[Senate Hearing 108-135]
[From the U.S. Government Publishing Office]


                                                 S. Hrg. 108-135, Pt. 2
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

     FEBRUARY 5, FEBRUARY 12, MARCH 12, MARCH 27, AND APRIL 1, 2003

                               __________

                                 PART 2

                               __________

                           Serial No. J-108-1

                               __________

         Printed for the use of the Committee on the Judiciary





                      U.S. GOVERNMENT PRINTING OFFICE

90-303                      WASHINGTON : 2004
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800, DC area (202) 512-1800 Fax: (202) 512-2250 Mail: stop SSOP, Washington, DC 20402-0001





                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
            Makan Delrahim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director




                            C O N T E N T S

                              ----------                              

                      WEDNESDAY, FEBRUARY 5, 2003
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   201
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    11
    prepared statement...........................................   207

                               PRESENTERS

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio 
  presenting Gregory L. Frost, Nominee to be District Judge for 
  the Southern District of Ohio..................................    13
Dorgan, Hon. Byron, a U.S. Senator from the State of North Dakota 
  presenting Ralph R. Erickson, Nominee to be District Judge for 
  the District of North Dakota...................................     9
Ensign, Hon. John, a U.S. Senator from the State of Nevada 
  presenting Jay S. Bybee, Nominee to be Circuit Judge for the 
  Ninth Circuit..................................................     5
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland 
  presenting William D. Quarles, Jr., Nominee to be District 
  Judge for the District of Maryland.............................     7
Pomeroy, Hon. Earl, a Representative in Congress from the State 
  of North Dakota presenting Ralph R. Erickson, Nominee to be 
  District Judge for the District of North Dakota................     9
Reid, Hon. Harry, a U.S. Senator from the State of Nevada 
  presenting Jay S. Bybee, Nominee to be Circuit Judge for the 
  Ninth Circuit..................................................     6
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland 
  presenting William D. Quarles, Jr., Nominee to be District 
  Judge for the District of Maryland.............................     4

                       STATEMENTS OF THE NOMINEES

Bybee, Jay S., Nominee to be Circuit Judge for the Ninth Circuit.    16
    Questionnaire................................................    23
Erickson, Ralph R., Nominee to be District Judge for the District 
  of North Dakota................................................    56
    Questionnaire................................................    64
Frost, Gregory L., Nominee to be District Judge for the Southern 
  District of Ohio...............................................    57
    Questionnaire................................................   130
Quarles, William D., Jr., Nominee to be District Judge for the 
  District of Maryland...........................................    56
    Questionnaire................................................   104

                         QUESTIONS AND ANSWERS

Responses of Jay Bybee to questions submitted by Senator Biden...   157
Responses of Jay Bybee to questions submitted by Senator Edwards.   162
Responses of Jay Bybee to questions submitted by Senator Feingold   165
Responses of Jay Bybee to questions submitted by Senator Kennedy.   169
Responses of Jay Bybee to questions submitted by Senator Leahy...   174

                       SUBMISSIONS FOR THE RECORD

Blakesley, Christopher L., Professor of Law, University of Nevada 
  Las Vegas, Las Vegas, Nevada, letter...........................   192
Care, Hon. Terry John, State Senator, State of Nevada, Las Vegas, 
  Nevada, letter.................................................   195
Conrad, Hon. Kent, a U.S. Senator from the State of North Dakota, 
  letter in support of Ralph R. Erickson, Nominee to be District 
  Judge for the District of North Dakota.........................   196
Garvey, John H., Dean, Boston College Law School, Newton, 
  Massachusetts, letter..........................................   197
Gedicks, Frederick Mark, Professor of Law, Brigham Young 
  University Law School, Provo, Utah, letter.....................   198
Green, Stuart P., Professor, University of Glasgow, Glasgow, 
  United Kingdom, letter.........................................   200
Johnson, Steve, Professor, E.L. Wiegand Professor of Law, 
  University of Nevada Las Vegas, Las Vegas, Nevada, letter......   205
Marshall, William P., Kenan Professor of Law, University of North 
  Carolina, Chapel Hill, North Carolina, letter..................   209
McAffee, Thomas B., Professor of Law, University of Nevada Las 
  Vegas, Las Vegas, Nevada, letter...............................   210
Morgan, Richard J., Dean, William S. Boyd School of Law, 
  University of Nevada Las Vegas, Las Vegas, Nevada, letter......   212
Smith, Rodney K., Herff Chair of Excellence in Law, University of 
  Memphis, Memphis, Tennessee, letter............................   214
Tobias, Carl, Beckley Singleton Professor of Law, University of 
  Nevada Las Vegas, Las Vegas, Nevada, letter....................   215
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio, 
  letter in support of Gregory L. Frost, Nominee to be District 
  Judge for the Southern District of Ohio........................   217
Young, Michael K., Dean and Lobingier Professor of Comparative 
  Law and Jurisprudence, George Washington University Law School, 
  Washington, D.C., letter.......................................   219

                      WEDNESDAY, FEBRUARY 12, 2003
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   258
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   443
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   221
    prepared statement...........................................   446
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   228

                               PRESENTERS

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee 
  presenting J. Daniel Breen, Nominee to be District Judge for 
  the Western District of Tennessee and Thomas A. Varlan, Nominee 
  to be District Judge for the Eastern District of Tennessee.....   227
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado 
  presenting Timothy M. Tymkovich, Nominee to be Circuit Judge 
  for the Tenth Circuit..........................................   224
Allen, Hon. George F., a U.S. Senator from the State of Virginia 
  presenting Timothy C. Stanceu, Nominee to be Judge of the 
  United States Court of International Trade.....................   229
Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of 
  Colorado presenting Timonthy M. Tymkovich, Nominee to be 
  Circuit Judge for the Tenth Circuit............................   223
Cannon, Hon. Chris, a Reprsentative in Crongress from the State 
  of Utah presenting Marian Blank Horn, Nominee to be Judge of 
  the United States Court of Federal Claims......................   233
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama 
  presenting William H. Steele, Nominee to be District Judge for 
  the Southern District of Alabama...............................   231
Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama 
  presenting William H. Steele, Nominee to be District Judge for 
  the Southern District of Alabama...............................   226

                       STATEMENTS OF THE NOMINEES

Breen, J. Daniel, Nominee to be District Judge for the Western 
  District of Tennessee..........................................   285
    Questionnaire................................................   294
Horn, Marian Blank, Nominee to be Judge of the U.S. Court of 
  Federal Claims.................................................   287
    Questionnaire................................................   378
Stanceu, Timothy C., Nominee to be Judge of the U.S. Court of 
  International Trade............................................   287
    Questionnaire................................................   359
Steele, William H., Nominee to be District Judge for the Southern 
  District of Alabama............................................   285
    Questionnaire................................................   322
Tymkovich, Timothy M., Nominee to be Circuit Judge for the Tenth 
  Circuit........................................................   236
    Questionnaire................................................   264
Varlan, Thomas A., Nominee to be District Judge for the Eastern 
  District of Tennessee..........................................   286
    Questionnaire................................................   334

                         QUESTIONS AND ANSWERS

Responses of Timothy M. Tymkovich to questions submitted by 
  Senator Durbin.................................................   405
Responses of Timothy M. Tymkovich to questions submitted by 
  Senator Feinstein..............................................   409
Responses of Timothy M. Tymkovich to questions submitted by 
  Senator Leahy..................................................   418
Responses of William H. Steele to questions submitted by Senator 
  Kennedy........................................................   430

                       SUBMISSIONS FOR THE RECORD

Frist, Hon. Bill, a U.S. Senator from the State of Tennessee, 
  prepared statement.............................................   441
Shelby, Hon. Richard C., a U.S. Senator from the State of 
  Alabama, prepared statement....................................   452

                       WEDNESDAY, MARCH 12, 2003
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..   455
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................   471
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   732
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   740
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   742

                               PRESENTERS

Allen, Hon. George F., a U.S. Senator from the State of Virginia 
  presenting Victor J. Wolski, Nominee to be Judge for the United 
  States Court of Federal Claims.................................   462
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana 
  presenting Philip P. Simon and Theresa Lazar Springmann, 
  Nominees to be District Judges for the Northern District of 
  Indiana........................................................   460
Cornyn, Hon. John a U.S. Senator from the State of Texas 
  presenting Ricardo H. Hinojosa, Nominee to be United States 
  Sentencing Commissioner........................................   464
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting James V. Selna and Cormac J. Carney, 
  Nominees to be District Judges for the Central District of 
  California.....................................................   457
Hinojosa, Hon. Ruben E., a Representative in Congress from the 
  State of Texas presenting Ricardo H. Hinojosa, Nominee to be 
  United States Sentencing Commissioner..........................   690
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Ricardo H. Hinojosa, Nominee to be United 
  States Sentencing Commissioner.................................   463
Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana 
  presenting Philip P. Simon and Theresa Lazar Springmann, 
  Nominees to be District Judges for the Northern District of 
  Indiana........................................................   458
Warner, Hon. John W., a U.S. Senator from the State of Virginia 
  presenting Victor J. Wolski, Nominee to be Judge for the United 
  States Court of Federal Claims.................................   461

                       STATEMENTS OF THE NOMINEES

Carney, Cormac J., Nominee to be District Judge for the Central 
  District of California.........................................   465
    Questionnaire................................................   489
Hinojosa, Ricardo H., Nominee to be U.S. Sentencing Commissioner.   691
    Questionnaire................................................   640
Horowitz, Michael E., Nominee to be U.S. Sentencing Commissioner.   692
    Questionnaire................................................   675
Selna, James V., Nominee to be District Judge for the Central 
  District of California.........................................   465
    Questionnaire................................................   502
Simon, Philip P., Nominee to be District Judge for the Northern 
  District of Indiana............................................   467
    Questionnaire................................................   587
Springmann, Theresa Lazar, Nomineee to be District Judge for the 
  Northern District of Indiana...................................   466
    Questionnaire................................................   552
Williams, Mary Ellen Coster, Nominee to be Judge for the U.S. 
  Court of Federal Claims........................................   467
    Questionnaire................................................   605
Wolski, Victor J., Nominee to be Judge for the U.S. Court of 
  Federal Claims.................................................   466
    Questionnaire................................................   532

                         QUESTIONS AND ANSWERS

Responses of Cormac Joseph Carney to questions submitted by 
  Senator Leahy..................................................   695
Responses of James V. Selna to questions submitted by Senator 
  Leahy..........................................................   698
Responses of Philip Peter Simon to questions submitted by Senator 
  Leahy..........................................................   701
Responses of Theresa Lazar Springmann to questions submitted by 
  Senator Leahy..................................................   706
Responses of Victor J. Wolski to questions submitted by Senator 
  Durbin.........................................................   710
Responses of Victor J. Wolski to questions submitted by Senator 
  Schumer........................................................   717
Responses of Victor J. Wolski to questions submitted by Senator 
  Kennedy........................................................   719
Responses of Victor J. Wolski to questions submitted by Senator 
  Leahy..........................................................   721

                       SUBMISSIONS FOR THE RECORD

Alliance for Justice, Nan Aron, President, Washington, D.C., 
  letter.........................................................   724
American Planning Association, Clean Water Action, Community 
  Rights Counsel, Defenders of Wildlife, Earthjustice, Endangered 
  Species Coalition, Friends of the Earth, Mineral Policy Center, 
  National Environmental Trust, Natural Resources Defense 
  Council, Oceana Sierra Club, Southern Utah Wilderness Alliance, 
  joint letter...................................................   726
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  statement in support of Cormac J. Carney and James V. Selna, 
  Nominees to be District Judges for the Central District of 
  California.....................................................   730

                        THURSDAY, MARCH 27, 2003
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........   747
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   974
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   757
    prepared statement...........................................   981
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   761

                               PRESENTERS

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico, 
  presenting Susan G. Braden, Nominee to be Judge for the Court 
  of Federal Claims, and Charles F. Lettow, Nominee to be Judge 
  for the Court of Federal Claims................................   750
Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  presenting Edward C. Prado, Nominee to be Circuit Judge for the 
  Fifth Circuit..................................................   755
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana, 
  presenting Dee D. Drell, Nominee to be District Judge for the 
  Western District of Louisiana..................................   751
Lincoln, Hon. Blanche, a U.S. Senator from the State of Arkansas, 
  presenting J. Leon Holmes, Nominee to be District Court Judge 
  for the Eastern District of Arkansas...........................   753
Mikulski, Hon. Barbara, a U.S. Senator from the State of 
  Maryland, presenting Richard D. Bennett, Nominee to be District 
  Judge for the District of Maryland.............................   749
Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas, 
  presenting J. Leon Holmes, Nominee to be District Court Judge 
  for the Eastern District of Arkansas...........................   755
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland, 
  presenting Richard D. Bennett, Nominee to be District Judge for 
  the District of Maryland.......................................   748
Tauzin, Hon. Billy, a Representatives in Congress from the State 
  of Louisiana, presenting Dee D. Drell, Nominee to be District 
  Judge for the Western District of Louisiana....................   752

                       STATEMENTS OF THE NOMINEES

Bennett, Richard D., Nominee to be District Judge for the 
  District of Maryland...........................................   790
    Questionnaire................................................   798
Braden, Susan G., Nominee to be Judge for the Court of Federal 
  Claims.........................................................   791
    Questionnaire................................................   860
Drell, Dee D., Nomineee to be District Judge for the Western 
  District of Louisiana..........................................   790
    Questionnaire................................................   818
Holmes, J. Leon, Nominee to be District Court Judge for the 
  Eastern District of Arkansas...................................   791
    Questionnaire................................................   840
Lettow, Charles F., Nominee to be Judge for the Court of Federal 
  Claims.........................................................   792
    Questionnaire................................................   902
Prado, Edward C., Nominee to be Circuit Judge for the Fifth 
  Circuit........................................................   762
    Questionnaire................................................   763

                         QUESTIONS AND ANSWERS

Responses of Susan G. Braden to questions submitted by Senator 
  Leahy..........................................................   930
Responses of J. Leon Holmes to questions submitted by Senator 
  Durbin.........................................................   935
Responses of J. Leon Holmes to questions submitted by Senator 
  Leahy..........................................................   947
Responses of J. Leon Holmes to questions submitted by Senator 
  Schumer........................................................   956
Responses of Charles Lettow to questions submitted by Senator 
  Leahy..........................................................   960

                       SUBMISSIONS FOR THE RECORD

Allen, Hon. George, a U.S. Senator from the State of Virginia, 
  statement in support of Charles Lettow, Nominee to be Judge on 
  the U.S. Court of Federal Claims...............................   967
Barrera, Roy R., Jr., Attorney, Nicholas and Barrera, P.C., 
  Attorneys and Counselors at Law, San Antonio, Texas, letter....   968
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, 
  statement in support of Susan G. Braden, Nominee to be Judge 
  for the Court of Federal Claims................................   969
Euler, John Lodge, President, U.S. Court of Federal Claims Bar 
  Association, Washington, D.C., letter..........................   971
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  statement in support of Charles Lettow, Nominee to be Judge on 
  the U.S. Court of Federal Claims...............................   973
Holmes, J. Leon, Letter to Senator Lincoln, dated April 11, 2003.   976
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas, statement in support Edward C. Prado, Nominee to be 
  Circuit Judge for the Fifth Circuit and Charles Lettow, Nominee 
  to be Judge for the U.S. Court of Federal Claims...............   979
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, statement on the nomination of J. Leon Holmes............   985
Warner, Hon. John W., a U.S. Senator from the State of Virginia, 
  statement in support of Charles Lettow, Nominee to be Judge for 
  the U.S. Court of Federal Claims...............................   988

                         TUESDAY, APRIL 1, 2003
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................  1000
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   991
    prepared statement...........................................  1313
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................  1060
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   994
    prepared statement...........................................  1353
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................  1068
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....  1059

                               PRESENTERS

Frist, Hon. Bill, a U.S. Senator from the State of Tennessee 
  presenting Carolyn B. Kuhl, Nominee to be Circuit Judge for the 
  Ninth Circuit..................................................   998
Graham, Hon. Bob, a U.S. Senator from the State of Florida, 
  presenting Cecilia M. Altonaga, Nominee to be District Judge 
  for the Southern District of Florida...........................  1002

                       STATEMENTS OF THE NOMINEES

Altonaga, Cecilia M., Nominee to be District Judge for the 
  Southern District of Florida...................................  1082
    Questionnaire................................................  1083
Kuhl, Carolyn B., Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................  1004
    Questionnaire................................................  1005
Minaldi, Patricia A., Nominee to be District Judge for the 
  Western District of Louisiana..................................  1106
    Questionnaire................................................  1107

                         QUESTIONS AND ANSWERS

Responses of Carolyn Kuhl to questions submitted by Senator Biden  1146
Responses of Carolyn Kuhl to questions submitted by Senator 
  Durbin.........................................................  1154
Responses of Carolyn Kuhl to questions submitted by Senator 
  Edwards........................................................  1160
Responses of Carolyn Kuhl to questions submitted by Senator 
  Feinstein......................................................  1168
Responses of Carolyn Kuhl to questions submitted by Senator 
  Grassley.......................................................  1172
Responses of Carolyn Kuhl to questions submitted by Senator 
  Kennedy........................................................  1176
Responses of Carolyn Kuhl to questions submitted by Senator Leahy  1184
Responses of Carolyn Kuhl to questions submitted by Senator 
  Schumer........................................................  1198

                       SUBMISSIONS FOR THE RECORD

Alder, C. Michael, P.C. Law Office, Beverly Hills, California, 
  letter.........................................................  1206
Alliance for Justice, Washington, D.C., letter...................  1207
Allred, Kevin S., Los Angeles, California, letter................  1224
American Association of University Women, Jacqueline E. Woods, 
  Executive Director, Washington, D.C., letter...................  1226
Antine, Penny, Photographer, North Hollywood, California, letter.  1228
Ashmann-Gerst, Judith, Associate Justice, California Court of 
  Appeal, Second Appellate District, Los Angeles, California, 
  letter.........................................................  1229
Ball, Sharon A., President, National Women's Political Caucus of 
  California, Walnut Creek, California, letter...................  1230
Barzman Norma, Beverly Hills, California, letter.................  1232
Bascue, James A., Presiding Judge, Superior Court, Los Angeles, 
  California, letter.............................................  1233
Bitler, Audrea Golding, Santa Monica, California, letter.........  1235
Bliss, Ina Nuell, Attorney, West Hollywood, California, letter...  1236
Boland, Paul, Court of Appeal, State of California, Los Angeles, 
  California, letter.............................................  1237
Boxer, Hon. Barbara, a U.S. Senator from the State of California:
    statement....................................................  1239
    letter, January 31, 2003.....................................  1241
    letter, April 1, 2003........................................  1242
Breiter, Sally, Santa Monica, California, letter.................  1243
Broillet, Bruce A., Green, Broillet, Taylor, Wheeler and Panish 
  LLP, Santa Monica, California, letter..........................  1244
Brown, Helen, Pasadena, California, letter.......................  1245
California National Organization for Women, Helen Grieco, 
  Executive Director, letter.....................................  1246
California Women Lawyers, San Francisco, California:
    letter, dated July 16, 2001..................................  1247
    letter, dated March 26, 2003.................................  1248
Center for Reproductive Law and Policy, Janet Benshoof, 
  President, Rosemary Dempsey, Director, Washington, Office, 
  Washington, D.C., letter.......................................  1249
Certor, Marcia S., Santa Monica, California, letter..............  1251
Chavez, Victor E., Judge, Superior Court, Los Angeles, 
  California, letter.............................................  1252
Chinese for Affirmative Action, Diane T. Chin, Executive 
  Director, San Francisco, California, letter....................  1253
Colleagues of Judge Carolyn B. Kuhl, Los Angeles, California, 
  joint letter...................................................  1255
Committee for Judicial Independence, Susan Lerner, Chair, Los 
  Angeles, California, letter....................................  1259
Community Rights Counsel, Defenders of Wildlife, Earthjustice, 
  Endangered Species Coalition, Friends of the Earth, Mineral 
  Policy Center, Oceana, Physicians for Social Responsibility, 
  joint letter...................................................  1262
Costales, Manuel S., Orange, California, letter..................  1266
Croskey, H. Walter, Court of Appeal, Second Appellate District, 
  Los Angeles, California:
    letter, dated July 20, 2001..................................  1267
    letter, dated March 26, 2003.................................  1268
Curry, Daniel A., California Court of Appeal, Second Appellate 
  District, Los Angeles, California, letter......................  1270
Davis, Eileen, Los Angeles, California, letter...................  1271
Dawson James R., and Wayne P. Flodman, Torrance, California, 
  joint letter...................................................  1272
Dell Angelo, Robert L., M.D., Los Angeles, California, letter....  1273
Dworkin, Alice, Glendale, California, letter.....................  1275
Dworsky, Marc T.G., Los Angeles, California, letter..............  1276
Eaton, Daniel E., Esq., Seltzer, Caplan, McMahon, Vitek, San 
  Diego, California, letter......................................  1278
Egenberger, Marghatta J.K., Thousand Oaks, California, letter....  1280
Egerton, Anne H., Los Angeles, California, letter................  1281
Ehlmann, Grace, North Hollywood, California, letter..............  1284
Epstein, Norman L., California Court of Appeal, Second Appellate 
  District, Los Angeles, California, letter......................  1285
 Escutia, Hon. Martha M., California State Senator, Thirtieth 
  Senatorial District, Sacramento, California, letter............  1286
Field, Sheila and Arlen Field, Santa Monica, California, letter..  1288
Fields, Michael S., President, Consumer Attorneys Association of 
  Los Angeles, Artesia, California, letter.......................  1289
Fox, Daniel N., Attorney at Law, Pomona, California, letter......  1290
Fox, Jean, New York, New York, letter............................  1291
Friedman, Terry, Superior Court, Juvenile Division, Monterey 
  Park, California, letter.......................................  1292
Gagliardi, Marina, Psychotherapist, Los Angeles, California, 
  letter.........................................................  1294
Gans, Jennifer Cross, letter.....................................  1295
Gartenberg, Allan, Culver City, California, letter...............  1296
Gault, Joy A., Hawthorne, California, letter.....................  1297
Gavurin, Sylvia, Culver City, California, letter.................  1298
Gender Justice Action Group, Pam Godbout, Women's Coordinator, 
  Park Forest, Illinois, letter..................................  1299
Girardi, Thomas V., Girardi, Keese, Los Angeles, California, 
  letter.........................................................  1301
Glaser, Patricia L., Christensen, Miller, Fink, Jacobs, Glaser, 
  Weil & Shapiro, LLP, Los Angeles, California, letter...........  1302
Goodman, Carolina, Sherman Oaks, California, letter..............  1303
Goodman, Jan, Lawyer, Santa Monica, California, letter...........  1304
Grimes, Elizabeth A., Judge, Superior Court, Los Angeles County, 
  Los Angeles, California, letter and attachment.................  1305
Han, Yong, San Francisco, California, letter.....................  1311
Hastings, J. Gary, California Court of Appeal, Second Appellate 
  District, Los Angeles, California, letter......................  1312
Henry, Agnes F., Agoura Hills, California, letter................  1317
Hill, Alice C., Supervising Judge, Superior Court, Los Angeles 
  County, San Fernando, California, letter.......................  1318
Hilton, Linda Ann Wheeler, letter................................  1320
Hirsch, Jane, Pacific Palisades, California, letter..............  1321
Hull, Harry E., Jr., Associate Justice, California Court of 
  Appeal, Third Appellate District, Sacramento, California, 
  letter.........................................................  1322
Hunter, Nicole, San Francisco, California, letter................  1324
Japanese American Citizens League, Beth A. Au, Regional Director, 
  San Francisco, California, letter..............................  1325
Judelson, Debra R., M.D., Beverly Hills, California, letter......  1326
Justice for All Project, Los Angeles, California, letter.........  1327
Kanne, Stephen L., and Claudia A., Los Angeles, California, 
  letter.........................................................  1329
Karpman, Janice, Los Angeles, California, letter.................  1330
Katzman, Eleanor, letter dated June 26, 2001.....................  1331
Kelly, Colleen O., Belmont, California, letter...................  1332
Kightlinger, Pamela, North Hollywood, California, letter.........  1333
Klein, Joan Dempsey, Presiding Justice, California Court of 
  Appeal, Second Appellate Disrict, Los Angeles, California:
    letter, dated April 12, 2001.................................  1334
    letter, dated April 25, 2001.................................  1336
Kolber, Richard, Justice For All Project, letter.................  1338
Kolkey, Daniel M., Associate Justice, California Court of Appeal, 
  Third Appellate District, Sacrmento, California, letter........  1339
Kouzel, Ilene, El Cajon, California, letter......................  1341
Krauss, Irving, Secretary, Alpin County Democratice Central 
  Committee, Markleeville, California, letter....................  1342
Kuehl, Sheila James, California State Senator, Twenty-third 
  Senatorial District, Chair, Natural Resources and Wildlife 
  Committee, Sacramento, California, letter......................  1343
Laemig, Ardi S., letter, dated July 21, 2001.....................  1344
Landrieu, Hon. Mary L., a U.S. Senator from the State of 
  Louisiana, statement in support of Patricia H. Minaldi, Nominee 
  to be District Judge for the Western District of Louisiana.....  1345
Laskin, Lillian, Los Angeles, California, letter.................  1347
Laval, Barbara, letter...........................................  1349
Lawal, Nima T., letter...........................................  1350
Leadership Conference on Civil Rights, Wade Henderson and Dr. 
  Dorothy I. Height, Washington, D.C., letter....................  1351
Legal academics, joint letter, dated March 12, 2003..............  1357
Levich, Stella, Culver City, California, letter..................  1362
Levin, Bonnie Aaron, Los Angeles, California, letter.............  1363
Libman, Joan, San Francisco, California, letter..................  1364
Los Angeles County Bar Association, Miriam Aroni Krinsky, 
  President, Los Angeles, California, letter and attachment......  1365
Ludwig, Miriam, Santa Monica, California, letter.................  1368
Luster, Laura, Oakland, California, letter.......................  1369
Mackey, Malcolm H., Superior Court, Los Angeles County, Los 
  Angeles, California, letter....................................  1370
Mahaffey, Lesley, Fullerton, California, letter..................  1371
Maloney, Ken and Julie Ford-Maloney, Huntington Beach, 
  California, letter.............................................  1372
Manfra, Lorie, Santa Ana, California, letter.....................  1373
Manpearl, Jerry, Mandel & Manpearl, Los Angeles, California, 
  letter.........................................................  1374
Marques, Magaly, Executive Director, Pacific Institute for 
  Women's Health, Los Angeles, California, letter................  1375
Martinez, Vilma S., Los Angeles, California, letter..............  1376
McOwen, Carol M., Pasadena, California, letter...................  1378
Members of the Judiciary Committee of the California Assembly, 
  Sacramento, California, joint letter...........................  1379
Messner, Linda, Culver City, California, letter..................  1381
Miem, Dolores, Thousand Oaks, California, letter.................  1382
Minoo, Parviz and Linda Minoo, Agoura Hills, California, letter..  1383
Moreno, Paul, South Coast Audubon, Mission Viejo, California, 
  letter.........................................................  1384
Mosk, Richard M.:
    Attorney at Law, Los Angeles, California, letter.............  1385
    Associate Justice, California Court of Appeal, Second 
      Appellate District, Los Angeles, California, letter........  1386
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington Bureau, Washington, 
  D.C., letter and attachment....................................  1387
National Family Planning and Reproductive Health Association, 
  Judith M. DeSarno, President/CEO, Washington, D.C., letter.....  1390
National Women's Law Center, statement...........................  1391
Natural Resources Defense Council, John Adams, President, letter.  1394
Nelson, Gretchen M., Attorney at Law, Los Angeles, California:
    letter, dated May 17, 2001...................................  1396
    letter, dated February 14, 2003..............................  1398
Nelson, Hon. Bill, a U.S. Senator from the State of Florida, 
  statement in support of Cecilia Altonaga, Nominee to be 
  District Judge for the Southern District of Florida............  1401
Nieman, Nancy, Ph.D., Southern Director, National Women's 
  Political Caucus of California, letter.........................  1402
Okuneff, Peggy, Culver City, California, letter..................  1403
Olson, Ronald L., Munger, Tolles & Olson LLP, Los Angeles, 
  California, letter.............................................  1404
Orfield, Michael B., Judge, California Superior Court, San Diego, 
  California, letter.............................................  1406
Pacific Institute for Women's Health, Lovisa Stannow, Executive 
  Director, Los Angeles, California, letter......................  1408
Palafoutas, Donna, Santa Ana, California, letter.................  1410
Perluss, Dennis M., California Court of Appeal, Second Appellate 
  District, Los Angeles, California, letter......................  1411
Petersen, Ann L., Arcadia, California, letter....................  1412
Planned Parenthood Federation of America, Inc., Washington, D.C., 
  statement......................................................  1413
Pollak, Stuart, Associate Justice, California Court of Appeal, 
  First Appellate District, San Francisco, California, letter....  1415
Porter, Ann, Los Angeles, California, letter.....................  1416
Project Freedom of Religion, William R. Lakin, Executive 
  Committee, letter..............................................  1417
Renbarger, Nancy, Agoura Hills, California, letter...............  1418
Reynolds, Patrick, President, The Foundation for a Smokefree 
  America, Los Angeles, California, letter.......................  1419
Reynolds, Susan F., M.D., Ph.D., Managing Partner, Susan Reynolds 
  and Associates, Santa Monica, California, letter...............  1420
Rivera, Phoebe, Oak Park, California, letter.....................  1421
Romero, Enrique, Judge (Retired), Pasadena, California, letter...  1422
Rowe, Thomas D., Jr., Duke University School of Law, Durham, 
  North Carolina, letter.........................................  1423
Rule, Wilma, Adjunct Professor, University of Nevada, Department 
  of Political Science, Reno, Nevada, letter.....................  1424
Sallus, Gerald M., Esq., Attorney at Law, Culver City, 
  California, letter.............................................  1425
Salo, Mark, letter, dated Feb. 6, 2003...........................  1426
Sanchez-Scott, Azucena, letter...................................  1427
Schorr, Joyce, Sherman Oaks, California, letter..................  1428
Service Employees Internation Union, AFL-CIO, Anna Burger, 
  International Secretary-Treasurer, Washington, D.C., letter and 
  attachment.....................................................  1429
Sheehan, Katherine C., Professor of Law, Southwestern University 
  School of Law, Los Angeles, California, letter.................  1434
Sloan, Donald E., Lawrence, Kansas, letter.......................  1435
Smith, Christopher Corey, Culver City, California, letter........  1437
Spindel, Blanche, Los Angeles, California, letter................  1438
Swarez, Sheila, Newbury Park, California, letter.................  1439
Taxpayers Against Fraud, James W. Moorman, President, Washington, 
  D.C.:
    letter, dated July 17, 2001..................................  1440
    letter, dated April 3, 2003 and attachment...................  1441
Taylor, Lynn O'Malley, Presiding Judge, San Francisco, 
  California, letter.............................................  1444
Terrell, Leo James, Attorney at Law, Beverly Hills, California, 
  letter.........................................................  1445
Travis, Cynthia, letter..........................................  1447
Turner, Paul, Presiding Justice, California Court of Appeal, 
  Second Appellate District, Los Angeles, California, letter.....  1448
Walker, Cheryl, Venice, California, letter.......................  1451
Wallace, Doris, Rancho Cucamonga, California, letter.............  1452
Ward, James D., Associate Justice, California Court of Appeal, 
  Fourth District, Riverside, California, letter.................  1453
Wells, Patricia, Fresno, California, letter......................  1455
Williams, Thelma, Thousand Oaks, California, letter..............  1456
Williamson, Jan, Venice, California, letter......................  1457
Women's and reproductive rights organizations, Los Angeles, 
  California, joint letter, dated March 31, 2003.................  1458
Zandecki, Jolanta, Berkeley, California, letter..................  1461

                     ALPHABETICAL LIST OF NOMINEES

Altonaga, Cecilia M., Nominee to be District Judge for the 
  Southern District of Florida...................................  1082
Bennett, Richard D., Nominee to be District Judge for the 
  District of Maryland...........................................   790
Braden, Susan G., Nominee to be Judge for the Court of Federal 
  Claims.........................................................   791
Breen, J. Daniel, Nominee to be District Judge for the Western 
  District of Tennessee..........................................   285
Bybee, Jay S., Nominee to be Circuit Judge for the Ninth Circuit.    16
Carney, Cormac J., Nominee to be District Judge for the Central 
  District of California.........................................   465
Drell, Dee D., Nomineee to be District Judge for the Western 
  District of Louisiana..........................................   790
Erickson, Ralph R., Nominee to be District Judge for the District 
  of North Dakota................................................    56
Frost, Gregory L., Nominee to be District Judge for the Southern 
  District of Ohio...............................................    57
Hinojosa, Ricardo H., Nominee to be U.S. Sentencing Commissioner.   691
Holmes, J. Leon, Nominee to be District Court Judge for the 
  Eastern District of Arkansas...................................   791
Horn, Marian Blank, Nominee to be Judge of the U.S. Court of 
  Federal Claims.................................................   287
Horowitz, Michael E., Nominee to be U.S. Sentencing Commissioner.   692
Kuhl, Carolyn B., Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................  1004
Lettow, Charles F., Nominee to be Judge for the Court of Federal 
  Claims.........................................................   792
Minaldi, Patricia A., Nominee to be District Judge for the 
  Western District of Louisiana..................................  1106
Prado, Edward C., Nominee to be Circuit Judge for the Fifth 
  Circuit........................................................   762
Quarles, William D., Jr., Nominee to be District Judge for the 
  District of Maryland...........................................    56
Selna, James V., Nominee to be District Judge for the Central 
  District of California.........................................   465
Simon, Philip P., Nominee to be District Judge for the Northern 
  District of Indiana............................................   467
Springmann, Theresa Lazar, Nomineee to be District Judge for the 
  Northern District of Indiana...................................   466
Stanceu, Timothy C., Nominee to be Judge of the U.S. Court of 
  International Trade............................................   287
Steele, William H., Nominee to be District Judge for the Southern 
  District of Alabama............................................   285
Tymkovich, Timothy M., Nominee to be Circuit Judge for the Tenth 
  Circuit........................................................   236
Varlan, Thomas A., Nominee to be District Judge for the Eastern 
  District of Tennessee..........................................   286
Williams, Mary Ellen Coster, Nominee to be Judge for the U.S. 
  Court of Federal Claims........................................   467
Wolski, Victor J., Nominee to be Judge for the U.S. Court of 
  Federal Claims.................................................   466


NOMINATIONS OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH 
   CIRCUIT; RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE FOR THE 
   DISTRICT OF NORTH DAKOTA; WILLIAM D. QUARLES, JR., NOMINEE TO BE 
  DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND; AND GREGORY L. FROST, 
     NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO

                              ----------                              


                      WEDNESDAY, FEBRUARY 5, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:34 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the committee, presiding.
    Present: Senators Hatch, Kyl, DeWine, Graham, Craig, Leahy, 
and Kennedy.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Okay, we are ready to go. Senator Leahy 
will be here shortly and we will begin.
    I am pleased to welcome to the Committee this morning four 
excellent nominees for the Federal bench. All of you are to be 
commended for your impressive qualifications and 
accomplishments, and I think congratulated without question for 
your nominations. Our first panel today will feature an 
outstanding Circuit Court nominee, Jay S. Bybee, who has been 
nominated to the Ninth Circuit Court of Appeals. Mr. Bybee is 
no stranger to this Committee or to Committee hearings, having 
appeared most recently before the Committee in October of 2001. 
We will also hear from three District Court nominees, Judge 
Ralph R. Erickson for the District of North Dakota; Judge 
William D. Quarles, Jr., for the District of Maryland; and 
Judge Gregory L. Frost for the Southern District of Ohio. And 
of course I would also like to express appreciation for the 
members who have taken time to come and present their views on 
the qualifications of our witnesses today. We will hear from 
them in a moment.
    I am especially honored to have Mr. Jay Bybee here today, 
who has been nominated by President Bush to serve on the Court 
of Appeals for the Ninth Circuit. Professor Bybee comes to us 
with a sterling resume and a record of distinguished public 
service.
    Professor Bybee is currently on leave from UNLV's William 
S. Boyd School of Law, where he has served as a professor since 
the law school's founding in 1999. He has served as an 
Assistant Attorney General for the Department of Justice's 
Office of Legal Counsel, the OLC, since October 2001. Notably 
this is a post formerly held by two current Supreme Court 
Justices. As head of the Office of Legal Counsel, Mr. Bybee 
assists the Attorney General in his function there as legal 
advisor to the President and all Executive Branch agencies. The 
office is also responsible for providing legal advice to the 
Executive Branch on all constitutional questions and reviewing 
pending legislation for constitutionality. I am sure Professor 
Bybee can attest that his work has been more than challenging, 
especially since he joined the OLC soon after the events of 
September 11th, but without question our Nation is lucky to 
have him.
    Professor Bybee is a Californian by birth, but he made the 
wise choice of attending Utah's own Brigham Young University, 
where he earned a bachelor's degree in economics, magna cum 
laude, and a law degree cum laude. While in law school he was a 
member of the BYU Law Review.
    Following graduation, Mr. Bybee served as a law clerk to 
Judge Donald Russell of the Fourth Circuit Court of Appeals 
before joining the firm of Sidley & Austin. In 1984 he accepted 
a position with the Department of Justice, first joining the 
Office of Legal Policy, and then working with the appellate 
staff of the Civil Division. In that capacity Mr. Bybee 
prepared briefs and presented oral arguments in the U.S. Courts 
of Appeals. From 1989 to 1991 Mr. Bybee served as Associate 
Counsel to President George H.W. Bush.
    Professor Bybee is a leading scholar in the areas of 
constitutional and administrative law. Before he joined the law 
faculty at UNLV he established his scholarly credentials at the 
Paul M. Hebert Law Center at Louisiana State University, where 
he taught from 1991 to 1998. His colleagues have described 
Professor Bybee as a first rate teacher, a careful and balanced 
scholar, and a hard-working and open-minded individual with the 
type of broad legal experience the Federal Bench needs.
    The recommendations of two individuals in particular 
deserve special note. Bill Marshall, a professor of law at the 
University of North Carolina and a former Associate White House 
Counsel under President Clinton, who also participated in the 
judicial selection process for Clinton Administration 
appointments while at OLP, said of Mr. Bybee:
    ``The combination of his analytic skills along with his 
personal commitment to fairness and dispassion lead me to 
conclude that he will serve in the best traditions of the 
Federal Judiciary. He understands the rule of law and he will 
follow it completely.''
    Stuart Green, a law professor at Louisiana State 
University, who describes himself as a ``liberal Democrat and 
active member of the ACLU'' has written the committee:
    ``I have always found Jay Bybee to be an extremely fair-
minded and thoughtful person. Indeed, Jay truly has what can 
best be described as a `judicious' temperament, and I would 
fully expect him to be a force for reasonableness and 
conciliation on a court that has been known for its 
fractiousness.''
    We hear a great deal from some Committee members about the 
need for ``balance'' on the Federal Courts. Here we have a 
self-described liberal Democrat who testifies that Professor 
Bybee would bring some balance to the Ninth Circuit. I would 
welcome some balance on a court on which 14 of the 24 active 
judges, including 14 of the last 15 confirmed, were appointed 
by President Clinton. A court which is seldom out of the news 
and often seems to court controversy with its decisions needs 
some leavening once in a while.
    We are all familiar with the Ninth Circuit's Pledge of 
Allegiance ruling this past summer, and the Ninth Circuit's 
high reversal rate by the Supreme Court is well documented, but 
less known is the Ninth Circuit's propensity for reversing 
death sentences, some judges voting to do so almost as a matter 
of course. No doubt the Ninth Circuit has some of the Nation's 
most intelligent judges, but some just seem to not be able to 
follow the law. Just this term the U.S. Supreme Court has 
summarily reversed the Ninth Circuit three times in a 1 day, 
and vacated an opinion 9-0.
    With two judicial emergencies in the Ninth Circuit we need 
judges who are committed to applying and upholding the law. I 
firmly believe Professor Bybee represents this type of judge. I 
am very much looking forward to hearing from Professor Bybee 
today, and to working with this Committee to obtain the 
committee's positive recommendation to the full Senate, and to 
the full Senate's confirmation. He will be a terrific judge, I 
think by any measure.
    In addition to the nomination of Professor Jay S. Bybee to 
the U.S. Court of Appeals for the Ninth Circuit, we have the 
privilege of considering three District Court nominees. Our 
nominee to the U.S. District Court for the District of North 
Dakota, Judge Ralph Erickson, has carved out a stellar legal 
career on both sides of the bench. Judge Erickson served as a 
private practice litigator for more than a decade before being 
elevated to the State Court Bench in North Dakota 8 years ago. 
According to a secret poll conducted by the Forum, Fargo's 
daily newspaper, in 2002, Judge Erickson was selected as ``Best 
Judge in Cass and Clay Counties'' by a survey of over 300 
lawyers in those counties. He also has experience as a city 
prosecutor and attorney in private practice.
    Judge William Quarles, our nominee to the U.S. District 
Court for the District of Maryland, has an impressive record in 
both the private and public sectors. Upon graduating from 
Catholic University Law School, Judge Quarles clerked for Hon. 
Joseph C. Howard of the U.S. District Court for the District of 
Maryland. In addition to private practice experience in complex 
commercial, corporate, antitrust and products liability 
litigation, Judge Quarles has served as an Assistant U.S. 
Attorney, primarily focusing on organized crime prosecutions. 
Judge Quarles is currently an Associate Circuit Judge for the 
Circuit Court of Baltimore City, where he has handled more than 
4,000 criminal cases and tried more than 150 jury trials. That 
is a great record.
    Judge Gregory Frost, our nominee for the Southern District 
of Ohio, has an impressive background in the private and public 
sectors. Upon graduation from Ohio Northern University Law 
School in 1974, Judge Frost served as an assistant Licking 
County prosecuting attorney. In this capacity he handled a 
variety of cases including juvenile and felony prosecutions. 
From 1974 to 1983 Judge Frost was a partner at Schaller, Frost, 
Hostetter & Campbell, where his practice consisted of civil 
litigation including domestic relations law, oil and gas law, 
estate planning and personal injury law. From 1983 to 1990 he 
served as a judge for the Licking County Municipal Court, and 
since 1990 he has served as a judge for the Licking County 
Common Pleas Court.
    I am confident that all three of these fine nominees have 
the intellect, experience and temperament necessary to serve 
with distinction on the Federal Courts. I look forward to 
hearing from them today and to working with my colleagues to 
bring their nominations to a vote very soon.
    So we welcome all of you here this morning. With the 
understanding that as soon as Senator Leahy arrives, we will 
give him the opportunity of giving his opening remarks.
    I think what we will do is begin with you, Senator 
Sarbanes, and we will go across the table by seniority if I 
can. I am delighted to have you Senators here and Congress 
people here. It means a lot to us, and your recommendations are 
important to us.

