[Senate Hearing 108-914]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-914

NOMINATIONS OF BRUCE E. KASOLD, ALAN G. LANCE, SR., LAWRENCE B. HAGEL, 
   ROBERT N. DAVIS, WILLIAM A. MOORMAN, AND MARY J. SCHOELEN, TO BE 
           JUDGES, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

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

                                HEARING

                               BEFORE THE

                     COMMITTEE ON VETERANS' AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                       FIRST AND SECOND SESSIONS

                               __________

   MARCH 4, 2003, JUNE 17, 2003, APRIL 1, 2004 AND SEPTEMBER 30, 2004

                               __________

       Printed for the use of the Committee on Veterans' Affairs











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                     COMMITTEE ON VETERANS' AFFAIRS

                 Arlen Specter, Pennsylvania, Chairman
Ben Nighthorse Campbell, Colorado    Bob Graham, Florida
Larry E. Craig, Idaho                John D. Rockefeller IV, West 
Kay Bailey Hutchison, Texas              Virginia
Jim Bunning, Kentucky                James M. Jeffords, (I) Vermont
John Ensign, Nevada                  Daniel K. Akaka, Hawaii
Lindsey O. Graham, South Carolina    Patty Murray, Washington
Lisa Murkowski, Alaska               Zell Miller, Georgia
                                     E. Benjamin Nelson, Nebraska
           William F. Tuerk, Staff Director and Chief Counsel
         Bryant Hall, Minority Staff Director and Chief Counsel





















                            C O N T E N T S

                              ----------                              

                             March 4, 2003
          Nominations Including Bruce E. Kasold to be Judge, 
               U.S. Court of Appeals for Veterans Claims
                                SENATORS

                                                                   Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania....     1
Warner, Hon. John, U.S. Senator from Virginia....................     1

                               WITNESSES

Kasold, Bruce E., nominee to be Judge, U.S. Court of Appeals for 
  Veterans Claims................................................     3
    Prepared statement...........................................     4
    Questionnaire for Presidential nominees......................     5
    Supplemental questionnaire...................................     8
        Attachments..............................................    14

                                APPENDIX

Campbell, Hon. Ben Nighthorse, prepared statement................    21
Bunning, Hon. Jim, prepared statement............................    21
                              ----------                              

                             June 17, 2003
       Nominations of Alan G. Lance, Sr., and Lawrence B. Hagel 
        to be Judges, U.S. Court of Appeals for Veterans Claims
                                SENATORS

                                                                   Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania....    23
Craig, Hon. Larry E., U.S. Senator from Idaho....................    23
Crapo, Hon. Michael, D., U.S. Senator from Idaho.................    24
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado........    72

                               WITNESSES

Hagel, Lawrence B., nominee to be Judge, U.S. Court of Appeals 
  for Veterans Claims............................................    25
    Prepared statement...........................................    26
    Questionnaire for Presidential nominees......................    27
    Supplemental questionnaire...................................    35
    Response to written questions................................    51
Lance, Alan G., Sr., nominee to be Judge, U.S. Court of Appeals 
  for Veterans Claims............................................    54
    Prepared statement...........................................    54
    Questionnaire for Presidential nominees......................    57
    Supplemental questionnaire...................................    61
                              ----------                              

                             April 1, 2004
          Nominations Including Robert N. Davis to be Judge, 
               U.S. Court of Appeals for Veterans Claims
                                SENATORS

                                                                   Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania....    79
Cochran, Hon. Thad, U.S. Senator from Mississippi................    79
Lott, Hon. Trent, U.S. Senator from Mississippi..................    80

                               WITNESSES

Robert N. Davis, nominee to be Judge, U.S. Court of Appeals for 
  Veterans Claims
    Prepared statement...........................................    82
    Questionnaire for Presidential nominees......................    83
    Supplemental questionnaire...................................    88
        Attachments..............................................    94
    Response to written questions................................   110
                              ----------                              

                           September 30, 2004
     Nominations Including Mary J. Schoelen and William A. Moorman 
        to be Judges, U.S. Court of Appeals for Veterans Claims
                                SENATORS

                                                                   Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania....   117
Graham, Hon. Lindsey, U.S. Senator from South Carolina...........   131
Rockefeller, Hon. John D., IV, U.S. Senator from West Virginia...   131

                               WITNESSES

Schoelen, Mary J., nominee to be Judge, U.S. Court of Appeals for 
  Veterans Claims................................................   117
    Prepared statement...........................................   119
    Questionnaire for Presidential nominees......................   120
        Attachments..............................................   124
    Supplemental questionnaire...................................   125
Moorman, Major General William A. (Ret.), nominee to be Judge, 
  U.S. Court of Appeals for Veterans Claims......................   137
    Prepared statement...........................................   138
    Questionnaire for Presidential nominees......................   139
    Supplemental questionnaire...................................   145
        Attachments..............................................   151



























 
   NOMINATIONS INCLUDING BRUCE E. KASOLD TO BE JUDGE, U.S. COURT OF 
                      APPEALS FOR VETERANS CLAIMS

                              ----------                              


                         TUESDAY, MARCH 4, 2003

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3 p.m., in Room 
SR-418, Russell Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Warner, and Allen.

      OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN, 
                 U.S. SENATOR FROM PENNSYLVANIA

    Chairman Specter. The Committee on Veterans' Affairs will 
now begin. We have the nomination of Bruce E. Kasold, Esquire, 
to be judge of the U.S. Court of Appeals for Veterans Claims.
    I will turn immediately to the senior Senator from Virginia 
for the introduction of judge-to-be Kasold.
    Senator Warner?

                STATEMENT OF HON. JOHN WARNER, 
                   U.S. SENATOR FROM VIRGINIA

    Senator Warner. Thank you very much, Mr. Chairman and 
Members of the Committee. I am delighted to appear here on 
behalf of this distinguished nominee.
    I have known Mr. Kasold for a very long time, Mr. Chairman. 
He was on my staff as a Congressional fellow more than 12 years 
ago. Later, when I was privileged to become Chairman of the 
Rules Committee in 1995, Mr. Kasold became our chief counsel. 
We steered our way through some heavy waters in those days. He 
was always by my side and really handled the tough questions 
very, very well.
    He has an impressive resume. Graduated from the United 
States Military Academy, Mr. Kasold went on to receive his law 
degree from the University of Florida where he was on the Law 
Review and earned the prestigious order of Order of the Coith. 
Mr. Chairman, with all your tremendous achievements in the law, 
you immediately recognize in this individual an outstanding 
person, am I not correct?
    Chairman Specter. You are correct. He may be overqualified.
    Senator Warner. Thank you. In addition, he received his 
master's in law from Georgetown University and a master's of 
law equivalent from Judge Advocate General's graduate program 
collocated on the University of Virginia. He has over 20 years 
of service with the United States Army, first in the combat 
arms, air defense artillery, and then as a judge advocate in 
the Army's Judge Advocate General's Corps. Furthermore, in 
addition to serving as the general counsel for the Augsberg 
Military Command, Mr. Kasold served as assistant general 
counsel in the Army's Office of General Counsel. He also served 
as a special Assistant U.S. Attorney in military and 
administrative law where he prosecuted numerous criminal cases 
before court martial and tried cases before Federal 
magistrates.
    After retiring from the military, Mr. Kasold worked in the 
private sector with the well-known firm of Holland & Knight. In 
1998, Mr. Kasold moved on to his current position as chief 
counsel for both the Secretary of the Senate and the Sergeant 
at Arms. In this role, he has continued to serve the Senate, 
the Members and the staff on issues such as administrative 
claims and personnel matters. Without a doubt, Mr. Kasold's 
education, legal experience, and achievements make him well-
suited, Mr. Chairman, and I am proud to be here on his behalf 
today.
    Might he at this time introduce to the Chairman the 
numerous members of his family in attendance today?
    Senator Specter. Thank you very much, Senator Warner for 
those----
    Senator Warner. If you will allow the nominee to introduce 
his family, Mr. Chairman?
    Chairman Specter. By all means.
    Senator Warner. Thank you.
    Mr. Kasold. We have my wife Patricia, my mom Louise, my son 
Adam, and my in-laws, a host of them, Billy, Pam, my father- 
and mother-in-law, my niece, Doris.
    Chairman Specter. You have a wonderful family. It is quite 
a turnout as a testament to you, Mr. Kasold. And that was an 
elegant introduction by an elegant introducer. There was only 
one item that I had awaited some comment on. Both of you--you 
and Senator Warner--have been an avid squash player.
    Senator Warner. That is correct.
    Chairman Specter. And judge-to-be Kasold is an avid squash 
player.
    Senator Warner. That is correct.
    Chairman Specter. Have you ever played squash? Are you able 
to testify to his capability in that important aspect?
    Senator Warner. No. When you get to be my age you transfer 
to tennis, and he has been a frequent tennis partner, is and 
will always be one. His golf game is awful.
    [Laughter.]
    Chairman Specter. You did not comment on his tennis game. I 
can tell you his squash game is excellent. I know you have had 
that knee issue, but you are too young to have given up squash, 
Senator Warner.
    Senator Warner. You are nice to say that. Thank you. We had 
many good times together.
    Chairman Specter. And we shall have some more.
    Mr. Kasold, and General Nicholson, if you will both rise I 
will administer the oath.

    [Witnesses sworn.]

    Chairman Specter. You may be seated, and we shall begin 
with Mr. Kasold. Let me state for the record, in the interest 
of full disclosure, that Mr. Kasold is a personal friend. For 
many years we have been friends and squash opponents. And both 
before and after his nomination, he has been a tenacious 
player; gives no quarter. None is asked and certainly none is 
given.
    Mr. Kasold, do you care to make an opening statement?
    Mr. Kasold. Yes, sir, I have a brief one.

 STATEMENT OF BRUCE E. KASOLD, NOMINEE TO BE JUDGE, U.S. COURT 
                 OF APPEALS FOR VETERANS CLAIMS

    Thank you, Mr. Chairman. I would like to also thank Senator 
Warner for his kind words.
    Sir, it is an honor to have been nominated by the President 
to serve as a judge on the United States Court of Appeals for 
Veterans Claims. Indeed, I can think of no greater honor than 
to serve those who have served our Nation in time of war and in 
defense of peace.
    I would like to thank my wife and son, my mom and dad, for 
their total support and love, and my in-laws who are, indeed, a 
second family. I would also like to thank you, Mr. Chairman, 
for your support, and Senator Graham for his support in 
recommending to the President, along with Senators Warner, 
Lott, Thurmond, and Santorum, and Congressman Tom Davis. I 
would like to thank Chesterfield Smith and Dick Duvall of the 
law firm of Holland & Knight. There are many others to whom I 
also extend my heartfelt thanks for their support and I have 
noted them in my complete statement that I would ask be 
included in the record.
    Mr. Chairman, my education and experience are highlighted 
in the information I have previously provided to the Committee, 
but I would like to share with you some personal insights and 
the way I try to approach life and how it might apply, should I 
be confirmed. First, I try to follow the Golden Rule instilled 
by my parents and faith, to do unto others as I would have them 
unto me.
    Second, I try to live, work, and play by the ideals 
enshrined in my alma mater's motto, Duty, Honor, Country.
    And third, I am a firm believer in the fact that Senator 
Warner has crystallized in words so often in our meetings when 
I worked for him, that there is no end to what we can 
accomplish if we work together as a team and not worry about 
individual glory.
    Mr. Chairman, should I be confirmed to serve as a judge on 
the Court of Appeals for Veterans Claims, I can assure you, the 
Committee, the Senate, and those who come before the court that 
I will endeavor to give my best, and to render decisions in a 
fair and impartial manner based on the applicable law and facts 
in the case.
    I again thank you, and I am prepared to answer any 
questions to the best of my ability.
    [The prepared statement of Mr. Kasold follows:]
      Prepared Statement of Bruce E. Kasold, Nominee to be Judge, 
               U.S. Court of Appeals for Veterans Claims
    Mr. Chairman, Senator Graham, and Members of the Committee:
    It is an honor to have been nominated by the President to serve as 
a judge on the United States Court of Appeals for Veterans Claims. 
Indeed, I can think of no greater honor than to serve those who have 
served our Nation in time of war or in preparation therefore.
    First and foremost, I would like to thank my wife and son, and my 
Mom and Dad, for their total support and love, and my in-laws who are 
indeed a second family. I would also like to thank you, Mr. Chairman, 
for your support and that of Senator Graham, in recommending me to the 
President, along with Senators Warner, Lott, Thurmond, and Santorum, 
and Congressman Tom Davis.
    I would also like to thank Chesterfield Smith and Dick Duvall of 
Holland & Knight, as well as the other outstanding attorneys at Holland 
& Knight with whom I have had the pleasure to work. I thank Secretary 
of the Senate Emily Reynolds and former Secretaries of the Senate, Gary 
Sisco and Jeri Thomson, as well as the Sergeant at Arms, Al Lenhardt, 
and former Sergeant at Arms, Jim Ziglar, all terrific and supportive 
bosses of mine. The Senate has indeed been fortunate to have such 
capable leadership in its officer ranks.
    Thanks, too, to Ernie Heuter, President of the National Legal 
Center for the Public Interest and the Federal Bar Association for 
their full support. Finally, my heartfelt thanks to the many fine 
commanders, officers, and soldiers of the United States Army, the 
professors at West Point, the University of Florida, Georgetown 
University, and the Judge Advocate General's Graduate School located at 
the University of Virginia, and the Sisters and teachers at St. John's 
and at Mercy High, both in Riverhead, NY.
    Mr. Chairman, my education and experience are highlighted in the 
information I have previously provided to the Committee, but I would 
like to share with you some personal insight in the way I approach life 
and how it might apply should I be confirmed. First, I try to follow 
the golden rule, instilled by my parents and faith, to do unto others 
as I would have them do unto me. Second, I try to live, work, and play 
by the ideals enshrined in my alma mater's motto: ``Duty, Honor, 
Country.'' Third, I am a firm believer in the fact, as Senator Warner 
often states, that there is no end to what we can accomplish if we work 
together as a team and not worry about individual glory.
    Mr. Chairman, should I be confirmed to serve as a judge on the 
Court of Appeals for Veterans Claims, I can assure you, this Committee, 
and the Senate, and those who come before the Court, that I will 
endeavor to give my best and to render decisions in a fair and 
impartial manner, based on the applicable law and facts in the case.
    I again thank you, Mr. Chairman and Members of the Committee, and I 
am prepared to answer any questions to the best of my ability.




