirm 32 judges--a number that would be more than double the number
confirmed in the first year of the first Bush Administration, more than
were confirmed in the first year of the Clinton Administration when the
White House and the Senate were controlled by the same party, and
approximately the total confirmations for the 12 months of 1997 and for
all of 1999.
Thus, despite all the obstacles we have faced this year, we have
matched or exceeded the number of confirmations of judges during the
first Bush Administration and the last year of the first Clinton term.
We are holding more hearings on more judicial nominees faster and
reporting and confirming more than during the last six and one-half
years. By way of example, each of the judicial nominees participating
in this morning's hearings has been pending for less than 60 days since
receipt of the ABA peer review.
Today we also consider the nomination of Mauricio Tamargo to head
the Foreign Claims Settlement Commission. Mr. Tamargo comes highly
recommended by Representatives for whom and with whom he has worked. He
is also supported by his Democratic and Republican Senators from
Florida, where he was raised, and from Virginia, where he now lives. I
look forward to Mr. Tamargo's answers to questions about the future
direction of the Commission he is nominated to chair.
Senator Durbin. Senator Hutchison?
PRESENTATION OF PHILIP R. MARTINEZ, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you very much, Mr. Chairman. Mr.
Chairman, I am very pleased to be here today to introduce Judge
Philip Ray Martinez to be a U.S. District Judge for the Western
District of Texas.
I do want to thank all of you for holding this hearing and
I want to especially emphasize that our U.S.-Mexico border
courts have the most critical need. According to statistics
from last year, the Western District of Texas handles the most
criminal cases in the entire United States. The Southern
District, which is still on the border, for which Randy Crane
awaits confirmation, has the third highest level after
California's Southern District.
We are really trying very hard--Senator Feinstein and
myself have introduced legislation to expand the number of
Federal Courts along the border to try to alleviate the huge
glut that is now in those courts all along the border,
particularly California and Texas, and I would ask my
colleagues on the Judiciary Committee to please expedite
Senator Feinstein's and my bill so that we can begin to fill
these courts so that justice will not be delayed and,
therefore, not be denied.
I want to also say that as you are considering that
legislation, at the very least, I hope you will expedite the
confirmation of border prosecutors and judges like Judge
Martinez and Judge Crane and the U.S. Attorneys that have been
nominated, as well.
Chairman Leahy. If the Senator would yield, we have been,
on U.S. Attorneys, I think the practice here has been, in some
cases, literally within hours of getting the paperwork, we have
moved them through. We had a number of them where we ended up
with my staff working with the White House staff until 3:30 one
morning to complete the paperwork so we could get them all
through, and they have been doing that and we have--almost
every one has been there. In fact, I would urge the
administration to send up marshals. They have not sent up a
single marshal.
Also in the legislation the Senator from Texas refers to, I
would like very, very much--I think she has got a very good
piece of legislation. Perhaps if we could move a DOJ
authorization bill, it might be something we could attach to
that with her consent.
But we have moved 57 U.S. Attorneys, including Mr. Sutton
from Texas, last week, and I know the Senator from Texas was
very, very helpful in getting those through.
Senator Hutchison. Yes. I want to say that I appreciate
that the prosecutor from the Western District has now been
confirmed and it was expedited. The Southern District, which is
the other border district, now has a U.S. Attorney nominee, and
I hope you will do the same for him because that office
particularly has issues that need to be addressed.
I do want to talk about Judge Martinez, who is one of our
very most outstanding nominees. He is a District Judge in El
Paso, where he has served since 1991, and before that, he was a
County Court Judge in El Paso and has been elected by the
people of El Paso.
He has more than ten years of experience at the trial court
level. He graduated from the University of Texas at El Paso
with highest honors and received his law degree in 1982 from
Harvard Law School. In addition, he has been a Director of the
El Paso Legal Assistance Society, the El Paso Holocaust Museum,
the El Paso Cancer Treatment Center, and the Hispanic
Leadership Institute. He was named in 1991 the El Paso Young
Lawyers Association's Outstanding Young Lawyer.
I am one who believes that a Federal Judge should be a part
of the community and not live in some isolated ivory tower, and
I think Judge Martinez has shown that he is going to be that
kind of Federal Judge, a part of the community but also an
outstanding leader in the legal field, and I will say that
Senator Gramm joins me in highly recommending Judge Martinez.
Senator Durbin. Thank you, Senator Hutchison.
I would just remind my colleagues who came in a few minutes
late that we have a vote on very soon and then we are going to
have to break, so if it is possible that we could get each of
you to make a statement, an oral statement, and then put the
remainder in the record, we might be able to complete that
phase before we have to break for a vote.
Going by seniority, I see the arrival of Senator Warner,
who may need a hand here to come forward. I know that he went
over to visit our troops. It appears he came back with a wound,
but he is undaunted.
PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE CHAIR OF THE
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES BY
HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. We have a wealth of talent here to
introduce Mr. Mauricio Tamargo, and I am going to defer to the
two members of Congress from Florida, and I think my friend,
the senior Senator from Florida, is here also, so Mr. Tamargo
is going to be well represented, but I did want to say that I
am proud to have him in Virginia. He currently serves as staff
director for an important Subcommittee in the House of
Representatives.
Following your admonition, which I think is well taken, I
will put the balance of my statement in the record and assure
you that this gentleman is eminently qualified to continue his
long and distinguished career in public service and I thank the
chair and I thank my colleagues.
Senator Durbin. Thank you, Senator Warner.
[The prepared statement of Senator Warner follows:]
Statement of Hon. John Warner, a U.S. Senator from the State of
Virginia
Chairman Leahy, Senator Hatch, and my other distinguished
colleagues on the Senate's Judiciary Committee, I am pleased to
introduce a Virginian, Mauricio Tamargo, to serve as Chairman of the
Foreign Claims Settlement Commission.
The Foreign Claims Settlement Commission is an independent agency
within the Department of Justice that adjudicates the claims of U.S.
nationals against foreign governments. Awards are funded from
congressional appropriations, international claims settlements, or
liquidation of foreign assets in the U.S. by the Departments of Justice
and Treasury. Since the Commission was created in 1954, it has
adjudicated over 660,000 claims with awards totaling in the billions of
dollars.
As you all know, the Foreign Claims Settlement Commission serves an
important mission. In my view, Mauricio Tamargo's experience in
international affairs makes him well suited to serve in this position.
Mr. Tamargo is currently the staff director for the Human Rights
and International Operations Subcommittee of the House of
Representative's International Relations Committee. He also currently
serves as Chief of Staff and legislative counsel for Representative
Ileana Ros-Lehtinen--positions he has held for the Congresswoman for
approximately 10 years.
Mr. Tamargo has also served as Staff Director for the House
Subcommittee on International Economic Policy and Trade and as the
Staff Director for the House Subcommittee on Africa.
Mr. Tamargo received his B.A. from the University of Miami and his
law degree from the Cumberland School of Law at Samford University in
Alabama.
Clearly, Mr. Tamargo has extensive professional experience in
international affairs that will serve him well as Chairman of the
Foreign Claims Settlement Commission. He has dedicated a large portion
of his career to public service, and I am thankful for his willingness
to continue such service.
Senator Durbin. Senator Graham, who owns more Florida ties
than any human being--
[Laughter.]
Senator Durbin. --comes here to speak on behalf of the
Sunshine State. Senator?
PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE CHAIR OF THE
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES BY
HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Graham. Thank you very much, Senator, and I would
be happy to have an Illinois tie if you would make one
available.
Mr. Chairman, Senator Sessions, thank you very much and I
appreciate your expeditious scheduling of this hearing today
for Mr. Mauricio Tamargo. As Senator Warner has already said,
Mauricio brings a very strong background of experience,
expertise, and concern for the issues that he will face as
Chairman of the Foreign Claims Settlement Commission. In that
position, he will be representing the citizens of America in
claims against foreign governments, ranging from claims of
Holocaust survivors to those who have had their property
confiscated.
Mauricio has had personal experience in this. His family
fled from Cuba when he was only four years old. Since he has
come to the United States, he has achieved the American dream
and I hope with your assistance we will further augment that
dream by being confirmed for this very important position.
He is currently serving as Staff Director of the House
Subcommittee on International Operations and Human Rights,
where he has had the opportunity to deal with issues involving
American investors overseas who have had their property
confiscated. He also has served as Staff Director of the House
Subcommittee on International Economic Policy and Trade, where
he has mastered the complexities of property rights as well as
developing a working relationship with the State Department.
He has for many years been a very close associate, advisor,
and part of the staff, now the Chief of Staff and Legal
Counsel, to our distinguished Congresswoman from Florida,
Ileana Ros-Lehtinen, who joins us today.
Mr. Chairman, requesting that the full statement be entered
in the record, I strongly recommend Mauricio and urge this
Committee's prompt consideration and forwarding of his
nomination to the Senate for confirmation.
Senator Durbin. Thank you very much, Senator Graham.
[The prepared statement of Senator Graham follows:]
Statement of Hon. Bob Graham, a U.S. Senator from the State of Florida
Mr. Chairman,it is my pleasure to introduce Mauricio Tamargo,
nominee to serve as Chairman of the Foreign Claims Settlement
Commission.
As chairman of the Foreign Claims Settlement Commission, Mauricio
will be responsible for making claims on behalf of American citizens
against foreign governments. These claims are diverse, ranging from the
claims of Holocaust survivors being compensated for their tragic
suffering to Americans who have had property confiscated by foreign
governments.
Mauricio, who at the age of four fled with his family from Cuba,
has achieved the American dream. He serves as an example of what a
person can aspire to be in this country.
After working his way through the University of Miami as an
undergraduate, he earned a Jurist Doctorate Degree from Cumberland
School of Law in Birmingham, Alabama.
Mauricio is currently the Staff Director for the House Subcommittee
on International Operations and Human Rights, were he has witnessed
first hand the many difficulties American investors face overseas
including having their property confiscated.
He has also served as Staff Director and Counsel for the House
Subcommittee on the International Economic Policy and Trade where he
mastered the complexities of international property rights as well as
developed a working relationship with the State Department, the chief
policy agency that the Commission works with.
He various roles for Congresswoman Ileana Ros-Lehtinen from
Florida, currently as Chief of Staff and Legal Counsel, and formerly as
Legislative Director and Press Secretary, have helped him learn to be
more responsive to constituents.
This trait will be essential as Chairman of the Foreign Claims
Settlement Commission because many of the People the Commission helps
are of limited means and rely on the government for assistance in
regaining their property.
My office has worked with Mauricio since he came to Washington to
work for Congresswoman Ros-Lehtinin. During this time, we have
witnessed his integrity, hard work, and dedication as well as his
exceptional leadership skills.
Through the course of his career, Mauricio has amassed substantial
experience in international affairs as well as a strong commitment to
public service.
Additionally, his keen sense of justice makes him an excellent
candidate for this post were he will be able to help American citizens
obtain justice from foreign governments.
Mauricio's experience, expertise, and conviction will enable him to
fully execute the duties of Chairman of the Foreign Claims Settlement
Commission and to help him work for justice for those Americans who
have been wronged by foreign governments.
Senator Durbin. I also apologize to all the visitors and
the nominees that we do not have more time for this opening,
but I am hoping that each of the members have a chance to say a
few words and put their total statement in the record. We have
six or seven Senators and Congressmen and about ten minutes to
do it.
Senator Allard?
PRESENTATION OF MARCIA S. KRIEGER, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO BY HON. WAYNE ALLARD, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Allard. Mr. Chairman, thank you very much. I want
to thank you and Mr. Leahy for moving forward on some of our
nominees. This is the first nominee we have from Colorado. We
have three of them there to be considered. I really appreciate
you moving forward on this in an expeditious way and I do
appreciate it, along with Senator Campbell. I would like to
thank Mr. Sessions and recognize him for his effort on the
Committee also.
I just want to say it is a pleasure to be here today to
introduce U.S. Chief Bankruptcy Judge Marcia Krieger of Denver.
She has been nominated by the President to fill one of two
vacancies that we have in the District Court there in Colorado.
She will introduce her family, and I will let her go ahead and
do that, and I will have my full statement put in the record.
Just for a matter of interest, her father is a retired
Colorado Court of Appeals Judge, so the experience is in the
family.
Both Senator Campbell and I have worked hard. We set up an
advisory Committee made up of outstanding individuals in the
State of Colorado, and basically we gave them the mandate that
we want to have the best qualified on the bench and we want to
have somebody who has had real life experiences. I think as you
look into the background of particularly Judge Krieger, you
will note that she has had a lot of real life experiences and I
think is very well qualified for the bench. I am proud to be
able to push her nomination through the Senate and thank you.
Senator Durbin. Thank you, Senator Allard.
[The prepared statement of Senator Allard follows:]
Statement of Hon. Wayne Allard, a U.S. Senator from the State of
Colorado
Mr. Chairman, Senator Hatch, and Members of the Committee, it is a
pleasure to be here today to introduce U.S. Chief Bankruptcy Judge
Marcia Krieger of Denver.
Judge Krieger has been nominated by the President to fill one of
two vacancies on the Colorado Federal District Court.
I know that the Judge will introduce her family, but I do want to
note that she has five children, Melissa, Kelly, Keidi, Miriam and
Mathias. She is joined here by her husband, Harry Roberts and her
parents, Don and Marjorie Smith.
I want to note that Judge Krieger's father is a Colorado Court of
Appeals judge.
Both Senator Campbell and I are pleased that the Committee is
holding this hearing today. Colorado is a fast growing state and the
Colorado Courts have a heavy case load. It will be a great help to the
legal system in our state if we can get Judge Krieger confirmed before
this session ends.
Judge Krieger has been a federal bankruptcy judge for the District
of Colorado since 1994, and she was appointed Chief Judge for the
Bankruptcy Court for Colorado last year. She has extensive experience
managing a case load.
Judge Krieger is a graduate of the University of Colorado School of
Law and she currently serves as an adjunct law professor at her alma
mater. She also has extensive private practice and litigation
experience and is widely respected in our state.
the Senate should carefully review all judicial nominees, I have
taken this responsibility very seriously as a Senator. I have worked
hard to support the selection of federal judges of the highest
qualification.
That is why Senator Campbell and I formed a Judicial vacancy
Advisory Committee to screen candidates for District Court vacancies in
Colorado.
This past Spring, once we learned the process that would be
followed by the President in selecting federal judges, we appointed a
six member Advisory Committee.
This Committee was made up of distinguished lawyers in our state.
They reviewed dozens of candidates for the two District Court
vacancies in Colorado.
They narrowed the list down to nine qualified individuals.
I personally interviewed all nine, and I was very confident that
all nine would make fine federal judges.
Senator Campbell and I then forwarded these names to the President
and his legal counsel.
The President announced his selection of Judge Krieger from this
list.
It is an honor to introduce and support Judge Krieger. I am
confident that the Committee will find her as qualified as I do.
Senator Durbin. Senator Gramm?
PRESENTATION OF PHILIP R. MARTINEZ, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY HON. PHIL GRAMM, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Gramm. Mr. Chairman, thank you very much. I know
Senator Hutchison has spoken and I am sure that she has
extolled the virtues of Judge Phil Martinez.
Let me just say, Phil is a top hand. He was a brilliant
student at the University of Texas at El Paso. He went to
Harvard Law School. He is the most respected judge in El Paso.
He is a Democrat office holder, but the Constitution is
nonpartisan. I just cannot think of a better qualified
candidate for the Federal bench. I am proud that I had the
opportunity to recommend Phil to the President.
I appreciate you holding this hearing. I am confident that
when you have looked at his credentials and met him, that you
will agree with me that he is going to be a great Federal
Judge. I am proud that he is young. He will be a Federal Judge
for a long time and I think he will be very successful. This
Committee will be very proud that they confirmed him.
Senator Durbin. Thank you, Senator Gramm.
Senator Sessions?
PRESENTATION OF CALLIE V. GRANADE, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF ALABAMA BY HON. JEFF SESSIONS, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. It is a particular privilege and pleasure
for me today to introduce to the Committee a nominee of the
highest order. Ginny Granade has the temperament, integrity,
and legal knowledge, as well as the experience, that will make
her an outstanding jurist on the Federal bench. I know this
from first-hand experience.
Ginny served as an Assistant United States Attorney under
my tenure for 12 years, when I served as United States Attorney
in the Southern District of Alabama. She had been hired by the
previous United States Attorney. So we have worked together and
prosecuted cases together.
From that experience, I learned that Ginny was level-
headed, fair-minded, trustworthy, and smart. Her current
position as Interim United States Attorney for the Southern
District of Alabama indicates that others think highly of her,
as well. She will serve her State and country exceedingly well.
I am also pleased that her husband, Fred Granade, is here,
who is an outstanding attorney in his own right, and Rives,
Smith, and Joseph, their children, and my good friend and her
good friend, Donna Dobbins, who is also an Assistant United
States Attorney and just a wonderful person and prosecutor.
Ginny is a graduate of the University of Texas School of
Law, and served as a law clerk to the Honorable John Goldbold
of the United States Court of Appeals for the Fifth Circuit.
Being selected to clerk on the Circuit Court of Appeals is an
honor in itself. That court is now in the 11th Circuit. This is
the same circuit for which Ginny is nominated to serve as a
District Judge and it is the same circuit on which her
grandfather, Judge Rives, once served as a Circuit Judge.
All this experience has no doubt aided her for her service
on the Federal bench. I believe that her more than 20 years of
experience in the United States Attorney's office, practicing
in the very court she is now being nominated for, as well as
extensive appellate experience before the 11th Circuit Court of
Appeals, has given her the necessary exposure to understand how
a Federal District Court, and more importantly, how a Federal
District Judge, should conduct herself.
She joined the United States Attorney's office in 1977 as
the first female Assistant United States Attorney in that
district. She proved her merit as an outstanding prosecutor and
a leader. For over a decade, it was said she never lost a case,
and I think that was accurate. Actually, I am not sure she has
lost one yet.
In 1990, because of her leadership qualities, she was
promoted to Chief of the Criminal Division in the office and
she also has served as a First Assistant United States
Attorney. She was selected as Senior Litigation Counsel before
that, which was quite an honor. Ginny was the first attorney in
the district to achieve that honor. Her abilities in the
courtroom have been demonstrated time and time again in her
prosecution of the most complex white collar, fraud, tax fraud,
and public corruption cases.
One case stands out to me. In 1990, I witnessed her
prosecute a multi-defendant racketeering public corruption
case. It was a very intense criminal prosecution. In my 15
years in Federal Courts, I have never seen a better closing
argument. In the longest jury trial ever tried in the Southern
District of Alabama, she tried the case successfully with
dignity, integrity and professionalism.
The American Bar Association has given Ginny its highest
grade of approval, unanimously rating her ``well qualified.'' I
am very pleased to see that recognition. Individuals that have
worked with her and know her share in the ABA's recommendation.
Former Senator Howell Heflin is a great fan of Ginny and has
stated he knows of no opposition to her appointment.
Ginny's litigation skill, as well as command of the most
complex issues, has won her respect and admiration from the
press, her peers, and my overwhelming support.
Senator Leahy, I commend you for scheduling this hearing
and placing her on the agenda. This court that she will be a
member of is pretty much in a crisis. It is a three-judge court
with only one active judge. We have had two vacancies for some
time now and I believe it is considered to be the district in
America with the longest existing crisis-level need for a
nominee.
Chairman Leahy. We may not be doing her a favor by sending
her down there.
Senator Sessions. It is going to be a challenge. The cases
have backlogged, for sure.
Ginny's integrity, experience, and commitment to the rule
of law are outstanding. The thing I think is most valuable in a
judge is judgment, and when I had a tough question in the
office and I needed advice on what to do, I went to her office,
as did every other Assistant United States Attorney. There was
a stream of them in and out. I know Donna has done it many
times. What does Ginny think about this, on a big issue? So I
think that is a high compliment.
She will be a great District Judge and I am proud that she
will be moving forward.
Senator Durbin. Thank you, Senator Sessions.
[The prepared statement of Senator Sessions follows:]
Statement of Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama
Mr. Chairman, I am pleased to introduce to the Committee a judicial
nominee of the highest order. Ginny Granade has the temperament,
integrity and legal knowledge as well as experience that will make her
an outstanding jurist on the federal bench. I know this from first hand
experience.
Ginny served as an Assistant U.S. Attorney under my direction in
the Southern District of Alabama, so we have worked together and
prosecuted cases together. From that experience, I learned that Ginny
was level-headed, fair minded, trustworthy and smart. Her current
position, as interim United States Attorney in the Southern District of
Alabama, indicates that others think highly of her as well. She will
serve her state and her country well.
Ginny is a graduate of the University of Texas School of Law and
served as a law clerk to the Honorable John Godbold, of the U.S. Court
of Appeals for the 5th Circuit. That Court circuit for which
Ginny is nominated to serve as a district judge, and the same circuit
that her grandfather once served as a circuit judge.
And although this experience has no doubt aided her for service on
the federal bench, I believe that her more than 20 years of experience
in the United States Attorney's Office, practicing in the very court
that she has been nominated for, as well as extensive appellate
experience before the 11th Circuit U.S. Court of Appeals,
has given her the necessary exposure to understand how a federal
district court and more importantly how a federal district judge should
conduct herself.
Since Ginny joined the U.S. Attorney's Office in 1977, as the first
female Assistant U.S. Attorney in the Southern District of Alabama, she
has proven her merit as an outstanding prosecutor and leader. In 1990,
because of her leadership qualities, she was promoted to Chief of the
Criminal Division of that office, and she also served at First
Assistant United States Attorney. Her abilities in the courtroom have
been demonstrated time and time again in her prosecution of complex
white collar fraud, tax fraud and public corruption cases.
One case to me stands out. In 1990, I witnessed her prosecute a
multi-defendant, racketeering, public corruption case. This was high
stakes criminal prosecution. In my 15 years of practice in the federal
courts, I have never seen a better closing argument. In the longest
jury trial ever in the Southern District of Alabama, Ginny got the job
done.
The American Bar Association has given Ginny its highest grade of
approval, unanimously rating her as well qualified. Individuals that
have worked with and know Ginny also share the ABA's recommendation.
Former Senator Howell Heflin commented that he knows of ``no opposition
to her appointment.''
Ginny's litigations skills as well as command of the most complex
issues has won her the respect and admiration of her peers, and my
overwhelming support.
I commend Chairman Leahy for scheduling this hearing and placing
Ginny on the agenda, so that we can address a judicial crisis in the
Southern District of Alabama. A letter I received from Chief District
Judge Charles Butler underscores the need to move on this nomination.
Judge Butler is the only active judge serving in the district, which is
authorized to have three judges with a fourth approved by the Judicial
Conference of the United States. One of these vacancies is the longest
district court emergency in the country, so I appreciate the Chairman's
willingness to move on this nominee.
Ginny Granade's integrity, experience, and commitment to the rule
of law are outstanding. I recommend her as an outstanding individual,
professional, attorney, and friend. She will make a great federal
judge.
Senator Durbin. Senator Ensign?
PRESENTATION OF JAMES C. MAHAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEVADA BY HON. JOHN ENSIGN, A U.S. SENATOR
FROM THE STATE OF NEVADA
Senator Ensign. Thank you, Mr. Chairman, and thank you,
Chairman Leahy, for scheduling Judge Mahan. Judge Mahan has
been rated--every year, our largest newspaper does a survey of
all of the judges and of the attorneys on saying who should be
retained and this last year, including all the local courts,
State courts, Judge Mahan was rated number one in the State of
Nevada, including the State Supreme Court.
It was my privilege to be able to recommend Judge Mahan's
name to President Bush, and with Senator Reid's joint support,
we are very proud and we think that he will make a great judge.
There is something Senator Sessions said about judgment. He has
the right temperament to be a judge. We think he is going to be
excellent.
We are very proud of our District Court in the State of
Nevada. We think it is one of the best in the country, and it
is with that that we think that Judge Mahan is going to make
this bench even that much stronger.
He is married, has a son, James Junior, and I know they are
proud of him, as well.
With that, I would ask unanimous consent that my full
statement be made part of the record. I will keep my statement
short today and just say that with this Committee's support, we
will be adding a great jurist to the bench.
Senator Durbin. Thanks, Senator Ensign, and your statement
will be made part of the permanent record.
[The prepared statement of Senator Ensign follows:]
Statement of Hon. John Ensign, a U.S. Senator from the State of Nevada
Mr. Chairman, it is honor to come before the Senate Judiciary
Committee today to introduce to you a man of the highest legal
distinction, Judge Jim Mahan.
A long-time resident of Las Vegas, Nevada, Judge Mahan began his
studies not in our great state, but at the University of Charleston in
Charleston, West Virginia. Following graduation he attended graduate
school before joining the United States Navy where he served until
honorably discharged in 1969. Jim then studied and graduated from
Vanderbilt University Law School.
Following graduation, Judge Mahan began his work in Nevada, first
as a law clerk and then as an associate attorney. In 1982 he formed the
law firm of Mahan & Ellis, where he practiced law primarily in the
areas of business and commercial litigation for seventeen years. In
February 1999, Judge Mahan's legal experience and expertise were
recognized by Governor Kenny Quinn, who named him as his first
appointment to the Clark Country District Court.
Since taking the bench, Judge Mahan has heard civil and criminal
matters involving a 3,000 case docket assigned to him. Judge Mahan's
service on the bench has been of the highest order. He has overseen
many of Nevada's most complex and controversial cases since taking the
bench and has done so with great care, fairness, and prudence. In a
survey conducted last year by Nevada's largest newspaper, Judge Mahan's
retention rates scored the highest of any judge serving on state or
local court in Nevada. . .and that includes the Nevada Supreme Court.
Judge Mahan's extensive legal background and his commitment to
public service make him a excellent choice as U.S. District Court Judge
for the District of Nevada. Mr. Chairman, I know his wife Eileen and
his son James Jr. are proud of him for being here today, and the state
of Nevada is proud of Him and all that he represents for our great
state. I am proud to introduce Judge Jim Mahan before the Senate
Judiciary Committee today and ask for your full support on his
nomination.
Senator Durbin. Senator Miller?
PRESENTATION OF C. ASHLEY ROYAL, NOMINEE TO BE DISTRICT JUDGE
FOR THE MIDDLE DISTRICT OF GEORGIA BY HON. ZELL MILLER, A U.S.
SENATOR FROM THE STATE OF GEORGIA
Senator Miller. I will speak as fast as this Southern
mountaineer can.
[Laughter.]
Senator Miller. I am pleased to join with my colleague,
Senator Max Cleland, in support of our fellow Georgian, Ashley
Royal. He is imminently qualified to be a United States
District Judge for the Middle District of Georgia. He has had
extensive experience. He has served both as a prosecutor and as
a public defender. He has tried cases in State and Federal
Courts all the way back to his third year of law school. He has
had significant experience in mediating cases. He has taught at
the University of Georgia Law School. All of his work history
will serve him well on the Federal bench.
Throughout his career, he has shown himself to be a very
committed public servant. He is highly intelligent. He is
honest. He is an able attorney. He will be an exceptional judge
and I hope the Committee will approve his nomination and that
he will be confirmed by the full Senate as soon as possible.
Thank you.
Senator Durbin. Thank you very much, Senator Miller.
[The prepared statement of Senator Miller follows:]
Statement of Hon. Zell Miller, a U.S. Senator from the State of Georgia
Thank you, Mr. Chairman, for allowing me to say a few words in
support of the nomination of my fellow Georgian--Ashley Royal. As Sen.
Cleland has already stated, Mr. Royal is well qualified to be a United
States District Judge for the Middle District of Georgia. It is my
pleasure to recommend him to the committee today.
Senator Cleland has outlined some of the details of Mr. Royal's
distinguished career. I would like to focus on Mr. Royal's experience,
which I believe shows him to be uniquely qualified public defender. His
experience in private practice includes work on a wide array of civil
matters including insurance defense, asbestos litigation, employment
discrimination, and Section 1983 cases. Further, Mr. Royal's extensive
experience trying cases in state and federal courts dates all the way
back to his third year of law school. Mr. Royal also has significant
experience in mediating cases and has taught at the University of
Georgia Law School. All of this work history will serve him well on the
Federal bench.
In short, Mr. Chairman, I join Senator Cleland in giving Ashley
Royal my full support. Throughout his career, he has shown himself to
be a committed public servant. He is a smart, honest, and able
attorney. He will be an exceptional judge. I hope that the Committee
will approve his nomination and he will be confirmed by the full Senate
as soon as possible.
Thank you, Mr. Chairman.
Senator Durbin. I also have a letter of support that has
been sent by Senator Shelby in support of Ginny Granade.
I understand that Senator Bill Nelson will be sending a
letter in support of the nomination of Mauricio Tamargo.
Those who are not familiar with the difference between the
House and the Senate, because there are so many members of the
House, they are called on many times to say as much as a
Senator does in a very short period of time and we are going to
give two of those members of the House a chance to do that
right now, and I would like to call before us Congresswoman
Ileana Ros-Lehtinen of Florida and her colleague, Congresswoman
Carrie Meek of Florida. It is great to see both of you on this
side of the rotunda, and if you could give us your one-minute
speeches, we would greatly appreciate it.
PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE CHAIR OF THE
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES BY
HON. ILEANA ROS-LEHTINEN, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF FLORIDA
Representative Ros-Lehtinen. Thank you so much, Senator. As
a Cuban American, I speak very, very fast in either language.
I am very proud to be here to support my Chief of Staff,
Mauricio Tamargo. He is open minded, hard working, a great
family man, intelligent, has the right temperament for the job.
He is fair. He is able to work in a bipartisan manner. I think
every Democrat member of the Florida delegation would say that
Mauricio is a man of his word and a person with whom you can
work for the betterment of our nation.
We were limited to only two House members. Had the
Department of Justice not limited us, we would have had the
entire Florida delegation here supporting Mauricio's
nomination.
In spite of his very Hispanic name and in spite of being a
member of my staff in various capacities for almost 20 years,
my golden retriever speaks better Spanish than Mauricio
Tamargo. That is the only negative thing that you can say about
Mauricio, and I have been working on it for a long time.
He was the first person whom I hired when I got elected 20
years ago. He has been a member of my staff at the Florida
House, and now in the International Committee. He has headed
several Committees which I have had the pleasure of chairing.
He will represent the interest of American property owners
in a very impartial way as the U.S. House, the U.S. Senate, and
the judges have interpreted. He understands the difference
between being in the one branch of government and being in
another, and I think that he will represent our country in the
best possible way. He is a wonderful American and I think he
will be a tremendous addition as Chairman of this Commission,
so I thank you, Senator.
Senator Durbin. Thank you very much.
Congresswoman Meek?
PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE CHAIR OF THE
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES BY
HON. CARRIE MEEK, A REPRESENTATIVE IN CONGRESS FROM THE STATE
OF FLORIDA
Representative Meek. Thank you very much, Senator. Every
once in a while, as a member of the House, we get the privilege
of being able to recommend someone who is truly unique. I think
that Mauricio Tamargo is truly unique. I have known him almost
as long as his boss has. I have known him in the Florida House
of Representatives and now here in the Congress.
A lot of things I know about Mauricio, but one thing I know
is that he is honest, he is fair, he is just, and when he gets
to be the Chairman of this Commission, you are going to have a
man of whom you can be very proud because he is going to rule
with an unbiased hand, and I have known Mauricio that long. He
is knowledgeable. He has been tested.
I hope that this Committee will take all of those things
into consideration and know when Mauricio goes to the Foreign
Claims Settlement Commission, you will have a man who can work
in all neighborhoods, Hispanic, black, white, whatever. He is
what I would call a very fine person to head any agency of
government.
So with great support, I do hope that Mauricio will be
chosen as the Foreign Claims Settlement Commission Chairperson,
and I thank you.
[The prepared statement of Representative Meek follows.]
Statement of Hon. Carrie P. Meek, a U.S. Representative in Congress
from the State of Florida
Thank you, Mr. Chairman, for the opportunity to testify before you
today.
I am here to voice my enthusiastic support for the President's
Nomination of Mauricio Tamargo as Chairman of the Foreign Claims
Settlement Commission.
As a Member of the House of Representatives, as a citizen of this
country, I want a Commission Chairman who is unbiased and fair;
Who is knowledgeable;
Who is serious about his job, and about doing it well;
who has demonstrated good judgement;
and who has excellent management skills.
To me, the ideal candidate would also be enthusiastic about running
an agency that has to decide complicated claims involving acts of
Congress and international law, claims that can be large and that can
sometimes affect thousands of people.
Mr. Chairman, Mr. Tamargo meets all of these criteria. He is an
excellent choice for Commission Chairman.
I have known Mauricio for almost a decade, and I have found him to
be a serious, dedicated and effective public servant. He is an honest
man, a hard worker, and he is fair-minded.
I know that his first love has always been the law, that he is a
professional, and that he will serve this country in this position with
objectivity and distinction.
I feel strongly that Mr. Tamargo will use the power of this office
to honestly and fairly adjudicate the cases that come before the
Commission.
Mauricio Tamargo is a dedicated public servant. He is well-
qualified for this important job.
I strongly urge that this committee to expeditiously approve his
nomination and let him finally get to work.
Thank you.
Senator Durbin. Thank you very much, Congresswomen Meek and
Ros-Lehtinen.
Representative Ros-Lehtinen. Thank you, Senator.
Senator Durbin. Now I am going to make a mad dash for the
floor, and in the meantime, if the five judicial nominees will
come forward to the table and we will get you all set up. When
I return, I will administer the oath and we will start the
testimony. For the few moments, probably 20, this Committee
stands in recess.
[Recess from 10:35 a.m. to 10:55 a.m.]
Senator Durbin. We will reconvene and I would like to ask
the five judicial nominees to come forward to the witness
table. If you would all please rise and raise your right hand
as I administer the oath.
Do you solemnly swear that the testimony you are about to
give before the Committee is the truth, the whole truth, and
nothing but the truth, so help you, God?
Ms. Granade. I do.
Judge Krieger. I do.
Judge Mahan. I do.
Judge Martinez. I do.
Mr. Royal. I do.
Senator Durbin. Thank you. Let the record reflect that all
of the nominees answered in the affirmative.
We will begin with Ms. Granade, and if you would please be
kind enough to introduce family members and friends who are
present and make an opening statement if that is your choice.
STATEMENT OF CALLIE V. GRANADE, NOMINEE TO BE DISTRICT COURT
JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA
Ms. Granade. I do not have an opening statement other than
to thank the Committee for holding this hearing and it is such
an honor to be here.
I would like to introduce my family who is here, my
husband, Fred Granade, who is a practicing attorney in Bay
Minette, Alabama; my three sons, Rives, Smith, and Joseph, who
are--Rives and Smith are college students, Joseph is a high
school student; my colleague, Donna Dobbins, from the U.S.
Attorney's office; and a good family friend, David DeJong, who
practices law in Rockville, Maryland.
[The biographical information of Ms. Granade follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Thank you very much.
Ms. Krieger?
STATEMENT OF MARCIA S. KRIEGER, NOMINEE TO BE DISTRICT COURT
JUDGE FOR THE DISTRICT OF COLORADO
Judge Krieger. I, too, have no opening statement except to
express my appreciation for being able to be here at the
hearing today and the honor that you do me to invite me.
I would like to introduce my family, and I am very blessed
to have a large family with me here today, my husband, Harry
Roberts; my parents, Judge Don Smith and Marjorie Smith; our
five children, Melissa Roberts, Kelly Roberts, Miriam Krieger,
Heidi Roberts, and Mathias Krieger; and I am also blessed to
have extended family who lives in the area, my sister-in-law,
Nancy Saenz, and her children, Marnie Litz, Robin Saenz, Tyler
Saenz; and I note that there are three members from the
bankruptcy staff of the Administrative Office of the U.S.
Courts who are also here and I am grateful for that.
The biographical information of Judge Krieger follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Thank you very much.
Mr. Mahan?
STATEMENT OF JAMES C. MAHAN, NOMINEE TO BE DISTRICT COURT JUDGE
FOR THE DISTRICT OF NEVADA
Judge Mahan. Thank you, Mr. Chairman, and again, I have no
opening statement other than to thank you and Senator Leahy and
the Committee for conducting this hearing so expeditiously.