PRESENTATION OF WILLIAM D. QUARLES, JR., NOMINEE TO BE DISTRICT 
  JUDGE FOR THE DISTRICT OF MARYLAND BY HON. PAUL SARBANES, A 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Sarbanes. Thank you very much, Mr. Chairman and 
Members of the Committee.
    I am very pleased to appear before you this morning to 
commend to you the nomination of William Quarles to become a 
U.S. District Judge for the District of Maryland.
    You have already made comments about Judge Quarles, and I 
agree with those, Mr. Chairman. Judge Quarles is a native of 
Baltimore, a graduate of Catholic University Law School here in 
Washington. Following graduation he clerked for 2 years for 
Judge Joseph C. Howard, who I had the honor and privilege of 
recommending to this Committee many, many years ago. Judge 
Howard was the first African-American Judge to sit on the 
Federal District Court in our State.
    Following his 2-year clerkship with Judge Howard, Judge 
Quarles practiced shortly with a firm here in the District of 
Columbia, with Finley, Kumble, Wagner, and then went into the 
U.S. Attorney's Office in Maryland and served 4 years as an 
Assistant U.S. Attorney. He then joined the very distinguished 
law firm of Venable, Baetjer and Howard, one of our State's 
leading firms, and practiced there for 10 years.
    Both the experience in the U.S. Attorney's Office, trying 
complex criminal matters involving organized crime, and his 
very complex civil legal practice at Venable, Baetjer and 
Howard, obviously gave him I think a very important basis with 
which to handle trial matters. He then went on the Circuit 
Court in Baltimore City, which is a trial court of general 
jurisdiction in our State, and he has been on that trial court 
since 1996. So I think he brings to this nomination to the 
Federal Bench the kind of experience in practice, both public 
practice in the U.S. Attorney's Office, private practice in a 
leading law firm, and then actually sitting on the State Bench 
himself now for the past 6-1/2 years. It would obviously stand 
him in good stead to be a Federal District Judge.
    We are very proud of our Federal Bench in Maryland. 
Maryland Senators over the years, both Democratic and 
Republican, have worked assiduously to sustain the high quality 
of our Federal Bench. We have been fortunate that we have been 
able to appear before this Committee consistently in support of 
the nominees, and as a consequence I think our bench has gained 
a reputation as one of the finest District Court benches in the 
country. I believe that Judge Quarles will sustain and add to 
that reputation, and I am very pleased to come before the 
Committee this morning and recommend him to you. I very much 
hope that in the near future you will report him favorably to 
the floor of the United States Senate.
    Chairman Hatch. Well, thank you so much, Senator Sarbanes. 
That is high praise indeed and we appreciate you being here.
    I will turn to you, Senator Ensign, and then we will turn 
to Congressman Pomeroy.

 PRESENATION OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT JUDGE FOR 
THE NINTH CIRCUIT BY HON. JOHN ENSIGN, A U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Ensign. Thank you, Mr. Chairman. I appreciate you 
having this hearing today. I appreciate you bringing nominee 
Bybee before the Committee today.
    I am here representing myself to recommend Jay Bybee, but 
also Senator Reid. Senator Reid is very strongly behind Jay 
Bybee as well. Both of us have gotten to know Jay on a personal 
level as well as on a professional level over the least several 
years.
    I would ask that my full statement be made part of the 
record with your consent.
    Chairman Hatch. Without objection.
    Senator Ensign. Mr. Chairman, just a few thoughts and a few 
observations on Jay Bybee. First of all, the UNLV Boyd School 
of Law, which is a new law school, looks like it is going to 
get its full accreditation, one of the fastest law schools in 
history to do that. Jay Bybee was an outstanding member of the 
faculty at the Boyd School of Law.
    It is interesting to note, when you talked about the 
balance needed on the Ninth Circuit, Jay Bybee provided a lot 
of balance at the Boyd School of Law, and talking to some of 
the people there that were more of the liberal professors at 
the Boyd School of Law, Jay Bybee was well thought of by 
conservatives in the legal community as well as liberals in the 
legal community in the State of Nevada
    I think that the job that he has done since he has been at 
Justice has shown the type of temperament and the type of 
thoughtful person that he is going to be on the Ninth Circuit. 
For those of us who live in the West, we have not necessarily 
been pleased by a lot of the actions that the Ninth Circuit has 
brought forward, and I think that Jay Bybee is going to be an 
intellectual giant on that court. And I do not say that 
lightly. I think that viewing and reading some of his 
statements and some of his publications that he has put out, 
you can tell how thoughtful he is, how he respects the law, and 
how he respects equal justice under the law.
    So I am here to offer my strongest recommendation to this 
committee, that you favorably move Jay Bybee to the floor of 
the Senate, where hopefully we can approve him as quickly as 
possible.
    I thank you, Mr. Chairman.
    Chairman Hatch. Thank you so much, Senator Ensign. We 
appreciate that.
    Because of his heavy duties, we will turn to Senator Reid 
at this time, so that he can get back to the floor.

 PRESENTATION OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT JUDGE FOR 
 THE NINTH CIRCUIT BY HON. HARRY REID, A U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Reid. Thank you very much, Mr. Chairman. These 
hearings are always very educational, not only for the people 
on the panel and of course the people that are appearing before 
the panel, but for Senators, because, John, I never realized we 
had a liberal member of the faculty at UNLV Law School.
    [Laughter.]
    Chairman Hatch. It would be a very rare faculty if you did 
not.
    [Laughter.]
    Senator Reid. Mr. Chairman, Members of the Committee, I am 
very happy to be here to commend my friend, Jay Bybee, to be a 
member of the United States Court of Appeals for the Ninth 
Circuit. I am pleased that Mr. Bybee will be given an 
opportunity to discuss his excellent legal qualifications, 
judicial philosophy and other issues with the members of this 
committee.
    The committee's work is vitally important to gathering a 
record upon which each and every Senator may rely on 
discharging the constitutional duty we have to consent to the 
President's judicial nominees.
    Chairman Leahy is not here, but I wanted to commend him for 
his hard work during his 15-month tenure as Chairman of the 
committee, where he worked to approve 100 judges that were sent 
forward by President Bush. During Senator Leahy's chairmanship 
these nominees moved in the order the President sent them to 
the Senate. Time ran out in the 107th Congress without any 
action on Mr. Bybee's nomination. Under Chairman Hatch's 
leadership today the Committee will her that Mr. Bybee has 
received a well-qualified rating from the American Bar 
Association. His legal skills certainly merit this distinction.
    Mr. Bybee served as legal advisor in the first Bush 
Administration, and has helped to each a generation of new 
lawyers as a former professor at the University of Nevada at 
Las Vegas Boyd School of Law. I was pleased to introduce with 
my friend, Senator Ensign, Mr. Bybee to the Committee just a 
short time ago for the position he now holds as Assistant 
Attorney General of the Office of Legal Counsel at the 
Department of Justice.
    And something that is not in my prepared remarks but I 
think will, in my estimation, is more important than all these 
legal qualifications that this fine man has, and that is what a 
fine family man he is. He has a wonderful family. I had the 
opportunity on a flight from Florida recently to spend some 
time with his wife. She is a lovely woman. She has a great 
understanding of what his job is.
    So I, without any qualification, ask this Committee to 
approve as quickly as possible Jay Bybee to be a member of the 
Ninth Circuit Court of Appeals.
    Chairman Hatch. Thank you, Senator Reid. You and Senator 
Ensign working together, I think make a tremendous difference 
with regard to an nominees that you bring forward, so we are 
very grateful to have both of you here, and grateful to have 
your testimony here.
    Senator Reid. Could we be excused, Mr. Chairman?
    Chairman Hatch. Sure can.
    Congressman Pomeroy, if you can just wait, I think I had 
better finish with Judge Quarles.
    Senator Mikulski. Mr. Pomeroy, are you okay? Do you have a 
vote?
    Mr. Pomeroy. No, I am good. I am fine, Senator. Thank you.
    Chairman Hatch. If you do, let me know, because I will 
interrupt anything.
    Mr. Pomeroy. I am just fine.
    Chairman Hatch. If we can go to Senator Mikulski, then we 
will do that.

PRESENTATION OF WILLIAM D. QUARLES, JR., NOMINEE TO BE DISTRICT 
JUDGE FOR THE DISTRICT OF MARYLAND BY HON. BARBARA MIKULSKI, A 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Mikulski. Good morning, Mr. Chairman, and 
colleagues on the Judiciary Committee.
    I know that the advise and consent function that we perform 
in terms of the Judicial Branch is one of our highest and most 
important duties. When I always look at who should be a judge, 
I look at three criteria, their competence that they bring, 
their sense of integrity as individuals, and also their 
dedication to protecting core constitutional values and 
guarantees.
    I come here today with real enthusiasm to recommend that 
this Committee approve the nomination for William Quarles to 
become a member of the Federal Bench. I wanted to nominate him 
10 years ago. The Maryland system put forth his when--if you 
might, Bush I or Bush the Elder, or Bush 41, however we do it--
Mr. Quarles was then up for nomination. Well, time ran out, 
politics changed. So here we are one decade later, and I come 
with enthusiasm to do this. We have a tradition in Maryland 
that regardless of who is the party in power, we really put 
forward the best of the best to be our judges.
    Mr. Quarles brings great intellect and great integrity. He 
was born in Baltimore, attended Baltimore area schools, City 
College, Catholic University. He comes from a really wonderful 
family. His father was a stevedore and dock worker. He learned 
the values of hard work and the importance of education. His 
sister is a minister. His daughter, Eloise, is a successful 
securities lawyer. His dear wife, Mary Ann, works for the 
District Court of Maryland as a pretrial service specialist. So 
you can see what his roots are.
    Having learned hard work and excellent education, he went 
on then to be a law clerk for Judge Joe Howard, who was a civil 
rights activist and was the first African-American appointed to 
the Federal Bench in Baltimore. But he comes not only with a 
background that is personal qualities and values; he comes with 
a great legal career.
    Early on he worked as an Assistant U.S. Attorney in 
Baltimore, handling complex and civil litigation. He 
coordinated the President's Task Force on Drug Enforcement, got 
a lot of awards for that. He left that and then went to one of 
our most prestigious white-shoe law firms, Venable, Baetjer and 
Howard in Baltimore. You might recall, Mr. Chairman, that is 
the law firm that gave us Ben Civiletti, who was an Attorney 
General. At Venable he handled civil litigation, antitrust and 
appeals. He was promoted to manager of the D.C. litigation 
practice.
    Then in 1996 he was placed on the Maryland Circuit Court in 
Baltimore City. This is Maryland's highest trial court, where 
he has now served with distinction, presiding over major civil 
and very serious and violent criminal matters. While on the 
bench he chaired the Sentencing Review Panel for the Eighth 
Circuit, coordinated the electronic filing project. He brings 
technology to the bench.
    And also, how do his peers feel about him? Well, not only 
is he a member of all relevant bars in Maryland, but the 
American Bar Association, with the majority of evaluation, 
gives him ``very qualified.'' He has written in Maryland Bar, 
Inside Litigation. He is active in his church and community and 
gets awards from everything from the Boy Scouts to the DEA.
    So as you can see, I think we have really a wonderful and 
distinguished person to present to you from Maryland. I do it 
without reservation and with great enthusiasm, and I hope the 
Committee puts him forth to our colleagues. I think you will be 
proud as Senator Sarbanes and I are of Judge Quarles.
    Chairman Hatch. Well, thank you, Senator Mikulski. Your 
recommendation means a lot to the committee, along with Senator 
Sarbanes, and we really appreciate you taking time to be with 
us today.
    And I think, Judge Quarles, you have got some pretty heavy 
firepower behind you. And that is good.
    Senator Mikulski. And we are saying this about a member of 
the other party, you know what I mean?
    [Laughter.]
    Chairman Hatch. That really is an exceptional thing, let me 
tell you. We are grateful to see you here.
    Senator Mikulski. Thank you very much, Mr. Chairman.
    And, Congressman, thank you for the courtesy.
    Mr. Pomeroy. Thank you.
    Chairman Hatch. Senator Dorgan, Congressman Pomeroy has 
been waiting a long time. Can I just have him--
    Senator Dorgan. Absolutely.
    Chairman Hatch. I think he needs to get back over to the 
House. With your permission and deference, I would like to do 
that.
    Senator Dorgan. Of course.

PRESENTATION OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE DISTRICT OF NORTH DAKOTA BY HON. EARL POMEROY, A 
   REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH DAKOTA

    Representative Pomeroy. Mr. Chairman, thank you. I will be 
brief, but I do want to commend to your attention the 
President's nomination for the opening in the bench in North 
Dakota.
    Judge Ralph Erickson is someone I have known for 23 years. 
Prior to his time as the District Bench in 1994, Ralph 
throughout those years was an active Republican and I have been 
an active Democrat, but we have maintained a close friendship. 
I have enormous respect for him. After assuming his role on the 
District Bench we have really been able to see what a wonderful 
jurist Ralph has proven to be. He is competent, fair minded, 
hard working, conscientious, has impeccable integrity, and as a 
result has really demonstrated a superb judicial temperament.
    He has told me that his personal philosophy is to treat 
lawyers like he would like to be treated when he was a lawyer, 
and that means being prepared, listening, understanding the law 
as best as possible. As he has applied these values, it has 
shown, because he has run for re-election to the bench without 
opposition, and the lawyers in this poll you referenced in your 
introductory remarks, Mr. Chairman, a survey of Fargo/Morehead 
lawyers rated him simply the best, the best of the District 
Bench.
    So I think the President has made a superb choice in 
advancing for your consideration Judge Ralph Erickson, and I 
echo my whole-hearted support. He will be an excellent addition 
to the bench in North Dakota.
    Chairman Hatch. Well, thank you, Congressman Pomeroy. We 
appreciate you taking time to come over to the lesser body and 
speak to us. We are grateful to have your testimony, and that 
weighs very heavily in favor of the Judge.
    Representative Pomeroy. Thank you, Mr. Chairman.
    Chairman Hatch. Senator Dorgan, we are honored to have you 
here.

PRESENTATION OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE DISTRICT OF NORTH DAKOTA BY HON. BYRON DORGAN, A U.S. 
             SENATOR FROM THE STATE OF NORTH DAKOTA

    Senator Dorgan. Senator Hatch, thank you very much.
    I am pleased to be here. I will not add too much to what 
Congressman Pomeroy said. Congressman Pomeroy, Senator Conrad 
and I feel all pretty much the same about this candidate. Judge 
Ralph Erickson has been nominated. I fully support and 
enthusiastically support his nomination. I think he will make 
an excellent Federal Judge in the U.S. District Court in North 
Dakota, on the east side of North Dakota.
    He is a native of Thief River Falls, Minnesota. His J.D. 
was received with distinction from the University of North 
Dakota. He spent 9 years in private practice before becoming a 
District Judge, Cass County Magistrate first, then a District 
Judge for the East District Judicial District. He has presided 
over some of the most high profile cases in our region, and as 
you indicated, and as Congressman Pomeroy did, the largest 
newspaper in our State indicated that he is the best in the 
region in their evaluation.
    I think the staff on both sides of the Judiciary Committee 
received that word when they called around North Dakota as 
well. The kind of reaction they received, fair, hard working, 
even tempered, thoughtful, good reputation. Those are exactly 
the kinds of things you want to hear about a judge.
    My understanding is he is one of the few people who will 
come before this Committee who has actually been in prison. He 
as an intern at Leavenworth when he was in law school.
    [Laughter.]
    Chairman Hatch. We like to hear that.
    [Laughter.]
    Senator Dorgan. He may want to tell you more about that, 
but he also is someone--I had about 2 months ago the 
opportunity to sit in his courtroom. I asked if I could be 
allowed to sit in the Youth Drug Court that he presides over. 
And I sat there I guess an hour and a half or so that day and 
watched, late afternoon, and watched Judge Erickson deal with 
some young offenders, young men and women who came before him. 
I must tell you, not only is that a terrific idea and a very 
important part of our system, but I was very impressed with the 
way Judge Erickson handled that. He is a credit to the 
Judiciary, and if we are able to put more and more people like 
Judge Ralph Erickson on the Federal Bench, the Judiciary in 
this country will be in very good hands.
    So I am here to say that this is an excellent nomination. I 
am proud to support him. I think you all will be very proud to 
confirm that with an affirmative vote, and I know that he has 
been accompanied by his wife and his children and others, and I 
am sure he will introduce them at an appropriate time.
    Mr. Chairman, thank you for holding the hearing and I hope 
we will move this nomination quickly.
    Chairman Hatch. Thank you very much, Senator Dorgan. We 
really appreciate your taking time from what we know is a very 
busy schedule. Thanks for your honoring the judge.
    We will now turn to the distinguished Democratic leader on 
the committee.
    Senator Leahy. Thank you, Mr. Chairman.
    Like all of us, I was--
    Chairman Hatch. Senator, could you--
    Senator Leahy. Sure.
    Chairman Hatch. I forgot to do one thing. Senator Conrad 
very much wanted to be here today to introduce Judge Erickson, 
but unfortunately had a scheduling conflict he just could not 
change, so I am pleased to submit his written statement for the 
record in favor of Judge Erickson.
    [The prepared statement of Senator Conrad appears as a 
submission for the record.]
    Chairman Hatch. I am sorry. I just thought that would be 
better to get that in at this time.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. And I am sorry I missed our colleagues, but 
each one of them have talked to me, at one time or another, 
about the nominees who are here. Like all of us, we end up with 
about three different committees going on at the same time. 
Here, we are going to hear four nominees for lifetime 
appointments to the Federal bench--one to the Ninth Circuit 
Court of Appeals, three to District Courts in North Dakota, 
Maryland and Ohio.
    The arrangement, one Court of Appeals judge, three District 
judges, basically follows years of precedent in the way we 
schedule these. I think it is more reasonable and more sensible 
than what we faced last week, when we had three Circuit Court 
nominees at one time, all three controversial, and there in a 
hearing until about 10 o'clock at night, a rather rushed 
hearing. Here, having one Circuit Court nominee, we are able to 
give each of the people who have traveled here with their 
families and friends the kind of attention they deserve.
    I compliment the Chairman for doing it this way, as 
compared to last week. I thought having three controversial 
nominees scheduled together meant that none were adequately 
discussed. At the same time, I do not want to go back to the 
days, for example, when this Committee did not hold a single 
hearing on a judicial nominee until mid-June, as was the case 
in 1999. I think we could work on more fair schedules, as we 
have had in the past 17 months, where we were able to get 100 
judges through in that time.
    Today, the Circuit Court nominee before us is Jay Bybee. He 
is currently serving in the Justice Department as an assistant 
attorney general for the Office of Legal Counsel, OLC, and the 
head of OLC serves as the Attorney General's lawyer, and 
advises him on legal issues underlying Administration and 
Department policies.
    In the wake of September 11th, Mr. Bybee's responsibilities 
have included rendering opinions on many controversial 
decisions that have come from the Justice Department, including 
its ability to try terrorist suspects in military tribunals; 
its ability to use State and local police to make arrests for 
civil violations of immigration laws; its use of gun purchase 
databases to track terrorist suspects; its decision that, 
contrary to Secretary of State Colin Powell's opinion, they did 
not need to declare the al Qaeda and Taliban detainees 
prisoners of war under the Geneva Convention, and I assume 
other controversial policies.
    So I am interested in his views on these questions of law. 
I am concerned the role he may have played in perpetuating the 
culture of secrecy that has enveloped the Justice Department 
over the past couple of years. The office which he heads has 
long been a leader in sharing its work with the American 
public, and in recent years that office even began publishing 
its legal opinions on a yearly basis. Many of these opinions 
are available in legal databases. I think they provide a very 
valuable tool for lawyers and nonlawyers, just to understand 
how the legal underpinnings of our Government work.
    But of the 1,187 OLC opinions that have been published on 
the Lexis legal database since 1996, only three are from the 
period when Mr. Bybee headed the office. Up until now, there 
has also been a history of OLC releasing numbers of opinions on 
the Department of Justice website, where all Americans, from 
students to retirees, can, with the click of a mouse, pick them 
up. They have also responded, of course, to requests by the 
Judiciary Committee, under either Republican or Democratic 
leadership, but that practice, too, has ended under Mr. Bybee's 
leadership at OLC.
    A Government works best when it is open and answers 
questions, and I am worried that we see a change from both 
Republican and Democratic administrations of openness, and if 
we go to this nondisclosure, then I think it follows this 
pattern of an expansive view of executive privilege that has 
marked the time that Mr. Bybee has been in Government, and I 
want to hear from him on that issue. This is something, this 
lack of openness, concerns have been expressed by me, by 
Senator Specter, by Senator Grassley, by Senator Hatch, by 
Senator Schumer and by a number of other son this committee.
    Now, the District Court nominees from North Dakota, Ohio, 
Maryland appear to be more moderate and bipartisan than the 
President's Circuit Court nominations.
    Judge Erickson is currently a judge in the East Central 
District Court of North Dakota. He is supported by both of the 
Democratic home-State Senators, well-respected in his community 
as being a hardworking, thoughtful, fair, even-tempered judge. 
Incidentally, I was pleased to see, Mr. Chairman, that Judge 
Erickson has been involved in developing an initiative in Fargo 
to assist juveniles involved in drug crimes, and he will be 
joining the other judge from North Dakota that we approved when 
I was chairman, Judge Hovland.
    We will hear from Judge Quarles, who is nominated in the 
U.S. District Court for the District of Maryland. He has served 
as an attorney in private practice, assistant U.S. attorney in 
Baltimore before becoming a Circuit Judge of the Circuit Court 
for the City of Baltimore. He is supported by both the 
Democratic Senators from his home State.
    And Judge Frost, nominated to the U.S. District Court for 
the Southern District of Ohio, has been on the bench for 12 
years. He is either currently or formerly a member of numerous 
charitable and civic organizations. I would like to note that 
he has been very principled in ensuring the organizations of 
which he is a member do not discriminate, including, if he 
thought that they did, to leave. I would also note that he is 
supported by both the Senators from his home State, both 
Senator DeWine, a valued member of this committee, and our 
friend, Senator Voinovich, a highly respected member of the 
Senate.
    So thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Leahy.
    We will now turn, last, but not least, and very 
importantly, to our colleague on the committee, Senator DeWine, 
to speak about our judge from Ohio.

PRESENTATION OF GREGORY L. FROST, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE SOUTHERN DISTRICT OF OHIO BY HON. MIKE DEWINE, A U.S. 
                 SENATOR FROM THE STATE OF OHIO

    Senator DeWine. Thank you, Mr. Chairman, very much. It is 
certainly my pleasure to introduce to the Members of the 
Committee Judge Gregory Frost. My friend and colleague from 
Ohio, Senator Voinovich, certainly wanted to be here with us 
today, but unfortunately will not be able to attend, but he did 
ask me, Mr. Chairman, to submit his statement to the record, 
and I would ask, with unanimous consent, it be made part of the 
record.
    Chairman Hatch. Without objection.
    [The prepared statement of Senator Voinovich appears as a 
submission for the record.]
    Senator DeWine. Judge Frost, as has been pointed out, has 
been nominated by the President of the United States to serve 
as a United States District Judge for the Southern District of 
Ohio. He currently serves as judge on the Licking County Common 
Pleas Court of Newark, Ohio. So I would like to welcome to the 
Committee several people who are here to support Judge Frost:
    First, his wife Kristina Dix Frost and his son Wes. We 
welcome both of them to the committee. Kris and Wes, thank you 
very much for being here with us today.
    I would also like to welcome Judge Frost's mother Mildred; 
his mother-in-law Helen Dix; his sister Beth Thomas and her 
husband Kim; as well as Doug McMarlin, a good friend of the 
Frost family; Sarah Barrickman, Judge Frost's law clerk; and 
Shawn Judge, a friend of Judge Frost.
    Also here to show their support are Mike Nicks, an attorney 
from Newark, as well as Nancy Dillon and a man named Leonard, 
both friends of the Frost family.
    Judge Frost is a 1971 graduate of Wittenberg University. 
Judge Frost received his law degree in 1974 from Ohio Northern 
University. Judge Frost's long career in both public service 
and private practice makes him well-qualified for the District 
Court.
    He has been a Licking County judge for the past 19 years, 
serving as Municipal Court judge from 1983 to 1990, and then, 
Mr. Chairman, as Common Pleas judge from 1990 until the 
present.
    While serving on the bench, Judge Frost was selected to 
take the lead in writing the jury instructions for the entire 
State of Ohio. Mr. Chairman, of course, we all know the 
importance of jury instructions. These jury instructions, of 
course, provide the framework in which all jury cases in the 
State of Ohio are deliberated.
    Prior to his service on the bench, Judge Frost was a 
partner in the law firm of Schaller, Frost, Hostetter and 
Campbell in Newark. While with that firm, he also served as an 
assistant Licking County prosecutor from 1974 until 1978.
    Judge Frost is an excellent jurist whose dedication and 
graciousness have earned him the respect of those inside and 
outside of the courtroom.
    Now, Mr. Chairman, I was particularly struck by a letter 
Gary Walters, the Clerk of Courts in Licking County, wrote to 
the Newark Advocate newspaper. This is what he said regarding 
Judge Frost, and I quote:
    ``He arrives to work well before daybreak and before anyone 
else in the courthouse. He works hard all day, and routinely is 
the last one to leave in the evenings.'' Similar to you, Mr. 
Chairman. I note that from having an office right next to 
yours.
    Chairman Hatch. That is a very habit.
    Senator DeWine. I know. I do not think he plays music as 
loud as you do, though, Mr. Chairman. He probably does not 
write music either, I do not think.
    [Laughter.]
    Senator DeWine. ``His work ethic is second to none. As 
Clerk of Courts, I am in the courtroom with Judge Frost. He 
recognizes that jury service is difficult and sometimes 
unpleasant. With his sense of humor and his willingness to 
explain every step of the process, he puts the jurors at ease 
and makes the experience an educational one. Many jurors have 
made a point to tell me that their jury experience was 
extraordinarily valuable because of the attention Judge Frost 
devoted to preparing them for their duties.''
    Mr. Chairman, this statement provides, I believe, an 
excellent illustration of both Judge Frost's temperament in the 
courtroom and his dedication to his position.
    In addition to that, Judge Frost has committed a great deal 
of time and energy to his Licking County community. He has 
served on the board of directors of the Licking County 
Alcoholism Prevention Program, and the Maryhaven Alcohol and 
Drug Addiction Treatment Center in Columbus.
    He is also an Executive Committee member of the Central 
Ohio Council of the Boy Scouts of America. Indeed, as a 
lifelong resident of Licking County, Judge Frost has made 
significant contributions to his community. Without question, 
Judge Frost will be a fine addition to the District Court. He 
has the experience, Mr. Chairman, the temperament and the 
dedication to be an excellent Federal judge.
    I might add, Mr. Chairman, on a personal note, that I have 
known Judge Frost for many, many years, and I believe that he 
is the type person that we need to serve on the Federal 
District Court. I strongly support his nomination, and I thank 
the chair for the time.
    Chairman Hatch. Thank you, Senator.
    Before we begin, let me just say that I want everybody here 
on the Committee and all staff to listen very good to what I 
have to say. I was outraged today to read all over the paper 
today, including in Al Kamen's column in the Washington Post, 
information that was contained in the ``confidential'' section 
of the committee's file on Mr. Bybee. This is wrong. It is 
outrageous, and it is dirty politics, and it is violative of 
Committee rules that are very, very important rules that have 
been abided by. This is the worst I have seen since the 
Clarence Thomas hearings.
    Now, Senator Leahy, when he was chairman, changed the 
Committee questionnaire to move some of the nominees' 
information, normally in the FBI files, into the 
``confidential'' section. Now, I want everybody to know that we 
are going to go back to what the Committee has always done 
before. The FBI files are to be held in confidence, and nobody 
is to breach that confidence, and I think this is a perfect 
illustration why we need to do that.
    So, just so everybody is put on record, we are just not 
going to put up with that type of stuff, and I am going to 
investigate it and see if we can get to the bottom of it. No 
nominee should be treated any differently than we treated the 
nominees during the Clinton administration. They are to be 
treated exactly the same, whether they are President Bush's 
nominees or anybody else's.
    Having said that, Mr. Bybee, if you could get ready to 
stand and raise your right arm to be sworn.
    Do you swear that the testimony you are about to give 
before the Committee will be the truth, the whole truth and 
nothing but the truth so help you God?
    Mr. Bybee. I do.
    Chairman Hatch. Thank you.
    Senator Kennedy. Mr. Chairman, I wanted to have the 
opportunity to inquire of Mr. Bybee. We are, as you know, there 
is an important conference on Haitian refugee policy, which is 
a matter of very important consequence to our Refugee Committee 
here, which I was at earlier today, and now I understand that 
the Secretary of State is going to be addressing the Security 
Council on one of the most important probably moments, in terms 
of American history, which will be very significant on the 
issues of war and peace.
    So I am not going to be able to be here for the time of Mr. 
Powell's speech to the Security Council. I think I have a 
responsibility to do that, but I do have questions, so I will 
try and work this out with the chair. I do not have enormous 
numbers, but I do have questions that I would like to ask the 
nominee at some time.
    Chairman Hatch. Well, we will accommodate the distinguished 
Senator and former Chairman of the committee, of course.
    We would like to finish the hearings as soon as we can, but 
if you could come right back--
    Senator Kennedy. I would be glad to come over right after 
Mr. Powell's address when it is finished.
    Chairman Hatch. If you will, that would be great. We will 
reserve that time for you.
    Senator Kennedy. Thank you.
    Chairman Hatch. What we may do is ask some questions of Mr. 
Bybee and then bring up the other judges until you come back.
    Senator Kennedy. That is fine. Thank you. I thank you, Mr. 
Chairman.
    Chairman Hatch. Thank you, Senator Kennedy.
    Well, let us begin then, and we will reserve that time. I 
would like to see that myself, but I think we better move ahead 
here.
    Mr. Bybee. Thank you, Mr. Chairman.
    Chairman Hatch. I will be able to see it on C-SPAN, I am 
sure. But I do not blame any Senator for wanting to see that. 
This is an historic moment, and I personally just want to 
express my regard for Colin Powell and the terrific job he is 
doing as Secretary of State and for his resolute strength in 
this administration. I have tremendous respect for him, always 
have, and it has grown in my eyes even more since he has been 
acting as Secretary of State. So this is an important, historic 
time, and I cannot blame any Senators for wanting to see that. 
I would like to myself.
    But we are going to move ahead here so that we do not 
inconvenience our judges, and then what we will have to do, Mr. 
Bybee, if we finish with our questions, we will move ahead with 
the other judges and put you in abeyance until Senator Kennedy 
and any other Democrat or Republican who wants to question will 
come back.
    But let me just ask a few basic questions of you so that we 
uncover some of the things that I think are critical.
    The Founding Fathers believed that the separation of the 
powers in the Government was critical to protecting the liberty 
of the people. Thus, they separated the legislative, the 
executive and the judicial powers into three different branches 
of Government, so-called co-equal powers: The legislative power 
being the power to balance moral, economic and political 
considerations and make law; the judicial power being the power 
only to interpret laws made by Congress and by other people, 
which sometimes involve the President, through Executive Order 
and otherwise; the judicial power being the power to interpret 
laws, something that we have really been concerned about on 
this Committee because of the actions of some of the judges and 
the various Circuit Courts of Appeals and, in particular, the 
Ninth Circuit Court of Appeals.
    In your view, is it the proper role of a Federal judge, 
when interpreting a statute or a Constitution, to accept the 
balance struck by the Congress of the people or to rebalance 
the competing moral, economic and political considerations?
    Mr. Bybee. Thank you for that thoughtful question, Mr. 
Chairman.
    The separation of powers was fundamental to our 
constitutional design, and fundamental to that design was the 
idea that neither of the branches, none of the branches, should 
exercise any of the power of the other branches. When the 
Federal Courts seek to balance important moral or political 
decisions, they usurp the power of this body, the Congress of 
the United States, and that is not the appropriate role of the 
courts of the United States.
    They have been given substantial powers under our 
Constitution, but it is the power of interpretation, not the 
power of decision in the first instance, Mr. Chairman.
    Chairman Hatch. Thank you. You know, I have been very rude 
here because I have not given you a chance to even make an 
opening statement and, above all, I would like you to introduce 
your family and your friends who are here. I apologize to you. 
I am so anxious to get you through that--
    [Laughter.]
    Chairman Hatch. I think sometimes I place that above 
everything else. So please forgive me, but I would like you to 
make any statement you care to make, and of course introduce 
your family and friends who are here.