[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


    Chairman Specter. Thank you very much, Mr. Kasold. Let us 
begin with your concept of the nature and extent of the Federal 
Government's obligation to the Nation's veterans and their 
survivors or dependents.
    Mr. Kasold. Sir, our Nation has always supported the 
veteran. President Lincoln, I think, said that it was a 
Nation's duty to care for the veteran who fought in wars and 
their families, and I fully support that view.
    Chairman Specter. The Court of the Veterans Claims allows 
non-attorney practitioners to appear and argue for claimants. 
Contrasting attorneys with non-attorney practitioners, how 
would that affect your proceedings and your ultimate 
adjudication of a case? Also include in that the so-called pro 
se litigants, those who represent themselves.
    Mr. Kasold. Sir, I do not think it would affect the 
ultimate adjudication at all. I believe this court was designed 
to ensure that the veterans receive the benefits that they are 
entitled to. I think that actually as a judge, your case and 
your workload might be easier when the claimant is represented 
by counsel or by the Veterans Service Organizations. But I 
think it is the duty of the judge to assess the facts, review 
the case, and ensure that those benefits that the claimant is 
entitled to are in fact awarded. So I do not think it would 
impact the end results at all.
    Chairman Specter. The judgeship is Article I as 
distinguished from Article III judges who have life tenure. I 
would be interested in your views as to what discretion as an 
Article I judge you would give to executive branch 
determinations contrasted with the approach of an Article III 
judge with an independence of Article III standing.
    Mr. Kasold. Sir, I do not think it would be any different. 
I have reviewed the hearings before this panel and Chief Judge 
Nebeker, the first chief judge of the court, I think addressed 
it the way I view it, that deference is given to an agency when 
it is interpreting its own organic legislation. Questions of 
law are determined de novo, and the legislation creating this 
court makes it clear that questions of fact are determined by 
the Board of Veterans' Appeals and overturned only when not 
substantiated fully.
    Chairman Specter. Would you hesitate to reverse a Veterans' 
Administration decision that is consistent with long-standing 
VA practice but is contrary to your best reading of the words 
of the statute or reasonable statutory interpretation?
    Mr. Kasold. No, sir. If the best reading of the statute was 
A, for example, I would not hesitate to overturn an 
interpretation that had B. I recognize that regulations that 
have been around for a long time are given certain weight, but 
I also recognize that this court is new. It has been around for 
about 12 years, and that many of the regulations in the 
Veterans' Administration have not had a judicial review. So all 
of that would factor into an evaluation of any interpretations.
    Chairman Specter. Would the potential cost of overturning a 
historical but arguably erroneous statutory interpretation 
enter your decisionmaking in such a case?
    Mr. Kasold. Sir, I do not think the cost of a decision 
based on clear reading of the statute would enter into a 
determination. If the statute is somewhat ambiguous, cost might 
be a consideration as to what was really meant by the statute. 
But if it is clear, cost would not enter into it.
    Chairman Specter. There is a long-standing principle, 
justice delayed is justice denied, and in many cases it does a 
veteran little good to prevail on a claim after years of 
decisions, appeals, remands, et cetera. Have you studied the 
scope of authority that veterans court judges have to sua 
sponte craft remedies? And in what sorts of cases, if any, 
should the veteran court judges directly award compensation to 
veteran claimants or remand the case to the VA to craft the 
appropriate remedy?
    Mr. Kasold. Sir, I would not say I have studied the scope 
of authority of the court to sua sponte award a particular 
remedy. I am aware that this is an appellate court. I am aware 
of its scope of review. I am also aware of, or at least my 
understanding of the legislation is that Congress intends for 
benefits to receive their benefits. Congress has directed the 
Government, through the Veterans' Administration, to assist the 
veteran in developing the facts necessary to support a claim. 
And Congress has directed the Secretary and the Board of 
Veterans' Claims to balance out--if it is evenly balanced, to 
give the benefit of the doubt to the claimant, and in your most 
recent legislation you directed the court to consider that 
requirement to have that balance.
    I think as a judge, the whole purpose for this court is to 
ensure that the veterans receive the benefits that they are 
entitled to. It would certainly be my personal goal to bring 
that about as quickly as possible. Whether or not the case gets 
remanded depends on the facts of the case; whether or not you 
can decide it on the facts before you and the law before you 
depends on the individual case.
    Chairman Specter. Public Law 107-330 provides that in 
deciding a case, the Court of Appeals must take into account 
the VA's application of the so-called ``benefit-of-the-doubt 
rule.'' What is your understanding of this requirement and how 
would you analyze the VA's compliance with the benefit of the 
doubt rule?
    Mr. Kasold. Sir, my understanding is that if you have a set 
of facts--and I do not mean one on one side and three on the 
other side, but just a set of facts that leave you in some kind 
of doubt, that benefit of the doubt is to go to the veteran in 
the award of the benefits. At the appellate level, I believe 
Congress has made clear that we are to take that into 
consideration, and in assessing the case, make a determination 
as to whether or not that benefit of the doubt has, in fact, 
been given to the claimant.
    Chairman Specter. With your 21 years of active duty in the 
U.S. Army, and the U.S. Senate for the last 7 years, do you 
believe that your almost 30 years of Government service might 
be seen by VA claimants as a cause for pro-Government bias? How 
would you deal with that perception if, in fact, you found it 
to exist?
    Mr. Kasold. I do not think it would be fair, but I 
recognize that some people may come with a view that an 
individual who has worked for the Government might be biased. 
If they were aware of my actual career, much of it in the JAG 
Corps for the Army, in that position you serve the Government 
at times and at other times you actually serve legal assistance 
in assisting the soldier. I actually believe most veterans 
would view somebody with that type of experience, JAG 
experience and having knowledge of the JAG Corps, would 
probably have a bias that you would get a fair hearing.
    But I believe the way you take care of the bias is by being 
fair and impartial in your dealings with claimants, from the 
hearings that might take place to writing a clear opinion based 
on fact and law so that they can understand, so that there are 
no biases to be taken from the opinion.
    Chairman Specter. Mr. Kasold, I know the answer to this 
next question, but I am going to ask it for the record. There 
is a large backlog of litigation and I know from our 6:30 a.m. 
meetings you are always there ahead of time. Are you prepared 
to work hard and be prompt and do your utmost in diligence to 
perform your duties and to get rid of the backlog and move very 
promptly on judicial decisions?
    Mr. Kasold. Yes, sir.
    Chairman Specter. Senator Thurmond made a comment in a 
hearing during my early days on the Judiciary Committee more 
than 20 years ago. There were two judges from Pennsylvania, two 
nominees, and Senator Thurmond said, ``If you are confirmed, do 
you promise to be courteous?'' That is translated into, if you 
are confirmed, do you promise to be courteous? I thought to 
myself that was a peculiar question because what are they going 
to say except yes? And not surprisingly, both nominees answered 
yes.
    Then Senator Thurmond said, ``the more power a person has, 
the more courteous the person should be.'' Translated into, the 
more power a person has, the more courteous the person should 
be. Whenever I am at a hearing for a judge nomination and 
Senator Thurmond is not present, and he had been on this 
Committee up until his term ended last January 3, when he is 
not here I always ask that question. I know you are about to 
promise to be courteous, right?
    Mr. Kasold. Yes, sir.
    Chairman Specter. But remember that once you have on that 
robe you have a great deal of power. Some of the lawyers are 
not going to suit your fancy. Some of them may not suit 
anybody's fancy. And especially since you will not have 
lawyers, you will be having non-lawyers represent people who 
will not be familiar with the litigation rules, and pro se, 
Latin for representing yourself. So bear that in mind. Many 
nominees whom I have given the Thurmond admonition are to be 
reminded later how helpful it is to think about that when they 
tend to be irritated, or out of sorts, or feeling a little 
above the reach of common people who do not have black robes.
    Mr. Kasold, I am delighted to see you here today. It has 
been a long struggle getting you here, for reasons which we do 
not need to discuss. But I am confident that your confirmation 
will proceed rapidly, notwithstanding the Estrada filibuster.
    Chairman Specter. That concludes the hearing.
    [Whereupon, at 4:08 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              

          Prepared Statement of Hon. Ben Nighthorse Campbell, 
                       U.S. Senator from Colorado
    Thank you, Mr. Chairman. I appreciate your convening today's 
hearing which will give us the opportunity to hear testimony from Bruce 
Kasold, nominee to be Judge, Court of Appeals for Veterans Claims, and 
John Nicholson, nominee to be Under Secretary for Memorial Affairs, 
Department of Veterans Affairs. I welcome both witnesses and look 
forward to their testimony.
    Mr. Kasold, I understand you have spent some time here on the Hill 
as Chief Counsel for the Secretary of the Senate and the Rules 
Committee and also have experience working with the Pentagon Credit 
Union. Your work reviewing benefit claims and issuing decisions on 
appeals for the VA will be an important part of the effort to expedite 
the claims process. Each veteran is entitled to fair and timely 
consideration of his or her appeal.
    And, Mr. Nicholson, I understand you are originally from Strubel, 
Iowa, which has a population of about 80 persons. That is even smaller 
than my town of Ignacio, Colorado. I think you will probably agree with 
me that lots of very good people come from the small towns of this 
Nation.
    Throughout my terms in the House and Senate, I have been especially 
interested in seeing that we honor the memory of those who have lost 
their lives serving in our Nation's wars. And, one of the best ways we 
can do that is to recognize and protect the sanctity of veterans' 
memorials. In fact, I have a bill in the Senate right now that would 
prohibit the desecration of veterans' memorials and permit guide signs 
to veterans' cemeteries on Federal aid highways.
    I am encouraged that the Department's study last year provided a 
nationwide review of conditions at our VA national cemeteries, and I am 
hoping that the increase in funding for the National Cemetery 
Administration will allow for some new cemeteries where they are 
needed.
    I have always supported the VA's efforts to do the absolute best 
they can with the money they are provided. This year, however, I am 
enormously concerned that the VA health care system is not currently 
able to meet the needs of our veterans. We have an obligation to help 
them get the care they need and deserve.
    Last month, I met with Secretary Principi to discuss the VA's 
enrollment cuts. Though he has had to step up to the plate to make some 
hard calls, I was encouraged by his commitment to our veterans. I 
believe our Department of Veterans Affairs is being run by someone who 
truly has the welfare of veterans at heart.
    I believe it is important that we quickly move ahead with these 
nominations and give the Secretary the best help possible in tackling 
the tough job ahead.
    Thank you, Mr. Chairman.
                               __________
   Prepared Statement of Hon. Jim Bunning, U.S. Senator from Kentucky
    Thank you, Mr. Chairman.
    I am glad this Committee is acting so quickly to fill vacant 
positions at the Department of Veterans Affairs and the Court of 
Appeals for Veterans Claims. When confirmed, these nominees will help 
fulfill our country's commitment to our veterans and improve the 
services the government provides.
    General Nicholson, I met with you last week and we had a good and 
frank discussion. I wish you the best in your new position, and I urge 
you, as strongly as possible, to keep this Committee informed and to 
always speak the truth--good or bad.
    Mr. Kasold, I congratulate you on your nomination. You will hold an 
honored and sacred position. I know this because one of my sons is a 
Federal judge, and I know the rigors of the job. I trust that once 
confirmed, you will always be mindful of the reason you were nominated, 
to serve our Nation's veterans.
    I wish both of you the best. Thank you, Mr. Chairman.
















NOMINATIONS OF ALAN G. LANCE, SR., AND LAWRENCE B. HAGEL TO BE JUDGES, 
               U.S. COURT OF APPEALS FOR VETERANS CLAIMS

                              ----------                              


                         TUESDAY, JUNE 17, 2003

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:37 p.m., in 
room SR-418, Russell Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Campbell, Craig, and Crapo.

      OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN, 
                 U.S. SENATOR FROM PENNSYLVANIA

    Chairman Specter. Good afternoon, ladies and gentlemen.
    The Veterans' Affairs Committee will now proceed with the 
nominations of Mr. Alan G. Lance of Idaho and Mr. Lawrence B. 
Hagel of Virginia.
    We have with us two distinguished senators from Idaho, and 
it is a great pleasure for me to yield to my colleague, Senator 
Larry Craig, the senior Senator from Idaho.

               STATEMENT OF HON. LARRY E. CRAIG, 
                    U.S. SENATOR FROM IDAHO

    Senator Craig. Mr. Chairman, thank you very much. Both 
Senator Crapo and I are pleased to be before the Committee 
today to introduce the Committee to Al Lance, President Bush's 
nominee for the United States Court of Appeals for Veterans 
Claims.
    I think it is because of Al's extensive experience, both as 
an Attorney General of the State of Idaho, a member of the 
Idaho Legislature, and for years, a man who has worked his way 
up through the ranks of veterans organizations to become a 
National Commander of the American Legion, that President Bush 
felt he was eminently qualified to serve in this capacity.
    I can speak for Al and give him, I think, the highest 
praise that any one person can give another and say that he is 
my friend and I have had the privilege of working with him over 
the years to know him and to trust him, to respect his 
positions, both his legal positions as Attorney General of the 
State of Idaho.
    And then I watched him perform marvelously well on behalf 
of veterans across this Nation as he served as Commander of the 
American Legion.
    Al and his family, and I and my wife, Suzanne, have known 
each other a good number of years. I respect him highly and I 
was extremely pleased that President Bush would nominate him 
and very pleased, Mr. Chairman, that you now have him before 
our Committee.
    Al Lance will serve this Nation and the veterans of this 
Nation very, very well in the capacity he has been asked to 
serve in.
    Thank you.
    Chairman Specter. Thank you very much, Senator Craig, for 
coming today and for making the recommendation.
    Senator Crapo?

              STATEMENT OF HON. MICHAEL D. CRAPO, 
                    U.S. SENATOR FROM IDAHO

    Senator Crapo. Thank you very much, Mr. Chairman. I, too, 
can give Al Lance my strongest recommendation and endorsement 
to the Committee.
    As a matter of fact, as I was walking over here from my 
office, I was thinking about the time I have spent with Al 
Lance. And this is one of those candidates for an office who 
come here to Washington for their hearing for whom I can 
honestly say I know him very well. We served in the Idaho 
Legislature together. When he decided to leave the legislature 
and run for Attorney General, I think I had already left and 
run for Congress or it was right in the same time frame.
    We worked with each other on our respective campaigns and 
on behalf of many, many other candidates in Idaho for their 
campaigns. He has been very extensively involved in Idaho 
politics.
    I am an attorney, as you know, and Al Lance as our Attorney 
General has worked very closely with me on many, many issues 
that have involved the State of Idaho and the Federal 
Government in terms of protecting States rights and standing up 
for the interests of the State of Idaho.
    As Senator Craig has so well stated, Al has, throughout all 
of that time, been an unequaled advocate for our veterans. I 
can honestly say that, as Larry said, he is a friend, and that 
the President of the United States could not have made a better 
selection.
    Chairman Specter. Thank you very much, Senator Crapo.
    You come very, very highly recommended, Mr. Lance, and your 
background is outstanding. I do not want to prejudge your 
nomination before at least I have a chance to hear from you, 
but it is always supportive to have both United States 
senators, and especially when one of the senators, Senator 
Craig, is a Member of this Committee.
    It seems to me on your career path you might have chosen to 
be headed to the U.S. Senate. But this nomination and 
confirmation is not a detour necessarily. It may be in line. 
But only time will tell. I say that only in jest. You have got 
two young vigorous senators here.
    Senator Crapo. We were trying to figure out which one of us 
you were suggesting he knock off.
    Chairman Specter. I saw that contemplation, Senator Crapo. 
I know the feeling exactly, and that is why I detoured on my 
line of diversion.
    I have a strong suspicion that Senator Craig and Senator 
Crapo have other duties this afternoon, other things they have 
to attend to. So they do not need me to tell them they are free 
to leave. Neither is under subpoena to be here.
    Senator Craig. I am going to change seats and listen to Mr. 
Lance's testimony.
    Chairman Specter. I have deferred my comments until we 
heard from two introducing senators because my responsibilities 
require me to stay, but at least Senator Crapo is moving onto 
other duties.
    I welcome both Mr. Lance and Mr. Hagel to this hearing. Let 
me begin by asking you, Mr. Lance, to introduce any members of 
your family who are present.
    Mr. Lance. Thank you, Mr. Chairman, and thank you for the 
opportunity. My wife of 34 years, originally from Sioux Falls, 
South Dakota, Sherrie. Our daughter, Lisa, who graduated from 
Willamette Law School, is a member of the Idaho Bar, and works 
for the Department of the Interior as an attorney. Lisa is a 
lawyer and works for them there. And recently, Mr. Chairman, 
last month, she presented us with the newest member of our 
family, my son-in-law, Brian Rund. Brian is a fine young man 
who is finishing his master's program here at American 
University in Washington, DC. Brian and Lisa live in Arlington, 
Virginia.
    Our oldest son, Mr. Chairman, Alan Jr., lives in Las Vegas, 
Nevada. He is not with us as a result of his conflicting 
schedules.
    And last, but certainly not least, our youngest son, Luke 
who lives in Sacramento, California, and attends American River 
College as a business student. And when not engaged in his 
studies, he is a staff member for the Department of Justice 
Litigation Division of the Office of the Attorney General of 
California.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you.
    Mr. Hagel, would you care to introduce any members of your 
family who may be present?

STATEMENT OF HON. LAWRENCE B. HAGEL, NOMINEE TO BE JUDGE, U.S. 
              COURT OF APPEALS FOR VETERANS CLAIMS

    Mr. Hagel. Thank you, Senator.
    Accompanying me today is my wife, Virginia, of 30 years and 
my daughter, Jennifer, who has traveled here today from 
Chicago, where she is a member of the national touring company 
of the Second City Theatre.
    My son, Jack, who has also traveled here from Rhode Island 
He is a reporter with the Associated Press.
    My son, Joseph, is also here. Joseph just graduated from 
high school in Fairfax, Virginia, and is headed next year on a 
fellowship, under the auspices of the Rotary Club, to study in 
Argentina for a year.
    My brother, Randy, is here with his family, his wife Donna 
and their two children, Laura and John.
    I also have a number of colleagues from the Paralyzed 
Veterans of America here with me. And good friends.
    [The prepared statement of Mr. Hagel follows:]
     Prepared Statement of Lawrence B. Hagel, Nominee to be Judge, 
               U.S. Court of Appeals for Veterans Claims
    Mr. Chairman, thank you, and the Members of this Committee for 
convening to consider my nomination to what I believe is an extremely 
important position in our government.
    The U.S. Court of Appeals for Veterans Claims first came to my 
attention in 1989 while I was serving on active duty as a Marine Corps 
Judge Advocate. News of the Court, then called the U.S. Court of 
Veterans Appeals, came by way of an article in a legal publication 
announcing the passage of the Veterans' Judicial Review Act.
    Reading the article, I was struck with the significance of this 
event and of its potential impact on the administration of veterans 
benefits determinations. As I reflected on the newly enacted statute 
and gathered more information on the administration of the veterans 
benefits system, I came to realize that my background as a lawyer 
combined with my years of military service might be put to best use 
advocating for veterans before this new court. This course particularly 
appealed to me because, during my years in the Marines, I had witnessed 
so many exceptional examples of sacrifice and of selfless service to 
our country by young Americans. There appeared to be few career choices 
better than helping these veterans to obtain benefits earned by their 
dedicated service to America. Consequently, I set out to seek such a 
position, eventually leaving the Marine Corps to accept a position as 
counsel with the Paralyzed Veterans of America, joining PVA in January 
1990.
    From this vantage point I have appeared before the Court on behalf 
of veterans and Veterans Service Organizations, served on the Court's 
Rules Advisory Committee and participated in its judicial conferences. 
But most importantly, I have seen firsthand the impact of the Court on 
the lives of individual veterans and on the system of benefits designed 
to serve them. In short, over the past thirteen and one-half years, I 
have developed a deep appreciation for the significance of the Court's 
work. I do not take lightly the responsibility of the position for 
which I have been nominated.
    This Nation has provided veterans of its armed services with a wide 
range of benefits. Additionally, Congress has enacted a number of 
procedural safeguards governing the adjudication of applications for 
those benefits. In simple terms, the Court's job, as an independent 
reviewer of agency action, is to ensure, within its assigned scope of 
review, that the laws enacted by Congress are followed. In the process, 
each veteran, whether prevailing before the court or not, must be 
treated fairly and with dignity. If confirmed and appointed, I pledge 
my best efforts to accomplish this.
    In considering my qualifications for this position, I ask the 
Committee to be cognizant not only of my service to veterans and 
Veterans Service Organizations, but also of my significant involvement 
in other legal issues, including representing the United States in a 
number of capacities. This experience, which involved appearing on 
behalf of the government in both criminal and civil matters and 
advising government officials regarding legal responsibilities, is 
approximately equal in time to that spent representing veterans. My 
work as a government counsel will, I believe, help me to have a 
balanced perspective on the legal issues faced by the Court.
    In closing, I want to thank the Committee for the opportunity to 
present this statement, and would be happy to answer any questions the 
Members of the Committee may have.