I would like to introduce my wife and my assistant. My
wife, Eileen, is seated in the back here, and next to her is my
longtime, or some might say long-suffering assistant, Jeri
Winter, and I would like to introduce her, as well.
Thank you, Mr. Chairman.
[The biographical information of Judge Mahan follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Thank you very much.
Mr. Martinez?
STATEMENT OF PHILIP R. MARTINEZ, NOMINEE TO BE DISTRICT COURT
JUDGE FOR THE WESTERN DISTRICT OF TEXAS
Judge Martinez. Mr. Chairman, good morning. Thank you for
the opportunity to appear before the Committee.
I am pleased to have with me from El Paso, Texas, my
parents, Mr. and Mrs. Phil Martinez, Senior, who are seated to
my left-hand side behind me, and I am also pleased to have with
me today my wife, Mayela Martinez, and my daughters, Jaclyn and
Lauren Martinez, and they are seated over to the far right-hand
side. Thank you, sir.
[The biographical information of Judge Martinez follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Thank you.
Mr. Royal?
STATEMENT OF C. ASHLEY ROYAL, NOMINEE TO BE DISTRICT COURT
JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA
Mr. Royal. Thank you very much for the opportunity to be
here today. I really count it as a great privilege.
I am fortunate enough to have with me my lovely wife, Ellen
Royal. Seated next to her is my father, Charles Royal, and then
I have a cousin back here, Chuck Royal, Jed Royal is back
there, and Marie Weed, a friend.
[The biographical information of Mr. Royal follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Thank you very much.
Mr. Royal. Thank you.
Senator Durbin. The fact that none of you have an opening
statement reminds me of an early admonition in law school that
if you are ahead, do not mess it up--
[Laughter.]
Senator Durbin. --or something along those lines, and I
think that you can take some comfort from the opening
statements of all of my colleagues and members of the Committee
of how positive we view your credentials and your nomination
for the Federal District Court.
Many years ago, before I was in this job, or before I was
in the House, I was a practicing attorney and I came to
appreciate great legal acumen and legal skills, but appreciated
even more the appropriate temperament for a judge. The position
that you are seeking is a lifetime appointment, and as a
consequence, if you are good, we will get to see that goodness
for a long time, and if you are not, we will also see that.
It is very tough to be a self-critic, but I would like if
each of you would be kind enough to say a few words for the
record, under oath, about judicial temperament and what you
think makes a good judge in that respect. Ms. Granade?
Ms. Granade. Mr. Chairman, I believe that a good judicial
temperament is one in which a judge is even-handed, has
civility and respect for the lawyers that practice in front of
him or her, one who engenders respect him or herself by the way
he or she comports themselves on the bench. I think that it is
most important for the court to engender respect and an even,
solid, level-headed temperament is probably the best way to do
that.
Senator Durbin. Thank you. Ms. Krieger?
Judge Krieger. Thank you, Mr. Chairman. My view of judicial
temperament is that a judge has to inspire trust in the system,
and in order to do that, a judge must be prepared, impartial,
respectful of the parties. It is sometimes tempting to think
that the courtroom in which you serve is your courtroom, but it
is not. It is the people's courtroom. And ultimately and most
importantly, the judge should endeavor to be consistent and
respectful of all those people who come to that courtroom.
Senator Durbin. Thank you. Mr. Mahan?
Judge Mahan. Thank you, Mr. Chairman. I am a sitting judge
now, as you know, in State Court, and I think temperament is
very important, how a judge reaches his or her decisions and
how he or she treats people in the courtroom. So I think a
judge has to be, first of all, prepared for whatever hearings
are going on at that particular time and courteous,
professional, treat all of the litigants and the parties with
the utmost respect to which they are entitled, and again, I
cannot stress how important I think judicial temperament is.
Senator Durbin. Thank you. Mr. Martinez?
Judge Martinez. Mr. Chairman, I think the judge sets the
tone in his or her courtroom, and I think to that extent it is
important for the judge to be even-handed and open-minded about
the nature of the evidence that is going to be presented and
thoughtful in the process. The adversarial system may be one in
which it can be contentious at times, but I think there can be
disagreement without ever reaching the point of being
disagreeable, and I think the manner in which the judge
conducts the business of the court is oftentimes reflected by
the attorneys and the parties in the court. It is an
uncomfortable arena for most individuals who do not have
occasion to be there on a daily basis and the judge can do much
in ways to disarm any apprehensions a party or a litigant may
have being in the courtroom.
Senator Durbin. Thank you. Mr. Royal?
Mr. Royal. So much of what I have already heard has been
excellent and I agree with all that. As part of the
investigations that were done on me, I was asked a question,
what kind of judge do you want to be, and I said I want to be a
quiet judge, and I said that because I think judges often get
themselves in trouble by saying too much, and so I think it is
important to exercise self-control from the bench. I think it
is also very important for the litigants to understand that
they are getting a fair trial and that the judge is open-
minded. I think those are really essential.
Senator Durbin. I think that admonition for quietude could
be shared with some members of the Senate and House, too.
[Laughter.]
Senator Durbin. We err on the other side of that once in a
while.
In America, we pride ourselves on a Constitution which
preserves the rights of individuals and protects them from the
overreach of government. The courts really play a critical role
in maintaining that appropriate balance. It is a difficult
balance to maintain in time of peace, that balance between
civil liberties and national security, when the government says
there are things that we have to do to protect and defend this
nation and others challenge them as perhaps assaulting some of
the core values and liberties guaranteed by the Constitution.
In our history, there have been some examples where there
have been excesses, and in time, we have come to realize the
Japanese interment camps went too far in taking ordinary law-
abiding Americans, and because of their ethnic ancestry,
literally interning or imprisoning them for long periods of
time.
I would like to have your thoughts on that particular
issue. Now that we are facing a war against terrorism, a very
real attack against the United States, this debate will rage
on, and if you are fortunate enough to be confirmed, may come
to your courtroom, and I would like your thoughts about that
appropriate role of the government, the rights under the
Constitution, and the role of the judge. Mr. Royal, would you
start?
Mr. Royal. Well, I think that we are at a time when
national security is a great issue and we are at a time when it
is a very grave matter, implementing safety in this country. I
think that it is very important that we understand that it is
times like these when there can be problems by overlooking the
rights that you mentioned in the Constitution, neglecting those
rights, and I think that it is very important that that not
happen, that we maintain a good balance between seeking out
efforts, devising ways to protect our country within the realm
of what is constitutional.
Senator Durbin. Mr. Martinez?
Judge Martinez. Mr. Chairman, I agree with my fellow
nominee. I think that it is certainly important to realize that
the rights afforded to each of us are personal rights, and
certainly the 14th Amendment guarantees to us that no person
should be in any way deprived of equal protection of the laws.
I think it is an important balancing act.
It certainly is an appropriate arena for the Senate
Judiciary to make inquiry of with respect to the issues that
will affect all Americans and I think it would be
inappropriate, however, to ask how a judge would handle a
particular case that may come before that judge, given the fact
that we must approach that with an open mind, listening
thoughtfully to the evidence and making a decision based upon
the facts and the law, which I certainly will follow.
Senator Durbin. Thank you. Mr. Mahan?
Judge Mahan. Thank you, Mr. Chairman. I think that you
yourself struck the appropriate note when you said balance,
because it is a balance. It is a balance between--obviously,
the government is concerned about the safety of its citizens
and it should be concerned about that. But all of us have to be
concerned, and particularly we members of the judiciary have to
be concerned about the civil liberties.
And so I think, as Judge Martinez said, it is an
appropriate subject for the Committee and the Congress to look
at and to consider, but it is something that we need to be very
mindful of. In the rush to safety, we cannot overlook the
constitutional liberties that we all enjoy and that are the
basis for our freedoms in this country.
Senator Durbin. Thank you. Ms. Krieger?
Judge Krieger. Thank you, Mr. Chairman. I agree with all
the comments that have been made and I would only add that
security and liberty are the flip sides on the same coin. If we
did not have civil liberties, there would be nothing to keep
secure, and indeed, it is the preservation of those civil
liberties that prompt us towards security.
Keeping a balance between those is difficult. It is a
matter of policy. It is a matter of the people's will through
their elected representatives, the Congress. Ultimately, we may
face an issue, any one of us, that is brought before the
courts, and in that event, we will have to decide the issue on
the merits with the presumption that any enactment is
constitutional.
Senator Durbin. Thank you. Ms. Granade?
Ms. Granade. Mr. Chairman, I think that this is one of the
great public policy issues that Congress is currently having to
grapple with and that it is the most appropriate subject for
Congress to address initially.
I do believe that once Congress has spoken on all of these
issues, it is up to the judiciary at that point to respect any
bright lines drawn by Congress in that regard, unless and until
it flies in the face of the Constitution, and that is where the
judiciary comes in. But with all due deference and respect to
those Congressional decisions, I think that is where the real
battle will lie.
Senator Durbin. Thank you.
Senator Sessions, would you like to ask?
Senator Sessions. Yes, thank you. I congratulate each of
you. From what we have seen, and your backgrounds have been
reviewed very carefully with the people who nominated you and
submitted your name for nomination, by the White House and the
President, by the ABA, by the Congress now, the Senate, this
Committee, on both sides of the isle, so I think it is
something that you should take great pride in, that your
nominations are moving forward and things look very good for
each of you. I know each of you will make a great judge.
I would mention one thing, and Ms. Granade, I will start
with you. Tell me your thoughts on the rule of law and the
importance of maintaining a consistent rule of law in America.
Ms. Granade. As I have heard Judge Hand say time after time
after time, this is a nation of laws and not of men, and the
rule of law is prime in our system of jurisprudence. That is
what makes stare decisis such an important factor in how any
judge goes about the business of being a judge. I think that as
long as judges follow the rule of law and do not become a law
unto themselves, they will make a fine judge, and that is what
I intend to do should I be so fortunate as to be confirmed.
Senator Sessions. Thank you. Ms. Krieger?
Judge Krieger. The rule of law is the basis of what this
country is built upon. It is what holds us together as a
society. We come together with differing religions, differing
ethnic backgrounds, differing ages, different cultural
practices, but it is our fundamental belief in the rule of law
that holds us together and it is the judge's duty to serve the
rule of law.
Senator Sessions. Mr. Mahan?
Judge Mahan. Thank you, Senator Sessions. I think the
uniformity and the consistency of the law are very important to
this country, that we do not have differing decisions depending
on what part of the country you are from or perhaps from your
background, but we have judges who are committed to the rule of
law and to the precedents that have already been established. I
think it is important that we all know where we stand, and the
rule of law is something that is certain, that all of our
citizens can count on, and I think it is very important. It is
a vital part of our society.
Judge Martinez. Senator, thank you very much for the
question. I agree with what my fellow nominees have said. We
are a nation of laws. I think it is important to remember the
judges do not, or should not, allow their personal opinions or
political beliefs to in any way influence any decision which is
made. The decisions, certainly for a Federal District Court
Judge, ought to be guided by interpretations by the Circuit
Court in which he or she resides or lives and certainly by the
United States Supreme Court, and that is a commitment that I
would make, to follow the law as interpreted by the higher
courts.
Senator Sessions. Mr. Royal?
Mr. Royal. Well, I think that is a very important question,
Senator, and I believe that the rule of law really provides the
infrastructure for any viable society, without which a society
cannot last very long because it will turn to anarchy. I think
it is very important as a part of that to apply the rule of
stare decisis, which I am committed to do, and follow the
various precedents of the courts. When you do not do that, then
everything becomes a matter of subjectivity and it becomes
quite dangerous.
Senator Sessions. I would agree very much. You know, on the
Supreme Court building are the words, ``Equal Justice Under
Law,'' and we cannot have justice or equal justice if we do not
have a good rule of law. I am convinced, as I have grown older
and seen more things, that our economic strength and our
political liberties are a direct result of the fact that we
have one of the finest legal systems the world has ever known
and that many fine and decent countries filled with fine and
decent people that are struggling so terribly economically and
otherwise is a direct result of not having a good legal system
in which people can invest, plan, have confidence, safety,
security, and all those things. I do not think we spend enough
time celebrating the unique wonder of the American legal
system.
Ms. Granade, let me ask you one thing. You are going to be
trying, at some point--criminal cases, unrelated to those that
were in your office when you were there. Do you think you can
give defendants a fair trial after all these years of
prosecuting and be able to control those prosecutors that come
before you?
Ms. Granade. Senator, I believe that I can. I think that in
the last ten years since I have been in a supervisory position
in the U.S. Attorney's office, I have practiced seeing the
other side of cases a lot. I have practiced testing the
Assistant U.S. Attorneys in the office on what I see as the
defense side of the case. So I think in the criminal realm, I
have come to understand both sides. The best way to test your
own case is to know the other side. And so I have confidence
that I have the ability to do that.
Senator Sessions. I do, too. I do not have any doubt of
that. I would say that your success record in prosecution is in
large part due to the fact that you did not bring bad cases.
You knew how to evaluate a case from the beginning, which is a
good thing to do.
Let me ask each of you others, I do not know what your
prosecutorial experience is, but in Federal Court, a prosecutor
is at the mercy, to a large degree, of the Federal Judge. A
defendant can appeal any adverse ruling against the prosecutor,
but the prosecutor cannot appeal adverse rulings against the
government. I guess I would like to ask you, do you understand
the seriousness of that? It has been said certain judges would
rule for the defense because that way they could never be
reversed. You have heard that statement.
So I guess I would ask you, will you do your best to give
the government's case in a criminal case the same fairness that
you would give to the defense case? Ms. Krieger?
Judge Krieger. I will, sir.
Senator Sessions. Mr. Mahan?
Judge Mahan. And Senator Sessions, I certainly will. As a
sitting judge now, it is one of the proudest moments or
achievements at the conclusion of a case when I have the
attorneys, both sides, say to me, you were fair. I really--I
consider that the highest compliment that a judge can receive
and I really treasure those, so you have my assurance that I
will be fair to both sides, regardless of whatever case it is.
Senator Sessions. Mr. Martinez?
Judge Martinez. Senator, it sounds like the rules relative
to appealing cases from the State side is similar in the
Federal system as it is in the State of Texas, and I have
committed to do so, and having served as a District Court Judge
for nearly a decade, or just over a decade, I would continue to
do so and commit to you, sir.
Mr. Royal. I have prosecuted a number of cases, so I am
quite familiar with the rule that you just mentioned. However,
I have also served as defense counsel for many criminal
defendants, so I have a very good and balanced view of both
sides of that. Certainly, I understand the deference required,
the necessity of giving a fair trial to both sides, and I am
certainly obligated to do that.
Senator Sessions. Good. Mr. Chairman, you know, one of the
most significant unreviewable powers in America is at the
conclusion of the prosecution's case, a Federal Judge can order
a judgment of acquittal no matter what the evidence is and
there is no appeal whatsoever, even though the person may have
been a murderer, a bank robber, a big-time drug dealer, and we
seldom have a problem with that. It is amazing how little
problems there are, but there have been instances in which that
has been reviewed. That is the reason I ask that.
I thank each of you for being here and for your commitment
to public service, and I know each of you are going to find
this is a difficult job managerially and the caseloads will be
difficult and certainly not a position in which you can relax.
It is going to take a lot of work and I hope that you are all
committed to that. Thank you.
Senator Durbin. Thank you, Senator Sessions.
Ms. Granade, there has been a lot of discussion in this
Committee for a long time about the theory of strict
construction of the Constitution and admonitions of judicial
restraint come from members of this Committee to virtually
every nominee for the Federal bench.
You have an interesting family heritage. It is my
understanding that your grandfather, Judge Richard Rives,
played an historic role as one of the four judges of the old
Fifth Circuit who helped to desegregate the South in the 1950s
and the 1960s. The role he played in the face of overwhelming
popular resistance involved a great deal of courage and
judicial oversight and, some may say, beyond the strict
construction interpretation of the Constitution, where he felt
that he had a responsibility to do things which, or to view
laws in a way that had not been addressed before.
As you reflect on his contribution which he has made to the
country, to our nation, how do you reconcile that in terms of
strict construction and judicial restraint?
Ms. Granade. Thank you for the question, because it gives
me an opportunity to comment on that heritage, and I am very
proud of the heritage in my family. Judge Rives, my
grandfather, really is my personal hero.
I do not think there is a real conflict there, though,
because the issues on which he more or less broke with
precedent were ones which really flew in the face of the
Constitution, the direct language of the Constitution. So in
that sense, he could have been termed a strict constructionist.
I think a judge will always be correct if the decisions
that he or she makes are consistent with the plain language of
the Constitution, and that is what I feel that my grandfather
was doing.
Senator Durbin. Thank you. Judge Martinez, being a person
of Hispanic ancestry, you undoubtedly have seen in your
practice and in your service a number of indigent criminal
defendants who have been called to court. There have been
questions raised by many minorities in this country as to
whether or not they have a fair shake under our system,
competent counsel, and whether, in fact, their rights and
liberties are being protected in our system of justice. What is
your thought on that observation?
Judge Martinez. Mr. Chairman, thank you for the question. I
think it is absolutely essential that the right to counsel be
the right to effective and meaningful counsel. In my own
personal situation, one of the reasons that we have made use of
the public defender system within the juvenile system which I
have overseen over the course of the last decade is because of
the quality of the representation that is afforded to the
delinquents, the individuals who are charged with differing
crimes.
I think, given the precious liberties that we enjoy as
American citizens, the importance of safeguarding those
liberties, the only way to do so is to provide effective
counsel to those who are charged with crimes which could result
in the deprivation of their life, liberty, or property, and I
would surely support the effort of the public defenders in the
Federal system and appoint lawyers who are competent to
represent these defendants.
Senator Durbin. Thank you. Mr. Royal, you bring a
background which is somewhat unique to this nomination. It is
my understanding that in the course of your practice, you
successfully defended a defendant who faced a death penalty.
Mr. Royal. That is correct.
Senator Durbin. There has been a great debate across this
nation about the death penalty. In my State, the Republican
Governor, to the surprise of many, suspended the death penalty
because of case after case on death row which were shown to
have been decided incorrectly. Some 12 or 13 men were released
from death row in Illinois after DNA evidence and other
evidence made it clear to all of the prosecutors that they
could not have possibly committed the crime for which they had
been found guilty and to which they had been sentenced to
death.
What is your perspective on that in reference to both
competent counsel and DNA evidence and the question of the
death penalty?
Mr. Royal. Well, I recall from my case, and it was tried
over 20 years ago, that I felt a great burden in defending a
man who the State sought to execute, and I believe that in any
such circumstance, there has to be a heightened awareness, a
heightened vigilance about all aspects of the trial where the
death penalty is actually being conducted, and I think it is
very important for the judge sitting in the trial of that case
to go beyond the usual steps to ensure that the case is tried
fairly, that all the constitutional rules are applied, and that
mistakes are not made.
Now, I am not familiar with the DNA testing and I do not
have any particular insight into that, so it is hard for me to
comment on that. But I think that the death penalty has very
serious implications and needs to be dealt with very
delicately.
Senator Durbin. Thank you. Ms. Krieger, your background has
been in bankruptcy law, to some extent, but you as a Federal
Judge will face a lot of criminal cases in a hurry. I think
that is a major part of the docket for most Federal District
Court Judges, because of the speedy trial requirements and the
like.
One of the issues that has been debated here in Washington
and across the nation is the whole question of racial
profiling, and virtually every elected official has condemned
this practice, as they should. When it comes down to the
administration of justice in America, there are some statistics
which I have brought up many times in this room to nominees for
Attorney General and for judicial posts which cause me great
pain and pause, which are these African Americans that
represent 12 percent of the United States population. We are
told by the experts they commit 11 percent of the drug crimes,
and yet 35 percent of those arrested for drug crimes are
African Americans, 53 percent of those convicted in State
Courts are African Americans, and 58 percent of those
incarcerated in State prison are African Americans.
This disparity between actually committing the crime and
being charged, convicted, and incarcerated shows that, at least
in some stage in the system here, something is not being
handled in a fair and equitable fashion, at least from my
conclusion. What is your observation of the role of the judge
confronted with this kind of a challenge?
Judge Krieger. That is a very important question, not only
prior to September 11 but also since September 11. The issue of
racial profiling goes right to the heart of the central values
that we have in this country, and that is that no one should be
discriminated against on the basis of race. The law is settled
with regard to that and it is a judge's obligation to apply
that law in a fair and consistent manner. It is particularly
important when freedom and perhaps someone's life is at stake.
The essence of a criminal matter differs from a civil
matter in that in civil matters, we are only talking about
property and money, but in a criminal matter, we are talking
about personal freedom and we are also talking about the
sanctity of life and both of those areas demand a very high
attention from the bench in making sure that the process is
fair and it upholds the strict requirements of due process.
Senator Durbin. Thank you. Mr. Mahan, you may be aware of
the fact that I represent the State of Illinois. You may not
know, but I want to make it a matter of record here, that I am
quite a die-hard Chicago Bulls fan.
[Laughter.]
Senator Durbin. You should know that I took great pride in
all of their championships and watched as many games as
possible and followed them as closely as I could, and you are
probably wondering--maybe you already know where this question
is headed.
You recently made a decision to permit television cameras
to broadcast the civil trial against Dennis Rodman, former
Chicago Bull. This is of particular interest to me not just
because I have watched Rodman and his different hair colors on
the court for so many years, but also because it raises a
question that we are facing as a nation as to television in the
courtroom.
Every time I have asked people who want to be prosecutors
or judges about the issue of television in the courtroom,
without fail, they make reference to the O.J. Simpson trial as
evidence of how it can go wrong and how it becomes the focal
point of the trial as opposed to the administration of justice.
How do you feel that we can strike a balance, or can we strike
a balance on a national basis when it comes to this issue?
Judge Mahan. Thank you, Mr. Chairman. I myself am a Denver
Bronco fan, so I know how you feel about the Chicago Bulls,
although they are different sports.
In the Dennis Rodman case, it was interesting to me that
his counsel was opposed to having the cameras in the courtroom
because they felt that it would encourage frivolous lawsuits. I
ruled against them and opened the courtroom to the cameras and
I told them that I think the opposite is true, that it is
important that people see what goes on in the courtroom.
I think too many of our citizens turn on TV and they see,
and I will not mention any names, but let me call them pseudo-
judges who, frankly, berate people, treat them rudely and with
contempt, and they think that is the way a judge should be, and
to me, that is horrible. I think it is important that people,
that ordinary citizens see that this is the way that judges
operate. I mean, they should see real life. This is the way
judges operate. It is not the ``People's Court'' or something
else where you go in there and you are subject to being abused.
And so I think the balance, of course, is one that an
individual judge must strike, assuming, as in our State, where
cameras are permitted in the courtroom subject to what the
judge permits, but I would balance those two things. In other
words, if it is a kind of a trial that could be reduced to a
spectacle, I think you need to be careful. But I think in large
part, it depends upon the judge. The judge is to keep order in
the courtroom and to run his courtroom in a reasoned,
reasonable fashion, and if the judge does not fulfill that
duty, then, unfortunately, the trial degenerates, and that is
true of any trial, whether it is being televised or not.
But I look primarily to the trial judge to strike that
balance and make sure that the trial is fair and do not get
sidetracked by the fact that there are media present.
Senator Durbin. Thank you.
Senator Sessions, do you have any other questions?
Senator Sessions. You know, one of the things that I have
noticed in the statistics we are seeing is a decline in the
number of cases actually going to jury trial. It raises a
concept of how justice is being dispensed in Federal Court and
the complaints we hear as government officials about delay and
cost.
I guess I would like to ask your view about the role of a
judge in managing a case, moving it promptly to a justice
position, and being involved in that case in terms of you have
got a serious motion to dismiss or a motion for summary
judgment. How strong do you feel that a judge ought to confront
that issue and try to decide it promptly and what are your
thoughts about managing your docket generally? Ms. Granade?
Ms. Granade. I think it is very important for a judge to
manage the docket efficiently but without any cost to due
consideration and fairness in the case, and each case is going
to have to be judged on its own merit in that regard as to how
fast that case can be moved along. I think it is vital, though,
for judges to address as soon as practicable within the case
any dispositive motions, because the sooner a case can be
decided, the quicker justice will be dispensed.
Senator Sessions. I get a lot of complaints that serious
motions just lie there for months and months and months. Ms.
Krieger?
Judge Krieger. There is an old maxim, justice delayed is
justice denied, and I think that is applicable even in motion
practice. It is critical to make sure that every case gets the
appropriate slice of the judicial pie at the appropriate point
in time, and I believe not only in active case management, in
moving cases along and assisting attorneys to move those cases
along, but I believe in legal triage, which means that you have
to make an assessment when motions come in as to what needs to
be heard promptly and what can wait. The old first in, first
out rule sometimes leaves cases undecided and motions undecided
to the detriment of the parties.
Senator Sessions. And you are serving the public. In that
sense, I think that is correct.
Mr. Mahan?
Judge Mahan. Thank you, Senator Sessions. I think that case
management is something that is very much a concern of all
sitting judges and it is a matter that needs to be addressed
continually. I think a mistake that many judges make is they
take matters under advisement too often and I think the better
practice is to be prepared, hold a hearing, and then whenever
possible, just rule from the bench so that people can move, or
the litigation can move along. People can get on with their
lives.
But your question almost assumes that you have seen
situations where that has not happened, and--
Senator Sessions. Not in the Federal Court in Mobile, but--
[Laughter.]
Senator Sessions. They never delay rulings.
Judge Mahan. No, no, no, but--
Senator Sessions. I have heard it from other areas.
Judge Mahan. From other--but it is a concern that the judge
address any motions that are filed promptly and not simply take
matters under advisement and, first of all, not let the motion
sit there for months before there is a hearing, but get a
hearing promptly and then get a ruling promptly. If it has to
be taken under advisement, then the judge should issue a ruling
as soon thereafter as possible, because a case is not like
wine, where it turns better with age. It is like milk. It turns
sour with age. So I am aware of those concerns and I have those
concerns, as well, about case management.
Senator Sessions. Mr. Martinez?
Judge Martinez. Senator, I agree with what has been said by
my fellow nominees. I think there are various procedures that
are afforded judges which will allow for the dispositive ruling
of cases which do not merit going the full distance. I
certainly think the use of the summary judgment rule, either a
no evidence summary judgment or an affirmative summary
judgment, is something that should be considered.
I agree very much with what Judge Mahan said about taking
matters under advisement. We would all love to have the wealth
of time in order to make the most informed decision possible,
but I think the best trial judges with whom I have been
acquainted are those trial judges that decide issues and move
it down the process, and occasionally you may make a mistake or
two, but there are others available to grade your paper.
Justice delayed is justice denied and I commit to an active
role in docket management, as I have done so while a State
District Judge in El Paso, and I think the key to docket
management, very honestly, I have every case set for something
so that nothing falls by the wayside, and that way, every case
comes up at one point or another for some kind of consideration
and that is what I have found to be effective.
Senator Sessions. Mr. Royal?
Mr. Royal. Senator, you have really hit on a big issue and
really one of the biggest complaints that attorneys have, and
even with Federal Courts and State Courts, too, and I will tell
you that I have been the victim of that problem many times,
where I have had to wait for a year or other situations where I
never got a ruling and the parties just had to resolve the case
on their own before the court ruled.
Based on my experience with that and knowing what a vexing
problem it is, I have already made a commitment to myself that
I am going to move forward on these rulings because it is
really very important--
Senator Sessions. Well, a cause of action. If a cause of
action is not a valid cause of action and you really believe it
is not valid, it is hard to settle the case if the other side
is still saying you owe money under that cause of action. Do
you not think it clarifies the issues and allows for settlement
to occur more effectively?
Mr. Royal. Right. Well, the avenue would be to file a
motion to dismiss. We just had a case recently in Macon where
we filed a motion to dismiss. We did not think there was a
viable claim and the judge promptly entered the order, which
worked out very well. And then sometimes we file motions for
partial summary judgment to throw out a particular count.
But the reality is if the judge lets that sit and sit and
sit, then that obviously requires more legal expenses to be
paid and it takes more time and it results in what should
have--a lengthy disposition of a case that should have been
disposed of much earlier.
Senator Sessions. And the expense issue is significant. If
a cause of action which may represent half of the litigation is
not a valid legal cause of action, you may spend a lot of money
on discovery and costs and investigations that would not be
necessary.
Mr. Chairman, thank you for raising Ms. Granade's
grandfather, Judge Rives, who is definitely one of the great
judges on the old Fifth Circuit. It is now split and we are in
the 11th Circuit part of that. I think it was a very difficult
time for those judges. It was not easy. A huge sea change had
to occur, and when the judge ruled that, the 11th Amendment
says no State shall deny any individual equal protection under
law, he was acting with fidelity to our Constitution.
So I thank you for raising that and I think this is an
excellent panel. I think they will do a great job.
Senator Durbin. Thank you very much, Senator Sessions. I
certainly agree with you and I want to thank all of you for
coming today and for your testimony and your families and
friends for joining you. This will be the end of questioning
and you are now free to go. We will leave the record open for
one week to allow Committee members to submit written
statements and follow-up questions and I ask my colleagues to
try to do so earlier rather than later so we can move these
nominees along expeditiously. Thank you very much.
Judge Mahan. Thank you, Mr. Chairman.
Judge Martinez. Thank you, Mr. Chairman.
Mr. Royal. Thank you, Mr. Chairman.
Senator Durbin. I am going to call Mr. Tamargo forward. I
have to leave in just a few moments. If our questioning goes on
for a while, I may have to ask for a small recess here, but we
will try to consider his nomination, give him appropriate
questioning, and still meet our other obligations.
Mr. Tamargo, would you please rise and raise your right
hand as I administer the oath.
Do you solemnly swear the testimony you are about to give
before the Committee is the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Tamargo. I do.
Senator Durbin. Thank you. If you would be seated, and if
you would like to introduce family and friends who are here
today and make an opening statement, you are welcome to.
STATEMENT OF MAURICIO J. TAMARGO, NOMINEE TO BE CHAIR OF THE
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES
Mr. Tamargo. Thank you, Mr. Chairman. I will be happy to
waive my opening statement.
I would like to introduce, though, my wife, Tara, of 16
years, and my two children, Erin and Greg. They are the joy of
my life and my solace in this crazy world and also my secret
weapon.
And, of course, you know Congresswoman Ros-Lehtinen, and I
wanted to thank her and Senator Bob Graham and Senator Warner
and Congresswoman Carrie Meek. Their introductions of me were
really moving and I wanted to thank them for that. And in the
room are many of my friends and colleagues and my coworkers.
Thank you.
Senator Durbin. Thank you very much.
Let me ask you, do you have an opening statement beyond
that?
Mr. Tamargo. I will waive my opening statement. I will
submit it for the record.
Senator Durbin. Thank you very much.
Let me ask you about this Foreign Claims Settlement
Commission, and I do not profess to be an expert on this
Commission. I have read a little bit about it in preparation
for your nomination hearing today. It is not currently
administering active claims programs. You have been used to a
very different schedule in Congresswoman Ros-Lehtinen's office,
I am sure. Tell me how you envision this Commission's role
under your leadership and how it might change.
Mr. Tamargo. I envision, of course, continuing the work
that the Commission is doing at this time, which is providing
information to interested parties of settled certified claims,
and I plan to work with the Congress on pending legislation
that might--that is pending that would create new claims
programs, and, of course, continue cooperating with the State
Department on a technical basis, helping them in any
discussions they may be having with other countries over
existing claims.
Senator Durbin. Under a 1998 amendment to the statute
governing this Commission's jurisdiction, the Commission was
given responsibility for adjudicating any category of claims
against a foreign government which is referred to the
Commission by the Secretary of State. Are you aware of any
plans by the State Department or Secretary of State to refer
any categories of claims to the Commission?
Mr. Tamargo. No, I am not.
Senator Durbin. And no one in the administration has
discussed this issue with you in the context of your
nomination?
Mr. Tamargo. No. No, they have not.
Senator Durbin. Okay. Let me ask you specifically about the
land of your birth, Cuba. As you know, there are many Cuban
Americans who lost land or property when Mr. Castro seized
power in 1959. Do you know of any efforts to refer claims to
the Commission by Cuban Americans who were Cuban nationals at
the time of the loss of their property?
Mr. Tamargo. I am sorry, repeat the question.
Senator Durbin. Do you know of any efforts to refer claims
to this Commission by Cuban Americans who were nationals and
lost their property when Mr. Castro came to power?
Mr. Tamargo. No.
Senator Durbin. Do you believe that Title III of the Helms-
Burton law would permit those who lost property in Cuba to file
a Federal lawsuit against companies that traffic in such
property?
Mr. Tamargo. Title III?
Senator Durbin. Of Helms-Burton.
Mr. Tamargo. I believe so.
Senator Durbin. You do? And do you know of any efforts
within the administration to implement Title III?
Mr. Tamargo. I do not.
Senator Durbin. Okay. Perhaps I am going to send you some
written questions. I do not want to put you on the spot, not
having the law in front of you and not having some time to
reflect on it and I want to make certain that you give us a
complete answer based on all of that information. So I am not
going to pursue this, but if you would not mind, I will send
you a few questions that you might get back to me on.
Mr. Tamargo. Certainly, Mr. Chairman.
Senator Durbin. Thank you.
Senator Sessions?
Senator Sessions. Congratulations, Mr. Tamargo. I
congratulate you on having the support of Senator Graham,
Senator Warner, and Ms. Ros-Lehtinen. I think that speaks well
for you.
I note in your background you are a graduate of Cumberland
School of Law--
Mr. Tamargo. That is right, sir.
Senator Sessions. --where I am proud to say my daughter is
Student Bar President right now. It is an excellent law school
and I am proud to see that you attended there.
Do you have any thoughts as you go into this job about what
you would like to accomplish and how you would like to conduct
the job?
Mr. Tamargo. Yes, sir. I hope to be a strong advocate for
Americans who have had their properties confiscated, provided
that they show to the Commission, to the satisfaction of the
Commission, their claim is just, and I hope to help them
protect that right overseas. To me, property rights is an
important right in this country and I think it is important for
Americans to have the protection of their government if they
own property overseas in other countries.
Senator Sessions. Okay.
Senator Durbin. Thank you, and I will submit some written
questions to you.
[The biographical information of Mr. Tamargo follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. This will conclude this morning's hearing.
I want to thank Congresswoman Ros-Lehtinen for coming early and
staying late. It is obvious that she is committed to you
personally and to your nomination for this Commission.
As with the judicial nominees, the record for Mr. Tamargo
will be open for one week to allow Committee members to submit
written statements and follow-up questions. I ask my colleagues
to try to do so earlier rather than later because we want to
move the nominations along. Thank you again.
The hearing is adjourned.
[Whereupon, at 11:45 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
QUESTIONS AND ANSWERS
Responses of Mauricio J. Tamargo to questions submitted by Senator
Leahy
Question 1: What will you top priorities for the Foreign Claims
Settlement Commission be if you are confirmed as Chair?
Answer: If I am so honored as to be confirmed one of my priorities
would be to raise the profile and public awareness of the services the
Commission provides. I also would continue providing technical
assistance to the Department of State and to the Congress as they deal
with the issue of Americans who have suffered a loss at the hands of
another country. I would also make sure that the records of past claims
programs are readily accessible to the public as provided for in the
law.
Question 2: Under a 1998 amendment to the statute governing the
Foreign Claims Settlement Commission's jurisdiction, the Commission was
given the responsibility of adjudicating any ``category of claims
against a foreign government which is referred to the Commission by the
Secretary of State.''
A. Do you know of any plans for the Secretary of State to refer
any new categories of claims to the Commission?
Answer: As I stated in the Hearing, I do not know of any new
categories of claims which the Department of State may be considering.
I am familiar with the 1998 law providing for these Secretary of State
referrals of new categories of claims. If I am so honored to be
confirmed, I would be prepared to provide any technical assistance the
Secretary may require in preparing such claims categories. I assure you
than the Commission's involvement in this matter would be limited to
providing technical assistance to the Secretary of State and it would
not involve any policy questions relating to the creation of such new
categories.
