[Senate Hearing 107-584]
[From the U.S. Government Publishing Office]



                                                 S. Hrg. 107-584, Pt. 2
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================






                                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
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001











                       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

                              ----------                              

                       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

                              ----------                              

         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

                              ----------                              


                       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

                                   - 