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

     Response to Written Questions Submitted to Lawrence B. Hagel, 
     Nominee to be Judge, U.S. Court of Appeals for Veterans Claims
    Question 1. The issue of statutory construction and the so-called 
``plain meaning'' rule, has been pivotal in many critical cases before 
the U.S. Court of Appeals for Veterans Claims.
    A. Would you hesitate to reverse or remand a decision by the 
Department of Veterans Affairs (VA) that is consistent with long-
standing VA practice--but is contrary to your best reading of the 
express words of a statute?
    Response. No. The age of a VA practice, or regulation for that 
matter, is not the test of its validity. This is especially true since 
the practices and regulations of VA until 1988 were not generally 
subject to judicial review. If, however, the language of the statute 
was unclear or subject to more than one reasonable interpretation, 
consideration of such matters as legislative history and consistent 
agency interpretation would be proper.

    B. Would your judgment on such a question be influenced by your 
conception of the ``common sense'' of the VA's historical 
interpretation?
    Response. If the VA interpretation conflicted with the plain 
language of the statute, its ``common sense'' would not be a basis for 
upholding the VA interpretation.

    C. How about your sense of what is the preferable or most logical 
policy?
    Response. No. In my view it is not the place of the Court to 
determine what is good policy. Establishment of policy is the 
responsibility of Congress and VA when VA is acting within the limits 
of its authority to implement laws passed by Congress.

    D. Would the potential cost of overturning a historical--but, 
arguably, erroneous--statutory interpretation enter into your 
decisionmaking in such a case?
    Response. The cost that VA may incur is not a proper element of 
making a decision regarding the validity of a particular policy or 
regulation.

    Question 2. The Committee receives extensive mail expressing a 
common theme: justice delayed is justice denied, and it does a veteran 
limited practical good to prevail on a claim if it takes years of 
decisions, appeals, and remands to ultimately prevail.
    A. Do you think it takes too long for a claim to work its way 
through the administrative and judicial review process?
    Response. At least for certain cases, yes. I believe there is 
unanimity in both the veterans and VA communities on the response to 
this question. The Secretary has expressed his personal concern 
regarding this issue, and the Veterans Service Organizations have 
expressed this concern to Congress for some time. It is, however, 
important that the claim be adjudicated correctly. Consequently a focus 
on speeding up the adjudication process must not be achieved by unduly 
sacrificing the quality of the decision or important statutory rights 
of the claimant.

    B. If so, do you have any proposed remedies the Committee might 
consider to speed up the process?
    Response. Finding the appropriate balance between speed and quality 
is at best a difficult task. I do not believe there is any single 
solution to resolve this problem, which involves the quality of the 
initial agency decision, the handling of remanded decisions, and the 
structure and authority of the appellate agencies.
    Several individuals and organizations (including VA), have offered 
remedies, some of which are highly controversial. Properly constructed 
and evaluated demonstration projects designed to test the effect that 
some of these suggestions have on the speed and accuracy of claims 
processing may provide sufficient empirical data upon which to base 
appropriate legislation or changes in practice and to convince these 
important critics of the value of change.

    C. Do you know the extent of the authority of a judge in the U.S. 
Court of Appeals for Veterans Claims to, sua sponte, craft a remedy in 
a given case?
    Response. The jurisdiction and scope of review of the Court are 
proscribed by the enabling legislation. For matters that the statute 
reserves to the Secretary, those cases must be remanded for the 
Secretary to exercise his judgment. Subject to the judicial policy 
against issuing advisory opinions, I do believe, however, it is helpful 
for the Court to answer completely where possible the legal questions 
presented to it.

    D. In what sorts of cases, if any, can that Court directly award, 
e.g., compensation to veteran-claimants?
    Response. There are very few cases where the Court can award 
benefits directly to the veteran. In order for the Court to do so the 
law would have to clearly dictate the right to a benefit and the 
evidence in the case would need to be fully developed. There are some 
cases, however, where Court rulings guarantee that the veteran will 
ultimately receive some benefit. I can think of at least two 
possibilities. One is a direct finding that a particular disability is 
service connected. The second would be a situation where the denial of 
benefits turned solely on the application of a regulation that the 
Court found to be contrary to law, e.g., Gardner v. Derwinski. While 
these findings will ultimately result in benefits, the individual case 
would still have to be remanded to the VA to adjudicate the level of 
disability and the amount of retroactive benefits due.

    E. Should the Court have that authority?
    Response. In general, I do not believe that the Court is in the 
best position to determine the level of disability or to calculate the 
precise value of an award of a particular benefit to a veteran. 
Consequently, when entitlement has been established as discussed in the 
previous answer, the implementation of that decision in a particular 
case lies within the expertise of the Secretary, subject to the 
appellate process.

    F. When must the Court remand a case and allow VA to craft the 
appropriate remedy?
    Response. When proper adjudication of the case requires action 
committed by statute to the Secretary.

    G. Do you agree with these rules?
    Response. Yes, in general. But I do believe the Court should do 
what it can in its decisionmaking to reduce the possibility that the 
case will return to the BVA or the Court on a subsequent appeal.

    H. What do you think the rules governing such matters should be?
    Response. If the Court is truly to be viewed as an appellate court, 
I believe the rules as they exist are appropriate. If Congress wanted 
to expand the ability of the Court to make more decisions that would 
result in the direct award of benefits by the Court, it would need to 
change the standard of review to permit de novo review of factual 
matters. I do not particularly favor this.

    Question 3. As the General Counsel of Paralyzed Veterans of America 
(PVA), you've served with and supervised other attorneys, some of whom 
will presumably appear before you if you are confirmed.
    A. Do you think their clients might be perceived as having an 
unfair advantage?
    Response. It is not possible for me to know the perceptions of 
others. If confirmed, it would be my responsibility to judge each case 
on its own merits applying the appropriate law to reach a decision. 
This is what I intend to do. In time, those interested will review the 
decisions of which I have been a part and hopefully judge that I have 
been true to this aspiration.

    B. Would the fact that a PVA staff member is serving as counsel to 
a claimant be cause for recusal?
    Response. No, that fact alone would not be sufficient cause for 
recusal.

    Question 4. Since 1992, you have been a member of the Rules 
Advisory Committee of the Court of Appeals for Veterans Claims.
    A. Please describe the work you've done on the Committee.
    Response. My term with the Committee ended on June 30, 2003. Over 
the eleven years I served on the Committee, I offered suggestions 
regarding rule changes, considered and debated rule changes offered by 
others, performed research for consideration by the Committee members 
regarding proposed rule changes and drafted proposed final language of 
proposed rule changes adopted by the Committee.

    B. Please describe changes in the Rules of Practice that have been 
made since you've been a member of the Committee.
    Response. It is difficult to recall, in absolute detail, all of the 
rule changes that have taken place during my eleven years as a member 
of the Committee. However, some of those changes involved:
     Introduction of the concept of limited appearance to 
enable representatives to evaluate cases for representation.
     Permitting the filing of various papers by facsimile.
     Time limits for filing various papers with the Court.
     Changes to the form of papers and expansion of the minimum 
length of briefs to be filed with the Court.
     Standards for granting extensions of time to file required 
documents with the Court.
     Rules evidencing date of mailing of documents to the 
Court.
     Simplification of language to accommodate pro se 
appellants.
     Citation rules regarding single judge opinions and other 
nonprecedential authority.
     The design and requirements of various forms included in 
the appendix to the rules.

    C. Has the Court been responsive to the recommendations of the 
Rules Advisory Committee?
    Response. Rule changes suggested by the Committee are reviewed and 
discussed by the Board of Judges. While the Committee is not privy to 
those discussions, the Court has adopted a number of the changes 
recommended by the Committee. This causes me to believe that the Court 
gives serious consideration to Committee recommendations.
    Question 5. In one of your responses to the Committee's 
Questionnaire for Presidential Nominees, you answered that you 
currently receive monthly disability compensation from VA for a 
service-connected disability, and that your mother receives Dependency 
and Indemnity Compensation from VA as a result of your father's death 
on active duty. I do not want to inquire into the personal details of 
either your claim or your mother's. But I am interested in learning 
whether you or your mother were forced to gain unwanted personal 
experience in the appellate mechanisms of the claims adjudication 
process.
    A. Did you or your mother have to appeal a VA Regional Office 
denial of your claims?
    Response. No.

    B. How far up the appellate ladder did you or your mother have to 
go, if at all, before your claims were satisfactorily resolved?
    Response. No appeal was filed in either case.

    C. What lessons, if any, did you take from that experience to your 
work as a veterans' advocate?
    Response. Both my mother and I were represented by non-lawyer 
service officers of Veterans Service Organizations. In addition, I 
represented my mother in one particular part of her claim. My 
experience in both situations has led me to believe that a veteran is 
best served to have some knowledgeable representative assist in the 
prosecution of the claim at the agency of original jurisdiction.

    D. What lessons would you take to your work on the bench?
    Response. Having experienced the claims process as a claimant and 
as a representative, if confirmed, I believe I would have an 
appreciation for obstacles facing claimants unfamiliar with VA as well 
as the complexities faced by VA adjudicators.

    Question 6. In your article, ``Five Years Under the Veterans' 
Judicial Review Act: The VA is Brought Kicking and Screaming Into the 
World of Meaningful Due Process,'' 46 Maine Law Review 43 (1994), you 
wrote there is a need for more trained advocates who were knowledgeable 
in the law of veterans' benefits.
    A. Is a lack of properly trained advocates still a problem today? 
If so, how can it be addressed?
    Response. This remark referred to the high pro se rate the Court 
was experiencing at the time the article was crafted and the limited 
availability of properly trained or resourced advocates to represent 
the interests of veterans before the Court. Since 1994, the Veterans 
Consortium Pro Bono Program and the National Organization of Veterans 
Advocates have made great strides in increasing the number of advocates 
qualified to represent veterans. The Veterans Consortium alone, with 
the strong support of four Veterans Service Organizations, has trained 
over 1,700 lawyers licensed in 49 states, the District of Columbia and 
the Commonwealth of Puerto Rico. While the initial pro se rate remains 
high, a much greater number of veterans whose cases merit it are now 
afforded representation than at the time of this article.
    For the reasons described in the referenced article, adequate 
representation of veterans remains an important issue and warrants 
constant monitoring.

    B. What is the Court's role in addressing that problem?
    Response. By its active role in the creation of the Veterans Pro 
Bono Program and its strong continued support, the Court has taken 
steps to address this issue. The Court should continue to be sensitive 
to this issue and should be alert to ensure that significant 
precedential decisions are not issued without the benefit of full 
representation on both sides of the issue.
    Chairman Specter. Thank you very much, Mr. Hagel. If you 
two gentlemen would stand for the administration of the oath.
    [Witnesses sworn.]
    Chairman Specter. You may be seated.
    Mr. Lance, do you care to make an opening statement?

  STATEMENT OF ALAN G. LANCE, SR., NOMINEE TO BE JUDGE, U.S. 
              COURT OF APPEALS FOR VETERANS CLAIMS

    Mr. Lance. Mr. Chairman and Members of the Committee, let 
me thank you for having this hearing.
    Let me extend my thanks as well to Mr. Tuerk and the staff 
members for their assistance during the last few weeks in 
getting prepared for this hearing today.
    In addition, I would like to thank our Congressional 
delegation, Senator Craig, Senator Crapo, Mike Simpson, and 
Congressman Butch Otter, for their continuing support, along 
with our Governor Dirk Kempthorne, who is a former colleague of 
yours.
    In addition, my thanks to Thorpe Orton and Janet Carter and 
Attorney General Lawrence Wasden of the Office of the Attorney 
General of the State of Idaho, for assisting me in locating 
certain documents and providing them to the Committee.
    Let me also thank, Mr. Chairman, my former colleagues, the 
Attorneys General of the United States, all of whom have 
endorsed me for this position, with special thanks going to 
Attorney General Mike Fisher of Pennsylvania and former 
Attorney General Bob Butterworth of Florida for coauthoring the 
letter of endorsement and representation.
    Mr. Chairman, my ambition and my livelihood for the last 30 
years has been devoted to the law as a means of making a 
living. For the last quarter of a century my passion has been 
serving veterans and I would like to continue to do so.
    Thank you.
    [The prepared statement of Mr. Lance follows:]
    Prepared Statement of Alan G. Lance, Sr., Nominee to be Judge, 
               U.S. Court of Appeals for Veterans Claims
    I want to thank Chairman Specter, Senator Graham, and the Committee 
for holding this hearing today to consider my nomination to serve as a 
judge on the United States Court of Appeals for Veterans Claims. It is 
an honor to appear before you.
    For more than 30 years, I have been dedicated to the Armed Forces 
of the United States and the brave men and women who served our 
country. During my career, I have been a soldier, an attorney, a 
veterans' advocate, and a political leader. I am committed to the 
issues that are important to our Nation's veterans. Promises were made 
to them in return for their service, and I have fought to make certain 
those promises are kept within the parameters of the law.
    After graduating from South Dakota State University as an Army 
Scholarship recipient, Distinguished Military Student and Distinguished 
Military Graduate, I was commissioned in the Regular Army in June 1971. 
I attended the University of Toledo School of Law, where I was member 
of the Law Review. I graduated in December 1973 and was admitted to the 
Ohio Bar on April 27, 1974. I then matriculated from Judge Advocate 
General's School at the University of Virginia in 1974. My assignments 
included: Command Claims Officer, 1974-75; Defense Counsel, 172nd 
Infantry Brigade, Ft. Richardson, AK, 1974-77; Chief of Criminal 
Defense, 172nd Infantry Brigade, Ft. Richardson, AK, 1975-76; Military 
Magistrate, 172nd Infantry Brigade, Ft. Richardson, 1975-76; 
Prosecutor, Federal District Court of Alaska, Anchorage, AK, 1976-77; 
Command Judge Advocate, Corpus Christi Army Depot, Corpus Christi, TX 
1977-78. Prior to my honorable discharge as a Captain in 1978, I was 
honored to receive a National Defense Service Ribbon and the Army 
Commendation Medal.
    I became active and involved in veterans issues shortly after 
discharge. After moving my family to Meridian, Idaho in 1978, I joined 
American Legion Post 113, where I served as Post Commander on four 
separate occasions. My involvement with the American Legion included 
several positions at the local, state, and national levels, including: 
Department of Idaho State Judge Advocate, 1981-88; Department of Idaho 
State Commander, 1988-89; Ex-Officio member of the National POW/MIA 
Committee, 1996-1999; Alternate National Executive Committeeman, 1992-
94; National Executive Committeeman, 1994-96; Chairman, National 
Foreign Relations Commission 1996-97; National Legislative Consultant, 
1998-99; Chairman, National Advisory Committee, 2000.
    My fellow American Legion members elected me to serve as the 
National Commander of the American Legion for 1999-2000. The American 
Legion provides representation to over one-fifth of the veterans who 
make claims for benefits with the Department of Veterans Affairs and 
Board of Veterans' Appeals. My long service in the American Legion has 
provided me with a detailed background and familiarity with the issues 
that are so important to our veterans, and that routinely are raised in 
cases before the United States Court of Appeals for Veterans Claims.
    I have also enjoyed a long and varied career as a practicing 
attorney. I operated a private law firm in Meridian, Idaho from 1978-
94. Meridian was a growing, but small, community during that time 
period, and my law practice encompassed a variety of areas. I also 
stayed active in community, serving as President of the Meridian 
Chamber of Commerce and forming a new Rotary Club chapter.
    I also became active in state politics. In 1990, I was elected to 
serve as a member of the Idaho House of Representatives. After one term 
in the House, my colleagues elected me to serve as the House Majority 
Caucus Chairman. I served in the Idaho House of Representatives for two 
terms, from 1991-94, with assignments on the Committees on State 
Affairs, Judiciary, Rules and Administration, Transportation and 
Defense, and Ways and Means.
    In 1994, I was elected to serve as Idaho's Attorney General. The 
Attorney General is a member of the executive branch and is the chief 
legal officer of the State. The Attorney General is also assigned the 
constitutional duty of managing the State's endowment lands as a member 
of the State Board of Land Commissioners. I was also active in the 
National Association of Attorneys General, serving on the Executive 
Committee, and I was also elected to serve as the Chairman of the 
Conference of Western Attorneys General from 1999-2000. I am honored to 
have received the recommendation of all of my fellow Attorneys General 
for this nomination. The people of Idaho reelected me to serve as their 
Attorney General in 1998, and earlier this year, I left office as the 
longest serving Attorney General in Idaho history.
    One of my accomplishments as Attorney General involved resolution 
of a lawsuit that the State of Idaho filed against the United States 
Department of Veterans Affairs (VA). The lawsuit involved a proposed 
reduction of benefits to the residents of the State Veterans' Home in 
Lewiston, Idaho. The VA eventually recognized its error and the matter 
was resolved in favor of the State. This lawsuit benefited veterans and 
State Veterans' Homes across the country.
    The reason I seek your confirmation of my nomination to serve as a 
judge on the United States Court of Appeals for Veterans Claims is 
because I am committed to serving those who served in our Armed Forces. 
This court was created in 1988 to deal with veterans' issues involving 
disability and survivor benefits, education benefits, life insurance, 
home loan foreclosures, and waivers of indebtedness. This Committee 
certainly knows how important these issues are to the men and women who 
served, and you are also, no doubt, aware that the caseload of this 
court has almost doubled over the last 10 years. It is vitally 
important that this court be fully staffed so that these issues are 
resolved in a timely and regular fashion. As an attorney committed to 
the rule of law and quite familiar with interpreting legislation and 
legislative intent, and as a long-time veterans advocate, I will be 
dedicated to the mission of this court so that claims are resolved in a 
legal, fair, and uniform manner.
    I also recognize that a judge on this court must understand the 
relationship between the Secretary of Veterans Affairs, the Board of 
Veterans' Appeals, the Court of Appeals for Veterans Claims, the Court 
of Appeals for the Federal Circuit, and the Supreme Court of the United 
States. When cases are remanded, the directives must be followed. Each 
of these entities plays a vital role in the uniform body of veterans' 
benefits law, and all of them must work together in order to resolve 
cases in a timely and reliable manner.
    In conclusion, I want to once again thank Chairman Specter, Senator 
Graham, and this Committee for holding this hearing. My service in the 
United States Army led me to become an active member of the American 
Legion for over 25 years. I believe my record of service and commitment 
to our veterans and the issues that are important to them will serve me 
well if I am confirmed to this court. More importantly, I believe my 
record will be a benefit to the constituents of this court and the 
entities that Congress has created and assigned duties to implement our 
veterans' benefits laws. I thank you and ask for your favorable 
consideration of my nomination to the United States Court of Appeals 
for Veterans Claims.