B. What about claims against Cuba by United States nationals who
were Cuban nationals at the time of the loss of their properties, or
any other category of claims against Cuba? Do you know of any plans for
those sorts of claims to be referred to the Commission?
Answer: I am not aware of any discussions or plans to Secretary of
State may or may not be having regarding new claims categories
involving any country, including Cuba. If such a referral were to
occur, the Commission's role would simply be to review questions of
law. If confirmed to be Chair of the Commissions, I will be guided, and
limited by, the laws which created the Commission and under which the
Commission operates.
Question 3: Is it your belief that there will be new claims against
Cuba before the Commission over the next few years, or do you think
that the Commission will have a new Cuban claims program before long?
Answer: I am not ware of any plan or discussions about creating a
new Cuba claims program. Here again, I would be guided by the law. The
Commission plays no role in the shaping of policy issues involved in
future claims programs other than providing technical assistance and
information.
Question 4: The historic practice of the United States has been to
have the Commission adjudicate only the claims of persons who were
United States nationals at the time of their property loss or other
injury. In the Commission's Cuban Claims program, the Commission, by
congressional edict, did not consider claims by persons who were Cuban
nationals at the time of their loss.
Courts of the United States have repeatedly ruled that a country
does not violate international law by taking the property of persons
who are nationals of that country at the time, even when the taking is
without compensation.
Do you agree that if the Commission were to undertake a claims
program for persons who were Cuban nationals at the time of their loss
it would be contrary to Congressional intent and settled precedent?
Answer: The Commission will administer claims programs as directed
by the law. Where there is ambiguity in the law, the Commission would
look to Congressional intent and follow such intent as controlling
authority. A claims program which allows non-citizens at the time of
their loss to file claims with the Commission would run contrary to
Congressional intent.
Question 5: The Commission's work can involve the interpretation
and application of international law. To the extent that you lack
experience and expertise in international law, what steps will you take
to improve your base of knowledge in that area?
Answer: While I was staff director of the Subcommittee on
International Economic Policy and Trade, I acquired some knowledge of
international law because we held several oversight hearings and
briefings with then Assistant Secretary of State, now Under Secretary
of State, Ambassador Al Larson, regarding the U.S.-E.U. negotiations
over the proper policy world wide on property rights and confiscation.
If confirmed by the Committee and the Senate I would, as with any legal
question, address the application of international law, by reviewing
the available case law and seek the opinion of the General Counsel of
the Commission. I also plan to keep up with the relevant legal
literature and attend legal conferences on the subject.
There have been a variety of estimates of the numbers of claims
that could that could be expected if the State Department does refer a
new set of Cuban claims to the FCSC. The State Department estimates it
could fall somewhere between 75,000 and 200,000 claims, and during the
debate on Helms-Burton, some said the number could be as high as
400,000.
The rate of decision making on the initial claims by U.S. nationals
against Cuba, between 1965 and 1972, was about 1,500 claims per year.
That would mean the 10 attorneys at the Commission who handled these
claims decided about 150 claims a year. Taking the middle of the
estimates I mentioned, we calculate that the Commission would need to
employ over 325 attorneys to process claims at the same rate.
A. Mr. Tamargo, do you have any estimate so to the number of
claims that could be expected if the State Department refers claims of
those who Cuban nationals at the time of the loss of their property?
Answer: I have no estimates as to the number of claims the
Commission could expect in such an eventuality. I would want to look at
the laws and precedent applicable to this hypothetical to see if the
Commission would be obliged to administer such a claims program. I do
understand the Committee's concern on this issue and if confirmed I
pledge to proceed carefully and follow the law.
B. Do you have any thoughts about or plans to hire additional
attorneys if Title III is implemented? Can you provide us with an
estimate of the kinds and amounts of resources that would be needed to
support such a claims program?
Answer: If there is a new claims program created or Title III of
Helms-Burton is implemented, I would work with the Congressional
Committees of jurisdiction to help determine what resources the
Commission might need. This process would include providing Congress
technical information such as the number of claims likely to occur;
past programs of comparable size and the amount of time and resources
it took to administer them; and a proposal with description of how the
increase in funds would be administered. Understanding the fiscal
challenges which face the Congress, I would make myself available to
the Committees in order to arrive at an appropriate funding level.
Question 7: I think we are all hopeful that relations with Cuba
will be normalized one way or another in the not so distant future. If
there were thousands, or even tens of thousands of claims pending at
the time of normalization, what sort of obstacle to that process could
those claims pose?
Answer: I appreciate the Committee's interest; however, this
question addresses an issue that will have to be dealt with by the
Congress and the policy entities of the Administration, not the
Commission. The statutes that created the Commission state clearly that
the Commission is to be an independent quasi-judicial agency which
adjudicate claims of American citizens who have suffered a loss from
the actions of another country.
Responses of Mauricio Tamargo to questions submitted by Senator Durbin
Question 1: As you know, the State Department now has legal
authority to refer new categories of foreign claims to the Foreign
Settlement Claims Commission. At the same time, the Commission is part
of the Justice Department, and it has an independent statutory
responsibility to decide claims by applying ``applicable principles of
international law.''
A) If confirmed as chairman of the Commission, would you make an
independent assessment to determine whether a category of claims
referred by the State Department was consistent with applicable
principles of international law?
Answer: If so honored as to be confirmed I will keep all my
deliberations independent and free of any policy considerations. I
would be guided by U.S. law and would apply applicable principles of
international law. I would defend the independent status of the
Commission within the Department of Justice as my predecessors have
done before now.
B) If you concluded that a category of claims referred by the
State Department was not consistent with international law, how would
you adjudicate those claims?
Answer: If I examined a category of claims referred to the
Commission by the Department of State and found them to be inconsistent
with international law and not provided for or authorized by U.S. law,
then I would adjudicate the claims as not valid. As you stated above,
the Commission is a quasi-judicial independent agency administered by
the Department of Justice. The Commission takes no positions on foreign
policy questions and takes no direction on issues of law from foreign
policy departments. The only guide that the Commission follows is the
law. Any other considerations are not relevant.
Question 2: What is your view of the role of the Foreign Claims
Settlement Commission vis-a-vis the State Department and other agencies
that have responsibility for U.S. foreign policy?
Answer: The role of the Commission vis-a-vis the foreign policy
agencies is to provide those agencies, the Department of State mainly,
with technical assistance in dealing with property rights and
confiscated property issues, to assist them in negotiations with other
countries on the same issues--such as the numbers of claims likely to
arise, value of the property in questions, the history of the property.
That is the role for the Commission, as provided by the laws that
created the Commission.
Question 3: In your view, would it be consistent with ``applicable
principles of international law'' for the Commission to award claims
for seized property to those who were not U.S. citizens at the time
that their property was seized? Please explain.
Answer: I do not believe the claims would be valid under applicable
principles of international law and Commission precedent if the
claimants were not U.S. nationals at the time they suffered a loss by
the foreign government. Where U.S. law is silent, the Commission is
guided by applicable principles of international law.
Question 4: Let me ask you specifically about possible claims
against Cuba. From 1965 to 1972, the Commission decided over 8,800
claims by U.S. nationals against Cuba. During the debate over the
Helms-Burton Act, lawmakers estimated that implementation of Title III
of the Act would result in 3000,000 to 400,000 new claims against Cuba
by Cuban-Americans. The State Department has estimated that such claims
could total tens of billions of dollars. There might be even more
claims if the State Department referred a new Cuban claims program to
the Foreign Claims Settlement Commission that was subject to looser
constraints than Title III.
A) In your view, is the Commission equipped to handle a much
greater volume of claims that a new Cuban claims program might bring?
Answer: Having a staff of only 11, counting the Commissioners, the
Commission would certainly need more attorneys and support staff. To
administer any new claims program, the Commission would need to look at
past claims programs of comparable size and study how many claims are
likely to occur based on the size of the class of potential people and
the amount of money involved in each claim, using an average. The
Commission would also need to consult with the Congress and the
Administration to determine the desirable turn-around time for each
claim. After considering all those factors, the Commission, in
conjunction with the Congress and the Administration, would propose a
budget projection.
B) If new Cuban claims were referred to the Commission, what steps
would you take as Chairman to secure the needed resources?
Answer: I would continue working with the Congress so that the
Commission would be authorized, as in past claims programs, to deduct
1.5% from all funds received from a foreign government, to go to the US
Treasury to defray the administrative expenses of conducting the claims
program. Additionally, I would work with the Congress and the
Administration to arrive at a budget request that is a realistic and
practicable.
SUBMISSIONS FOR THE RECORD
United States Senate
Washington, D.C. 20510-0905
November 13, 2001
The Hon. Patrick Leahy
Chairman
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Chairman Leahy:
I am writing to express my support of the confirmation of Mauricio
Tamargo as Chairman of the Foreign Claims Settlement Commission at the
Department of Justice pending before the Senate Judiciary Committee.
My staff has gotten to know Mauicio and has worked with him on
various issues. We have witnessed his impartiality, integrity, and hard
work and believe that he is a strong and effective leader. I am
confident that Mauricio would succeed as Chairman of the Foreign Claims
Settlement Commission and that he would be an effective advocate for
Americans Seeking to recover confiscated property and losses.
Currently, he is the Staff Director for the Subcommittee on
International Operations and Human Rights and also serves as the Chief
of Staff and Legal Counsel for Congresswoman Ileana Ros-Lehtinen. His
many years of experience in international affairs and his commitment to
justice and constituent service make him the ideal candidate for the
post.
Your Consideration of this request is greatly appreciated.
Sincerely,
Bill Nelson
House of Representatives
Washington, D.C. 20515
October 11, 2001
The Hon. Patrick Leahy
Senate Judiciary Committee
United States Senate
433 Russell Senate Office Building
Washington, D.C. 20510-4302
Dear Chairman Leahy:
The White House has recently announced the nomination of Judge
Philip Martinez to the position of Federal Judge for the Western
District of Texas. I am writing to pledge my full support for Judge
Martinez and recommend and request that you approve his nomination and
appoint him to the Federal Judiciary as quickly as possible.
Judge Martinez is an outstanding officer of the court with more
than ten years experience at the trial court level. Judge Martinez has
presided over felony, juvenile and civil cases throughout his
distinguished career. He has effectively managed a vigorous trial
docket and has a reputation of diligence balanced with fairness and
thoughtfulness. As a result of his various professional accolades, he
was elected by his colleagues and served as the Local Administrative
Judge for three years.
Judge Martinez grew up in El Paso, Texas and would serve his
community and the nation with distinction if allowed the opportunity.
He is a graduate of the University of Texas at El Paso and Harvard Law
School. His record is one of accomplishment and thus merits your
serious consideration. Furthermore, his professional credentials and
complimented by the qualities reflected in his numerous charitable and
community activities.
As you know, the Western District of Texas faces a rigorous court
docket each year. Caseloads for the U.S. Attorney's Office in the
Western District of Texas are rapidly increasing. The Federal courts in
El Paso handled over 1,600 criminal cases in 1998 and over 1,900 in
2000. Undeniably, Judge Martinez would be able to step into this
position and immediately focus his attention on advancing cases through
the system. Supplemental training would be unnecessary due to Judge
Martinez's vast experience in the judicial community. In our country's
war on drugs, we can ill afford to lose ground by delaying judgement on
those who are waging the war by violating our laws.
Please do not hesitate to contact me, or Nicholas Almanza of my
staff, if you are in need of additional information or if you have
questions concerning Judge Martinez. I thank you for your
consideration.
Sincerely,
Silvestre Reyes
Member of Congress
Statement of Hon. Richard C. Shelby, a U.S. Senator from the State of
Alabama
Mr. Chairman, it is with great pleasure that I speak today in
support of Jenny Granade's nomination to be United States District
Court Judge for the Southern District of Alabama. Her excellent
credentials speak for themselves. Throughout her academic and
professional career, she has consistently proven herself to be a
distinguished scholar and practitioner of law.
After completing law school at the University of Texas, Mrs.
Granade served as a law clerk to the Honorable John C. Godbold, Jr.,
United States Court of Appeals for the Fifth Circuit, where she gained
valuable experience researching and writing legal opinions. At the
conclusion of her judicial clerkship, she obtained a position with the
United States Department of Justice. In her twenty-four years with the
Department, she served as an Assistant U.S. Attorney, Chief of the
Criminal Division of the U.S. Attorney's Office, and most recently as
U.S. Attorney for the Southern District of Alabama. During her tenure,
she vigorously prosecuted complex cases involving white-collar crime,
tax fraud and public corruption.
I believe that Ms. Granade's vast experience and legal knowledge
make her an ideal nominee for the federal bench. I know that she will
continue to serve our great country with honor and distinction as a
federal judge. Mr. Chairman, I therefore urge the committee to
discharge Mrs. Granade's nomination without reservation, and I hope the
full Senate will be able to consider her nomination before we adjourn
this year. Thank you Mr. Chairman.
NOMINATION OF DAVID L. BUNNING, OF KENTUCKY, TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF KENTUCKY
----------
MONDAY, DECEMBER 10, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:10 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Hatch, McConnell, Kyl, and
Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I thank everybody for being here and I hope
your travel arrangements were worked out. I scheduled this
hearing on the Monday after discussions with Senator McConnell
and Senator Bunning and Senator Hatch. I had been told the
number of witnesses that the nominee wished to bring here and
felt that it would be a lot easier to do it on a Monday rather
than in the middle of the week.
This, I believe, is the 17th nomination hearing we have
had, the 11th judicial nominations hearing, since the Senate
reorganized in July. We have confirmed, I think, 21 judicial
nominees since July, including three last week. There are
several others on the calendar. I think some are up for a vote
tomorrow. I fully expect they will make it through.
As I have pointed out to some of my colleagues, we
confirmed in those four or five months about twice as many
Courts of Appeals judges as were confirmed in the first year of
the Clinton administration, and more than all the judges in
1996. We are trying to move forward before the end of this
year.
A number of things have thrown us off schedule. One, we did
not reorganize until mid-July, but also, we all know the
terrible, terrible events of September 11 and how that
disrupted everything in the Senate. Then we had the anthrax
issue, something that I have probably given more than a little
personal attention to, that closed down the Hart Building, and
has still closed down the Hart Building. I think some of the
Senators on this Committee, Senator Hatch, I know, is in the
Hart Building. I do not know if Senator Kyl is.
Of course, just as important as the 50 Senators who are in
there, there is a great deal of the staff. It closed down the
Dirksen Building for a number of days, where a lot of the
Judiciary Committee staff, both Republican and Democratic
staff, are located and staff do all the work, we merely being
constitutional necessities for the staff. That slowed things
up.
We did hold a number of judicial hearings even on the day
that part of the Capitol was being evacuated. We still went
ahead. We had a series of votes and the Committee crowded into
one room where we passed out nominations. Even as the police
were telling us they were evacuating part of the Capitol
building, we stayed and voted out a number of President Bush's
judicial nominations and then held several hearings that same
day.
I have tried to keep this going, even though I was one of
the two recipients of the anthrax letters, and the attempt made
to kill me and others in the Senate.
Today, we are going to consider the nomination of David
Bunning to be United States District Court Judge for the
Eastern District of Kentucky. The Eastern District of Kentucky
is a district that has been fortunate to have the President
send nominations for its vacancies. A lot of the District
Courts, the President did not send up nominations, but this
one, he has.
Since the elections in 2000, three vacancies have arisen on
the Eastern District bench. Three nominees have been sent to
the Senate and I applaud the two Senators from Kentucky in
pushing hard to do that, because almost 70 percent of the
current District Court vacancies around the country, the
President has not sent a nominee. On those 70 percent, there is
no nominee. Here, there is 100 percent. Two of them, we moved
rather quickly.
I think we scheduled a hearing for Karen Caldwell six days
after her file was complete. I think we had, and Senator
McConnell, correct me if I am wrong on this, we got a report
out of the Committee 16 days later. And then 25 days after her
file was completed, she was confirmed by the Senate.
Danny Reeves, another nominee for that same district, was
able to have a hearing only 40 days after his file was
complete. He was voted out of the Committee shortly after that.
He was confirmed last Thursday, barely two months after the
time all his paperwork was completed.
So it is in sharp contrast to some of the days in the past,
and we want to do even better.
I want to also thank Senator Hatch and the White House for
agreeing to break the biggest logjam we faced up here and that
was a reluctance on the part of the White House to have
nominees answer one of the questions, a question which I
thought was very appropriate, the question being, have you been
convicted of anything within the last ten years that is a
matter of public record? For some reason, the White House has
been reluctant to have judges answer that. It slowed everything
up. As soon as that logjam was broken with the help of Senator
Hatch, we were able to get, I think within about 24 hours of
that, we voted a number of judges out of Committee.
I mention that only because I know that if somebody would
apply for a clerical job in a Federal Court, they would have to
at least assure the judge or the chief clerk or somebody that
they had not been convicted of anything within the last ten
years, and we thought that might not be a bad idea, not only
for judges, but Marshals, U.S. Attorneys, and high-ranking
officials of the Justice Department.
With Mr. Bunning's matter, he comes here highly recommended
by his home State Senators, and I want to mention that that is
a matter and has always been a matter that people on both sides
of the aisle on this Committee have looked to. The
recommendation of one of them is fully expected and both of
them is extremely good. He is also highly recommended by people
he has worked with in the U.S. Attorney's Office.
But the American Bar Association Standing Committee on
Federal Judiciary has informed us that a majority of their
Committee finds Mr. Bunning not qualified for the Federal
bench, and such an assessment has traditionally and sensibly
meant that the nomination gets a closer look than those the ABA
ranks as ``qualified'' or ``well qualified.'' I should also
emphasize that it has been my experience in 25 years here that
the ABA recommendation is an advisory one, but each Senator has
to make up his or her mind, and neither the ABA nor the Senate
Judiciary Committee expect their recommendations to be
dispositive of the issue.
I agree with my colleagues across the aisle. Senator
Sessions supported the thoroughness and accuracy of the ABA
investigatory process in his remarks on the Senate floor on
October 16. As Senator Sessions said, the ABA talks to people
who have litigated in ten situations with the nominee, then
they make their recommendations. He said he thinks it is a
pretty good process.
The ABA Standing Committee does an excellent job of
conducting its independent professional and confidential peer
review of the qualifications of judicial nominees, so we do
give deference to the results of this tried and true and tested
method of investigation, both when the results are favorable or
unfavorable.
For 50 years, beginning with the Eisenhower administration
and ending on the last day of the Clinton administration, the
ABA provided this invaluable public service on which Presidents
and Senators relied. Before a nomination, during the time the
FBI and the Department of Justice were evaluating the
candidates, the ABA would receive their names. They would
return to the administration a rating reflecting their review
of the potential nominee's qualification. This was done before
any names came up here in the past, and I think the process
worked smoothly and productively until the beginning of this
year.
President Bush decided he would no longer provide the ABA
with the candidates' names prior to nomination. I would
emphasize the President has an absolute right to do that,
although it did break with the 50-year tradition of having the
President have a chance to look at those recommendations prior
to making a nomination.
So now the ABA has to wait until the nomination is made,
the name is out there, it is sent up here, and then they have
to go out to do their evaluation. The nomination is already a
fait accompli, but they go forward.
It has two effects. One, it extends the time the nominee
must wait before you can have a hearing by six or eight weeks,
and I did not count the time, really, until the ABA report is
completed. But it also eliminates a crucial early warning
system for the White House and for us.
I wish the President had not shifted that role, but I am
glad that the ABA will still provide their evaluations to our
Committee. I also want to compliment the ABA, which has a
number of extremely qualified lawyers in both parties who
donate their time to this effort, actually, time that would
cost us millions of dollars if we were to have to pay for it,
but they do it as a pro bono matter.
So this morning, after we hear from Mr. Bunning's home
State Senators, then from the nominee himself, we are going to
hear from a panel of witnesses from the ABA Standing Committee.
Roscoe Trimmier, a partner in the Boston law firm of Ropes and
Gray and the chair of the Committee, will testify about the
process. David Weiner, a partner in the Cleveland firm of Hahn,
Loeser and Parks, the Committee's Sixth Circuit representative,
will tell us in more detail about the peer review he conducted
on Mr. Bunning. Also available to answer questions, Judah Best.
Mr. Best is a partner in the Washington office of Debevoise and
Plimpton and is a former chair of the ABA Committee and well
respected by members of this Committee.
Then we will hear four more witnesses requested,
appropriately, by the Republican side of the aisle, who will
talk about their professional opinions of Mr. Bunning, and I
must say, speaking for both sides of the aisle, we are honored
to have on that panel this morning three United States District
Court judges and a former United States Attorney. All are from
the Eastern District of Kentucky. Judge Henry Wilhoit, on
senior status, has served on the Federal bench since he was
appointed by President Reagan in 1981. Judge Karl Forester, the
current Chief Judge, has been on the bench since he was
appointed by the first President Bush in 1988. Judge Joseph
Hood has served since his appointment by the first President
Bush in 1990. So we look forward to their testimony.
With that just to lay it out, because this is a somewhat
different than normal hearing, I yield to my good friend, the
senior Senator from Utah, a man who has had as much or more
experience as anybody else on this Committee.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman, and I am very
grateful that you have been able to schedule this hearing for
Mr. Bunning, for whom I have a great deal of respect and who I
wholeheartedly recommended to the White House for this job,
knowing of his background both civilly and criminally in
litigation for our government and the experience that he has.
I think the administration has done an excellent job on
judges so far. Currently, we have 100 vacancies. There are 43
who are awaiting hearings, including Mr. Bunning here today. We
have had 21 who have been confirmed and we have six pending on
the floor. This will add a seventh. So we are moving, but not
as fast as we really need to move as a Judiciary Committee.
I might add that on the questionnaire, it was not a problem
for the administration to list the prior convictions that are
on the public record. That was never the problem. It was that
there were other matters which we had to resolve, which we did,
and I am pleased that we were able to get that resolved.
We are also pleased to have all of the witnesses here today
who will help us to understand.
I am very pleased that you have convened this hearing this
morning to consider the nomination of David Bunning to be a
United States District Judge in the Eastern District of
Kentucky. My examination of Mr. Bunning's qualifications
convinced me to recommend him in the first place to the White
House, but also that during the course of his career, he has
demonstrated abundant capacity, integrity, and temperament to
serve as a Federal District judge.
Although I am very pleased that we are having this hearing,
I must say that I am not so convinced that it is really
necessary. The Committee has reviewed a great deal of
information about Mr. Bunning, from the FBI files to his
writings to letters from interested parties. We know his
employment history, his work ethic, and even what lawyers who
have opposed him in court think about him. Indeed, the
Committee has as much information about Mr. Bunning as we have
ever had about any judicial nominee, it seems to me.
So the purpose of this hearing is not to find out more
about Mr. Bunning, but rather to find out why, in its single-
sentence conclusion, the ABA, which is only one of the outside
groups who have weighed in on this nomination, said he is not
qualified. Members of this Committee do not know why the ABA
chooses to label judicial nominees as qualified or not, and, of
course, the ABA does not share any information with the
Committee other than its one-sentence conclusion. Even in cases
where the decision is controversial, the ABA will not disclose
its reasons or rationale.
I have to be frank here and say that this is one of the
main reasons that I find the ABA's reviews less and less
essential to the Committee's confirmation process than some of
my colleagues do. I simply find it less than persuasive when I
read, as in Mr. Bunning's case, a bare conclusion with no
facts, analysis, or anything else to back it up, so today will
be an opportunity for the ABA to do so.
Now, I appreciate completely the ABA's explanation of the
need to foster a full deliberation among its reviewers, as I
also understand the need to keep confidential the FBI files
that the Committee has provided for each nominee. If the
Committee has asked the executive branch for FBI files, which
we receive, and if the FBI can trust us here with the most
sensitive information, then why cannot the ABA? Is the ABA
information more sensitive than the critically sensitive FBI
files?
If the ABA evaluations are to be most helpful to the
Committee, then I believe that the Committee can and should
receive the benefit of the ABA files, including the interviews,
discussions, and reasoning, instead of a one-line cursory
conclusion that, in many cases, feeds the growing public
perception that the ABA's evaluations are arbitrary,
capricious, and may be tainted by politics.
These questions, of course, have nothing to do with Mr.
Bunning or his qualifications to serve as a Federal District
judge. As I said, I have learned a great deal about Mr. Bunning
from the information provided by him and other sources to the
Committee. Mr. Bunning is a Kentucky native. He attended
college at the University of Kentucky, graduating with a
Bachelor of Business Administration degree with departmental
honors. He then went on to graduate from the University of
Kentucky College of Law.
During law school, Mr. Bunning worked as a law clerk at the
United States Attorney's Office for the Eastern District of
Kentucky. He must have done a good job, because the office
invited him to join as an Assistant U.S. Attorney, one of the
most honorable and important jobs in the Federal law
enforcement community, upon his graduation.
Mr. Bunning has enjoyed a well-balanced career in which he
has gained valuable substantive experience in both civil and
criminal Federal practice. He began his career in the U.S.
Attorney's Office as an Assistant United States Attorney in the
Civil Division, and during this time, he worked out of the main
office in Lexington. For the first four years of his career,
between 80 and 90 percent of his caseload consisted of a civil
docket. One benefit of working in a smaller U.S. Attorney's
Office is that a lawyer must become skillful in handling a wide
variety of cases, a sort of jack of all trades. As a result,
Mr. Bunning's civil experience has consisted of a broad range
of cases, including prisoner litigation, medical malpractice
cases, Federal Tort Claims Act cases, Bivens action cases,
affirmative civil enforcement cases, and DEA drug diversion
cases.
Often, the goal in civil litigation is to avoid the time,
cost, and uncertainty of a trial. Mr. Bunning repeatedly
achieved this goal on behalf of his civil clients. In one
prison litigation case, Mr. Bunning represented 22 prison
officials in a Bivens action, alleging that they had violated
the plaintiff's constitutional rights. He successfully obtained
summary judgment for all but one of these defendants. In
another case, the District Court granted Mr. Bunning's motion
to dismiss, which he drafted while he was still in law school,
in a Federal Tort Claims Act case brought against the United
States.
In 1995, having established his reputation as a skillful
lawyer in the Lexington office, Mr. Bunning was transferred to
the Covington satellite office, where he handled his own
caseload with minimal need for supervision. The nature of his
practice changed from primarily civil to largely criminal, and
since 1998, his caseload has consisted exclusively of criminal
cases. He has developed expertise in handling a wide variety of
prosecutions, including narcotics cases, health care, Internet,
and other white-collar fraud cases, violent crime, and
forfeiture cases.
In one case, Mr. Bunning successfully prosecuted a
defendant for Internet fraud and harassment. Before the
defendant was sentenced, he and his brother embarked on a
murder-for-hire scheme targeting not only the victim of the
fraud and harassment, but Mr. Bunning, as well. Luckily, their
scheme was thwarted and they were duly convicted and sentenced.
As a result of his work in this case, Mr. Bunning was awarded
the Department of Justice Annual Victim's Rights Recognition
Award, as well as a commendation by the United States Secret
Service. Mr. Bunning was also awarded a commendation in a
separate case by the United States Customs Service for his
prosecution of the illegal importation of the party drug
Ecstasy.
Mr. Bunning has accumulated a wealth of trial experience.
Since joining the U.S. Attorney's Office, he has handled 20
civil and criminal trials as sole or lead counsel. He has also
amassed significant appellate experience, having authored more
than 50 appellate briefs and argued between ten and 15 cases
before the Sixth Circuit Court of Appeals.
The high esteem in which the Kentucky legal community holds
David Bunning is reflected in the numerous letters in support
of his nomination that we have received. We have received
letters from coworkers, from opposing counsel, and even a
letter from a victim in a case he prosecuted. Although I regret
that time limitations preclude me from reading excerpts from
each letter, I would like to mention just briefly one of these
letters. It is from Paul Vesper, an attorney in Covington,
Kentucky.
He writes, ``As a self-described liberal Democrat, I knew I
would have to man the parapets to oppose any nomination by the
recently inaugurated Republican occupant of the White House.
And then to my delight, my colleague, David L. Bunning, was
chosen to fill this post. I have known David in excess of 12
years, both as a competent practicing attorney, advocate for
his clients, and lecturer on Federal issues and practices. You
will certainly receive many comments attesting to his
intellect, skills, and effectiveness, which are now his resume.
But to me, for a Federal judge, the most important qualities
are his integrity, genuine fairness, and no hint of aloofness.
The litigants and lawyers before a Judge Bunning will be
treated respectfully and receive prompt attention to their
pleas. It is always hard for me to find nice things to say
about Republicans, but I hereby volunteer for the task to
praise David L. Bunning. I commend the President for his choice
and I wish David long tenure as a confirmed appointee to the
bench.''
Mr. Chairman, I ask permission to enter into the record the
full letter from Mr. Vesper, as well as the other letters we
have received in support of Mr. Bunning's nomination.
Chairman Leahy. Without objection, any letters or
statements that any Senator wishes to include in the record in
this matter will be done.
Senator Hatch. Thanks, Mr. Chairman.
I understand that in addition to the ABA witnesses, we will
hear from four witnesses, who, like Mr. Vesper, have first-hand
familiarity with Mr. Bunning's litigation experience, his
courtroom demeanor, and his legal judgment. These witnesses
include the former U.S. Attorney during the Clinton
administration who was Mr. Bunning's supervisor for eight of
his ten years as a Federal prosecutor and three Federal
District Court judges before whom Mr. Bunning has practiced.
Not surprisingly, the judges are particularly interested in
filling the vacancies in the Eastern District of Kentucky with
solid, qualified persons. I know that is the case and I believe
that David Bunning fits this description, which is why I
proudly join with my colleague, Senator McConnell, in
recommending to the President his nomination for the Federal
bench in Kentucky.
So I look forward to hearing from the witnesses. Mr.
Chairman, again, I want to thank you for this hearing and want
to thank you for the work that you are doing. I have been very
appreciative of the work lately in this Committee and very
appreciative of you personally. Thank you.
[The prepared statement of Senator Hatch follows.]
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
I am very pleased that you have convened this hearing to consider
the nomination of David Bunning to be a United States District Judge in
the Eastern District of Kentucky. My examination of Mr. Bunning's
qualifications has convinced me that, during the course of his career,
he has demonstrated abundant capacity, integrity, and temperament to
serve as a federal district judge.
Although I am very pleased that we are having this hearing, I must
say that I am unconvinced it is really necessary. The committee has
reviewed a great deal of information about Mr. Bunning, from FBI files
to his writings to letters from interested parties. We know his
employment history, his work ethic, and even what lawyers who have
opposed him in court think about him. Indeed, the Committee has as much
information about Mr. Bunning as we ever have about any judicial
nominee. So the purpose of this hearing is not to find out more about
Mr. Bunning, but rather to find out why, in its single-sentence
conclusion, the ABA, which is only one of the outside groups who have
weighted in on his nomination, said he is not qualified.
Members of this committee do not know why the ABA chooses to label
judicial nominees as qualified or not. The ABA does not share any
information with the Committee other than its one-sentence conclusion.
Even in cases where the decision is controversial, the ABA will not
disclose its reasons or rationale. I have to be frank here and say that
this is one of the main reasons that I find the ABA's reviews less to
be frank here and say that this is one of the main reasons that I find
the ABA's reviews less and less essential to the Committee's
confirmation process than some of my colleagues. I simply find it less
than persuasive when I read--as in Mr. Bunning's case--a bare
conclusion with no facts or analysis or anything to back it up.
Now I appreciate completely the ABA's explanation of the need to
foster a full deliberation among its reviewers, as I also understand
the need to keep confidential the FBI files that the Committee is
provided for each nominee. If the Committee has asked the Executive
Branch for FBI files, which we receive, and if the FBI can trust us
here with the most sensitive information, then why can't the ABA? Is
the ABA information more sensitive than the critically sensitive FBI
Files? If the ABA evaluations are to be most helpful to the Committee,
then I believe that the Committee can and should receive the benefit of
the ABA files, including the interviews, discussions, and reasoning,
instead of a one-line, cursory conclusion that, in many cases, feeds
the growing public perception that the ABA's evaluations are arbitrary
and capricious or tainted by politics.
These questions, of course, have nothing to do with Mr. Bunning or
his qualification to serve as a federal district judge. As I said, I
have learned a great deal about Mr. Bunning from the information
provided by him and other sources to the Committee. Mr. Bunning is a
Kentucky native. He attended college at the University of Kentucky,
graduation with a Bachelor of Business Administration degree with
department honors. He then went on to graduate from the University of
Kentucky College of Law.
During law school, Mr. Bunning worked as a law clerk at the United
States Attorney's Office for the Eastern District of Kentucky. He must
have done a good job, because the office invited him to join as an
Assistant U.S. Attorney, one of the most honorable and important jobs
in the federal law enforcement community, upon his graduation.
Mr. Bunning has enjoyed a well-balanced career in which he has
gained valuable substantive experience in both civil and criminal
federal practice. He began his tenure at the U.S. Attorney's Office as
an AUSA in the Civil Division. During this time, he worked out of the
main office in Lexington. For the first four years of his career,
between 80 and 90% of his caseload consisted of a civil docket. One
benefit of working in a smaller U.S. Attorney's Office is that a lawyer
must become skillful in handling a wide variety of cases, a sort of
jack of all trades. As a result, Mr. Bunning's civil experience has
consisted of a broad range of cases, including prisoner litigation,
Medical malpractice cases, Federal Tort Claims Act cases, Bivens
actions, affirmative civil enforcement cases, and DEA drug diversion
cases.
Often the goal in civil litigation is to avoid the time, cost, and
uncertainty of a trial. Mr. Bunning repeatedly achieved this goal on
behalf of his civil clients. In one prison litigation case, Mr. Bunning
represented 22 prison officials in a Bivens action alleging that they
had violated the plaintiff's constitutional rights. He success fully
obtained summary judgment for all but one of these defendants. In
another case, the district court granted Mr. Bunning's motion to
dismiss--which he drafted while he was still in law school--in a
Federal Tort Claims Act case brought against the United States.
In 1995, having established his reputation as a skillful lawyer in
the Lexington office, Mr. Bunning was transferred to the Covington
satellite office, where he handled his own caseload with minimal need
for supervision. The nature of this practice changed from primarily
civil to largely criminal, and since 1998 his case load has consisted
exclusively of criminal cases. He has developed expertise in handling a
wide variety of prosecutions, including narcotics cases, health care,
Internet, and other white-collar fraud cases, violent crime, and
forfeiture cases. In one case, Mr. Bunning successfully prosecuted a
defendant for Internet fraud and harassment. Before the defendant was
sentenced, he and his brother embarked on a murder for hire scheme
targeting not only the victim of the fraud and harassment. Before the
defendant was sentenced, he and his brother embarked on a murder for
his scheme targeting not only the victim of the fraud and harassment,
but Mr. Bunning as well. Luckily, their scheme was thwarted, and they
were duly convicted and sentenced. As a result of his work in this
case, Mr. Bunning was awarded the Department of Justice Annual Victim's
Rights Recognition Award, as well as a commendation by the United
States Secret Service. Mr. Bunning was also awarded a commendation in a
separate case by the United States Customs Service for his prosecution
of the illegal importation of the party drug Ecstacy.
Mr. Bunning has accumulated a wealth of trial experience: Since
joining the U.S. Attorney's Office, he has handled 20 civil and
criminal trials as sole or lead counsel. He has also amassed
significant appellate experience, having authorized more than 50
appellate briefs, and argued between 10 and 15 cases before the Sixth
Circuit Court of Appeals.
The high esteem in which the Kentucky legal community holds David
Bunning is reflected in the numerous letters in support of his
nomination that we have received. We have received letters from co-
workers, from opposing counsel, and even a letter from a victim in a
case he prosecuted. Although I regret that time limitations preclude me
from reading excerpts from each letter, I would like to mention just
briefly one of these letters. It is from Paul Vesper, an attorney in
Covington, Kentucky. Her writes,
``As a self-described `liberal Democrat' I knew I would have to
man the parapets to oppose any nomination by the recently
inaugurated Republican occupant of the White House. And then to
my delight, my colleague, David L. Bunning, was chosen to fill
this post. I have known David in excess of 12 years, both as a
competent practicing attorney, advocate for this clients, and
lecturer on federal issues and practices. You will certainly
receive many comments attesting to his intellect, skills, and
effectiveness which are now his resume. but to me, for a
federal judge, the most important qualities are his integrity,
genuine fairness--and no hint of aloofness. The litigants and
lawyers before a Judge Bunning will be treated respectfully and
receive prompt attention to their pleas. . . .It is always hard
for me to find nice things to say about Republicans, but I here
by volunteer for the task to praise David L. Bunning. I commend
the President for his choice and I wish David long tenure as a
confirmed appointee to the bench.''