  STATEMENT OF JAY S. BYBEE, OF NEVADA, NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE NINTH CIRCUIT

    Mr. Bybee. Thank you, Mr. Chairman. I have many members of 
my family here that I would like to introduce, and I have many 
friends and colleagues who have attended as well. I will 
forebear from introducing friends and colleagues in the 
interest of time, but I appreciate the opportunity of 
introducing my family.
    Seated behind me is my lovely wife Dianna, my wife next 
week as of 17 years. We have four children, and I will ask them 
to stand because they may be a little short. My oldest, Scott, 
is 15; my son David is 12; my daughter Alyssa is 10; my son 
Ryan is 8.
    Chairman Hatch. That is great. We are glad to have you 
young people with us, I will tell you.
    Mr. Bybee. My mother, Joan Bybee is here in the front row 
as well. Someplace in the back are my wife's parents, Harvey 
and Nada Greer, who came in last night from Sacramento, 
California. I appreciate them making the trip.
    Chairman Hatch. Please stand as well so we can see you.
    Great. Glad to have you here. Welcome.
    Mr. Bybee. I have all of my siblings and their spouses are 
here. My brother David and his wife Rene.
    Chairman Hatch. Please stand. We want to look everybody 
over. These are important positions.
    [Laughter.]
    Mr. Bybee. My sister Karen and her husband Jeff Holdaway, 
and two of their children, Christopher and Cameron Holdaway.
    Chairman Hatch. Karen worked up here on Capitol Hill and 
did a great job while she was here.
    Mr. Bybee. My youngest brother Lynn and his wife Melissa.
    Chairman Hatch. Welcome.
    Mr. Bybee. Have I left anybody out? Oh, my niece Kelli 
Frazier is here.
    Chairman Hatch. Great. Nice to have you, Kelli.
    Mr. Bybee. We have additional extended family and 
additional friends in the audience, Mr. Chairman. Thank you 
very much.
    Chairman Hatch. Yes, I see a lot of your friends out there 
in the audience. It is just great. Welcome to all of you. We 
are grateful that you here. I have tremendous respect for Mr. 
Bybee, and I think everybody who has had any contact with him 
also shares that respect.
    Do you have anything else you care to say?
    Mr. Bybee. No, Mr. Chairman, but I do thank you for holding 
this hearing and affording me the opportunity of talking before 
the Committee today.
    Chairman Hatch. We will give 10 minutes for each person to 
ask questions and maybe some more to others who want to ask 
some more.
    The making of the law is a very serious matter. To make 
constitutional or statutory law, the text of a proposed 
amendment or statute must obtain a set number of formal 
approval of the people's elected representatives. Now, this 
formal approval embodies the express will of the people, 
through their elected representatives, and thus raises the 
particular words of a statute or constitutional provision to 
the status of binding law.
    Would you agree that the further a judicial opinion varies 
from the text and original intent of a statute or 
constitutional provision, the less legal legitimacy it has?
    Mr. Bybee. Yes, Mr. Chairman. This is a very important 
question, and it is a very important challenge for the 
judiciary to recognize that Congress is a collegial body, 
representing a diverse group of Americans and that Congress has 
come together and has undertaken a difficult process of 
arriving at consensus, and that ought not to be undone by a 
single judge or by even a single panel of judges who are not 
representative and have been given certain protections under 
our Constitution that indeed ensures that they will not be 
subject to the kind of political pressure that this body is 
rightfully subject to, that kind of--that's a check of the 
people.
    And for a judge or for any panel of judges to undertake 
that responsibility is to assume the responsibility of the 
legislature and act as a political body.
    Chairman Hatch. Do you think that it is the proper role of 
a Federal judge to uphold the legitimate will of the people, as 
expressed in the law, or to basically impose his or her own 
view of what that judge thinks the law to be?
    Mr. Bybee. Mr. Chairman, the responsibility of the judge, 
as Chief Justice Marshall said as early as Marbury v. Madison, 
it is to say what the law is.
    Chairman Hatch. Well, under what circumstances do you 
believe it appropriate for a Federal Court to declare a statute 
enacted by Congress unconstitutional?
    Mr. Bybee. Mr. Chairman, that is a very good question. That 
is a question the law professors are always very excited to 
discuss in class, and I think it is a hard challenge for judges 
to undertake that responsibility to review for 
constitutionality statutes enacted by Congress.
    On the one hand, Senator, any judge should begin from the 
assumption that legislation is constitutional. We must begin 
from that because you have taken the same oath to uphold the 
same Constitution that the judges have.
    Now, aside from that, it is the responsibility of the 
Judicial Branch, from time-to-time, to strike down where it 
believes that Congress has overstepped its bounds in certain 
legislation. In those rare cases, the judiciary should examine 
carefully the text of the statute and ensure that it really 
does not comport with the plain text of the Constitution.
    Chairman Hatch. In general, the Supreme Court precedents 
are binding on all lower Federal Courts and all Circuit Court 
precedents are binding on the courts within that particular 
circuit. Now, are you committed to following the precedents of 
higher courts faithfully and giving them full faith, and credit 
and effect, even if you personally disagree with these 
precedents?
    Mr. Bybee. Senator, any judge who assumes this 
responsibility must set aside his or her personal beliefs as 
they enter the courtroom door. They are not appointed in their 
personal capacity as a judge, and it is their responsibility to 
interpret the law faithfully.
    Chairman Hatch. What would you do, if you conclude very 
honestly, and you believe that the Supreme Court or the Court 
of Appeals had seriously erred in rendering a decision, would 
you nevertheless apply that decision or would you apply your 
own best judgment on the merits?
    Mr. Bybee. Senator, one of the Framers commented that the 
Constitution was established that it might be a Government of 
laws and not a Government of men. I would faithfully apply the 
precedent of my circuit and the precedent established by the 
Supreme Court. I think to do otherwise would be chaotic, and I 
think disserves the people who then cannot count on 
understanding what the law is. They have no way of knowing what 
law will be applied if a judge is free to ignore the dictates 
of higher courts.
    Chairman Hatch. It would not be long for the Constitution 
to go down the drain if we had judges just doing what they felt 
within their souls was right, rather than applying the law, as 
the precedents demand.
    Mr. Bybee. It would be chaotic, Senator.
    Chairman Hatch. Yes, it would.
    Well, if there were no controlling precedent, dispositively 
concluding an issue with which you are presented in your 
circuit, to what sources would you apply to obtain persuasive 
authority?
    Mr. Bybee. Thank you, Mr. Chairman.
    If I faced a situation in which there were no controlling 
precedents, then I would begin with the text of the statute. 
That is the clearest record of what Congress meant. I begin 
with the text of the statute.
    In those cases in which there might be some ambiguity that 
cannot be resolved by referring directly to the text of the 
statute or to the broader structure of the act that it is a 
part of or to some clear understanding or history, then I would 
look to other tools that would help me understand what Congress 
meant.
    Chairman Hatch. In what circumstances, if any, do you 
believe an appellate judge should overturn precedent within his 
or her own circuit?
    Mr. Bybee. Mr. Chairman, that's a hard question, and I 
think that's one that each judge will have to decide for 
himself or herself. The second Justice Harlan I think took the 
position that he would dissent three times to make his views 
known where he believed that the Court had erred, and then he 
would accept the circuit precedent or the Supreme Court's 
precedent.
    In the case where you have a firm belief that the Court has 
plainly made a mistake Circuit Courts may revisit their 
decisions, but I think that would take a very, very careful 
weighing of what compelled the decision in the first place, how 
long it had been in place, what kind of reliance people or 
companies or States had placed upon that decision, and I think 
one would have to think very carefully, long and hard, before 
one would overturn it.
    Nevertheless, Senator, there certainly are a number of 
instances in the Supreme Court and in the Courts of Appeals 
where courts have been compelled to overturn themselves where 
they believed that they did make a mistake.
    Chairman Hatch. Thank you. My time is up. I am going to 
turn to Senator DeWine.
    Senator DeWine. Mr. Bybee, Senator Leahy raised some 
important points about some activities in which the Department 
of Justice has engaged. As you are aware, this Committee does 
have jurisdiction over oversight over the Department of 
Justice. Let me ask you whether you feel you have authority to 
answer questions today on behalf of the Department of Justice.
    Mr. Bybee. No, Senator, I do not.
    Senator DeWine. If you did have authority to answer these 
questions, would you be able to answer questions regarding your 
conversations or recommendations to the Attorney General?
    Mr. Bybee. Senator, it would be inappropriate for me to 
reveal confidences that have been placed in me by my clients. 
That is fundamental to an attorney's responsibility. In the 
event, Senator, that there were some kind of an oversight 
hearing, and the administration had asked me to appear 
officially here, there would be things that I could represent 
of the administration's position, but even in that 
circumstance, Senator, I believe it would be inappropriate for 
me as an attorney to reveal the conversations or confidences 
that have been placed in me by my client.
    Senator DeWine. Mr. Bybee, you served as a law professor, 
correct?
    Mr. Bybee. Yes, sir.
    Senator DeWine. You currently serve in the Office of Legal 
Counsel at the U.S. Department of Justice.
    Mr. Bybee. It's been my privilege, Senator, for the last 
year-and-a-half.
    Senator DeWine. And you aspire to serve on the Circuit 
Court.
    Mr. Bybee. If I am so fortunate as to be confirmed by this 
committee, Senator, it would be a great honor.
    Senator DeWine. Please, for me, compare and contrast those 
three positions. You have served in two of them. You would like 
to serve in a third. What would be the differences, difference 
in mind-set, difference in role, difference in function.
    Mr. Bybee. Thank you, Senator. I think it's important--
    Senator DeWine. Difference in approach, excuse me.
    Mr. Bybee. I think it's important to remind myself of what 
those differences are. I have had the privilege of seeing many 
different aspects of the law. I have been fortunate enough to 
be an advocate. I was an advocate in private practice and with 
the Department of Justice. I was a law professor for 10 years, 
and now I find myself in a position of counsel to the Attorney 
General and to the White House counsel in my current role at 
the Department of Justice.
    As an advocate, I had an important task to represent 
accurately, but vigorously, the interests of my client in 
courts of the United States. As a law professor, I had a 
different role. I took on a different set of responsibilities 
when I first went to LSU and then later to UNLV. My 
responsibility was to teach a new generation of law students 
about the Constitution, about administrative law, the 
Administrative Procedures Act and about civil procedure in the 
Federal Courts of the United States.
    I worked very hard at teaching them what the law says, but 
one of the responsibilities of a law professor is to stretch 
the minds of his students. It is to probe, to push to prod, to 
make them think critically about the decisions that they are 
reading. That is a different kind of role.
    And, as a faculty member, it was also my responsibility, as 
a responsible faculty member, to seek to publish. And as an 
academic, one thing that academics do is challenge each other. 
We seek to explore the law in a way that is not the same that 
we would in a judicial role. My role as a law professor is not 
necessarily to describe the law as it is, but again to examine 
critically, just as I have encouraged my students to do, to 
encourage myself and my colleagues to think more critically 
about important and sometimes controversial topics in the law.
    A judge is neither a vigorous advocate nor a law professor. 
A judge is not responsible for vigorously prodding the law and 
pushing it in directions that it hasn't been pushed, but rather 
for reflecting on what Congress has said and how the Supreme 
Court and other Federal Courts have interpreted that. It is a 
very, very different role, Senator, and I hope that I will 
always keep that role in mind.
    Senator DeWine. Mr. Bybee, did you feel that when you were 
a law professor that part of the requirement of being a law 
professor was to publish? You indicated that, and I have 
certainly heard that from other professors. Is that part of the 
job?
    Mr. Bybee. Yes, Senator DeWine. Most academic institutions 
have a ``publish or perish'' rule. It is generally a 
requirement for tenure that one have published in responsible 
law journals, and one way of attracting attention in the 
Nation's student-edited law journals is to take unusual 
positions or write about things that haven't been covered 
before, and that was a way, both of informing myself as a law 
professor and challenging my students.
    Senator DeWine. It is totally irrelevant to today's 
hearing, but I have always found that to be, as a consumer and 
a parent of eight children who are going to college or about to 
go to college, I always find that to be rather irritating.
    [Laughter.]
    Senator DeWine. As a parent who wants teachers in the 
classroom who teach, and I like it that the teachers are 
challenging, but what they publish I find to be rather 
irrelevant, but that is just an aside from a crotchety parent, 
that is all.
    Mr. Bybee. As a law professor, Senator, it pains me to hear 
that, but I acknowledge the truthfulness, nonetheless.
    Senator DeWine. I want you in the classroom challenging my 
student. I do not care what you do outside of the classroom, 
frankly.
    I found your writings to be rather interesting, and so that 
is why I asked the question about your writings and the 
difference between your role as a professor and your other two 
roles. So I think I have found your answer to be interesting, 
but you are in the process of stretching minds at that point.
    Mr. Bybee. That is exactly our role, and if I wasn't doing 
that as a law professor, Senator, I'm not doing my job.
    Senator DeWine. I understand.
    Nothing further, Mr. Chairman.
    Chairman Hatch. Thank you.
    We will turn to Senator Saxby, at this point.
    Senator Chambliss. Thank you, Mr. Chairman.
    Actually, my questions have already been asked and have 
already been answered by Mr. Bybee with the very probing 
questions that the Chairman had. My main concern, Mr. Bybee, is 
that both our District Court and our Circuit Court judges come 
before us to say that they are willing to interpret the 
Constitution as it reads, and I think you have answered that 
very succinctly, that you are not going to be putting your 
personal impressions into the decisions you may make.
    You are obviously very well-qualified, from an academic 
background, as well as your legal background. And it is 
encouraging to me, as a lawyer, to see individuals of your 
competence, your quality and your background willing to commit 
yourself to public service. We look forward to your 
confirmation.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Saxby. We appreciate 
that. Senator Chambliss, I mean. I am so used to calling him 
Saxby. But we are happy to have you on this committee. It is 
going to make a great deal of difference to all of us, I think.
    Mr. Bybee, I do not have any further questions. I know you 
very well, and I know what a decent, honorable person you are, 
and I support your nomination very strongly, as I hope 
everybody will on this committee.
    As you know from our meetings today, and earlier, you are 
aware of how thorough this review process on, especially 
Circuit of Appeals judges really is, but for all judicial 
nominees, and you put up with a great deal, with intrusive and 
invasive questions and interviews. You have passed very tough 
scrutiny by the White House, the Department of Justice, the 
FBI, the committee, and the American Bar Association as well, 
and you have satisfactorily and appropriately answered my 
questions today, and you will, no doubt, receive some written 
follow-up questions following today's hearing.
    As you know, Senator Kennedy has asked to question you 
after the Secretary of State's remarks up at the U.N. Senator 
Schumer has also asked for time to ask you some questions. He 
said he will be here at 11 o'clock. So I will ask you at this 
point to step aside, so that we can move on to the other three 
judgeship nominees and hear from the second panel, and then we 
will have you return as soon as Senator Kennedy or Senator 
Schumer or any other Senator on the Committee desires to 
question you.
    Mr. Bybee. Thank you very much, Mr. Chairman.
    [The biographical information of Mr. Bybee follows.]
    [GRAPHIC] [TIFF OMITTED] 90303.001
    
    [GRAPHIC] [TIFF OMITTED] 90303.002
    
    [GRAPHIC] [TIFF OMITTED] 90303.003
    
    [GRAPHIC] [TIFF OMITTED] 90303.004
    
    [GRAPHIC] [TIFF OMITTED] 90303.005
    
    [GRAPHIC] [TIFF OMITTED] 90303.006
    
    [GRAPHIC] [TIFF OMITTED] 90303.007
    
    [GRAPHIC] [TIFF OMITTED] 90303.008
    
    [GRAPHIC] [TIFF OMITTED] 90303.009
    
    [GRAPHIC] [TIFF OMITTED] 90303.010
    
    [GRAPHIC] [TIFF OMITTED] 90303.011
    
    [GRAPHIC] [TIFF OMITTED] 90303.012
    
    [GRAPHIC] [TIFF OMITTED] 90303.013
    
    [GRAPHIC] [TIFF OMITTED] 90303.014
    
    [GRAPHIC] [TIFF OMITTED] 90303.015
    
    [GRAPHIC] [TIFF OMITTED] 90303.016
    
    [GRAPHIC] [TIFF OMITTED] 90303.017
    
    [GRAPHIC] [TIFF OMITTED] 90303.018
    
    [GRAPHIC] [TIFF OMITTED] 90303.019
    
    [GRAPHIC] [TIFF OMITTED] 90303.020
    
    [GRAPHIC] [TIFF OMITTED] 90303.021
    
    [GRAPHIC] [TIFF OMITTED] 90303.022
    
    [GRAPHIC] [TIFF OMITTED] 90303.023
    
    [GRAPHIC] [TIFF OMITTED] 90303.024
    
    [GRAPHIC] [TIFF OMITTED] 90303.025
    
    [GRAPHIC] [TIFF OMITTED] 90303.026
    
    [GRAPHIC] [TIFF OMITTED] 90303.027
    
    [GRAPHIC] [TIFF OMITTED] 90303.028
    
    [GRAPHIC] [TIFF OMITTED] 90303.029
    
    [GRAPHIC] [TIFF OMITTED] 90303.030
    
    [GRAPHIC] [TIFF OMITTED] 90303.031
    
    [GRAPHIC] [TIFF OMITTED] 90303.032
    
    [GRAPHIC] [TIFF OMITTED] 90303.033
    
    Chairman Hatch. Thank you so much.
    If we could call our three other nominees to the witness 
table, and if you would all raise your hands. Please raise your 
hands to be sworn.
    Do you swear that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth so help you God?
    Judge Erickson. I do.
    Judge Quarles. I do.
    Judge Frost. I do.
    Chairman Hatch. Thank you very much.
    We are delighted to welcome all of you here. It is a signal 
honor to be recommended by this President or any President for 
a position in the Federal Courts, and we feel very grateful 
that the three of you are willing to accept these positions. We 
know there is a degree of sacrifice in serving in the Federal 
judiciary, and you do become kind of very much isolated after a 
while, but we are grateful to all of you for doing that.
    Why do we not start with you, Judge Erickson, then you, 
Judge Quarles, and then you, Judge Frost. Introduce your family 
and friends here and make any statement you would care to make.

 STATEMENT OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE 
                FOR THE DISTRICT OF NORTH DAKOTA

    Judge Erickson. Thank you, Chairman Hatch. I have no 
statement that I would like to make at this time, but I would 
like to introduce some members of my family that are present.
    My wife, Michele, and my two daughters, Elizabeth, age 5, 
and Hannah, age 7; my sister Robyn Gonitzke and her daughter--
    Chairman Hatch. Good to have you here.
    Judge Erickson. --her daughter, my niece Brittany.
    Chairman Hatch. Brittany.
    Judge Erickson. My brother Paul and my lovely sister-in-law 
Katie, and a very dear friend of mine, a member of the bar from 
North Dakota, who is also a priest and teaching in Baltimore, 
Father Phil Brown.
    Chairman Hatch. Father, we are happy to have you here. We 
are happy to have all of you here, and we hope you enjoy these 
proceedings. I anticipate that you will.
    Judge Quarles?

STATEMENT OF WILLIAM QUARLES, NOMINEE TO BE DISTRICT JUDGE FOR 
                    THE DISTRICT OF MARYLAND

    Judge Quarles. Good morning, Mr. Chairman.
    I, too, have no prepared speech, but I would like to thank 
you and the members of the Commission for providing me and the 
rest of the nominees this opportunity to be heard this morning.
    I also want to thank Senator Sarbanes and Mikulski. They 
spoke about the tradition that they have followed in 
recommending nominations to the District Court. They have both 
been extremely helpful and supportive, and I do want to thank 
them for that.
    I also want to introduce my wife, Mary Ann Quarles, who is 
here.
    Chairman Hatch. Happy to have you here, Mrs. Quarles.
    Judge Quarles. We spared you the trial of bringing our 
terrier Nellie here in the interest of a quieter hearing.
    [Laughter.]
    Judge Quarles. Thank you for the opportunity, sir.
    Chairman Hatch. Well, thank you, Judge. We welcome you, 
Mrs. Quarles, to the committee.
    Judge Frost?

STATEMENT OF GREGORY L. FROST, NOMINEE TO BE DISTRICT JUDGE FOR 
                 THE SOUTHERN DISTRICT OF OHIO

    Judge Frost. Mr. Chairman, thank you for having us here 
today and having this hearing.
    I recognize the hard work that this Committee does. It's a 
privilege and an honor for me to be here, and I appreciate all 
of your hard work.
    Although Senator DeWine, in his fine remarks, introduced my 
family and friends, I would like to reintroduce them because if 
I do not, I will hear about it later.
    Chairman Hatch. That is very judicious of you.
    [Laughter.]
    Judge Frost. First, my wife, Kris. Thank you.
    Chairman Hatch. Nice to have you here.
    Judge Frost. My mother Mildred Frost and my mother-in-law 
Helen Dix are present.
    Chairman Hatch. We are honored to have both of you here.
    Judge Frost. My son Wes Frost and his friend Amanda Leonard 
are present.
    Chairman Hatch. Good. Welcome to the hearing.
    Judge Frost. Beth Thomson, my sister, and my sister-in-law 
Kim Thomson.
    Chairman Hatch. Nice to you have Thomsons here.
    Judge Frost. Shawn Judge, a friend, is here, and Sarah 
Barrickman, my law clerk, is here.
    Chairman Hatch. Welcome. Glad to have you.
    Judge Frost. Nancy Dillon is a friend who is here, Doug 
McMarlin, who I believe just arrived and is in the back of the 
room, is here.
    Chairman Hatch. Welcome, Nancy and Doug.
    Judge Frost. And then, finally, Mike Nicks, who is a 
practicing attorney in my hometown of Newark, Ohio.
    Chairman Hatch. Nice of you to come, Mike. Glad to have you 
here.
    Judge Frost. Thank you, Mr. Chairman.
    Chairman Hatch. I am going to turn the hearings over to 
Senator DeWine. And I am hopeful I can get back, but until I 
do, Senator DeWine is going to be in charge.
    Senator DeWine. [Presiding] Let me welcome each one of you. 
Thank you very much for joining us. Let me assure you this will 
be a rather painless experience.
    I am not familiar with two of your States, the judicial 
system, but each one of you, I assume, is the initial trial 
court judge; is that correct? Each one of you has the felony 
trials?
    Judge Erickson. That's correct.
    Judge Quarles. Yes. As Senator, I believe, Mikulski said, 
we have two trial levels in the State of Maryland; one is the 
District Court level, which is essentially misdemeanors and 
certain civil matters. The next level, the level in which I 
serve, is the Circuit for Baltimore City. Those are the jury 
trials, serious felonies, and general civil jurisdiction.
    Senator DeWine. Judge Erickson, that would be the same?
    Judge Erickson. Yes, our District Court is a general 
jurisdiction court. I like to say we take cases from dog-at-
large to murder.
    Senator DeWine. Of course, Judge Frost, our Common Pleas is 
basically the same.
    Judge Frost. Felony jurisdiction and all civil cases over 
$10,000.
    Senator DeWine. Let me ask each one of you, and maybe I 
will start with you, Judge Frost, what, during your time on the 
bench, you have learned that you think will prepare you to 
serve on the District Court? When I look at your background for 
each one of you, what stands out, of course, as your 
experience?
    I think there are many ways and many different backgrounds 
that people bring when they come to the District Court judge, 
and there is no one given set of backgrounds that is preferable 
over another, but the advantage each one of you has I think is 
that you do have a record and that we can look at that record, 
and we can judge you, and your peers can judge you, and we can 
ask your peers how do they do on the bench, and so that is at 
least the advantage that we have with each one of you.
    So let me start with you, Judge Frost, and I would just ask 
you what you have learned in your time on the bench that you 
think will help you to be a better District Court judge?
    Judge Frost. Thank you, Senator.
    Senator DeWine. And maybe some of the mistakes you have 
made and what you have learned.
    Judge Frost. Thank you, Senator DeWine.
    You do learn from your mistakes. There is no doubt about 
that. I think one of the main lessons I have learned is just to 
simply, on the 20 years of trial-level benches that I have been 
serving, is to treat everyone fairly, to allow the attorneys to 
do their job, to have firm control over the docket, which is I 
think important and will be just as important on the District 
Court, and to work hard.
    I expect a lot out of the attorneys who appear before me 
and, conversely, I think they expect a lot out of me, and so 
hard work is also that.
    And then, finally, patience, patience, patience.
    Senator DeWine. Judge?
    Judge Quarles. One of the blessings of working at the 
Circuit Court for Baltimore City for 6 years is that it is a 
very busy court. We have 24 judicial circuits in the State of 
Maryland. Our circuit handles 24 percent/24 to 25 percent of 
the criminal matters, and an equally large number of the civil 
matters.
    In any particular week, we have a thousand trials that are 
scheduled in the felony courts. That is 10 judges who have a 
thousand trials scheduled per week. Obviously, they cannot all 
be heard.
    In the time that I have served, I have served in the 
various divisions of that court, and whether the matter has 
been simple or complicated, whether it has been a relatively 
minor misdemeanor appeal from the District Court or, as in the 
case that I presided over 2 years ago, a quintuple murder, each 
of the cases is important to the people involved in them, and I 
think that's one of the things for judges to remember is that 
there is no routine case to the litigants or to the victims or 
to those who are there.
    The only experience or impressions of the courts are formed 
by these people who are there, and these things are very 
important to them and their lives, and they're under a 
particularly great amount of stress. As a judge, you have, of 
course, the responsibility of deciding the immediate case 
fairly.
    You also have a sort of systemic responsibility to make 
sure that each litigant, each witness, each observer of the 
court leaves with a sense that, regardless of the outcome of 
the case, it has been tried fairly, the matter has received 
serious attention and that they have had an opportunity to be 
heard.
    I would hope to carryover those feelings and those 
understandings into the Federal District Court.
    Senator DeWine. Good.
    Judge Erickson?
    Judge Erickson. I would echo much that Judge Frost and 
Judge Quarles have said here this morning. It seems to me that 
one takes the bench with the attitude that every case is 
important, that everyone has the opportunity to be heard, that 
the lawyers will be afforded the opportunity to argue their 
case fully, that you'll be prepared, that you will have done 
the work necessary to take the bench prepared to make a 
decision that's just, fair and equitable in its premises.
    I also think that one of the things that a judge really 
needs to keep in mind is a legal maxim that the law is no 
respecter of persons. The law doesn't care whether you're the 
most important or influential person who lives in the land or 
you're a person that's homeless and living under a bridge. The 
law only cares that you're given a fair and full opportunity to 
be heard and that the decision rendered is consistent with the 
law.
    And as a judge, if you can do those two things, treat 
everyone the way you want to be treated and make sure that 
everyone has a fair opportunity to be heard, I think that, in 
the final analysis, things will work out the way they are 
supposed to.
    Senator DeWine. Judge Erickson, could you comment about 
settlement procedures and how you do that now and how you would 
anticipate doing that on the Federal bench; pretrials, how do 
you move a civil docket.
    Judge Erickson. We work very hard at trying to get our 
civil cases settled. We have settlement conferences in which 
the judge who is not trying the case actually sits down and 
tries to assist the parties in arriving at a resolution of the 
case.
    There is a more formalized procedure that exists in the 
Federal District, in the District of North Dakota. In that 
case, the Magistrate Judge spends a great deal of time working 
on settling those cases. There is an active ADR program in our 
district that has, in fact, been well-spoken of around the 
country, and I would certainly embrace those principles.
    I look forward to having someone more knowledgeable in 
those areas who can teach me some of those techniques.
    Senator DeWine. Judge Quarles?
    Judge Quarles. In our settlement practice in the Circuit 
Court for Baltimore City, we try to view every opportunity 
where we got the parties together as an opportunity to resolve 
the case. We have scheduling conferences fairly early on in 
civil litigation. This is where the cases are assigned to 
track, depending on the complexity of the case, the number of 
witnesses, how much discovery is anticipated.
    We also have attorney mediators who serve as volunteers who 
come in and agree to take two or three settlement conferences 
per month. We also then have a final pretrial conference, and 
it is understood that at the pretrial conference, not only will 
the attorneys be present, but they will have their clients or 
their client's representatives, and there will be someone on 
each side who has settlement authority.
    Our civil cases in our court are no different from anywhere 
else. We expect to resolve 85 to 90 percent of the civil cases 
as, indeed, we do 85 to 90 percent of the criminal cases by 
settlements, pleas, negotiations. So there has to be a lot of 
opportunities along the scheduling track to get parties to talk 
to each other, and you have to view each of those opportunities 
as a possibility for settlement. So maybe, again, as a 
discovery discussion, but the discovery discussion or discovery 
conference can, of course, turn to, if guided, can turn to the 
subject of settlement.
    Senator DeWine. Judge Frost?
    Judge Frost. I'm proud of our settlement programs in 
Licking County and on the State bench, in general. We do settle 
about approximately the same, 80 to 85 percent, or we expect to 
settle those many cases in the civil arena.
    Basically, we have three ways in which settlement is worked 
in Licking County. We have private attorneys who volunteer 
their time, and I am grateful, they do a great job, and we are 
very happy with that program. The attorneys sometimes wish to 
hire a private mediator, and that works out rather well, but 
only in specialized cases where the funding is there for 
private mediation.
    And then, finally, sometimes the attorneys and the parties 
ask the judge himself to get involved, and on rare occasions I 
do that.
    I have taken training myself in mediation, and I think that 
I have some background in that, and we have been somewhat 
successful.
    Senator DeWine. Judge Frost, how would you describe 
yourself, as far as allowing lawyers to try their own case?
    Judge Frost. That's a good question.
    Senator DeWine. You know, the common complaint.
    Judge Frost. It is, and that's a good question, Senator.
    I think you can ask any of the attorneys in my county, and 
who practice before me from other counties--actually, I think 
this Committee has asked most of them that.
    [Laughter.]
    Judge Frost. You have got to allow the attorneys to do 
their job. They have a job in the courtroom, just like the 
judge has a job in the courtroom, just like the court reporter 
has a job. You have to allow them to do their job, too. The 
system works best when everyone is allowed to perform their 
functions and function well.
    So, as far as I'm concerned, the courtroom is not my 
courtroom, the case is not my case. It's up to the attorneys to 
present their case, and I allow them to do so.
    Senator DeWine. Judge Quarles, where do you come down on 
that?
    Judge Quarles. I agree with Judge Frost.
    First of all, as you know from my background materials, I 
was an active litigator, an active trial attorney.
    Senator DeWine. You have seen it from that side.
    Judge Quarles. And I've seen it from that side, and, for 
some reason, the wisdom echoes in my mind, ``Judge, if you're 
going to try my case, please don't lose it for me.''
    [Laughter.]
    Judge Quarles. No attorney wants the judge to be overly 
involved in trying the case, and I'm not that far removed from 
being an active trial lawyer as to change that.
    We have a wonderful privilege as judges. We get to see the 
entire range of the legal community. We see very good lawyers; 
we see very bad lawyers. Each of them has something to teach 
the judge, as a judge, and I enjoy the vantage point of getting 
up there and an opportunity to watch the process. I enjoy 
watching the process. I feel no need to get in and try the 
cases any more.
    Senator DeWine. Judge Erickson?
    Judge Erickson. Mr. Chairman, I agree with everything that 
Judge Quarles just said in the sense that when I used to try 
cases I was not always overly pleased when the judge 
interjected himself too forcefully into my case.
    One of the things that a judge needs to remember is that, 
in fact, you are the least-informed person in the courtroom. 
You know less about the facts than anybody else there, other 
than the jury, and if decide to interpose yourself into the 
case, you can rest assured that you will probably make a mess 
of it.
    So I have learned, through experience, that it is best to 
stay inside the role that I have, and that is to be the judge.
    Senator DeWine. You are all in charge, though.
    Judge Erickson. Yes.
    Senator DeWine. I do not think any of you are shrinking 
violets who will not be in charge.
    Judge Erickson, why do you want to be on the Federal bench?
    Judge Erickson. You know, I love being a trial judge. I get 
up every morning, and I think this is the best job in America, 
and I have an active caseload that's both criminal and civil. I 
can't think of anything else that I'd rather do, except be a 
Federal trial judge.
    Why? I have a firm belief that the Federal Courts provide a 
judge an opportunity to do this job in the best possible world, 
a place where you have complex cases, with adequate staff and 
adequate time to make the decisions the right way, to have 
available to you the resources that are necessary to decide 
those cases in an appropriate fashion, and I find it all very 
exciting.
    And the most important thing is I think the opportunity to 
do this job right.
    Senator DeWine. I hope you are not disappointed on the 
time.
    [Laughter.]
    Senator DeWine. I just pray that you have the time.
    Judge Quarles?
    Judge Quarles. Judge Erickson puts it so well. There are 
moments when I sort of figuratively step out of myself and look 
and think what a wonderful privilege this is to be a judge. And 
like him, I also anticipate having the joy of doing the job 
with resources that our local court system just can't spare.
    As I mentioned, we 1,000 criminal cases a week scheduled 
for trial. My average day when I am sitting in a felony 
assignment is somewhere between 15 and 20 cases scheduled for 
trial. I am sitting in a misdemeanor assignment now. My average 
day is 20 to 30 cases scheduled for trial.
    I effectively have lost the morning. I spend the morning 
trying to get pleas and trying to get other cases resolved. So 
I am reduced essentially to trying a half day of cases each 
week, the afternoon, and I am trying hard to save the 
afternoon.
    There is a luxury in Federal court with criminal matters 
and civil matters in that the cases come one at a time. They 
come prepared for trial and I have the understanding that I 
will, in fact, be going to trial.
    The facilities--and I don't mean to disparage the court 
that I serve on. I love the court that I serve on, the people I 
associate with, and I--as Judge Erickson says, you know, I 
can't wait to get to work every morning to do the job. But it 
will be nice having the greater resources of the Federal system 
and a little more time to spend on each of the elements of the 
case.
    Senator DeWine. Judge Frost?
    Judge Frost. I was a municipal court judge for 7 years and 
I found that to be a great job, an exhilarating job. I then 
left there and went on to the common pleas bench and I have 
been there for 12 years now and I have found that to be a great 
job.
    I have been blessed to have a job that I enjoy and really 
enjoyed the people that I work with. But there are times when 
it is time to move on and this opportunity came about, and I 
think I would agree with Judge Quarles is one of the main 
things is to have the resources to study the law well and hard, 
and to make the decisions in a proper manner.
    Too many times now, I think we are all rushed to get to the 
judgment and then get to the next case. And so I think this 
will allow us more time for reflection, which I think is 
important. I want the job because I just think it is going to 
be a great opportunity for me to give something back.
    Senator DeWine. Well, Judge Quarles, Judge Frost, Judge 
Erickson, thank you very much. This Committee has been very 
impressed by all three of you. I have been very impressed by 
all three of you. I think you are the type of people that 
should be on the Federal bench. You want to be on the Federal 
bench. All three of you have a very good track record. We know 
what you have done in the past. It is a very good predictor of 
what you will do in the future.
    I cannot speak for the chairman, but I think that the 
Committee will move fairly quickly--by Senate standards, at 
least, fairly quickly on your nominations and you will 
certainly be hearing from the committee.
    So we appreciate your time. We appreciate you coming to 
Washington, and thank you very much.
    Judge Quarles. Thank you, Senator.
    Senator DeWine. There is a possibility that written 
questions will be submitted to you in the next few days and we 
would just urge you, if that does occur--it may not, but if 
that does occur, that you get those questions back to us 
immediately, get the answers back to us immediately because, of 
course, that will speed up the nomination process.
    So we thank you and you are free to go or free to stay, 
whichever you would like to do, but you are finished for the 
day. Thank you very much.
    The Committee will recess subject to the call of the Chair 
as far as our circuit court nominee. This could occur at any 
time, so I would remind everyone that the nomination of our 
circuit court judge--the Committee could come back into session 
at any moment.
    Thank you very much.
    Judge Frost. Thank you, Senator, and thank you, staff.
    [The biographical information of Judges Erickson, Quarles 
and Frost follow.]
[GRAPHIC] [TIFF OMITTED] 90303.034

[GRAPHIC] [TIFF OMITTED] 90303.035

[GRAPHIC] [TIFF OMITTED] 90303.036

[GRAPHIC] [TIFF OMITTED] 90303.037

[GRAPHIC] [TIFF OMITTED] 90303.038

[GRAPHIC] [TIFF OMITTED] 90303.039

[GRAPHIC] [TIFF OMITTED] 90303.040

[GRAPHIC] [TIFF OMITTED] 90303.041

[GRAPHIC] [TIFF OMITTED] 90303.042

[GRAPHIC] [TIFF OMITTED] 90303.043

[GRAPHIC] [TIFF OMITTED] 90303.044

[GRAPHIC] [TIFF OMITTED] 90303.045

[GRAPHIC] [TIFF OMITTED] 90303.046

[GRAPHIC] [TIFF OMITTED] 90303.047

[GRAPHIC] [TIFF OMITTED] 90303.048

[GRAPHIC] [TIFF OMITTED] 90303.049

[GRAPHIC] [TIFF OMITTED] 90303.050

[GRAPHIC] [TIFF OMITTED] 90303.051

[GRAPHIC] [TIFF OMITTED] 90303.052

[GRAPHIC] [TIFF OMITTED] 90303.053

[GRAPHIC] [TIFF OMITTED] 90303.054

[GRAPHIC] [TIFF OMITTED] 90303.055

[GRAPHIC] [TIFF OMITTED] 90303.056

[GRAPHIC] [TIFF OMITTED] 90303.057

[GRAPHIC] [TIFF OMITTED] 90303.058

[GRAPHIC] [TIFF OMITTED] 90303.059

[GRAPHIC] [TIFF OMITTED] 90303.060

[GRAPHIC] [TIFF OMITTED] 90303.061

[GRAPHIC] [TIFF OMITTED] 90303.062

[GRAPHIC] [TIFF OMITTED] 90303.063

[GRAPHIC] [TIFF OMITTED] 90303.064

[GRAPHIC] [TIFF OMITTED] 90303.065

[GRAPHIC] [TIFF OMITTED] 90303.066

[GRAPHIC] [TIFF OMITTED] 90303.067

[GRAPHIC] [TIFF OMITTED] 90303.068

[GRAPHIC] [TIFF OMITTED] 90303.069

[GRAPHIC] [TIFF OMITTED] 90303.070

[GRAPHIC] [TIFF OMITTED] 90303.071

[GRAPHIC] [TIFF OMITTED] 90303.072

[GRAPHIC] [TIFF OMITTED] 90303.073

[GRAPHIC] [TIFF OMITTED] 90303.074

[GRAPHIC] [TIFF OMITTED] 90303.075

[GRAPHIC] [TIFF OMITTED] 90303.076

[GRAPHIC] [TIFF OMITTED] 90303.077

[GRAPHIC] [TIFF OMITTED] 90303.078

[GRAPHIC] [TIFF OMITTED] 90303.079

[GRAPHIC] [TIFF OMITTED] 90303.080

[GRAPHIC] [TIFF OMITTED] 90303.081

[GRAPHIC] [TIFF OMITTED] 90303.082

[GRAPHIC] [TIFF OMITTED] 90303.083

[GRAPHIC] [TIFF OMITTED] 90303.084

[GRAPHIC] [TIFF OMITTED] 90303.085

[GRAPHIC] [TIFF OMITTED] 90303.086

[GRAPHIC] [TIFF OMITTED] 90303.087

[GRAPHIC] [TIFF OMITTED] 90303.088

[GRAPHIC] [TIFF OMITTED] 90303.089

[GRAPHIC] [TIFF OMITTED] 90303.090

[GRAPHIC] [TIFF OMITTED] 90303.091

[GRAPHIC] [TIFF OMITTED] 90303.092

[GRAPHIC] [TIFF OMITTED] 90303.093

[GRAPHIC] [TIFF OMITTED] 90303.094

[GRAPHIC] [TIFF OMITTED] 90303.095

[GRAPHIC] [TIFF OMITTED] 90303.096

[GRAPHIC] [TIFF OMITTED] 90303.097

[GRAPHIC] [TIFF OMITTED] 90303.098

[GRAPHIC] [TIFF OMITTED] 90303.099

[GRAPHIC] [TIFF OMITTED] 90303.100

[GRAPHIC] [TIFF OMITTED] 90303.101

[GRAPHIC] [TIFF OMITTED] 90303.102

[GRAPHIC] [TIFF OMITTED] 90303.103

[GRAPHIC] [TIFF OMITTED] 90303.104

[GRAPHIC] [TIFF OMITTED] 90303.105

[GRAPHIC] [TIFF OMITTED] 90303.106

[GRAPHIC] [TIFF OMITTED] 90303.107

[GRAPHIC] [TIFF OMITTED] 90303.108

[GRAPHIC] [TIFF OMITTED] 90303.109

[GRAPHIC] [TIFF OMITTED] 90303.110

[GRAPHIC] [TIFF OMITTED] 90303.111

[GRAPHIC] [TIFF OMITTED] 90303.112

[GRAPHIC] [TIFF OMITTED] 90303.113

[GRAPHIC] [TIFF OMITTED] 90303.114

[GRAPHIC] [TIFF OMITTED] 90303.115

[GRAPHIC] [TIFF OMITTED] 90303.116

[GRAPHIC] [TIFF OMITTED] 90303.117

[GRAPHIC] [TIFF OMITTED] 90303.118

[GRAPHIC] [TIFF OMITTED] 90303.119

[GRAPHIC] [TIFF OMITTED] 90303.120

[GRAPHIC] [TIFF OMITTED] 90303.121

[GRAPHIC] [TIFF OMITTED] 90303.122

[GRAPHIC] [TIFF OMITTED] 90303.123

[GRAPHIC] [TIFF OMITTED] 90303.124

[GRAPHIC] [TIFF OMITTED] 90303.125

    [The Committee stood in recess from 11:05 a.m. to 11:58 
a.m.]
    Chairman Hatch. Well, if I can have everybody's attention, 
Senator Kennedy is not coming, I have been informed. Senator 
Schumer is not going to come, as well. Senator Feingold was the 
last one we thought would come.
    So with that, I think the three district court nominations 
and you, Mr. Bybee, have had a pretty nice day. We will allow 
enough time for our colleagues to write written questions to 
you, and I am sure a number of these colleagues will do that.
    I have to say that I had to be gone for a while and I 
caught just the last end of Secretary of State Powell's remarks 
before the UN and I am telling you they were devastating. I 
have already chatted with a few people who heard the whole 
speech and they said he really laid it out, as I expected him 
to do.
    Let me just say this, Mr. Bybee. I have seen a lot of 
people around here and a lot of judges. Virtually everybody in 
the Federal judicial system has come through here during my 27 
years of service and we have had a lot of really wonderful, 
outstanding people who are now serving on the Federal bench.
    I don't know of anybody who has any more qualifications or 
any greater ability in the law than you have, and that is 
counting some pretty exceptional people. And I think that is 
one reason why this particular hearing has not been as much an 
ordeal as some of the ones others have had. I think there is a 
tremendous amount of respect for you, as there should be.
    We will try to put your nomination on next Thursday's, 
after tomorrow, markup. It has almost become a general rule 
that the Democrats or somebody on the Committee will put over 
the nominations for at least one week. And generally, if the 
questions haven't been answered, that will probably occur.
    There is a belief by some that there is a real effort to 
slow down this process. Now, I would be the last who would 
think that that has real merit. Come to think of it, there has 
been some of that, but I am hopeful that in your case and in 
the case of many, many others that we can get you through, get 
you on the bench and get you doing your life's work, which is 
really what that will be, in the best interests of our country. 
And I have absolutely no doubt that your efforts will be in the 
best interests of our country.
    The other three district court nominees, we are very proud 
of them as well.
    So with that, we will close the hearing and thank you all 
for being here.
    [Whereupon, at 12:01 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
[GRAPHIC] [TIFF OMITTED] 90303.126