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairman Specter. Thank you very much, Mr. Lance.
    In your resume there is a notation of your service as 
National Commander of the American Legion which is a very 
important position. In that role, you obviously have had the 
obligation as an advocate for veterans interests. When you 
serve in a judicial capacity you are the arbiter, the umpire.
    Would you comment on your approach to that role and the 
difference which you see with the assurances that you can 
provide to this Committee that you will be able to shed your 
role, so to speak, of advocate to be an impartial arbiter?
    Mr. Lance. Thank you, Mr. Chairman, I will.
    Mr. Chairman, I think that those who represent the American 
Legion who are here today can vouch for the fact that I will be 
fair and impartial. The obligation of a judge of this court is 
to the Congress of the United States, as well as to the 
taxpayer, as well as to the executive branch and the Secretary. 
I would intend to fulfill that obligation in trying to service 
veterans and to provide them justice in their claims.
    If anything, Mr. Chairman, I might hold the American Legion 
advocates, who account for about 21 percent of the cases before 
the Board of Veterans' Appeals, to a higher standard than the 
other colleagues.
    I would assure you, Mr. Chairman, and others, that I would 
fulfill my oath in office to be fair and impartial irrespective 
of whether or not the veteran were represented by private 
council or one of the VSOs.
    Chairman Specter. Mr. Hagel, I think it most expeditious, 
since there are overlapping questions, to deal with the 
nominations jointly.
    And you, like Mr. Lance, have had an advocacy role as 
General Counsel for the Paralyzed Veterans of America. What 
assurances can you provide that in your new judicial role you 
will be able to exercise the imperatives of the different 
perspective?
    Mr. Hagel. Thank you, Senator. In addition to the almost 14 
years that I served in the General Counsel's Office, both as 
Deputy General Counsel and General Counsel of the Paralyzed 
Veterans of America, I have indeed represented veterans and 
their interests and I am proud of that.
    But almost for an equal amount of time, as the information 
I submitted to the Committee notes, I have represented the 
interest of the Government in various capacities. I understand 
the issues on both sides of the fence, if you would.
    The responsibility of a judge is to know the law, to read 
the law, to apply the law to the facts of the particular case. 
That is what I would intend to do if I were confirmed by the 
Senate.
    Chairman Specter. Mr. Hagel, let me begin with you on the 
next general question, and that is with respect to the 
deference, if any, that an appellant tribunal should give to an 
executive branch agency's findings of fact in deciding claims 
for benefits from that agency. Is there any difference in 
deference which you would give to an Article 1 court, 
contrasted with the deference to an Article 3 court?
    Mr. Hagel. No, Senator, I don't think there would be any 
appreciable difference in fact-finding. I think the statute is 
clear that the court must review findings of fact made by, in 
this case, the Board of Veterans' Appeals, under a clearly 
erroneous standard and that is what I would apply.
    Chairman Specter. Mr. Lance, with all of your extensive 
experience, do you place any credence in the complaint that is 
heard from time to time about Article 1 courts serving a little 
too closely to the branch that they are a court of, contrasted 
with the life tenure which is accorded to Article 3 judges? Is 
there anything to it that there is a little partiality, a 
little administrative control sometimes that creeps into the 
Article 1 courts?
    Mr. Lance. Mr. Chairman, thank you.
    No, not in my opinion. The criticism is made, the Chairman 
is correct, you hear that criticism periodically. But in 
reviewing the cases that at least I have reviewed of the U.S. 
Court of Appeals for Veterans Claims, it is clear to me that 
they do their level best to apply the law, are not as closely 
affiliated to the VA or the BVA, as some would suggest that 
they are, in terms of applying the law fairly and uniformly and 
executing and exercising those mandates as provided by 
Congress.
    So in response, Mr. Chairman, no, I do not give any 
credence to that complaint.
    Chairman Specter. There are many more questions which I 
have, but I have taken some time, now let me yield to my 
distinguished colleague, Senator Campbell.

          STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, 
                   U.S. SENATOR FROM COLORADO

    Senator Campbell. Thank you, Mr. Chairman.
    First, let me say that I have read the backgrounds on both 
our nominees. They are very highly respected, well qualified, 
fine families and they have done a great job in the jobs they 
have already finished before they came here.
    And I would think that because of that strong support and 
no real vocal opposition that they would not have any problem 
at all getting through the process. I am sorry to say, however, 
we have seen other nominees, at least one, to the same court 
being held up, as you know, Mr. Chairman. I am sorry that it 
has become sort of a partisan issue, a lot of our nominees that 
are being held up, as you probably know.
    I just would hope you do not get discouraged. This is not 
an easy process. And when you have 100 senators, about a third 
of whom are running for president themselves, and all of the 
rest of them are a bunch of flaming eagles, too, it is very 
difficult to get anything through.
    I just would hope that you are in it for the long run and 
you do not get discouraged and go home. And I hope your 
families will stick it out with you, too.
    Thank you, Mr. Chairman. I have no questions.
    Chairman Specter. Thank you very much, Senator Campbell.
    The Court of Veterans Appeals allows non-statutory 
practitioners to appear and argue cases for claimants. When I 
first joined the Judiciary Committee, Senator Strom Thurmond 
was the Chairman. And at one of the first hearings, he asked 
two nominees from Pennsylvania if they promised to be 
courteous. And that is translated into do you promise to be 
courteous.
    And I thought to myself that really was not a very erudite 
or piercing question because what could the nominee do but say 
yes. The nominees, Judge Caldwell and Judge Mannesmann, 
appeared that day, this was 1982.
    And then Senator Thurmond said, ``The more power a person 
has the more courteous a person should be.'' Translated the 
more power a person has, the more courteous the person should 
be.
    And having practiced law for some time, I have noted the 
tremendous authority of the black robe. Having learned a good 
deal from Senator Thurmond, that being one of the items, 
whenever I am at a confirmation hearing I ask the question. But 
I think that is something which I will not ask you if you 
promise to be courteous because I know the answer.
    I think that is something which ought to be in your mind at 
all times. It is very, very easy to be out of sorts and the 
power is just overwhelming. People like Senator Campbell and 
Senator Craig and Senator Crapo and I have to, at least 
sometimes, be deferential to voters. But judges who have either 
fixed terms, 15 years or life, have great temptation to be a 
little less than courteous.
    And many, many people who have been confirmed years after 
the fact have said, ``I remember when you mentioned to be 
courteous and I just want you to know I have been courteous.'' 
I consider no attribute of a judge more important than being 
courteous.
    And you might be tested when you have some of these non-
attorney practitioners appear before you or people who appear 
pro se before you, that is representing themselves. And you 
also might be tempted when some lawyers appear before you, 
because there have been known occurrences where lawyers are not 
too relevant or responsive or professional in their approach.
    So I would ask you to make a comment about what special 
consideration you would give to the non-attorney practitioners 
or the pro se litigants who appear before you.
    Mr. Lance?
    Mr. Lance. Thank you, Mr. Chairman.
    I think it is correctly pointed by the Chairman that this 
court, given the number of pro se litigants, I believe 52 
percent of all cases before the court start out pro se and that 
number dwindles back down to 35 percent.
    But it is very difficult, as the Chairman is aware, to deal 
with advocates who are advocating their own case and to have to 
tell them in a polite, courteous, and professional manner that, 
in fact, maybe their cause of action is not as strong as they 
perceive it to be.
    I believe that I can do that, Mr. Chairman. In my capacity 
as National Commander, of course, I came under the same types 
of conditions and circumstances as the Chairman has described. 
I will promise you, Mr. Chairman, and all the veterans in this 
room and the veterans throughout the United States that I will 
be courteous.
    Chairman Specter. Are you going to give a similar answer, 
Mr. Hagel?
    Mr. Hagel. Yes, Senator.
    Chairman Specter. OK, gentlemen.
    Senator Campbell. There is a moral in that story, Mr. 
Chairman.
    Chairman Specter. Bear it in mind.
    Mr. Lance, in response to the Committee's supplemental 
questionnaire, you identified two organizations that you had 
been a member of, the Sons of the American Legion and the Forty 
` Eight Society. Are these organizations open only to men?
    Mr. Lance. Mr. Chairman, the Sons of the American Legion, I 
think the name speaks for itself. Yes, sir, that is a male 
organization. Where a person has had a father or a grandfather 
who is a member of the American Legion.
    The Forty ` Eight, unfortunately, is indeed, as we speak, 
Mr. Chairman, still restricted to males. The American Legion 
has been attempting to convince the Forty ` Eight over the last 
several years that that policy is no longer applicable in 
today's society.
    As National Commander of the American Legion, I wrote them 
a letter and suggested that they needed to come in conformance 
with the 21st century. Unfortunately, to date, that has not 
happened and I am no longer a member of that organization.
    Chairman Specter. Did you terminate your membership because 
of the practice that you concluded was discriminatory?
    Mr. Lance. That was one of the reasons, yes, sir.
    Chairman Specter. Were there other reasons?
    Mr. Lance. Their inability to address the problem in a 
businesslike and professional manner.
    Chairman Specter. But that turned on the discrimination 
issue as well?
    Mr. Lance. Yes, sir.
    Chairman Specter. How do you distinguish your reaction 
there from your reaction to the Sons of the American Legion 
which, as you accurately stated, speaks for itself, covering 
only men.
    Mr. Lance. There, sir, the Sons of the American Legion has 
been organized. We have a very vibrant American Legion 
Auxiliary consisting of 2 million members and we have the 
Juniors Auxiliary, that is for the females, the counterpart or 
the distaff, if you will, for those interested in Legion 
activities and Legion work.
    Chairman Specter. Mr. Hagel, in response to one of the 
questions, you stated that you represented a claimant in a case 
captioned Thielman vs. Derwinski, and during the consideration 
of that case by the Board of Veterans' Appeals you filed a 
motion with a request that certain members be disqualified 
after information surfaced which suggested that, on 
reconsideration, those members might not be impartial.
    Are any of the individuals you sought to have disqualified 
still members of the BVA?
    Mr. Hagel. I do not know the answer--I know that at least 
one of the individuals is not, Senator. I do not know, I would 
like to go back to look at the files of the case and the roster 
of the BVA to determine that.
    Chairman Specter. If there are members still sitting from 
the BVA, would that influence you in any way on matters which 
come before you in a confirmed capacity?
    Mr. Hagel. I would only say that I would look at each case 
as it came before me and judge it based upon the facts that 
were before me. I would not allow facts that I knew from other 
cases to influence my decision in a particular case.
    Chairman Specter. Mr. Lance, in your response to the 
Committee questionnaire, you listed as one of your significant 
legal activities is your involvement in the revision of the 
search and seizure provisions of the Idaho code. What revisions 
were incorporated on that activity of yours?
    Mr. Lance. Mr. Chairman, I believe it was last legislative 
session or two legislative sessions ago, working with our 
legislature, we brought the search and seizure provisions of 
the Idaho law up to the Federal standards.
    Chairman Specter. Did you have to do that? You were bound 
by them anyway.
    Mr. Lance. In Federal District Court, yes, sir. But in 
State Court, we had an old code that went back to the 1970s.
    Chairman Specter. 1970s?
    Mr. Lance. Yes, sir.
    Chairman Specter. Was that an ancient time?
    Mr. Lance. Sir, it was before cell phones. Our law, 
strictly construed, would indicate that a district judge in the 
State of Idaho, who wished to issue a phone tap order had to 
issue it for that telephone sitting on that desk and not the 
roving situs cell phone. So we brought it up into the 21st 
century. It complies, to a great extent, to the Federal law 
that does exist.
    Chairman Specter. Were there Federal Court judicial 
decisions dealing with cell phones prior to that revision?
    Mr. Lance. In the Federal system, sir, yes. The State 
judges, however, were somewhat impaired as a result of our 
reading of Idaho law.
    Chairman Specter. So, it existed for the Federal system but 
not for the State system and the point of the revision in the 
code was to give guidance to the State Court judges which would 
be applicable without going through the interpretation process?
    Mr. Lance. That is correct sir, in State Court.
    Chairman Specter. That is a long and complicated history. 
For so many years States were not bound by search and seizure 
rules. And they came into the 19th century in Mapp vs. Ohio in 
1961. I was an Assistant DA at the time. And one of the first 
cases that came into the criminal court, one of the elderly 
judges listened to the motion to suppress and said, ``Motion 
denied, this is not Ohio.''
    I argued a case as an Assistant DA, a case called 
Commonwealth vs. Richardson. The defendant's lawyer was making 
the point that the search and seizure was unreasonable and the 
president, Judge Chester Rhodes of the Superior Court, kept 
saying but they found the glass from the jewelry store in his 
cuff links. And the lawyer tried to make the point that it had 
to be tested by probable cause in advance of the search and it 
was totally incomprehensible to the judge.
    But a lot has happened since that time and I commend you 
for your work on the code. That is, I think I commend you for 
your work on the code. I have not read it.
    Mr. Lance. It is a good piece of work, sir.
    Chairman Specter. Mr. Hagel, in your article Five Years 
Under the Veterans Judicial Review Act, the VA is brought 
kicking and screaming into the world of meaningful due process. 
You stated the value of the Court of Appeals for Veterans 
Claims would depend on the court's ability to maintain its 
independence. Did you have some reason to believe that prior to 
the wisdom in that Law Review article, the court had not 
established its independence?
    Mr. Hagel. Senator, I think that at the time that article 
was written, I believe, on approximately the fifth year 
anniversary of the court. And at that time, my coauthor and 
myself believed that it was important to remind those readers 
that it was a danger that any Article 1 court should always 
guard against.
    Chairman Specter. A little too much influence from the 
agency that it sat in judgment on?
    Mr. Hagel. That is correct.
    Chairman Specter. That is the question I asked Mr. Lance 
earlier. He said it was all copacetic. Some disagreement with 
your soon-to-be colleague on the court, if confirmed?
    Mr. Hagel. I do not have any disagreement. I think in 
answering your question what I was trying to say is that, it is 
extremely important that being an Article 1 court and 
constantly dealing with the same agency, constantly having the 
same litigants before the court, it is important that it 
ensures that it maintains its independence because the 
criticism can easily be made that it is not independent. And it 
is something that the court should always guard against.
    Chairman Specter. That certainly is a critical factor. That 
is the overreach, and the great beauty of the American judicial 
system is the independence. Some think that the Congress is 
unduly influenced by being reelected and that the executive 
branch is unduly influenced by being reelected. But there is a 
quality of independence that the judicial branch has which is 
superb.
    The Constitution does not establish the courts as supreme, 
but the courts took care of that earlier in Marbury vs. Madison 
in 1803. And now major issues of national and international 
importance are decided by one judge on five to four decisions. 
So the independence is really very, very important.
    However, there are pitfalls in writing Law Review articles. 
We had a confirmation hearing--one where more war story, a 
short one.
    We had a confirmation hearing on Chief Justice Rehnquist. 
He was asked a lot of questions about court stripping. Does the 
Congress have the authority to take away the jurisdiction of 
the court on First Amendment issues? And he would not answer 
the question.
    Overnight one of the staffs found an article which William 
H. Rehnquist had written in the Harvard Law Record back in 
about 1960 or 1958. In that article he criticized the Judiciary 
Committee for asking softball questions to Justice Whittaker, 
whose main achievement was that he represented two States, he 
lived in Kansas and practiced law in the Missouri or vice 
versa.
    The author, William H. Rehnquist, suggested that there 
ought to have been some more directed questions.
    So being armed with that article, I went back to the 
question the next day, does the Congress have the authority to 
take away the jurisdiction of the Federal courts on First 
Amendment issues? He still hesitated, and I produced the 
article and said there was a William H. Rehnquist who wrote 
this article. He answered a question with a question and said, 
``Did I say that?''
    And I said, ``I do not know whether you said it or not, but 
that is what the book says you said.'' And he said , ``Well, if 
I did, I was wrong.'' And then he answered the question. He 
said that Congress did not have the authority to strip the 
Federal courts of jurisdiction on First Amendment questions.
    So then, as you might suspect, I asked him does the 
Congress have the authority to strip the court of Fourth 
Amendment issues? And he refused to answer that, as he did the 
Fifth Amendment, Sixth, Seventh and Eighth.
    I said why answer as to the First and not as to the Fourth, 
Fifth, Sixth, Seventh, and Eighth. He would not answer that 
question either.
    He was confirmed 65 to 33, and it was touch and go, leading 
to what many of us concluded was that nominees answer just as 
many questions as they think they have to be confirmed.
    But I think, you gentlemen, have answered more questions 
than you have to to be confirmed. The principal purpose, or a 
principal purpose of these hearings is to get an idea as to how 
you will respond, your demeanor, how you handle questions, how 
you reason. There are a number of other questions which we are 
going ask you for the record which will be propounded, which we 
would like you to return in writing.
    We would like to take much more time, but we have taken a 
fair amount of time in today's hearing. We have the Medicare 
Reform bill on the floor and it is a very, very busy calendar. 
We are taking up the issue of asbestos reform the day after 
tomorrow and there is a tremendous amount of preparation 
necessary.
    So we are going to conclude the hearing at this point. We 
thank you for coming in. I do not like to make firm 
predictions, but I think your nominations are very sound and 
highly likely to be confirmed.
    I made that prediction for a Court of Appeals nominee 2 
years ago and I was wrong. The nominee had superb 
qualifications, but there is a little difference of opinion 
depending on politics in the Senate these days.
    But I do not think that is going to impede you in any way.
    Senator Campbell, would you care to add anything?
    Senator Campbell. No, Mr. Chairman. Well, maybe a comment 
or two.
    I was interested in your story about Justice Rehnquist. I 
think he is a fine jurist, but if he had to go through the 
confirmation hearing now, as opposed to say even 6 or 7 or 8 
years ago, I think he would find it tougher, unfortunately. 
Because now not having an answer does not seem to be sufficient 
for some of our colleagues. They want you to have an answer, 
and it better be the right one. And it is almost a litmus test 
answer unfortunately, as you know.
    I did want to ask one question of Mr. Lance. You mentioned 
that you belong to the Sons of the American Legion and another 
group. You said the Forty ` Eight, or something? Is that what 
it is called, Forty ` Eight?
    Mr. Lance. Yes, sir.
    Senator Campbell. What is that? I am sorry, I have never 
heard of that group.
    Mr. Lance. It was an offshoot of the American Legion that 
was begun after World War I.
    Senator Campbell. Where did the name Forty ` Eight come 
from, a battle or something?
    Mr. Lance. No, sir, it came from the box cars that they 
used in France in World War I that had the notation on the side 
of 40 men or 8 horses. And that is where they took their name 
from.
    In fairness to them, their traditions and their rituals and 
so forth are the result of basically the draft during World War 
I and so forth and so on. And of course, in World War I women 
were not drafted.
    However, we are now in the 21st century and it is the 
American Legion's opinion that possibly they should change 
their bylaws and Constitution to include female members of the 
Armed Forces honorable discharged.
    Senator Campbell. Since you told a couple of war stories, I 
think I better fess up and tell you, Mr. Chairman. I belong to 
an all man's club. We cannot get any women to join the club.
    It is true. It is based in Los Angeles and they do an awful 
lot of charity work. They have a number of very high profile 
people, some in the movie industry and so on that belong to it. 
It is called the Ugly Motorcycle Club.
    Funny name but in their bylaws they say anybody is welcome 
to belong to it but they have got to subscribe to the bylaws, 
which means you have got to be ugly. And we have not found any 
women who would admit it, yet.
    So far, it is an all male club, but we are still trying.
    Thank you, Mr. Chairman. I think that is enough for today.
    Chairman Specter. Thank you very much, Senator Campbell.
    There will be some more questions submitted for the record.
    Thank you both very much.
    The Committee is now adjourned.
    [Whereupon, at 3:14 p.m., the Committee was adjourned.]
