Mr. Chairman, I ask permission to enter into the record the full
letter from Mr. Vesper, as well as the other letters we have received
in support of Mr. Bunning's nomination.
I understand that in addition to the ABA witnesses, we will hear
from four witnesses who, like Mr. Vesper, have first-hand familiarity
with Mr. Bunning's litigation experience, his courtroom demeanor, and
his legal judgment. These witnesses include the former U.S. Attorney
during the Clinton Administration, who was Mr. Bunning's supervisor for
eight of his ten years as a federal prosecutor, and three federal
district court judges before whom Mr. Bunning has practiced. Not
surprisingly, the judges are particularly interested in filling the
vacancies in the Eastern District of Kentucky with solid, qualified
persons. I believe that David Bunning fits this description, which is
why I proudly joined my colleague Senator McConnell in recommending to
the President his nomination to the federal bench in Kentucky.
Chairman Leahy. Thank you, Senator Hatch.
I understand from Senator McConnell that Senator Bunning
will appear here just as a member of the family, but Senator
McConnell wishes to make the introduction, so I will yield to
Senator McConnell for that. Following the introduction by
Senator McConnell, we will then hear from the nominee.
Senator McConnell?
PRESENTATION OF DAVID L. BUNNING, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. MITCH MCCONNELL, A
U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator McConnell. Thank you, Mr. Chairman. Let me say
first, Mr. Chairman, on behalf of my junior colleague and
myself, we both are extremely grateful for the extraordinarily
fair way you have handled this nomination. It is a credit to
the Committee and we thank you very, very much for that.
Chairman Leahy. Thank you.
Senator McConnell. Mr. Chairman, I am an enthusiastic
supporter of David Bunning's nomination to be a District Judge
for the Eastern District of Kentucky. We are now down to only
one vacancy--I see smiles on the faces of some of our judges on
the front row--and we are going to complete the job here in the
near future.
For over a decade, David Bunning has been in the legal
trenches representing the United States as an Assistant U.S.
Attorney in the very district in which he has been nominated to
be a judge. In this capacity, David has served in both the
Civil and Criminal Divisions of the U.S. Attorney's Office. He
has handled hundreds of civil and criminal matters in Federal
District Court. In addition, he has extensive experience at the
appellate level. He has written approximately 50 appellate
briefs and has presented numerous oral arguments. Clearly, this
appellate experience is impressive for anyone, including your
typical Assistant U.S. Attorney.
Because of David's acumen as a litigator, Mr. Chairman, he
has real world legal experience far beyond the nominal
experience that one would get by simply looking at his date of
bar admission. In this regard, the comments of the Lexington
Herald-Leader, the paper which covers the Eastern District and
is familiar with both the Court and Mr. Bunning are
instructive. It stated that, ``Everything we know about Bunning
suggests that his years of experience as a Federal prosecutor
make him far more qualified for this job than someone who has
spent 12 or 20 years shuffling papers instead of arguing cases
in court.''
Moreover, it must be emphasized that David's experience is
in precisely, precisely the type of matters that constitute the
majority of cases that Federal judges in the Eastern District
must hear. Thus, with the hundreds of civil and criminal cases
he has handled, David Bunning has the most relevant--the most
relevant--experience that a judicial nominee for the Eastern
District could possibly possess.
David also has a command of trial procedure and the rules
of evidence. He has, in the heat of battle, decided which
objections to make and how to make them. Mastery of the rules
of evidence is critical for a trial judge, and David Bunning's
skills in this regard are superlative.
But David Bunning is not just a skilled and experienced
practitioner. He possesses the other personal qualities that
are essential for the effective administration of justice.
Among these are honesty, integrity, candor, diligence, courage,
and last but not least, mercy.
It is no wonder, then, that David's nomination has received
wide acclaim. In reading the written testimony and the numerous
letters of recommendation, which Senator Hatch has already put
in the record and so I will not do that again, I was struck by
the support for David's nomination from every quarter,
Republicans, Democrats, judges, practitioners, supervisors,
colleagues, opponents, and clients.
In this regard, we are fortunate to have with us four
distinguished members of Kentucky's legal community, three
Federal judges who hold the very job for which Mr. Bunning has
been nominated, and Mr. Bunning's supervisor for eight years,
the former Clinton-appointed U.S. Attorney. The insights of
these gentlemen are extremely valuable and their support for
Mr. Bunning's nomination is highly significant.
Finally, although David loves the law and indeed has a
reverence for it, he is a well-rounded person who understands
the problems and challenges facing the Eastern District. He is
devoted to his faith and his wife, Kay, and from what I hear,
he is also a pretty good son. He will do Kentucky and the
nation proud. If I did not have the utmost confidence in him,
Mr. Chairman, I would not have recommended him for this
nomination.
Again, I thank you, Mr. Chairman, for holding this hearing.
I am hopeful that the Committee and the Senate will act
expeditiously to confirm him so he can return to our
Commonwealth, roll up his sleeves, and begin working hard to
serve the people of the Eastern District.
Chairman Leahy. Thank you very much.
Mr. Bunning, would you step forward, please. Would you
raise your right hand.
Do you swear that the testimony you are about to give
before this Committee shall be the truth, the whole truth, and
nothing but the truth, so help you, God?
Mr. Bunning. I do.
Chairman Leahy. Thank you. Please be seated.
Mr. Bunning, before you start, because it is a record that
one always wants to have, would you be kind enough to introduce
members of your family who are here.
STATEMENT OF DAVID L. BUNNING, NOMINEE TO BE U.S. DISTRICT
COURT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY
Mr. Bunning. Thank you, Mr. Chairman, if I could stand.
Chairman Leahy. Sure. Of course.
Mr. Bunning. First of all, I would like to thank you for
convening this important hearing today. My parents, Mary and
Jim Bunning; my wife, Kay, my brother-in-law, Terry Toles; my
three children are at home with my mother-in-law, Mr. Chairman;
and I am fortunate to have two of my cousins who live here in
the District--three of my cousins that live in the District,
Robert, Joan, and Susan Bunning.
Chairman Leahy. And what are the names of your children?
Mr. Bunning. Laura is five, Lou is four, and Emily is 18
months.
Chairman Leahy. Please be seated. They will get a chance to
read that. I want to make sure their names are in there. As
impressed as they might be by your hearing, they are probably
happier being home with their grandmother.
Mr. Bunning. Probably so, Mr. Chairman.
Chairman Leahy. Go ahead, Mr. Bunning.
Mr. Bunning. I would defer and not make an opening
statement.
[The biographical information of Mr. Bunning follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Leahy. Thank you. Mr. Bunning, you have heard the
opening statements of Senator Hatch and Senator McConnell and
mine. I should note that Senator McConnell and Senator Bunning
have spent a lot of time talking to me about your nomination.
They have been very strongly supportive of you, as has Senator
Hatch.
But as you know, later on today, the ABA will testify and
state its concerns regarding your qualifications for the
Federal bench. They will say you do not have sufficient
experience. Of course, after they testify, I am going to keep
this record open. Obviously, anything that is said here, you
can add to your own testimony. You are going to be allowed to
the testimony given by anybody else, as they would of yours.
But anticipating the ABA testimony, is there anything you would
like to say about it?
Mr. Bunning. Thank you, Mr. Chairman. I appreciate the
opportunity to respond to the concerns of the ABA, which I know
are also of concern to this Committee. I would also like to
thank the ABA for sharing their concerns with Senator
McConnell's staff prior to today so that I might have an
adequate time to respond.
As it has been explained to me, there are four areas of
concern that the ABA is raising. First, my years of experience,
or what is commonly referred to as the 12-year-rule that they
have. Secondly, my level of civil experience. Thirdly, the fact
that I have spent my entire legal career as an Assistant U.S.
Attorney in the U.S. Attorney's Office. And fourthly, the fact
that I have spent the bulk of that time in a satellite office
within the U.S. Attorney's Office.
Briefly, if I may, I believe that the nature and depth of a
nominee's experience are more relevant than the amount of time
I have been a lawyer. I have had the high honor and privilege
of representing the United States in both civil and criminal
litigation for the past ten years. I took an oath in 1991 to
uphold the Constitution and I have worked diligently and
tirelessly over the past ten years to do that.
As Senators McConnell and Hatch have stated, I have handled
many, many cases. I have handled approximately 130 civil cases,
approximately 400 criminal cases, all in the very court that I
have been nominated to sit as a judge. I have handled many oral
arguments with the Sixth Circuit Court of Appeals and I have
had the opportunity to spend many years in the well of the very
court that I have been nominated to sit.
I believe that I have had--it has given me the opportunity,
working for the U.S. Attorney's Office, to have a lot of
experience in dealing with Federal rules of evidence,
sentencing guidelines, and their application and interpretation
in the very same way that a U.S. District Judge would.
Although I have had only one client, that is the United
States, that client has taught me to respect the rule of law,
and I believe I have done that over the past ten years.
With respect, briefly, to the issue of my civil litigation
experience, I have set forth some of the significant cases in
my questionnaire. I have handled for approximately four years a
wide variety of civil litigation that Senator Hatch has already
stated, and I believe that although it goes back a few years, I
am very proud of my record in handling Federal constitutional
law issues, Bivens 1983-type actions, in the very same way that
U.S. District Judges in our District handle on a routine basis.
I believe my time in the U.S. Attorney's Office has enabled
me to handle cases from investigation through indictment,
through trial, writing the brief on appeal, and then handling
the oral argument. The nuts and bolts practical experience I
had will serve me well if I am fortunate enough to be confirmed
by the Senate.
I believe that one of the important qualities of a District
Judge is to be able to create a record, a factual record which
will withstand appellate scrutiny. Myself as a litigator for
the past ten years, I have tried very hard to make sure that
record is sufficient, and I believe I have a lot of experience
in making sure that the record would be upheld on appeal,
because no one wants to try a case twice.
Finally, the issue about the satellite office that Mr.
Weiner has raised. I believe that that has taught me to have a
lot of autonomy and I believe that the level of supervision
that I have had in the satellite office has been very intense.
My direct supervisor for the last six years did have a very
hands-off approach and that taught me a lot. I was able to grow
as a lawyer.
And I believe that being in the satellite office, I
analogize it to handling many, many different types of cases,
and if I would use a doctor analogy, handling broken arms
through brain surgeries. We have to handle, and I know you are
aware of this, being a prosecutor prior to you becoming a
Senator, you handle all types of cases, large and small,
routine to complex, and I believe my experience from the last
ten years has enabled me to be before you today. Thank you.
Chairman Leahy. You just mentioned, in my case, like many
others in the Senate, I was formerly a prosecutor, as you are.
As a prosecutor, of course, you have the people as your client.
I happen to feel that being a prosecutor is one of the finest
areas of public service, because you do represent the people.
That means you have got to be an advocate for your client. You
have got to make sure, as you just said, that you do not make
mistakes so that it does not get overturned on appeal. Every
prosecutor knows that if five years later you have got to retry
a case, you will have to start looking for a plea bargain
because usually you have got witnesses missing, evidence
missing, all the other problems that go with doing it.
But if you go from being an advocate for the government,
and when your client is in this case the people of the
Commonwealth or the people of the United States, how do you go
from that to being a neutral decision maker? For example,
Federal Courts, a lot of criminal cases, as you know, and the
judge has to be there not as an advocate of either the
defendant or the government. With the number of years as a
prosecutor, are you able to make that transition?
Mr. Bunning. Mr. Chairman, I believe that the rule of law
is something that I have strived to achieve over the last ten
years. I believe that working for the Department called Justice
has taught me--has given me unique opportunities to make sure
that justice is achieved in every case.
We have the unique opportunity in the U.S. Attorney's
Office to make sure that justice is achieved, whether that
means not presenting an indictment to a grand jury, whether it
means telling an agent who is in my office that I do not
believe there is probable cause to obtain a Federal search
warrant.
I have had the opportunity to use prosecutorial discretion
and objectivity for the U.S. Attorney's Office, and if I am
fortunate enough to be confirmed by the Senate, I will have
just one client, and that is making sure that the rule of law
is followed. I have spent ten years advocating that it be
followed and I believe I have a unique perspective in handling
issues which would come before me and making sure that justice
is achieved in every case, and I will work tirelessly to make
sure that happens.
Chairman Leahy. Mr. Bunning, you also in your earlier
statement talked about wanting to make sure that a case when it
goes up on appeal, as so many do, that you have not made
mistakes. I am speaking in your role as a prosecutor, not made
mistakes so that the case does not get overturned. As a
District Judge, of course, you always face the fact that--well,
not always face, do face the fact that one of the litigants is
not going to be happy. I recall once saying to a defense
counsel when I was a prosecutor as we were about to go to the
jury, I said, ``Well, let us turn to the jury and let justice
be done.'' He said, ``Well, if that happens, we will appeal.''
[Laughter.]
Chairman Leahy. But you are always going to have one side
or the other is going to want to appeal, and so the decisions
you make are going to be extremely important, not just for the
decisions you make as you go along in a trial, when we have to
make rulings, admissions of evidence, objections, and so forth,
even the amount of time an attorney might be allowed to
continue with a witness, but there are going to be a lot of
things where you are going to have to rule on matters of law
and how that is written is going to be the subject of an
appeal, certainly on a trial by court, definitely, but even in
trials by jury, you are going to be making rulings that are
going to be part of the appellant's brief.
Now, the ABA has spoken of your writing, and to the extent
you do writing now, obviously, the Court of Appeals will set a
lot of precedent, but you are going to shape that precedent.
And to the extent that they do not write, if you write a
decision, that can be controlling in the Eastern District.
You have had a relative lack of complex cases. Do you feel
you could take on the writing responsibilities of a Federal
Judge?
Mr. Bunning. Thank you for that question, Mr. Chairman. I
believe my writing style throughout the past ten years, like
any good lawyer, has progressed over time. In 1991, when I went
to the civil advocacy class sponsored by the Department of
Justice, and I cannot remember which Federal Judge told me
this, but she stated that when you write, your legal writing,
be very concise and get to the point, and I believe that
whether your writing involves a complex case or one that
requires a two- or three-sentence memorandum or two- or three-
page memorandum opinion, I believe that I will be able to
analytically review issues of law.
I have done just that over the past ten years, and I think
that most Federal District judges, at least when I have been
advocating positions in memoranda, like brevity and like you to
state the facts of the law, apply those facts to the law, and
then draw a conclusion, because I think at the appellate level,
it is always easier as an advocate to argue your position when
the District Court's opinion is very clear as to what issues of
law control and why the conclusion was drawn.
Chairman Leahy. In a way, this is sort of an obverse of
questions we often ask nominees here who have had extensive
civil practice, if they are going on the Federal bench, how
they are going to handle a criminal practice. In a way, I am
asking you the obverse of that.
The civil matters, you litigated civil matters for four of
your ten years in legal practice and the ABA, that is one of
the concerns they have expressed. Federal Court dockets are
overflowing. Certainly, they are in my State. I am sure they
are in the Commonwealth of Kentucky and elsewhere with a lot of
complex civil cases. You have got employment, voting rights
discrimination, antitrust, a lot of large-scale class
litigation which will go to the Federal Courts.
Do you feel prepared to handle complex civil cases and
still manage what I assume will be a very busy docket of both
civil and criminal cases? Can you handle it? Do you feel that
you are qualified to handle the complex antitrust case or voter
discrimination case if it lands in your lap?
Mr. Bunning. I have had the experience to handle a wide
variety of cases over the last ten years. I have not handled a
voting rights action case and I have not handled an antitrust
action. I have tirelessly researched the law and advocated
positions based on my research. If confirmed by the Senate, I
will work just as tirelessly and with every ounce of my being,
enthusiastically, to handle every issue which comes before me.
I am very proud of my civil background. It is a few years
ago. I did have the opportunity to handle some age
discrimination cases. I have handled some Federal Tort Claims
Act cases. At the end of the day, there is going to be, at
least with respect to Federal questions, there is going to be a
statute that controls, and in most cases, controlling precedent
interpreting that statute for you. I am bound to follow those
precedents and I will do so if confirmed.
Chairman Leahy. I assume that you would not in any way
disagree with the fact that if there is a Court of Appeals
decision for your circuit or a U.S. Supreme Court opinion on a
matter, you are bound by that precedent. Whether you agree or
disagree with it, you are bound by that, is that correct?
Mr. Bunning. Absolutely.
Chairman Leahy. Unfortunately, as you know, there are a lot
of novel theories that come up and you are going to find a lot
of cases that there is no opinion on all fours. Sometimes there
will be no precedent that even comes too close to it. I think
in the past few years, the Supreme Court has struck down a
number of Federal statutes, where the Congress has enacted a
law, the Supreme Court has knocked it down, and several
designed to protect civil rights and prerogatives of what many
of us felt were our more vulnerable citizens, the Supreme Court
has said that is beyond Congress's power under Section 5 of the
14th Amendment. They have also struck down statutes being
outside the authority of Congress under the Commerce Clause.
These cases taken as a whole have been described as
creating new power for State governments, or as Federal
authority is being diminished. At the same time, the courts
issued several decisions, most notably in the environmental
arena, to give States a lot more power and authority over the
use of land and water, even though there has been longstanding
Federal protection of the environment, the idea that air does
not stop at a border of a State and waters do not and so on.
Many writers have said these cases, taken collectively, or
taken individually even, they raise concerns about the
limitation on Congressional authority, or collectively, it may
be a new kind of federalism crafted by the Supreme Court that
may alter fundamentally the structure of our government.
Understanding fully, of course, you are bound by the
precedents of the Supreme Court, have you looked at this trend
in the Supreme Court and do you have a view as to that trend?
Mr. Bunning. I am familiar with some of the Supreme Court
cases that you have mentioned, Mr. Chairman. As a U.S. District
Judge, if confirmed, obviously, I am bound by the precedents
established by the Sixth Circuit Court of Appeals and the
Supreme Court. The separation of powers has worked well for
many, many years and I think that I know the role of a judge
and I also know that those precedents are controlling and I do
not really have any--my personal beliefs or what I may think
Congress should or should not do will not impact me as a judge
because that is your role and the members of this Committee and
the members of the Congress's role to create the laws. I am
fully aware of that and I believe that to the extent that there
are cases by the Supreme Court or the Sixth Circuit
interpreting the Commerce Clause, equal protection under the
14th Amendment, I will be bound to follow those precedents.
Chairman Leahy. What if Congress, and think for a moment on
this if you want to answer if, if Congress provided money to a
State on the condition that the State use the money in a
certain way. Can Congress constitutionally require a State to
accept such funding, to waive its sovereign immunity to private
actions for money damages if the State is found to be misusing
its funds?
Mr. Bunning. Mr. Chairman, that is an area that I have not
had a whole lot of experience in, to be candid with you. I
would thoroughly research that issue, and I am sure if the
Supreme Court has ruled or the Sixth Circuit has ruled on that
very issue, I will follow that. I am somewhat of a computer
pack rat and I am fairly proficient with legal research and
writing and I believe that I would find the precedent and I
would, of course, follow it if there is such precedent.
Chairman Leahy. I might say as an aside, the computer is a
little bit different than in the days when Senator Hatch and I
were first practicing law and had to Shepardize our cases in
dusty old books. I recall my days as a prosecutor, being in the
law library until three or four o'clock in the morning
researching appellate cases and going up and trying murder
cases at nine o'clock the same morning. I am finding the
computer is a lot--well, it is a different matter.
Senator Hatch, before we start down the coastal highway of
reminiscences of the older members of the Committee, I will
yield to you.
Senator Hatch. I am glad we are avoiding the coastal
highway, is all I can say.
[Laughter.]
Senator Hatch. Mr. Bunning, approximately how many cases
have you handled in your little over ten years of practice?
Mr. Bunning. Approximately 130 civil cases and
approximately 400 criminal matters, all in Federal Court.
Senator Hatch. Can you tell us about any complex litigation
cases that you handled?
Mr. Bunning. Thank you, Senator Hatch. Lawyers can disagree
on what complex means. I have handled several, on the criminal
side, several multi-defendant, multi-layer conspiracy cases,
the very types of cases that, at least on the criminal side of
the fence, are handled in the Eastern District of Kentucky
involving numerous constitutional issues, both pre-trial and
post-trial.
On the civil side, I believe you mentioned the one
particular case where I had 22 individual defendants who had
been sued under Bivens. We ultimately went to trial and we were
successful obtaining a verdict for the one remaining defendant,
and that is the Murray case mentioned in the materials.
Another civil case which you mentioned, I believe is
appropriate, is the Lisa Fleschig FTCA case which I handled
while I was still a law clerk for another AUSA, and that is a
published opinion and you have that in the material, as well.
But with respect to the complexity of the issues, I have
handled numerous, what I would consider complex criminal cases
for the Eastern District of Kentucky.
Senator Hatch. Would you mind telling the Committee what
your Martindale-Hubbell rating is?
Mr. Bunning. It is ``BV,'' which is, I believe, the middle
of the three ratings.
Senator Hatch. It is the highest rating that a young lawyer
can have between five--you cannot get it until after you have
been in the practice for five years, and if I recall it
correctly, between five and ten years, it is the highest rating
any lawyer can have.
Mr. Bunning. Thank you.
Senator Hatch. And then after ten, hopefully you can work
on getting an ``AV'' rating. But that speaks pretty well of
you, that you had a ``BV'' rating--
Mr. Bunning. Thank you.
Senator Hatch. --meaning the highest rating by your peers
in that area by the most important rating system that we have
in the law today. I wanted to point that out, because it is my
understanding that you did.
I note that you have spent virtually your entire career as
a litigator in the Federal Courts, and as a result, I expect
that you have had significant experience dealing with the rules
that govern proceedings in Federal Court, such as the Federal
Rules of Evidence, the Federal Rules of Civil and Criminal
Procedure, and the Federal Sentencing Guidelines. How will you
benefit as a Federal judge from your extensive experience with
these rules?
Mr. Bunning. I believe my experience in the interpretation
and application of all those rules that you mentioned will be
of great benefit to me. I understand the nuances of the
sentencing guidelines. I was fortunate enough in the year 2000
to be asked by the Kentucky Bar Association to lecture to the
KBA on guideline issues. I was very proud of being asked to do
that as a member of the bar in Covington, Kentucky.
Evidentiary rules are, like anything else, the more you
deal with them in the well of the court, the more familiar you
are, and I have had a lot of experience in the middle of trials
litigating, or advocating, if you will, the Federal Rules of
Evidence, and I believe that will be a great benefit to me.
Knowing the practices and the procedures in both civil and
criminal cases in the Eastern District of Kentucky will be of a
great benefit to me, if confirmed.
Senator Hatch. Now, I understand that there has been an
allegation that your experience has revolved almost exclusively
around criminal law. I note, however, that you spent the first
four years of your career as an Assistant U.S. Attorney in the
Lexington office of the Civil Division handling a diverse array
of cases. Even after you were transferred to the Covington
office in 1995, you continued to handle civil matters until
1998. Can you provide us with some details about your civil
litigation experience?
Mr. Bunning. Thank you. I have handled approximately 130
Federal civil cases, ranging from Bivens type actions to
Federal Tort Claims actions to handling age discrimination
cases, and for the most part, many of those Federal
constitutional law issues--the Bivens, the 1983 type actions,
were the very same cases that make up a large percentage of the
docket for Federal judges in the Eastern District of Kentucky.
And while I have defended the individuals who have been accused
of using excessive force, for instance, I am familiar with that
area and I believe that will be a great benefit to me, if
confirmed.
Senator Hatch. Thank you. Now, one of the criticisms that
has been levied against you is that you graduated from the
University of Kentucky Law School in the middle of your class.
I personally am truly disappointed by this criticism, as I feel
strongly that a solid quality legal education is available at
our country's State universities.
Senator McConnell. I might say, as another UK Law graduate
who graduated in the middle of his class, I thought it stung a
little bit, too.
[Laughter.]
Senator Hatch. Maybe I should not ask the rest of this
question. I think it would sting anybody.
[Laughter.]
Senator Hatch. I used to be proud of saying that I never
lost a case to some of these so-called heralded elite law
school graduates.
Chairman Leahy. Moving right along--
[Laughter.]
Senator Hatch. I am concerned that this criticism reflects
a degree of elitism, so I want to ask you the following
question. Do you feel at all disadvantaged for having graduated
from a State law school?
Mr. Bunning. Absolutely not, Mr. Chairman. The University
of Kentucky, and there will be some who disagree, but I believe
it is the flagship law school in Kentucky. We do have three
very wonderful law schools in the State and I am very proud of
having graduated from UK in Lexington. We do have--it is my
understanding, and I may get it wrong, but I know several of
the current Federal bench and the District Court bench
graduated from Kentucky. I believe that is correct. I think you
may ask them why they are--I am sure they will remember where
they went to law school. You could ask them that later.
Senator Hatch. Between you and me, I think it is the
student a lot more. The law school is important, but the
student is even more important.
Frankly, I am proud of the record you have, and we have put
young people on the Federal bench. You have over ten years.
Now, I admit that the American Bar Association likes a 12-year
rule, but we have ignored that rule from time to time,
especially when you have the litigation experience that
somebody like you has had, and not just criminal, but civil, as
well. So I just want to compliment you. I believe you will make
a wonderful District Court judge and I think you will bring a
vibrancy to the bench that will be very much appreciated by
those of us who work with the Federal judiciary at all times.
I have been here 25 years and there is nobody who loves the
Federal judiciary more than I do, nobody. I respect these
judges. I would not recommend anybody to become a Federal
District or Circuit Court judge or a Supreme Court judge who I
did not feel had the capacity to do that job, because the work
that you do is so important for this country. I personally
believe that the judiciary, that third branch of government,
that sometimes is disparaged by people in our society, has done
more to save the Constitution and to protect our way of live
than any of the three branches. That does not negate the fact
the other two branches have done some very good things, but you
are about to go into a position that really makes a difference
in this world.
I, for one, am very proud of what you have been able to
accomplish during your years. I have to say that those who want
to disparage any aspect of your experience ought to look at
that ``BV'' rating. That is by peers and it is a very small
percentage of lawyers who get that after five years of practice
of law. It is a very high rating. I think that should stand you
in very good stead in anybody's eyes, because those are secret
ballots for Martindale-Hubbell. You do not know who is voting
for you. You do not know who they sent questionnaires out to.
So these are your peers who really have no reason to do
anything but tell the truth.
I am very proud to support you in this matter and I wish
you well as you become confirmed.
Mr. Bunning. Thank you.
Senator Hatch. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator McConnell?
Senator McConnell. Mr. Chairman, the Senator from Alabama
has got another place he needs to go here shortly, so if you do
not mind, I am going to allow him to--
Chairman Leahy. I am always happy to accommodate my friend
from Alabama.
Senator McConnell. I will yield my time.
Senator Hatch. If my friend from Alabama would yield, Mr.
Chairman, I have another appointment I have to go to, but I
just want to thank you for holding this hearing once again. I
appreciate your effort in this regard and appreciate the effort
of my colleagues.
Chairman Leahy. And I would just note, so that people can
plan, when we finish the questioning of the witness, we will
take about a three-minute break before we bring up the next
panel.
The Senator from Alabama.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Mr. Chairman, I know I am biased, having
served as an Assistant U.S. Attorney and as United States
Attorney for 12 years, really 15 years, in the Department of
Justice doing much of the same kind of work that this nominee
has. I recognize the Bar Association does worry about the rule
for years of practice and I understand that that is a good rule
and ought to be looked at, but it is not an iron-clad rule, as
we all know.
Honestly, the kind of experience this nominee has is
extraordinary. He has worked full-time before the very judges
that he will be serving with. Remarkably, three of them are
here today to testify to his competence, his former United
States Attorney boss, who was appointed by President Clinton,
also supports his nomination.
Unlike some Assistant United States Attorneys in a big
office who may have tried one or two big cases over a period of
time in a rarified atmosphere, this nominee has tried civil
cases, medical malpractice civil cases, complex Bivens cases
involving a lot of money against the United States Government,
a host of those kinds of cases which, I think, indicates that
he had to master the Rules of Evidence, the Civil Rules of
Evidence.
He also has handled quite a number of major criminal cases
and did OCDETF work, which is the Organized Crime Drug
Enforcement Task Force cases. Fifty percent of his criminal
work has been OCDETF cases. These are the most complex drug
cases. Many of those involve multi-district, multi-defendant
situations. He has prosecuted health care fraud cases, all of
which are complex, white-collar fraud cases, economic and
Internet fraud cases. I think that is important.
So he has learned criminal rules and the criminal
procedures, and I would certainly suggest that Sentencing
Guidelines are a significant issue for a Federal judge. They
are complex and it takes some time to get a handle on them.
Obviously, based on his experience, he will hit the ground
running with those issues with no problem.
As Chairman Hatch noted, I thought it was particularly
noteworthy that during the time he has been trying these cases,
he has been advising agents--I will just ask you this, Mr.
Bunning. Do you have agents and investigators talk to you on a
pretty regular basis, in your office?
Mr. Bunning. Senator Sessions, that is correct. They call
and if we happen to be the one that answers the phone that day,
we answer their question.
Senator Sessions. And you give them legal advice. They come
into your office and ask legal advice. You have to meet with
them to prepare for cases, talk to witnesses, interview
witnesses and do those kinds of things.
Mr. Bunning. That is correct.
Senator Sessions. But at the same time he is doing all that
and trying cases, he has written 50 appellate briefs to the
Sixth Circuit Court of Appeals, personally written those
briefs, and appeared before the Court of Appeals ten to 15
times. That is a real tough thing.
And in the course of that, I would suggest that a young
lawyer quickly learns what goes on in the courtroom, what goes
on outside the courtroom with law enforcement officers. He
understands that, and also learns how to simplify and identify
key issues on appeal, key issues that will come forth on
appeal.
I was impressed that of the 20 jury trials he has tried, he
did 18 of them as sole counsel. That is the way we did in my
office. It is real productive for the taxpayers, frankly. In
big offices, they will have three lawyers trying cases. A new
one is supposed to sit there and, I guess, absorb the practice.
But in the real world out there where you have a small office,
you are trying those yourself and you have to stand before that
judge, argue your motions on evidence, argue your exclusionary
motions, argue the motions to dismiss, and learn about lawyers.
So I just think it is an exceptionally good background for
a Federal Court judgeship, particularly when he has done civil
and criminal cases. I see you are smiling.
Chairman Leahy. No, I was just thinking, being just a small
town lawyer myself, I never knew you were able to have a second
counsel there.
[Laughter.]
Chairman Leahy. I thought you had to do everything from
discovery to prepare the case, try it, and take it up on
appeal. So I am glad I have been here today. I have learned
something.
Senator Sessions. It is not that way in the big offices,
truly.
And I was impressed. I like the letter from your self-
described liberal Democrat. He said you have integrity,
fairness, and no hint of aloofness. I hope you will not lose
that just because you are anointed.
Mr. Bunning. Senator Sessions, with having three small
children, my feet are firmly planted on the ground.
[Laughter.]
Senator Sessions. I think that is important, and I think we
need to be--I think experience is important in a judge, but I
would just say, having the support of the judges before whom
you prosecute and the intensity of the experience you have had,
if you had dictatorial qualities, if you had qualities that
indicated incompetence or lack of integrity or a lack of
commitment to the rule of law, if you could not have gotten
along with your lawyers on the other side, we would know it by
now.
I think, based on that unique experience you have had, I
think we are looking at a good nominee, Mr. Chairman, and I
thank you very much for allowing this hearing to occur.
Chairman Leahy. Thank you, Senator Sessions. I appreciate
that.
Senator McConnell?
Senator McConnell. Mr. Chairman, we are almost to the point
here with this nominee where everything has been said but not
everyone has said it. There is one area that I wanted to probe
just a bit and that is in Mr. Weiner's report, the satellite
office seemed to be an issue. I am not sure whether it was an
issue because the argument was that you were unsupervised or
over-supervised. You had said, I think, that your boss had a
``sort of hands-off approach to management,'' but I gather you
did not mean there was no supervision whatsoever.
Mr. Bunning. Senator McConnell, that is absolutely correct.
The nice thing about being in the satellite office was the
opportunity for consultation and supervision was always there,
and I am fortunate enough, my immediate supervisor for more
than the last six years, E.G. Walburn, is a fabulous lawyer who
knows more about the Federal Rules of Evidence than any lawyer
that I know. I have been able to draw on his experience--
Senator McConnell. In fact, he was a former Kentucky Lawyer
of the Year, was he not?
Mr. Bunning. That is my understanding.
Senator McConnell. Yes. I am sorry. I did not mean to
interrupt you.
Mr. Bunning. In the satellite office, we spent many times
discussing nuances of the Federal Rules of Evidence. The level
of supervision, now while I did not have constant supervision
with respect to every single decision that I would make, my
indictments that were prepared to be presented to a grand jury
were always reviewed by my immediate supervisor and Mr.
Famularo, while he was the U.S. Attorney. My appellate briefs
were reviewed by Mr. Walburn and by an appellate chief in
Lexington. While I handled and wrote the briefs myself, they
were always reviewed.
And the level of supervision we got was intense when it was
needed, and I think I did tell Mr. Weiner that it was hands-
off, but I think it enabled me to grow as a lawyer and make
decisions on my own, which I think, obviously, if fortunate
enough to be confirmed, I will be doing just that.
Senator McConnell. Thank you. I suppose you are going to
want to be very careful on this next question, given who is
sitting behind you, but the United States Attorney's Office
where you have spent your legal career actually gives you more
relevant experience than almost anything else you could do. In
fact, it is a unique advantage, as Senator Sessions and others
have pointed out, in preparing to be a Federal District Court
judge.
Do you know how your experience compares with others who
have been appointed to the Federal Court in Kentucky at the
time of their appointment?
Mr. Bunning. Senator McConnell, I have spoken with several
of the judges, some behind me, some who were not able to be
here. I believe it compares favorably. I would not be--I am
incredibly humble to state that I believe my experience makes
me qualified for this job that I have been nominated for. They
are--their level of experience and breadth and depth of their
experience when they came to the bench with varied backgrounds.
I am fortunate enough that my time at the U.S. Attorney's
Office has given me a great reverence for the practices and the
procedures in the Eastern District of Kentucky. We have been
blessed with very fine judges, some of which came from the U.S.
Attorney's Office for the Eastern District of Kentucky, and I
think you might better ask them than myself that question.
Senator McConnell. I will.
Finally, the issue of complex cases. The Chairman mentioned
antitrust and voting rights cases, but I would surmise there
are probably a whole lot of lawyers who have been appointed to
the Federal Courts in America who have never handled antitrust
cases. It is kind of a narrow specialty.
But there was one case you were involved in in which you
were dealing with a treaty, is that right, to--
Mr. Bunning. The Mutual Legal Assistance Treaty?
Senator McConnell. Yes. Would you describe the complexity
of that and what that was about?
Mr. Bunning. We had--I believe it was the Galloway case you
are referring to--we were trying to get--the Customs Office and
myself were researching the law in that area and needed to
obtain records from the Netherlands. There were certain
practices and procedures that we had to follow. Certain
countries have treaties with the United States for sharing of
information. The Mutual Legal Assistance Treaty is one of those
items.
We had to complete an affidavit, a very lengthy affidavit,
saying why we needed it. It took approximately six months to
get the records, but finally were able to obtain the records
and use them as part of our case in chief during the Galloway
trial. It was something I had not done before. However, there
was a statute which we needed to follow. We followed it to the
tee and we were able to obtain the records that we needed,
which assisted in obtaining the conviction in that particular
case.
Senator McConnell. You also handled the first Internet
harassment case in the Eastern District, is that right?