[GRAPHIC] [TIFF OMITTED] 90303.127

[GRAPHIC] [TIFF OMITTED] 90303.128

[GRAPHIC] [TIFF OMITTED] 90303.129

[GRAPHIC] [TIFF OMITTED] 90303.130

[GRAPHIC] [TIFF OMITTED] 90303.131

[GRAPHIC] [TIFF OMITTED] 90303.132

[GRAPHIC] [TIFF OMITTED] 90303.133

[GRAPHIC] [TIFF OMITTED] 90303.134

[GRAPHIC] [TIFF OMITTED] 90303.135

[GRAPHIC] [TIFF OMITTED] 90303.136

[GRAPHIC] [TIFF OMITTED] 90303.137

[GRAPHIC] [TIFF OMITTED] 90303.138

[GRAPHIC] [TIFF OMITTED] 90303.139

[GRAPHIC] [TIFF OMITTED] 90303.140

[GRAPHIC] [TIFF OMITTED] 90303.141

[GRAPHIC] [TIFF OMITTED] 90303.142

[GRAPHIC] [TIFF OMITTED] 90303.143

[GRAPHIC] [TIFF OMITTED] 90303.144

[GRAPHIC] [TIFF OMITTED] 90303.145

[GRAPHIC] [TIFF OMITTED] 90303.146

[GRAPHIC] [TIFF OMITTED] 90303.147

[GRAPHIC] [TIFF OMITTED] 90303.148

[GRAPHIC] [TIFF OMITTED] 90303.149

[GRAPHIC] [TIFF OMITTED] 90303.150

[GRAPHIC] [TIFF OMITTED] 90303.151

[GRAPHIC] [TIFF OMITTED] 90303.152

[GRAPHIC] [TIFF OMITTED] 90303.153

[GRAPHIC] [TIFF OMITTED] 90303.154

[GRAPHIC] [TIFF OMITTED] 90303.155

[GRAPHIC] [TIFF OMITTED] 90303.156

[GRAPHIC] [TIFF OMITTED] 90303.157

[GRAPHIC] [TIFF OMITTED] 90303.372

[GRAPHIC] [TIFF OMITTED] 90303.158

[GRAPHIC] [TIFF OMITTED] 90303.159

[GRAPHIC] [TIFF OMITTED] 90303.160

[GRAPHIC] [TIFF OMITTED] 90303.161

[GRAPHIC] [TIFF OMITTED] 90303.162

[GRAPHIC] [TIFF OMITTED] 90303.163

[GRAPHIC] [TIFF OMITTED] 90303.164

[GRAPHIC] [TIFF OMITTED] 90303.165

[GRAPHIC] [TIFF OMITTED] 90303.166

[GRAPHIC] [TIFF OMITTED] 90303.167

[GRAPHIC] [TIFF OMITTED] 90303.168

[GRAPHIC] [TIFF OMITTED] 90303.169

[GRAPHIC] [TIFF OMITTED] 90303.170

[GRAPHIC] [TIFF OMITTED] 90303.171

[GRAPHIC] [TIFF OMITTED] 90303.172

[GRAPHIC] [TIFF OMITTED] 90303.173

[GRAPHIC] [TIFF OMITTED] 90303.174

[GRAPHIC] [TIFF OMITTED] 90303.175

[GRAPHIC] [TIFF OMITTED] 90303.176

[GRAPHIC] [TIFF OMITTED] 90303.177

[GRAPHIC] [TIFF OMITTED] 90303.178

[GRAPHIC] [TIFF OMITTED] 90303.179

[GRAPHIC] [TIFF OMITTED] 90303.180

[GRAPHIC] [TIFF OMITTED] 90303.181

[GRAPHIC] [TIFF OMITTED] 90303.182

[GRAPHIC] [TIFF OMITTED] 90303.183

[GRAPHIC] [TIFF OMITTED] 90303.184

[GRAPHIC] [TIFF OMITTED] 90303.185

[GRAPHIC] [TIFF OMITTED] 90303.186

[GRAPHIC] [TIFF OMITTED] 90303.187

[GRAPHIC] [TIFF OMITTED] 90303.188



 NOMINATIONS OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT JUDGE FOR 
 THE TENTH CIRCUIT; J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE FOR 
  THE WESTERN DISTRICT OF TENNESSEE; WILLIAM H. STEELE, NOMINEE TO BE 
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA; THOMAS A. VARLAN, 
  NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE; 
 TIMOTHY C. STANCEU, NOMINEE TO BE JUDGE OF THE UNITED STATES COURT OF 
INTERNATIONAL TRADE; AND MARIAN BLANK HORN, NOMINEE TO BE JUDGE OF THE 
                 UNITED STATES COURT OF FEDERAL CLAIMS

                              ----------                              


                      WEDNESDAY, FEBRUARY 12, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:43 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Jeff 
Sessions, presiding.
    Present: Senators Sessions, Hatch, Specter, Craig, 
Chambliss, Leahy, Kennedy, Feingold, and Schumer.

 OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 
                      THE STATE OF ALABAMA

    Senator Sessions. The Committee will come to order. Senator 
Hatch is on the floor. I think there continues to be debate on 
one of the judicial nominees, Miguel Estrada, an 
extraordinarily capable lawyer, and that debate is going on, 
and I think that is where he is, and I have been asked to 
commence the hearing.
    I am pleased to welcome to the Committee this morning six 
fine nominees to the Federal bench. We will be considering the 
nominations of individuals to the U.S. Court of Appeals for the 
Tenth Circuit, U.S. District Courts in Tennessee and Alabama, 
the Court of Federal Claims, and the Court of International 
Trade. So we don't lack for a variety today.
    Our first panel will feature an excellent candidate for the 
appellate court, Timothy Tymkovich, who has been nominated to 
fill a seat on the Tenth Circuit Court of Appeals. Mr. 
Tymkovich's hearing has been a long time in coming. He was 
first nominated on May 25, 2001, almost 2 years ago. So I am 
pleased to see him this morning.
    We will then turn to our second panel: Judge Daniel Breen 
for the Western District of Tennessee; Thomas Varlan for the 
Eastern District of Tennessee; Judge William Steele for the 
Southern District of Alabama; Judge Marian Blank Horn for the 
U.S. Court of Federal Claims; and Timothy C. Stanceu for the 
Court of International Trade.
    And, of course, I would like to express appreciation for 
the members who have taken time from their busy schedules to 
come and present their views on the qualifications of our 
witnesses and nominees today. We will hear from them in a 
moment. Let me now say a few words about each of our nominees.
    Timothy Tymkovich, a graduate of the University of Colorado 
School of Law, has worked as a partner in private practice 
since 1996 representing clients in matters involving State 
licensing and regulatory issues. He has also acquired expertise 
in State and Federal election issues and has represented a 
variety of political parties and candidates. Mr. Tymkovich has 
been a great public servant for the State of Colorado, serving 
from 1991 to 1996 as the State Solicitor General where he acted 
as chief appellate lawyer for the citizens of Colorado. In that 
capacity, he ably represented the State in State and Federal 
courts, including the Colorado Supreme Court, the Tenth Circuit 
Court of Appeals, and the United States Supreme Court.
    When he left the Office of Solicitor General, the Denver 
Post editorialized, ``In an age in which lawyers and government 
workers are often held in low esteem, Tymkovich, a member of 
both groups, has stood in stark contrast to both stereotypes.'' 
The Post added, ``Tymkovich has set a high standard of 
service.'' And that is high praise.
    Mr. Tymkovich's nomination has drawn powerful support from 
all corners. He enjoys the unqualified endorsements of 
Colorado's Senators Campbell and Allard, both of whom I am glad 
to see here today; a number of former Colorado Supreme Court 
Justices, the Colorado Governor, the current Attorney General, 
and Colorado's major newspapers--the Denver Post and the Rocky 
Mountain News. I firmly believe Mr. Tymkovich will make a great 
member of the Tenth Circuit.
    As I said, we will also consider the nominations of five 
other individuals to the bench. Our nominee for the Western 
District of Tennessee, Judge J. Daniel Breen has served with 
distinction on both sides of the docket. An experienced civil 
litigator, he served as a United States Magistrate Judge since 
1991.
    Thomas Varlan, our nominee for the Eastern District of 
Tennessee, currently practices law in the areas of government 
relations, labor law, and employment law. For 10 years, he was 
the law director for the city of Knoxville.
    Judge William Steele, nominated for the Southern District 
of Alabama, has served as an Assistant United States Attorney--
helping a poor U.S. Attorney at that time who needed all the 
help he could get--and as a private practitioner, and since 
1990 Judge Steele has served as a magistrate judge for the 
United States District Court for the Southern District of 
Alabama. Magistrate judges are chosen on a very competitive 
basis by the courts, and they use them a lot.
    Judge Marian Horn, nominated to the Court of Federal 
Claims, has served in the Departments of Energy and Interior 
and is currently an adjunct professor of law at George 
Washington University School of Law. Since 1986, she served as 
a judge for the United States Court of Federal Claims.
    Last, but not least, Timothy Stanceu, our nominee to the 
United States Court of International Trade, has worked for the 
Environmental Protection Agency, as a Deputy Director of the 
Treasury Department's Office for Trade and Tariff Affairs. In 
1990, he joined the law firm of Hogan and Hartson where he 
concentrates in the field of international trade and customs.
    I look forward to hearing from all our nominees today and 
to working with my colleagues to bring their nominations to a 
vote very soon. Again, I welcome you all.
    As is our tradition or policy in the committee, the Circuit 
Court nominees, the Senators and Members of Congress for them 
would be offered the opportunity to speak first, and then 
Senators in order of their seniority would be allowed to speak 
on the District Court nominees.
    Senator Campbell, would you like to lead off?

  PRESENTATION OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT 
JUDGE FOR THE TENTH CIRCUIT BY HON. BEN NIGHTHORSE CAMPBELL, A 
            U.S. SENATOR FROM THE STATE OF COLORADO

    Senator Campbell. Thank you, Mr. Chairman. I am going to 
make my statement somewhat brief, partly because I have to 
chair a hearing myself at 10 o'clock and partly because you 
have already mentioned some of the outstanding qualities of Tim 
Tymkovich, the gentleman I am going to introduce, to serve on 
the Tenth Circuit Court of Appeals.
    It is a pleasure to be here with my friend and colleague 
and relative, Senator Allard, to introduce a very good man who 
is well qualified as a jurist, and I hope you will agree. It is 
my understanding that you met Mr. Tymkovich in your past life 
as Attorney General of your State and had worked with him on 
several things.
    I am also pleased that his wife, Suzanne Lyon, and their 
two sons, Michael and Jay, are here with us today to witness 
this important nomination of their Dad.
    Mr. Chairman, Tim Tymkovich is well qualified to serve on 
the Tenth Circuit. He is a native of Colorado, an excellent 
jurist, and an outstanding person who will be a terrific 
addition to the Tenth Circuit Court. Since he earned his 
doctor's degree, his juris doctor, as you mentioned, as the 
University of Colorado in 1982, he has had an outstanding 
career which I consider to be well balanced as a combination of 
both public service and private practice, too. Tim's public 
service experiences included serving as a clerk for the former 
Colorado Court Chief Justice William Erickson from 1982 to 
1983. From 1991 to 1996, as I think you mentioned, he served as 
Colorado's Solicitor General. And in between those years of 
public service, he earned an excellent reputation in private 
practice with several of our leading firms.
    For the past 2 years, he had served as counsel to Colorado 
Governor Owens' Columbine Review Commission, which reviewed the 
public agency and law enforcement response to the tragic 
Columbine High School shootings of 1999. At the same time, he 
co-chaired the Governor's Task Force on Civil Justice Reform, 
which has led to improvements of Colorado's civil justice and 
practice. He currently serves as a partner in the Denver-based 
law firm of Hale, Hackstaff and Tymkovich.
    You mentioned two of Colorado's leading newspapers have 
positively endorsed him. You mentioned some of the things they 
did say. They also said that he has gained a local reputation 
as a thoughtful, insightful attorney who knows the law and 
works hard to uphold it. That was in the Denver Post. I know 
that they have given Tim Tymkovich a very serious look, and I 
agree with them when they say that he is someone who combines 
intellectual heft and a steady temperament.
    So I just wanted to add my voice to that, Mr. Chairman, and 
tell you that I think it has been long overdue. You mentioned 
that it has been almost 2 years since he was first nominated, 
and I would hope that he would get the speedy approval of this 
Committee and the U.S. Senate.
    Thank you.
    Senator Sessions. Thank you, Senator Campbell.
    I am going to ask Senator Larry Craig to preside for a few 
moments. I have to leave for the necessity of a quorum just 
briefly in the HELP Committee, and I would recognize Senator 
Wayne Allard, my colleague, for your comments.

  PRESENTATION OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT 
   JUDGE FOR THE TENTH CIRCUIT BY HON. WAYNE ALLARD, A U.S. 
               SENATOR FROM THE STATE OF COLORADO

    Senator Allard. Thank you, Mr. Chairman. It is a great 
honor to be able to introduce, along with my colleague from 
Colorado, Senator Ben Nighthorse Campbell, Tim Tymkovich to the 
Judiciary Committee. He is the President's nominee to the Tenth 
Circuit Court of the United States Courts of Appeal. And Mr. 
Tymkovich has tremendous respect in the State of Colorado. You 
went over many of those accolades in your introduction, Mr. 
Chairman. My senior colleague from Colorado went over many of 
those. I will try not to repeat what has already been said. But 
the fact is he has been able to work in a bipartisan way, and 
he is well recognized in Colorado for his ability in his legal 
profession and is somebody that is respected, no matter who you 
are, because he is such a dedicated professional.
    This hearing has been a long time in the making, several 
letters and several floor statements and indeed several years 
after the date of the nomination. So I thank you again, Mr. 
Chairman, and the Committee for providing this hearing.
    I also want to thank Senator Campbell, the senior Senator 
from Colorado, and congratulate him for his fine remarks.
    First, I would like to welcome Mr. Tymkovich's wife to the 
hearing, Suzanne Lyon, as well as their two sons, Michael and 
Jay, and their family and the guests. I am sure that he will 
introduce them. I don't know what exactly is your format here 
in the committee, but frequently we have them introduce their 
family. I want to make sure that is covered.
    The nomination process is indeed a grueling process, and I 
hope it is no more difficult, though, than being elected to the 
Senate.
    I am sure it has been your family's continued support and 
encouragement that has provided the strength and energy Tim has 
needed in order to stand steadfast in pursuit of this most 
worthy endeavor. In a moment, I will share with you some truly 
stirring comments Mr. Tymkovich made to me during a recent 
conversation, but first, I had some comments I was going to 
direct to Senator Grassley on the committee. Unfortunately, he 
is not here right now, and many of us are tied up with a lot of 
other things that are going on. But just it is kind of 
interesting, and the fact is that Tim Tymkovich reminded him 
that Suzanne has actually spent time--that is Tim Tymkovich's 
wife--on Grassley's staff and is a native of Des Moines, Iowa. 
In fact, I am told Suzanne's mother, Janet Lyon, actually 
managed one of Senator Grassley's first campaigns for public 
office. I wish he had been here in the committee. We could have 
made a nice tie-in there with Senator Grassley.
    Mr. Chairman, when considering the nomination, please know 
that Tim Tymkovich has my unequivocal support. The confirmation 
of his nomination by the Senate will prove to be a great 
service to the people of the United States.
    As you know, his nomination has enjoyed broad and 
bipartisan support, support from judges, colleagues, both 
Democrat and Republican Governors. He is well respected for his 
approach to the law and to problem solving. He manages cases 
and clients with civility and understanding, setting a high 
example for the legal community. Tim Tymkovich understands the 
West, its community and its past. In fact, he informed me that 
he knows where all the outlaws are in the Tenth Circuit and 
where they hang out, valuable insight, I think, for a Federal 
judge.
    Now, how does he know might be a question this Committee 
would ask. Well, he spent many years traveling with his wife as 
a Western historian and novelist. Together they have traveled 
extensively, uncovering the old stomping grounds of legendary 
Western figures, like Butch Cassidy and others. Undoubtedly, 
this deep knowledge of the West will aid in his duties.
    Tim Tymkovich's commitment to public service is 
unparalleled. Through our conversations, I have developed a 
strong understanding of Tim's deep personal commitment to 
public service and his long respect for the rule of law and 
protecting people and the interests of the State.
    Mr. Tymkovich's legal credentials reveal him a man who 
values independence and fairness in the judicial process and 
understands the implications of a lifetime appointment to our 
Nation's courts.
    Mr. Chairman, Tim Tymkovich is a man who truly believes 
that there is no higher calling than to serve the American 
people through the impartial administration of the law. He will 
serve our Nation with the utmost of respect to our country and 
our Constitution, and for this reason, I urge you to forward 
his nomination to the Senate with a favorable recommendation.
    Thank you, Mr. Chairman, and our thanks to the committee.
    Senator Craig. [Presiding.] Before I turn to Senator 
Shelby, I thank you for those comments, Senator Allard. I 
wanted to put in the record a statement by Senator Grassley, 
who couldn't be here this morning, who did not want the 
presence of Mr. Tymkovich and his wife, Sue Lyon, to be unnoted 
in relation to the native Iowan and former intern in the 
Senator's office that Mrs. Tymkovich was. So I will put that 
statement in the record on behalf of Senator Grassley.
    Senator Craig. With that, thank you very much.
    Senator Allard. Thank you, Mr. Chairman.
    Senator Craig. I will turn to Senator Richard Shelby of 
Alabama to visit with us about William H. Steele. Thank you 
very much.

PRESENTATION OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE SOURTHERN DISTRICT OF ALABAMA BY HON. RICHARD C. 
        SHELBY, A U.S. SENATOR FROM THE STATE OF ALABAMA

    Senator Shelby. Thank you, Senator Craig, Senator 
Chambliss. I regret that my colleague and friend, Jeff 
Sessions, had to leave for a minute, but I can tell you he is 
in big support of William H. Steele, who worked with him, as 
Jeff just said, in the U.S. Attorney's Office.
    Mr. Chairman, it is a privilege for me to be here on behalf 
of William H. Steele's nomination for the United States 
District Court for the Southern District of Alabama. Judge 
Steele has a long record of public service and accomplishment, 
a distinguished record. Prior to entering the legal profession, 
he served in the United States Marine Corps as an aircraft 
commander and operations officer. He later served in the 
Alabama National Guard for 18 years as the commanding officer 
of an assault helicopter company. Judge Steele is also a 
founding member of the Child Advocacy Center and currently 
serves on the board. As a result of his work in the area of 
child abuse intervention, Judge Steele was awarded the City of 
Mobile's United Citizen Service Award, a great honor.
    After graduating law school from the University of Alabama, 
Judge Steele served as an Assistant District Attorney for 
Mobile County, where he subsequently attained the position of 
Chief Assistant District Attorney. He then went on to serve as 
an Assistant United States Attorney, as I said, under Jeff 
Sessions with the Department of Justice. He later worked in the 
private law firm of Thetford and Steele, during which time he 
also served as a municipal judge there. Currently, he is a 
magistrate, a distinguished magistrate, at the United States 
District Court for the Southern District of Alabama. And as a 
magistrate, he is trying cases all the time.
    He is well respected at the bar, both sides of the 
political aisle, Democrats and Republicans. His legal 
experience makes him an ideal candidate for the position of 
Federal District Court judge. As a Federal magistrate, he has 
already handled many full civil trials involving issues such as 
trade secrets, contract disputes, employment discrimination, 
and torts. You name it.
    Mr. Chairman, I support Judge Steele's nomination without 
reservation. His extensive judicial experience as a prosecutor 
and a Federal magistrate make him well prepared to assume the 
responsibilities of a United States District Court judge. I am 
confident that he will serve with honor and distinction in the 
new role, and I urge the Committee to send his nomination to 
the full Senate as soon as possible.
    Mr. Chairman, I ask that my full remarks be made part of 
the record.
    Senator Sessions. [Presiding.] Thank you, Senator Shelby, 
and I appreciate your insight into that. I know as a former 
lawyer, like I was, that you take these matters very seriously.
    Senator Shelby. It is a serious appointment.
    Senator Sessions. It is.
    Senator Shelby. And a very highly qualified appointee for 
this job.
    Senator Sessions. Thank you, and I know you talked to a lot 
of mainstream practicing lawyers before you--
    Senator Shelby. And I mentioned, I don't know if you heard, 
but I have had a lot of calls from Democrats and Republicans in 
the Mobile area that practice in the bench in the last few days 
and they said please support Bill Steele because he is fair, he 
is prepared, he will make an outstanding judge. And I think you 
can't have a better recommendation.
    Senator Sessions. Thank you. I agree with that. That is the 
exact reputation that I continue to hear from the lawyers in 
Mobile where I practiced my career. They are very, very high on 
him.
    Thank you. You can stay with us, or you are free to--
    Senator Shelby. I am going to leave it up to you, and I 
know he is going to sail through. You are going to help him, 
and I am going to help you.
    [Laughter.]
    Senator Sessions. All right. Thank you.
    [The prepared statement of Senator Shelby appears as a 
submission for the record.]
    Senator Sessions. Senator Alexander?

 PRESENTATION OF J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE WESTERN DISTRICT OF TENNESSEE AND THOMAS A. VARLAN, 
   NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
  TENNESSEE BY HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE 
                       STATE OF TENNESSEE

    Senator Alexander. Mr. Chairman, it is my privilege today 
to recommend on behalf of Senator Frist and myself two 
outstanding Tennesseeans. As the other Senator suggested, I 
have a lot of respect for this proceeding for two reasons. One, 
while I was Governor, I appointed about 50 judges, and I found 
that they outlasted me in terms of influence, and so I do this 
process very carefully. And, second, I had the privilege, as 
you and your families have today, of being confirmed by the 
United States Senate and seeing what a remarkable process it 
is. So I welcome you here and respect you for being here.
    Senator Frist, our Majority Leader, joins me in that 
welcome. He is at least as enthusiastic as I am about it. He 
had a lot to do with your being here. He has a lot of duties as 
the Majority Leader today, so he sent his warmest wishes and a 
message which I am going to leave with the committee, which 
will reflect his enthusiasm for your presentation.
    Just very briefly, Dan Breen and Tom Varlan have been 
nominated to be United States District judges for the two ends 
of our State, the Western District and the Eastern District of 
Tennessee, which are very different parts of the world. But 
while they represent different parts of our State, they come 
with many of the same kinds of credentials. They both have 
exceptional academic records. They both have lots of practical 
experience in the practice of law and in judging. They both are 
extremely active in their respective communities. And they both 
have wide respect among members of the bar and in those 
communities.
    Judge Breen is the United States Magistrate Judge for the 
Western District of Tennessee now. He graduated first in his 
class in college. He has the highest rating from the American 
Bar Association. He has been an author and he is well known for 
his thoughtful judicial temperament, and it is a great 
privilege to be here to recommend him.
    Tom Varlan in the same way graduated with the highest 
honors at the University of Tennessee and Vanderbilt 
University. He has been in the private practice of law. He has 
been law director of the City of Knoxville. He comes to the 
bench, as does Dan, with real practical experience and respect 
for the law.
    I used to say when I appointed judges that among the things 
that I hope they would remember is that once they ascend the 
bench for a long term, in this case a life term, that they 
would remember to be courteous to all those who came before 
them. And I think that is important as any other qualification. 
But on behalf of the people of our State and Senator Frist and 
myself, it is a great honor to recommend two such exceptional 
men as Tom Varlan and Dan Breen, and I am delighted they are 
here with their families.
    Senator Sessions. Thank you, Senator.
    Senator Specter, I would recognize you for your comments at 
this time and would note that Senator Specter, of course, is a 
senior member of this committee, himself an outstanding 
practicing attorney and prosecutor, and just a very 
knowledgeable person in the law. Senator Specter?

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you very much, Mr. Chairman. Just a 
comment or two.
    I welcome all of the nominees and their families and others 
who are here today. Do not be surprised at the number of 
Senators who are here because this is a very, very busy day. As 
you doubtless know, we have the nomination of Miguel Estrada on 
the floor. We are finishing up the omnibus appropriations bill. 
And there are many, many competing hearings. But we will follow 
what is going on very, very closely on the nominating process.
    Senator Alexander articulated a chord which is worth just a 
minute. When I was here in this room back in 1982 on the 
nomination of two Pennsylvania judges, Judge Caldwell and Judge 
Mansman, Senator Thurmond, who was the Chairman of the 
committee, said, in his inimitable Southern drawl, ``If 
confirmed, do you promise to be courteous?'' And I translated 
that to be, ``If confirmed, do you promise to be courteous?''
    [Laughter.]
    Senator Specter. And I said, What an unusual question. What 
does Senator Thurmond expect the nominees to say but yes? And 
then he added to it, ``Because the more power a person has, the 
more courteous the person should be.''
    Senator Sessions understands that.
    Senator Sessions. That is pretty close.
    [Laughter.]
    Senator Specter. He is from the South where they understand 
this dialect, frequently articulate it themselves. The more 
power a person has, the more courteous the person should be. 
Whenever Senator Thurmond is not here--and he has, of course, 
left the Senate, an extraordinary record--I take a moment to 
say that, because when you become a judge and you have 
litigants and lawyers who appear before you, it is not unusual 
to be a little distressed with some of the things that go on. 
And that is a great admonition. And on the selections which 
Senator Santorum and I make on our judicial nominating panel 
for Pennsylvania, we are very, very concerned about that item.
    Senator Allen just walked in, and I always make it a point 
when Senator Allen walks in just to finish the sentence.
    Senator Allen. Go ahead.
    Senator Specter. I just did. Thank you, Mr. Chairman.
    Senator Sessions. Thank you, Senator Specter. Wise 
comments.
    Senator Chambliss. Mr. Chairman?
    Senator Sessions. Senator Chambliss?
    Senator Chambliss. Before you leave Judge Breen and Mr. 
Varlan, as a graduate of the University of Tennessee myself, I 
notice they are both graduates of that fine institution, so I 
am very confident that their educational background will make 
them excellent judges. So I am pleased to look forward to their 
confirmation.
    Senator Sessions. I have no doubt of it.
    Senator Allen?

PRESENTATION OF TIMOTHY C. STANCEU, NOMINEE TO BE JUDGE OF THE 
 UNITED STATES COURT OF INTERNATIONAL TRADE BY HON. GEORGE F. 
        ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Allen. Thank you, Mr. Chairman.
    Senator Sessions. You didn't get caught in traffic also, 
did you?
    Senator Allen. No. This is my fourth meeting of the 
morning.
    Senator Sessions. I am hearing that. I had a note here that 
several of our members are having trouble in some traffic 
snarl. We probably need a new bridge to Virginia, I am sure.
    [Laughter.]
    Senator Allen. Or at least widen the 14th Street Bridge. It 
is important for national security and homeland defense.
    Senator Sessions. I have no doubt.
    Senator Allen. This is about the fourth or fifth event of 
the morning for me. I am delayed because I am on the Commerce 
Committee, and we are having a hearing with Mr. O'Keefe on the 
NASA disaster of the Columbia. So thank you for fitting me in 
here, Mr. Chairman and members of the committee.
    I am here for the privilege of introducing an outstanding 
gentleman from Arlington, Virginia, for your consideration as 
the President's nominee to be a judge of the United States 
Court of International Trade. That gentleman is Timothy, or 
Tim, Stanceu. He is an extraordinarily well-qualified 
individual for the appointment to this important Court of 
International Trade. He is recognized as an expert in many of 
the issues that are under the jurisdiction of the CIT through 
his extensive experience both in Government and in public 
service as well as in the private sector.
    Mr. Stanceu served in the public sector from 1974 to 1989 
in the U.S. Department of Treasury as the Deputy Director of 
Trade and Tariff Affairs and as the Special Assistant to the 
Assistant Secretary for Enforcement and Operations. His 
responsibilities in these positions included regulatory and 
policy issues involving the U.S. Customs Service.
    For the past 13 years, Mr. Stanceu has been with the 
Washington law firm of Hogan and Hartson. Most of his practice 
has involved customs laws, antidumping, and countervailing duty 
proceedings.
    Mr. Stanceu has also represented clients before the Customs 
Service, the Office of the U.S. Trade Representative, the 
Commerce Department, the International Trade Commission, the 
foreign trade zones issues as well, and the Court of 
International Trade, the very court to which he is nominated to 
serve.
    Mr. Stanceu is also a frequent lecturer and instructor on 
customs and other international trade law topics at the 
University of Maryland Law School.
    If you all look at his very distinguished career in public 
and private service in those positions, I cannot imagine the 
President finding a more qualified person on the face of the 
earth to be serving in this important Court for International 
Trade. And I understand Mr. Stanceu's family is also with him 
today: his wife, Mary, who is an Assistant U.S. Attorney; Mitzi 
Mewhinney, his mother; and Dick Mewhinney, his stepfather; and 
Patrician Hallissy, his sister.
    Unfortunately, Mr. Chairman and members of the committee, 
this new job will require Mr. Stanceu to move from Virginia to 
New York City, where the court is located, meaning he will no 
longer be a resident, I suspect, of our wonderful Commonwealth 
of Virginia. But I am sure the Senator from New York will make 
him feel very welcome in New York City.
    Senator Schumer. I will welcome him to New York State.
    Senator Allen. Okay, that is a nice way of saying it. If 
that will help move him through expeditiously, Mr. Chairman, 
again, it is my pleasure to present to this Committee an 
outstanding, truly exceptional individual with the background, 
the knowledge, and capabilities to serve us on the Court of 
International Trade. And I think that you will recognize that 
as you interview him, look through his record, and I hope you 
will be able to, as promptly as practicable, move his 
nomination for confirmation.
    Thank you, Mr. Chairman and members of the committee.
    Senator Sessions. Thank you, Senator Allen. I know you do 
have to get back to the hearing on science.
    Senator Allen. Thank you.
    Senators Chambliss or Schumer, do you have any opening 
comments you would like to make?
    Senator Schumer. No.
    Senator Chambliss. No.

PRESENTATION OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE SOUTHERN DISTRICT OF ALABAMA BY HON. JEFF SESSIONS, A 
             U.S. SENATOR FROM THE STATE OF ALABAMA

    Senator Sessions. I would make my remarks today in 
reference to Judge William Steele.
    Judge Steele served in the Marine Corps, was a helicopter 
pilot, completed his tour of duty, came to the University of 
Alabama School of Law and got his degree there, did well. He 
came to Mobile and worked for the District Attorney, Chris 
Galanos, who was a Democratic administration, rapidly rose to 
his chief assistant. During that time I was United States 
Attorney, and my staff and Chris Galanos' staff worked together 
on quite a number of cases, some big cases, one of them being 
the terrible murder of Michael Donnell and hanging of his body 
in Mobile by a Klan group, and we worked together through those 
intense days. And Bill Steele, according to all the people in 
my office and my personal observation, was just a rock of 
integrity and judgment in those times. So when we had the 
opportunity, I was able to hire him as an Assistant United 
States Attorney. He worked in my office for a couple of years 
and then went into private practice.
    A vacancy became available for the position of United 
States Magistrate Judge, which in the Southern District of 
Alabama is a very important position. It is important in most 
districts, but I don't think there is a district in America 
that demands more of the magistrate judges, calls on them to do 
more complex work than in the Southern District of Alabama. A 
very competitive position, probably 40 or 50 or 60 people 
applied. The judges in that district, knowing they are going to 
rely on the magistrates for important matters, take that 
selection process very seriously, and he was selected on merit 
for that position, and since then has served with extraordinary 
skill and capability, winning support throughout the area for 
his judgment and integrity.
    I just thought I would mention a few things that you hear 
from the local community about his abilities. Virtually all 
the--the present president of the Mobile Bar Association and 
the other members, former presidents of the bar have endorsed 
him. The Vernon Z. Crawford Bay Area African-American Bar 
Association in Mobile gave Bill Steele their unanimous 
endorsement, saying, ``The Association strongly recommends 
Magistrate Bill Steele for the position because he recognizes 
and is sensitive to the issue facing African-American lawyers 
and the African-American community. We give Magistrate Steele 
our highest recommendation.''
    Major General Gary Cooper, retired from the U.S. Marine 
Corps, the first African-American Marine general, President 
Clinton's Ambassador to Jamaica, grew up in Mobile, said, ``As 
an African-American citizen of Mobile and as a retired Marine, 
I appreciate what William Steele has done for his community as 
a county and Federal prosecutor, as a Federal magistrate, and 
what he has done for his country as a Marine helicopter pilot. 
His record indicates he will make a fine judge.''
    Carlos Williams, Chairman of the Southern District of 
Alabama Federal Defender Organization, an African American, 
noted that, ``During the years I have practice in Judge 
Steele's court, I have come to know a jurist of integrity, 
professionalism, and compassion and have grown to respect his 
judgment. I note that every lawyer in my office--Christin 
Gartman Rogers, Kay Lynn, Hillman Campbell, Christopher 
Knight--in unsolicited comments have expressed their support 
for his nomination. It is, therefore, without hesitation that I 
send this letter of support of Magistrate William Steele's 
nomination to the United States Court of Appeals.''
    That group is the one that defends the criminal cases in 
Federal court. They have an opportunity to know whether a 
magistrate judge is fair or not. And I think that was a strong 
comment.
    But I will just mention this, one more before I--a couple 
more comments I think I will make. I just have so many.
    Merceria Ludgood, assistant county attorney now for Mobile 
County, and former program director for the Legal Services 
Corporation in Washington, D.C., and a former executive 
director of the Legal Services Corporation for the entire State 
of Alabama, an African American, made this comment, and it 
captures him so well: ``Magistrate Judge Steele is one of the 
finest men I have ever known. Never once have I believed his 
actions to be motivated by politics or ambition. He simply 
wants to do the right thing for the right reasons.'' And that 
is the Bill Steele that everybody knows in the Southern 
District of Alabama who practiced before him.
    I would note that he has support from a host of other 
people, including the bar. Greg Breedlove, on behalf of the law 
firm of Cunningham, Bounds, Yance, Crowder and Brown, a 
prominent Democratic plaintiff firm in Mobile, one of the best 
plaintiff firms in the country, if you want to know the truth, 
send their unanimous support for Judge Steele, and I have had 
several members of the firm tell me that they are just 
exceedingly impressed with his integrity and ability and 
strongly support his nomination.
    So I say that to say that his support goes across racial 
and political bounds. It represents the considered judgment, I 
believe, of the bar and practitioners in the Southern District 
of Alabama.
    All right. Opening statements are done, and I will offer a 
formal statement for the record.
    [The prepared statement of Senator Sessions appears as a 
submission for the record.]
    Senator Sessions. At this time I would call on Mr. 
Tymkovich, the Court of Appeals nominee, as our first witness.
    Mr. Tymkovich, would you stand and be sworn, please? Do you 
swear that the testimony you are about to give before the 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Mr. Tymkovich. I do.
    Senator Sessions. Thank you. Please be seated.
    Congressman Cannon, I am glad you finally go through that 
traffic jam. I appreciate your coming, and I won't ask Mr. 
Tymkovich to move. Maybe you can sit right there.
    Mr. Cannon. I hope this won't affect anything that ever 
happens before him in his court.
    Senator Sessions. That is the center seat you have. Thank 
you for coming. I know you have some comments about one of our 
nominees.