   NOMINATIONS INCLUDING ROBERT N. DAVIS TO BE JUDGE, U.S. COURT OF 
                      APPEALS FOR VETERANS CLAIMS

                              ----------                              


                        THURSDAY, APRIL 1, 2004

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:35 p.m., in 
room 418, Russell Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Cochran, Lott and Congressman 
Murphy.

      OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN, 
                 U.S. SENATOR FROM PENNSYLVANIA

    Chairman Specter. Good afternoon, ladies and gentlemen. The 
hearing of the Veterans' Affairs Committee will now proceed.
    We are joined by high-level dignitaries today, Members of 
the Congress of the United States, two United States Senators, 
and without further ado, I turn to the senior Senator from 
Mississippi, Senator Thad Cochran.

                STATEMENT OF HON. THAD COCHRAN, 
                 U.S. SENATOR FROM MISSISSIPPI

    Senator Cochran. Thank you, Mr. Chairman. It's a pleasure 
and an honor for me to be here with Robert Davis, who taught at 
the University of Mississippi School of Law for 13 years. He is 
now on the faculty at Stetson University College of Law in 
Florida.
    He has been a friend of mine because I was on the campus 
from time to time for events at the law school. I came to know 
him really as the founder of the Journal of National Security 
Law. He is a scholar. He has written numerous articles, not 
only for that publication but on a variety of subjects in many 
other law journals around the country. But he was well 
respected at the university and well liked by the students.
    He had also taught, before he came to Ole Miss, at 
Georgetown University and at Washington Lee University, among 
other colleges and universities around the country. He is a 
graduate from Georgetown University Law Center here in 
Washington. He is a naval officer, a Reservist, who was 
activated after September 11, 2001. He is a fine naval officer 
and law professor, and I am confident that he will serve with 
distinction on the Veterans Court of Appeals.
    It is a pleasure to recommend him to you and to introduce 
him, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Cochran. 
Your recommendation is very weighty with this Committee and 
with the U.S. Senate.
    I will now turn to Senator Trent Lott.

                 STATEMENT OF HON. TRENT LOTT, 
                 U.S. SENATOR FROM MISSISSIPPI

    Senator Lott. Thank you, Mr. Chairman. It's a pleasure to 
be before you, as Chairman of this very important Committee. It 
is a great honor to be here to endorse this nominee, Robert 
Davis, for this important judicial position.
    As is usual, when you follow your senior colleague, you 
just say ``me, too.'' I know that Senator Cochran has pointed 
out some very important things about this distinguished 
nominee. I, too, knew him when he was at Ole Miss, my alma 
mater. He has an outstanding record and a diversity of 
backgrounds at a lot of different schools.
    As has been pointed out, he not only worked in national 
security law, but also in administrative law, alternative 
dispute resolution, and sports law. He has quite a diversified 
background of education and teaching. He also worked as a 
government attorney with the Commodity Futures Trading 
Commission and the Department of Education.
    I think that combination of education, experience, teaching 
and in the military, serving now as a Commander in the Navy, 
the Reserves, makes him uniquely qualified to take this 
position with the U.S. Court of Appeals for Veterans' Claims.
    He is an outstanding individual, one that we're very proud 
of, that we had a significant portion of his life in 
Mississippi. It is a great honor for me to be here and to 
endorse his nomination for this important position.
    Chairman Specter. Thank you very much, Senator Lott. You 
have great references, Professor Davis, to have two 
distinguished lawyers, two distinguished Senators, men I have 
known for a very, very long time. I have high regard for their 
opinions. So thank you very much, Senator Cochran, Senator 
Lott.
    I know you have many obligations this afternoon, so if you 
wish to take leave at this time, thank you.
    Chairman Specter. Professor Davis, tell us a little bit 
about your own background, where you went to school, what your 
professional career has entailed.
    Mr. Davis. Thank you, Chairman Specter, for the 
opportunity.
    I spent most of my youth in Davenport, IA. I went to 
college in Connecticut, at the University of Hartford, and law 
school at Georgetown here. Upon graduation----
    Chairman Specter. What year at Georgetown, the graduation?
    Mr. Davis. 1978, sir.
    Chairman Specter. And since then?
    Mr. Davis. Since then, I practiced in Washington for 10 
years in a variety of government positions, as a government 
attorney. I taught part time at----
    Chairman Specter. With what departments were you 
associated?
    Mr. Davis. With the Commodity Futures Trading Commission 
initially, and then the Department of Education. After that, 
shortly with the United States Attorneys Office for the 
District of Columbia.
    I began teaching in 1988. At the same time, I joined the 
military for the first time as a Reserve Officer. I moved to 
Oxford, MS. I stayed there for about 16 years, I guess, 
teaching and--actually, 13 years there, and then 3 years in 
Florida at Stetson University College of Law.
    Chairman Specter. You reviewed a book authored by Professor 
Christopher Edley, agreeing with his idea that there should be 
judicial deference to agency decisions.
    Mr. Davis. I vaguely remember the book review, Senator.
    Chairman Specter. I hadn't come to a question yet.
    [Laughter.]
    Chairman Specter. Why do you think there should be 
deference to agency decisions?
    Mr. Davis. Senator, the short answer is the agencies are 
the experts, and certainly in terms of fact finding in the 
areas within which the Congress has provided legislation for 
those agencies to operate, the authorization. It seems to me 
that they are the best first place to interpret the law since 
they deal with it on a daily basis.
    Chairman Specter. Do you think that sometimes agencies take 
advocacy positions, like to uphold the government's view, just 
as a matter of predisposition after hearing so many matters and 
tending to side with the government?
    Mr. Davis. Senator, I think that is a danger. I think it 
probably happens from time to time. But in my experience, 
agency counsel has been very interested in objective and fair 
decisionmaking.
    Chairman Specter. Senator Thurmond was Chairman of the 
Judiciary Committee, and in an earlier hearing that I attended 
in 1982 with two Pennsylvania nominees, Senator Thurmond asked 
the nominees, ``If you're confirmed, do you promise to be 
courteous?'' Translated into English, that is ``If you're 
confirmed, do you promise to be courteous.'' I thought it was a 
rather nonrevealing question. What could they say, but, Yes. 
Both nominees said yes, and Senator Thurmond said, ``The more 
power a person has, the more courteous the person should be.'' 
Translated into English, ``The more power a person has, the 
more courteous the person should be.'' I have since come to 
regard that as a very profound question and a very profound 
observation. If you are confirmed, do you promise to be 
courteous?
    Mr. Davis. Absolutely, Senator. Absolutely.
    Chairman Specter. Sometimes when you don those black robes 
and you have either life tenure or tenure for 15 years, judges 
tend to become impatient.
    You taught constitutional law. What would you think of a 
constitutional amendment that subjected Federal judges to 
election every 6 years, and Senators to serve for life?
    [Laughter.]
    Chairman Specter. Be careful now. Be careful in your 
answer.
    Mr. Davis. Do you want----
    Chairman Specter. I withdraw the question, Professor Davis.
    Professor Davis, we have a long list of questions for you 
to respond to here. I am hopeful we can get you confirmed.
    [The prepared statement of Mr. Davis follows:]
       Prepared Statement Robert N. Davis, Nominee to be Judge, 
               U.S. Court of Appeals for Veterans Claims
    Chairman Specter, Senator Graham and the distinguished Members of 
this Committee. I appreciate the opportunity to appear before you today 
as you consider my nomination to serve as a judge on the United States 
Court of Appeals for Veterans' Claims. I would also like to thank the 
distinguished Senators from Mississippi, Senator Thad Cochran and 
Senator Trent Lott, for their joint appearance here today and that very 
kind introduction.
    My remarks will be brief. If confirmed, I will dedicate my efforts 
to assisting my fellow judges to efficiently and fairly adjudicate 
cases and decrease the backlog of matters pending before the Court 
consistent with the rule of law. If confirmed, a priority mission will 
also be to ensure that those veterans who have business before the 
United States Court of Appeals for Veterans' Claims receive thorough, 
expeditious, and objective decisions. My diverse background and twenty-
six years of experience as a lawyer will allow me to bring a fresh 
perspective to the Court, if confirmed. This experience includes 
thirteen years as a law professor, and an equal amount of time as a 
government attorney trying both criminal and civil cases, a 
Commissioner to the National Commission on Uniform State Laws, an 
Arbitrator and Mediator with the American Arbitration Association and 
the United States Postal Service, a Hearing Officer for the SFOR Claims 
Tribunal in the Republic of Serbia, Sarajevo, Bosnia, and a member of 
the United States Navy Reserves. This diverse background and experience 
will assist me, if confirmed, in adjudicating the variety of veteran's 
benefIt claims that fall within the jurisdiction of the Article I 
United States Court of Appeals for Veterans' Claims.
    As a young boy growing up in Davenport, Iowa, I dreamed of becoming 
a lawyer someday. That dream became a reality when I graduated from law 
school. It was made possible because of the support I received from my 
parents and family members, teachers at all grade levels, and friends. 
It was also made possible because of the freedoms we enjoy as 
Americans. However, I did not dream that someday I would be teaching 
law at the University of Mississippi School of Law or at my present 
station, Stetson University College of Law in Gulfport, Florida, the 
home state of my father who is now deceased, and my grandparents with 
whom I would frequently visit in Fort Pierce as a child. And I most 
certainly did not dream that someday I would be nominated by the 
President of the United States of America to become a Federal judge. 
However, this great Nation of ours with all of its quirks and 
imperfections has a way of making dreams become reality. Even things 
that I may not have dreamt, may happen to anyone of us if given the 
opportunity to achieve in a free nation.
    In conclusion, I would like to thank the Committee for the 
opportunity to appear before you today and present this statement. I 
would be happy to answer any questions that you may have.


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

      Response to Written Questions Submitted to Robert N. Davis, 
     Nominee to be Judge, U.S. Court of Appeals for Veterans Claims
    Question 1. In 1991, you reviewed a book authored by Professor 
Christopher Edley, Jr. titled, Administrative Law: Rethinking Judicial 
Control of Bureaucracy. See 43 Admin. L. Rev. 819 (1991). Professor 
Edley advanced some rather novel ideas on the issue of judicial 
deference to agency decisionmaking, and your commentary seemed to agree 
with them. You said, for example, that ``I agree totally with 
[Professor] Edley's proposition that our traditional approach [to 
administrative law] does not provide adequate guidance on when 
[judicial] deference [to administrative agencies] is appropriate.'' Do 
you believe that ``guidance'' on the issue of deference owed by the 
courts to administrative agencies has been clarified since you wrote 
that statement? If you are confirmed, what principles would guide you 
in determining the appropriate degree of deference owed by the U.S. 
Court of Appeals for Veterans Claims (``the Court'') to decisions of 
the Department of Veterans Affairs (``VA'')?
    Response. A. Yes, I believe that ``guidance'' on the issue of 
deference has been clarified and reinforced since I wrote the above 
statement. When the book review was written in 1991, my major point of 
agreement with Professor Edley was with his thesis that often, 
administrative agency action is not always so easily divided into the 
law, fact or policymaking categories. Because agency action may 
frequently involve a mix or blend of these categories, it may not 
always be easy to apply conventional judicial review approaches to 
mixed agency action. However, since writing the book review, I have not 
found a better approach than the traditional one based on the 
separation of powers model. The issue of deference owed by courts to 
administrative agencies is a consistent theme in administrative law. 
The debate regarding scope of review and judicial deference will 
probably continue to occupy jurists, administrative law scholars and 
practitioners for some time to come. However, I believe, as do several 
administrative law scholars, that the United States Supreme Court has 
consistently sent strong signals to the lower Federal courts, to leave 
agency determinations alone unless the agency has abused its discretion 
or acted inconsistent with its statutory authority. Recent 
administrative law cases indicate that the early messages of cases like 
Chevron U.S.A., Inc. v. Natural Resources Defense Council 467 U.S. 837 
(1984) and Vermont Yankee Nuclear Power Corp. v. Natural Resources 
Defense Council, Inc. 435 U.S. 519 (1978) has been received and 
followed. See, for example, Household Credit Inc., v. Pfenning, 2004 WL 
840101, April 21, 2004, holding that the Federal Reserve Board's 
promulgation of Regulation Z interpreting the ``finance charge'' 
definition to exclude over-limit charges under the Truth in Lending 
Act, was not unreasonable and therefore entitled to judicial deference.
    B. If I am confirmed, I would be guided by the following principles 
in determining the appropriate degree of deference owed by the United 
States Court of Appeals for Veterans Claims (CAVC) to decisions of the 
Department of Veterans Affairs. First, I would be informed by the 
express provisions of the relevant statute(s) providing judicial review 
authority. Second, I would follow precedent to the extent that it is 
consistent with statutory authority. Third, I would recognize that the 
agency is usually in the best position to determine facts and defer to 
such factfinding determinations by the Board of Veterans Appeals (BVA) 
unless they are ``clearly erroneous.'' Fourth, with respect to issues 
of law, I would review Board determinations ``de novo'' to ensure a 
consistent rule of law development. Additionally, constitutional 
principles of fundamental fairness and procedural regularity would also 
inform my decisions on the bench.