Mr. Bunning. I believe that is correct, Senator McConnell.
That was a--the case that was mentioned earlier where the
defendant had sent, salacious is probably an understatement, e-
mails to a particular victim, to her family, or not to her
family, but to her Sunday School, to her principal, and it
really was an ugly case.
We reviewed the statutes to try to find something where we
could help because it involved Canada, it involved Western
Kentucky, it involved getting records from an Internet service
provider, which there is a particular statute on that, as well,
and we were finally able to find what we needed and we used
Title 47, United States Code Section 223, and we were fortunate
enough that the grand jury indicted, that we did the
investigation, and ultimately, the defendant was sentenced to
24 months, which is the statutory maximum.
Later, that case evolved into something much greater when
the victim, the primary victims in my case were threatened, as
were others and myself, as well. So that has given me a lot of
perspective on victims' issues.
Senator McConnell. Thank you, Mr. Chairman.
Chairman Leahy. In fact, the threat against you was
considered serious enough you were put under protection because
of that threat, were you not?
Mr. Bunning. Yes, that is correct, Mr. Chairman. My wife
and my two children at the time had to leave very quickly, and
that is just part of the job.
Chairman Leahy. I understand.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman, and thank you for
holding this hearing.
I have been an advocate for victims' rights, and one of the
things that struck me about your record, Mr. Bunning, is the
recognition that you received, I believe as a result of that
particular case, the Department of Justice's Annual Victim's
Rights Recognition Award, and I compliment you for that.
Mr. Bunning. Thank you.
Senator Kyl. Mr. Chairman, I have a couple of biases here.
I have known Mr. Bunning now since 1987 and I know something of
his character and his temperament because I am so well
acquainted with his parents. Therefore, I confess some bias in
this matter.
But I also think I have another bias, and it is the same
bias that I think the ABA has, and I do not mean this in a
critical way at all. It is a natural aspect, I think, of the
growth. I recognize the ABA leadership would probably deny
this, but I think there is some feeling that those of us who
were law review and were civil practitioners in large law firms
think that that is what the practice of law is all about, the
complex civil litigation and the like, and a large component of
the ABA is made up, or the leadership of the ABA is made up of
attorneys that have had that background. That is my background
and I think that is really the big important stuff in the law.
But, of course, after having practiced for 20 years and
then having spent 15 or 16 years in the Congress, I have got a
little different perspective, especially since I have had the
good fortune of being able to select nominees for appointment
to the bench. I have had to think a lot more about what it
takes to be a good Federal District judge, and I have concluded
that somebody with the experience that Mr. Bunning has probably
enters that office with a better chance of being a good judge
than someone with the kind of experience that I had myself, and
it is for the reasons that have been pointed out by so many
people here.
The things that a Federal District judge in the Eastern
District of Kentucky is going to deal with are exactly the kind
of things that Mr. Bunning has dealt with. So I may come in
with a lot of experience from the big law firm and complex
civil litigation, but I am going to have to learn all of those
rules and the other procedures that attend to the criminal
cases because that is the bulk of the work.
In this age of specialization, I think we need to be
careful about nominating or confirming judges who may be real
hot-shots in one specific area of the law and they do not have
the breadth of practice that David Bunning does.
I would note, Mr. Chairman, that I helped to select three
nominees for the District Court in Arizona, all of whom were
confirmed. One of them had almost identical experience. In
fact, she is the first Arizona Hispanic Federal District judge
and had a background very much like David Bunning's background.
Her counterpart was a civil judge, somebody that practiced
a lot of the civil litigation, and I have talked to both of
them since and they are learning a lot from each other. But
clearly, the one with the experience as an Assistant U.S.
Attorney hit the deck running.
That is really what I want to ask you about, David.
Everybody brings unique attributes to the team. You are going
to join an erudite bench. What you bring to that bench is
youth, I think the ability to work hard, the ability to hit the
deck running, and also an ability to relate to the people that
the judge has to relate to in the courtroom, the families, the
victims, and the defendants, and let us face it, most of the
defendants are young men who have gotten it wrong with the law
and they need some guidance. They need somebody who can be
tough but who, when they are done, they and their families say,
``I was treated fairly and now I have a better understanding of
why I have got to get straight with the law.''
My question to you, you have, according to the record, a
very good record of working hard, coming in early and working
late and so on. Your court needs somebody who can handle a
large caseload. My question is, are you going to work every bit
as hard as you have as an Assistant U.S. Attorney when you are
elevated to the bench, question number one, and are you willing
to take on an even larger caseload than some of the judges who
have been there for a long time as soon as you are able to
handle that?
And finally, how do you think you can relate to the
families, to the victims, to the young defendants who will
appear before you that you will have to sentence and so on, to
bring something special to the court, something that perhaps
some of the older judges do not necessarily bring to that
court? How would you relate your experience and the special
qualities you have to the administration of justice, the rule
of law, and helping the public gain confidence in our Federal
judiciary?
Mr. Bunning. I am going to answer the last question first,
as I remember them. The public gaining confidence in the
judiciary, I believe that starts with respect of the system,
respect to the witness, the victim, all litigants, the lawyers,
and the accused. I have spent--I have tirelessly spent the last
ten years of my life making sure that justice is served in all
cases. If that means we do not proceed on an indictment,
presenting an indictment, if that means I do not believe there
is probable cause to get a search warrant, I have been very
candid with agents about it.
With respect to the first question about working hard to
make sure that--working just as hard as a District judge, I
want to assure every member of this Committee and every member
of the Senate, I have always been very privileged to put every
ounce of my energy into my job. I am a tireless worker. I have
always been--put a lot of attention to detail, which I believe
will be important if I am fortunate enough to be confirmed by
the Senate.
The other question, I believe, was about relating to young
defendants. I have sat across tables from many a cooperating
co-defendant, in criminal cases. I have talked to victims. I
have been a victim myself in a criminal case. That was an eye-
opener. You never think that you are going to be the one, but
it just was a result of tireless effort, tightening the noose,
if you will. Obviously, I will not be--that may not be a good
analogy to use, but working tirelessly to achieve the result
that I needed in that particular case.
I do have the perspective of being relatively young. I
believe I probably have a little bit more gray hair today than
I have a year ago. I like to think that is because of my
children.
[Laughter.]
Mr. Bunning. But ultimately, I think that the breadth and
the depth of what I have been doing and the tireless way I have
approached my job, in a very blue-collar way in a white-collar
suit, will serve me well if I am confirmed.
Senator Kyl. Thanks, Mr. Chairman.
Chairman Leahy. Thank you. Do not worry about the gray
hair. Some of us would take it any color at all that might come
in.
[Laughter.]
Chairman Leahy. In listening to Senator Kyl's question, I
am sure that neither Senator Kyl, he did not mean to suggest,
nor did you by your answer, that automatically, those young men
who are before the court are all guilty. I mean, that is
something that has to be determined.
Mr. Bunning. Absolutely.
Chairman Leahy. And I understand what you mean on being a
victim. During my years as a prosecutor, I was shot at, I was
threatened with murder, and a number of other things. I came
here for the relative safety--
[Laughter.]
Chairman Leahy. --and anonymity of the United States
Senate, and that is because I guess they did not know about
anthrax back in the days when I was a prosecutor. Now, they
send something through that is supposed to take out me and a
few hundred thousand other people.
But we do our work, and unfortunately in this case, the
letters are something that threaten not only Senator Daschle
and myself, but all 100 Senators and a whole lot of staff and,
unfortunately, on the way here, murdered several innocent
people and have injured several others.
You described the Fleschig case, Lisa Fleschig, and I may
be mispronouncing it. I understand in this case, the inmate who
was incarcerated, she was being transported by a male
corrections officer transporting. He was alone with her and was
charged that he had sexually assaulted her. The courts,
following a motion that you had made on behalf of another U.S.
Attorney, eventually said that the correctional staff was not
negligent in permitting the inmate to be escorted alone. The
officer was acting outside of the scope of his employment.
Judge Forester, who is here, granted that motion. The Sixth
Circuit affirmed.
I am just curious. Was there ever a remedial action taken
against this officer? I am not suggesting there was anything
wrong with the decisions and, obviously, the Circuit upheld it,
but was any redress provided to the victim, any action taken
against the corrections officer?
Mr. Bunning. Mr. Chairman, I believe there was. That was a
tragic set of facts. The Federal Tort Claims Act, we had a
defense. We raised it. It was granted. It was affirmed.
As I recall, the officer, his name was Bruce Trent, and at
that time, we could not prosecute him criminally because the
rape did not occur within the special maritime jurisdiction of
the United States because it was at her apartment, and he
indicated that if she said anything, he would say that she was
trying to escape.
As I recall, he was dismissed. I cannot verify that. I
could follow up, if you would like. I could try to obtain that
information from the Bureau of Prisons, but--
Chairman Leahy. I was just curious what finally happened
there. You described it very accurately in your questionnaire,
but I was just curious what finally happened.
Mr. Bunning, we will keep the record open so others can
submit questions. I have a couple that are fairly technical in
nature. I did not think it would be fair to simply spring them
on you. We are going to submit them to you. If you have
questions about the nature of the questions, feel free to call
back to the staff.
Others will be able to do that, as we will hold this open.
It will also give you a chance, when there will be other
testimony here today, if you want to respond to anything raised
in that, you will have the opportunity.
I appreciate the comments of the senior Senator from
Kentucky on the question of fairness. I assure you, this will
be a fair hearing. I thank you for being here. Your wife has
been very patient. I suspect she is supportive of you in this
matter.
Mr. Bunning. I hope so.
[Laughter.]
Mr. Bunning. I believe so.
Chairman Leahy. You cannot see here, sitting where you are,
but the look of pride and love that you received throughout
this, I think answers that question.
We will stand in recess for a few minutes.
Mr. Bunning. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
[Recess.]
Chairman Leahy. I am very pleased that Mr. Trimmier and Mr.
Weiner and Mr. Best were able to join us. I understand that Mr.
Trimmier is the Chair of the American Bar Association's
Standing Committee on the Federal Judiciary and Mr. Weiner will
be testifying and that Mr. Best will be available for
questions. I apologize for the spring allergies I seem to pick
up. My voice is going. But I know you have been sitting here a
long time. I thank you for being here and yield to you, Mr.
Trimmier.
STATEMENT OF ROSCOE TRIMMIER, JR., CHAIR, AMERICAN BAR
ASSOCIATION STANDING COMMITTEE ON FEDERAL JUDICIARY,
WASHINGTON, D.C.; AND DAVID C. WEINER, SIXTH CIRCUIT
REPRESENTATIVE, AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON
FEDERAL JUDICIARY, WASHINGTON, D.C.; ACCOMPANIED BY JUDAH BEST,
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON FEDERAL
JUDICIARY, WASHINGTON, D.C.
Mr. Trimmier. Thank you, Senator Leahy. Mr. Chairman,
members of the Committee, my name is Roscoe Trimmier and I am a
practicing lawyer in Boston, and I am, as Senator Leahy
indicated, the Chair of the American Bar Association Standing
Committee on Federal Judiciary.
With me today is David C. Weiner, the Committee's Sixth
Circuit Representative and the principal investigator for this
investigation. To my far left is Mr. Judah Best, a former
Committee member and a former Chair of this Committee who acted
as the second investigator in this case. We appear here to
present the views of the Association on the nomination of David
L. Bunning to be a United States District Court Judge for the
Eastern District of Kentucky.
After careful investigation and consideration, including an
evaluation of his written submissions, a majority of our
Committee is of the opinion that Mr. Bunning is ``not
qualified'' for appointment. A minority found him to be
``qualified.''
Before the specifics of this case, I would like to review
briefly the Committee's procedures so that you will have a
clear understanding of the process the Committee followed in
this investigation. A more detailed description of the
Committee's procedures is contained in an ABA booklet entitled,
``Standing Committee on Federal Judiciary: What It Is and How
It Works,'' which was last published in July of 1999.
The ABA Committee investigates and considers only the
professional competence, integrity, and judicial temperament of
the nominee. Ideological or political considerations are not
taken into account. Our processes and procedures are carefully
structured to produce a fair, thorough, and objective
evaluation of each nominee. A number of factors are
investigated, including intellectual capacity, judgment,
writing and analytical ability, industry, knowledge of the law,
professional experience, character, integrity, and general
reputation in the legal community.
The investigation is ordinarily undertaken by the member of
the Committee residing in the judicial circuit in which the
vacancy exists, although in some cases it may be conducted by
another member of the Committee or a former member of the
Committee.
The starting point for an investigation is the receipt of
the candidate's responses to the public portion of the Senate
Judiciary Committee questionnaire. These responses provide the
opportunity for the nominee to set forth his or her
qualifications, professional experience, significant cases
handled, major writings, and the like.
The principal investigator personally conducts extensive
confidential interviews with a broad spectrum of individuals
who are in a position to evaluate the nominee's professional
qualifications, and he also examines the legal writings of the
candidate. The principal investigator interviews the candidate
and discusses his or her qualifications for a judgeship, as
well as the substance of adverse information raised during the
investigation. The candidate is given a full opportunity to
respond and to provide any additional information he or she may
choose.
Sometimes, a clear pattern emerges in the interviews and
the investigation can be briskly concluded. In other cases,
conflicting evaluations as to professional competence may be
received or questions might arise as to integrity or
temperament. The principal investigator usually submits an
informal report on the progress of the investigation to the
Chair, providing a preliminary assessment of the nominee's
qualifications. In those cases where it appears that the
preliminary assessment may be ``not qualified,'' as a matter of
fairness, another investigator may be asked to come into the
investigation and conduct the supplemental inquiries he or she
feels appropriate and to make a recommendation.
At the conclusion of all inquiries, a formal investigative
report, containing a description of the candidate's background,
summaries of all interviews conducted, including the interview
with the prospective nominee, or in this case nominee, an
evaluation of the candidate's qualifications and a recommended
rating, all of that is circulated to the entire 15-member
Committee, together with complete Senate Judiciary Committee
questionnaire responses and copies of other relevant materials.
Any supplemental report is also provided to each Committee
member.
After studying these materials, each Committee member
telephones a vote to the Chair rating the nominee ``well
qualified,'' ``qualified,'' or ``not qualified.'' The votes are
later confirmed in writing.
An important concern of the Committee in carrying out its
function is confidentiality. The Committee seeks information on
a confidential basis and assures its sources that their
identities and the information they provide will not be
revealed outside the Committee unless they consent to
disclosure. It is the Committee's experience that only by
assuring and maintaining such confidentiality can sources be
persuaded to provide full and candid information.
However, we are also alert to the potential for abuse of
confidentiality. The substance of adverse information is shared
with the nominee, who is given full opportunity to explain the
matter and to provide any additional information bearing on it.
If that cannot be done, the information may not be relied upon
by the Committee in reaching its evaluation.
As to the specific investigation before us, Mr. Bunning was
nominated on August 2, 2001. Mr. Weiner began his investigation
shortly after receiving Mr. Bunning's August 10, 2001,
responses to the public portion of the Senate Judiciary
Committee questionnaire.
On September 12, Mr. Weiner prepared and submitted to me as
Chair of the Committee an informal report that thoroughly
presented the results of his investigation, summaries of all
his confidential interviews, a summary of his interview with
Mr. Bunning, and a recommendation. Because that recommendation
was proposed to be that Mr. Bunning be found ``not qualified,''
consistent with Committee procedures, I appointed a second
investigator, a former member and Chair of our Committee, Mr.
Judah Best, to conduct a supplemental investigation.
Mr. Best conducted confidential interviews with 17 persons,
some of whom Mr. Weiner had previously interviewed, and he,
too, interviewed Mr. Bunning in his office on September 26,
2001. Mr. Best recommended that the Committee rate Mr. Bunning
``qualified.''
On October 1, 2001, both Mr. Weiner's formal report and Mr.
Best's supplemental report were transmitted to all members of
the Committee. I encouraged Committee members who had questions
for either investigator to contact them directly. After all the
Committee members had had an opportunity to study both reports
and all attachments, they reported to me their votes on the
qualifications of Mr. Bunning. A majority of the Committee
voted to find Mr. Bunning ``not qualified,'' and a minority
voted to find him ``qualified.'' That vote was reported to this
Committee on October 11, 2001.
I will now ask Mr. Weiner to describe the conduct of his
investigation and the basis of his recommendation, which the
Committee adopted by majority vote. Mr. Best is also here to
respond to such questions you may have regarding his
supplemental investigation and his recommendations.
Chairman Leahy. Thank you, Mr. Trimmier.
Mr. Weiner?
Mr. Weiner. Thank you, Mr. Chairman, fellow members of the
Committee. My name is David Weiner. I am a trial lawyer from
the State of Ohio. I have been practicing for 32 years. I am
the Chairman of the Board of the seventh largest firm in
Cleveland and a past Chair of the Litigation Section of the
American Bar Association. I earned my law degree here in D.C.
at the Georgetown University Law Center and began my legal
career down the street as a clerk to Senior Circuit Judge E.
Barrett Prettyman of the United States Court of Appeals for the
District of Columbia Circuit.
As the Sixth Circuit member of the ABA Standing Committee
on the Federal Judiciary, I conducted the initial investigation
of the qualifications of David L. Bunning. I have been a member
of the Standing Committee since 1997. I have participated in
numerous investigations of potential and actual nominees to the
United States Court of Appeals and the United States District
Court. I have done so both as the Committee person responsible
for the investigation and as a reviewer of investigations
conducted by fellow Committee members. My investigation of the
nominee was conducted in the same manner all investigations by
the Standing Committee are conducted, as Roscoe Trimmier just
explained to you.
My investigation was conducted during August and September
of this year. It included over 50 confidential interviews with
trial and appellate Federal judges in the Sixth Circuit and
Kentucky lawyers who know and have worked with the candidate,
who have direct knowledge of his professional qualifications,
including those Mr. Bunning listed as references in his
questionnaire. I included among my interviews prominent members
of the Kentucky Trial Bar. During each conversation, I inquired
how the person knew, if at all, the nominee and what the person
knew about the nominee's judicial temperament, integrity, and
professional competence relevant to his being qualified to
serve on the United States District Court. I also inquired if
they knew any reason why the nominee should not be qualified to
so serve.
In addition to those nominees, I reviewed other pertinent
materials, including writing samples Mr. Bunning selected for
me, such as legal briefs he had written. I also met privately
with Mr. Bunning in his office in Covington, Kentucky, for
nearly three hours. During the course of our meeting, concerns
that had been identified during my investigation were discussed
and the candidate was given an opportunity to provide
additional information and to respond.
Before reaching my recommendation, I reflected at some
length upon our guidelines, which appear in the publication Mr.
Trimmier described and is referred to commonly as the
``Backgrounder.'' In particular, I deliberated on the various
duties and roles United States District judges must perform on
a regular basis and the importance of that lifelong position.
My recommendation was that the nominee be rated ``not
qualified.'' I will shortly set out the reasons for this
recommendation, but stress, and I stress this importantly, that
I did not reach this conclusion lightly.
Indeed, because my preliminary investigation resulted in a
``not qualified'' recommendation, our Committee Chair called
for a second investigation, which was conducted by a very
distinguished member of the D.C. Bar, Judah Best. I have known
Mr. Best for decades and I have the highest regard for him. I
carefully reviewed Mr. Best's supplemental report and Mr. Best
and I discussed our respective views of the qualification of
the nominee at length. We could not, however, reconcile our
different views.
After careful consideration of both reports, along with the
nominee's questionnaire and the written materials he had
furnished, the majority of our Standing Committee was of the
view that Mr. Bunning is ``not qualified'' for the position. A
minority of the Committee found him to be ``qualified.''
I emphasize that our Committee takes most seriously its
responsibility to conduct independent examination of the
professional qualifications of judicial nominees. There is no
bright line litmus test as to whether the nominee is not
qualified or whether he is qualified. Our recommendation is not
the result of tallying the comments, both pro and con, about a
particular nominee. Rather, in making our evaluation, we draw
upon our previous experience, the information and knowledge we
gain about the nominee during the course of our investigation,
and our own independent judgment.
I must stress that we apply the same standards and criteria
impartially to all nominees. As you know, President Bush has
submitted to the Senate the names of 64 nominees for judicial
appointment, and our Committee has found only one candidate to
be ``not qualified.''
At the outset, let me state that as to two of our three
criteria, there was little brought out during the course of our
investigation to question the nominee's integrity, and his
judicial temperament was found likely to be satisfactory. There
was no question that the nominee is a good person with strong
family and religious ties. He is a diligent worker. He told me
that he regularly works from eight a.m. to five or six p.m.
daily. And, he is generally well liked. I should also say that
he has been cordial and respectful towards me throughout this
process.
Rather, our conclusion that the nominee should be rated
``not qualified'' is based on several serious concerns relating
to his competence. Our ``Backgrounder'' states that, and I
quote here, ``professional competence encompasses such
qualities as intellectual capacity, judgment, writing and
analytical ability, knowledge of the law, and breadth of
professional experience.'' There should be, we believe, strong
evidence that the nominee is professionally competent to manage
and resolve the hundreds of diverse matters that a Federal
judge is likely to face. Some of those matters call upon a
Federal judge to resolve very complicated and challenging
factual legal issues which may have far-reaching and lasting
effects on numerous people. A judge regularly must make on-the-
spot decisions in the courtroom that require a solid grounding
in procedural and substantive law across a broad spectrum.
Using that as a guide, we looked at the total experience of the
nominee.
Evidence of competency is the strongest and easiest measure
when the lawyer has practiced law for a number of years. Based
on the Committee's longstanding experience with investigating
nominees, 12 years is what we think to be an appropriate
minimum, absent extraordinary circumstances. A lawyer with this
amount of experience is found more likely to have been exposed
to a broader spectrum of legal issues and acquired more
sophisticated responsibilities and perspectives than one
lacking such experience. We believe that the judicial system,
the public, the trial bar, and the nominees are not well served
by placing on the bench one with less than minimum experience.
The 12-year experience guideline is not a hard and fast
rule and it is not an automatic disqualifier. The Committee's
criteria provide that limited experience may be offset by the
extraordinary breadth and depth of a nominee's experience over
the course of his or her career. Nominees with less than 12
years at the bar have been found qualified by our Committee,
albeit rarely.
Mr. Bunning's civil case experience, however, is very
limited and shallow. It includes no exposure to, let alone
experience in, complex civil matters that regularly find their
way to Federal District Courts. In response to the Senate's
questionnaire about the ten most significant litigated matters
personally handled by the nominee, Mr. Bunning listed only
three civil cases.
One was a case dismissed on a motion written by the nominee
while he was still a law clerk in the U.S. Attorney's Office.
The other two cases included a civil trial against a pro se
prisoner and the trial defense of a so-called Bivens claim. I
learned that approximately one-third of all the nominee's civil
cases were Bivens cases, which typically call upon a defending
AUSA like Mr. Bunning to routinely litigate similar defenses in
each case. Additionally, I was told that many of the other
civil cases involved federally detained mental patients who had
guardians ad litem appointed when the patients refused
prescribed drug treatments. These cases, while certainly
significant to the litigants involved, do not represent the
type of cases which readily prepare one for a Federal docket.
While his criminal experience takes him to court regularly
and he has concluded 18 trials to verdict, the cases were not
of the type that called for particularly challenging lawyering.
During the course of the investigation, it was pointed out by
several interviewees that the Covington office of the United
States Attorney's Office is a satellite office and, therefore,
does not get the more significant criminal cases.
Further, there is no evidence that Mr. Bunning received
direct supervision or constructive criticism of his work
sufficient to contribute to his professional development as a
lawyer. During my investigation, I determined the nominee has
learned and gained experience on his own. The nominee told me
that, ``he is pretty much on his own,'' and he told me his boss
believes in a hands-on approach to supervision.
A review of the--
Chairman Leahy. Hands on or hands off?
Mr. Weiner. Did I say hands on? I apologize, Mr. Chairman.
Thank you for listening.
Chairman Leahy. I had read your testimony earlier. That is
why I was--
Mr. Weiner. Thank you for listening so carefully. I
appreciate it. A hands-off approach to supervision.
A review of the legal writings he submitted found them to
be sufficient from a legal standpoint. Yet, the issues
addressed were routine and not complex and the writing style
was plain. They revealed little advocacy or elegance, and to
me, they read much like the work of a young associate in our
firm.
The nominee's lack of academic achievement was another
limiting factor. The nominee attended the University of
Kentucky for both his undergraduate and law school degrees.
Although the university is a fine institution, its law school
is not highly ranked. Thus, the nominee's middle-of-the-class
law school record does not speak well for him. It is also not a
plus that the nominee did not engage in any professionally
oriented extracurricular law school activities, such as moot
court or law review.
The nominee's age is a concern only so far as it reflects
the quality and scope of his professional experience. One might
fairly ask whether a 35-year-old could be qualified to sit as a
Federal judge. I am not alone on the Committee in my belief
that there are 35-year-olds with ten years of experience who
have the professional competence to so serve. Our Committee's
belief, however, is that Mr. Bunning is not one of them. Yet,
and I emphasize this, neither his age nor his lack of 12 years'
experience are the determining factors. Rather, it is a
combination of average academics, limited civil experience,
repetitious and routine criminal matters, writings which, in my
words, ``just do the job,'' serious doubts by respected members
of the bench and bar, and no intellectual spark or legal
enthusiasm that carry the day for our Committee.
For our Committee to rate a nominee as ``qualified'' for a
lifelong appointment to the bench, a majority of us must find
the nominee meets, and these are our standards, very high
standards with respect to integrity, professional competence,
and judicial temperament, and we must find that the nominee,
``will be able to perform satisfactorily all the
responsibilities required by the high office of a Federal
judge.'' With respect to this nominee, we respectfully submit
that we did not find that to be the case. Thank you, Mr.
Chairman.
Chairman Leahy. Thank you.
Mr. Trimmier, do you disagree at all with what Mr. Weiner
has said?
Mr. Trimmier. What Mr. Weiner has said expresses the view
of the majority vote of the Standing Committee. Mr. Best, of
course, is here and is in a position to respond to questions
concerning his supplemental report.
Chairman Leahy. And that is the normal procedure, is it
not, if there is a majority vote ``not qualified,'' to then
seek a second person with experience in this type of
investigation to do it?
Mr. Trimmier. Yes, that is correct, Senator Leahy. I am not
aware of any exception, that is, where the Standing Committee
has ultimately concluded with a rating of ``not qualified''
where there has not been a supplemental investigation.
Chairman Leahy. And when that happens, I assume there are
some cases where they come back with exactly the same results.
Other times, as with this with Mr. Best, a different result, am
I correct in that?
Mr. Trimmier. That is also correct, Senator.
Chairman Leahy. Now, Mr. Weiner, I would ask you, during
the course of your investigation, you mentioned you spoke to a
very large number of people. Did that also include the people
who are going to appear in the next panel?
Mr. Weiner. Yes, it did, Mr. Chairman. I think I spoke to
each one of the three judges and the former--the current U.S.
Attorney and former boss of Mr. Bunning.
Chairman Leahy. And they take a differing view than the
majority view from the ABA Standing Committee, is that correct?
Mr. Weiner. I do not think I asked each one of them whether
they felt he was qualified or not, but I got their views on the
three areas that we look at.
Chairman Leahy. I do not want you to have to repeat exactly
what they say or put words in their mouth, because they are
going to testify, but like your testimony, I read it and I
think it is safe to characterize it as saying they feel Mr.
Bunning is qualified.
Mr. Weiner. I think that is a fair assumption.
Chairman Leahy. Mr. Best, let me ask you again, and you
referred to it in testimony, just so I understand, what
percentage of the time do you come back with a ``not
qualified''? I am thinking back for years, of course, the White
House would ask you your opinion, your, the ABA's opinion,
prior to making the name public, prior to sending a name up
here. Obviously, now the name is sent up then the ABA report is
done. It is easy for us on the Committee to know what
percentages come out ``qualified'' or ``not qualified.'' In the
past, how often is it that a nominee being looked at by the ABA
prior to their name coming up here, what percentage would you
give a non-qualified?
Mr. Trimmier. Mr. Chairman, I do not have a memory that
goes back much beyond the Clinton administration because I
became a member of the Committee in 1996. I do have some
information on that. My understanding is that the ABA Standing
Committee found four potential nominees ``not qualified''
during the Clinton administration, one of whom withdrew. The
other three were presented to this Committee with the ABA
recommendation and they were confirmed.
Chairman Leahy. Thank you. And Mr. Best, that was basically
my recollection, too, and I just wanted to make sure I was
right on this. It is relatively rare, though, I think you all
three would agree, when you have a ``not qualified'' finding,
is that correct?
Mr. Trimmier. That is correct.
Chairman Leahy. In all your experience?
Mr. Weiner. Yes.
Mr. Best. Yes.
Chairman Leahy. Mr. Best, do you consider it a significant
thing when the ABA comes up with such a rating? I mean, you
have been at this for a long time.
Mr. Best. It is unusual. I am not sure it is significant,
but it certainly is unusual.
Chairman Leahy. Well, you have reviewed these findings. We
have also heard testimony that when this subsequent review, and
I think this is a very good practice on the part of the ABA, if
they come up with a finding of ``not qualified'' to have a
subsequent review done, and the testimony is that the
subsequent, separate review often finds the same result.
In this case, you found a different result. You found Mr.
Bunning was ``qualified'' to receive a lifetime appointment as
a Federal judge. What was it that you saw differently than what
the other Committee did?
Mr. Best. Let me correct a misapprehension.
Chairman Leahy. Certainly.
Mr. Best. I have done three supplemental investigations in
the last 12 years. In each of those cases, my result was
different from the report, the initial report of the
investigator, and in two of those three instances, the
Committee voted consistent with my report and recommendation.
Chairman Leahy. So the fact that you were doing a
subsequent one, of course, would indicate that they had first
found a majority ``not qualified.'' You came back and found
``qualified.''
Mr. Best. An initial investigative report was made
recommending that the individual be found ``not qualified.'' In
the days when the Department of Justice considered them and
before the Committee did, they were afforded the opportunity
for a second report. They always requested the second report,
and--
Chairman Leahy. Then to return to my basic question,
though, what is it you find different?
Mr. Best. About this candidate?
Chairman Leahy. Why do you come out with a conclusion
different than the ABA Standing Committee did?
Mr. Best. Let me start, then, with what I did, and if I
may, I have a page-and-a-half brief preferatory statement which
would form the content of what I am going to say. With your
permission, let me read that.
Chairman Leahy. I do not think anybody would object. You go
ahead.
Mr. Best. Thank you very much, Mr. Chairman, and I want to
thank you for the opportunity of providing these brief remarks.
I have practiced trial law in the District of Columbia for
over 40 years. I am a Fellow of the American College of Trial
Lawyers, and early in my career, I, too, was an Assistant
United States Attorney and I, too, worked until three o'clock
in the morning and then went to trial the next day.
Chairman Leahy. I might say that most of the staff here,
Republican and Democratic, especially in the last few months,
have been doing exactly the same thing. Go ahead.
Mr. Best. Then there is no difference amongst us. We are
all brothers in the labors.
My resume has been submitted to the Committee as part of my
written remarks.
I have been a member of the American Bar Association for
over 25 years and have served as the Chairman of the Standing
Committee on the Federal Judiciary in the 1996-1997 term. I was
also a member of the Committee before that, from 1989 to 1992.
In the course of my service, I have conducted numerous
investigations of candidates for Federal judicial office. On
several occasions, I have conducted what is known as a
supplemental investigation after an initial investigative
report has preliminarily found a candidate to be ``not
qualified.''
In September of this year, I was contacted by the present
Chair of the Committee, Roscoe Trimmier, Jr., and asked to
undertake a supplemental investigation of David L. Bunning. I
agreed to do so. I read the initial report prepared by David C.
Weiner and the questionnaire completed by Mr. Bunning. I read
the legal writings submitted by Mr. Bunning and then contacted
Mr. Bunning, identified myself, and had him provide me with the
names of additional witnesses.
I conducted interviews of approximately 20 witnesses and
personally interviewed Mr. Bunning in Northern Kentucky. I also
consulted with several colleagues for their inputs, and I will
get into that.
After the consideration of all of the information, I
recommended to the Standing Committee that Mr. Bunning, who
stands nominated for the United States District Court for the
Eastern District of Kentucky, be rated ``qualified.'' In my
view, he had demonstrated the requisite integrity, temperament,
and professional competence for the high office for which he
had been nominated, and now let me answer the questions with
regard to my determination that Mr. Bunning is ``qualified.''
When I read the report of Mr. Weiner and read the
personnel, the completed personnel report that Mr. Bunning had
prepared, there were several questions that I had that I had to
deal with. One, it seemed to me that many of the witnesses who
were asked about Mr. Bunning were not aware of his civil trial
experience and there was no witness that stood with regard to
that information. So I received from Mr. Bunning information of
several witnesses who could give me information on that basis.
There was also another problem, it seemed to me, and that
is there was what I would call background chatter in the
investigation. There were several distracting issues that were
raised, one of which was annoyance that a United States Senator
would assist in the nomination of his son for an office, a
judicial office. Two, a real sense that there was a better
candidate for the vacancy, the ideal 53-year-old State court
judge who deliberated like Solomon who we all want to have on
the Federal bench. And the third thing was the notion, why does
a 35-year-old have any place on the Federal bench?
It seemed to me that those were distractions because it
distracted you from the main issue, which was whether this
candidate was ``qualified,'' or in the terms of this Committee,
whether he had the professional competence, the judicial
temperament, and the integrity to deal with that.
Chairman Leahy. But, if I might, the 35-year-old is not a
restriction in the U.S. Senate. We have a constitutional age of
30. But there has been this usual rule of thumb in the ABA of
12 years.
Mr. Best. There is--
Chairman Leahy. Now here you have ten years, so there must
have been something in his record that would have you overturn,
in your own mind, that usual rule of thumb. What was it that
stood out? I understand what you are saying about the perfect
candidate, whoever that might be.
Mr. Best. Yes.
Chairman Leahy. But this is, after all, still the
prerogative of the President, whomever he appoints. It is our
duty to advise and consent, but what was it that stood out that
took him out of that 12-year presumption?
Mr. Best. I will answer that, Mr. Chairman. I spoke with
many people who had information with regard to his experience
in civil trial, and I spoke to others that had experience in
criminal trial. Everyone that I spoke to, with one exception,
believed that he had the professional competence to perform as
a Federal judge.
He had, as an Assistant United States Attorney, spent an
enormous amount of time and detail in learning his craft. He
had worked--he regards himself as a workaholic. Those around
him regard him with considerable respect. He stands above the
crowd. That is the message that comes through from all of the
interviews that I undertook.
And then when I spoke with him, and before I spoke with
him, I had to deal in my own mind with the notion, can someone
who has only been in the United States Attorney's Office and
has not served in a civil practice or a private practice in the
United States, can he perform the function of a Federal judge?
Fortunately, I did an investigation of someone similarly
situated, and I called a sitting Federal judge who had been an
Assistant United States Attorney for a number of years and I
asked him. I told him my circumstances. I did not identify the
candidate. And I asked him, can he function as a Federal judge,
and the answer was a resounding yes. There is no problem about
it. The judge told me that he had immediately moved onto the
bench easily. He knew the nuts and bolts of the system. And he
said, ``Judd, the thing that you have to look at is not whether
or not he can deal on a day-to-day basis, but what is his
maturity, because you have to look at the person rather than
use such statements as 12 years or 35 years of age--''
Chairman Leahy. But Mr. Best, the maturity could be set, of
course, on anybody, but you are still talking about a very
complex area if you are going to be a Federal judge. For
example, you are talking about a Federal judge for the Eastern
District of Kentucky. Suppose we were talking about a Federal
judge for the Southern District of New York, Central District
of California, very, very complex districts, certainly far more
than, for example, we would see in my own State of Vermont.
Would you feel the same way? Would you still say ``qualified''?
Mr. Best. I am not sure that I would. I am not sure that I
would. I focused in terms of whether he would be qualified for
the Eastern District of Kentucky, and in my judgment, he would
be qualified. I think, given the character of the cases that
are presented in that court, and given his experience in
dealing with it and his reputation--his reputation is a very
important thing, reputation among the lawyers in the
community--it seemed to me that he satisfied the requirements.