 PRESENTATION OF MARIAN BLANK HORN, NOMINEE TO BE JUDGE OF THE 
 UNITED STATES COURT OF FEDERAL CLAIMS BY HON. CHRIS CANNON, A 
       REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH

    Representative Cannon. Thank you, Mr. Sessions, Mr. 
Schumer. It is a pleasure to be here today to introduce my dear 
friend, Marian Horn, whom I think you are going to be 
considering today for an appointment back to the bench for the 
Court of Claims.
    It is a great honor for me. I have known Marian since 1983 
when I took her job. She was elevated to become an Associate 
Solicitor at the Department of the Interior for General Law, 
and I became the Deputy Associate Solicitor for Surface Coal 
Mining. I shortly thereafter became an Associate Solicitor, so 
we were peers, although never equals in our experience with the 
law or coal mining.
    In that capacity, I got to know Marian and her family well, 
her three daughters, her husband. Our families became close. I 
was trying to think on the way over here. We worked on 
literally dozens of relatively small issues and several major 
issues together. During that period of time, I found that her 
judgment was exceptional, thoughtful, considered, and I can't 
recall a time that she was wrong. And we also dealt with many, 
many minor issues, and she was right on those as well.
    In thinking about what I could say about Marian, it 
occurred to me that over the course of her judgeship I have run 
into four or five or six people who have clerked for her in the 
past. And while they all said very nice things about her and 
had different experiences, the one thing that came through that 
everyone talked about was the fact that it was a great learning 
experience and they learned a lot from her. She has taught in a 
couple of different capacities in law school. I think she 
understands the law well. I think she has done a great job as a 
judge. And I would recommend her. It is my honor to introduce 
her, and I apologize, Mr. Chambliss. I didn't look over in this 
direction. But you are on the wrong side, aren't you?
    [Laughter.]
    Representative Cannon. Thank you for your time and 
attention.
    Senator Sessions. Thank you, Congressman. We appreciate 
those comments.
    Our ranking member, Senator Leahy, do you have any comments 
before we call our first witness?
    Senator Leahy. No. I was tied up over on the floor. You 
folks have a matter over there, and so I was doing that. But I 
am delighted to see the Congressman and others who are here.
    I do have one short statement concerning six nominees for 
appointments to the Federal bench, and I am glad that we are 
going back to Senator Hatch's precedent he established when he 
was Chairman before of having one Court of Appeals nominee plus 
whatever other nominees are on. I think that is helpful. It 
allows us to have better attention to it. There is a lot of 
staff work and Senators' work to go into each one of these 
hearings preceding them and going through the backgrounds. When 
you toss out, for example, three Courts of Appeals nominees in 
1 day, it is impossible to do that. And it can be done quickly 
if you do it right. For example, during the less than a year 
and a half that Democrats chaired this committee, we greatly 
accelerated the pace of nominees from before. During the 
Clinton era with Republicans in charge, nominees were slowed 
up, I thought unnecessarily. We confirmed 100 of President 
Bush's nominees in 17 months, but we did it step by step so 
that both sides of the aisle would know what we are doing so we 
don't end up like a conveyor belt, which really makes the 
American public wonder just what we are doing.
    We are moving with Tim Tymkovich for a seat on the Tenth 
Circuit. He is from Colorado. And I am glad to see that he is 
having a hearing. I think he should have.
    I would note that when President Clinton nominated two 
different people to fill that seat, Jim Lyons and Christine 
Arguello, they were not allowed to have a hearing. And I 
thought that was unfortunate. Mr. Lyons was among the many 
Clinton nominees who had the highest rating, something that, 
Mr. Chairman, you and members of your party have been talking 
about, people with the highest ratings, on the floor. And I 
think one of you said they should at the very least all get a 
hearing. Well, Mr. Lyons had that ``well qualified,'' the 
highest rating by the American Bar Association. He was never 
granted a hearing. Ms. Arguello, who is a talented Hispanic 
attorney whose nomination had significant support from her 
community, including the two Republican Senators from her 
State, she was denied a hearing also, and the seat remained 
open. They had these very highly qualified ratings, but they 
were not allowed to have a hearing by the Republican leadership 
of the committee.
    Mr. Tymkovich has a good record in private practice and 
Government, seems impressive, and I am interested to know more 
about him. I would note that the American Bar Association gave 
this nominee a partial ``not qualified'' rating. I am so glad 
he is having this hearing, but I would note that there is a 
little bit of a double standard here when you have two 
Democratic nominees with the highest ratings and they were not 
even allowed to have a hearing.
    I have more things to say. I will put them in the record so 
as not to hold this up and will look forward to hearing the 
answers from the nominee.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Sessions. Thank you, Senator Leahy. I know that 
some nominees did not clear last year. Forty-one were left 
pending when President Clinton left office. Fifty-four had not 
cleared and were left pending when President Bush left office. 
And only one nominee was voted down on the floor of the Senate, 
and none were blocked in Committee during the time the 
Republicans chaired this. But--
    Senator Leahy. Mr. Chairman, that is not--
    Senator Sessions. --I know you feel that there are 
different ones that had different problems that you didn't feel 
were fair, but I think overall the Congress moved pretty well 
with the Clinton nominees.
    Senator Leahy. Well, Mr. Chairman, that is not totally 
accurate. For one thing, you say they were not voted down. They 
were never voted. They were never brought up for a hearing. 
These two with the highest qualification ratings from Colorado, 
one Hispanic woman supported by two Republican Senators, was 
still never allowed a hearing. That is my point. It is easy to 
talk about who gets voted up, who gets voted down, if they are 
allowed a vote. They were not allowed a vote in the committee. 
They weren't even given hearings. That is the concern. Were 
there several on the end of the first President Bush's term? 
Yes, there were. You may recall the reason. I don't know if you 
were here at the time, but they were nominated after the 
application of the Thurmond rule, named after Senator Strom 
Thurmond, whom you will recall served here for so many years. 
And under that rule, nominees, except in extraordinary 
circumstances, if nominated in the last 6 months of a 
President's term, were not given hearings. This was a 
Republican-instituted rule that was followed in that case, 
although I must say the Democratic Chairman of the Committee at 
that time asked and got consent for a number of President 
Bush's nominees that would have fallen under the rule. He still 
put them through and arranged for them to go through.
    There was also the assumption that President Bush was--and 
I think the reason the Republicans were glad to use the 
Thurmond rule was they assumed that President Bush was going to 
be re-elected. He wasn't.
    But I also know in that case one of those nominees, a 
Republican from my State, the Second Circuit, a conservative 
Republican, when President Clinton became President, I went 
down and urged President Clinton to appoint this conservative 
Republican to the Second Circuit, and he did.
    But I just pass that for history.
    Senator Sessions. Well, I will admit there were 41 that 
were not confirmed. With regard to Mr. Lyons, he was nominated, 
and then his nomination was withdrawn because there was no home 
State support. And I know you expect your Democratic Senators 
to be consulted. And Christine Arguello was nominated in late 
July and just did not clear before the election.
    But, anyway, I would say this--and I hope we can get a vote 
for Miguel Estrada. Maybe you can support us on that.
    Senator Leahy. Well, in fact, we could have a vote very, 
very quickly on Mr. Estrada if Mr. Estrada were to--we have a 
number of others, very controversial nominees of President 
Bush, very conservative ones, all of whom answered the 
questions they were asked, all of whom got votes when the 
Democrats were in charge. I think of Professor McConnell and 
others who fall in that category, some from your own neck of 
the woods. As Senator Daschle and I told President Bush 
yesterday, we would urge that we have a vote on Miguel Estrada 
as soon as he answers the questions. in fact, he stated under 
oath that he had no objection to answering these questions, but 
the White House told him not to. If they would change their 
view, let Mr. Estrada do what he said under oath that he is 
perfectly willing to do, we could probably have a vote on him 
very quickly.
    Senator Sessions. Maybe that will happen.
    I have a letter from Senator Frist, our Majority Leader, 
with regard to nominees Judge Daniel Breen and Tom Varlan. He 
concludes saying, ``I am convinced Dan Breen and Tom Varlan are 
ideal candidates, and they have my highest recommendation and 
unqualified support.''
    I will place that in the record.
    Mr. Tymkovich, sorry to interrupt you. We are glad you are 
here.

STATEMENT OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT JUDGE 
                     FOR THE TENTH CIRCUIT

    Mr. Tymkovich. Thank you, Mr. Chairman.
    Senator Sessions. Mr. Tymkovich, the Founding Fathers 
believed that the separation of--did you have an opening 
statement? We would be glad to hear that. I didn't give you 
that opportunity.
    Mr. Tymkovich. Mr. Chairman, I do not. I had a few 
introductions, if I may.
    Senator Sessions. Please, that would be wonderful.
    Mr. Tymkovich. Thank you, Senator. With me today is my 
wife, Sue Lyon, the noted Western novelist, I might add, who 
writes about Utah and Wyoming and Colorado and other parts of 
the Tenth Circuit history.
    Senator Sessions. If it is not perfectly favorable, that 
might make Senator Hatch nervous because he sees nothing but 
good in Utah.
    [Laughter.]
    Mr. Tymkovich. Well, it is about a few bandits, but they 
had a good heart to them, also.
    My sons, Michael and Jay Tymkovich, who are students at 
Peak to Peak High School in Lafayette Colorado. In the back of 
the room are my father and mother, Carla and Michael Tymkovich. 
Would you stand, please? And with them are my two sisters, 
Jenni Tymkovich and Terri Tymkovich. Traveling from Columbia, 
Missouri, today is Sally Lyon, my sister-in-law, who is a 
middle school principal in the public schools in Columbia, and 
her son, Jack, who is a high school student in Missouri, also. 
Also, my friends, Mike Ibarra and Ray Gifford have joined me 
here today.
    Thank you, Senator.
    Senator Sessions. Well, thank you, and we are glad to have 
each of you here. And it is a special day, I know, to be chosen 
and be nominated by the President for this important position.
    Mr. Tymkovich, the Founding Fathers believed that the 
separation of powers in a government was critical to protecting 
the liberty of the people. Thus, they separated the 
legislative, executive, and judicial powers into three 
different branches of government--the legislative power being 
the power to balance moral, economic, and political 
considerations and make law; the judicial power being the power 
to interpret laws made by Congress and the people.
    In your view, is it the proper role of a Federal judge when 
interpreting a statute or the Constitution to accept the 
balance struck by Congress or the people or to rebalance the 
competing moral, economic, and political considerations?
    Mr. Tymkovich. Mr. Chairman, thank you for that question. 
You've raised an issue that's a bedrock to our constitutional 
structure, the separation of powers doctrine. And as the 
Senator well knows, we have three co-equal branches of 
government: the legislative, executive, and judicial branches.
    I have had the good fortune in my career to serve or 
represent all three branches of government at the State level 
and have a keen and abiding sense of the proper role of those 
institutions within that structure of government.
    The job of the judiciary is to interpret the laws that have 
been passed by Congress and apply them against our 
constitutional framework. To do that, we have been given 
precedent from the United States Supreme Court in interpreting 
the Constitution as well as the guidance of Congress in 
enacting legislation within its sphere of power.
    Senator Sessions. Making law is a very serious matter. To 
make constitutional or statutory law, the text of a proposed 
amendment or statute must obtain a set number of formal 
approval by the people's elected representatives. This formal 
process embodies the expressed will of the people through their 
elected representatives and, thus, raises the particular words 
of a statute or constitutional provision to the status of 
binding law.
    Would you agree that the further a judicial opinion varies 
from the text and the original intent of the statute or 
constitutional provision, the less legal legitimacy it has? And 
is it the proper role of a Federal judge to uphold the 
legitimate will of the people as expressed in law or to impose 
his or her view of what is wise or just?
    Mr. Tymkovich. Mr. Chairman, a Federal judge has a solemn 
obligation to leave his personal views behind when interpreting 
an act of Congress or the provisions of the United States 
Constitution. The job of a lower court, inferior court, as the 
Tenth Circuit Court of Appeals in our constitutional structure, 
is to apply precedents that have been given to it by the United 
States Supreme Court and try not to vary from the Congressional 
dictates as set forth in the statutes that have been enacted by 
this body of Congress.
    I've had an experience representing the State of Colorado 
in various capacities and defending and interpreting State law 
and have a keen understanding of the advocacy and the give-and-
take that goes into the legislative process and the importance 
that judges apply the law that's been passed by the legislative 
branches faithfully and according to the language and intent of 
the legislative process.
    Senator Sessions. In general, Supreme Court precedents are 
binding on all lower Federal courts and Circuit Court 
precedents are binding on the District Courts within that 
particular circuit. Are you committed to following the 
precedents of the Supreme Court and giving them full force and 
effect even if you personally were to disagree with those 
precedents?
    Mr. Tymkovich. I am, Mr. Chairman. It's a critical part of 
our system of government and the furtherance of the rule of law 
that lower court judges, such as the Tenth Circuit Court of 
Appeals, follow the binding precedent of the United States 
Supreme Court. And I'm dedicated to applying that important 
principle if I am fortunate enough to be confirmed as a Tenth 
Circuit judge.
    Senator Sessions. And, just again, would you apply that 
decision as the Supreme Court held even if you personally 
thought it was a seriously erroneous opinion?
    Mr. Tymkovich. Even if I believed the Court was wrong, I 
would apply that as binding precedent on the Tenth Circuit, 
yes, sir.
    Senator Sessions. Well, I think that is an important 
principle. We are government of laws and not of men or women or 
personal opinion. And I think that is important.
    Also, I would just note that judges, by being given the 
extraordinary power of a lifetime appointment, we remove them 
from politics and the will of the people. Therefore, they must 
show restraint and must allow the policy issues to be set by 
the legislative branches. And if we do that right, we will 
continue to have this tremendously wonderful rule of law that 
we have.
    Senator Schumer, do you have any comments or questions?
    Senator Schumer. Yes, I do. Thank you, Mr. Chairman.
    First, I want to welcome Mr. Tymkovich and his family. On 
this Committee it is well known we have lots of different views 
and different opinions, but I think one of the things that 
binds us together, it just warms everyone's heart to see a 
family come from all over, and friends, and we welcome you and 
are glad that you are so joyful at your relative's or friend's 
nomination here.
    I have a few questions about some of the issues here today. 
Mr. Tymkovich, when you were the State Solicitor General, you 
litigated the Romer v. Evans, the Supreme Court case that held 
that a Colorado State statute violated the U.S. Constitution's 
equal protection guarantees. And you have been extraordinarily 
critical of the Supreme Court's opinion in Romer v. Evans. You 
have called the decision ``an important case study of the 
Supreme Court's willingness to block a disfavored political 
result, even to the point of ignoring or disfiguring 
established precedent.''
    You have written that the case is ``another example of ad 
hoc activist jurisprudence without constitutional mooring.''
    Will you please explain why you see Romer, a case that held 
that the 14th Amendment's equal protection guarantee protects 
the rights of gays and lesbians and bisexuals as a case of 
judicial activism and unmoored jurisprudence?
    Mr. Tymkovich. Senator, thank you for giving me the 
opportunity to clarify my role in the Romer v. Evans case.
    As the Senator knows, as a State Solicitor General it is 
the job of the Office of the Attorney General, of which I'm a 
member, to defend State laws which have been enacted by our 
State legislature or, in this case, by a popular initiative. 
And I might add that this particular provision, like many in 
our State, are generated through a citizens' petition process, 
put on the ballot, and then put forward to a statewide vote.
    The officials of the State of Colorado and the office in 
which I served had nothing to do with the development or the 
passage of that law. However, once it's enacted, that 
provision, like many others that were on the same ballot, fall 
to the Attorney General's Office to defend. And as part of my 
role as State Solicitor General, that was a provision that we 
were obligated to defend, our constitutional duty on behalf of 
the State of Colorado.
    I might note Governor Romer, our Democratic Senator, 
happened to be the defendant in that case and understands what 
it's like to have an institutional obligation in those matters.
    The issue in Romer v. Evans had to do with whether or not 
the statewide provision could repeal or pre-empt certain gay 
rights laws that had been enacted at the local level. Under the 
constitutional jurisprudence at the time, we put forth what we 
thought were the best arguments to sustain its 
constitutionality under a rational basis analysis, under the 
Federal Equal Protection Clause, and various State law 
provisions.
    On appeal to the Colorado Supreme Court, the Supreme Court 
came up with a different analysis of what it believed to be the 
constitutional problems with Amendment 2, namely, that it had 
an effect on the voting participation rights of an identifiable 
group, in this case people's characteristics based on their 
sexual orientation.
    That issue was appealed to the United States Supreme Court 
in really a bipartisan decision in our State. I don't think 
there was any question in the State of Colorado that it was an 
appropriate case to be appealed to the U.S. Supreme Court, and 
I think that it was a very controversial and divisive issue at 
the time, as I think the Senator knows from reviewing my 
background. And the State firmly believed that a United States 
Supreme Court decision would bring legal closure to that 
provision.
    During the course of that appeal, Senator, I want to say 
that I've always firmly believed in the doctrine of judicial 
supremacy of--the supremacy of the Federal Constitution even to 
a State provision like Amendment 2. The rule of law applied in 
that circumstance certainly was a vote of--a statewide vote of 
the people that it was entitled to be tested against the 
Federal Constitution, which was what the case was all about.
    At the Supreme Court level, as the Senator knows, the 
Supreme Court did find that it violated the Equal Protection 
Clause, and it was declared unconstitutional.
    I had the opportunity to participate in a symposium about a 
year after the Supreme Court decision with a number of 
respected scholars from around the country, many from the left, 
from the right, from the middle, to critique the Supreme 
Court's decision. And as a part of my participation in that 
symposium, I prepared a Law Review article that described the 
legal arguments for and against the provision and what I 
thought the applicable legal standards should be and how the 
Court employed the decisionmaking process in that case.
    Notwithstanding my observations about the way the Court's 
decisionmaking process was employed, Romer v. Evans is binding 
precedent of the United States Supreme Court, and I wouldn't 
have any problem with applying it faithfully if I am fortunate 
enough to be confirmed as a member of the Tenth Circuit.
    Senator Schumer. But it is true that the Law Review article 
you wrote, you were doing not in your official capacity--I 
don't even know if you were still in the Colorado Solicitor--
were you in the Office of the Solicitor General at the time you 
wrote the article and participated in the symposium?
    Mr. Tymkovich. Senator, it was just as I was transitioning 
off. I think the symposium occurred while I was in the late 
stages of my tenure as Solicitor General.
    Senator Schumer. Okay. But you wrote it--this was not--no 
one was telling you to write this. This was not part of your 
duties as a State official. Is that correct?
    Mr. Tymkovich. No, the University of Colorado, my alma 
mater, had the Byron White Constitutional Law Symposium, and 
this was the issue, and they had asked me to present--
    Senator Schumer. So these were your own opinions in this 
article?
    Mr. Tymkovich. Well, it was certainly my reflections on my 
experience in the case, and my co-counsel in the case, Jean 
Dubofsky, also provided her experiences.
    Senator Schumer. But this doesn't seem to be a reflection 
of what happened. I mean, you tell me if I am misinterpreting 
these words. You said that you thought the Supreme Court 
ignored or disfigured established precedents, and of most 
interest to me, at least, and I think some others on the 
committee, you called it ``another example of ad hoc activist 
jurisprudence without constitutional mooring.''
    Now, you believe that, right?
    Mr. Tymkovich. Well, Senator, I think in the article I was 
describing what critics have described the decisionmaking 
process of Romer v. Evans, and I wanted to come back to the 
symposium because I think the unanimous views of the members of 
the symposium, constitutional professors like Janet Haley and 
Larry Alexander, had similar criticisms of the decisionmaking 
process.
    So I certainly was not alone and in good company, left, 
right, and center, in that symposium.
    Senator Schumer. I am not arguing with you about the 
outcome of the case, although we would probably--I agree with 
the outcome, but I mean, I am not--at the moment I don't want 
to get into a discussion; I may a little later. But these were 
your views. I mean, let's just call a spade a spade. You were 
writing a Law Review article, and you wrote very strong 
language. You weren't saying ``others said.'' You were the 
author, and you said, ``is another example of ad hoc activist 
jurisprudence without constitutional mooring.'' I am not asking 
if others agreed or disagreed. I am just asking, Was that your 
opinion?
    Mr. Tymkovich. Well, I think I was describing the overview 
of many critics, and certainly I think, Senator, one of the 
prerogatives of a lawyer who's had an opportunity to litigate a 
case of some prominence--and this is a case that I lost, but 
the purpose of the article was to present the arguments that 
were made in the lower and appellate courts and why I thought 
the law should be applied in a certain way. Certainly that 
position was not accepted by the Supreme Court, but the purpose 
of the article was to present those arguments as we presented 
them--
    Senator Schumer. Okay. But was your personal opinion about 
the case what you wrote at the time you wrote it?
    Mr. Tymkovich. My personal opinion was that we thought we 
had a strong argument on the Equal Protection Clause which, 
Senator, was not accepted by the Supreme Court.
    Senator Schumer. As you probably know, because I am sure 
you have been briefed about this, my basic view here is that we 
ought to know the basic judicial philosophy of the people who 
are before us. And there has been too much of a--this is what 
the whole argument with Mr. Estrada is that my good friend Jeff 
Sessions brought up, that he sort of refused to say how he 
felt, and he hadn't written any articles or whatever else. And 
I think that is--you know, I truly believe it is your 
obligation to tell us your general views, not about a specific 
case that might be decided in the future, and it is our 
responsibility as part of the advise and consent process that 
the Founding Fathers so wisely wrote into the Constitution to 
get some of those views.
    And so, you know, there is nothing wrong with your writing 
and thinking, and there is nothing wrong, in fact, everything 
right with your telling us what you think. And I do think that 
at least some of us on this Committee think there is an effort 
now that nominees shouldn't tell us what they think. And my 
guess is they are asked about what they think by a lot of other 
people as they move up the process, and somehow when it comes 
to this committee, you are not supposed to say anything.
    So let me just ask you once again. You wrote--I don't have 
the context here. I don't know if we have the article. But as I 
am told, you didn't say this is what other people say, this is 
what--you said this is--you were arguing your own point of view 
about this case after it had been completed. And it is a pretty 
strong view to say that the Supreme Court exhibited ``another 
example of ad hoc activist jurisprudence without constitutional 
mooring.''
    Just, you know, tell us candidly: Is that what you think? I 
am not saying you won't follow the law if you get to be a 
member of this very important Court of Appeals. But that is 
what I would like to know.
    Mr. Tymkovich. I think I answered the question, and I do 
believe that the statement in context applied to a range of 
critics of the decision. But certainly I think the article 
speaks for itself that I was critical of the decisionmaking 
process of the Supreme Court. As the Senator knows, it is one 
case under the Equal Protection Clause which generally applies 
a fairly deferential standard to State legislative 
pronouncements. So in that respect, Senator, that's the basis 
of the criticism that I made of that case.
    But as I've testified--
    Senator Schumer. Okay. I appreciate your candor.
    Mr. Tymkovich. --I accept it as precedent and it's binding 
not only on the Tenth Circuit, but--
    Senator Schumer. I appreciate your candor, and I think that 
helps in terms of, I think, not only me but some of my 
colleagues here. Let me go on. Do I have a little time? Can I--
    Senator Sessions. Your time is out, but if--
    Senator Schumer. I won't go to a second round.
    Senator Sessions. Senator Chambliss has been here so 
faithfully.
    Senator Schumer. Okay.
    Senator Sessions. But if--
    Senator Chambliss. How much longer do you want to go, 
Chuck?
    Senator Schumer. Well, I have a few more questions.
    Senator Sessions. Whatever you two agree would be all right 
with me. If he says okay, if you don't go too long--if you are 
going to go a while, I think you ought to let him. But if you 
have got a few more, just finish up.
    Senator Schumer. Go ahead.
    Senator Chambliss. I am not going to be very long.
    Senator Schumer. Go ahead, Saxby.
    Senator Chambliss. Mr. Tymkovich, just continuing along 
that line, having practiced law for 26 years myself and tried 
hundreds of cases, some of which I, like you, lost, it ain't 
much fun to lose. And I have found that practicing law is a lot 
like athletics. If your heart is in it, you want to win. You 
emotionally get involved in your cases. You believe your 
argument is right. You craft an argument irrespective of which 
side of the case you are on. And you make that argument 
forcefully, as you obviously did in this case. And I assume 
that you believed that your argument was a correct argument and 
should prevail. Otherwise, you wouldn't have been doing your 
client justice, and I think it is only appropriate that you 
were able to express yourself not just as an advocate for your 
client but criticizing the decision. There is nothing wrong 
with that. And my reading of what happened following this 
case--and I want to ask you this. Is it a safe statement to say 
that the legal reasoning that took place in the Romer case was 
very much criticized by both liberals and conservatives? Is 
that correct?
    Mr. Tymkovich. Senator, that is correct. There's been, I 
think, a range of academic assessment of that particular 
decision, that particular ruling. And you also make a good 
point. Certainly in private practice you have more luxury in 
picking the cases that you might represent as a plaintiff or a 
prosecutor as a defender. In State government, we don't get to 
pick and choose our cases. We represent them all whether we 
have a personal agreement or disagreement with them. It's our 
solemn duty to really play that role in our State structure, 
and just like the U.S. Attorney's Office represents acts of 
Congress, that's our role as government lawyers at the State 
level.
    Senator Chambliss. You have already been asked this once, 
but I just want to let you reiterate the point. This case has 
been decided. You were not successful in the case. Precedent 
has been set by the Supreme Court. As a Circuit Court judge, if 
this issue comes before you under whatever circumstance, are 
you prepared to follow the mandate that was handed down by the 
Supreme Court?
    Mr. Tymkovich. I don't have any reservations at all, 
Senator. Thank you.
    Senator Chambliss. Okay. The one thing, I guess, that 
bothered me from time to time--and I ask this question of all 
of our Circuit Court nominees--is that sometimes we see judges 
who tend to legislate from the bench as opposed to interpret 
the Constitution. As a member of the Circuit Court, will you 
make a commitment to interpret the Constitution as you see the 
Constitution and based upon the precedents set by the Supreme 
Court versus legislating your opinions into decisions that you 
render?
    Mr. Tymkovich. Senator, I'll be sworn to follow the United 
States Supreme Court as interpreted by the Supreme Court. 
That's my solemn duty as a Circuit Court judge if I am 
fortunate enough to be confirmed and have no reservations 
whatsoever in applying--in playing that role within our 
constitutional structure.
    Senator Chambliss. I think that was all, Mr. Chairman. Let 
me make one...yes, I think that is it, Mr. Chairman. Thank you.
    Senator Sessions. Thank you, Senator.
    Senator Chambliss. Thanks, Chuck.
    Senator Sessions. Thank you for being with us.
    Senator Schumer?
    Senator Schumer. Yes, thank you, and I appreciate your 
courtesy, as you always are, Mr. Chairman.
    Senator Sessions. As you were when the shoe was on the 
other foot.
    Senator Schumer. Yes, indeed.
    Senator Chambliss. Mr. Chairman, I was on a TV show with 
him last night, and I thought I had him convinced to switch 
parties. But obviously I didn't.
    [Laughter.]
    Senator Schumer. That is a long, hard road, Senator 
Chambliss. Actually, we were on--what show? Chris Matthews, 
whatever it is called. ``Crossfire''? No.
    Senator Chambliss. ``Hardball.''
    Senator Schumer. ``Hardball.'' And we were working on 
something we agree with, which is to try and develop some 
system so if, God forbid, a terrorist uses one of these hand-
held stinger missiles that our commercial airlines have a way 
of avoiding that, the way our military planes do. It is really 
important. Thanks, Saxby. Good to see you.
    Okay. Let me ask you, Mr. Tymkovich--and I have asked this 
question of all nominees, and all but one have basically given 
me answers one way or another. Again, I don't expect us to 
agree on most of them. But given that you were pretty strong in 
your criticism of Romer, records show that it was decided 6-3 
with Justices Scalia, Rehnquist, and Thomas dissenting; 
Kennedy, O'Connor, and the other--in other words, the moderates 
on the Court tended to vote--voted for the decision, the three 
conservatives against, the four generally regarded as a little 
more liberal for it.
    Anyway, so your criticism, which you should do--I think it 
is good that you wrote these articles and push your point of 
view even though I disagree with them. But you were pretty free 
with the criticism of Romer. So could you please identify and 
discuss three Supreme Court decisions that you are critical of 
or disagree with? And I would like to hear about cases that 
have not been reversed by the Supreme Court and on which you 
haven't yet taken a public position.
    Mr. Tymkovich. Senator, thank you for the question. It 
raises sort of--
    Senator Schumer. I am sure it comes as no surprise to you 
that I was going to ask that one.
    Mr. Tymkovich. No, but it does raise a difficult 
circumstance for a nominee in my position that may have the 
opportunity to apply or have cases based on these types of 
precedent before it as a judge on the Tenth Circuit, if 
confirmed. So I'm a little reluctant to opine on recent case 
law that may develop in my circuit or be an issue before me.
    Having said that, I think, you know, it would be fair for 
me to say that when I was State Solicitor General, we had the 
opportunity to follow cases around the country closely that 
might affect the State of Colorado. I can remember one in 
particular where the State filed an amicus brief in support of 
a hate crimes law in Minnesota, the case called RAV v. St. 
Paul, and we urged the Supreme Court in that case to uphold the 
constitutionality of a State provision in that regard. And part 
of the reason we did that was because about at the same time we 
were defending in Colorado an ethnic intimidation law--
    Senator Schumer. And you personally agreed with that?
    Mr. Tymkovich. And I believe that the arguments that we 
presented to the Supreme Court through the amicus were, you 
know, the better arguments and were reflective of the interests 
of our State.
    You know, having said that, I certainly don't believe that 
it's my role to insert my personal views as a judge in this 
process. I need to set aside the advocacy that we've taken in 
cases both in the private practice and as government lawyers, 
and I'm firmly convinced that I can set aside my personal 
advocacy in cases and be a fair, impartial, and open-minded 
judge, if confirmed.
    Senator Schumer. Right. But I would like still to repeat my 
question here. You have answered one. You have named one. Name 
two other--and I will say that you agree or disagree with. This 
does not violate the canons in any way. These are already 
decided cases. Law professors who are on the Supreme Court, 
prior Justices who have had their records, everyone talks about 
these. And until the last few weeks, so have just about all 
nominees that we have asked. I ask this of judges I interview, 
you know, when we are making decisions in terms of the judges 
in New York. Just last week, I asked a nominee by the President 
for some cases that she agreed with and disagreed with. She 
gave good answers. I am not sure I agreed with her answers, but 
they helped me understand the way she thinks, and that was very 
positive.
    So why don't you try to think of a couple of others that--
this has nothing to do with deciding future cases. This has to 
do with your thoughts on jurisprudence, and as you know, 
nominees of Democratic Presidents on the courts vote somewhat 
differently than nominees of Republican Presidents--not all the 
time. So it is not simply that we have a machine, a legal 
machine that applies the precedents in the same way. We know 
that. Everyone knows that. Otherwise, we wouldn't even need a 
Supreme Court or appellate courts or whatever. We could just 
feed this into some kind of computer.
    So I just want to repeat my question of you. Can you name 
two other cases or two cases you agree with or disagree with, 
cases that have already been decided.
    Mr. Tymkovich. Well, Senator, I think I've--
    Senator Schumer. Have you ever discussed cases with other 
people now that you are in private practice? Have you ever?
    Mr. Tymkovich. Certainly I have, and in answering your 
question, I think I've mentioned, you know, two cases that I've 
been familiar with: the equal protection case that we discussed 
earlier, the Romer case, and the hate crimes case. And, again, 
from a practitioner's standpoint, I advocate positions on 
behalf of clients. I did have the opportunity in the last 
couple of years to try to apply a case called Buckhannon v. 
West Virginia that has to do with a prevailing party attorney's 
fees claims in a 1983 context and had the opportunity on behalf 
of a client to present arguments somewhat different from the 
U.S. Supreme Court on that as a part of our--as part of our 
presentation of that case.
    Senator Schumer. Right. What do you think of the Buckley v. 
Valeo decision? Do you think that one was correctly decided?
    Mr. Tymkovich. Buckley v. Valeo is certainly binding 
precedent.
    Senator Schumer. I understand. I am assuming that you will 
follow precedent on the Tenth Circuit. You don't have to add 
that. What do you think of it? I personally think it is a 
rotten decision.
    [Laughter.]
    Mr. Tymkovich. Senator, it was certainly recently--
    Senator Schumer. I am not trying to lead the witness, Mr. 
Chairman. I am just showing him that we all have opinions on 
these things, and he is too smart to be led, anyway.
    Mr. Tymkovich. And, Senator, you know, certainly that was 
reaffirmed last year in the Nixon v Shrink PAC.
    Senator Schumer. I know you will follow it if you become a 
judge. What do you think of it?
    Mr. Tymkovich. Well, I had the opportunity as a 
practitioner to try to apply it in an actual case in the 
Colorado Federal courts and District Court and found it very 
difficult and challenging to apply as a practitioner. It's, I 
think, the longest decision in the annals of the United States 
Reports. So it's certainly a challenge for a practitioner, and 
maybe an admonition for all of us to keep opinions to a 
readable and understandable length. But--
    Senator Schumer. Do you believe that the First Amendment 
protects someone's right, you know, a multi-millionaire's right 
to say put a commercial on the air 417 times, as opposed to 
just getting out their view? Because that was the basic--as you 
know, that was the basic premise of Buckley, that the First 
Amendment said that you could--if you had a whole lot of money, 
no limits were permissible, that, A, the First Amendment 
protected that right, and, B, it prevailed over the 
countervailing right--the countervailing notion--it is not a 
right--of trying to see that money didn't sort of dominate our 
political system. That is why I disagreed with it. I think 
there is a protection by the First Amendment, but no Amendment 
is absolute. We all agree that you can't falsely scream 
``Fire'' in a crowded theater. I think that was Justice Holmes 
who said that. And that is a limitation on your--no? Well, one 
of our--it is precedent.
    Senator Sessions. I thought so.
    Senator Schumer. You think it is Holmes? Well, Jeff and I 
agree. See that? Let the recorder underline that, please, that 
Jeff and I agree.
    [Laughter.]
    Senator Sessions. I will have to resign here.
    Senator Schumer. But, in any case, it is not an absolute 
right, and that is why I thought the Court wrongly decided. 
Just give me some thoughts on it, aside from the length of the 
opinion.
    Mr. Tymkovich. Well, Senator, I think I was trying to do 
so. Certainly that case involved some very thorny issues of 
public policy and the application of the United States 
Constitution to those issues and has been binding precedent for 
some time.
    As a practitioner and trying to apply that precedent, you 
know, one thing I found is that the circumstances that underlie 
a case are critical. And having briefed and presented trial 
evidence under the Buckley case, I can appreciate as a trial 
lawyer at that level trying to marshall facts and law to 
present the best case to the--
    Senator Schumer. You have some skepticism about it.
    Mr. Tymkovich. --trial court. And certainly I understand 
the difficulty in doing so, and I think the lesson I take from 
that as a nominee to an appellate bench is that you really have 
to get into the record, look at the briefs and arguments that 
will be presented by the advocates in a case, and really 
approach an issue like that with an open mind and a fair mind, 
realizing, of course, that it's our job to apply faithfully the 
precedent of the United States Supreme Court in those 
circumstances.
    Senator Schumer. But would it be unfair to say you show 
some skepticism towards that decision? Admittedly, you will 
follow it to the letter of the law and the best of your ability 
once you are a judge, but personally you are a little bit 
skeptical.
    Mr. Tymkovich. I don't think my personal views come into 
play because I have to tell you--
    Senator Schumer. That is where we disagree.
    Mr. Tymkovich. --that as a practitioner I've had the 
opportunity to apply precedent in that area and others. And 
sometimes it's easier said than done, Senator, as you know as a 
lawyer yourself.
    Senator Schumer. Let me ask you about another case since--
do you have any others that you want to offer that you would 
agree with or disagree with? We have talked about now three. 
You named St. Paul.
    Mr. Tymkovich. Nothing additional, Senator.
    Senator Schumer. Okay. Let me ask you then about Morrison, 
a case you are familiar with, I presume, Morrison v. United 
States, the VAWA case.
    Mr. Tymkovich. Yes.
    Senator Schumer. Okay. In Morrison v. United States, a 5-4 
Supreme Court held that, despite years' worth of hearings and 
well-substantiated findings proving that violent crime against 
women costs the country between $5 and $10 billion each year in 
health care, criminal justice, and other social costs, Congress 
didn't adequately establish the effect of violence against 
women on interstate commerce to justify the use of the Commerce 
Clause. The four Justices in the minority disagreed, arguing 
the Court should show deference to Congress' ample findings and 
uphold the Violent Against Women Act as a rational response to 
the national threat posed by gender-motivated violence.
    The majority's decision was criticized by many as a real 
overstepping, judicial activism, something you criticized Romer 
for. And Justice Breyer, who was one of the four Justices who 
dissented, he wrote that, ``Since judges cannot change the 
world, it means that within the bounds of the rational, 
Congress, not the courts, must remain primarily responsible for 
striking the appropriate State-Federal balance.''
    Do you see Morrison as an incident of judicial activism? 
Again, I know you will follow it.
    Mr. Tymkovich. And, Senator, I will follow that and the 
other binding precedent of the United States Supreme Court in 
this area. Certainly the Court has applied the doctrine of 
federalism, which has to do with the respective powers between 
the State and Federal Government. In recent years, through its 
case law--Mr. Chairman had mentioned the separation of powers 
doctrine as an adjunct to that.
    As an attorney representing a legislative body, I certainly 
understand some of the difficulties in the legislative process 
and certainly, while I haven't worked for the Congress of the 
United States, I understand the important fact-finding role of 
this body in providing a basis and support for legislation.
    Senator I think that it goes without saying from my 
experience in the State of Colorado that a legislative 
pronouncement such as VAWA has a presumption of 
constitutionality and is entitled to great deference from the 
judicial branches in its applying of the law to that--
    Senator Schumer. Do you think the majority showed great 
deference to the Congress' finding in that case?
    Mr. Tymkovich. I have not read that decision recently, 
Senator, so I don't have a good feel for exactly what arguments 
were made.
    Senator Schumer. I will ask--
    Mr. Tymkovich. So I can't comment on that.
    Senator Schumer. I would ask you to read it, and I will ask 
a question in writing, just that specific question, if you 
don't mind.
    Mr. Tymkovich. Thank you.
    Senator Schumer. Okay. I have one more, Mr. Chairman.
    You know, one other thing which is sort of interesting, 
obviously--
    Senator Sessions. I am enjoying this. It is a good exchange 
between two good lawyers, and I am glad you are having--I would 
like for you to have full time to ask your questions.
    Senator Schumer. Thank you. I appreciate it.
    Senator Sessions. Very interesting discussion.
    Senator Schumer. Thank you, Mr. Chairman.
    Just tell me a little--and I realize there are different 
constitutional bases here. But the Romer case, basically the 
question was: Should the State be allowed to overrule local 
law? It was a State referendum that did so. So you are dealing 
with States to localities, and I am not familiar with Colorado 
law. In New York, the localities are creations of the State, 
and the State does have a lot of benefit of the doubt against 
the localities.
    Of course, Morrison was a case--or the whole federalism 
issue is: What can the Federal Government do in terms of State 
law?
    Do you think there are some differences between those two? 
The analogy, you know, if we were doing an analogy in one of 
these tests, they would say Federal is to State law as State is 
to local law in terms of how much deference should be shown. 
Just give me some thoughts on that. This is not a case, just an 
interesting question.
    Mr. Tymkovich. It sounds like an SAT question, Senator 
Schumer.
    Senator Schumer. Yes, it does. My first job was working for 
a--I went to Madison High School in Brooklyn, New York, and I 
had to get a job when I was 14. That is when you could get 
working papers. And I knocked on the door of a little office, 
and it was a Madison High School teacher who was starting a new 
business. And the business was training students to take the 
SATs. So for 3 years I ran the mimeo machine that laid out the 
preparatory materials, and I got very good at them. Actually, 
his name--I think you probably even heard about him in 
Colorado. His name was Stanley Kaplan.
    [Laughter.]
    Mr. Tymkovich. Sure, absolutely.
    Senator Schumer. This was a little business with five 
people, and I was sort of the go-fer. And he sold it to the 
Washington Post for $50 million 20 years later. God bless 
America.
    [Laughter.]
    Senator Schumer. In any case--it is. I was thinking of the 
SATs. But just give me your thoughts on that.
    Mr. Tymkovich. Senator, it is an important question because 
it has to do with sort of the relative sphere of 
decisionmaking, and I think each State has a really different 
take on that so it is tough to come up with a perfect analogy. 
Certainly in the State of Colorado, we have a structure where 
the State Constitution, like the Federal Constitution, is 
supreme, although we have a lot more interaction between the 
local and State governments than you would find a perfect 
analogy on the Federal model. And so we don't have the same 
type of federalism structure in our State Constitution that you 
see in the Federal one, but I think having said that, there are 
some common themes, including the supremacy of statewide law to 
a local government, just like the supremacy of the 
Constitution, both the Congress and the States as well as the 
supremacy of Congressional laws on State government.
    I think that is an important part of the dialogue between 
State and the national legislature on the types of laws to pass 
and how to accommodate local concerns. And I think that 
certainly my experience in State government is it's important 
for this body to reach out to the State governments to 
understand the effect of legislative pronouncements on State 
and local governments and be sensitive to that testimony as a 
part of their fact-finding basis.
    Senator Schumer. And, again, because the Romer case was so 
different because it was, as you say, a statewide referendum, 
but would you say the same thing ought to apply with the States 
and the localities, before a State does something they ought to 
go reach--
    Mr. Tymkovich. Without question.
    Senator Schumer. Okay. One final question, Mr. Chairman. I 
thank you. It is related. It is the same stream of thought 
here.
    A few years back, you testified in support of the Tenth 
Amendment Enforcement Act of 1996, which would have instructed 
the courts to presume that all Federal laws were 
unconstitutional when they allegedly infringed on States' 
rights. You endorsed reversing the normal rule that the Supreme 
Court presumes Federal laws are valid under the Constitution 
and required Federal agencies to severely limit their 
regulations when they pre-empted State law.
    In your testimony in support of this bill, you objected to 
Federal environmental regulations, Medicaid requirements, and 
the motor voter law as too burdensome on the States. You also 
argued that the bill should go further--this bill would be 
regarded by many as pretty extreme, but you argued that the 
bill should go further and require that all existing Federal 
regulations be terminated if they did not comport with States' 
rights principles.
    Your testimony suggests to me, your testimony back then, 
that you have a rather constricted view--``rather'' would be 
understating it, at least from what I have stated here--of the 
Commerce Clause, of the Spending Clause, and of the 14th 
Amendment.
    Can you tell us about that testimony? And what can you tell 
us to allay our concerns that your personal views in terms of 
this federalism issue, which is a very important issue, are 
not--I am not saying right or wrong, but if you had to line 
people up on this issue, you would be sort of way over there on 
the State--at the far end of the State side.
    Mr. Tymkovich. Senator, thank you for the question 
regarding the testimony. First, I might add that I was 
presenting the testimony of the Office of the Attorney General, 
and the Attorney General was unable to testify personally on 
behalf of the--
    Senator Schumer. Did you help write it? Did you help 
prepare it? Or did you just read it because--
    Mr. Tymkovich. Senator, I did not help prepare that 
testimony. It was prepared by other staff within the Office of 
the Attorney General, and I was presenting it on her behalf to 
this body.
    I might add that I followed Senator Bob Dole, who was the 
primary sponsor of the bill at the time, and I want to add a 
few things about it.
    First of all, I think I respectfully disagree with some of 
the application of the statute. As I understand it, it's quite 
similar to President Clinton's federalism order that he issued 
while he was in office, which asked Congress and the Federal 
agencies to look, listen, and be sensitive about funding issues 
that would affect State and local governments.
    Senator Schumer. That is different than a presumption that 
a law ought to be scrapped.
    Mr. Tymkovich. Well, it certainly as applied would have a 
similar effect, and I think the historical context at the time, 
I think the Senator probably appreciates that there were many 
concerns about whether Federal mandates would be funded on 
State government at the time, and I think that the testimony 
reflects some frustration that some of the States had, and the 
Attorneys General that appeared on the panel with me had 
similar examples from their State.
    I might add that one of the experiences that the commentary 
provided was, you know, this notion that States can be very 
innovative in certain areas, including the environment 
regulation. And in Colorado at the time, for example, we had 
two, what I think are very innovative environmental policies, 
and we were having trouble with the Environmental Protection 
Agency from accepting those as sort of alternative forms of 
regulation.
    So one of the points that we wanted to make in the 
testimony was that you ought not to stifle appropriate 
innovation below as a part of the process.
    Senator Schumer. Did you basically agree with the testimony 
you gave? You seem to from your comments here.
    Mr. Tymkovich. Senator, I was presenting the testimony of 
the office.
    Senator Schumer. I understand, but I am asking you 
personally. Did you at the time personally agree?
    Mr. Tymkovich. I think there were parts of that I did and 
parts of it that I did not endorse. But I was the presenter for 
the Office of the Attorney General. It was my job to present 
the testimony to this body.
    Senator Schumer. Okay. Thank you, Mr. Chairman. I 
appreciate your giving me the extra time, and I want to thank 
you, Mr. Tymkovich, for your answers and for your being here.
    Mr. Tymkovich. Thank you.
    Senator Sessions. Thank you, Senator Schumer.
    Mr. Tymkovich, the Law Review article on the Romer case you 
were asked about, let me ask you a few additional questions. It 
was co-authored by you and two other people from the Attorney 
General's office. Is that correct?
    Mr. Tymkovich. Yes, sir.
    Senator Sessions. And were there other attorneys involved 
in the litigation of the case also?
    Mr. Tymkovich. They were involved in the litigation of the 
appellate proceedings before the Colorado Supreme Court and the 
United States Supreme Court, yes.
    Senator Sessions. And so you were explaining the position 
of the State of Colorado?
    Mr. Tymkovich. That's correct.
    Senator Sessions. And other States that joined in that 
brief.
    Mr. Tymkovich. That's correct.
    Senator Sessions. You know, I was an Attorney General also, 
and I just have to say with absolute clarity that an Attorney 
General has an absolute duty to defend the laws of the State 
which he works for. There is no one else that can defend the 
State. There was a referendum process established in Colorado, 
and Colorado people voted in this matter, and you have an 
absolute duty to defend that. And, frankly, I joined in one 
brief. There were seven other States. I know California and 
Virginia joined in on that brief. There was another brief in 
support of your position that had about ten States joining it. 
So that was not an extreme position, in my view.
    With regard to the power of the State over the cities, as 
Senator Schumer says, I assume it is true in Colorado that 
cities are creatures of the State. Is that right?
    Mr. Tymkovich. That's correct.
    Senator Sessions. So it always struck me, when I heard 
about the case, that the State of Colorado has the legal 
authority to state a State law that would pre-empt local 
municipal laws and ordinances. Is that a factor in this case?
    Mr. Tymkovich. That's correct. If there is an issue of 
statewide concern, it would pre-empt local provisions that 
would be contrary to it.
    Senator Sessions. And in one sense--I know there are a lot 
of implications of the act, but in one significant sense, it 
seemed to me, and I am sure to the other States who joined with 
you, that this diminished State power vis-a-vis the cities, 
which they create, is that a fair statement?
    Mr. Tymkovich. I think that is. I think that's very 
accurate, Mr. Chairman.
    Senator Sessions. So, you know, the Supreme Court ruling, 
in fact, diminished the authority a State has over its 
creatures, the cities. It was a tough case, and there has been 
a lot of criticism of it.
    You and your colleagues did not just volunteer to write 
this article. You were asked to delivery a paper on the State's 
arguments and the Court's decision at the Byron White 
Conference on American Constitutional Study. Is that correct?
    Mr. Tymkovich. Yes, Mr. Chairman.
    Senator Sessions. And there were a number of other speakers 
and presenters at that conference?
    Mr. Tymkovich. That's correct.
    Senator Sessions. So you didn't just go out and call a 
press conference to complain. You were asked to make a 
presentation in a prestigious forum on this subject.
    Mr. Tymkovich. That's correct, Senator. We joined scholars 
from around the country, as I said, also joined by the opposing 
counsel in Colorado that handled the other side of that case.
    Senator Sessions. But even in that article where you made 
some criticism of Romer, you noted this, for those who are 
concerned about the results of it. A lot of people wanted a 
different result, but I think you were justified in defending 
the result that the people of Colorado voted by referendum. 
But, at any rate, you said in the article, did you not, ``The 
Amendment 2 litigation is remarkable not for its results but 
for the tangled jurisprudence''? Does that indicate that you 
were more concerned about the complexity of the Court rulings 
than you were of the outcome of the case?
    Mr. Tymkovich. It certainly was, Senator. We tried to 
present the best arguments to support the amendment as 
representatives of the State, and certainly I think the quote 
there reflects some of my legal experiences as a part of that 
case.
    Senator Sessions. And others at the symposium supported the 
result of the Court's opinion, but also, those who supported 
the result, some of them questioned the legal reasoning of that 
opinion, did they not?
    Mr. Tymkovich. Yes, they did, in no uncertain terms, 
Senator.
    Senator Sessions. I have one example here. Professor Larry 
Alexander notes that at two important junctures in the 
majority's reasoning ``the dog did not bark.'' That is, 
important steps ``in the ordinary equal protection analysis 
were omitted.''
    Professor Lynn Baker writes that, ``The majority reached 
the right results, but for the reasons that it articulated only 
partially or not at all.''
    Akhil Amar, a respected liberal law professor at Yale, 
wrote the following in a Law Review article supporting the 
Romer decision. He said this--he supported the result. ``Since 
Romer came down, I have had many conversations about it with 
law professors and students across the country. The initial 
consensus seems to be that while Justice Kennedy's language 
soared, Justice Scalia's logic held. Justice Kennedy won their 
hearts, Justice Scalia their heads.''
    The New Jersey Law Journal editorialized, ``We applaud the 
result in Romer. We regret the manner in which it was reached. 
The dissent's philosophy is clear, though wrong. The majority 
opinion would have been far stronger and more convincing if it 
had been forthright in explaining why Amendment 2 lacked a 
rational basis.''
    Stewart Taylor, writing in the ``Texas Lawyer,'' found the 
decision ``immensely inspiring and intensely troubling.'' On 
the one hand, he praised the result in the case, liked the 
result. On the other hand, he faulted Justice Kennedy's 
majority opinion for its ``crude, superficial, and evasive'' 
reasoning. He went even further in characterizing Justice 
Scalia's dissent as ``elegantly vitriolic''--that is nice 
language. I am sure Justice Scalia was proud of that comment--
``pervasive with distortions''--but not that part--``and a 
resort to bumper sticker jurisprudence.'' He expressed concern 
that the decision could ``damage the Court's moral authority 
and even in the long run set back the cause of gay rights.'' 
And he pleaded with the Court to ``try harder to ground its 
rulings in constitutional language, theory, and precedent.'' 
And was not that exactly what you criticized the Court for, not 
grounding the opinion in the Constitution?
    Mr. Tymkovich. Yes, Senator, I think those excerpts reflect 
the range of commentary on the result and the reasoning there, 
and certainly our presentation was certainly in line with a lot 
of the analysis of the case.
    Senator Sessions. Well, it was a very, very interesting 
case and had a lot of ramifications, and there has been a lot 
of criticism of it. I don't think you should be held up because 
of that.
    I would mention this also. Even those who disagreed with 
Amendment 2 understood the role of the State Attorney General 
in defending the measure. The editorial page of the Denver 
Post, which has been extremely critical of the amendment from 
the beginning--in other words, they editorialized against its 
passage. Is that correct?
    Mr. Tymkovich. That's correct, Senator.
    Senator Sessions. Recognized that the State was required to 
defend the measure. The Post also singled out you in praising 
the State's handling of the case. They said, ``The Post was 
consistently critical of Amendment 2, but we don't fault 
Attorney General Norton''--now Secretary of Interior Norton, 
who was your Attorney General at that time. Is that correct?
    Mr. Tymkovich. Yes, sir.
    Senator Sessions. ``...for defending it vigorously. Once it 
became part of the State Constitution, it was her sworn duty to 
defend it.'' And I agree with that.
    ``For his part, Tymkovich fought doggedly and skillfully, 
losing simply because no amount of advocacy could offset the 
legal weaknesses of the sloppily drafted and, at times, 
virtually inchoate initiative itself.''
    Now, let me ask you: Did you write the initiative or have 
anything to do with writing it?
    Mr. Tymkovich. No, Senator. Nothing whatsoever.
    Senator Sessions. And your office didn't have anything to 
do with it?
    Mr. Tymkovich. None.
    Senator Sessions. This was a group of people in Colorado 
that put it together and got it out on the ballot for a vote.
    Mr. Tymkovich. It's part of our process of direct 
democracy, and it can be very difficult to apply sometimes, as 
those comments reflect.
    Senator Sessions. The Denver Post goes on to say, ``In law, 
as in poker, you have to play the cards you're dealt. We'd say 
Norton and Tymkovich played out their hands pretty well, 
considering they held a pair of deuces.''
    Well, that is what you have to do at times to defend the 
case, but I thought it was a little better case than that, 
frankly. And so did about 20 other States who supported 
Colorado in it. And I'm not real--I think one reason the 
Court's reasoning has been criticized is if it were real easy 
to strike down that legally passed act by the people of 
Colorado, maybe it would have been clearer. I think it was a 
little bit difficult for them to justify their position, and 
that is why their logic is not very clear.
    Well, you know, I think Senator Chambliss was exactly 
correct. You know, when you pour your heart in the case and you 
advocate it and you believe in the State, later when you are in 
private practice and making a comment on it, if you have got a 
little enthusiasm there for your case, there is nothing wrong 
with expressing it.
    Now, Mr. Tymkovich, the attorney on the winning side of the 
Romer case was Jean Dubofsky. Is that correct?
    Mr. Tymkovich. Yes, Senator.
    Senator Sessions. And she supports your nomination for the 
tenth Circuit. Is that correct?
    Mr. Tymkovich. That's correct, Mr. Chairman. She submitted 
a letter, along with several other former Colorado Supreme 
Court Justices, including the author of the majority opinion at 
the State Supreme Court level, Chief Justice Rovera, and--
    Senator Sessions. Now, did the Supreme Court rule for or 
against the referendum?
    Mr. Tymkovich. The Colorado Supreme Court ruled against the 
measure.
    Senator Sessions. But even that Justice who wrote the 
opinion against your view supports you. Is that correct?
    Mr. Tymkovich. That's correct, along with a number of other 
Justices that were on the court at the time.
    Senator Sessions. Now, Dubofsky was a former Colorado 
Supreme Court Justice, and certainly no right-winger. The 
Denver Post described her as one of ``a dwindling breed of 
unabashed liberals.'' There are few left. Some of them on my 
left right now.
    [Laughter.]
    Senator Sessions. I don't know how dwindling they are, but 
they--
    [Laughter.]
    Senator Sessions. They are unabashed, I will tell you that, 
and believe in and fight for what they care about daily.
    Justice Dubofsky, along with a number of other former 
Colorado Supreme Court Justices, has written a letter in 
support of your nomination: ``Based on our professional 
experience, we are of the unanimous judgment that he is well 
qualified and most able to serve as an appellate judge of the 
United States Court of Appeals.'' So we will put that letter in 
the record.
    Justice Dubofsky also recognized--well, I will just finish. 
My time is up. She has recognized that you were simply doing 
your job as Solicitor general. She commended your performance. 
She says the Colorado Attorney General's Office ``dealt with 
the case as well as it could have.'' She goes on: ``In fact, 
Justice Scalia got upset with him in oral argument because 
Tymkovich would not answer the way he wanted you to answer the 
case.''
    Well, those things happen in court, and that is what 
litigation is all about.
    Senator Feingold, I would recognize you.
    Senator Feingold. Thank you, Mr. Chairman, and especially 
thanks to Senator Kennedy. I have almost 10 years' seniority on 
this committee, but I think he has got 4 times more than that. 
So the fact that I get to go before him is greatly courteous of 
you, Senator Kennedy.
    I would like to return to the same subject. First, 
congratulations on your nomination.
    Mr. Tymkovich. Thank you, Senator.
    Senator Feingold. I will go back to the issue of gay rights 
and your involvement as Solicitor General of Colorado in the 
case that led to the U.S. Supreme Court's Romer v. Evans 
decision. As has been discussed by Senator Schumer and Senator 
Sessions, you defended the ballot initiative on behalf of the 
State of Colorado. It was, I agree, your job to do that and I 
accept that. But I do want to ask you a bit about what perhaps 
goes beyond the zealous advocacy for your client, and this is 
the article that we are discussing, the 1997 University of 
Colorado Law Review, that forcefully presents your view that 
laws against discrimination based on sexual orientation in 
activities like employment, housing, and education in places 
like Denver, Aspen, and Boulder somehow conferred special 
rights or protections on gays and lesbians.
    Let me ask you this: Do you believe that Title VII of the 
Civil Rights Act of 1964, the landmark legislation prohibiting 
employment discrimination based on race, confers special rights 
on African Americans?
    Mr. Tymkovich. Senator, the anti-discrimination laws in 
Colorado and at the Federal level are important protections to 
minorities and others that have faced discrimination. So to the 
extent that the baseline was no, you know, Federal or State 
protections based on ethnicity or race, the addition of those 
laws to the legislative pronouncement provides a protection, an 
additional protection that would not be available under the 
common law. So in that sense, certainly under Colorado law, 
additional protections are provided through the discrimination 
laws, and I might add that's an important part of the 
legislative process to identify and protect injustices out 
there.
    Senator Feingold. But what about my question? Does Title 
VII of the Civil Rights Act of 1964 confer special rights on 
African Americans?
    Mr. Tymkovich. I'm not sure exactly what you mean by 
``special rights,'' Senator, but I would say--
    Senator Feingold. Well, I am referring to the fact that 
your article seemed to say that the Colorado law conferred 
special rights or protections on gays and lesbians. I am asking 
you whether or not Title VII of the Civil Rights Act of 1964 in 
that same spirit in your view confers special rights on African 
Americans?
    Mr. Tymkovich. No, Senator. I think it provides a civil 
remedy, some laws provide a criminal remedy, on behalf of 
discrimination, and certainly that's the intent and purpose of 
those laws.
    Senator Feingold. In that same spirit, do you think that 
Title VII wrongly protects Americans from employment 
discrimination based on race, ethnicity, national origin, 
religion, age, disability, or gender? Do you believe that an 
American who brings a claim of job discrimination based on any 
one or more of these categories is somehow enjoying special 
rights or protections?
    Mr. Tymkovich. No, Senator. They're simply enjoying the 
protections that this body has provided to those particular 
groups.
    Senator Feingold. As you discussed in your article, you 
believe that the Supreme Court was wrong to be hostile to the 
political decision of a majority of Colorado voters who 
supported adoption of the Colorado amendment. You state that 
Colorado voters made ``a seemingly good-faith policy choice.''
    If I understand you correctly, you agree with Justice 
Scalia's dissent in Romer and believe that the Court improperly 
injected itself into a political debate. Is that your view?
    Mr. Tymkovich. Senator, that's an excellent question, and I 
appreciate the opportunity to clarify and reflect on the issue 
below.
    As you know from your participation in this body, there are 
important issues of public policy debate that cross party lines 
or are bipartisan and very difficult issues. In Colorado, the 
question of whether or not to add sexual orientation to State 
and local anti-discrimination laws has been a very important 
and ongoing political debate in our State. And certainly 
Amendment 2 was in part within that context and dialogue. And 
certainly many people respectfully disagreed with the 
legislative pronouncement there, and I think the point I was 
trying to make in those remarks and certainly in the case is 
that the courts were not a good forum for airing sort of 
political or legislative policy-type arguments, and that the 
courts are best able to address a constitutional principle when 
they have the concrete facts and law before them and not sort 
of rhetorical or legislative-type pronouncements.
    The Amendment 2 case had a strong mix of sort of a policy 
debate in that sense, and I think my comment was that the 
policy debate and certainly the arguments we made to the courts 
is that that would be better left to the political process.
    Senator Feingold. I am taking that as a yes, that you agree 
with Justice Scalia that the Court improperly injected itself 
into a political debate. Do you believe that the Court should 
have--is that fair?
    Mr. Tymkovich. Senator, I think Justice Scalia accepted 
some of the presentation of the State, but they rejected 
others. So I don't wholly agree or disagree with the dissent in 
the case, but it does--
    Senator Feingold. Do you agree with that point?
    Mr. Tymkovich. --reflect some of the arguments that were 
made.
    Senator Feingold. Do you agree with that point?
    Mr. Tymkovich. I agree--the presentation that the State 
made to the Supreme Court was that it was a policy debate and 
not subject to the Supremacy Clause of the equal protections. 
But, again, as I testified earlier, that argument, that 
presentation was not accepted by the Court, and regardless of 
my personal views, I am perfectly capable and willing to 
impartially apply that precedent.
    Senator Feingold. That isn't what I am asking. I have asked 
your personal view, and I take it that your personal view is 
that the Court did the wrong thing here and improperly injected 
itself into the political debate. I understand that you would 
follow the law based on the Court's decision.
    Mr. Tymkovich. I would follow the law.
    Senator Feingold. Do you believe that the Court should have 
given more consideration to the privacy, associational, and 
religious rights of persons who do not condone homosexual 
behavior?
    Mr. Tymkovich. Senator, the lower courts in Colorado had 
identified that there were religious and associational factors 
that would be implicated by the laws that were pre-empted by 
Amendment 2. I think, again, that that, as I've tried to 
explain in my previous testimony, is part of the political 
give-and-take, the public policy give-and-take in crafting a 
gay rights law that would accommodate certain interests, and 
certainly that's part of the policy debate that we've seen in 
our State. Certainly the Amendment 2 provision would have 
required that debate to go at the statewide level, and as I 
recall, even during the judicial proceedings on Amendment 2, 
there was a move to enact a statewide initiative that would--
    Senator Feingold. Okay. I accept that, but I am asking you 
your personal view. You are an expert on this. Do you think the 
Court should have given more consideration--you, do you think 
the Court should have given more consideration to the privacy, 
associational, and religious rights of persons who do not 
condone homosexual behavior?
    Mr. Tymkovich. Senator, I think that in that case, as 
others, as an advocate, as a representative of my client, we 
were presenting what we thought were the best arguments based 
on the applicable case law--
    Senator Feingold. I am asking your view right now.
    Mr. Tymkovich. --to the Supreme Court.
    Senator Feingold. I am not asking in your role as an 
advocate. I am asking in your view should the Court have taken 
that more into account?
    Mr. Tymkovich. I think, as I've testified earlier, 
indicated in my article, that I believe that we had strong 
arguments based on the existing precedent at the time and asked 
that the Court accept that.
    Senator Feingold. Well, you seem to be refusing to give 
your own view on this, and I don't know why. This isn't a 
pending case. This is a case that was resolved by the Supreme 
Court. You have strong opinions indicated I here, and I don't 
understand why you can't give me your personal view.
    Mr. Tymkovich. I think I've reflected the views that we 
presented to the Court, and as I've testified--
    Senator Feingold. You did do that and that is all you have 
done, and you are not answering my question.
    Throughout our Nation's history, proponents of racial 
discrimination have used the argument that they should be free 
to discriminate based on their privacy, associational, or 
religious rights. In Brown v. Board of Education of Topeka, 
Kansas, the Supreme Court injected itself into a contentious 
political debate where in some parts of the country separate 
but equal schools were defended to the point of literally 
spilling blood over the issue.
    Do you believe that Brown v. Board of Education was wrongly 
decided and that the Supreme Court should not have injected 
itself into the policy question of maintaining school 
segregation?
    Mr. Tymkovich. Senator, it's an important question because 
certainly the history of discrimination in this country has had 
a very mixed and very sorry record at times, and the Brown 
decision is certainly a reflection of part of that history.
    One of the reasons I went to law school was the influence 
of a book I read about the Brown case called ``Simple Justice'' 
that traced the history of the legal development from Plessy v. 
Ferguson to the Brown decision, and a very powerful historical 
book about the legal and social and ideological aspects of 
discrimination in this country.
    So certainly Brown is one of the cornerstones of American 
jurisprudence, and certainly its foundation is a very important 
part--
    Senator Feingold. So you obviously don't disagree with that 
decision, and that is why I want to ask you: What is the 
difference in your mind between African-Americans and gay 
people in terms of whether laws protecting them from 
discrimination are permissible?
    Mr. Tymkovich. Senator, I think that it's a very important 
part of the public policy debate to analyze the rationale and 
the reasons for a particular legislative judgment. I don't sit 
here today as having a legislative agenda. I do not. My goal as 
a Tenth Circuit judge, if confirmed, would be to impartially 
and fairly and open-mindedly apply the law. You're asking me 
for a legislative judgment, and I certainly--
    Senator Feingold. No. I am asking you your personal 
opinion, having studied this in law school, having the question 
of discrimination having been one of the inspirations for your 
going to law school, and doing extremely well, I might add, and 
being a very distinguished lawyer. I am asking you what your 
thought process is here. What is the difference between 
discrimination against African-Americans and gay people?
    Mr. Tymkovich. Senator, I think that, you know, again, to 
answer your question from a public policy standpoint, I believe 
that this body, Congress, which has debated whether or not to 
add sexual orientation to Title VII or to Federal law, and 
certainly the debate at the State level would be to take the 
testimony and the experiences of gay and lesbian Americans and 
apply that to the particular circumstances at work.
    In Colorado, that's an important dialogue that is ongoing 
about to what extent the laws ought to be modified and changed 
to prevent discrimination and violence and harassment against 
gay and lesbian people. I support that legislative debate in 
our State. I don't think it's appropriate for me to take a 
personal view to the Federal bench, and I can commit to this 
body that I'd be able to apply the discrimination laws 
faithfully and carefully as a Tenth Circuit judge--
    Senator Feingold. Well, Mr. Chairman, my time is up, but 
let me just say that I certainly respect Mr. Tymkovich and wish 
him well. But this process where we can't even get at sort of 
the thought process of a nominee on something as simple and 
important as how you relate discrimination against African-
Americans to the issue of discrimination against gay people, to 
me, Mr. Chairman, this is the problem we are having, that we 
are really not being given a chance to examine how these 
individuals will simply go through their thought process as 
judges, not whether there is a right answer or a wrong answer, 
but how will they go through the judicial process and how will 
they go through that thought process.
    I think that is legitimate, and, again, I respect you and 
certainly you have tried to respond to me. But it makes it 
very, very difficult to analyze, especially in light of the 
fact that this nominee wrote an article, an extensive article 
about this very important subject, and all I am trying to do is 
to get his thought process as it compared to another body of 
law that he obviously thinks is valid.
    So, with that, Mr. Chairman, I conclude and thank you and 
thank Senator Kennedy.
    Senator Sessions. Thank you. I know that what we really 
expect out of a judge is not so much how they feel about the 
issue but how they analyze the applicability or lack of 
applicability of the law. So to that extent, their personal 
views on political or social issues are a little less valid.
    Senator Feingold. I would just add on that point, I wasn't 
asking for his personal views. I was asking for his personal 
view of the logical relationship as a matter of law between 
discrimination against African-Americans and gays. It was not 
literally his own personal views about those subjects.
    Senator Sessions. Well, you certainly have a right to ask 
that.
    Senator Kennedy?