    Question 2. Further with respect to Professor Edley's article, you 
state that he advances the notion that courts and agencies should 
``form a partnership in which the courts make decisions based on how 
effectively and efficiently the agency is responding to the needs of 
society.'' Do you believe that courts should take into account how well 
an agency is responding to the needs of society when it reviews agency 
actions? How can it do that? Do you think judges have particular 
expertise in making such judgments?
    Response. A. While I do not believe it is the role of the courts to 
take into account how well an agency is responding to the general needs 
of society when it reviews agency actions, it seems to me that part of 
what the court must do when it reviews agency actions is to answer 
several fundamental questions in the case. What is the problem? What is 
the remedy? Is there a way to fix the cause in order to avoid similar 
problems in the future? I do not believe the agency focus should be on 
the ``needs of society'' generally; however, I do believe that the 
reviewing court should certainly consider in the context of each case 
presented whether or not the agency is fulfilling its specific 
statutory mandate efficiently. Thus, questions regarding whether the 
Board of Veterans Appeals or the CAVC case processing procedures 
ensures timely decisions for claimants go directly to the issue of 
whether the agency is responding to the needs of its constituents.
    B. I believe the ability of courts to address the question of 
whether the agency is responding to the needs of its particular 
constituents is limited to the context of the specific case when it 
reviews agency actions. However, the end of year reports of the CAVC, 
for example, should certainly be scrutinized by the judges, from a big 
picture perspective, in an effort to detect patterns, trends, gaps, 
highs and lows or particular areas of case processing that need 
attention or are problematic at the agency level.
    C. While I do not believe that judges have a particular expertise 
in making determinations about the agency response to the needs of 
society generally, I do believe judges are in a good position to 
determine whether agencies are efficiently fulfilling their statutory 
mandates based on an assessment of the kinds of cases brought before 
the court, or the frequency of the type of case or the problems that 
certain agency rules generate for claimants. However, the question of 
whether or not agencies are ultimately fulfilling their statutory role 
by meeting the needs of their constituents seems to me to be a job 
better left to the Congress.

    Question 3. You are a Professor of Law at Stetson University 
College of Law, and you have taught administrative law there and at the 
University of Mississippi. Which two or three administrative law cases 
would you cite as being the most significant on the topic of judicial 
review of an agency's actions? Why these cases?
    Response. A. In my view, the two most significant cases on the 
topic of judicial review are Chevron U.S.A., Inc. v. Natural Resources 
Defense Council, 467 U.S. 837 (1984) and Vermont Yankee Nuclear Power 
Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978). 
Both cases are law defining moments in administrative law because they 
directly address the role of the courts in reviewing administrative 
action. Chevron addresses judicial review for issues of law and Vermont 
Yankee addresses judicial review in the context of administrative 
rulemaking.
    B. In Chevron, the United States Supreme Court developed a two-step 
approach for the courts to follow when addressing scope of review 
issues of legal interpretation. There, the Court said, if the intent of 
Congress is clear and it has spoken directly to the precise question at 
issue then follow that intent. However, if the court determines that 
Congress has not directly addressed the issue, the court's role is not 
to simply impose its own construction on the statute but rather to 
determine whether the agency's interpretation is based on a permissible 
construction of the statute. The Court has long recognized that 
considerable weight should be accorded to an executive department's 
construction of a statutory scheme it is entrusted to administer.
    In Vermont Yankee, the Court held that Sec. 553 of the 
Administrative Procedure Act established the maximum procedural 
requirements which Congress was willing to have the courts impose on 
agencies conducting rulemaking procedures. Agencies are free to grant 
additional procedural rights in the exercise of their discretion, but 
reviewing courts are generally not free to impose them if the agencies 
have not chosen to grant them.
    Thus, both cases stand for the general proposition that because 
agencies are charged with the day to day administration of the organic 
statute, agencies are entitled to a good degree of deference and 
discretion regarding the best methods to pursue the discharge of their 
statutory duties.

    Question 4. The issue of statutory construction, and the so-called 
``plain meaning'' rule, has, on occasion, been pivotal in veterans' 
litigation. Would you hesitate to reverse or remand a decision by the 
VA that is consistent with long-standing VA practice, but is contrary 
to your own best reading of the express words of a statute? Would your 
judgment on such a question be influenced by your conception of the 
``common sense'' of VA's historical interpretation or by your sense of 
what is the preferable or most logical policy? Would the potential cost 
of overturning a historical--but, arguably, erroneous--statutory 
interpretation enter into your decisionmaking in such a case?
    Response. A. I would hesitate to reverse or remand a decision by 
the VA that is consistent with long-standing VA practice, but is 
contrary to my own best reading of the express words of a statute. I 
would hesitate to substitute my judgment for that of the agency charged 
with implementing the statute as long as the agency construction is a 
reasonably permissible one. This approach is consistent with 
administrative law precedent.
    B. My judgment on such a question would be influenced by my concept 
of the ``common sense'' of the VA's historical interpretation and its 
logic as applied.
    C. A cost-benefits analysis would certainly enter into my 
decisionmaking regarding whether or not it is appropriate to overturn a 
historical, but arguably erroneous, statutory interpretation. However, 
if the interpretation is clearly contrary to the statutory scheme I 
would be more inclined to overrule the agency despite the cost. If, on 
the other hand, the agency interpretation is a close call (as to 
whether it is erroneous) and the potential cost of overturning the 
interpretation is excessive, I would be less inclined to overrule the 
agency.

    Question 5. The Committee receives extensive mail that expresses a 
common theme: that justice delayed is justice denied, and that it does 
a veteran limited practical good to prevail on a claim if it takes 
years of decisions, appeals, and remands to ultimately prevail. From 
what you have been able to learn about the adjudication of veterans' 
benefits since your nomination, do you think it takes too long for a 
claim to work its way through the current administrative and judicial 
review process? If so, do you have any proposed remedies the Committee 
might consider to speed up the process?
    Response. A. I strongly believe that one of the major weaknesses of 
the VA processing system is precisely that it takes too long for a 
claim to work its way through the current administrative and judicial 
review process. On average, it takes the regional offices 184.2 days to 
render a decision on an initial claim and an average of 672 days to 
process a remand from the CAVC or the BVA. (June 3, 2002, Draft Report 
of ABA Section of Administrative Law and Regulatory Practice.) The time 
frame for CAVC decisionmaking, from filing to disposition has averaged 
around 1 year for the last 7 years. (Report to the Social Security 
Advisory Board by Paul Verkuil and Jeffrey Lubbers, March 1, 2002.) For 
veterans who may have limited resources at their disposal, justice 
delayed is justice denied.
    B. The proposed remedies that I would give serious consideration to 
include many of the recommendations contained in the October 2001, VA 
Claims Processing Task Force Report to the Secretary of Veterans 
Affairs. The Task Force identified flaws to exist in accountability, 
communications, and change management. The Task Force recommended 
actions to improve the appeal resolution time of veterans' claims at 
the Board of Veterans' Appeals and actions to improve the timeliness 
and quality of compensation and pension medical examinations conducted 
by the Veterans Health Administration. Among the suggested 
recommendations include the creation of Teams from experienced staff in 
order to expedite resolution of Compensation and Pension claims cases 
over 1-year old; Revision of the operating procedures in VBA manual 
(M21-1) involving the time for submitting evidence by a claimant, 
physician or hospital; Require that BVA process the current workload of 
appeals rather than issuing remands; Establish specialized claims 
processing teams within defined claims processing functions; Designate 
specialized Regional Offices to work specific tasks in order to 
increase efficiency; Decrease the time delay necessary to place 
incoming claims under control; Improve record recovery from record 
center; Authorize VBA Regional Offices to hire administrative staff and 
contract for administrative services to support claims processing; 
Better utilize Veterans Service Organizations; and Consolidate the 
function of income matching.
    Additionally, according to a March 2002 Report to the Social 
Security Advisory Board by Paul Verkuil and Jeffrey Lubbers, the main 
criticisms of the VA appeals process concerns the slowness of the 
administrative process and the penchant of both the BVA and the CAVC to 
remand cases back to the rating boards. Recommendations in this report 
similarly include taking remand authority away from the BVA or 
elimination of the reconsideration option before a hearing officer at 
the VBA and go directly to the BVA.
     Similarly, the administrative law and regulatory practice section 
of the American Bar Association in its July 2002 Report on 
Recommendations for Improvements in Veterans' Judicial Review, 
recommends that the CAVC should hear all questions of law presented to 
it rather than refusing to resolve a legal claim not expressly argued 
before the BVA; and exercise its statutory authority to expedite VA 
decisions when it remands a case for further administrative proceedings 
by ordering VA to readjudicate the case by the date ordered by the 
court.
    In my view, these recommendations are certainly starting points for 
a major system overhaul with a focus on providing timely, fair, and 
expeditious resolution of VA claims. If confirmed, I would dedicate my 
energy to ensuring that claims processing systems at all levels work 
efficiently so that veterans will recognize that there has been a major 
improvement in the amount of time it takes for a claim to reach 
finality. Moreover, none of the reform recommendations that I have read 
seem to include an alternative dispute resolution process. I would 
recommend, to the extent possible, that it would be worthwhile to 
investigate whether there may be a role for mediation or arbitration in 
the VA claims process and/or some expanded use of the CAVC's case 
settlement process.

    Question 6. It has been posited that the U.S. Court of Appeals for 
Veterans Claims should have broader discretion to craft remedies sua 
sponte when it finds errors in VA decisionmaking. Do you have any views 
on this subject?
    Response. I believe giving the CAVC broader discretion to craft 
remedies sua sponte could significantly aid the Court in addressing 
backlogs and ultimately assist in providing a better and more efficient 
appeals system by resolving issues itself rather than remanding issues 
to the BVA. The administrative law and regulatory practice section of 
the ABA stated in its July 2002 Report that ``When the CAVC remands a 
case, it contributes to delay by refusing to resolve issues presented 
to it other than the ground relied upon for remand.'' The ABA Report 
concluded that the impact of the CAVC remand practice is significant 
because it has remanded nearly 70 percent of the cases it has heard 
over the last 7 years. In my view, this remand percentage is too large. 
One of the ABA recommendations to Congress was that it enact 
legislation to require the CAVC, when it remands a claim for further 
administrative proceedings, to resolve all allegations of error 
presented by and briefed by the appellant that, if left unresolved, 
could be the subject of a subsequent dispute before the VA. 
Additionally, the ABA has recommended that the CAVC as a matter of 
general practice should hear all questions of law presented to it 
rather than refuse to resolve a legal claim not expressly argued before 
the BVA.

    Question 7. The U.S. Court of Appeals for Veterans Claims allows 
non-attorney practitioners to appear and to argue cases for claimants. 
Further, the Court hears many appeals--more than most courts, I think--
where a non-attorney claimant appears pro se. How would the 
participation of a non-attorney advocate in a case before you affect 
your approach to hearing--and deciding--a case? Do you think judges 
should make special accommodations for non-attorney practitioners? For 
pro se litigants?
    Response. A. I understand that dealing with pro se cases is one of 
the Court's biggest problems. The participation of a non-attorney 
advocate or a pro se litigant can be even more demanding of judicial 
resources because of the necessity to ensure that the claimant is 
adequately and fairly represented. The participation of a non-attorney 
advocate in a case before me would affect my approach to hearing and 
deciding a case only to the extent that I would take particular care to 
make sure that the litigant received fair representation. The public 
list program and the National Organization of Veterans Advocates have 
helped to provide a baseline standard of non-attorney representation, 
but the quality of advocates is not always consistent.
    B. While I do not believe special accommodations for non-attorney 
practitioners or pro se litigants should be made in the general conduct 
of a hearing or in the way a judge should decide a case, I do think the 
judicially responsible approach should be to take all steps to ensure 
that the litigant gets a fair hearing and decision. This is no more or 
less than any other litigant is entitled to but ensuring a fair process 
may take more time when the litigant is a non-attorney or pro se.

    Question 8. The Committee's staff--and the White House Counsel's 
Office and the Department of Justice--are currently researching a legal 
question that has arisen as we consider your nomination. The question 
is, generally, whether Reserve Officers have to--or ought to--resign 
their commissions if they serve on the bench. Have you considered this 
question? In your White House vetting process, did anyone there raise 
the issue? Do you intend to remain a Reserve Naval Officer if you are 
confirmed by the Senate?
    Response. A. I remember raising the question when I was initially 
interviewed by the White House regarding my status in the Naval 
Reserves but no one had an answer. While I am not aware of any express 
prohibition of a judge serving in the military Reserves, to the extent 
that it would become difficult or impossible for the Reserve Officer to 
meet his or her obligations on the bench I think it would be 
appropriate and prudent to resign the commission. The potential 
difficulty would arise if the officer were activated or recalled to 
active duty based on a national emergency like 9/11.
    B. I have considered the question and am aware of several judges 
who have also been Naval Reserve Officers. The judges that I know are 
state court judges in Florida.
    I am not aware of any law prohibiting a Federal judge from serving 
in the Naval Reserves. I know the Soldiers and Sailors Relief Act 
requires employers both public and private to maintain the 
servicemembers' job.
    C. In my own experience, I have attempted to balance my 
professional career with my responsibilities as a Naval Reserve 
Officer. It has not been easy but my employers have been supportive of 
my service to my country. I recognize that it may be much easier to 
take a leave of absence from an academic institution than from a 
private or public employer or from the bench. If I am confirmed by the 
Senate, my intention is to maintain my Reserve commission unless it 
clearly interferes with my responsibilities on the bench. If the 
Reserve commission interferes with my judicial duties then I would 
resign my commission.

    Question 9. Committee staff has been informally advised by the 
Department of Justice that it sees no per se proscription against 
retention of a commission in the Armed Forces and service on the 
bench--at least so long as a Judge's service in the military is not of 
a legal nature. One might wonder, however, whether the time-demands of 
the military might prevent a Judge from executing his or her judicial 
responsibilities. Do you forsee any problems of this nature? What will 
you do if you are activated again? Would you be forced to resign from 
the bench? Would you be forced to--and would you be allowed to--resign 
your commission?
    Response. A. The normal time demands of the military would not 
prevent a judge from executing his or her judicial responsibilities. 
The requirements are to perform military drills with a unit 1 weekend a 
month and a minimum of 2 weeks active duty per year. In. my military 
career, I have usually performed much more service on an annual basis 
than the required minimum.
    B. The situation is complicated when a national exigency requires 
activation of the Reserve forces. In the past, I have volunteered for 
active duty service in exigent circumstances or when I thought I could 
contribute to a mission. However, I understand that there are 
categories of Reserve military service that may not require activation. 
I would have to look into this. If I am on the bench and activated, I 
don't believe I would have the option of resigning my commission until 
after the period of activation has ended.
    C. Activation with the military would not force me to resign from 
the bench but it would temporarily delay my ability to continue the day 
to day work of the court.
    Usually, involuntary recalls are no longer than 2 years. The 
longest period of time for which I have been activated has been 2 years 
and even then I, along with many servicemembers, was allowed to return 
to my civilian career after 1 year.

    Question 10. During your time as a Law Professor at the University 
of Mississippi, you spent a considerable period of time away from the 
law school to serve in the Navy.
    This Committee oversees the administration of two statutes by the 
Department of Labor that protect servicemembers and their families in 
such situations. First, the ``Uniformed Services employment and 
Reemployment Rights Act,'' 38 U.S.C. Sec. 4301 et seq., assures that 
employers will not penalize employees for serving in the Reserves. 
Second, the recently recodified ``Servicemembers Civil Relief Act,'' 
Public Law 108-189, December 19, 2003, protects servicemembers and 
their families from lawsuits, evictions, and default judgments during 
periods when they are away from home on active duty service. Has your 
experience with your employers provided you with any insight on the 
efficacy of these statutes in protecting the rights of servicemembers? 
Do you feel like your career at Mississippi suffered because of 
absences from campus for active duty service?
    Response. A. My experience with my employers both at the University 
of Mississippi and at Stetson University has always been extremely 
positive regarding my military service. Both institutions have been 
exceptionally supportive and have accommodated my service commitment 
without question. Both institutions were cognizant of their legal 
responsibilities under the Servicemembers Civil Relief Act and the 
Uniformed Services Employment and Reemployment Rights Act. In my 
experience, most employers of my brothers and sisters at arms have been 
supportive generally. However, I am aware of situations where the 
servicemember's military commitment has caused problems at his or her 
place of employment. In my judgment, these statutes are critically 
important to attracting and keeping good people in the military 
Reserves. Without employment security, I believe it would be more 
difficult to maintain the high quality of the current volunteer Reserve 
service.
    B. Yes, I believe my career did suffer because of absences from 
campus for active duty service in two basic ways. First, because of my 
unavailability during the summer months (my choice) and the potential 
to recall for active duty, I believe administrators may have been 
reluctant to seek me out for academic administrative positions. While, 
I have never applied for such a position, other colleagues who did not 
have the military commitment that I did, were considered and received 
administrative positions. Second, the time that I spent away from home 
on active duty delayed some of my writing projects. Though I always 
exceeded my publication requirements for regular promotion and tenure, 
I was not always able to complete other projects within the timeframe 
that I anticipated because of military service interruptions. Again, 
these decisions to serve were my decisions and I realized the impact 
they could have on my civilian career at the time. However, ultimately, 
I believe my military career enhanced my legal career by providing me 
opportunities in the national security law field that I would not have 
had otherwise.