Chairman Leahy. Mr. Best, you are an extraordinarily well-
qualified lawyer. You have been involved in everything from
defending Spiro Agnew to defending people in the Watergate era
to currently probably one of the best known names in lawyers
here in Washington, D.C., so I ask you this question. In your
opinion, should this Committee consider judicial nominees of
varying qualities depending upon where they are going? It is
not a trick question by any means. I am just curious. I have
asked the same question of a number of lawyers in the past, at
least privately. Does this Committee, when looking at District
judges, have a different standard depending upon what district
they are going to serve in, and should we?
Mr. Best. My view of it is that you look at the candidate
and determine whether he can do a job as a judge in the
district to which he has been nominated. Lawyers and judges do
not like hypotheticals. What would he do in New York? I really
did not consider what he would do in New York. I dealt with
what he would do in the Eastern District of Kentucky.
One of the important considerations is the position of the
U.S. Attorney during the eight or nine years of Mr. Bunning's
tenure, ten-year tenure in that office. I feel at ease in
relating his view, because he has said these things publicly
and he will testify here today. He says he is abundantly
qualified and that his capabilities are perhaps five or six
times the experience of a civil practitioner, a private
practitioner in that area.
And so I believe, given all that we know about this
candidate and the fact that he has demonstrated the maturity of
a much older person--he is 35 going on 50--it seems to me that
he will be a very valuable addition to the bench in this
jurisdiction, and those are the reasons that I concluded that
he was qualified.
Chairman Leahy. Mr. Weiner, you have heard Mr. Best, and I
am sure you have had a chance to read his report. You have also
heard Mr. Bunning here today. Have you heard anything that
changes your opinion?
Mr. Weiner. No, Mr. Chairman. I very seriously considered
Mr. Best's report before finalizing my report because I do have
a lot of respect for Judd. He has been doing this for the
Committee a long time, a little longer than I have. I think
this is an issue that two reasonable people could disagree on,
but I looked very carefully at all the evidence that I found in
this investigation, carefully reviewed the writings, carefully
reviewed my interviews with the lawyers and the judges I talked
to, my interview with Mr. Bunning, and I like the man.
I wish, in many respects, I wish that my decision had been
different and our Committee's decision was different, but on
the facts and on the merits, you have to sort of call them as
you see them and I called this one ``not qualified.''
Chairman Leahy. Mr. Trimmier?
Mr. Trimmier. Yes, Mr. Chairman. I, with some trepidation,
would like just to state a point of disagreement with Mr. Best,
I suppose at my peril.
Chairman Leahy. Do not feel bad. Disagreements go back and
forth on this panel all the time and we still serve together.
[Laughter.]
Mr. Trimmier. The reason I say that is, of course, Mr. Best
was Chair of this Committee when I first became a member in
1996 and essentially taught me what I purport to know today
about its procedures. But the ``Backgrounder'' and the
standards that this Committee uses do not make allowances for
any differences among the various circuits or the judicial
districts in which a nominee has been nominated.
The Committee is asked to review qualifications of nominees
and only recommend those who meet the very high standards of
the Committee to a ``well qualified'' or ``qualified'' rating
and it is not with regard to the district to which they are to
be appointed.
Chairman Leahy. Thank you.
Mr. Best. May I add a comment?
Chairman Leahy. Mr. Best?
Mr. Best. I think it is an unfair formulation because each
candidate is born of the experience that he has acquired during
his tenure either in the U.S. Attorney's Office or in private
practice. The notion of taking a ``well qualified''--I am not
using it as a term of art, Dave--``well qualified'' Assistant
United States Attorney in the Eastern District of Kentucky and
saying, well, would he be qualified in the Southern District of
New York, is a totally, it seems to me, unfair one.
I understand why you have raised it, Mr. Chairman, but I
think that insofar as I am concerned, he is qualified for the
position that he has been nominated to. Anything more than that
is really a matter of speculation.
Chairman Leahy. Thank you.
Senator McConnell?
Senator McConnell. Thank you, Mr. Chairman.
I spent the weekend going over the memoranda and testimony
and thought I would spend a lot of time with you, Mr. Best, but
I think you have pretty well covered the subject in
extraordinary detail, so let me turn to Mr. Weiner.
First, Mr. Weiner, I would not hold my breath on being
invited to address the UK Law School Alumni Association.
[Laughter.]
Chairman Leahy. This from the ``well qualified'' Senator
from Kentucky.
[Laughter.]
Senator McConnell. Let me just touch on one area. It seemed
to have been important to you, this whole business of
supervision which you emphasized in your report. I mean, I
realize it is the ABA's policy not to divulge the comments of
any person it interviews. I have concerns about that policy,
but I will not ask you to violate it.
In order for our Committee to give the ABA's opinion any
sort of weight, however, I need to know whether you interviewed
Mr. Bunning's supervisor for the last six years, Mr. E.G.
Walburn, not what you talked about, but did you interview him?
Mr. Weiner. If I could have a minute, I may be able to
answer that.
Senator McConnell. While you are looking, let me just say
it is my understanding that you did not, but obviously you can
speak for yourself.
Mr. Weiner. Well, I respect if you have talked to Mr.
Walburn and he said I had not, or Ms. Walburn, I am sure I did
not, then.
Senator McConnell. I do not want to belabor the point, but
to the extent that the supervision issue was significant, it
just seemed to me that speaking with Mr. Bunning's supervisor
might have been appropriate.
Mr. Weiner. I think if he had been identified to me as Mr.
Bunning's supervisor, I would have, in normal course, have
tried to reach the person. I usually do. I did talk to his top
supervisor.
I think on that issue, Senator, any one of these factors
that I talk about, and I guess you cannot help but describe
them as negatives, although that was not the intention, I was
looking in doing this investigation to find things of an
extraordinary nature which would put a person who has been only
out ten years of law school, not up to our 12-year normal
standard, up to that level. I was looking for some pluses.
The fact that you do not get--and the candidate told me
himself that he was pretty much on his own, and if you do not
get supervision, you do not get people who are editing your
work and testing your thinking process and all the stuff that
goes with maturity in that way. I mean, that may not be the
only way you could do it. Obviously, by doing things yourself,
you do learn a lot, and sometimes you learn from mistakes and
sometimes you replicate the mistakes. I am not voicing a view
on that either way. But lack of supervision is not a plus in my
mind and the Committee's mind.
Senator McConnell. My only thought about that is to the
extent that supervision was an issue, it seems to me talking to
the supervisor for six years might have been appropriate in
resolving that issue, but--
Mr. Weiner. I agree with you, but as I say, the candidate
made it real clear to me how that came out, but I appreciate
the point.
Senator McConnell. I think the opinion of the ABA is
interesting and I particularly like having it in public open
session, but we have heard from an awful lot of other people.
Let me just read some excerpts.
The current Attorney General of Kentucky, A.B. Chandler,
III, a Democrat, said ``David is an exceptionally
knowledgeable, skilled, and hard-working lawyer. David is of
the highest professional and personal character. He has an
excellent reputation among his peers and in his community.
David's intelligence, education, courtroom experience, and
exemplary dedication to our Federal justice system have
prepared him well to serve in the Federal judiciary.''
Furthermore, the National Association of Assistant United
States Attorneys conducted an investigation into the
qualifications of Mr. Bunning for this position. The
investigation included interviewing former U.S. Attorneys under
whom Mr. Bunning served, Federal judges before whom Mr. Bunning
has practiced, extensively, supervisors, colleagues, and
members of the law enforcement community. Mr. Bunning has been
actively engaged in litigation of civil and criminal cases and
amassed a vast amount of practical Federal litigation
experience which is unparalleled in the private sector.
Finally, our investigation revealed that Mr. Bunning is
uniformly viewed as an ethical, even-tempered, and objective
attorney and professional and skillful advocate.
Further, the past President of the Kentucky Bar
Association, William Robinson, after noting that he is a
lifelong registered Democrat, said, ``David Bunning has
demonstrated that he has the character, integrity, and
intellect to meet and exceed the rigorous demands of a Federal
judge. His work in the Federal Courts is widely respected. His
record of success as a litigator speaks for itself.''
Let me just sum up by saying this. We appreciate the views
of the ABA, although they are divided. One investigator reached
one conclusion, another investigator reached a different
conclusion. And we have in juxtaposition to that, we are going
to hear from shortly three Federal judges, a former U.S.
Attorney for whom Mr. Bunning directly worked, and a ream of
evidence from those who have had direct experience with him.
And so we appreciate your effort, but it seems to me,
gentlemen, that there is substantial evidence of David
Bunning's qualification to be a Federal District judge.
I thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Gentlemen, I thank all of you. I do appreciate the role the
ABA plays. I have been on this Committee for a quarter of a
century now. I have probably read more ABA reports than any of
you, or any of you would ever want to. I find it helpful. I
also know the enormous amount of time you all give to this
process.
I am not sure what determined the decision at the White
House to break the tradition going back to President Eisenhower
of using the ABA prior to names coming up here. Of course, the
President has an absolute right not to, but it is a fact, no
matter which party was in control of the Senate, that we would
still ask the ABA to do this background. It is helpful.
I appreciate your time. I appreciate all of you coming
here. Mr. Best had the shortest trip uptown, but I know that
travel is not the easiest these days, for any of us, I might
add, so thank you very much for being here.
Mr. Trimmier. Mr. Chairman, could I just ask for your
indulgence for a few minutes--
Chairman Leahy. Of course.
Mr. Trimmier. --because there are a couple of points I
think I need to make in clarification.
Chairman Leahy. Of course. And also, I should note, the
record will stay open to add to it, but please, go ahead, sir.
Mr. Trimmier. In connection with this investigation, first
of all, I want to make it clear that the Committee members did
not receive anything until both the formal report and the
supplemental report were completed. I was the only one, other
than my distinguished colleagues to the left, who had any
knowledge about the investigation until both reports were
completed and simultaneously sent to the Committee.
Chairman Leahy. I see.
Mr. Trimmier. There was no preliminary vote. The only vote
was the vote that was taken subsequent to the Committee's
receipt of both reports.
Chairman Leahy. That is a good point.
Mr. Trimmier. I will also acknowledge to Senator McConnell
that this is a matter about which reasonable people might
differ, and in many respects it is a judgment issue. We have
two distinguished practitioners here who reached different
conclusions. The Committee vote was close.
We have provided this service for 50 years as merely
another point, a data point, if you will, an input to this
Committee. This Committee and its Senate colleagues have the
constitutional duty to weigh all of these considerations,
including our input along with everything else, in making a
decision as to whether or not to confirm a nominee.
Let me also apologize and defend my good colleague, Dave
Weiner, because of, in fairness, what might have been
misconstrued as a statement about the University of Kentucky
Law School. I read his comment not as a disparagement of that
law school or its many distinguished graduates.
The rule that we use, the so-called 12-year rule, is one
that, for us, raises the level of scrutiny to a higher level so
that we look for extraordinary circumstances and distinguished
professional accomplishment in a nominee in order to offset
what may be fewer years of experience than the ABA would
ordinarily like to see.
I think what Mr. Weiner was saying was that there were none
of those compensating factors, such as a distinguished academic
record, participation on law review, and other extra-curricular
activities at the University of Kentucky that would have swayed
him or persuaded him to vote another way. It was not, I do not
think, intended as any personal disparagement or any
disparagement of--
Senator McConnell. He is pulling you out of the hot water
here, Mr. Weiner.
[Laughter.]
Mr. Weiner. I do not think I have a chance of being asked--
Chairman Leahy. I was going to say, this Georgetown Law
School graduate is not going to get involved in this one one
way or the other, but then I am not up for a judgeship, so--
[Laughter.]
Mr. Trimmier. One final point, and I am sorry that Senator
Kyl is not here. He correctly predicted that someone would seek
to defend the ABA against a claim of bias or elitism, I think
it was. I am not, and I do not consider myself to be a leader
of the ABA. I am a Chair of this Committee and I spend a good
bit of my time insulating this Committee and its work from the
leadership of the ABA, but I would like to say this.
The members of this Committee are diverse. Their
backgrounds are diverse. The nature of their practices are
diverse, some from large firms, some from medium-size firms,
some from small firms. We have members who graduated from State
law schools. We have those who graduated from Ivy League law
schools.
My job as a part of the process of this Committee is to try
to ensure that no bias of any source in any direction
interferes with the objective determination of professional
competence, judicial temperament, or integrity. I just do not
think it exists within this Committee. The Committee members
are rotated. Approximately one-third of the Committee is
replaced each year by each incoming President so as to provide
that kind of turnover. I am careful to scrutinize preliminary
reports to see if there is any indication of bias or elitism at
all.
My own background is one of modest means. I grew up in
Charlotte, North Carolina, and I came through a segregated
school system and I was fortunate enough to go to Harvard
College and Harvard Law School. I think I can recognize elitism
when I see it. I reject it, and I do not see it and I did not
see it in the conduct of this investigation.
Chairman Leahy. Thank you.
Senator McConnell. Mr. Chairman, at the risk of wearing out
my welcome with you, just let me say, I appreciate your
observations and your concession that the business of rating
people is, in fact, an imprecise--I mean, it is very hard to do
that with precision. As has been previously pointed out, three
judges during the Clinton years who were rated unqualified by
the ABA were subsequently confirmed, and according to a 1997
National Law Journal article, ``ABA's `unqualified' Judges
Doing Well.'' They are apparently doing just fine.
During the Reagan years, the ABA gave partial--partial--
``not qualified'' ratings to several nominees, which certainly
proved the point that it is an imprecise activity. Richard
Posner, the former Chief Justice of the Seventh Circuit Court
of Appeals and the one person whom the Reno Justice Department
chose to mediate the Microsoft case because of his nearly
unparalleled expertise in antitrust law, Justice Bresnan
described Judge Posner as ``one of the two true geniuses'' he
had met, and the American Lawyer said, ``could be the most
influential legal scholar and the most brilliant judge in the
country.'' Members of your Committee, however, did not think
so. He received at least a partial ``not qualified'' rating.
Judge Posner's colleague on the Seventh Circuit, Judge
Frank Easterbrook, was described in an article in the National
Law Journal as having, ``an absolute iron grip on case law, on
statutes, on everything. He knows the law in a way I do not
think any other man in this country can.'' The ABA, however,
gave him a partial ``not qualified'' rating.
And the American Lawyer said of Judge Michael Luttig of the
Fourth Circuit Court of Appeals that he is a nationally
recognized jurist. The ABA recognition of him, however,
consisted of a partial ``not qualified'' rating.
I say all of this not to attack you guys, but just to make
the point that it is a tough thing, this business of rating
potential jurists, and sometimes you do not get it exactly
right. What we are hoping to demonstrate here today is in the
case of David Bunning, the second evaluation was a good deal
more accurate than the first. I thank you very much.
Chairman Leahy. I would note that the Chairman does not
consider these opinions either to be biased or elitist. I am
most appreciative of the ABA in doing this. In my 25 years on
this Committee, I have often agreed, sometimes disagreed with
the ABA. I have always found it to be helpful, even in those
cases where I have disagreed.
Gentlemen, you have done a good service to the bar, all
three of you, and to this Committee, and I do appreciate you
being here. Thank you.
Mr. Trimmier. Thank you very much, Mr. Chairman.
Mr. Weiner. Thank you.
Mr. Best. Thank you.
[The prepared statement of Mr. Trimmier and Mr. Weiner
follows.]
Statement of Roscoe Trimmier, Jr., David C. Weiner, Committee on
Federal Judiciary, American Bar Association, on the Nomination of David
L. Bunning to be Judge of the U.S. District Court for the Eastern
District of Kentucky
Mr. Chairman and Members of the Committee:
My name is Roscoe Trimmier. I a practicing Lawyer in Boston, and I
am the Chair of the American Bar Association's Standing Committee on
Federal Judiciary. With me today is David C. Weiner, the Committee's
Sixth Circuit representative and principal investigator for the
investigation, and Judah Best, a former Committee member and Chair of
the Committee who acted as the second investigator in this case. We
appear here to present the view of the Association on the nomination of
David L. Bunning to be a U.S. District Court judge for the Eastern
District of Kentucky. After careful investigation and consideration,
including an evaluation of his written submissions, a majority of our
Committee is of the opinions that Mr. Bunning is ``Not Qualified'' for
the appointment. A minority found him to be ``Qualified.''
I. Procedures Followed by the Standing Committee
Before the specifics of this case, I would like to review briefly
the Committee's procedures so that you will have a clear understanding
of the process the Committee's followed in this investigation. A more
detailed description of the Committee's procedures is contained in an
ABA booklet entitled ``Standing Committee on Federal Judiciary: What It
Is and How It Works'' (July 1999).
The ABA Committee investigates and considers only the professional
competence, integrity and judicial temperament of the nominee.
Ideological or political considerations are not taken into account. Our
processes and procedures are carefully structured to produce a fair,
thorough and objective evaluation of each nominee. A number of factors
are investigated, including intellectual capacity, judgment, writing
and analytical ability, industry, knowledge of the law, professional
experience, character, integrity and general reputation in the legal
community.
The investigation is ordinarily assigned to the member of the
Committee residing in the judicial circuit in which the vacancy exists,
although it may be conducted by another member or former member. The
starting point of an investigation is the receipt of the candidate's
responses to the public portion of the Senate Judiciary Committee
Questionnaire. These responses provide the opportunity for the nominee
to set forth his or her qualifications--professional experience,
significant cases handled, major writings, and the like. The principal
investigator personally conducts extensive confidential interviews with
a broad spectrum of individuals who are in a position to evaluate the
nominee's professional qualifications and also examines the legal
writings of the candidate. The principal investigator interviews the
candidate and discusses his or her qualifications for a judgeship, as
well as the substance of adverse information raised during the
investigation. The candidate is given a full opportunity to respond and
to provide any additional information he or she may choose.
Sometimes a clear pattern emerges in the interviews, and the
investigation can be briskly concluded. In other cases, conflicting
evaluations as to professional competence may be received, or questions
may arise as to integrity or temperament. The principal investigator
usually submits an informal report on the progress of the investigation
to the Chair, providing a preliminary assessment of the nominee's
qualifications. In those cases where it appears that the preliminary
assessment may be asked to come into the investigation and conduct the
supplemental inquiries he or she feels appropriate and to make a
recommendation.
At the conclusion of all inquiries, a formal investigative report,
containing a description of the candidate's background, summaries of
all interviews conducted (including the interview with the prospective
nominee), an evaluation of the candidate's qualifications and a
recommended rating, is circulated to the entire 15-member Committee
together with the complete Senate Judiciary Committee questionnaire and
copies of any other relevant materials. Any supplemental report is also
provided to each Committee member. After Studying these materials, each
member telephones a vote to the Chair, rating the nominee ``Well
Qualified,'' ``Qualified,'' or ``Not Qualified.'' The votes are later
confirmed in writing.
An important concern of the Committee in Carrying out its function
is confidentiality. The Committee seeks information on a confidential
basis and assures its sources that their identities and the information
they provide will not be revealed outside of the Committee, unless they
consent to disclosure. It is the Committee's experience that only by
assuring and maintaining such confidentiality can sources be persuaded
to provide full and candid information. However, we are also alert to
the potential for abuse of confidentiality.The substance of adverse
information is shared with the candidate, who is given full opportunity
to explain the matter and to provide any additional information bearing
on it. If that cannot be done, the information may not be relied upon
by the Committee in reaching its evaluation.
II. The Investigation of Mr. Bunning
Mr. Bunning was nominated on August 2, 2001. Mr. Weiner began his
investigation shortly after receiving Mr. Bunning's August 10, 2001
responses to the public portion of the Senate Judiciary Committee
questionnaire.
On September 12, 2001, Mr. Weiner prepared and submitted to me, as
Chair of the Committee, an informal report that thoroughly presented
the results of his investigation, summaries of all of his confidential
interviews, a summary of his interview with Mr. Bunning, and a
recommendation. Because the recommendation proposed was that Mr.
Bunning be found ``Not Qualified,'' consistent with the Committee's
procedures, I appointed a second investigator, Mr. Judah Best, a former
member and Chair of our Committee, Mr. Judah Best, to conduct a
supplemental investigation. Mr. Best conducted confidential interviews
with seventeen persons, some of whom Mr. Weiner had previously
interviewed, and he, too, interviewed Mr. Bunning in his office on
September 26, 2001. Mr. Best recommended that the Committee rate Mr.
Bunning ``Qualified.''
On October 1, 2001, both Mr. Weiner's formal report and Mr. Best's
supplemental report were transmitted to all of the members of the
Committee. I encouraged Committee members who had questions for either
investigator to contact them directly. After all of the Committee
members had an opportunity to study both reports, and all the
attachments, they reported to me their votes on the qualifications of
Mr. Bunning. A majority of the Committee vote to find Mr. Bunning ``Not
Qualified'' and a minority voted to find him ``Qualified.'' The vote
was reported to you on October 11, 2001.
I will not ask Mr. Weiner to describe the conduct of his
investigation and the basis of his recommendation, which the Committee
adopted by majority vote.
Mr. Best is also here to respond to any questions you may have
regarding his supplemental investigation and his recommendation.
Statement of David C. Weiner, Committee on Federal Judiciary, American
Bar Association, on the Nomination of David L. Bunning to be Judge of
the U.S. District Court for the Eastern District of Kentucky
Mr. Chairman and Members of the Committee:
My name is David C. Weiner. I am a trial lawyer from the State of
Ohio, and have been practicing for 32 years. I am the Chairman of the
Board of the 7th largest firm in Cleveland and a past Chair
of the Litigation Section of the ABA. I earned my legal career down the
street as a clerk for Senior Circuit Judge E. Barrett Prettyman of the
U.S. Court of Appeals for the District of Columbia Circuit.
As the Sixth Circuit member of the ABA Standing Committee on the
Federal Judiciary, I conducted the initial investigation of the
qualifications of Mr. David L. Bunning. I have been a member of the
Standing Committee since 1997. I have participated in numerous
investigations of potential and actual nominees to the U.S. Court of
Appeals and the U.S. District Courts. I have done son both as the
Committee person responsible for the investigation, and as a reviewer
of investigations of conducted by fellow Committee members. My
investigation of the nominee was conducted in the same manner all
investigations by the Standing Committee are conducted, as Roscoe
Trimmier just explained to you.
My investigation was conducted during August and September of this
year. It included over fifty confidential interviews with trial and
appellate federal judges in the Sixth Circuit and Kentucky lawyers who
know and have worked with the candidate, and who have direct knowledge
of this professional qualifications, including those Mr. Bunning listed
as references. I included among my interviews prominent members of the
Kentucky trial bar. During each conversation I inquired how the person
knew, if at all the nominee and what the person knew about the
nominee's judicial temperament, integrity and professional competence
relevant to his being qualified to serve as a United States District
Judge. I also inquired if they knew any reason why the nominee should
not be qualified to so serve.
In addition to these interviews, I reviewed other pertinent
materials, including writing samples Mr. Bunning selected for me, such
as legal briefs he had written. I also met privately with Mr. Bunning
in his office in Covington, Kentucky, for nearly three hours. During
the course of our meeting, concerns that had been identified during my
investigation were discussed and the candidate was given an opportunity
to provide additional information and to respond.
Before reaching my recommendation, I reflected at some length upon
our guidelines, which appear in a publication we refer to as the
Backgrounder. In particular, I deliberated on the various duties and
roles United States District Judges must perform on a regular basis,
and the importance of that lifelong position. My recommendation was
that the nominee be rated ``Not Qualified.'' I will shortly set out the
reasons for this recommendation, but stress that I did not reach this
conclusion lightly.
Indeed, because my preliminary investigation resulted in a ``Not
Qualified'' recommendation, our Committee Chair called for a second
investigation, which was conducted by a very distinguished member of
the D.C. bar, Judah Best. I have known Mr. Best for decades and I have
the highest regard for him. I carefully reviewed Mr. Best's
Supplemental Report, and Mr. Best and I discussed our respective views
of the qualification of the nominee at length. We could not, however,
reconcile our different views.
After careful consideration of both our reports, along with the
nominee's Questionnaire, and the written submissions he had furnished,
the majority of our Standing Committee was of the view that Mr. Bunning
is ``Not Qualified'' for the position. A minority of the Committee
found him to be ``Qualified.''
Our Committee takes most seriously its responsibility to conduct an
independent examination of the professional qualifications of judicial
nominees. There is no bright line litmus test as to whether a nominee
is or is Not Qualified. Our recommendation is not the result of
tallying the comments B pro and con B about a particular nominee.
Rather, in making our evaluation, we draw upon our previous experience,
the information and knowledge we gain about the nominee during the
course of our investigation, and our independent judgment. I must
stress that we apply the same standards and criteria impartially to all
nominees. As you know, President Bush has submitted to the Senate the
names of 64 nominees for judicial appointment, and our Committee has
found only this one candidate to be ``Not Qualified.''
At the outset, let me state that as to two of our three criteria,
little was brought out during the course of our investigation to
question the nominee's integrity, and his judicial temperament was
found likely to be satisfactory. There was no question that the nominee
is a good person with strong family and religious ties, is a diligent
worker (he told me that he regularly works from 8:00 a.m. to 5:00 or
6:00 p.m. daily), and is generally well-liked. I should also say that
he has been cordial and respectful toward me throughout this process.
Rather, our conclusion that the nominee should be rated ``Not
Qualified'' is based on several, serious concerns relating to his
competence. Our Backgrounder states that professional competence
encompasses such qualities as intellectual capacity, judgment, writing
and analytical ability, knowledge of the law and breadth of
professional experience. There should be, we believe, strong evidence
that the nominee is professionally competent to manage and resolve the
hundreds of diverse matters a federal judge is likely to face. Some of
those matters call upon a federal judge to resolve very complicated and
challenging factual and legal issues, which may well have far-reaching
and lasting effects on numerous people. A judge regularly must make on-
the-spot decisions in the courtroom that require a solid grounding in
procedural and substantive law across a broad spectrum. Using that as a
guide, we looked at the total experience of the nominee.
Evidence of competence is the strongest and easiest measure when
the lawyer has practiced law for a number of years. Bases on the
Committee's long-time experience with investigating nominees, twelve
years is what we think to be an appropriate minimum, absent
extraordinary circumstances. A lawyer with this amount of experience is
found more likely to have been exposed to a broader spectrum of legal
issues and acquired more sophisticated responsibilities and
perspectives than one lacking such experience. We believe that the
judicial system, the public, the trial bar and the nominees are not
well served by placing on the bench one with less than such minimum
experience.
The 12-year experience guideline in not a hard-and-fast rule, and
is not an automatic disqualified. The Committee's criteria provide that
limited experience may be offset by the extraordinary breadth and depth
of a nominee's experience over the course of his or her career.
Nominees with less than twelve years at the bar have been found
qualified by our Committee, albeit rarely.
Mr. Bunning's civil case experience, however, is very limited and
shallow. It includes no exposure to, let alone experience in, complex
civil matters that regularly find their way to federal district courts.
In response to the senate Questionnaire's inquiry about the ten most
significant litigated matters personally handled by the nominee, Mr.
Bunning listed only three civil cases. One was a case dismissed on a
motion written by the nominee while he was still a law clerk in the
U.S. Attorneys Office. The other two civil cases, included a civil
cases were Bivens cases, which typically call upon a defending AUSA
like Mr. Bunning to routinely litigate similar defenses in each case.
Additionally, I was told that many of the other civil cases involved
federally detained mental patients who had guardians ad litem appointed
when the patients refused prescribed drug treatments. These cases,
while significant to the litigants involved, do not represent the type
of cases which readily prepare one for a federal court docket.
While his criminal experience takes him to court regularly and he
has concluded eighteen trials to verdict, the cases were not of the
type that called for particularly challenging layering. During the
course of the investigation, it was pointed out by several interviewees
that the Covington office of the United States Attorney's office is a
satellite office and therefore, does not get the more significant
criminal cases. Further, there is no evidence that Mr. Bunning received
direct supervision or constructive criticism on his work sufficient to
contribute to his professional development as a lawyer. During my
investigation, I determined that the nominee has learned and gained
experience on his own. The nominee told me that ``he is pretty much on
his on,'' and he told me his boss believes in a hands-off approach to
supervision.
A review of the legal writings he submitted found them to be
sufficient from a legal standpoint. Yet, the issues addressed were
routine and not complex, and the writing style was plain. They revealed
little advocacy or elegance, and to me they read very much like the
work of a young associate in our firm.
The nominee's lack of academic achievement was another limiting
factor. The nominee attended the University of Kentucky for both his
undergraduate and law school degrees. Although the University is a fine
institution, its law school is not highly ranked. Thus, the nominee's
middle-of-the-class law school record does not speak well for him. It
is also not a plus that the nominee did not engage in any
professionally oriented extra-curricular law school activities, such as
Moot Court or Law Review.
The nominee's age is a concern only insofar as it reflects the
quality and scope of his professional experience. One might fairly ask
whether a 35-year old could be qualified to sit as a federal judge? I
am not alone on the Committee in my belief that their are 35-years olds
with ten year of experience who have the professional competence to so
serve. Our Committee's belief, however, is that Mr. Bunning is not one
of them. Yet, neither his age nor his lack of twelve years experience
are the deterring factors. Rather, it is a combination B average
academics, limited civil experience, repetitious and routine criminal
matters, writings which ``just do the job,'' serious doubts by
respected members of the Bench and Bar, and no intellectual spark or
legal enthusiasm that carry the day for our Committee.
Four our Committee to rate a nominee as ``Qualified'' for a
lifetime appointment to the bench, a majority of us must find that the
nominee meets ``very high standards with respect to integrity,
professional competence and judicial temperament,'' and we must find
that the nominee ``will be able to perform satisfactorily all of the
responsibilities required by the high office of a federal judge.'' With
respect to this nominee, we do not find that to be the case.
Chairman Leahy. I would note that we would normally have
started our hearing by going to Federal judges and former U.S.
Attorneys first. This is not quite in the nature of our normal
hearings and I appreciate all of you for bearing with us. I
know from Senator McConnell and Senator Bunning that you were
willing to come up here. What I have tried to do, as I said in
the beginning of this hearing, in fact, arrange to be here
rather than in Vermont today so I could do this.
Without sounding parochial, as much as I love the City of
Washington, and it is a beautiful city and it is something
everybody should visit and it is a city of which we can be
proud that this is our nation's capital, my native State of
Vermont appeals to me even more. So I appreciate you coming up
here from the Commonwealth.
Judge Wilhoit, Judge Forester, Judge Hood, and Mr.
Famularo, I appreciate all of you being here. We have your
written statements. Feel free to say whatever you wish and then
we might go into some questions.
Judge you took senior status at the end of last year, am I
correct on that?
Judge Wilhoit. That is right, January 1.
Chairman Leahy. The same Judge Bertelsman in February of
this year.
Judge Wilhoit. Yes, sir.
Chairman Leahy. I have to tell you, I do not know what we
would do without all the senior judges who have filled in, I
think in the Southern District of California and a lot of other
parts of this country where we have been trying to fill
vacancies for the last several years. If it had not been for
senior judges, the court system would come grinding to a halt.
But I also appreciate you taking the time to be here, so Judge,
why do you not begin.
STATEMENT OF HON. HENRY R. WILHOIT, JR., SENIOR DISTRICT JUDGE,
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
KENTUCKY, ASHLAND, KENTUCKY
Judge Wilhoit. Mr. Chairman and Senator McConnell, if it
would please the Committee, I would like to simply file my
statement with the Committee and let it be made a part of the
record and then just take two or three minutes to discuss what
I really believe to be the highlights of this hearing, if that
would be agreeable with the chair.
Chairman Leahy. Certainly.
Judge Wilhoit. Senator, I cannot tell you what a pleasure
it is to be invited back up here after all of these years. The
last time I was here, Senator Leahy, you were over here in the
cheap seats.
[Laughter.]
Chairman Leahy. Yes, right. I would point out two things on
that, Judge. When I first came on this Committee, I was sort of
the junior Democrat. Alan Simpson--I do not know if you know
Senator Simpson--
Judge Wilhoit. Oh, yes.
Chairman Leahy. --of Wyoming was the sort of junior
Republican. Somebody sent a message in to one of the other of
us and they said, ``How do you recognize him?'' ``Well, he is
the tall bald guy with glasses at the end of the table.'' He
looks at it and he says, ``There are two of them. Which one is
which?''
[Laughter.]
Chairman Leahy. When I first came to the Senate, I was one
of those totally opposed to the seniority system. Now that I
have studied it for about 26 years--
[Laughter.]
Chairman Leahy. --and I understand it far, far better than
I did then, I realize how mistaken I was, so there is a certain
maturity that goes on as you go, but please go ahead, sir.
Judge Wilhoit. The ABA report has cast this nomination into
some sort of confusion and I felt compelled to come. I am
pleased and honored to be invited to come and try to shed some
light that would assist the Committee in making this very
important decision.
Mention has been made about the type of cases that Mr.
Bunning has handled while serving as an Assistant U.S.
Attorney. Now, I have been in a unique position, because since
1991 through 1994, I handled 66 cases involving Mr. Bunning. I
think that is more cases than any of the other judges in the
Eastern District have handled. Now, of these cases--now, I
realize that the ABA representative took a squinted eye view of
the Bivens type action, Federal Tort Claims, Section 1983,
which is probably--can be the most complex type of litigation
in the Federal Courts today, habeas cases, FOIA type cases. In
the criminal field, I handled 19 cases involving Mr. Bunning.
This happened to be indictments and post-conviction type cases
and trials.
The ABA says, well, we have objective evidence that he
lacks the qualifications because of the type of cases that he
has handled. My testimony is subjective, but it can give the
Committee objective evidence in evaluating.
I have been hanging around courthouses all my life. I saw
my father try a murder case when I was 11 years old. Have you
been to Sandy Hook, Senator McConnell? Have you ever been to
Sandy Hook?
Senator McConnell. Oh, yes.
Judge Wilhoit. Eleven years old. I have been hanging around
courthouses ever since. I have practiced law for 21 years, and
I really was a country lawyer, a sole practitioner and
practiced for 21 years. That is all I did, practiced trial law.
I was a Fellow of the American College of Trial Lawyers before
coming to the bench. Now, you do not send them $25 and a box
top and ask for admission to the American College of Trial
Lawyers. After I came to the bench, I have had 20 years of
experience. I believe, Senator Leahy, that I can recognize a
trial lawyer when I see one. I can spot a District judge when I
see one. I feel I have--I may be wrong, but I am not in doubt
about it.
This idea of the type of cases that he has handled, what is
deeper and more important, can the candidate recognize legal
issues in a case? How is his analysis of those issues? And I
can say to you without hesitation that David Bunning, he has
what it takes.
Finally, I am just going to give you one personal
experience. Probably four weeks ago, the Supreme Court came
down with what is called the Apprendi decision that stood the
Federal Sentencing Guidelines on its ears. We have had to
review countless sentences, and I had David Bunning before me
in Covington for two hearings involving an Apprendi
resentencing, highly complex issues. I had no idea I was going
to be here today, and after I heard about 30 minutes of these
arguments, and he was up against this hot-shot lawyer from
Cincinnati or Covington, he parried every thrust.
It was a highly complex case. He handled it, and I sort of
sat back in my chair and I guess I had a little smile on my
face. He probably, if he noticed it, wondered why I was
smiling. But I really felt like--I was telling myself, this
young man is going to do. He is going to be a worthy successor.
We are going to be well served. And I think these are the
issues.
Finally, I would recommend him to you. I think he will make
a great District judge. And if he does not become a great
District judge, his mother is going to kill him.
[Laughter.]
Judge Wilhoit. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. We will take Senatorial notice
of that without having to have the mother testify.
[Laughter.]
[The prepared statement of Judge Wilhoit follows.]