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you very much, Mr. Chairman, and I 
share the concerns that have been expressed by Senator 
Feingold. I was here when we passed those civil rights laws in 
1964, and I can still hear the echoes of many of my colleagues 
who said that--Norris Cotton, who was from the State of New 
Hampshire, people have a right--if there is any freedom left in 
this country, such employees will be congenial, promote good 
feelings with business. And even former Senator Tower talked 
about employers, employees, any freedom to speak or to act on 
the basis of their religious convictions in terms of the issues 
on discrimination on the basis of race. And there are other 
Senators. I am not meaning to embarrass these other Senators, 
but on March 20th, another of our colleagues had similar kinds 
of statements. Another very distinguished Senator, this time 
from Florida, surely no outsider should be able to tell an 
owner or manager who he must hire or who he must promote. Then 
even our colleague Senator Ervin, the bill undertakes to 
control the thoughts of American people in respect to racial 
matters.
    So many of us who have been here over a long period of time 
have heard similar kinds of concerns expressed, as you have, in 
terms of the extension of the protections for gays and 
lesbians. And as the principal author of ENDA, it brings a lot 
of concern about where you are going to come out. We have come 
very close to passing that law as an amendment to ensure that 
there wouldn't be discrimination on the basis of sexual 
orientation.
    On that issue, it is about 60 percent, 65 percent of the 
American people are basically for that, think ought to be 
evaluated on who they are, not on the questions of their sexual 
orientation. So that is why there is a lot of difficulty in 
trying to understand the fear or unwillingness to say, well, if 
the Congress is going to make this as a judgment and decision, 
I don't have any problem or trouble in terms of enforcing that 
if that is going to be the judgment that is made.
    We have gone all through in the legislative considerations 
about special rights, developed that debate and responded to 
it. But I hear a lingering kind of unwillingness on your 
position to entertain it. I heard the Chairman say that you 
were one of the co-authors of the--I obviously respect your 
position as a State employee, but we went on after that to talk 
about your position in the Law Review article, which was one of 
three people. But I don't see you disassociating yourself from 
anything that was in it, even though it was written with 
others. So we obviously interpret that to be your position as 
well.
    I wanted to ask you--and I want to just give you an 
additional opportunity if there is anything you want to respond 
to those kinds of concerns that we, or at least I have in terms 
of considering, you know, the nominee and whether those that 
would be able to come before you would feel that they are going 
to get equal justice.
    Mr. Tymkovich. Senator, thank you for that question. I 
think it's an important question, and I believe that those who 
know me the best in Colorado and with whom I've practiced who 
endorse my nomination to the Tenth Circuit firmly believe on a 
bipartisan basis that I can be an effective and fair judge on 
the Tenth Circuit, if confirmed.
    I might add a couple of things about my experience that I 
think might bear on your question, really two cases I wanted to 
mention. One is a case called Hill v. Colorado that was an 
outgrowth of a legislative concern that we had in Colorado 
regarding protests near health care facilities. And I think, 
Senator Kennedy, you are aware of the Federal Access to Clinics 
Act and either were the prime sponsor or major sponsor.
    In Colorado, Congressman Degette, who was in the State 
legislature at the time, helped pass that bill on a bipartisan 
basis through a very evenly split Colorado Legislature, and 
that provision was immediately challenged as unconstitutional. 
At the time I was Solicitor General, like with Amendment 2, it 
was an act of our legislature, act of our legislative branches, 
and the office defended that provision. And we fortunately were 
able to prevail in the State court and the Colorado Supreme 
Court level.
    That case was a very important Federal case. It was 
appealed to the United States Supreme Court after I had left 
the State government, so my successor as Solicitor General 
ended up arguing that casein the United States Supreme Court. 
And the United States Supreme Court, I think on a 7-2 vote, 
ultimately upheld that case, upheld that law in a case called 
Hill v. Colorado, which very importantly clarified the ability 
to enact protective legislation in this area.
    And so I want to point out, Senator, that, you know, part 
of my obligation as Solicitor General was to not pick and 
choose my cases but to defend as well as we could cases, 
whether they came from the legislature or from the people, and 
we thought we did an effective job on that.
    The other issue I wanted to mention--
    Senator Kennedy. What was your role in that case?
    Mr. Tymkovich. I did not argue the case directly but was 
involved in the briefing on the policy development of that 
case. Again, in my role, I have substantial involvement--
limited involvement in a range of cases, but that certainly was 
an important case at the time and had created some controversy 
at the time because it was one of the few State laws that made 
this legislative determination at the time.
    The other issue I wanted to make that bear on this question 
of impartiality and open justice is the work that the office 
did while I was Solicitor General in taking on a very difficult 
issue involving the Martin Luther King holiday in our State. At 
the time I became Solicitor General, we had had racial protests 
on the steps of our Capitol in Denver, where I know you have 
been before, Senator, and it was creating a very divisive 
situation because representatives of white supremacists and Ku 
Klux Klan members were obtaining a parade permit to protest on 
Martin Luther King Day and preventing the Martin Luther King 
celebrants from having the opportunity to celebrate that 
holiday on really the most visible forum in our State.
    To help defuse racial tensions in our community, the 
Attorney General helped Governor Romer and the State develop 
regulations that allowed for a very careful process on when and 
how you could use that open forum, and as a result of those 
regulations, the racial conflict that we had dissipated, and in 
the last 10 years we have not had any problems in that regard.
    So when I have had the opportunity to work on issues and 
cases--
    Senator Kennedy. What was your role in that as well?
    Mr. Tymkovich. It was also to assist the office in 
developing those regulations and representing the State 
agencies in that regard. It certainly was part of a larger 
effort of other lawyers in the office that undertook that 
representation.
    Senator Kennedy. One of the things that we look at in the 
confirmation process is judicial temperament, and an important 
part of that assessment is whether you respect people's views 
that differ from yours. It is okay to disagree with someone, 
but we look at whether you respect others' legal views and 
whether you label anyone who disagrees with you as having an 
improper motive or being political. And it is especially 
important to evaluate your respect for the Supreme Court cases 
with which you disagree because we are assessing whether we can 
take you at your word when you promise to follow both the 
letter and the spirit of the decisions of the Court.
    With that in mind, I have some questions about the 
statements that you made in the Law Review article that 
indicate a seeming lack of respect for the Supreme Court and 
Justice Kennedy in particular.
    You called the six-Justice majority opinion in Romer ``an 
important case study of the Supreme Court's willingness to 
block a disfavored political result, even to the point of 
ignoring or disfiguring established precedent.'' You state the 
opinion is ``cause for great uneasiness about the health of 
self-government.''
    That opinion was written by Justice Kennedy, hardly one of 
the Court's more ideological members, whom you criticize by 
name in your article. Can you explain what you meant in calling 
Justice Kennedy's opinion political?
    Mr. Tymkovich. Thank you, Senator, for the question. As 
I've testified earlier, the purpose of the article was to 
reflect the arguments that the State made in the appellate 
courts and under applicable precedent, we believed that the 
arguments that we had presented would have sustained a finding 
of constitutionality. Obviously the Court disagreed and ruled 
against us. And, again, we believe that the Court had to 
address in a rather novel way the application of the precedent 
that was argued below. And as I think I've testified in answers 
to Mr. Chairman, certainly a number of academic criticisms of 
the opinion and analyses of the opinion have reached a similar 
conclusion. I think there's really a bipartisan and non-
ideological view about that.
    And so my purpose in the article was to show the arguments 
that we thought were presented under the existing case law that 
the Court rejected--
    Senator Kennedy. Well, I hear that and you have expressed 
that opinion while I have been here, and I apologize for 
missing the earlier hearing. Both the Chairman and I are on the 
Armed Services Committee, and we have Mr. Tenet over there, the 
head of the CIA. So I was unable to be here earlier. But I have 
heard your comments just generally about obviously the holding. 
But I am getting to the nature and the choice of words that are 
being used, and there is one thing about differing with a 
Supreme Court opinion, but it does seem to me that using the 
words ``important case study of the Supreme Court's willingness 
to block a disfavored political result, even to the point of 
ignoring or disfiguring established precedent,'' and the 
opinion is ``cause for great uneasiness about the health of 
self-government.''
    When you are using those kinds of words and stating it to 
be political, it is more than just a general kind of difference 
with the substance of the argument. I think that those 
particular words are highly volatile, I would think, in terms 
of the criticism both of Justice Kennedy and of the Court 
itself.
    Mr. Tymkovich. Senator Kennedy, I think I really pride 
myself in my career of having the ability to, I think, 
demonstrate the ability to work across party lines as a lawyer. 
As you probably know, I represented a Democratic 
administration. While I was Solicitor General, Governor Romer 
was the chief executive of our State the entire time I was in 
public service, and he has supported my candidacy. And I think 
as a result of that experience I had an opportunity to work 
with a lot of people across party lines to really do the best 
possible job we could on behalf of the State of Colorado.
    So I really believe that the bipartisan support of the 
people that have worked with me in Colorado really speak 
volumes about their view that I will have the ability to be a 
good judge, to be open-minded and fair, and provide the 
applicable civility and temperament to the position if I am 
fortunate enough to be confirmed.
    Senator Kennedy. Okay. Thank you, Mr. Chairman.
    Senator Sessions. Thank you.
    Mr. Tymkovich. Thank you, Senator.
    Senator Sessions. On the question of the--
    Senator Kennedy. I would say to the nominee, I just want to 
congratulate you on the nomination. A number of people I have 
known out there have also communicated with me their support 
for your nomination.
    Mr. Tymkovich. Thank you, Senator Kennedy.
    Senator Sessions. Thank you, Senator Kennedy.
    I notice that with regard to that brief, it looks like as 
many as 15 States actively participated in support of the 
position of Colorado, including Massachusetts was on one of the 
briefs.
    You wrote the ``uneasiness about self-government.'' Well, I 
think that is a very nice lawyerly way to say it. I mean, that 
is not a hot-head comment, that it creates ``uneasiness about 
self-government.'' And I will tell you what I felt about it. 
The people of Colorado passed an amendment, and the Supreme 
Court struck it down. And they are unelected, and they denied 
the people the right to have that statute that they passed 
become law.
    Now, let me ask you this--I won't go into that. We have got 
another panel that is waiting.
    Thank you very much, Mr. Tymkovich, for your testimony.
    Mr. Tymkovich. Thank you, Mr. Chairman.
    Senator Sessions. You have done an outstanding job, I 
believe. You have an extraordinarily good record, and I would 
ask this: As Solicitor General of Colorado--that was the 
position you held?
    Mr. Tymkovich. Yes, sir.
    Senator Sessions. That is a position chosen by the Attorney 
General to be in charge of appellate litigation for the State 
of Colorado. Is that correct?
    Mr. Tymkovich. That's correct, Senator.
    Senator Sessions. State Supreme Court or U.S. Courts of 
Appeals and the U.S. Supreme Court.
    Mr. Tymkovich. Yes, sir.
    Senator Sessions. And I would just say as a former Attorney 
General, that reflects a sincere belief by Attorney General 
Gale Norton, now Secretary of Interior, that you possess 
extraordinary legal skills and an ability to articulate in the 
appellate courts. And, of course, that is what you are seeking, 
the position that you are seeking in the Court of Appeals. And 
this background and experience as Solicitor General for the 
State gave you an extraordinary ability and opportunity to be 
active in a lot of appellate court cases. Most lawyers in 
America would never have had that opportunity. So you come here 
extremely well qualified, and I believe you should be 
confirmed, and we thank you for your good testimony.
    Mr. Tymkovich. Thank you, Mr. Chairman.
    [The biographical information of Mr. Tymkovich follows.] 
    [GRAPHIC] [TIFF OMITTED] 90303.189
    
    [GRAPHIC] [TIFF OMITTED] 90303.190
    
    [GRAPHIC] [TIFF OMITTED] 90303.191
    
    [GRAPHIC] [TIFF OMITTED] 90303.192
    
    [GRAPHIC] [TIFF OMITTED] 90303.193
    
    [GRAPHIC] [TIFF OMITTED] 90303.194
    
    [GRAPHIC] [TIFF OMITTED] 90303.195
    
    [GRAPHIC] [TIFF OMITTED] 90303.196
    
    [GRAPHIC] [TIFF OMITTED] 90303.197
    
    [GRAPHIC] [TIFF OMITTED] 90303.198
    
    [GRAPHIC] [TIFF OMITTED] 90303.199
    
    [GRAPHIC] [TIFF OMITTED] 90303.200
    
    [GRAPHIC] [TIFF OMITTED] 90303.201
    
    [GRAPHIC] [TIFF OMITTED] 90303.202
    
    [GRAPHIC] [TIFF OMITTED] 90303.203
    
    [GRAPHIC] [TIFF OMITTED] 90303.204
    
    [GRAPHIC] [TIFF OMITTED] 90303.205
    
    [GRAPHIC] [TIFF OMITTED] 90303.206
    
    [GRAPHIC] [TIFF OMITTED] 90303.207
    
    [GRAPHIC] [TIFF OMITTED] 90303.211
    
    Senator Sessions. We will take a 3-minute recess and get 
ready for our next panel, and you can move on up and take your 
seats.
    [Recess 12:02 p.m. to 12:07 p.m.]
    Senator Sessions. Ladies and gentlemen, if you would stand, 
we will do the oath. Do we have everybody or are we missing--
no, we have everybody. If you would raise your right hand and 
take this oath. Do you swear that the testimony you are about 
to give before the Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Judge Breen. I do.
    Judge Steele. I do.
    Mr. Varlan. I do.
    Mr. Stanceu. I do.
    Judge Horn. I do.
    Senator Sessions. Please take your seats.
    I congratulate you again on being nominated for one of the 
most significant offices an American can have, to receive the 
support of the President and your State Senators, and now you 
are seeking the support of the United States Senate in the 
confirmation process to be a Federal judge. That is a great, 
great honor, and I know that from what we have learned from 
your background that you are worthy of it. You have been 
reviewed by the American Bar Association. First, of course, the 
administration has reviewed and the Department of Justice has 
reviewed your qualifications. The FBI has done a full-field 
investigation and background check on your background, your 
integrity and competence and ability and see if there are any 
problems there. The American Bar Association has rated you 
qualified for the position after doing the extensive work that 
they do.
    For those of you who may not know, the Bar Association 
requires nominees to submit a large number, I think as many as 
ten cases that you have litigated that are important, and the 
nominee has to list all the attorneys that were involved in 
that case, and the ABA goes and interviews them as well as the 
judges who may have presided over the case. And so they do 
intensive work. And then we at the Senate, through the staff 
here, review the nominees. We receive letters of support, and 
you have mostly gotten support for you for sure, and any 
questions that arise, and then we have this public hearing and 
you go forward.
    The Senate is very busy now. We are at the last minutes of 
an appropriation process. We also have Armed Services going 
forward. We have the review of the Space Shuttle disaster going 
on and debate on the floor continuing on the Estrada 
nomination, and a number of members here are there. So that 
would explain some of the absences that we might otherwise not 
see today.
    Let me start off with general principles. First let me ask 
each of you if you would like to make an opening statement, and 
I would be pleased if you would identify any family members or 
friends that you have here.
    Judge Breen, would you like to start?