    Question 11. You recently wrote an article titled ``Striking the 
Balance: National Security vs. Civil Liberties,'' in the Brooklyn 
Journal of International Law. In the article, you concluded that in 
enacting the USA Patriot Act, Congress struck an appropriate balance 
between national security and Fourth Amendment privacy concerns. But 
you also noted at the outset of the article that ``the USA Patriot Act 
is not perfect; no piece of legislation is,'' What defects--or 
``imperfections''--have you identified in the USA Patriot Act? Do you 
have suggestions for changes that Congress should consider as it 
considers reauthorization of this legislation?
    Response. A. One of the major criticisms of the USA Patriot Act is 
that it was passed in haste without appropriate Congressional 
deliberation and thus, contains provisions that undermine individual 
freedoms. A number of highly controversial USA Patriot Act provisions 
have been identified by several organizations (Center for Democracy & 
Technology and the American Civil Liberties Union) for Congressional 
review as USA Patriot Act II is considered. These provisions include, 
Sec. 203(a) sharing grand jury information; Sec. 213 sneak and peek 
searches; Sec. 215 records searches; Sec. 216 pen registers for the 
Internet; Sec. 358 exceptions to financial privacy laws; Sec. 505 
National Security Letter exceptions to privacy laws; and Sec. 802 
definition of domestic terrorism.
    B. The recommendations I included in the law review article were 
to:
    1. Ensure that the next version of the USA Patriot Act II, goes 
through the full legislative process including full committee hearings 
and debate.
    2. Integrate the findings of the DOJ Report on the implementation 
of the USA Patriot Act on the proposed new USA Patriot Act II.
    3. Study the DOJ report and make any abuses identified by it the 
focal point for amendments, revisions and new legislation.

    Question 12. During your employment with the Department of 
Education you participated in an agency exchange program that allowed 
you to be assigned to the office of the U.S. Attorney for the District 
of Columbia. There, you tried a variety of criminal cases. How long 
were you so assigned to the U.S. Attorney's office? During your time 
with the exchange program, did you ``first chair'' these prosecutions? 
Was your time as a prosecutor valuable to you? Did it teach you 
anything about good--or bad--judicial temperament?
    Response. A. My position as Special Assistant United States 
Attorney for the District of Columbia was part of an agency exchange 
program with the Department of Education. The goal was to give lawyers 
at the Department of Education an opportunity to get a good amount of 
trial experience working with the United States Attorney's office. The 
program was approximately 4 months and during that period, most of the 
attorneys had both bench and jury trials.
    B. During that 4-month assignment, I first Chaired at least twenty 
cases about ten jury trials and ten bench trials. After the first trial 
as second Chair, we usually were given our own caseload to work and 
take to trial.
    C. My time as a prosecutor was probably one of the most rewarding 
experiences of my legal career. I learned so much about trying cases 
and the judicial process. After that experience, I had a new confidence 
in my abilities as a lawyer.
    D. Fortunately, the experience was instructive on many levels. I 
learned that the quality of the District of Columbia bar and bench was 
very high. Most of the judges on the District of Columbia Superior 
Court while polite, were no nonsense in their approach to handling 
cases on their docket. I saw colleagues get upbraided by judges and on 
at least one occasion I remember during an initial appearance, one of 
the judges asking me in an exasperated tone, why I did not make the 
observation earlier that the defendant appeared to be intoxicated. 
During that experience, I learned that judges are people too with 
different personalities. I saw a consistent thread however, on the 
bench, most of the judges exercised very calm and careful control over 
their courtroom. They all took great care to make sure that the 
defendant received a fair trial and they were not hesitant to put the 
prosecutors to the test regarding the strength of their cases against 
the defendants.

    Question 13. I note in your nomination materials that you served as 
a Hearing Officer on a Claims Tribunal in Serbia in 1999. Please 
elaborate for the Committee the nature of that service. Was this quasi-
judicial service of any assistance to you as you prepare to ascend the 
bench?
    Response. A. My experience as a Hearing Officer for the SFOR 
Republic of Serbia Claims Tribunal was the result of being in the right 
place at the right time. My assignment in Sarajevo was as an 
intelligence officer, but several people were also aware that I was a 
lawyer. As a result of my legal background, I was asked to fill a 
position as an American hearing officer on the SFOR Claims Tribunal for 
a day. This claims tribunal was gearing up to hear a number of cases in 
Bosnia. I sat as one of five judges and heard personal injury and 
property cases. These cases included alleged property damage from NATO 
ordnance explosions and automobile accidents on the narrow, poorly 
maintained, and dangerous Bosnian roads. Accidents with SFOR vehicles 
occurred frequently and were often fatal for both the military 
personnel and local residents. My job as a hearing officer was to vote 
on whether under the circumstances of the case we would recommend and 
authorize payments of claims filed.
    B. This unusual quasi-judicial international experience was very 
helpful as I prepare to ascend the bench if confirmed. Not only did my 
years as a mediator and arbitrator aid in this function, but hearing 
cases involving local residents claims against coalition military 
forces reinforced to me the importance of having a judicial system that 
is fair. Even in the context of a combat environment, the SFOR 
coalition partners were attempting to expose the Bosnians, Serbians, 
and Croatians to a fair legal system and judicial process that worked 
without corruption. As I prepared for hearings that day, I was told 
that one of our goals was to help demonstrate to the local people that 
judicial systems can work even at a rudimentary level. In some ways, 
the experience with SFOR makes me even more committed to ensuring that 
the veterans who file claims with the VA get expeditious and fair 
resolution. The SFOR tribunal did not have the resources of a large 
executive department at its disposal but we were committed to quickly 
and fairly resolving claims.

    Chairman Specter. We have a real snarl today in the Senate 
about confirmation of judges. We're having a hard time getting 
judges confirmed for the U.S. Court of Appeals for Veterans 
Claims. It's all tangled up in a lot of lines.
    The Administration will not allow Senators to look at the 
confidential investigative files, and in the Judiciary 
Committee, Members can see the files. We should be able to see 
them. I have taken it up with White House counsel, Alberto 
Gonzales. But right now we have a judge being tied up on that 
point, isn't that right, Mr. Tuerk?
    Mr. Tuerk. That's correct.
    Chairman Specter. Then on the broader issue, we have an 
escalation of controversy where when we had the President of 
one party and the Senate controlled by the other, a stalemate. 
And now that we have both the White House and the Senate 
controlled by the same party, we come to the filibuster. The 
President has exercised his constitutional prerogatives for 
interim appointments, and now the Senate is exercising its 
asserted power for filibuster. So I do not know where the 
nomination is going to go.
    You are obviously very well qualified. There are quite a 
number of questions I would like you to respond to for the 
record. But unlike Ms. Iovino, where I think confirmation will 
occur in due course--unless the stalemate proliferates to all 
nominees, which is a possibility--but I think at this time it's 
unlikely. I just wanted to make you aware of that. I was on the 
floor within the hour trying to find a judicial protocol to 
solve the problem.
    Mr. Davis. I appreciate that, Mr. Chairman.
    Chairman Specter. Professor Davis, I will do my best to 
move for your confirmation. You have a very distinguished 
record and I think the court is lucky to have a man of your 
background and qualifications.
    Mr. Davis. Thank you, Mr. Chairman.
    Chairman Specter. That concludes the hearing.
    [Whereupon, at 3 p.m., the Committee adjourned.]
















  NOMINATIONS INCLUDING MARY J. SCHOELEN AND WILLIAM A. MOORMAN TO BE 
           JUDGES, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

                              ----------                              


                      THURSDAY, SEPTEMBER 30, 2004

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:04 p.m., in 
room SR-418, Russell Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Craig, Graham, and Rockefeller.

      OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN, 
                   SENATOR FROM PENNSYLVANIA

    Chairman Specter. Good afternoon, ladies and gentlemen. We 
will now proceed with the hearing for three nominees who are 
before the Committee.
    If you will all stand and take the oath.
    Do you all solemnly swear that the testimony you will give 
before the Committee will be the truth, the whole truth and 
nothing but the truth, so help you God?
    Ms. Schoelen. I do.
    Gen. Moorman. I do.
    Chairman Specter. The nominees before us today are Mary J. 
Schoelen, and Major General William A. Moorman, United States 
Air Force (Retired), to be Judges of the United States Court of 
Appeals for Veterans Claims.
    Ms. Schoelen is no stranger to this Committee, having 
served on the staff here for many years, and we will turn to 
her first.
    Ms. Schoelen, do you have an opening statement?

STATEMENT OF MARY J. SCHOELEN, NOMINEE TO BE JUDGE, U.S. COURT 
                 OF APPEALS FOR VETERANS CLAIMS

    Ms. Schoelen. Yes. Thank you, Mr. Chairman.
    I am honored to have been nominated by the President an 
associate judge on the United States Court of Veterans Claims. 
I would like to thank Senator Rockefeller for his unwavering 
support, not just for my nomination, but for my work on the 
Committee. It was a true privilege to work for someone who 
cares so passionately for the American people and who has 
devoted himself to improving the quality of their lives.
    I have had the tremendous fortune to work for not one, but 
two great Senators. I can express nothing but admiration for 
Senator Bob Graham's integrity and intellect. Their efforts are 
great examples of what can be accomplished through a lifetime's 
commitment to public service.
    From the time that I first set my sights on law school, I 
was also determined to pursue a life in public service. My 
father, Commander Lawrence Schoelen, did have such a life, 
serving more than 27 years in the United States Navy. Through 
him, I learned firsthand of the sacrifices that servicemembers 
and their families are asked to make.
    My abiding respect for those who have answered the call to 
service has grown into a career spent working on veterans 
issues. While still a law student, I joined the National 
Veterans Legal Services Program and represented veterans who 
were appealing VA decisions on their benefits claims. I found 
this work immensely rewarding.
    After graduating law school, I came to work for this 
Committee as an intern and developed a great appreciation for 
the ability of the legislative process to touch millions of 
lives. From there, I returned to representing veterans in their 
appeals, as well as training and supervising other veterans' 
advocates, at the Vietnam Veterans of America.
    I returned to the staff of the Senate Committee on 
Veterans' Affairs in 1997, where I have worked on a wide range 
of veterans-related issues. During this time, I have been 
privileged to work closely with the Veterans Service 
Organizations, VA, the Department of Labor and my colleagues on 
the House VA Committee staff.
    Through these experiences, I have become very familiar with 
the complexities of the VA benefits delivery system and its 
controlling statutes. I believe that the insights and skills I 
have gained representing disabled veterans before VA and 
working on veterans legislation here in the Senate have 
prepared me for the challenges that judges on this court face.
    Throughout my career, I have labored to achieve a balance 
that ensures veterans receive the benefits they earned through 
their service, while striving to develop sound policy that 
guarantees the long-term integrity of the system. If confirmed, 
I will continue to seek this balance on the court. I will 
review the facts and the applicable laws of each case and 
dedicate myself to rendering fair and timely decisions.
    Mr. Chairman, thank you for the opportunity to appear here 
today. It is a true honor to be considered for this position. I 
would like to thank your Committee staff for their assistance 
during the nomination process, as well as their professionalism 
and collegiality over the many years that we have worked 
together. Finally, I would like to thank my family, Brad Smith, 
colleagues and friends who have gathered here today to show 
their support.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Schoelen follows:]
     Prepared Statement of Mary J. Schoelen, Nominee to be Judge, 
               U.S. Court of Appeals for Veterans Claims
    Thank you, Mr. Chairman and Members of the Committee.
    I am honored to have been nominated by the President to serve as an 
associate judge on the United States Court of Appeals for Veterans 
Claims.
    I would like to thank Senator Rockefeller for his kind introduction 
and his unwavering support--not just for my nomination, but for my work 
on the Committee. It was a true privilege to work for someone who cares 
so passionately for the American people and who has devoted himself to 
improving the quality of their lives.
    I have had the tremendous fortune to work for not one, but two 
great Senators. I can express nothing but admiration for Senator Bob 
Graham's integrity and intellect.
    Their efforts are great examples of what can be accomplished 
through a lifetime's commitment to public service. From the time that I 
first set sights on law school, I was also determined to pursue a life 
in public service. My father, Commander Lawrence Schoelen, did have 
such a life, serving more than 27 years in the United States Navy. 
Through him, I learned firsthand of the sacrifices that servicemembers 
and their families are asked to make.
    My abiding respect for those who have answered the call to service 
has grown into a career spent working on veterans issues. While still a 
law student, I joined the National Veterans Legal Services Program and 
represented veterans who were appealing VA decisions on their benefits 
claims. I found this work immensely rewarding. After graduating law 
school, I came to work for this Committee as an intern, and developed a 
great appreciation for the ability of the legislative process to touch 
millions of lives. From there, I returned to representing veterans in 
their appeals, as well as training and supervising other veterans' 
advocates, at the Vietnam Veterans of America. I returned to the staff 
of the Senate Committee on Veterans' Affairs in 1997, where I have 
worked on a wide range of veterans-related issues. During this time, I 
have been privileged to work closely with the Veterans Service 
Organizations, VA, the Department of Labor, and my colleagues on the 
House VA Committee staff.
    Through these experiences, I have become very familiar with the 
complexities of the VA benefits delivery system and its controlling 
statutes. I believe that the insights and skills I have gained 
representing disabled veterans before VA and working on veterans 
legislation here in the Senate have prepared me for the challenges that 
judges on this court face.
    Throughout my career, I have labored to achieve a balance that 
ensures veterans receive the benefits they earned through their 
service, while striving to develop sound policy that guarantees the 
long-term integrity of the system. If confirmed, I will continue to 
seek this balance on the court; I will review the facts and these 
applicable laws of each case and dedicate myself to rendering fair and 
timely decisions.
    Mr. Chairman, thank you for the opportunity to appear here today. 
It is a true honor to be considered for this position. I would like to 
thank your Committee staff for their assistance during the nomination 
process, as well as their professionalism and collegiality over the 
many years that we have worked together. Finally, I would like to thank 
my family, Brad Smith, colleagues and friends who have gathered here 
today to show their support. I would especially like to thank Jim 
Gottlieb, Bill Brew, Ellen Doneski, Bryant Hall, and Buddy Menn. 
Without them, this would not have been possible.
    I am prepared to answer any questions that Members of the Committee 
may have.


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairman Specter. Senator Graham has entered the room, and 
it is our custom that when a Senator arrives, we recognize them 
immediately.
    So, Senator Graham, we will hear from you now.

               STATEMENT HON. LINDSEY O. GRAHAM, 
                  SENATOR FROM SOUTH CAROLINA

    Senator Graham. Mr. Chairman, that is a great custom.
    It is with great pleasure that I appear before our 
Committee. I have enjoyed serving on the Committee under your 
chairmanship, and today is one of the fun things a Senator gets 
to do and introduce to his colleagues a very fine gentleman for 
a very important position.
    General Moorman--in our relationship, I always waited on 
him because he was a two-star general and I was a lieutenant 
colonel. But, Mr. Chairman, I could not more highly recommend a 
person to this Committee than General Moorman. He is the most 
recent Judge Advocate General of the Air Force. He is now 
retired. He has had about every job an Air Force lawyer could 
have. He led the Department extremely well as the Judge 
Advocate General for the Air Force, a man of the highest 
integrity.
    He was in the Pentagon on September 11, 2001, and took a 
leadership role of evacuating the building, caring for those 
who were hurt, then went with the air staff to plan a counter-
response.
    Since his retirement, General Moorman has served in the 
Department of Veterans Affairs as a counselor to the general 
counsel and as Assistant to the Secretary for Regulation 
Policy. In this role, Mr. Chairman, he was responsible for a 
comprehensive review of all VA regulations to ensure clarity, 
consistency, user-friendliness and compliance with the law. In 
other words, he tried to take the regulatory scheme of the VA 
and put it in understandable English.
    He has been there for his country in a variety of roles. He 
has served the Veterans Department well. He has served his 
Nation well in uniform, and I think he would be a great 
addition to the Court of Appeals for Veterans Claims. He will 
make it more efficient. He is an eminently fair man, and it is 
with great pleasure that I recommend his appointment to the 
Committee.
    General, I am very proud of you.
    Chairman Specter. Thank you very much, Senator Graham.
    Senator Rockefeller.

           STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 
                   SENATOR FROM WEST VIRGINIA

    Senator Rockefeller. Thank you, Mr. Chairman. I am 
unaccustomed to sitting here. This is a first. I am grateful to 
you for holding this, welcoming our nominees, Robert Allen 
Pittman and Mary Schoelen. They are very qualified, and I wish 
to say a word about Mary.
    I am particularly happy that Mary is having her hearing 
today. She is no stranger to us. Indeed, the Chairman and I put 
Mary's nomination forward in June of 2002. So it is a long time 
in the works, but I am very glad that this hearing has been 
scheduled and I appreciate it.
    Mary first came to this Committee in 1994 as an intern, 
working for free--that impresses me--and eager to gain more 
experience in an area where she has always been interested and 
passionate, and that is called veterans, individually and 
collectively.
    I have always been most impressed with Mary's compassion 
for veterans that we serve and her commitment to work on 
matters and people in whom she believes so strongly.
    She never loses sight of serving the individual veteran. 
One example of that is, I specifically recall one young West 
Virginia veteran who was losing his fight with Lou Gehrig's 
disease. His family felt that the law VA was applying to the 
adaptive housing grant for his home was unjust. She listened, 
she researched, and then she set about to successfully fix what 
was wrong and make it right.
    She took the plight of one individual veteran and worked to 
change the entire law so that thousands of veterans could 
benefit. That is just one small example of the many successful 
pieces of legislation that Mary has championed and helped usher 
through this process in this Committee and in this Congress to 
a positive solution.
    Mary has a huge range of experience, part of which I had to 
cut out because it was so extensive so I wouldn't go on too 
long. All of this experience will serve her well on the court.
    When Mary finished her internship with this Committee, she 
joined the staff of Vietnam Veterans of America. She 
represented veterans before the VA and trained other advocates 
for veterans. In 1997, I was very fortunate to convince Mary to 
return to what at that point was my Committee staff it is nice 
to say, where she later became the Committee's General Counsel 
and Deputy Staff Director for Benefit Programs. She understands 
veterans' matters from all angles.
    Mary's unique perspective and knowledge gained while 
advocating for veterans before the VA and here in Congress make 
her particularly well-suited to be a judge on this court. This 
Committee and the full Senate should be enormously proud that 
one of our own is again willing to continue to serve veterans 
in a very direct way.
    Mr. Chairman, I feel very strongly about Mary 
professionally and personally. I think she is a superb person, 
an exceptionally wonderful person. I want very much to thank 
you, Mr. Chairman, for moving these nominations expeditiously 
to make this all happen. It is critical that these nominees for 
this important and special court are approved. Your efforts to 
achieve this should be properly recognized. I also want to 
acknowledge your Chief Counsel, Bill Tuerk, for his fine work 
during this process.
    I thank you for your attention and recommend highly Mary 
Schoelen to the position for which she has been nominated.
    Chairman Specter. Thank you, Senator Rockefeller.
    Ms. Schoelen, is there anyone in the hearing room you would 
like to introduce?
    Ms. Schoelen. Yes. Thank you, Mr. Chairman. With me today I 
have my brother, Larry Schoelen, and my boyfriend, Brad Smith.
    Chairman Specter. General Moorman, is there anyone in the 
hearing room you would like to introduce?
    General Moorman. Yes, Mr. Chairman. I have with me my wife, 
Bobbie.
    Chairman Specter. Since both Ms. Schoelen and General 
Moorman are up for the same position, I will ask the questions 
and ask each of you to respond.
     As a generalization, Ms. Schoelen, what are your views as 
to the role of a judge with respect to interpreting or making 
law?
    Ms. Schoelen. Well, a judge has the role to interpret law. 
It is not their role to make law. The jurisdiction of the court 
and the areas in which it is supposed to interpret statutes and 
regulations have been clearly laid out, and that was what I 
would endeavor to follow if I were to be confirmed.
    Chairman Specter. What is your thought on that subject, 
General Moorman?
    General Moorman. Senator, I would agree with what Mary has 
just said. I think that the role of a judge is to apply the law 
to the facts that come before him, in accordance with the 
statutes that govern the court.
    Chairman Specter. What is your view of the unique procedure 
in this court, where there are advocates for claimants who are 
not members of the bar? Does that give you any pause, General 
Moorman?
    General Moorman. No, Senator, it doesn't. In this 
particular case, I think in keeping with the general construct 
of the court to handle veterans' claims, it is important that 
veterans have the opportunity to come before the court and to 
present their own cases, if they see that as in their 
interests, and not feel as though they have to hire an attorney 
to get a fair and just hearing of their claims.
    Chairman Specter. Well, the issue of hiring an attorney may 
not influence the court in terms of making a fair adjudication, 
but how about the quality of presentation? Would you encourage 
pro se litigants, people who are representing themselves, to 
try to get professional assistance, a member of the bar?
    General Moorman. I think that the rules of the court, 
Senator, actually, if there is going to be a panel decision, do 
encourage claimants who are appearing pro se to consider 
representation. But in terms of what a judge should bring to a 
particular case, I would hope that in my considerations it 
would not matter whether the litigant came before me 
representing himself or herself, or was represented by counsel, 
because the duty of the judge is to decide the case fairly 
based on the facts and the law.
    Chairman Specter. Ms. Schoelen, do you think that there is 
any significant advantage for a claimant to have a member of 
the bar represent him as opposed to representing himself or 
herself pro se, or having a non-lawyer advocate?
    Ms. Schoelen. I don't believe that there is necessarily an 
advantage between a member of the bar and a non-attorney 
practitioner. There are many skilled non-attorney practitioners 
who have practiced for years as veterans' advocates through the 
service organizations that practice before the court.
    I do think that the system of laws and regulations is 
complex, and a pro se litigant would probably be greatly aided 
by the help of an attorney or a non-attorney practitioner. But 
I echo General Moorman's sense that it is their right, and if 
that is what they wish to do, the court should certainly allow 
for pro se litigants and review the evidence and the facts in 
whatever manner they are presented.
    Chairman Specter. Well, at one of the first hearings after 
being elected to the Senate on the Judiciary Committee, Senator 
Strom Thurmond was the Chairman and one of the questions which 
he addressed to the nominees was, in his inimitable accent, 
``If you are confirmed, do you promise to be courteous?'' 
Translated into English that is, if you are confirmed, do you 
promise to be courteous? And the thought that went through my 
mind was what a meaningless question. What is a nominee going 
to say.
    Both of the nominees responded in the affirmative, and then 
Senator Thurmond said, ``The more power a person has, the more 
courteous the person should be.'' Translated again, the more 
power a person has, the more courteous a person should be. Over 
the years, I have come to regard that as a very profound 
statement, and when I have presided on hearings in the 
Judiciary Committee or on this Committee, I have always asked 
that question.
    Ms. Schoelen, do you promise to be courteous?
    Ms. Schoelen. Yes, Mr. Chairman.
    Chairman Specter. General Moorman?
    General Moorman. Absolutely, Mr. Chairman.
    Chairman Specter. Well, remember that, because there are 
nominees who have told me years later, more than decades later 
that was a very important comment which was made because there 
tends to be an attitude, once you have that black robe on, of 
sort of omnipotence, and especially in a context where you are 
going to have people who are pro se or who are not trained in 
the law. It is true that some of the non-attorney advocates are 
very well-versed and very, very experienced, and may have 
superior skills than some beginning lawyers would who appear 
before the court. But bear that in mind.
    Ms. Schoelen, do you anticipate having any extra expertise 
on being a judge of this court, if confirmed, as a result of 
your work for the Committee? Do you think you will know a 
little more about legislative intent, or have a little 
different insight than, say, General Moorman will?
    Ms. Schoelen. Well, I don't believe that any one staffer 
can really try and nail down what congressional intent is, 
since it is an understanding of the entire body and of both 
chambers. And I don't really think that it would affect my 
judgment in a particular case. I would look at the facts and 
applicable law and, if necessary, then move on to the publicly 
available legislative history.
    Chairman Specter. Well, wouldn't congressional intent be a 
relevant factor on interpretation of a statute which is not 
plain on its face?
    Ms. Schoelen. Yes, Mr. Chairman, and to that avenue I would 
look to the publicly available documents that all judges would 
have available to them.
    Chairman Specter. And suppose you had some special 
expertise. How could you close your mind to that?
    Ms. Schoelen. Well, a judge's role is to be fair and 
impartial, and I think that carries into that area of you have 
to look at the facts that are before you and the law that is 
before you and the available evidence that would clarify that 
material.
    Chairman Specter. General Moorman, do you think there is 
any such thing as congressional intent, or do you think that 
Justice Scalia is pretty much right when he says it is an 
irrelevancy; that you only have to look at the face of the 
statute?
    General Moorman. Senator, I think that in the cases where 
the statute is clear on its face, obviously there is no need to 
look for legislative intent. But I would hope that in cases 
where the statute is not clear on its face that I could look to 
the record to define, if necessary, what the legislative intent 
was and help inform my decision.
    Chairman Specter. How would you seek to determine that 
legislative intent, Ms. Schoelen?
    Ms. Schoelen. I would look at Committee reports, joint 
explanatory statements, floor statements that may have been 
published in the Congressional Record.
    Chairman Specter. Would you look at Committee reports?
    Ms. Schoelen. Yes, sir.
    Chairman Specter. Haven't you seen Committee reports always 
prepared by staff? Would you say that staff intent is relevant?
    Ms. Schoelen. Staff intent is illustrated through their 
Members' direction and intent.
    Chairman Specter. If it is ratified?
    Ms. Schoelen. I'm sorry, sir?
    Chairman Specter. Ratified?
    Ms. Schoelen. Does the staff ratify what the Members say?
    Chairman Specter. No. Does the Member ratify the staff? I 
hadn't heard it in the reverse.
    Ms. Schoelen. I would say it would perhaps depend on the 
committee, sir.
    Chairman Specter. I am sorry that Colonel Graham is gone. 
How does a Senator's rating compare to a general's rating, 
General Moorman, contrasted with a lieutenant colonel's rating 
to a major general? And this is specifically with Senator 
Graham, not any other Senator.
    General Moorman. Well, I will be deeply indebted to Senator 
Graham for the fine words that he spoke today, regardless of 
how you would sort out the relative merits or whether or not we 
are in uniform. And it is unlikely that I will be in uniform 
again, so there would always be deference to Senator Graham.
    Chairman Specter. Hypothetically, Ms. Schoelen, if you 
found a longstanding precedent from the court which you thought 
was erroneous under the plain meaning of the statutory 
construction as you read it, how would you balance your own 
view of a clear-cut statutory construction as opposed to a 
longstanding practice of the court which you thought was wrong?
    Ms. Schoelen. Mr. Chairman, if the interpretation of the 
statute was clear on its face to be incorrect, it would be the 
court's role to overturn that interpretation, despite 
longstanding precedent.
    Chairman Specter. What is your sense on that, General 
Moorman?
    General Moorman. I would agree completely, Senator. A judge 
must rule on those legal issues as he sees the law----
    Chairman Specter. Or she.
    General Moorman.--or she sees the law.
    Chairman Specter. Would the potential cost of overturning a 
historically established rule enter into your decision on how 
to adjudicate a case?
    General Moorman. Senator, it wouldn't enter into my 
decision if we were talking about a statute that was clear on 
its face. However, if it was a statute that was not clear on 
its face and I felt as though we were operating in an area 
where, because there was latitude left in the statute, the 
agency appropriately acted, then the agency's analysis, 
including cost, would become an important factor in determining 
whether or not they had taken an appropriate course in 
regulating within the law.
    Chairman Specter. To what extent do you think it's 
appropriate for the agency to consider cost in its 
decisionmaking process?
    General Moorman. I think that, from time to time, it has to 
be an important factor. I would think that it ought to weigh 
less heavily where it is clear that the intent of Congress is 
to deliver benefits, compensation and pension, to veterans. And 
the overriding principles that underlie veterans' compensation 
and pension programs are the delivery of those benefits.
    Chairman Specter. Well, should it weigh at all under those 
circumstances? Should cost weigh at all under the circumstances 
you have just described?
    General Moorman. With regard to particular benefits, I 
would say not. With regard to defining the right policy 
decisions within the law with regard to what conditions might 
have to be met in order to qualify for benefits, I would say it 
might be a consideration. I would not give it great weight.
    Chairman Specter. Well, what kind of policy matters are you 
thinking about where cost would be a factor?
    General Moorman. I think the one situation that would come 
to mind for me, Senator, would be not in the benefits area, but 
more in the medical care delivery area, where the Secretary 
made the decision, I think, reluctantly to stop enrollment of 
Category 8 veterans because the net result of continuing to 
enroll those veterans for care was that it put them behind the 
queue of veterans who had been injured in service. Those kinds 
of decisions.
    Chairman Specter. Ms. Schoelen, how about the cost factor 
as a consideration in your judgments, if confirmed?
    Ms. Schoelen. I would again agree with General Moorman's 
analysis that if an interpretation of the agency was wrong, 
clearly wrong on its face, that cost should not play a factor. 
But the court is not intended to overturn regulations or rules 
that are not arbitrary and capricious. So, if there was not a 
clear finding that the agency was acting in error, then it 
would not come into play.
    Chairman Specter. So you agree with what he said just like 
he, a few moments ago, agreed with what you said?
    Ms. Schoelen. Yes, sir.
    Chairman Specter. Have you conspired in advance?
    Ms. Schoelen. No, sir.
    General Moorman. No, sir, we have not.
    Chairman Specter. Senator Craig.
    Senator Craig. Mr. Chairman, I am not going to try to 
follow that line of questioning, but let me say thank you for 
convening this hearing and having these folks before us. We 
have a critical need in this particular area. The U.S. Court of 
Appeals for Veterans Claims has a mounting caseload of 
substantial proportion. In 2003, new case filings reached an 
all-time high of 2,532. That is more than 200 case filings per 
month. We have a nine-member court and four vacancies. They are 
not at full speed and full muscle, and it is important that 
they be for the sake of our veterans.
    So, I do appreciate this hearing and I do appreciate 
qualified people coming before us, and I think that is what we 
have in both of these folks today. I look forward to moving 
them forward, giving them the attention they need, and those 
who have languished seeking the attention of the full Senate. I 
hope that we can, at least, fill three of those four vacancies.
    Thank you very much.
    Chairman Specter. Thank you, Senator Craig. The Committee 
has been very, I think fairly stated, diligent in proceeding.
    Senator Craig. I appreciate that.
    Chairman Specter. We have had some delays which are 
regrettable, but none that has been attributable to the 
excellent management of Bill Tuerk, the Staff Director, who 
handles me like a mannequin.
    Senator Craig. And then there is another factor here, too. 
One more hearing during this session of Congress would give you 
that opportunity to preside and this might well be your last 
opportunity before this Committee.
    Chairman Specter. Well, I consider it a high calling and if 
I am not here, there will be someone excellent in the wings, 
like Senator Craig. But we have tried to push this along very, 
very expeditiously.
    Senator Craig. And it is appreciated. Thank you.
    Chairman Specter. The staff work here has been really 
excellent. And ``mannequin'' might be the wrong word. It might 
be more like Edgar Bergen and Charlie McCarthy. The only thing 
I do not read are his questions. I use my own.
    General Moorman, I didn't give you a chance to make an 
opening statement. Would you like to make a concluding 
statement?
    General Moorman. Senator, I would like to make a brief 
statement, if I may.

 STATEMENT OF MAJOR GENERAL WILLIAM A. MOORMAN (RET.), NOMINEE 
     TO BE JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

    Mr. Chairman, Members of the Committee, I am honored to 
have been nominated by the President for a position on the 
Court of Appeals for Veterans Claims. I want to thank you for 
the opportunity to appear here today. I also want to thank 
Senator Graham for his gracious introduction, and most of all 
my wife, Bobbie, who is here today and has always supported me.
    Thirty-three years ago this month, I entered active duty in 
the Air Force with the expectation that I would complete my 4 
years of obligated service and return to practice law in my 
hometown of Chicago. More than 30 years later, I retired from 
the Air Force in the spring of 2002
    During that 30-plus years, I learned firsthand about the 
extraordinary men and women who serve our country in uniform. 
Shortly after my retirement, I was offered a position at the 
Department of Veterans Affairs. And in the last two years, I 
have learned more about the lasting sacrifices that our 
veterans have made for our country. If confirmed, I pledge to 
the Committee and to the Senate that I will bring all that I 
have learned to my new position, where I might assure that 
every veteran and every veteran's family member who comes 
before the court gets the full and fair hearing to which they 
are entitled.
    Thank you, Mr. Chairman.
    [Prepared statement of General Moorman follows:]
    Prepared Statement of Major General William A. Moorman (Ret.), 
     Nominee to be Judge, U.S. Court of Appeals for Veterans Claims
    Mr. Chairman, Members of the Committee, I am honored to have been 
nominated for a seat on the Court of Appeals for Veterans Claims. Thank 
you for the opportunity to appear here today.
    My thanks also go to my mother and father, Mary and Jim Moorman, 
who taught me to treat others as I wanted to be treated, to always act 
with integrity, and to believe that hard work is always worth the 
effort. I thank my mother-in-law, Junice Zook, for her always positive 
outlook, no matter how dire the situation and my late father-in-law, 
Roy Zook, for his service in World War II and his loving example of a 
life well-led. I thank our daughter, Kelly, just for being the terrific 
person she is, for marrying a great guy, and raising two marvelous 
grandchildren who are a constant source of joy in our lives. Finally, I 
want to thank my wife, Bobbie, who is here today, for her constant, 
loving support. Without her by my side, I could not continue in public 
service.
    Thirty-three years ago this month, I entered active duty in the Air 
Force with the expectation that I would complete my 4-year tour of duty 
and return home to Chicago to practice law. More than thirty years 
later, I retired from the Air Force in the spring of 2002. During that 
thirty plus years, I learned firsthand about the extraordinary men and 
women who serve our Country. I saw the endless demands they faced. I 
saw them put duty above all else. And, I saw their families willingly 
shoulder the burden of service as well.
    Shortly after my retirement, I was offered a position at the 
Department of Veterans Affairs. In the last 2 years, I have learned 
still more about the lasting sacrifices of those who have served our 
Country. I have visited with wounded soldiers at Walter Reed and I have 
met veterans from every conflict since World War II. I have heard their 
stories of service, and I have seen the toll their service has taken on 
their health.
    If confirmed, I pledge that I will bring all that I have learned 
over these last thirty-three years to my new position where I might 
assure that every veteran and every veteran's family member gets the 
full and fair hearing concerning their claims that our Nation has 
promised to each.
    Thank you Mr. Chairman. I'll be happy to respond to any questions 
you and the Committee may have for me.


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairman Specter. Thank you General Moorman, and thank you, 
Ms. Schoelen. We will try to act expeditiously on your 
nominations. We know the need for speed so that the court will 
be able to discharge its duties.
    That conludes our hearing.
    [Whereupon, at 2:43 p.m., the Committee adjourned.]



  

                                  
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