Statement of Henry R. Wilhoit, Jr., Senior U.S. District Court Judge of
the Eastern District of Kentucky, on the Nomination of David L. Bunning
to be U.S. Disrict Court Judge
Mr. Chairman, Senator Hatch, and distinguished members of the
Committee, I want to thank you for this opportunity to appear before
you. Today, December 10, 2001, marks the one hundred eighty-fifth
anniversary of the date the Judiciary Committee was established as a
standing committee of the United States Senate. The second chairman of
this committee was Senator John J. Crittenden, a Kentuckian who served
as a Senator on no less than six occasions. Among other task, it fell
to Senator Crittenden to fill the shoes of another great Kentuckian,
Senator Henry Clay, upon the ``Great Compromiser's'' resignation in
1842. I am also reminded of Senator John Rowan who served as chairman
of this committee from 1829 to 1831. Senator Rowan, incidentally, is
buried near Bardstown, Kentucky--the site of inspiration for Stephen
Foster's ``My Old Kentucky Home.'' Off course the Commonwealth is
currently represented on this committee by my friend Senator Mitch
McConnell.
From my personal experience, I can say that the nomination and
confirmation process is not an easy one. Despite the rigors and
challenges of the confirmation process, those who have been through it
recognize that it is vital in ensuring that the federal judiciary
remains an independent and equal branch of government, as intended by
our founding fathers. As you deliberate upon the nomination of David L.
Bunning, please consider some personal observations of Mr. Bunning that
I have had as I have observed him from the bench.
Let me begin by speaking about the manner in which I believe Mr.
Bunning will conduct himself as a federal judge. The Adversarial nature
of our judicial process requires that we have men and women sitting in
the federal bench who possess certain qualities that are otherwise rare
in the legal community. The possessor of the ideal judicial temperament
is an individual who thinks strategically, listens patiently and acts
not out of passion or prejudice but instead as a result of reasoned
logic. It is a person who can ask insightful questions without allowing
himself to be drawn into the conflict. Most importantly, the ideal
judge is an individual who respects the law as it is recorded and who's
character and honesty are beyond reproach.
These are the characteristics which I have observed in David
Bunning throughout his regular appearances before me. There have been
many instances when he could have embarrassed an opposing party who's
claims were un-meritorious or who's briefs were substandard. While a
lesser many may yield to the temptations of victory, he has always
respected the dignity of the opposing party and, thereby, the dignity
of the Court. Regrettably, it is the practice of some attorneys in the
federal bar to misconstrue the holdings of some cases or to fail to
mention authority which contradicts their position. In the eighty civil
and criminal cases which he has practiced before me, I have always
found his oral arguments and briefs to be candid, forthcoming and
credible. In short, David Bunning has always shown himself to be an
advocate who, while arguing aggressively and persuasively for his
client, has never strayed beyond the bounds of ethical practice.
He has also proven to be an effective manager of his time and has
been a very able case manager. During his four years in the Civil
Division of the U.S. Attorney's Office, Mr. Bunning handled
approximately sixty-five case that came before me. His transfer to the
Criminal Division greatly limited the number of his cases which were
assigned to me. The criminal cases which he did prosecute before me,
however, were each handled in a timely and efficient manner. The case
management skills he has learned through his decade of experience in
the U.S. Attorney's Office will serve him well as a federal judge.
In preparation for appearing before you today, I wanted to review
some of the cases in which he had participated. What struck me most is
that his experience as an Assistant United States Attorney has been so
broad. As I mentioned earlier, he has worked in both the civil and
criminal divisions of the U.S. Attorney's Office. During his tenure in
the civil division, he actively defended various officers and agencies
of the government in numerous context. Since the United States Supreme
Court handed down its landmark decision in Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics,\1\ that area of law has been
continuously evolving. He has successfully defended several Bivens
actions and has demonstrated a superior understanding of this confusing
body of law. His command of this area of law is so significant that the
Department of Justice invited him to be a guest lecturer on this topic
in 1995. David Bunning has also been called upon to represent the
government in several civil rights actions involving the federal
government. He played a large role in the government's defense in
Washington v. Reno.\2\ That case involved a claim by federal inmates
that the Bureau of Prisons was acting in violation of their civil
rights by restricting their access to telephones. Most recently, he has
been involved in cases involving the United States Supreme Court's
decision in Apprendi v. New Jersey.\3\ As I'm sure you know, the
Apprendi decision has required the courts to reopen many, many criminal
cases and to re-examine the sentences imposed on thousands of prisoners
nationwide. In his briefs and oral arguments recently made before me,
David Bunning has Demonstrated an exceptional insight and command of
the complex issues raised raised by Apprendi and their interaction with
the federal sentencing guidelines.
---------------------------------------------------------------------------
\1\ 403 U.S. 388 (1971).
\2\ Civ. Act. No. 93-CV-217.
\3\ 530 U.S. 466 (2000).
---------------------------------------------------------------------------
Temperament and experience make good judges. I believe David
Bunning to be honorable, patient and a strategic-thinker. He knows and
respects the law. He also has the experience necessary to take on this
important task. I can say this with great confidence, for I have seen
him in the courtroom. I have witnessed his command of the rules of
procedure and evidence. I know that he is more than capable of
dispensing justice. He comes before you as a servant of the people. He
comes before you with a wonderful mother. His father might well pass
muster with you, as well. We look forward to having David Bunning as
our colleague. Thank you very much for your interest in him.
Chairman Leahy. Judge Forester, Senator McConnell was good
enough to share some of your letters to him with me. I notice
you were concerned about prompt action on nominees for the
Eastern District of Kentucky. I took that to heart, but
apparently we are moving too fast. We moved Judge Karen
Caldwell's nomination through here with such speed that she is
going to take up a little while to close up her law practice,
but is she now on the bench?
Judge Forester. Yes, sir. Her ceremony was Friday a week
ago, as I recall. She is on the bench.
Chairman Leahy. I think we confirmed her on October 23.
What about Danny Reeves?
Judge Forester. Danny Reeves was confirmed last week and he
plans to begin his work around January 1. So he will be ready
to go soon.
Chairman Leahy. Okay. Go ahead.
STATEMENT OF HON. KARL S. FORESTER, CHIEF JUDGE, UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY, LEXINGTON,
KENTUCKY
Judge Forester. I wanted to thank the Committee very much
for the attention that you have given to our vacancies. It was
very much appreciated. We needed help and you gave it to us and
we appreciate that.
Chairman Leahy. Well, Senator McConnell is a valued member
of this Committee and he reminds me, not more than a half a
dozen times a day, but he reminds me, and if somehow he misses
me, Senator Bunning is there and follows up and reminds me. I
have learned more about Kentucky since becoming Chairman of
this Committee than I thought I ever would.
Judge Forester. You have been very responsive, Mr.
Chairman.
[Laughter.]
Judge Forester. We are grateful to you, most grateful, sir.
Chairman Leahy. Thank you.
Judge Forester. Over a period of ten years, I have
personally observed David Bunning. He has appeared in my court
on many occasions representing the United States in various
civil and criminal matters. One criminal case was submitted to
a jury, and it is, I think from the unique perspective of a
trial judge, that I am able to report to you with regard to Mr.
Bunning.
In my 13-and-a-half years, and you were sitting almost in
that same spot 13-and-a-half years ago. You were not down on
this end, but you were moving in the middle.
Chairman Leahy. I was moving up. Love that seniority
system.
[Laughter.]
Judge Forester. Senator Biden was sick at the time and you
were filling in for him as Chairman.
Chairman Leahy. That is right. That was during the Reagan
years. I think I held more hearings during that time when I was
filling in for Senator Biden when President Reagan was here
than I think I ever want to hold again. Now, at least I have
the ability to pass them on to others, but I think I got the
full load that year.
Judge Forester. I believe you did. But in my experience as
a trial court judge, I have served a number of lawyers,
hundreds, maybe thousands, from all across the country. Where I
sit in Lexington, I have seen the good, I have seen the
mediocre, I have seen the bad.
My personal relationship with David Bunning is extremely
limited, but I am familiar with his reputation in the community
among those who know him and it is excellent in all respects.
His professional character is beyond reproach. I have observed
that he is industrious, diligent, and all around a hard worker.
I think he possesses a strong intellectual capacity and very
good writing skills. Now, his writing skills to me are more
than plain or more than pedestrian. They are excellent for the
purpose that they were submitted to me.
He is a strong advocate for the government, but he is fair
and he is compassionate. Everything I have considered lead me
to believe that he will have an outstanding judicial
temperament.
I believe that, from what I have heard, that his experience
may be of concern to the Committee, and I would suggest that
his experience should be of little concern to the Committee. I
do not want to beat a dead horse, but a litigation attorney in
the Office of the United States Attorney for the Eastern
District of Kentucky has much more courtroom experience than
attorneys with many, many more years of practice, and I can
speak personally on that.
Prior to my appointment as a Federal judge, I practiced law
for 22 years in a small town. A substantial part of my practice
did consist of litigation in State and Federal courts. However,
a major part of my practice consisted or involved non-
litigation matters, appearance before administrative bodies,
real estate matters, counseling with corporate clients.
The point I am trying to make here is that Mr. Bunning in
his ten years of experience has more courtroom time than I had
in 22 years, and I am personally familiar with Federal judges
who have had less experience. I am familiar with Federal judges
who, when they went on the bench, had no practice experience.
All of these judges have done very well and I have no reason to
doubt that Mr. Bunning will do well. I think he will be a great
asset to our district.
I want to mention to you, finally, that the Eastern
District of Kentucky has a great tradition of Federal
prosecutors being appointed to the bench early in their
careers. I would point out or mention Judge Mac Swinford, who
was appointed by President Roosevelt, Judge Bernard Moynahan,
who was appointed by President Kennedy, Judge Eugene Silar was
appointed by President Ford, and Karen Caldwell, just recently
appointed by President Bush. I believe that the experience as
Federal prosecutors provided a fertile training ground for the
future role as a judge of each of these individuals.
At the risk of wrestling a 30- or 40-foot alligator, I want
to clear up something about experience and I want to clear up
something about complex cases. There is no one who can be an
expert in tax law and an expert in antitrust law and an expert
in civil rights law, an expert in criminal law. No one can do
all of that. It is impossible.
Back when I was practicing law, when you were practicing
law, there was a general sort of practice. You did a little bit
of everything. But in this day and time, you cannot do it all.
We as judges have to be able to be impartial and sit and hear
the arguments and make the right decisions and David Bunning
can do that, in my opinion. Thank you, sir.
Chairman Leahy. Thank you very much, Judge Forester, and it
is good to see you again.
Judge Forester. Thank you.
[The prepared statement of Judge Forester follows.]
Statement of Karl S. Forester, U.S. District Judge, Eastern District of
Kentucky, on the Nomination of David L. Bunning to be U.S. District
Court Judge, for the Eastern District of Kentucky
Senator Leahy and the Members of the Committee:
On behalf of the United States District Court for the Eastern
District of Kentucky, I wish to thank the Committee for its prompt
attention to the three vacancies which existed on our Court. To date
one of the vacancies has been filled, one has been favorably reported
out of Committee and is awaiting Senate action, and now the Committee
is acting on the nomination of David Bunning.
Over a period of ten year I have personally observed David Bunning.
He has appeared in my Court as an Assistant United States Attorney
representing the United States in numerous civil and criminal matters
including one criminal trial which was submitted to a jury. It is from
the unique perspective of a trial court judge that I am able to report
to the Committee with regard to Mr. Bunning.
In my 13\1/2\ years of experience as a trial court judge, I have
observed hundreds, if not thousands, of attorneys from across the
country--the good, the mediocre, and the bad. My personal relationship
with Mr. Bunning is extremely limited. However, I am familiar with his
reputation in the community where he lives among those who know him,
and it is excellent in all respects. I can personally advise the
Committee that his professional character is beyond reproach. Moreover,
he is industrious, diligent and an all-around hard worker. He possesses
a strong intellectual capacity which I have personally advise the
Committee that his professional character is beyond reproach. Moreover,
he is industrious, diligent and an all-around hard worker. He possesses
a strong intellectual capacity which I have personally observed. His
analytical and writing ability and knowledge of the law is outstanding.
Moreover, while he is a strong advocate for the government, he is fair
and compassionate. All the factors I have considered lead me to believe
his judicial temperament will also be outstanding.
An issue I believe may be of Concern to the Committee is Mr.
Bunning's experience. I suggest that this years of experience should be
of little concern to the Committee. A litigation attorney in the Office
of the United States Attorney for the Eastern District of Kentucky has
much more courtroom experience than most attorneys with many more years
of practice. Let me speak personally on this. Prior to my appointment
as a federal judge, I practiced law for 22 years. A substantial part of
my practice consisted of litigation in the state and federal court.
However, a major part of my practice involved non-litigation matters
such as appearances before administrative agencies, real estate matters
and counseling with corporate clients.
THe point I am trying to make there is Mr. Bunning has had more
courtroom experience in ten years than I had in 22 years of practice. I
am personally familiar with several federal judges who were practicing
lawyers less than ten years. These judges have been outstanding and two
have been elevated from a trial court to an appellate court. Also, I
have known several able and competent judges who came to the Court from
academia, who had little or no practice experience. It is my opinion
that Mr. Bunning has all the attributes necessary to be an outstanding
judge on our Court. He is uniquely qualified for the position and will
be a great asset. As the members of this Committee are well aware, a
federal district court's docket normally consists of a high percentage
of matters in which the United States Attorney's Office plays a key
role. In fact, in the last year my docket in the Eastern District of
Kentucky at Lexington consisted of at least 50% criminal matters. David
Bunning has had experience handling all these matters laboring for the
United States in the trenches, so to speak, as a federal prosecutor.
Finally, I would mention to you that the Eastern District of
Kentucky has a great tradition of federal prosecutors being appointed
to the bench early in their careers. Judge Mac Swinford was appointed
by President Franklin D. Roosevelt; Judge Bernard T. Moynahan, Jr. was
appointed by President John F. Kennedy; Judge Eugene Siler was
appointed by President Gerald Ford; and within the last month Judge
Karen Caldwell was appointed by President George W. Bush. The
experience of all four of these judges as federal prosecutors provided
a fertile training ground for their future roles as federal judges. Mr.
Bunning's ten years' experience as a prosecutor provide him with actual
working knowledge of the procedure rules of the federal courts and the
local rules of the Eastern District of Kentucky that would serve him
well as a judge.
Mr. Chairman, the fact that three judges are present today
underscores our belief that there is a critical need for the position
to be filled as soon as possible. We are mindful that the Constitution
gives us no voice whatsoever in the selection of judges; however; we
deem it appropriate that we respond to the request of the Committee to
appear personally.
Once again, we thank the Committee and its Chairman for the
attention given to the needs of the Eastern District of Kentucky.
Chairman Leahy. Judge Hood?
STATEMENT OF HON. JOSEPH M. HOOD, JUDGE, UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF KENTUCKY, LEXINGTON, KENTUCKY
Judge Hood. Mr. Chairman, like Judge Wilhoit, I would like
to just file my written testimony in the record, if you could--
Chairman Leahy. Of course.
Judge Hood. --and proceed to talk about something a little
different about David Bunning than about everybody else here
has.
I echo what has been said by my colleagues, and I have had
him in practice in front of me quite a bit, so I agree with
what they say. But what I would like to point out is that David
Bunning is a man of substance.
Recently, in the case of the United States v. Overby, he
promised the defendant in a plea agreement that he would
recommend a sentence below the statutory mandatory minimums and
at the lower end of our guidelines if she cooperated with the
government in the prosecution of several of her co-defendants.
Although the defendant's guidelines were actually calculated
erroneously earlier by the probation office, that non-binding
estimate that David Bunning promised that woman was something
that he stood by. He did not have to do it, but he did.
Now, that tells you a lot about how David Bunning will
handle people who come before him. He will treat them fairly
and with all deference that he is required to give, and he will
do that to the best of his abilities. Thank you.
Chairman Leahy. Judge Hood, and you feel this will be the
case whether somebody is plaintiff or defendant, government or
defendant, rich, poor, so on?
Judge Hood. When we have sentencing proceedings, and Mr.
Famularo will attest to it, some United States Attorneys not
only are not just satisfied with the fact of conviction, they
would like to have ears and tail, kind of like matadors do.
David recognizes that his role is to present the facts to the
court, to make an argument, and then let the judge make his
decision and he does that without any indication that he thinks
that we should do exactly what he says.
Chairman Leahy. My question goes to one of the basic rules
I have always had in my own mind--every Senator has to make up
his or her own mind how they will vote on a confirmation. We do
not have a specific guideline. It is sort of left up to each
one of us under the Constitution.
What I have always done when I am looking at somebody for a
judicial nomination, once I have gone past the questions of
competence and background, legal ability, and so on, I ask, if
I walked into that courtroom, would I be able to look at that
judge and say, it is not going to make any difference what my
political background is, what my color is, what my wealth or
status in the community is, whether I am plaintiff or defendant
in a civil case, whether I am government or defendant in a
criminal case? Can I look at that judge and say, whatever that
decision comes down, I know that judge has been fair and has
made that decision based on how he or she looks at the law,
looks at the facts, and not how he or she references a
particular bias against me or the other party?
May I ask you this, Judge. If you were a litigant, would
you feel that same way going into a court presided over David
Bunning?
Judge Hood. I often ask a juror, Senator, during voir dire
when there is a question raised as to whether that juror could
be fair and impartial, I always ask them, put yourself in the
shoes of the defendant in this case. Would you want a person
like you serving on your jury with that same feeling that you
might have?
Well, I am looking forward, if confirmed, to having David
Bunning as a colleague, because I know from everything I have
seen from him, heard about him, he can do just what you expect
him to do, to sit there with blinders, the obvious blind
justice, treating everybody fairly, with a level playing field,
and no one should feel with any reservation, even though they
might have gone to a different law school than the University
of Kentucky, as all three of us did.
Chairman Leahy. Thank you. I am going to leave that one
alone.
[Laughter.]
[The prepared statement of Judge Hood follows.]
Statement of Joseph M. Hood, U.S. District Judge, Eastern District of
Kentucky, on the Nomination of David L. Bunning to be Assistant U.S.
Attorney for the Eastern District of Kentucky
Senator Leahy and the Members of the Committee:
I have known David L. Bunning since his appointment as an Assistant
United States Attorney for the Eastern District of Kentucky over a
decade ago. I thank you for inviting me to share my thoughts about him
with you
Although my contacts with Mr. Bunning have been essentially
professional, I am aware of his reputation for honesty and integrity in
the area where he lives and practices. Those who know him, both
personally and professionally, consider him to be above reproach as the
report submitted by the Federal Bureau of Investigation surely
reflects.
In addition to representing the government in numerous pre-trial
motions and sentencing proceedings, Mr. Bunning has tried four criminal
cases to verdict in front of me. He comes to court knowing the facts
and law applicable to his case. His witnesses have been interviewed. He
is aware of potential evidentiary objections to their testimony and the
rules of evidence which apply to those objections. he makes succinct
and cogent arguments. He knows the importance of making a record and
does not become noticeably upset when a ruling goes against him. He has
looked numerous jurors in the eyes and asked them to return a verdict
favoring his client, a request which has always been granted in the
cases he has tried before me.
One case which Mr. Bunning prosecuted to verdict is United States
v. Galloway, which involved a conspiracy to import a large amount of
the so-called party drug Ecstasy into this country from Holland. An
unusual feature of this case was the requirement imposed by 18 U.S.C.
Sec. 3505 concerning the admission of foreign business records. He
handled this evidentiary issue, one not frequently seen in the Eastern
District of Kentucky, without hesitation.
Mr. Bunning has demonstrated to me that he has a ``feel'' for the
judicial process that is quite unusual for someone of this age and
experience. Just like a good card player has a ``feel'' for when to
play his cards, I believe that a good trial lawyer has a ``feel''' for
a trial. It is an innate, unquantifiable trait that very few attorneys
possess. In the Galloway case, Mr. Bunning displayed this ``feel'' by
electing to save an item of evident for rebuttal instead of introducing
it in his case-in-chief. In so doing, he eviscerated the defendant's
theory of the case.
Mr. Bunning is a man of substance. Recently, in United States v.
Overby, he promised the defendant in a pleas agreement that he would
recommend a sentence below the mandatory minimum and at the lower end
of her guidelines if she cooperated with the government in the
prosecution of her co-defendant. Although the defendant's actual
guidelines were higher than the original, Non-binding estimate of the
probation officer, Mr. Bunning stood by his promise and recommended
that the defendant be sentenced to the originally calculated lower
term, something he was not legally obligated to do.
Yes, Mr. Bunning is young, but I personally know others younger and
with less professional experience than him who have gone on to be
highly-respected federal trial judges. Based on my quarter of a century
experience as a federal magistrate and district judge, I believe that
Mr. Bunning, if confirmed, will become such a judge in a very brief
period of time, one whom I would be proud to have as a colleague.
Chairman Leahy. Mr. Famularo?
STATEMENT OF JOSEPH L. FAMULARO, DEPUTY SECRETARY, COMMONWEALTH
OF KENTUCKY, FRANKFORT, KENTUCKY
Mr. Famularo. Mr. Chairman, Senator McConnell, I do have a
written statement prepared today, and if the Chairman please, I
would like that that be filed part of my testimony.
Chairman Leahy. It will.
Mr. Famularo. And since I am the last speaker following
judges, I have learned a long time ago, when you follow the
judges, keep it very brief.
I would like to touch on some points that I think are very
applicable to my very strong enthusiasm for David Bunning's
nomination to be judge for the United States District Court for
the Eastern District of Kentucky.
First of all, I was David's former boss for some eight
years. I am a Democrat. President Clinton appointed me to be
United States Attorney for the Eastern District in 1993 and I
served in that capacity for eight years. I might also note that
I am very proud, Mr. Chairman, to have served ten years as a
State prosecutor, both as county, Commonwealth, and in the
State appellate system as a State Attorney General. It is one
of the greatest things that I can say in my career, to have
represented the people of the Commonwealth and the United
States.
Since I was David's boss for some eight years, I feel that
I can provide a very informed and unbiased assessment of his
fitness for the office of Federal District judge.
Much has been said about experience. In my considered
opinion, most United States Attorneys have, in reality, more
legal experience and certainly much more litigation experience
than do private practitioners who have been practicing law for
an equivalent amount of time. It would be my opinion that David
would have at least double the effective experience for a
private practitioner, especially in the Federal system. I say
double, but one could as easily use a multiplier of three or
maybe five.
David has been an Assistant United States Attorney for ten
years and he has been in the Criminal Division for the last
six. I am personally familiar with what he does, and Senator,
he has been in the courtroom almost every single day. He has
appeared before all three of these distinguished judges, as
well as Judge Bertelsman, Judge Kaufman, and also the United
States Magistrate. Just because he is in the Covington office
does not mean that he does not include the entire Eastern
District.
He carries regularly, when I was a United States Attorney,
one of the heaviest caseloads in the office. I personally
reviewed the statistics every single month and David was always
in the top three or four of the Assistant United States
Attorneys in this category.
David served in the Civil Division much before I got there,
but I assure you what I heard and what I observed the short
time that he did do civil work that it was excellent. He did
try two civil actions to a jury, and again, in my humble
opinion, David's civil litigation experience is at least equal
to a civil litigation experience of a private practitioner who
has been practicing law for two or three times as long as
David.
In the Criminal Division, he tried 18 cases to a verdict.
The vast majority of these cases were jury trials. They
included the criminal matters that we hear in the Eastern
District almost every day--narcotics, violent crime, health
care fraud, economic fraud, forfeiture prosecution. These make
up the bulk of what goes through the Office of United States
Attorney in the Eastern District of Kentucky. They have
included some more complex matters, such as major drug and
white-collar crime. Some have involved numerous defendants, and
others have required proving a charge entirely with
circumstantial evidence.
David did prosecute one of the first Internet harassment
cases in our office. I might add, this is the case that David
became a victim, and I must state, in my 30 years as a
prosecutor, both State and Federal, I have never been more
scared when I found out that one of those men came to the
office to target David for a hit. How do I know it was a hit?
Because some 15 minutes later, he met with an undercover police
officer who, in turn, arrested him. So I must say, David did
show courage under fire.
He has extensive appellate experience. I know for a fact
that he has written over 50 appellate briefs and he has
appeared before the United States Sixth Circuit Court of
Appeals at least ten times. This appellate experience also far
exceeds the experience of most private practitioners. David
does not only know appellate procedure, but he knows how to
make the requisite record for appeal, a skill that is a must
for trial judges.
His heavy caseload not only shows the depth and breadth of
his legal experience, it shows he has a strong work ethic and
efficient case management skills. Both skills are important
attributes for Federal trial judges who must handle large
volumes of cases in a timely manner.
Lastly, Senator, and in my opinion most important, he
possesses the attributes which are essential for a good trial
judge. He has a great attitude. He is pleasant, upbeat, and
enthusiastic. He is easy to deal with and he treats everyone
with respect. He is dedicated to the legal profession and he
has the fortitude to persevere regardless of whatever
difficulties or challenges may face him.
In sum, I have appeared before a lot of judges in my career
and I feel that I know the qualities that distinguish a good
judge from a bad judge. In fact, my father was a trial judge,
as was my brother. I am the only one that has never made it. If
I were to appear before a judge, I would want him to possess
the skills and attributes that David Bunning has.
Senator I strongly support his nomination and I will be
very happy to answer any questions that you may have. Thank you
very much.
Chairman Leahy. Thank you very much.
[The prepared statement of Mr. Famularo follows.]
Statement of Joseph L. Famularo, U.S. Attorney, Eastern District of
Kentucky on the Nomination of David L. Bunning to be Judge for U.S.
District Court for the Eastern District of Kentucky
Mr. Chairman, Senator Hatch and Members of the Committee, I am
pleased to appear before the Judiciary Committee today in enthusiastic
support of the nomination of David L. Bunning to be a Judge for the
U.S. District Court for the Eastern District of Kentucky. I am both
David's former boss and a Democrat. President Clinton appointed me to
be United States Attorney for the Eastern District of Kentucky in 1993,
and I served in that capacity for eight years. I was thus David's boss
for eight of his ten years in the U.S. Attorney's Office. I therefore
feel that I can provide a very informed and unbiased assessment of his
fitness for the office of federal district court judge.
David Bunning has complied more federal courtroom experience in his
career than most people do in a lifetime. I have practiced law for
almost thirty-five years, in both the public and private sectors. Based
on my extensive experience, it is my considered opinion that most
assistant United States Attorneys (AUSAs) have, in reality, more legal
experience--and certainly much more litigation experience--and
certainly much more litigation experience--than do private
practitioners who have been practicing law for an equivalent amount of
time. David has at least double the effective experience of a private
practitioner, especially in the federal system.
I say at least double because one could easily use a multiplier of
three, and maybe as high as five, in considering the effective
litigation experience of the career of a typical assistant United
States Attorney. And this general rule of thumb applies even more
strongly in the case of David Bunning. He has been an assistant United
State Attorney for the last ten years, and for the last six years,
David has been in court almost every day. He has litigated both civil
and criminal matters on behalf of the people of the United States, and
he has been successful in over 90% of his cases. As the former United
States Attorney in David's office, I can attest that he regularly
carried one of the heaviest caseloads in our office, usually placing in
the top three or four AUSAs in this category. David has worked long and
hard ``in the well of the court,'' and he is thus extremely familiar
with the types of cases over which federal judges in Eastern Kentucky
preside.
In his four years in the Civil Division, David was responsible for
a wide variety of civil litigation matters. For example, he defended
the United States in prisoner litigation, Federal Tort Claims Actions,
Bivens actions, civil rights cases, and employment rights cases. All of
these types of matters are a mainstay of the daily business of the
civil docket of the eastern district. As a testament to David's
litigation skills, he was able to dispose of most of these actions
through motion practice. However, he did try two civil actions to a
jury. In My considered opinion, David's civil litigation experience
alone is at least effectively equal to the civil litigation experience
of a private practitioner who has been practicing law for two or three
times as long as David.
In David's six years with the Criminal Division, he has tried
eighteen cases to verdict. The vast majority of these cases were jury
trials. The types of criminal matters David handled-narcotics, violent
crime, health care fraud, economic fraud, and forfeiture prosecutions--
are cases that make up the bulk of my former office's criminal cases in
federal court. David's cases have included some of the more complex
matters in the Eastern District such as major drug and white collar
criminal cases. For example, they have involved numerous defendants or
have required proving a charge entirely with circumstantial evidence.
David also prosecuted one of the first Internet harassment cases in our
office. David has been almost completely responsible for his cases,
from investigation through indictment through discovery to trial to
sentencing and through the appellate stage. His trial skills are
superb. David is skilled in federal trial procedure and the Federal
Rules of Evidence. He is thus well-equipped to preside over all phases
of the criminal matters that will come before him.
David also has extensive appellate experience. Because of David's
legal skills, inducing his research and writing skills, he has often
personally handled appeals of this decisions, rather than using our
appellate counsel. David has written in excess of fifty appellate
briefs, and he has argued before the Sixth Circuit Court of Appeals at
least ten times. This appellate experience also far exceeds the
experience of most private practitioners. David thus not only knows
appellate procedure, but he knows how to make the requisite record for
appeal--a skill that is a must for trial judges.
David's heavy caseload not only shows the depth and breadth of his
legal experience, it also shows his strong work ethic and efficient
case-management skills. Both skills are important attributes for
federal trial judges, who must handle large volumes of cases in a
timely manner.
Lastly, David Bunning possesses the other attributes which, in my
experience, are essential for a good trail judge. He has a great
attitude: pleasant, upbeat and enthusiastic. He is easy to deal with,
and he has the fortitude to persevere regardless of whatever
difficulties or challenges may face him. I sum, I've appeared before a
lot of judges in my career, and I feel I know the qualities that
distinguish a good judge from a bad judge. If I were to appear before a
judge, I would want him to possess the skills and attributes that David
Bunning has. I strongly support his nomination, and I will be happy to
answer any questions you might have.
Thank you
Chairman Leahy. Senator McConnell?
Senator McConnell. First, Mr. Chairman, I want to thank you
for spending your Monday here rather than in Vermont and
personally presiding over a hearing that you could have handed
off to a more junior member of the Committee and being here for
over three hours.
I also want to thank--I think everybody went to UK, right,
everybody? All of us have sort of managed to struggle after
having that inadequate beginning to our careers--
[Laughter.]
Senator McConnell. But we have before us four distinguished
graduates of the University of Kentucky, of which I am quite
proud, particularly my colleague, Joe Famularo. We were in the
same class. That was back during the Coolidge years, was it
not, Joe?
Mr. Famularo. I believe it was.
[Laughter.]
Chairman Leahy. A good Vermonter, I would hasten to add.
Senator McConnell. I know all of you went to considerable
effort to rearrange your schedules in order to be up here today
and we are extremely grateful to each of you for doing that. I
think the testimony you have offered is the best testimony
possible because you know the nominee. You have worked with
him. You have had a chance to observe him up close and your
views, it seems to me, are enormously significant as we
consider this nomination.
So I just wanted to express my deep gratitude to all four
of you for your willingness to come up here and testify for
this outstanding nominee. Thank you very much.
Chairman Leahy. Thank you.
If there are no further questions, we will keep the record
open the appropriate time for questions and responses. At this
time, I will also insert into the record a statement from
Senator Strom Thurmond regarding Mr. Bunning's nomination.
[The prepared statement of Senator Thurmond follows.]
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
Thank you for holding this hearing today on the nomination of David
L. Bunning to be United States District Court Judge for the Eastern
District of Kentucky. I hope that the testimony of Mr. Bunning and the
other distinguished panelists, including three Federal judges and Mr.
Judah Best, will demonstrate to this committee that Mr. Bunning is
eminently qualified to be a Federal District Judge.
The Senate has a duty to ensure that a person is qualified for the
job to which he is nominated. However, we should also give proper
deference to the President's nominations to the Federal Judiciary. By
all accounts, Mr. Bunning has been criticized as being too youthful and
inexperienced. As someone who has been criticized as being too old for
the job, I am particularly sensitive to these types of charges. Mr.
Bunning's age should not be a factor.
He has a great deal of experience as an Assistant United States
Attorney, and he has demonstrated to most of the witnesses here today
that he has an outstanding legal mind. I do not believe that Mr.
Bunning's critics have overcome the presumption that the President has
nominated a qualified candidate.
Mr. David Weiner, the American Bar Association's Sixth Circuit
representative, concluded that Mr. Bunning was ``Not Qualified.'' In
Mr. Weiner's statement, he notes that twelve years of experience is a
minimum requirement for a Federal judge, absent ``extraordinary
circumstances.'' Mr. Weiner's statement asserts, ``We believe that the
judicial system, the public, the trial bar and the nominees are not
well served by placing on the Bench one with less than such minimum
experience.'' This type of analysis sets the bar extremely high for a
nominee if he does not meet the twelve-year experience requirement. Mr.
Bunning would be required to come forth with ``extraordinary
circumstances'' to prove his fitness. It is just this type of
mechanical obedience to an arbitrary number that concerns me.
We should look at Mr. Bunning's experience in light of the work
that he has done and in light of the comments of Federal judges and
other legal experts. Mr. Bunning has practiced law for ten years, and
he has ample experience as an Assistant United States Attorney. He has
represented the United States in both civil and criminal matters, and
he has impressed the judges who have witnessed his layering abilities.
Judge Karl S. Forester, Chief Judge of the United States District
Court for the Eastern District of Kentucky, asserts in his statement
that Mr. Bunning has more courtroom experience that he did when
appointed to the Federal Bench. Judge Forester practiced law for 22
years, but major portions of this practice included non-litigation
matters, such as real estate transactions and counseling corporate
clients. Mr. Bunning, however, has constantly appeared in the courtroom
as a litigation attorney in the Office of the United States Attorney
for the Eastern District of Kentucky. I agree with Judge Forester that
we should focus on spent an adequate amount of time as a trial lawyer
in Federal courts.
Mr. Weiner's evaluation also concludes that Mr. Bunning has
insufficient experience in civil matters, citing his experience in
defending against Bivens claims as routine. However, Judge Henry R.
Wilhoit, Jr., of the Eastern District of Kentucky, concludes that Mr.
Bunning's experience as an Assistant U.S. Attorney is broad, and that
Bivens cases present a ``confusing body of law.'' Judge Wilhoit also
notes that the Department of Justice invited Mr. Bunning to be a guest
lecturer on this topic in 1995. I think that Mr. Weiner's disregard of
Bivens cases is misplaced. I doubt that the Department of Justice would
invite guest speakers on an area of the law that is as simple as Mr.
Weiner asserts.
I would also like to address Mr. Weiner's conclusion that Mr.
Bunning does not have the necessary ``intellectual spark'' to serve as
a Federal judge. Again, I think that it is important to look at what
Federal judges have said about Mr. Bunning. United States District
Judge Joseph Hood states in his testimony that Mr. Bunning comes to
court fully prepared, knowing both the facts and the law. Judge Hood
also finds his arguments to be ``succinct and cogent.'' In addition, he
states that Mr. Bunning ``has a `feel' for the judicial process that is
quite unusual for someone of his age and experience.'' Judge Hood is
not alone in his assessment of Mr. Bunning's intellectual abilities.
Judge Karl Forester states, ``He possesses a strong intellectual
capacity which I have personally observed.'' He goes on to say, ``His
analytical and writing ability and knowledge of the law is
outstanding.'' I believe that these comments by respected jurists
should allay any fears about Mr. Bunning's mental fitness for the job.
Mr. Chairman, thank you for providing this hearing for Mr. Bunning.
I believe that he will serve the United States well if appointed to the
Federal Bench. Not only does he have adequate experience, but he is an
intelligent, hard-working many committed to the rule of law. A similar
conclusion was also reached by Mr. Judah Best, a distinguished member
of the D.C. Bar, who conducted a second investigation of Mr. Bunning
for the ABA. I hope that this hearing will make Mr. Bunning's
qualifications apparent and that he may be confirmed in a timely
manner.
Chairman Leahy. We are in recess. Thank you.
[Whereupon, at 1:16 p.m., the Committee was adjourned.]
[Questions and submissions for the record follow. Note:
Answers to questions were not available at the time of
printing.]
QUESTIONS
Questions for the American Bar Association submitted by Senator Leahy
Questions for the entire ABA panel: Mr. Roscoe Trimmier, Mr. David
Weiner, and Mr. Judah Best
Question 1: I would like all of you to answer this question. In
your experience on the ABA Standing Committee on the Federal Judiciary,
is it unusual for the Committee to return a decision of majority ``not
qualified?'' Approximately what percentage of the time does this occur?
Question 2: Given the relative rarity of a ``not qualified''
funding, what significance do you feel it has when the Committee does
make such a finding?
Questions for Mr. Judah Best
Question 1: Mr. Best, you have reviewed the findings of the ABA
Standing Committee on the Federal Judiciary, a majority of whose
members found Mr. Bunning to be ``not qualified'' to serve as a federal
district court judge.
A. In you subsequent investigation of Mr. Bunning's background and
experience, what information did you discover that supports your
contrary conclusion that Mr. Bunning is, in you opinion, ``qualified''
to serve a lifetime appointment as a federal judge?
B. As you are aware, one of the standard factors the ABA considers
in determining its rating for judicial nominees is the number of years
the nominee has been practicing law. The ABA has a strong presumption
for recommending nominees with at least 12 years of experience. What
specifically, about Mr. Bunning's record impresses you such that this
presumption should be overturned in his case?
Question 2: In you opinion., why did you rate Mr. Bunning as
``qualified'' rather than giving him the more laudatory rating of
``well-qualified?'' In other words, what is it about his background
that prevented you from thinking that Mr. Bunning is ``well-
qualified?''
Question 3: As you are aware, Mr. Bunning has been nominated to the
U.S. District Court for the Eastern District of Kentucky.
A. If Mr. Bunning had been nominated to one of the busier, more
urban districts, such as the Southern District of New York or the
Central District of California, would you have arrived at the same
conclusion that he is ``qualified'' for the job? Why or why not?
B. In your opinion, should the quality of , or selection standards
for, a judicial nominee vary depending on the district in which he is
designated to serve?
Question 4: Do you share any of the Concerns about Mr. Bunning's
qualifications that have been enumerated by the majority decision of
the ABA Standing Committee on the Federal Judiciary? Please explain.
Question for Mr. David Weiner
Question 1: Mr. Weiner, having been the testimony of Mr. Best and
Mr. Bunning, have you heard anything that could change your evaluation
of Mr. Bunning as ``not qualified'' to serve as a federal judge?
Questions for David L. Bunning submitted by Senator Leahy
Question 1: As you know, the ABA is going to testify later in this
hearing and state its concerns regarding your qualifications for the
federal bench based on a lack of sufficient experience. After they have
testified, the record will be open for you to respond in any way you
wish, but do you wish to give any response not to the testimony you
expect the ABA to give?
Question 2: One of the factors leading the ABA to give you a ``not
qualified'' rating was your writing experience. Both the initial and
follow-up investigators determined that your writing was not
impressive, in part because you have not been called upon to address
particularly challenging or intellectually rigorous legal and doctrinal
matters in your capacity as an Assistant U.S. Attorney. As you know,
one of the most important functions of a federal district judge is to
write orders and opinions--and each word in these ruling can matter.
Opinions issued by federal judges provide not only direction to the
parties before you, but in some instances also leave a lasting imprint
on future jurisprudence. Please tell the Committee about your writing
skills and how your experience has prepared you to effectively fulfill
the legal writing responsibilities of a federal judge, despite a relate
lack of complex cases.
Question 3: The ABA also expressed concern that you have handled
civil matters for only four of your ten years in legal practice. As you
know, federal court dockets are overflowing with many complex civil
cases, ranging from employment or voting rights discrimination to anti-
trust or large-scale class action litigation. Please tell the Committee
whether and how your legal experience has prepared you to adjudicate
complicated civil cases and manage a busy docket involving such
matters.
Question 4: As a former prosecutor, I believe that representing
``the people'' in criminal prosecutions is an important form of public
service, and I commend you for your years of service to the people of
Kentucky. How will you make the transition from advocate for the
government to neutral decision-maker, particularly with regard to
adjudicating criminal matters where, as a judge, you would be charged
with vigorously safeguarding defendants' right to a fair trial?
Question 5: In the past few years, the Supreme Court has struck
down a number of federal statues, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental arena,
granting states' significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Question 6: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Question 7: If Congress provides many to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
such funds?
Question 8: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Question 9: Are there any federal statutes or sections thereof that
go beyond Congress' enumerated powers under the Constitution?
Question for the Judicial Panel: Hon. Henry Wilhoit, Senior District
Judge; Hon. Karl Forester, Chief Judge; Hon. Joseph Hood, Judge, U.S.
District Court for the Eastern District of Kentucky; Hon. Joseph
Famularo, Deputy Secretary, Commonwealth of Kentucky
Question 1: Thank you all for coming today to testify at this
hearing on behalf of you colleague, Mr. Bunning. You have all been
present for the testimony of Mr. Tremmier and Mr. Weiner of the
American Bar Association, who feel that Mr. Bunning does not meet the
necessary qualifications to serve as a federal judge.
A. Having seen Mr. Bunning's work firsthand, could each of you
please speak briefly as to your opinion of his qualifications and why
he should be confirmed despite an unfavorable ABA rating?
B. In your opinion, is there something about Mr. Bunning's
experience and legal talents that make him a particularly strong choice
for the federal bench?
SUBMISSIONS FOR THE RECORD
Commonwealth of Kentucky
Office of the Attorney General
Frankfort, KY 40601-3449
August 31, 2001
The Hon. Alberto Gonzalez
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Subject: Letter in Support of the Nomination of David Bunning As
District Court Judge for the Eastern District of Kentucky
Dear Judge Gonzalez:
I am writing in support of the nomination of David Bunning as
District Court Judge for the Eastern District of Kentucky. I have known
David for fifteen years. David and I first became acquainted when we
both worked at the law firm of Brown, Todd and Heyburn in the firm's
Lexington, Kentucky office.
David has served honorably as an Assistant United States Attorney
for the Eastern District of Kentucky for ten years, and as such, he has
acquired ten years of courtroom litigation experience in both civil and
criminal cases. He is an exceptionally knowledgeable, skilled and hard
working attorney. David is of the highest professional and personal
character. He has an excellent reputation among his peers and in his
community. David's intelligence, education, courtroom experience and
exemplary dedication to our federal justice system have prepared him
well to serve in the federal judiciary.
I respectfully support the nomination of David Bunning as District
Court Judge for the Eastern District of Kentucky.
Sincerely,
Albert B. Chandler III
Attorney General
Fairfax, VA 22032
The Hon. Alberto Gonzalez
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Dear Judge Gonzalez:
I am writing in support of the President's nomination of Mr. David
Bunning to be a United States District Court Judge for the Eastern
District of Kentucky. I have known and worked with Mr. Bunning for many
years. While serving as the United States Attorney for the Eastern
District of Kentucky, I hired him first as a law clerk in that office,
and then as an Assistant United States Attorney. In the years since, I
have maintained both professional and personal contact with him.
David Bunning would bring a wealth of practical experience to the
federal bench, having tried and negotiated a broad range of federal
criminal and civil cases in the United States Attorney's office. His
civil litigation experience will be of great benefit to the private
bar, while his criminal litigation background will enable him to
address knowledgeably and thoroughly the serious criminal justice
matters that face a federal judge.
Mr. Bunning is serious-minded, mature, and dedicated to the law and
his work. He is also fair, discrete, and careful in his handling of all
matters entrusted to him. He is not afraid to make decisions, but, in
doing so, is attentive and open to all sides of issues. He clearly
understands the unique responsibilities of representing the United
States. Throughout his career, he has demonstrated his commitment to
vigorous pursuit of wrongdoers while protecting the rights of citizens,
including those charged with a crime, and to protecting the public
treasury from unjust claims while ensuring just claims are fairly paid.
During and since my service with the United States Attorney's
office in the Eastern District, and in my prior position as a member of
the House Judiciary Committee in the General Assembly of Kentucky, I
have dealt with many legal professionals, including investigators,
prosecutors, and judges. I can state without hesitation that Mr.
Bunning's unique abilities, skill, depth of legal knowledge, and
remarkable character make him an exceptional choice to be a United
States Federal District Judge.
Sincerely,
Louis De Falaise
Republican National Committee
Wahsington, D.C. 20003
August 29, 2001
Hon. Alberto Gonzales
White House Counsel
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Dear Judge Gonzales:
I am pleased to support the nomination of David L. Bunning as a
federal district judge in Kentucky. As an attorney, banker, and
resident of the eastern district of Kentucky, I know the importance of
having highly qualified individuals on the bench. I predict that David
Bunning will be an outstanding jurist.
I know David by reputation and action. His reputation as an
Assistant United States Attorney is impeccable. he has tried more
federal cases in the past ten years than most eastern Kentucky
attorneys try during their careers. David's work ethic is strong, and
he is always prepared. I have found him to be even-tempered and
courteous.
David Bunning is a young man with integrity, experience and
ability. It is refreshing to see a person put aside potential personal
gain for public service. David will justify your confidence for many
years to come.
Sincerely,
Robert M. Duncan
Adams, Stepner, Woltermann & Dusing, P.L.L.C.
Attorneys and Counselors at Law
Covington, Kentucky 41012-0861
August 29, 2001
Hon. Alberto Gonzales
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Re: Hon. David L. Bunning, Judicial Nominee, U.S. District Court,
Easter District of Kentucky
Dear Judge Gonzales:
I have been practicing law in Northern Kentucky and The United
States District Court for the Eastern District of Kentucky at Covington
since 1974. I have known David Bunning since he was my law clerk during
the summers while he was in law school at the University of Kentucky.
We recruited Mr. Bunning, but our loss was the U.S. Attorney's gain.
David Bunnning will make an outstanding U.S. District Court Judge.
Needless to say he has all the requisite qualifications: very
intelligent, analytical, honest, of the highest integrity and always
fair. But beyond those requisites, Mr. Bunning brings qualities of
character and upbringing that, in my opinion assure he will be an
outstanding trial court judge. Mr. Bunning is patient and approachable.
He is savvy but not cynical. He is sure to maintain the dignity of the
court and the efficiency of the federal justice system. But just as
surely he will remain sensitive to the anxieties of all that come
before him.
As a federal prosecutor Mr. Bunning has been firm but fair. He has
been tireless in the prosecution of some cutting edge technological
crimes as well as some old fashioned nasty ones I have seen him been
over backwards to protect the constitutional rights of criminal
defendants as he resolutely accomplished a conviction or guilty plea
and stiff sentence of those individuals. Likewise I have seen him go
the extra mile in assisting victims and both state and federal law
enforcement investigations.
In my opinion, Mr. Bunning's nature, personality and core beliefs
assure he is virtually immune to the affliction that some of my trial
lawyer colleagues refer to as ``judgitis.'' You know of it. Its
symptoms are chronic impatience and crankiness and it is brought on by
constant exposure to case overload, meritless motions, unprepared
attorneys and the like. Having grown up as a twin and one of two of the
youngest of nine children. Mr. Bunning's unflappable personality is
part of his being and is highly unlikely to change.
This is not meant to be a ``puff piece'' for David Bunning. I am a
card carrying lifelong Democrat. I am a former chairman of the Kentucky
Bar Continuing Legal Education Commission and currently serve as a
Kentucky Board of Bar Examiner by appointment of the Kentucky Supreme
Court to assure the continued quality of entrants to the Kentucky Bar,
as well as a Master Barrister active in our local chapter of American
Inns of Court. I mention these items only to shed light on my non-
partisan perspective and my sincere professional interest in
maintaining the very high quality of judicial talent we have been
blessed with in the Eastern District of Kentucky. By any objective
measure David Bunning is an excellent choice to continue this
tradition. His confirmation will be good for the federal judicial
system and good for its citizens.
Thank you, the Senate Committee on the Judiciary and all of the
Senate in advance, for an objective consideration and an expeditious
confirmation of President Bush's nomination of David L. Bunning as
Judge, United States District Court for the Eastern District of
Kentucky.
At your service with kindest regards I remain,
Very Truly Yours,
Gerald F. Dusing
Lexington, Kentucky 40515
August 31, 2001
Hon. Alberto Gonzales
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Re: Nomination of David L. Bunning to the United States District
Court, Eastern District of Kentucky
Dear Judge Gonzales:
Please allow me to lend my support and endorsement of President
Bush's recent appointment of David L. Bunning to the Position of United
States District Judge for the Eastern District of Kentucky.
I was the United States Attorney for the Eastern District of
Kentucky for eight years. and during that time David served as an
Assistant United States Attorney. I found him to be an exceptional
prosecutor. His work ethic is superb, and his attitude and demeanor are
recommend his without hesitation.
I am sure that upon confirmation David will prove to be an
outstanding jurist.
Yours very truly,
Joseph L. Famularo
U.S. Attorneys Office
Somerset, KY 42503-4964
The Hon. Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
SD-224
Washington, DC 20510
Re: David L. Bunning, Nominee for United States District Judge,
Eastern District of Kentucky
Dear Senator Leahy,
It has come to my attention that David Bunning, a nominee for
United States District Judge for the Eastern District of Kentucky, has
recently been rated ``not qualified'' for this position by the American
Bar Association. I want to let you know as succinctly and concisely as
possible, that as a colleague of David's, I respectfully disagree with
that organization's assessment of his lack of qualifications for this
position.
David has been a colleague of mine for the past then year at the
U.S. Attorney's Office for the Eastern District of Kentucky. During
that period of time, I have worked closely with David on numerous
matters and have had a unique opportunity to observe firsthand, not
only his legal skills, but his temperament, objectivity, dedication,
and probably most importantly, his personal ethics. With that
knowledge, I find it beyond comprehension that his qualifications would
be even remotely questioned.
While David possesses excellent legal skills inside the courtroom,
those skills are only enhanced by the objectivity and dedication with
which he does his job. In addition, David is one of the most even
tempered people that I have I have ever known, and I can say without
fear of contradiction that his ethical standards are among the highest
of any attorney with whom I have ever dealt.
As a colleague of David's, and as a citizen of the Eastern District
of Kentucky, I respectfully request that you afford him a hearing
before the Senate Judiciary Committee so that you and your colleagues
on the committee will have the opportunity to determine firsthand
David's qualifications for this position.
Sincerely,
Martin L. Hatfield
Hellings & Pisacano, P.S.C.
Attorney and Counselors at Law
Covington, Kentucky 41011
September 4, 2001
Hon. Alberto Gonzales
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Re: David Bunning, Esq., Appointment to Federal District Bench
Dear Mr. Gonzales:
I have been asked to write a letter expressing my views of Mr.
Bunning's pending appointment as Federal District Judge, for the
Eastern District of Kentucky.
By way of introduction, I am a criminal attorney licensed in Ohio
and Kentucky and all Federal Courts therein. I began my practice as a
state prosecutor in Covington, Kentucky in 1974 and have labored in the
``trenches'' ever since.
My experience with Mr. Bunning has been exclusively in his capacity
as an A.U.S.A. in the Eastern District of Kentucky, where I met him
shortly after his appointment to the Covington, Kentucky office in
1991. Our path's have crossed on several occasions, both in court and
at the negotiating table. We have been on opposite sides of several
complicated cases, as such I believe I am qualified to evaluate his
competence, professionalism and honesty.
Mr. Bunning possesses the unique quality of being an aggressive
adversary, while being fair and open-minded. As a negotiator, he has
been honorable and forthright and a credit to his office. I have no
hesitation in saying I trust him.
I should further like to point out that the Criminal Bar in the
Eastern District is small enough, that most of the practioners know or
are acquainted with one another. In my conversations with others in the
legal community, I have heard nothing which would alter or change my
opinion.
I am confident that Mr. Bunning's appointment to the Bench, will
bring a man of character and integrity. I, for one look forward to
practicing in front the him.
Sincerely,
Harry P. Hellings, Jr., Esq.
Sarah Jackson
Union, KY 41091
September 7, 2001
Hon. Orrin Hatch
Ranking Member, Committee on the Judiciary
United States Senate
SD-152
Washington, D.C. 20510
Dear Honorable Hatch:
I would like to take this opportunity to recommend David Bunning
for the position of U.S. District Judge for the Eastern District of
Kentucky. As the primary victim in the Randy Cope case, I cannot say
enough about Dave Bunning. Mr. Bunning had a vision--a special
perception. From our initial meeting, it was obvious he could feel our
lives were in danger. After watching him work, his dedication and
expertise truly amazed me. He was will to risk his own life to protect
the lives of my family.
Working with Dave Bunning gave me a sense of protection. As the old
cliche goes, ``Actions speak louder than words!'' Dave Bunning's
actions showed that he cared about me and he cared about my son. He was
truly wonderful to work with in such a time of desperation,
devastation, stress, and turmoil.
After getting his own life threatened by the Cope Family, Dave
Bunning continued to show his bravery and his support. Even though the
federal officials felt it best for him to be removed from the case, I
knew his heart was there. He is one very caring soul.
From the experience I have had with the Eastern District judges, I
can assure you that Dave Bunning has worked with and been trained by
some of the most educated, caring and individuals in the legal system.
The judges in the Covington office appear to be united, knowledgeable,
and extremely dedicated. I know Dave has that positive attitude,
compassion and devotion engrained in him.
Dave Bunning is a man of character. My hat is surely off to him! He
helped save our lives. Therefore, it is without reservation that I
highly recommend him to fill the seat of U.S. District Judge for the
Eastern District of Kentucky.
Sincerely,
Sarah Jackson
Adams, Stepner, Woltermann & Dusing, P.L.L.C.
Attorneys and Counselors at Law
Covington, Kentucky 41012-0861
August 29, 2001
Hon. Alberto Gonzales
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Re: David Bunning
Dear Senator Leahy:
I was born and raised in Kentucky. I live in Villa Hills, a small
town in Northern Kentucky with my wife and four children. My family,
and my wife's family, have lived in Northern Kentucky for generations.
My children go to school in the community and will, in all likelihood,
live here. I am a lawyer. I represent and defend cities, counties,
police officers and elected officials in civil rights, employment and
tort liability cases. I have practiced law in Kentucky for 18 years,
primarily in federal court. I am a Democrat.
With this background, I feel that I am uniquely positioned to
comment on President Bush's appointment of David Bunning to fill a
vacancy as a federal district judge in the United States District Court
for the Eastern District of Kentucky. I know David Bunning personally,
and I know what this community needs, and deserves in a federal
district judge.
From firsthand experience, I can attest to the fact that David
Bunning is a man of integrity and honor, two attributes that are
critical in maintaining respect for the judiciary and the difficult
decisions that federal district judges are forced to make. David's word
is his bond, and he has always demonstrated the utmost respect for the
court, the lawyers he works with, and his staff. David works hard, has
demonstrated a well-rounded knowledge of the law and plays by the
rules. A federal district judge must possess these qualities to tackle
an increasingly diverse caseload, administer justice in a timely
fashion, and show the citizens that justice is blind.
David's age, energy and enthusiasm are positive attributes that
should be part of the job description for a federal judge. David will
be able to serve this community for many years, and the wisdom that he
develops with the cases that he decides will only serve to benefit the
administration of justice in the community. If David handles his docket
like he has handled his cases as a prosecutor, I am confident that
there will be no backlog, the litigants' arguments will be considered
on their merits, and correct and appropriate decisions rendered.
Finally, and with strong conviction, I must emphasize that David
Bunning has the experience, both in life and in the legal profession,
to serve as a federal district judge. David is married, has children
and knows what it is like to be responsible for a family and to serve a
community, In his occupation, he has handled a wide variety of cases in
representing the United States. I have observed him in the courtroom,
and I have no doubt that he knows right from wrong, good from ban, and
acceptable from unacceptable behavior.
Without question, I have a vested interest in who serves as federal
district judge in my community. But my interests are noble because I
believe that Northern Kentucky needs and deserves a qualified,
dedicated and fair person to serve such a critical role in our judicial
system. David Bunning meets our needs. I full support President Bush's
appointment of David to the Bench and strongly urge the Senate to
confirm his appointment.
Sincerely,
Jeffrey C. Mando
Parry Deering Futscher & Sparks, P.S.C.
Attorneys at Law
Covington, KY 41012-2618
September 7, 2001
The Hon. Alberto Gonzalez
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Dear Judge Gonzales:
I have been a practicing trial attorney in the Northern Kentucky-
Greater Cincinnati area for almost thirty years. I am not sure that any
lawyer in this area has much more trial experience than I do, and my
experience has been in both federal and state courts in this area and
across the nation.
I am writing to strongly recommend the nomination of David Bunning
to the positions of Judge for the United States District Court, Eastern
District of Kentucky.
David Bunning is a young man, but he enjoys an excellent reputation
as a lawyer. he is very bright and honest, and would be an excellent
federal judge.
I normally support Democratic candidates and causes, but in this
situation, I am very happy to endorse Mr. Bunning. On the merits, he
most surely deserves the nomination.
Thank you for reading this letter.
Sincerely,
Ron R. Parry
Graydon Head & Ritchey LLP
Attorneys at Law
Florence, Kentucky 41042-1312
August 23, 2001
The Hon. Alberto Gonzalez
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Re: Nomination of David L. Bunning to the United States District
Court, Eastern District of Kentucky
Dear Judge Gonzalez:
Please allow me to commend the President on his appointment of
David L. Bunning to fill one of the vacancies on the United States
District Court, Eastern District of Kentucky.
In 13 years of practice in Kentucky, I have encountered hundreds of
very capable attorneys. David unquestionably ranks in the top tier of
that group. He has been an extremely hard working and successful
prosecutor with the United States Attorney's Office, and his service,
integrity and commitment to community are beyond reproach.
My congratulations to the President on a superb selection.
If I can be of assistance on this or any other matter in the
future, please let me know.
Very truly yours,
Thomas A. Prewitt
Graydon Head & Ritchey LAP
Lexington, Kentucky 40047
November 1, 2001
The Hon. Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
SD-224
Washington, D.C. 20510
Re: Hon. David L. Bunning, nominee for the United States District
Judge for the Eastern District of Kentucky
Dear Senator Leahy:
I am a senior Assistant United States Attorney in the Eastern
District of Kentucky. I have 23 years tenure as a AUSA and currently
investigator and prosecute major frauds and white collar crimes. I am
sending this letter in my private capacity.
I was surprised to read in Kentucky newspapers two weeks ago that
the American Bar Association had indicated to your committee that
nominee Bunning was unqualified to serve as a United States District
Judge. It is my understanding that my colleague, AUSA David Bunning,
was found to be qualified by a substantial minority of the ABA
reviewing group but that others of the group found him ``unqualified''
because he had not practiced law for a minimum of 12 years (news
reports indicate that the 12 year practice rule is an acknowledged ABA
guideline).
Upon being licensed to practice over 10 years ago, David joined the
professional staff of our office. The United States Attorney's Office
for the Eastern District is a medium sized office with a reputation
among our client agencies for proactive and skillful litigation. We
cover half the state and try cases in six geographical locations. We
have a lot of experienced AUSA's and a collegian atmosphere which
fosters mentoring. This office provides to its professional staffers a
pure litigation experience. We don't do wills, trusts or estates; we do
not do corporate work and it is certainly not necessary for any of us
to be ``rain makers''. Purely and simply, our function is to litigate,
full time, civilly and criminally. Then years as an AUSA in this
district is like the finest graduate degree in litigation one could
obtain. We are constantly immersed in both the theory and technique of
effective trial representation. I have been a AUSA twice; in 1971 I
left this office to join a major litigation oriented commercial firm
representing banks and coal interests. I quickly became aware that my
intensive experience for 18 months as an AUSA allowed me to compete
effectively and comfortably against skilled counsel 20 years my senior.
If you want to become effective as a trial lawyer, there is no better
place to become skilled than the U.S. Attorney's Office.
I relate the above to indicate to you that David's tenure as an
AUSA in this district has equipped him well to serve as a district
judge. David is a bright, hard working family man of 35 who is
possessed of an excellent legal skills portfolio. In addition, he is a
personable individual with a good sense of values, integrity and
equity. To label David as ``unqualified'' is unfair and manifestly
untrue.
I would hope that your committee would hold a hearing on Mr.
Bunning's nomination. I think that you and the other committee members
would be persuaded as to David's excellent qualifications by the
testimony of sitting federal judges, our former U.S. Attorney and
others who know David and his abilities from first hand exposure.
Sincerely,
Robert E. Rawlins
Mt. Washington, Kentucky 40047
October 25, 2001
Senator Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
SD-224
Washington, D.C. 20510
Re: Judicial Nominee David Bunning
Dear Senator Leahy:
I am writing this letter to recommend to you that a hearing be
conducted on the qualifications of Assistant United States Attorney
David Bunning to be a United States District Judge for the Eastern
District of Kentucky.
For the past sixteen years I have had the honor of being an
Assistant United States Attorney for the Western District of Kentucky.
During David's tenure in the Eastern District I have on numerous
occasions been involved with joint investigations with David and the
Covington, Kentucky, office and have been able to observe his
professionalism and good judgment. Moreover, David and I have worked
with the same agents from many federal investigative agencies and I
know that they share the same opinion of David that I do. It has come
to my attention that the American Bar Association has found David's
qualifications to be unsatisfactory. Senator, as a former prosecutor
yourself, I believe that you can understand the distress all of us who
are his colleagues felt when we read the A.B.A. comments in a statewide
newspaper. David has practiced both civil and criminal law in United
States District Court for the past ten years on a day-to-day basis.
From the observations of agents who work with him, judges whom he
practices before, and from myself, he has acquitted himself well. It
begs the question then as to how David is unqualified.
Finally Senator, I want to make you aware of a fact about David
that may not be contained in much of the information you have received.
That is, that David was born with a cleft-palate. Fortunately, his
parents were able to get medical help for him and his disability is
hardly noticeable. However, this is a disability which David has had to
overcome; a disability can reach the heights David has already. Not
infrequently I am confronted by parents of a child with a cleft-palate
who question what modern medicine can do for their baby and whether or
not he or she can live a normal life. When I am confronted by those
parents, I tell them about my friend David Bunning who overcame his
disability and became a trial lawyer.
Very truly yours,
Randy Ream
Attorney at Law
Greenebaum Doll & McDonald PLLC
Covington, Kentucky, 41012-2673
November 26, 2001
Hon. Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
SD-224
Washington, D.C. 20510
Re: Nomination of David L. Bunning
Dear Senator Leahy:
This correspondence is forwarded to support the President's
nomination of David L. Bunning to be a United States District Court
Judge for the Eastern District of Kentucky.
To introduce myself, I am a lifelong, registered Democrat. I have
been privileged to practice law for over twenty-five (25) years in the
State and Federal Courts of Kentucky and Ohio. It has been my privilege
to serve as President of the Kentucky Bar Association, to serve as an
Adjunct Professor of Law at Chase College of Law and to Chair the
Visiting Committees at the University of Kentucky Collage of Law and
Chase College of Law. In the practice of law, I have primarily
specialized in civil litigation, practicing regularly in the Federal
Courts of the Eastern District of Kentucky and am a Life Member of the
Sixth Circuit Judicial Conference.
It is without reservation and with personal and professional
conviction that I author and send to you this letter to strongly
encourage you and your Judiciary Committee to vote in favor of the
President's nomination of David Bunning to the Federal Bench in the
Eastern District of Kentucky. David Bunning has demonstrated that he
has the character, integrity and intellect to meet and exceed the
rigorous demands of a Federal Judge. His work in the Federal Courts is
widely respected. His record of success as a litigator, primarily in
criminal litigation matters in more recent years, speaks for itself.
It is interesting to note the most nominees to the Federal Bench,
at least in our part of the country, naturally bring to the Bench
extensive experience in civil litigation and are regularly approved on
the apparent assumption that they can quickly learn and master the
substance and subtleties of the criminal law in the many criminal cases
that will come before them on the Bench. I respectfully submit that the
converse is no less valid when applied to David Bunning and his record
of excellence and achievement primarily as a Federal criminal
prosecutor in the Eastern District of Kentucky. There can be no better
witnesses to the esteem in which he is held as an experienced
practitioner than the opinions of the experienced Federal District
Judges in the Eastern District of Kentucky who have seen him ``in
action'' in their court rooms. I am confident that you will hear from
most all of them that they recognize and respect David Bunning as a
lawyer possessing those personal and professional qualities and
characteristics needed for the Federal Bench.
If further comment or information from me would be useful to you or
your Committee regarding the nomination of David Bunning, please do not
hesitate to have one of your Staff contact me at your convenience. This
letter was not requested by the Nominee, but is simply an initiative
which I have undertaken to lend my support and encouragement to you and
your Judiciary Committee in support of David Bunning's nomination by
the President because I am convinced that he has ``the right stuff''
and will serve with distinction on the Federal Bench, once confirmed by
your Committee and the Senate.
Be assured of my appreciation to you and the Members of your
Committee for your consideration of this correspondence.
Respectfully submitted,
Wm. T. Robinson III
Covington, Kentucky 41011
August 23, 2001
Hon. Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
SD-224
Washington, D.C. 20510
Hon. Orrin Hatch
Ranking Member, Committee on the Judiciary
United States Senate
SD-152
Washington, D.C. 20510
Mr. Neal Suit, Esq/
Office of Legal Policy
U.S. Dept. of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530
Re: Judicial nomination of David Bunning, Esq., Eastern District of
Kentucky, Covington
Dear Senator Leahy, Senator Hatch and Mr. Suit,
Please find enclosed a letter that I have forwarded to Judge
Gonzales in support of David Bunning, Esq., an Assistant United States
Attorney, who has been nominated by President George Bush for a
judgeship here in the Eastern District of Kentucky.
While we have been blessed with good judges for many years, we need
to continue this good fortune. I believe this young man possesses much
promise and would give yers of faithful and talented service to the
judiciary. Additionally, the citizens of the Commonwealth of Kentucky
would be blessed by his approval because he is truly one of us.
Thank you for your review of the enclosed and I would ask that he
be confirmed quickly so that he can begin this service.
Very truly yours,
Chas. H. Schaffner
Covington, Kentucky 41011
August 23, 2001
Hon. Alberto Gonzalez
White House Counsel
The White House
1600 Pennsylvania Ave., NW
Washington, D.C. 20500
Re: Judicial nomination of David Bunning, Esq., Eastern District of
Kentucky
Dear Judge Gonzalez,
This letter is written in support of AUSA David Bunning who has
been nominated for one of the federal judicial posts here in Kentucky.
I have had the high privilege of practicing law in the Southern
District of Ohio as well as both federal districts here in the
Commonwealth of Kentucky. I have appeared many times before many judges
and prosecutors. I believe, because of this exposure, I can and should
express an opinion as to this person's qualifications. While David and
I are of differing political persuasions, he being a Republican, and
myself be a reconstituted, liberal Democrat, I can report to you that I
believe he has those qualities needed to be able to discharge those
awesome responsibilities of a federal judge.
Additionally, he has a quality, which cannot be learned, taught or
assimilated quickly just because of his recent nomination. I am
speaking of his temperament. For several years I have had some
firsthand observations, which reflect that he treats his coworkers,
fellow attorneys, staff, as well as accused individuals, in a Christian
manner, which has been most impressive to me, a practicing attorney.
Furthermore, he is a man of his word and can be trusted to do the right
thing in all situations. I sincerely hope that the members of the
organized bar here in Northern Kentucky write to support his nomination
because I believe he is the best person for the job. It has been a
pleasure to watch his development over the past decade and while I will
miss him as a prosecutor I will warmly welcome his presence when he
assumes the bench. Thank you and please feel free to call or write
should you need anymore information from me.
Very truly yours,
Chas. H. Schaffner
Taft, Stettinius & Hollister LLP
Covington, Kentucky 41011-4704
October 19, 2001
The Hon. Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
SD-224
Washington, D.C. 20510
Re: David Bunning
Dear Senator Leahy:
Please know that I disagree strongly with the ABA's recent
assessment of David Bunning's qualifications to serve as Federal
District Judge. David has earned the respect and trust of his peers and
``logged'' thousands of hours practicing in Federal Court over the
years. I have no doubt that David will serve the judiciary with the
same high level of competence as he has the United States Attorney, and
that those practicing in his courtroom will be treated with firm
respect and absolute fairness.
I have known David for many years and though I am primarily engaged
in civil litigation, I have opposed him on several criminal matters.
Without exception, I found him to be tough, fair, forthright,
articulate and responsive. David will bring these qualities to the
bench. I have the utmost confidence that his demeanor and decisions,
both civil and criminal, will exhibit his high qualifications and
personal standards.
David Bunning has my strong recommendation for appointment as
Federal District Judge for the Eastern District of Kentucky.
Very truly yours,
J. Stephen Smith
Arnzen & Wentz, P.S.C.
Attorneys at Law
Covington, Kentucky 41012-0472
August 30, 2001
Hon. Alberto Gonzales
White House Counsel
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Judge Gonzales:
It is with great pleasure that I write to you on behalf of David L.
Bunning, nominee for appointment to the U.S. District Court for the
Eastern District of Kentucky. I recommend his confirmation.
Since the Honorable William Bertelsman announced that he would take
senior status, the legal community has been united behind the effort to
fill the vacancy promptly with the best possible candidate.
Mr. Bunning's name was mentioned early as a possible candidate, and
I can report to you that I have heard nothing disqualifying about him,
indeed, the news of his nomination was greeted with universal approval.
Although I do not practice criminal law, and therefore have not had
the pleasure of working personally with David Bunning in his role as
Assistant U.S. Attorney, he and I have worked together on various
professional matters, most recently at a seminar for the local chapter
of the Federal Bar Association. I have always found him pleasant to
work with, reliable, and demonstrating the utmost in professionalism.
Moreover, those of my colleagues who do work with David Bunning have
been very complimentary of his work ethic, ability and integrity. I can
think of no finer qualities for a Judge.
If you have any questions or if there is anything else that I can
do, please don't hesitate to contact me.
Sincerely,
Beverly R. Storm
Arnzen & Wentz, P.S.C.
Taliaferro, Mehling, Shirooni, Carran & Keys, PLLC
Attorneys at Law
Covington, Kentucky 41012-0466
October 24, 2001
The Hon. Patrick Leahy
Chairman
Senate Judiciary Committee
SD-224
Washington, D.C. 20510
Dear Senator Leahy:
I have known David Bunning for a number of years. I believe that he
would make an outstanding United States District Court Judge for the
Eastern District of Kentucky. I worked with Dave Bunning on cases and I
feel that he is exceptionally well qualified.
Even though I am a life-long Democrat, I am willing to testify
before the Judiciary Committee on behalf of Dave Bunning.
Let me know if a hearing will be scheduled. Thank you.
Very truly yours,
Philip Taliaferro
Covington, KY 41011
August 29, 2001
The Hon. Alberto Gonzales
White House Counsel
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Re: Nomination for District Judge--Eastern District of Kentucky
Dear Hon. Judge Gonzales:
As a very young lawyer in Northern Kentucky in the 1970's, I
witnessed firsthand the infighting and the struggle by various
candidates to fill the position of the United States District Judge in
the Eastern District of Kentucky sitting at Covington. After literally
years, I was pleased to see the nomination and confirmation of Wm. O.
Bertelsman who has honorably filled that position.
When Judge Bertelsman announced his senior status, I silently
prayed then dreaded a repeat of that remembered troubled time within
the legal community.
As a self-described `liberal Democrat' I knew I would have to
oppose any nomination by the recently inaugurated Republican occupant
of the White House.
And then to my delight, my colleague, David L. Bunning, was chosen
to fill this post. I have known David in excess of 12 years, both as a
competent practicing attorney, advocate for his clients, and lecturer
on federal issues and practices. You will certainly receive many
comments attesting to his intellect, skills and effectiveness which are
now his resume. But to me, for a federal judge, the most important
qualifies are his integrity, genuine fairness--and no hint of
aloofness. The litigants and lawyers before a Judge Bunning will be
treated respectfully and receive prompt attention to their pleas. The
tradition of retiring Judge Bertelsman will continue.
So I am not surprised that since David's nomination announcement,
there has not been a repeat of the controversy of years ago. The
community and its lawyers have responded favorably and without a hint
of displeasure.
It is always hard for me to find nice things to say about
Republicans, but I hereby volunteer for the task to praise David L.
Bunning. I commend the President for his choice and I wish David long
tenure as a confirmed appointee to the bench.
Sincerely,
Paul J. Vesper
-