STATEMENT OF J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE WESTERN DISTRICT OF TENNESSEE

    Judge Breen. Thank you, Mr. Chairman. Let me first of all 
thank you and the other Committee members for considering my 
nomination on today's hearing. I would like to also, if I 
could, publicly thank Senator Frist and Senator Alexander for 
their support and kind words on my behalf.
    If I might, I would like to introduce a lady that I know 
quite well and who has traveled with me here. We are 
celebrating our 30th anniversary this year. My wife, Linda, who 
is seated here behind me, and she is certainly here in my 
support.
    I would also, if I might, although they weren't able to be 
here, my two sons. One is Daniel in Memphis, working in 
Memphis, Tennessee, and the other, Phillip, is in Orlando, 
Florida. He is in school there, and certainly they are very 
supportive of me as well.
    With that, sir, I do not wish to make, other than that, an 
opening statement at this time, sir. Thank you.
    Senator Sessions. Thank you.
    Judge Steele? I am glad to see your wonderful wife, Linda, 
here and your family. Please introduce who you have.

 STATEMENT OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE 
              FOR THE SOUTHERN DISTRICT OF ALABAMA

    Judge Steele. Thank you, Mr. Chairman. I am extremely 
grateful and honored for this opportunity to participate in 
this important constitutional process. I also would like to 
publicly express my gratitude to you and to Senator Shelby, who 
made the kind remarks on my behalf earlier, and also to 
President Bush for nominating me to this position and having 
confidence in my ability to serve as a district judge for the 
Southern District of Alabama.
    I am honored today to have many members of my family and 
some friends here that I would like to introduce. First of all, 
my wife, who is also my dance partner, my hiking partner, and 
my golfing partner, and my best friend for the last 32 years, 
Linda. Thank you.
    My mother, Martha, who is a member of Tom Brokaw's greatest 
generation of Americans, and I will tell you that she is a 
person who loves this country almost as much as she loves her 
family, which is considerable.
    Senator Sessions. I enjoy seeing your mother at the Whistle 
Stop Restaurant every now and then after church on Sunday.
    Judge Steele. My son, Chris, who is here today. If you 
would stand, Chris? He is the owner and operator of two of the 
best, if not the best restaurants on the Gulf Coast and a very 
hard-working restaurateur. We are very proud of him. Thank you, 
Chris.
    His wife, Rosemary, and his daughter, Madison, who is my 
only granddaughter, are unable to attend. Rosemary is 
anticipating delivering our second granddaughter in just a 
matter of days, so Chris will be leaving here quite quickly 
after the hearing today to attend to those responsibilities. 
Thank you, Chris.
    My son, Blake, former Eagle Scout, all-around good guy, 
also involved in the restaurant business on the Gulf Coast. His 
wife, Ranee, is here, and she is a very good student at one of 
our local universities in Mobile, and we're very proud of 
Ranee.
    My daughter, Keri, who is a software application engineer 
for a large corporation in New Orleans, and she has done quite 
well with that particular profession. Thank you, Keri.
    My brother, Bob, Major, United States Marine Corps, 
retired. He's a former helicopter pilot for Presidents Reagan 
and Bush. He's also the recipient of a Distinguished Flying 
Cross for acts of bravery in Vietnam, and we're certainly proud 
of my brother, Bob. Thank you.
    His wife, Valerie. Valerie is engaged in the noble 
profession of school teaching. She teaches first grade just 
south of here in the Stafford, Virginia, area. Thank you, 
Valerie.
    Their son, Jimmy, who's a Lieutenant JG with the U.S. Coast 
Guard. He's also a law student at American University here in 
this area and doing quite well in law school.
    His wife, Melissa, is also involved in the noble profession 
of school teaching in the Falls Church area, around the D.C. 
area.
    I'm also honored today to have one of my former law clerks, 
Joy Williams. I'm proud to have her today. She was a wonderful 
law clerk for me and one of the nicest people you'll ever meet 
anytime, anywhere. She informs me that she has just accepted a 
position with the Office of General Counsel for the FBI here in 
Washington, so we're really proud of Joy.
    Also in attendance from Mobile is Dr. Floyd Windal, one of 
our best friends, and we're certainly gratified to have him 
with us here today.
    And in attendance is Bill Wynne, chief of the United States 
Probation Office, a good friend, and we're proud to have him 
here today.
    Senator Sessions. One of the great probation officers in 
the history of the world.
    Judge Steele. He is the best, let me tell you. And unable 
to attend is my sister, Sandy Steele, who is a city clerk in 
Fort Pierce, Florida, and my brother, Jerry Steele, who is a 
Colonel, United States Marine Corps Reserve, also director of 
the Boys and Girls Clubs in Mobile.
    So we're proud of everyone, and I'm grateful today to be 
able to introduce them to the committee. Thank you.
    Senator Sessions. Thank you, Judge Steele. Very good.
    Mr. Varlan?

  STATEMENT OF THOMAS A. VARLAN, NOMINEE TO BE JUDGE FOR THE 
                 EASTERN DISTRICT OF TENNESSEE

    Mr. Varlan. Thank you, Mr. Chairman. I, too, want to thank 
the Chair and the members of the Senate Judiciary Committee for 
consideration of my nomination. I also want to thank Majority 
Leader Senator Frist and Senator Alexander for their kind and 
gracious comments concerning my nomination. As well, obviously, 
I would like to thank the President for his submission of my 
nomination to this body.
    I have with me my wife and two of my four children I would 
like to introduce. My wife, Danni, who's been so supportive of 
my professional efforts, in particular this particular quest. 
My oldest daughter, Georgia, who is a sophomore in high school 
in Knoxvlile. My daughter, Susanna, who's in eighth grade, a 
middle school student.
    And also with us today is one of our very good friends, Amy 
Hartman. I'd ask her to stand. We both lived--our families both 
lived in Atlanta, Georgia, in Senator Chambliss' home State, 
for a time in the 1980's, and they moved to the Washington area 
about the same time we moved back to Tennessee, and we're glad 
she's here today.
    In absentia, I would also like to mention my two sons--my 
12-year-old son, Alex, and my 9-year-old son, Paul--as well as 
my father, Alexander Varlan, who are back in Knoxville wishing 
us well.
    So, again, thank you, Mr. Chairman, for the opportunity to 
be here today.
    Senator Sessions. Thank you.
    Mr. Stanceu?

  STATEMENT OF TIMOTHY C. STANCEU, NOMINEE TO BE JUDGE OF THE 
           UNITED STATES COURT OF INTERNATIONAL TRADE

    Mr. Stanceu. Thank you very much, Mr. Chairman. The 
President's nomination of me to the U.S. Court of International 
Trade has been the greatest honor of my career, and I am very 
grateful for the opportunity to be here today before the 
committee. I am also, of course, very grateful to President 
Bush for my nomination.
    I'm also very proud to be joined here today by members of 
my family. First of all, let me introduce my wife, Mary 
Incontro. Mary is in public service. She is an official with 
the Department of Justice and now working with the Federal 
Bureau of Investigation.
    My mother, Mitzi Mewhinney, is here, and her husband and my 
stepfather, Richard Mewhinney. They have come all the way from 
Florida to be with us here today, and I'm very pleased to say 
that, and also very, very pleased that my sister, Patricia 
Hallissy, has also traveled from Florida to be with us here 
today.
    And I sincerely thank you, Mr. Chairman.
    Senator Sessions. Thank you.
    Judge Horn?

  STATEMENT OF MARIAN BLANK HORN, NOMINEE TO BE JUDGE OF THE 
             UNITED STATES COURT OF FEDERAL CLAIMS

    Judge Horn. Thank you, Mr. Chairman, and I want to thank 
you and Chairman Hatch for allowing me the opportunity to 
appear here this afternoon, and I want to thank the President 
for placing his trust in me and re-nominating me to another 
term on the Court of Federal Claims. I've been there for 16-
plus years and enjoyed every day of that opportunity, and I 
hope to do another 15 years plus with the same kind of 
dedication that I think I've given to the job in the past.
    I do want to take the opportunity to introduce my husband 
who is here with me today, Robert Horn, a partner at Patton 
Boggs firm here in Washington, who is known to many of the 
members of this committee, and also my daughter, Carrie Horn, 
who is an associate at the law firm of Hunton and Williams here 
in D.C. Her two sisters, her twin sister, Rebecca, could not be 
with us here today. She's a fourth-year medical student, and 
they don't let her out of the hospital. And my other daughter 
is a holder of an MBA degree and works as a consultant in New 
York, in Senator Schumer's State, in which I was born and 
raised. And I want to thank you all and hope that I could 
answer any questions, and I appreciate the opportunity.
    Senator Sessions. Very good. Well, you know, the Court of 
Claims and the International Court of Trade, and these three 
are for Federal district judgeships, I guess with regard to all 
of them, I know with the Federal judges, that management is a 
key requirement, that this is not a retirement job, that the 
modern challenges of a Federal judge are enormous. The 
caseloads are heavy. Lawyers have a right to expect that when 
they have submitted briefs properly and that sort of thing that 
the court will rule promptly. Delays cost parties extra money. 
They deny justice and that sort of thing.
    I remember when Judge Steele was Chief Assistant United 
States Attorney, I was District Attorney there for Chris 
Galanos in Mobile. He was a good administrator, and I remember 
we had some actually not very well thought out procedures in 
Federal court dealing with the processing of cases. Actually, I 
had thought for some time it was something that should be 
changed, and several years later, when Judge Steele was 
appointed magistrate judge, the court asked him to study the 
case processing in the court and to develop a plan to improve 
that.
    Judge Steele, it was a stunning improvement. Everybody that 
practiced regularly in the Federal court in Mobile appreciated 
the changes, and you orchestrated that.
    I will ask you, based on your experience as a magistrate 
judge and as an observer of Federal judges, do you feel a 
burden to move cases in a fair and prompt way? And is 
management something that we need to look for in our nominees?
    Judge Steele. Thank you, Mr. Chairman, for the opportunity 
to answer that question. Yes, sir, I do think it's something--
management is a skill that is absolutely required of any 
nominee to the Federal district bench. Not only do you have to 
manage your own caseload, but you have to be conscious of the 
other judges' caseloads as well and offer to help when needed 
to move the cases fairly and efficiently through the court. And 
I think we're pretty successful at doing that in the Southern 
District of Alabama. We've had occasions where the caseload was 
just so excessive that it was difficult to do so. But I come 
from a court that has just a history of having judges who have 
great relationships with each other, who work with a sense of 
purpose and a goal to do the good--do justice for the good of 
the people. And they stay focused, and I think that's the 
important part to a case management plan, is to have a plan 
that allows the judges to focus on the purpose of the court, 
and that is to do justice effectively and efficiently.
    Senator Sessions. So the plan shouldn't drive the system. 
The plan should help you achieve justice.
    Judge Steele. Yes, sir.
    Senator Sessions. I think that is a good observation.
    Judge Breen, do you agree with that? Do you have any 
thoughts?
    Judge Breen. Yes, Mr. Chairman. Thank you again for the 
opportunity to answer the question. Rule 1 of the Federal Rules 
of Civil Procedure in civil cases obviously calls for us to 
have a fast, certainly efficient disposition of our cases, and 
I think that certainly applies equally in the criminal area. 
Obviously we have the Speedy Trial Act, so those cases are 
moved--certainly in your experience, I'm sure, as U.S. 
Attorney, to move those cases.
    In the Memphis area, which is one of the locations I sit 
now presently, we have a rotation docket that allows and 
assists us in moving the criminal cases because all the judges 
are participatory in that process of able to move those.
    In the civil area, I think it certainly is a collaborative 
effort in the sense that it takes the judge's staff or the 
attorneys, the litigants, to set up deadlines and set up 
certain trial dates so that the lawyers will know, the 
litigants will know when their day in court is going to occur.
    In our area, we are trying to move those cases somewhere 
between 12 and 14 months from the date of filing. One of the 
aspects that certainly I've been involved in, and I'm sure 
other magistrate judges have, is in the area of ADR. And one of 
the things that is usually set in one of the scheduling orders 
is the use of ADR. And I think--
    Senator Sessions. That is alternative dispute resolution.
    Judge Breen. Yes, sir, alternative dispute resolution, 
mediation, settlement conferences, things of that nature. And I 
think along with Judge Steele, I'm sure he's been involved in a 
number of them. But many of our cases are resolved in that 
area. I don't think it's--
    Senator Sessions. Is that a factor, the use of that, in the 
decline in the number of cases actually going to trial in 
Federal court?
    Judge Breen. I think it is. I think, again, I don't think 
it's a forced resolution. It's a matter that, at least in my 
experience, is one that the lawyers and I think the litigants 
are becoming more accustomed to and are willing to involve 
themselves in, because they realize that, first of all, it's 
less expensive. I always tell them it's less traumatic than 
having to go through a full-blown trial, and certainly it's 
less time-consuming because obviously the matter can be 
resolved at an earlier point in the life of a case.
    And so all of those factors that I've just described, along 
with what Judge Steele has said, I think is the role of our 
court, the role of the magistrate judges, the district judges, 
to collaborate with the litigants and with the lawyers to have 
a speedy and efficient disposition of cases.
    Senator Sessions. Well said.
    Mr. Varlan, do you have any comments? Have you given any 
thought to that?
    Mr. Varlan. I have, Mr. Chairman, and thank you for the 
opportunity to respond. Certainly, going back to your original 
question or premise, certainly management of the caseload is a 
key consideration for district court judges as well as 
magistrate judges. I have not had the perspective of being a 
magistrate judge as Judge Steele and Judge Breen have been. But 
from the standpoint of a practicing attorney, it is a key 
consideration.
    In discussions with various attorneys, as my nomination was 
being considered, over and over again I hear from attorneys, 
you know, what do they want out of district court judges? They 
want to be treated fairly, they want to be treated even-
handedly, and they want their cases to move in a fair and 
efficient manner, which somewhat almost similarly echoes the 
words of the Chair at the beginning of your question.
    And from my perspective, it takes hard work. It takes 
managing your docket. It takes adhering to deadlines, rendering 
prompt decisions. Certainly alternative dispute resolution, 
ADR, is a very useful tool, as Judge Breen mentioned. In the 
Eastern District we have a voluntary ADR program where many 
attorneys sign up to serve on a list of approved mediators. As 
a practicing attorney, I've had several cases in Federal court 
that we have utilized that mediation program, and although I 
don't have statistics for the Chair, we tend to find that many 
of those cases that are mediated are settled. They may have 
been settled without mediation, but certainly mediation and ADR 
has been a useful, an extremely useful tool with respect to 
cases pending in Federal court, as well as State court for that 
matter.
    Senator Sessions. With regard to precedent--and I will ask 
all of you this--do you recognize that even though you have 
been given, for three of you lifetime appointments, long 
appointments for the others, that you have a solemn personal 
duty to restrain your personal impulses and to be a neutral 
arbiter of the law and the facts as fairly have been found by 
you as you make your opinions and that you will be faithful to 
the binding authorities in defining the laws and statutes? 
Judge Breen, just briefly, would you comment on that?
    Judge Breen. Yes, thank you, Mr. Chairman. Certainly the 
issue of precedent, of stare decisis, is an extremely important 
concept in our jurisprudence. I think it's the backbone of our 
system. Certainly lawyers and litigants both look for some 
predictability, something that they know that--stability in the 
sense that they can go into court and have some basis or some 
idea of what precedent has been involved here. And I think we 
as judges have a duty, we are duty-bound certainly by oath, to 
look at that precedent, certainly from the Supreme Court 
standpoint and then from our own circuit, in my case, 
obviously, the Sixth Circuit. But certainly that is, again, a 
bedrock, I think, of what we as judges must look to and utilize 
whenever we are ruling on matters in our courts.
    Senator Sessions. Judge Steele?
    Judge Steele. Yes, sir. Certainly it's not the role of a 
Federal district judge or a Federal judge of any level to 
legislate. And a judge is obligated by the rule of law to 
follow the precedent that's available to him in the circuit 
that he's in, or if there is Supreme Court precedent, to follow 
that.
    I'm reminded of the language in the--I think it's a recent 
case, the United States Supreme Court in Hatter, in which the 
Court admonished the lower court that you will follow our law 
whether you agree with it or not, and you will follow it until 
we tell you that it's different.
    Well, that admonishment, I think, is well taken and--
    Senator Sessions. Well, that is important because one party 
has had to appeal because the court is not ruling correctly, 
they had to go to all that expense and all that delay through a 
system that really wasn't necessary if they had followed the 
law to begin with. There are a lot of reasons why lower courts 
should follow the superior courts.
    Judge Steele. I agree with that. I think I've selected 
somewhere in the neighborhood of 200 juries in my capacity as a 
magistrate judge, maybe 250 juries, and each time I charge them 
that you must follow the law whether you agree with it or not. 
And I think that same charge applies to me. I have to follow 
the law whether I agree with it or not.
    Senator Sessions. And that is the standard charge given to 
all the juries.
    Judge Steele. Right.
    Senator Sessions. Mr. Varlan?
    Mr. Varlan. Thank you, Mr. Chairman. I, too, agree that the 
principle of stare decisis and adherence to precedent is 
extremely important to our judicial system and our rule of law. 
As the Chair stated, our role as judges is to act as a neutral 
arbiter of the facts and the law, and that principle, that 
bedrock principle, provides the predictability to the lower 
court in terms of following the Sixth Circuit, in my case, as 
in Judge Breen's, and the U.S. Supreme Court, as well as some 
measure of predictability to the litigants and the attorneys 
and parties that come before us.
    Senator Sessions. Mr. Stanceu?
    Mr. Stanceu. Thank you, Mr. Chairman. I would agree with 
the views that have been expressed here, and I would add that I 
would view a judge's most solemn duties are to uphold the rule 
of law and to do impartially and fairly. Judicial activism--and 
those are two words that I don't believe go together. Judicial 
activism is not being impartial. Activism is for the parties 
and their attorneys who must zealously represent them within 
the bounds of the law. I would see the judge's duty as to 
uphold the rule of law and achieve fairness.
    Senator Sessions. The light is fading on us.
    [Laughter.]
    Mr. Stanceu. And with the specific respect to the U.S. 
Court of International Trade, that would mean loyalty and 
fidelity to the decisions of the Supreme Court and, of course, 
to the U.S. Court of Appeals for the Federal Circuit, in which 
circuit the U.S. Court of International Trade is located.
    Senator Sessions. What special challenges do you think you 
will face as a Court of Trade judge?
    Mr. Stanceu. I would say that in fulfilling the 
responsibilities of a judge of the Court of International 
Trade, if I am fortunate to be confirmed, one thing we must 
always guard against is to make sure that all parties have a 
full and fair opportunity to be heard. I want to make a couple 
of points on that.
    First, you mentioned--the excellent remarks that you had 
mentioned, Mr. Chairman, about managing the docket. 
Wholeheartedly I agree, and I believe that that responsibility 
will require continued diligence and dedication.
    I can commit to this Committee and to the bar of the Court 
of International Trade that I will do my utmost to move the 
docket along, but never at the expense of fairness or giving 
every party the opportunity to be heard. For example, I do not 
believe it is proper for judges to pressure parties into 
settlements as a means of managing the docket. The Congress has 
created the Court of International Trade under its Article III 
powers under the Constitution to give importers, domestic 
parties, and other interested parties the right to be heard in 
front of this court. And if it is their desire to go to trial, 
then that right must be upheld.
    Thank you.
    Senator Sessions. Judge Horn, tell me about your experience 
and what do you look forward to next.
    Judge Horn. Well, I can honestly say I've had 16 marvelous 
years on the court.
    Senator Sessions. Is that the term?
    Judge Horn. The term is 15. I'm now in senior status until 
hopefully the Committee sees fit to have the re-nomination 
confirmed. The term is 15 years in and of itself.
    I think that the beauty of the caseload on our court is the 
complexity of many of the cases, which is why I enjoy the 
challenge. We, of course, have an entirely civil docket, and we 
get cases in a variety of areas, many of which are multi-count, 
large-dollar volume, and pretty complex, which is why it is 
challenging.
    I believe just in answer to the questions that have been 
asked that case management is obviously an important part of 
any judge's responsibility, and in a sense time is money, 
particularly since we have a civil docket and our 
responsibility is to make sure to get to the just, fair, and 
proper answer in as expeditious manner as possible.
    With respect to following case precedent, I think it's the 
sworn duty of any judge to follow case precedent. I try to do 
that and have tried to do that in all of the cases that I've 
decided, including some in which--the few that the Court of 
Appeals for the Federal Circuit has seen fit to overturn, which 
has been on an average of about one a year in about 16 years. 
So, so far, we've done okay.
    Senator Sessions. Let me ask you, do you think judges 
sometimes can become too timid in honestly evaluating the law 
and facts and worry about reversals? Is that something you 
should--how should you evaluate calling it and worrying about 
reversals?
    Judge Horn. Well, Mr. Chairman, I welcome that question 
because I preached for a long time--
    Senator Sessions. Well, you have taught. I know you taught 
at George Washington and American University Schools of Law, so 
I am sure you have thought about it.
    Judge Horn. I have thought about it, and I honestly believe 
that that is something a judge should never think about. You 
are there to do the best you possibly can with the case 
precedent, with the facts that come before you in a particular 
case, and I think it would be inappropriate for a judge, 
frankly, to worry about whether or not he or she will be 
reversed.
    It happens on occasion. Reasonable men and women disagree. 
But that should never be the driving force.
    Senator Sessions. Well, you three Federal district judge 
nominees, I will ask you this. I hope Judge Steele hasn't 
forgotten his brief tenure as an Assistant United States 
Attorneys, 2 years or so. But my question is: Will you give the 
prosecutors the same fidelity to fair rulings that you do to 
the defendant? As Judge Horn suggested, you really need--I 
think the law requires you to call the shots fairly. It is a 
fact, however, that a lot of people in America do not know that 
if you rule against a prosecutor, they can't appeal. If you 
rule against a defendant, they might. So I have observed--and 
there have been criticisms of judges tending to rule for the 
defendant just so they might--there will be no chance of being 
reversed on appeal. Will you be faithful and give the 
prosecutor a fair chance, the three of you? Yes or no, or any 
brief comment you might have.
    Judge Breen. Mr. Chairman, again, I have been on the bench 
now about 12 years, and I think that there have been 
opportunities and occasions when I have ruled against the 
government. There are many opportunities that I have ruled in 
their favor. Certainly I pride myself on being impartial and 
fair and willing to listen to all parties, whether they're the 
government, whether they're private individuals, corporations, 
or whatever persons, you know, certainly who are not even 
represented, are representing themselves. So I feel that I can 
unqualifiedly give the government and any other litigant who 
comes into my court a fair hearing and certainly the decision I 
make is not based upon who it is or what their status in life 
is.
    Senator Sessions. Judge Steele?
    Judge Steele. Yes, sir, I have a similar experience with 13 
years as United States magistrate judge. I have had many 
opportunities to rule for and against the government and for 
and against the defendants in cases, and each time my rulings 
were based on the facts and the law as they were presented to 
me in my best judgment of what the result ought to be.
    Senator Sessions. Mr. Varlan?
    Mr. Varlan. Thank you, Mr. Chairman, and I have--in my 
legal career, approximately half has been public from a civil 
standpoint in terms of being city attorney and the other half 
in private practice. And I believe and I know that I can be 
fair and impartial to those who appear before me, and that 
would obviously include the government and prosecutors as well 
as defendants and other litigants.
    Senator Sessions. Well, I will just say to all of you 
congratulations, you have cleared one more hurdle, I suppose 
you can call it, in this weird process. I am not sure there is 
any real justice in it, but it is a process that we go through 
and historically has resulted in good judges going on the 
bench. And I don't think it makes any difference if you are 
Senator Leahy's campaign Chairman or a former Assistant United 
States Attorney that you know. What we want is the best judges 
that we can get who, when they put that robe on, will try to 
rule right and fair, following the law and following the facts.
    We will keep the record open for one week to allow follow-
up questions. The questions are due by 5:00 p.m. next 
Wednesday.
    [The biographical information of Judge Breen, Judge Steele, 
Mr. Varlan, Mr. Stanceu, and Judge Horn follow.] 
[GRAPHIC] [TIFF OMITTED] 90303.212

[GRAPHIC] [TIFF OMITTED] 90303.213

[GRAPHIC] [TIFF OMITTED] 90303.214

[GRAPHIC] [TIFF OMITTED] 90303.215

[GRAPHIC] [TIFF OMITTED] 90303.216

[GRAPHIC] [TIFF OMITTED] 90303.217

[GRAPHIC] [TIFF OMITTED] 90303.218

[GRAPHIC] [TIFF OMITTED] 90303.219

[GRAPHIC] [TIFF OMITTED] 90303.220

[GRAPHIC] [TIFF OMITTED] 90303.221

[GRAPHIC] [TIFF OMITTED] 90303.222

[GRAPHIC] [TIFF OMITTED] 90303.223

[GRAPHIC] [TIFF OMITTED] 90303.224

[GRAPHIC] [TIFF OMITTED] 90303.225

[GRAPHIC] [TIFF OMITTED] 90303.226

[GRAPHIC] [TIFF OMITTED] 90303.227

[GRAPHIC] [TIFF OMITTED] 90303.228

[GRAPHIC] [TIFF OMITTED] 90303.229

[GRAPHIC] [TIFF OMITTED] 90303.230

[GRAPHIC] [TIFF OMITTED] 90303.231

[GRAPHIC] [TIFF OMITTED] 90303.232

[GRAPHIC] [TIFF OMITTED] 90303.233

[GRAPHIC] [TIFF OMITTED] 90303.234

[GRAPHIC] [TIFF OMITTED] 90303.235

[GRAPHIC] [TIFF OMITTED] 90303.236

[GRAPHIC] [TIFF OMITTED] 90303.237

[GRAPHIC] [TIFF OMITTED] 90303.238

[GRAPHIC] [TIFF OMITTED] 90303.239

[GRAPHIC] [TIFF OMITTED] 90303.240

[GRAPHIC] [TIFF OMITTED] 90303.241

[GRAPHIC] [TIFF OMITTED] 90303.242

[GRAPHIC] [TIFF OMITTED] 90303.243

[GRAPHIC] [TIFF OMITTED] 90303.244

[GRAPHIC] [TIFF OMITTED] 90303.245

[GRAPHIC] [TIFF OMITTED] 90303.246

[GRAPHIC] [TIFF OMITTED] 90303.247

[GRAPHIC] [TIFF OMITTED] 90303.248

[GRAPHIC] [TIFF OMITTED] 90303.249

[GRAPHIC] [TIFF OMITTED] 90303.250

[GRAPHIC] [TIFF OMITTED] 90303.251

[GRAPHIC] [TIFF OMITTED] 90303.252

[GRAPHIC] [TIFF OMITTED] 90303.253

[GRAPHIC] [TIFF OMITTED] 90303.254

[GRAPHIC] [TIFF OMITTED] 90303.255

[GRAPHIC] [TIFF OMITTED] 90303.256

[GRAPHIC] [TIFF OMITTED] 90303.257

[GRAPHIC] [TIFF OMITTED] 90303.258

[GRAPHIC] [TIFF OMITTED] 90303.259

[GRAPHIC] [TIFF OMITTED] 90303.260

[GRAPHIC] [TIFF OMITTED] 90303.261

[GRAPHIC] [TIFF OMITTED] 90303.262

[GRAPHIC] [TIFF OMITTED] 90303.263

[GRAPHIC] [TIFF OMITTED] 90303.264

[GRAPHIC] [TIFF OMITTED] 90303.265

[GRAPHIC] [TIFF OMITTED] 90303.266

[GRAPHIC] [TIFF OMITTED] 90303.267

[GRAPHIC] [TIFF OMITTED] 90303.268

[GRAPHIC] [TIFF OMITTED] 90303.269

[GRAPHIC] [TIFF OMITTED] 90303.270

[GRAPHIC] [TIFF OMITTED] 90303.271

[GRAPHIC] [TIFF OMITTED] 90303.272

[GRAPHIC] [TIFF OMITTED] 90303.273

[GRAPHIC] [TIFF OMITTED] 90303.274

[GRAPHIC] [TIFF OMITTED] 90303.275

[GRAPHIC] [TIFF OMITTED] 90303.276

[GRAPHIC] [TIFF OMITTED] 90303.277

[GRAPHIC] [TIFF OMITTED] 90303.278

[GRAPHIC] [TIFF OMITTED] 90303.279

[GRAPHIC] [TIFF OMITTED] 90303.280

[GRAPHIC] [TIFF OMITTED] 90303.281

[GRAPHIC] [TIFF OMITTED] 90303.282

[GRAPHIC] [TIFF OMITTED] 90303.283

[GRAPHIC] [TIFF OMITTED] 90303.284

[GRAPHIC] [TIFF OMITTED] 90303.285

[GRAPHIC] [TIFF OMITTED] 90303.286

[GRAPHIC] [TIFF OMITTED] 90303.287

[GRAPHIC] [TIFF OMITTED] 90303.288

[GRAPHIC] [TIFF OMITTED] 90303.289

[GRAPHIC] [TIFF OMITTED] 90303.290

[GRAPHIC] [TIFF OMITTED] 90303.291

[GRAPHIC] [TIFF OMITTED] 90303.292

[GRAPHIC] [TIFF OMITTED] 90303.293

[GRAPHIC] [TIFF OMITTED] 90303.294

[GRAPHIC] [TIFF OMITTED] 90303.295

[GRAPHIC] [TIFF OMITTED] 90303.296

[GRAPHIC] [TIFF OMITTED] 90303.297

[GRAPHIC] [TIFF OMITTED] 90303.298

[GRAPHIC] [TIFF OMITTED] 90303.299

[GRAPHIC] [TIFF OMITTED] 90303.300

[GRAPHIC] [TIFF OMITTED] 90303.301

[GRAPHIC] [TIFF OMITTED] 90303.302

[GRAPHIC] [TIFF OMITTED] 90303.303

[GRAPHIC] [TIFF OMITTED] 90303.304

[GRAPHIC] [TIFF OMITTED] 90303.305

[GRAPHIC] [TIFF OMITTED] 90303.306

[GRAPHIC] [TIFF OMITTED] 90303.307

[GRAPHIC] [TIFF OMITTED] 90303.308

[GRAPHIC] [TIFF OMITTED] 90303.309

[GRAPHIC] [TIFF OMITTED] 90303.310

[GRAPHIC] [TIFF OMITTED] 90303.311

[GRAPHIC] [TIFF OMITTED] 90303.312

[GRAPHIC] [TIFF OMITTED] 90303.313

[GRAPHIC] [TIFF OMITTED] 90303.314

[GRAPHIC] [TIFF OMITTED] 90303.315

[GRAPHIC] [TIFF OMITTED] 90303.316

[GRAPHIC] [TIFF OMITTED] 90303.317

[GRAPHIC] [TIFF OMITTED] 90303.318

[GRAPHIC] [TIFF OMITTED] 90303.319

[GRAPHIC] [TIFF OMITTED] 90303.320

[GRAPHIC] [TIFF OMITTED] 90303.321

    Senator Sessions. If there are no other matters, we will 
stand adjourned.
    [Whereupon, at 12:38 p.m., the Committee was adjourned.]
    [Additional material is being retained in the Committee 
files.]
    [Questions and answers and submissions for the record 
follow.]
[GRAPHIC] [TIFF OMITTED] 90303.322

[GRAPHIC] [TIFF OMITTED] 90303.323

[GRAPHIC] [TIFF OMITTED] 90303.324

[GRAPHIC] [TIFF OMITTED] 90303.325

[GRAPHIC] [TIFF OMITTED] 90303.326

[GRAPHIC] [TIFF OMITTED] 90303.327

[GRAPHIC] [TIFF OMITTED] 90303.328

[GRAPHIC] [TIFF OMITTED] 90303.329

[GRAPHIC] [TIFF OMITTED] 90303.330

[GRAPHIC] [TIFF OMITTED] 90303.331

[GRAPHIC] [TIFF OMITTED] 90303.332

[GRAPHIC] [TIFF OMITTED] 90303.333

[GRAPHIC] [TIFF OMITTED] 90303.334

[GRAPHIC] [TIFF OMITTED] 90303.335

[GRAPHIC] [TIFF OMITTED] 90303.336

[GRAPHIC] [TIFF OMITTED] 90303.337

[GRAPHIC] [TIFF OMITTED] 90303.338

[GRAPHIC] [TIFF OMITTED] 90303.339

[GRAPHIC] [TIFF OMITTED] 90303.340

[GRAPHIC] [TIFF OMITTED] 90303.341

[GRAPHIC] [TIFF OMITTED] 90303.342

[GRAPHIC] [TIFF OMITTED] 90303.343

[GRAPHIC] [TIFF OMITTED] 90303.344

[GRAPHIC] [TIFF OMITTED] 90303.345

[GRAPHIC] [TIFF OMITTED] 90303.346

[GRAPHIC] [TIFF OMITTED] 90303.347

[GRAPHIC] [TIFF OMITTED] 90303.348

[GRAPHIC] [TIFF OMITTED] 90303.349

[GRAPHIC] [TIFF OMITTED] 90303.350

[GRAPHIC] [TIFF OMITTED] 90303.351

[GRAPHIC] [TIFF OMITTED] 90303.352

[GRAPHIC] [TIFF OMITTED] 90303.353

[GRAPHIC] [TIFF OMITTED] 90303.354

[GRAPHIC] [TIFF OMITTED] 90303.355

[GRAPHIC] [TIFF OMITTED] 90303.356

[GRAPHIC] [TIFF OMITTED] 90303.357

[GRAPHIC] [TIFF OMITTED] 90303.358

[GRAPHIC] [TIFF OMITTED] 90303.359

[GRAPHIC] [TIFF OMITTED] 90303.360

[GRAPHIC] [TIFF OMITTED] 90303.361

[GRAPHIC] [TIFF OMITTED] 90303.362

[GRAPHIC] [TIFF OMITTED] 90303.363

[GRAPHIC] [TIFF OMITTED] 90303.364

[GRAPHIC] [TIFF OMITTED] 90303.365

[GRAPHIC] [TIFF OMITTED] 90303.366

[GRAPHIC] [TIFF OMITTED] 90303.367

[GRAPHIC] [TIFF OMITTED] 90303.368

[GRAPHIC] [TIFF OMITTED] 90303.369

[GRAPHIC] [TIFF OMITTED] 90303.370

[GRAPHIC] [TIFF OMITTED] 90303.371



 NOMINATIONS OF CORMAC J. CARNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE 
CENTRAL DISTRICT OF CALIFORNIA; JAMES V. SELNA, NOMINEE TO BE DISTRICT 
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; VICTOR J. WOLSKI, NOMINEE 
  TO BE JUDGE FOR THE UNITED STATES COURT OF FEDERAL CLAIMS; THERESA 
    LAZAR SPRINGMANN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN 
DISTRICT OF INDIANA; PHILIP P. SIMON, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE NORTHERN DISTRICT OF INDIANA; MARY ELLEN COSTER WILLIAMS, NOMINEE 
 TO BE JUDGE FOR THE UNITED STATES COURT OF FEDERAL CLAIMS; RICARDO H. 
    HINOJOSA, NOMINEE TO BE SENTENCING COMMISSIONER; AND MICHAEL E. 
            HOROWITZ, NOMINEE TO BE SENTENCING COMMISSIONER

                              ----------                              


                       WEDNESDAY, MARCH 12, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:05 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Saxby 
Chambliss, presiding.
    Present: Senators Chambliss, Feinstein, Cornyn, Feingold, 
and Schumer.

OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM 
                      THE STATE OF GEORGIA

    Senator Chambliss. The Committee will come to order. It is 
my pleasure to welcome to the Committee this afternoon eight 
outstanding nominees. This is the first time I have had the 
privilege of chairing a hearing before the Senate Judiciary 
Committee and I, for one, am pleased that this is a 
confirmation hearing.
    One of the most important responsibilities that we have as 
Senators is to exercise our constitutional duty of advice and 
consent. As yesterday's floor debate illustrates, there is 
substantial disagreement among us about what precisely the 
Constitution demands in the fulfillment of that duty, but I 
have no doubt that each and every member of the United States 
Senate takes that responsibility just as seriously as I do. 
This is why it is a particular honor for me to be here today 
chairing this hearing.
    Whether by design or by default, it seems that this hearing 
is structured in pairs. We have before us two nominees for the 
Central District of California, two for the Northern District 
of Indiana, two for the U.S. Court of Federal Claims, and two 
for the U.S. Sentencing Commission.
    I know that for our first panel of witnesses, we will have 
many things to say about the superb qualification of the 
nominees, so I will keep my remarks brief.
    Let me first say a word or two about our first four 
District Court nominees, three of whom are sitting judges. Our 
nominees for the Central District of California are Cormac 
Carney and James Selna, who are both Orange County Superior 
Court judges. Judge Carney and Judge Selna have another 
experience in common. They were both partners in the 
prestigious law firm of O'Melveny and Myers before entering 
judicial service. While their confirmation will bring a wealth 
of experience to the Federal bench, it will undoubtedly inflict 
a loss upon the State bench.
    The nominees for the Northern District of Indiana are 
Philip Simon and Theresa Springmann. Mr. Simon has already 
spent the bulk of his career in public service as a Federal 
prosecutor. Given the high volume of criminal cases our Federal 
courts handle, this experience will no doubt serve him well.
    Judge Springmann began her legal career as a law clerk for 
a judge on the very court she now seeks to join. She has 
extensive experience on both sides of the bench, first as a 
lawyer in private practice, and then as a Federal magistrate 
judge.
    In addition to our four district nominees, we will consider 
two more judicial nominees, these for the Court of Claims. This 
court hears most of the high-dollar lawsuits against the 
Federal Government. Our first Court of Claims nominee is Mary 
Ellen Coster Williams, who has been an Administrative Judge on 
the General Services Administration Board of Contract Appeals 
since 1989. Prior to that, she worked for 8 years in private 
practice and for more than 3 years as an Assistant United 
States Attorney, where she gained valuable experience handling 
matters involving government contracts, employment law, torts, 
and commercial litigation.
    Like Judge Williams, Victor Wolski comes to us with 
excellent qualifications. He has worked as a law clerk for a 
Federal district judge and as an attorney in both private 
practice and public service. His career includes a stint as a 
Capitol Hill staffer, and I am told that many of his fellow 
staffers are here today in support of his nomination. I am 
confident that he will make a fine addition to the Court of 
Claims.
    Our final panel of the day will consist of two nominees for 
the Sentencing Commission, which sets sentencing practices and 
policies for the Federal courts. Judge Ricardo Hinojosa has 
served as Federal District Court Judge for 20 years and has 
presided over hundreds of sentencing proceedings. This is an 
important perspective to bring to the Commission.
    Michael Horowitz served in the Criminal Division of the 
Department of Justice in both the Clinton and President Bush 
administrations, and prior to that as a Federal prosecutor in 
Manhattan. He already has familiarity with the operation of the 
Sentencing Commission since he presently serves as a member of 
its advisory group.
    This is obviously an incredibly talented group of nominees 
before us today. I commend President Bush for nominating them 
and I look forward to hearing their testimony.
    Our first panel is a very distinguished group of Senators, 
and you know since they are all colleagues of mine, I would 
love to put them all under oath and ask them a few questions 
about some issues that I would like to know about--
    [Laughter.]
    Senator Chambliss. --but we always exempt this panel from 
being put under oath.
    Senator Feinstein, I know, has another commitment and we 
have agreed that she will go first, so Senator Feinstein, we 
look forward to hearing from you.

 PRESENTATION OF JAMES V. SELNA AND CORMAC J. CARNEY, NOMINEES 
TO BE DISTRICT JUDGES FOR THE CENTRAL DISTRICT OF CALIFORNIA BY 
    HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF 
                           CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman. In 
particular, I am here to make a few comments about two 
California judges, both of them to be District Court Judges for 
the Central District of California, and in no particular order, 
the first one I will introduce is Judge Selna.
    Judge Selna passed through the screening committee, as did 
the second judge, Judge Carney, with a unanimous six-zero vote. 
The Committee gave him a rating of ``exceptionally well 
qualified.'' As you know, Mr. Chairman, the Committee is 
composed of three Republicans and three Democrats, so they have 
to agree, and all six did agree on this.
    Judge Selna is joined today by his wife Harriet and 
daughter Christine. He has impressive academic and legal 
credentials. He graduated Phi Beta Kappa from my alma mater, 
Stanford, in 1967, where he was Editor-in-Chief of the Stanford 
Daily. Now, this is the only thing that makes me question his 
credentials--
    [Laughter.]
    Senator Feinstein. --because when I went to Stanford, the 
Daily was a very controversial Daily, and now I assume under 
his Editor-in-Chief, it is much more mild than it was in my 
days.
    Three years later, he obtained his law degree at Stanford, 
earning the Order of the Coif. He also received the Urban 
Sontheimer Prize for graduating second in his class. After a 
brief stint in the military, Judge Selna joined the Los Angeles 
law firm of O'Melveny and Myers, where he has practiced law for 
25 years. He specialized in litigating complex commercial 
disputes, typically involving high-tech issues and companies. 
He also developed an expertise in antitrust and trade 
regulation, as well as trade secret law.
    After a highly successful career in private practice, he 
was appointed to the Superior Court in 1998 and he has served 
with distinction on that bench and enjoys great respect from 
the trial bar.
    I would put the rest of my statement, if I may, not to take 
more time on this distinguished individual, in the record, and 
will go quickly to Judge Carney.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Senator Feinstein. Judge Carney is joined here today by his 
wife, Mary Beth, his son, Thomas, age 13, his son, John, a 
fifth grader, and his daughter, Claire, age nine. His father 
and his mother and his sister are here today, as well. Perhaps 
you could all stand and we will welcome you, since you are such 
a nice large family. We are delighted to have you here today.
    [Applause.]
    Senator Feinstein. Now, this judge also comes before this 
Committee with impressive credentials. He received his 
undergraduate degree from UCLA Cum Laude in 1984. While at 
UCLA, he played varsity football and earned all-American 
recognition. After playing 1 year of professional football in 
the United States Football League, Judge Carney attended 
Harvard Law School and obtained his law degree in 1987. An all-
American from Harvard--that is wonderful.
    Judge Carney spent his entire legal career in the private 
sector until he was appointed to the Superior Court in 2001. 
From 1987 to 1991, Judge Carney worked as an associate at the 
firm of Latham and Watkins, where he practiced business 
litigation on behalf of Fortune 500 companies. He subsequently 
moved into another prestigious Los Angeles firm, O'Melveny and 
Myers, and became a partner in the firm. He remained there 
until his appointment to the Superior Court.
    Again, I have a list of very qualified people, appellate 
justices recommending him very strongly, and I will put those 
in the record, Mr. Chairman.
    I thank you and I thank my colleagues for the courtesy. I 
serve on five committees and 12 subcommittees and I have found 
that it is a full deck of cards, so thank you very much.
    Senator Chambliss. Thank you, and on all five of those 
committees, she is a good one, too.
    Senator Feinstein. Thank you.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Senator Chambliss. Senator Lugar?

 PRESENTATION OF PHILIP P. SIMON AND THERESA LAZAR SPRINGMANN, 
  NOMINEES TO BE DISTRICT JUDGES FOR THE NORTHERN DISTRICT OF 
INDIANA BY HON. RICHARD G. LUGAR, A U.S. SENATOR FROM THE STATE 
                           OF INDIANA

    Senator Lugar. Thank you very much.
    Senator Chambliss. We are pleased to have you here.
    Senator Lugar. I appreciate, Mr. Chairman, your chairing 
this meeting and it is a real pleasure to present to the Senate 
Judiciary Committee two outstanding District Court nominees 
from the Northern District of Indiana. I would like to thank 
especially Chairman Orrin Hatch and Ranking Member Pat Leahy 
for holding this hearing and moving so quickly on these 
nominations.
    Early last year, Judge William Lee and Judge James Moody 
informed me of their decisions to assume senior status after 
distinguished careers of public service. Both of these 
individuals are remarkable leaders on the Federal bench and I 
applaud their leadership for Indiana and to the legal 
profession.
    Immediately upon hearing of these decisions, I notified the 
White House and was asked by the President to help find the 
most qualified candidates to fill these two important positions 
in Hammond and Fort Wayne, Indiana. I took this role very 
seriously and selected the candidates who would best serve the 
Northern District of Indiana, and after sharing these 
selections with my friend and colleague, Senator Evan Bayh, I 
submitted the names and applications of three outstanding 
candidates to the White House for their consideration. The 
President recently selected Assistant United States Attorney 
Philip Simon and United States Magistrate Theresa Springmann.
    Philip Simon is joined here today by his wife, Jane; his 
children, Claire, Matthew, and Sarah; his parents, Robert and 
Bonnie Simon; and his mother-in-law, Sally Mayes. I am very 
pleased they were able to come to today's hearing and I would 
like to recognize them if they would stand. Thank you.
    [Applause.]
    Senator Lugar. Philip Simon has a remarkable record as an 
Assistant United States Attorney. As Chief of the Criminal 
Division, he is responsible for overseeing all criminal 
prosecutions in the Northern District of Indiana. He has 
supervised and participated in prosecutions involving large-
scale drug distribution rings, illegal firearms trafficking, 
white collar fraud cases, environmental crime, and mob-related 
racketeering cases. In addition, he is in charge of a public 
corruption task force in Lake County, Indiana.
    Philip has been the recipient of a number of awards and 
commendations. In 1995, the Mutual Insurance Companies of 
Indiana presented the Sherlock Award to Philip for his work to 
combat insurance fraud. In 1999, Philip was given the 
Director's Award by Janet Reno, the highest award given to an 
Assistant United States Attorney by the Justice Department.
    Aside from his outstanding public service, he is a 
dedicated community leader with an interest in assisting 
children and families with autism.
    Judge Theresa Springmann is joined here today by her 
husband, David; her two sons, Gus and Tony; and by her mother, 
Mary Lazar. I would like to recognize their appearance here 
today and ask them to stand for your recognition.
    [Applause.]
    Senator Lugar. Theresa was the first woman to be made 
partner at Spangler, Jennings, and Dougherty, the largest law 
firm in Northwest Indiana. She followed up this distinction by 
becoming the first woman judicial officer in the Northern 
District of Indiana. Judge Springmann has served as United 
States Magistrate Judge since March of 1995, where she has 
presided over 30 civil jury trials, ten civil and criminal 
bench trials, and conducted over 300 settlement conferences for 
the District Court.
    She has received a number of high performance ratings 
throughout her tenure as a magistrate judge, including the 
``AV'' rating from Martindale-Hubbell and the highest judicial 
rating from the Lake County Bar Association. Like Philip Simon, 
she is involved in a number of community activities and civic 
organizations.
    I want to thank again you, Mr. Chairman, for conducting the 
hearing, the Chairman and Ranking Member for these 
opportunities to present these two outstanding nominees to the 
committee. I believe they will demonstrate remarkable 
leadership in Northern Indiana and will appropriately hold and 
defend our laws under the Constitution. I thank the chair.
    Senator Chambliss. Thank you, Mr. Chairman.
    We are also pleased to have your colleague, Senator Evan 
Bayh, here with us. Senator Bayh, we look forward to hearing 
from you.

 PRESENTATION OF PHILIP P. SIMON AND THERESE LAZAR SPRINGMANN, 
  NOMINEES TO BE DISTRICT JUDGES FOR THE NORTHERN DISTRICT OF 
  INDIANA BY HON. EVAN BAYH, A U.S. SENATOR FROM THE STATE OF 
                            INDIANA

    Senator Bayh. Thank you very much, Mr. Chairman. I, too, 
would like to thank you and your colleagues on the Committee 
for moving sos expeditiously with regard to these nominees and 
I hope you will share our gratitude with Chairman Hatch and 
Ranking Member Leahy for your quick work in this regard. We are 
very grateful.
    I would also like to thank my friend and colleague, Senator 
Lugar. He has been, as always, the embodiment of comity and 
reason during this process. As he described, he established a 
procedure early on for narrowing the number of applicants down 
to a final number. He called me into his office, personally 
reviewed the qualifications with me before forwarding all of 
the names to the White House, and so I would just like to say, 
Mr. Chairman, while the recommendations to the President were 
his, I felt fully consulted throughout this process, and for 
that, I am most grateful to Senator Lugar.
    I am pleased, Mr. Chairman, to lend my wholehearted and 
unqualified support to these nominees. Theresa Springmann and 
Philip Simon will be outstanding jurists in the finest 
tradition of our Federal judiciary. Both have outstanding 
academic credentials, having graduated from fine Indiana legal 
institutions. Both have extensive legal and public service 
backgrounds, one first as a clerk in the Federal courts and now 
as a U.S. Magistrate, the other as a longtime Federal 
prosecutor with an exemplary record. Both have been rated 
highly qualified by the American Bar Association.
    So, Mr. Chairman, it is without reservation and with a full 
heart that I support these nominees. I thank the Committee for 
your indulgence, and again my colleague, Senator Lugar, for his 
courtesy.
    Senator Chambliss. We thank you very much for being here 
and we look forward to hearing from these nominees.
    Our dear friend and my Committee Chairman on the Armed 
Services Committee, Senator Warner. We are pleased to have you 
with us today and look forward to hearing from you.

 PRESENTATION OF VICTOR J. WOLSKI, NOMINEE TO BE JUDGE FOR THE 
UNITED STATES COURT OF FEDERAL CLAIMS BY HON. JOHN W. WARNER, A 
            U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. Thank you very much, Mr. Chairman. It is a 
pleasure to see you in the chair there, presiding. I have got 
to keep an eye on you in my committee. You are so enthusiastic, 
you might try and bump me out one of these days.
    [Laughter.]
    Senator Warner. Mr. Chairman and members of the committee, 
as I listened to my colleagues here and the summary by the 
distinguished Chairman of the nominees today, I thought how 
fortunate we are as citizens of this great nation to have a 
President who has very, very carefully gone into the selection 
process and made these splendid selections.
    My dear friend and co-equal partner here in the Senate, 
Senator Allen, and I have the privilege today of introducing 
Victor Wolski for nomination as a judge on the United States 
Court of Federal Claims. I would ask, Mr. Chairman, that my 
entire statement be placed in the record and Senator Allen and 
I are going to share on the distinguished background of this 
individual in our introduction.
    Senator Chambliss. Certainly, we will do that.
    Senator Warner. As you may know, the Federal Court of 
Claims is an Article I court that is authorized to hear 
primarily money claims founded upon the Constitution, Federal 
statutes, executive regulations, or contracts with the United 
States. Twenty-five percent of the cases before this court 
involve complex tax issues. The judges on this court serve for 
a term of 15 years. In my view, Mr. Wolski's background makes 
him well qualified to be a member of this specialized court. He 
has had extensive training in a broad range of areas and most 
particularly the emphasis on taxation.
    He graduated from the University of Virginia, where my 
distinguished colleague and I were privileged to graduate, and 
then went on to serve as a Federal law clerk for a U.S. 
District judge sitting in California. Subsequent to his 
clerkship, Mr. Wolski worked for 5 years as a litigator for the 
nonprofit Pacific Legal Foundation.
    He then came to Capitol Hill, where he served for 3 years 
as tax counsel for Senator Connie Mack. I was privileged to 
serve throughout the tenure of Senator Mack here in the Senate 
and few attained the recognition and the respect on both sides 
of the aisle as did our dear friend Senator Mack, who is still 
very active. I saw him just the other day. But his heart is 
still here in the Senate, and for this fine man to have been 
selected by that outstanding member of the United States Senate 
says a lot about Mr. Wolski's credentials.
    After leaving Senator Mack's office, Mr. Wolski joined the 
Washington, D.C. law firm of Cooper and Kirk and he currently 
works at that firm, practicing law in a number of diverse areas 
including consitutional law, land use regulations, and tax law.
    Clearly, Mr. Chairman and members of the committee, he is 
eminently qualified and I heartily give my unqualified 
endorsement to this distinguished nominee.
    Senator Chambliss. Thank you very much.
    Senator Chambliss. We are very pleased that you brought 
along your sidekick and my good friend, Senator George Allen.
    Senator Warner. Oh, yes.
    Senator Chambliss. Senator Allen, we are glad you are here 
and look forward to hearing from you.
    Senator Warner. When it got to that all-American 
qualification in one of the nominees--
    Senator Chambliss. He got excited, didn't he?
    Senator Warner. --he jumped six inches out of his seat over 
here.
    [Laughter.]
    Senator Chambliss. He may sign him up as a Redskin here 
before he leaves.
    Senator Warner. His heart is still to become a football 
player. I mean, he has tried several times in college, but you 
will make it one of these days.
    [Laughter.]

 PRESENTATION OF VICTOR J. WOLSKI, NOMINEE TO BE JUDGE FOR THE 
UNITED STATES COURT OF FEDERAL CLAIMS BY HON. GEORGE F. ALLEN, 
           A U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Allen. Well, I am glad I am here, Mr. Chairman, and 
thank you all. It is wonderful to be with Senator Feingold, 
Senator Cornyn, and it is my pleasure to be introducing and 
support my colleague, Senator Warner, in support of Victor 
Wolski of Virginia to be judge for the U.S. Court of Federal 
Claims.
    I do think Judge Carney would be great. He was in the USFL. 
My father coached in the USFL. He played with Reggie White and 
Pepper Rogers coached him, and you know Rogers was at Georgia 
Tech, so that should give you a few added points for Judge-to-
be Carney.
    Senator Chambliss. And the Falcons need some help. He looks 
like he is still in pretty good shape, George.
    [Laughter.]
    Senator Warner. Well, let's kill the nomination and send 
him back, then.
    [Laughter.]
    Senator Allen. I have to look out for the Rangers these 
days. At any rate, back to the matter at hand, Victor Wolski.
    Victor Wolski is someone who I knew when I was in the House 
of Delegates in the Charlottesville area. He was a law student 
at the University of Virginia School of Law and that is when I 
first got to know him. That was probably before his life was 
made much better by his bride, Lisa, who is here with him, as 
well as his mother, Jean, of course, who brought him into this 
world. And so if Lisa and Jean are here, I would ask that they 
would arise and be recognized by the committee.
    [Applause.]
    Senator Allen. Mr. Chairman, I am happy to report in the 
years since he left the University of Virginia, Mr. Wolski has 
distinguished himself as a leader in the legal profession and 
also as an accomplished legislative aide and, obviously, a very 
well qualified nominee. He served as general counsel to the 
Joint Economic Committee in the 106th Congress and later as tax 
counsel, as Senator Warner said, to Senator Mack.
    During his time on Capitol Hill, Mr. Wolski worked closely 
with staff on both sides of the aisle to advance Senator Mack's 
bipartisan tax agenda, which was a wide variety of bills 
covering many areas of the tax code, including low-income 
housing tax credit, the District of Columbia's first-time home 
buyer tax credit, defense industry taxation, capital gains 
taxes, and the research and development tax credit.
    He established himself not just as a man of good ideas, but 
also one who could work on the tax code in a variety of issues 
with people on both sides of the aisle. As Senator Warner 
talked about his experience in the private sector with a law 
firm, what you have here before you, Mr. Chairman and members 
of the committee, is an outstanding individual with legislative 
experience, litigation experience, with a proper balanced 
perspective for the issues that come before this court and I am 
confident he will make an outstanding judge and he has my 
highest recommendation and I request that you move as quickly 
as possible for his confirmation.
    Thank you all for your indulgence and your care.
    Senator Chambliss. I thank both of you very much, and we 
look forward to hearing from your nominee.
    Senator Hutchison, we are glad to have you with us and we 
look forward to hearing from you.

   PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED 
STATES SENTENCING COMMISSIONER BY HON. KAY BAILEY HUTCHISON, A 
              U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Hutchison. Mr. Chairman, I am here to introduce 
Judge Ricardo Hinojosa. He has been my friend for a long time. 
He has served as a U.S. District Judge for the Southern 
District of Texas in McAllen for nearly 20 years and he is 
nominated today for the U.S. Sentencing Commission.
    Judge Hinojosa sentences an astounding 400 people per year. 
The average is only 70 people per year. He earned his law 
degree from Harvard in 1975 and served a year as a briefing 
attorney for the Texas Supreme Court, and then returned to the 
Rio Grande Valley to practice law for 7 years.
    Over the years, Judge Hinojosa has received numerous honors 
and awards for his leadership and community service, including 
being named one of the 100 Most Influential Hispanics in the 
country by Hispanic Business Magazine in 1984 and 1985. He 
received the 2001 Distinguished Alum Award from the University 
of Texas Students' Association, and he is a former President of 
that association. He also teaches at the University of Texas 
Law School as an adjunct professor, teaching sentencing.
    His outstanding term of service on the Federal Court system 
certainly qualify him to serve on this Sentencing Commission 
and I do hope that you will be able to put his nomination 
through in an expedited way. He is a wonderful person, a friend 
that I have known personally for a long time working with him 
in the UTX Students' Association, excusing me, Senator Cornyn, 
who is a Baylor graduate--no, Trinity graduate, excuse me. But 
anyway, he is a longtime friend and would be great in this 
position.
    Senator Chambliss. And he couldn't have a better 
recommendation than coming from you. Thank you very much, 
Senator Hutchison.
    Senator Hutchison. Thank you.
    Senator Chambliss. Senator Cornyn, we are pleased to have 
you as a member of the panel to give your recommendation on 
Judge Hinojosa.

   PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED 
  STATES SENTENCING COMMISSIONER BY HON. JOHN CORNYN, A U.S. 
                SENATOR FROM THE STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman, and I would like 
to add my voice to that of my colleague, the Senior Senator 
from Texas.
    I have learned in the short time that I have been in the 
United States Senate the truism that while everything has been 
said, not everybody has said it yet, so really, I don't want to 
repeat what Senator Hutchison has said because she has done a 
good job of talking about Judge Hinojosa's qualifications for 
this important job. But, of course, if I wasn't here, then I 
would have to explain to my friend, Judge Hinojosa, why I 
wasn't here adding my voice in support of his nomination and 
people might get the wrong idea, so I am delighted to be here 
with Senator Hutchison to recommend to the Judiciary Committee 
and hope that we will act promptly to vote this nomination out 
to the full floor and have Judge Hinojosa confirmed as one of 
the newest members of the United States Sentencing Commission.
    Judge Hinojosa, as Senator Hutchison has observed, knows 
about sentencing because he does it daily. While guilt is 
rarely in doubt in many of the cases that come before a Federal 
District Judge, sentencing is one of those things that weighs 
most heavily on the minds and the hearts of judges because they 
know the consequences of their judgment.
    And so the Sentencing Commission was created, of course, to 
give some uniformity, some standard guidelines that would allow 
judges to assess proper punishment in those cases where guilt 
is already established. It is, I think, important to have 
judges like Judge Hinojosa, who are experienced, who know how 
it works in real-life application, because, of course, they are 
writing the rules that have to be applied by judges all across 
this country and it is important to have those who are there 
where the rubber meets the road and who understand the 
practical implications of these important guidelines.
    So in closing, let me just say how delighted I am the 
President has chosen such an outstanding individual for this 
great honor and how much I look forward to Judge Hinojosa's 
excellent service on the United States Sentencing Commission. 
Thank you.
    Senator Chambliss. Thank you, Senator Cornyn, and again, we 
look forward to the presentation of these nominees.
    At this time, we are going to ask the first panel of 
nominees, Mr. Carney, Mr. Selna, Mr. Simon, Ms. Springmann, Ms. 
Williams, and Mr. Wolski, to please come forward. Before you 
sit down, we are going to ask all of you to be sworn, and would 
you remain standing to be sworn, please. Would each of you 
raise your right hand, please.
    Do you swear the testimony you are about to give before 
this Committee will be the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Judge Carney. I do.
    Judge Selna. I do.
    Mr. Simon. I do.
    Judge Springmann. I do.
    Judge Williams. I do.
    Mr. Wolski. I do.
    Senator Chambliss. Thank you. You may be seated and we will 
put a name tag in front of you.
    We will start with you, Judge Carney, and I will ask each 
of you if you have any opening statement you wish to make, we 
will be glad to hear your opening statement. Or if you have 
your family here, even though they may have been recognized, we 
would love for you to recognize them again. So, Judge Carney, 
we will start with you.

STATEMENT OF CORMAC J. CARNEY, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE CENTRAL DISTRICT OF CALIFORNIA

    Judge Carney. Thank you, Mr. Chairman. I do not have an 
opening statement, but I would like to take you up on your 
offer to introduce my family again.
    First, if I could introduce my wife, Mary Beth. Do you want 
to stand up? And my daughter, Claire, my son, John, my son, 
Thomas, my mother-in-law, Mary Fagerson, my father, Padraig 
Carney, and my sister, Sheila Thalimer.
    Senator Chambliss. We are glad to have all of you here.
    Judge Carney. Thank you.
    Senator Chambliss. Judge Selna?

 STATEMENT OF JAMES V. SELNA, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE CENTRAL DISTRICT OF CALIFORNIA

    Judge Selna. Thank you, Mr. Chairman. My wife, Harriet, is 
here and I would like to acknowledge her, if she would stand, 
please. And our daughter, Christine, is here with us, as well. 
She is pursuing a degree in psychology while working at 
Disneyland, as well.
    With the chairman's permission, I would also like to 
acknowledge several folks who couldn't be here today, my 
brother, Terry Selna, and my sister-in-law, who live in 
Danville, California, and my courtroom staff who sent me here 
with their best wishes and wishes for good luck.
    The courtroom is a difficult place, and to run smoothly it 
requires a diligent and loyal staff and I certainly have that. 
I would like to acknowledge my court clerk, Sarah Ochoa, who is 
on pregnancy leave with her third child, my relief clerk, Larry 
Brown, my court reporter, Heidi Stewart, my courtroom 
assistant, Becky Chumpitazi, and my bailiff, Derrick Webb, and 
my research attorney, Cathy Fair. Thank you, Mr. Chairman.
    Senator Chambliss. You are a smart man, Judge. None of us 
could do without great staff.
    Mr. Wolski?

  STATEMENT OF VICTOR J. WOLSKI, NOMINEE TO BE JUDGE FOR THE 
             UNITED STATES COURT OF FEDERAL CLAIMS

    Mr. Wolski. Thank you, Mr. Chairman. Having served as a 
staffer for a member of the Senate for three-and-a-half years, 
it is always a great privilege and great pleasure to be back 
here at the United States Senate and it is a tremendous 
privilege to be sitting here rather than sitting back there, 
which is where I am used to.
    I would like to again recognize my family who is here, my 
mother, Jean, who came down from Philadelphia, and my wife, 
Lisa, who lives with me in Virginia.
    [Laughter.]
    Mr. Wolski. My brother, Charles, unfortunately wasn't able 
to make it here. He made it about a quarter of the way. He went 
from Brooklyn to Philadelphia, but then he was not feeling 
well, so I would like to acknowledge that he would have liked 
to have been here.
    Also having worked on the Hill for so many years, I have 
got a number of friends here. I don't know if I could possibly 
go through and mention them all, a lot of people who worked on 
the Joint Economic Committee staff with me for Senator Mack, 
people who worked in Senator Mack's personal office, people who 
worked for members of the Senate Finance Committee, because I 
did Senator Mack's tax work for the Finance Committee and knew 
quite a number of those.
    I would also like to acknowledge my friend, Richard Beneke 
[ph.] from college, from the University of Pennsylvania. Dick, 
do you want to stand up? Here is your chance.
    [Laughter.]
    Mr. Wolski. Also, several of my colleagues from Cooper and 
Kirk are here, and I also would like to acknowledge my friend 
and co-counsel, John Cuneo, who is also back there somewhere. I 
do appreciate the support.
    Senator Chambliss. Thank you.
    Judge Springmann?

 STATEMENT OF THERESA LAZAR SPRINGMANN, NOMINEE TO BE DISTRICT 
           JUDGE FOR THE NORTHERN DISTRICT OF INDIANA

    Judge Springmann. I have no opening statement, Mr. 
Chairman. However, I would like to introduce the family that is 
with me today.
    Senator Chambliss. Certainly.
    Judge Springmann. First, I would like to introduce my 
husband, David. We have been married for 23 years this year and 
I met him when I was a sophomore in college, so that goes back 
to age 19. He has been my number one supporter all during that 
time and in the different positions that I have held as an 
attorney and a wife and a mother.
    I would also like to introduce my mother, Betty Lazar, who 
is here. Mom? She didn't want me to say anything, but she is 
going to be celebrating her 80th birthday next month.
    Senator Chambliss. All right.
    [Applause.]
    Judge Springmann. And she was bound and determined, with a 
sore back and other things, to make it here today to be a part 
of this experience.
    I also want to introduce my two sons, my son, Tony, who is 
10 years old, and my son, Gus, who is 12 years old.
    Senator Chambliss. Guys, it is not that rough in here. You 
are all going to be okay.
    [Laughter.]
    Senator Chambliss. That was an effort for Tony to get up 
there, I could tell. We are glad to have you all.
    Judge Springmann. This has been the quietest they have been 
for this period of time in years.
    Senator Chambliss. Mr. Simon?

STATEMENT OF PHILIP P. SIMON, NOMINEE TO BE DISTRICT JUDGE FOR 
                THE NORTHERN DISTRICT OF INDIANA

    Mr. Simon. Thanks, Mr. Chairman. I also have no opening 
statement. I have quite a few people in the room I would like 
to acknowledge, as well.
    First and foremost is my wife, Jane Simon. She is a law 
clerk to a Federal judge in Chicago. My daughter, Claire, is 
sitting next to her, and my other daughter, Sarah, is also 
here. My son, Matthew, couldn't be here today. I am also 
fortunate to have my Mom and Dad here, Bob and Bonnie Simon, 
and my sister, Jeanine Swick, and her two daughters, Mary and 
Margaret, my Aunt Mary Beth Hyland, and her daughter, my 
cousin, Christina, and last but not least, the world's greatest 
mother-in-law, Sally Mays. Thank you.
    Senator Chambliss. Great.
    Judge Williams?

 STATEMENT OF MARY ELLEN COSTER WILLIAMS, NOMINEE TO BE JUDGE 
         FOR THE UNITED STATES COURT OF FEDERAL CLAIMS

    Judge Williams. Thank you, Mr. Chairman. I have no opening 
statement, but I would like to thank the Committee for 
convening this hearing.
    With me today, I am very proud to introduce my family, my 
husband of 20-plus years, Mark Calhoun Williams, who has 
encouraged me in all that I have been able to do; my son, 
Justin Williams, who is 15 years old and luckily happens to be 
on spring break from the Woodbury Forest School, so he is able 
to be with us; my daughter, Jackie Ann Williams, who is a sixth 
grader at Pyle Middle School in Montgomery County, and she is 
here with us despite the fact that it is an unexcused absence.
    [Laughter.]
    Judge Williams. Also, I am very proud to introduce my 
mother, Rosemary Coster, who has traveled here from New York to 
be with us today, as well as my brother, Joseph Gerard Coster, 
who is here from New York. Missing from our huge family are 
several other brothers and a sister. My brother John and James 
and my sister Pat are all up in New York working hard. My 
brother, Gerard, lives in Jacksonville, Florida. And my 13 
nieces and nephews are busy in school.
    But I do have several friends who are here, as well, my 
dear friends Scott and Peggy Ann Technay, and Kent Morrison and 
did Stefan Lapaskiewicz make it? Well, he may join us later. 
Thank you, Mr. Chairman.
    Senator Chambliss. Great. We are glad to have all of your 
family and friends here supporting you today.
    Senator Chambliss. I want to start with you, Judge Carney, 
and we will just go down the row, if each of you will take 
these questions. We may give you a break, Judge, and let 
somebody else go first on this end.
    First of all, each of you are nominated to be a trial 
judge, even though it may be different courts and different 
levels of court in the Federal Court system. But each of you 
are nominated as trial judges. Under what circumstances do you 
believe it appropriate for a Federal Court to declare a statute 
enacted by Congress unconstitutional? Judge Carney?
    Judge Carney. Thank you, Mr. Chairman. Obviously, with any 
statute drafted and enacted by Congress, there is a presumption 
of constitutionality. It would seem to me that I would be very 
reluctant to declare anything unconstitutional. Obviously, the 
court who should be making law or evaluating that is a court 
that is superior to me, the Ninth Circuit or the Supreme Court.
    Senator Chambliss. Judge Selna?
    Judge Selna. Clearly, the legislation which Congress passes 
begins with a presumption that it is constitutional. I think it 
is the extraordinary circumstance where a District Court would 
hold that a law passed by Congress is unconstitutional. I think 
it would require a clear deviation of the precedents--from the 
precedents of the United States Supreme Court and I think that 
is a rare circumstance.
    Senator Chambliss. Mr. Wolski?
    Mr. Wolski. Well, for the Court of Federal Claims, 
actually, the jurisdiction, I don't believe, would allow a 
judge to declare an act of Congress unconstitutional. The 
Claims Court would be able to give money damages to people. I 
guess the constitutionality of a provision could come up in 
some of the tax areas. But I agree that the acts of Congress 
that we review do have a presumption of constitutionality. 
There is a very heavy burden that somebody must--who is 
challenging that constitutionality must reach in order to carry 
the day and I would, of course, follow very carefully the 
binding precedents of both the United States Supreme Court and 
the Federal Circuit in making these determinations.
    Senator Chambliss. Judge Springmann?
    Judge Springmann. Mr. Chairman, I would concur in the 
comments of my colleagues, that when posed with that issue, you 
would first look to the statute, and particularly an act of 
Congress, and begin with the presumption that it is 
constitutional. It is very rare, indeed, that a judge, a trial 
judge would be faced with a circumstance of determining that a 
statute is unconstitutional and rule on it in a vacuum.
    A trial court must look to the precedents that have been 
set out by the United States Supreme Court as well as the 
circuit in which that trial judge sits, and in our situation, 
that would be the Seventh Circuit situated in Chicago. We would 
look to those courts for guidance in how to interpret similar 
statutes and take that guidance and apply it to that situation. 
It would, indeed, be a very rare occurrence to ever declare 
such an act of Congress unconstitutional.
    Senator Chambliss. Mr. Simon?
    Mr. Simon. Mr. Chairman, I totally agree with that. I think 
that any District Court judge has to start from the premise 
that Congress is acting in a constitutional way when it is 
passing or enacting statutes. So I would certainly start from 
that bent.
    I really believe that it would be my obligation to look to 
my circuit and the Supreme Court and follow those precedents, 
but I really feel as if that acts of Congress deserve 
considerable deference in the laws that they pass and it would 
be a very, very rare circumstance indeed where I could envision 
finding something unconstitutional.
    Senator Chambliss. Judge Williams?
    Judge Williams. Thank you, Mr. Chairman. I would echo the 
sentiments of all my colleagues up here today, especially those 
of Mr. Wolski, noting that the United States Court of Claims is 
a court of very limited jurisdiction. It would be highly 
unusual for us to be asked to judge a statute unconstitutional, 
but were we to be, I would certainly apply that strong 
presumption in favor of the constitutionality.
    Senator Chambliss. In general, Supreme Court precedents are 
binding on all lower Federal courts and Circuit Court 
precedents are binding on the District courts within the 
particular circuit. Are each of you committed to following the 
precedents of higher courts faithfully and giving them full 
force and effect, even if you personally disagree with such 
precedents?
    Judge Carney. Yes, Mr. Chairman.
    Senator Chambliss. If I can get a positive response from 
each of you.
    Judge Selna. I can give you that assurance without 
qualification, Mr. Chairman.
    Mr. Wolski. Absolutely, Mr. Chairman.
    Judge Springmann. Absolutely, Mr. Chairman.
    Mr. Simon. I concur.
    Judge Williams. Absolutely.
    Senator Chambliss. Ms. Williams, we will start with your 
end this time. There may be times when you will be faced with 
cases of first impression. What principles will guide you, or 
what methods will you employ in deciding cases of first 
impression?
    Judge Williams. Well, Mr. Chairman, in fact, I have had 
that happen to me already in my life as a judge for the last 14 
years on the Board of Contract Appeals. Back when this board 
was deciding bid protests, we had a very unusual statute and no 
one else had ever interpreted it before. Largely, the questions 
entailed questions of jurisdiction that the board had, and the 
way I approached it then and the way I think I would continue 
to approach it was to look at the clear language of the statute 
first and to attempt to understand the law that way and apply 
it and decide the case as best I could that way.
    Senator Chambliss. Mr. Simon?
    Mr. Simon. I agree. I think what a District Court judge has 
to do is to read a statute and determine, based on the plain 
meaning of the statute, using ordinary usage, or applying 
ordinary usage to the words that are in the statute, and apply 
it to the facts and circumstances of the case before you. I 
think it is fair for judges in cases of first impression to 
look to analogous situations to try to determine how or to see 
how the Supreme Court or the Seventh Circuit has addressed 
perhaps a similar situation and to try to follow that lead. But 
the guiding principle should be, what does the statute say and 
what does it mean and to apply it to your facts and 
circumstances.
    Senator Chambliss. Judge Springmann?
    Judge Springmann. With regard to a case of first 
impression, and during my tenure as a Magistrate Judge, I have 
had that situation happen in one or two cases, the standard 
principles apply in viewing such a case, and that is that you 
apply standard legal principles. You look first to see whether 
or not it is, in fact, a case of first impression by looking 
to, again, United States Supreme Court decisions, decisions 
within the circuit in which you are situated, as well as any 
other case decisions within that circuit or within our 
district.
    Likewise, if there are any analogous cases to which you 
can--which you can review and analogize the facts and legal 
principles to apply to a case of first impression, that is what 
would be appropriate for a trial court judge to do and that is 
what I would promise to do.
    Senator Chambliss. Mr. Wolski?
    Mr. Wolski. Thank you, Mr. Chairman. Certainly, I concur 
with the comments of my colleagues on this panel. When you are 
presented by a case of first impression as a judge, if the 
question deals with a statutory interpretation, you start first 
with the text of the statute, look at the language that was 
employed by Congress, use the ordinary meaning of that 
language. If it is ambiguous at all, then repair to aids such 
as legislative history, conference reports. If instead this is 
a matter that involves a contract, that would be the document 
that you would first be construing, that you would do the same, 
starting with the text.
    And then, of course, you would look carefully to see if 
there are analogous situations, try to determine what the legal 
principle that was followed by the Supreme Court and the 
Federal Circuit Court in the most analogous situations was and 
try to adapt that to the facts that are presented to you in the 
case.
    I believe that also you should read very carefully the 
briefs that are filed by both parties and look very carefully 
at the cases that they cited. That might be a very good place 
to start to try to determine analogous cases, and also, it is 
the respectful thing to do in treating very courteously the 
submissions of the parties.
    Senator Chambliss. Judge Selna?
    Judge Selna. Mr. Chairman, I agree with the hierarchy of 
analysis suggested by my colleagues. I think that it is the 
rare day when you have a truly question of first impression and 
that the farther one digs, the more likely one is to find an 
answer, going back in the case of legislation to the floor 
debates, to the reports, to try and divine, to the extent it is 
unclear from the face of the statute, what Congress had in 
mind. I think diligence will limit the number of first 
impression cases as true questions of first impression.
    Senator Chambliss. Judge Carney?
    Judge Carney. Mr. Chairman, to avoid sounding like a 
parrot, can I adopt all the answers of my colleagues here?
    [Laughter.]
    Senator Chambliss. Whatever.
    [Laughter.]
    Senator Chambliss. It certainly speeds up the process, 
Judge.
    Judge Carney. I think I will, because what they said makes 
sense to me and I agree with it.
    Senator Chambliss. Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. I would like to welcome all the witnesses 
and all your lovely families. One of the oddest parts about 
this job is that you come to a setting like this with the nice 
families and you still have a job to do, so I have to rain just 
a bit on the parade here and make a few comments about this 
hearing and the situation we are in in the Committee on 
nominations.
    I am concerned that we are proceeding with another 
nominations hearing when we have not resolved the serious 
breach of the Committee rules that took place a few weeks ago 
when we voted on Justice Deborah Cook and John Roberts. The 
entire episode came about because this Committee refused to 
schedule another hearing for those two nominees who many on the 
Committee felt were not adequately examined at the 
unprecedented hearing held on January 29 with three Circuit 
Court nominees. And yet, despite our concerns with that, there 
is a hearing scheduled just a day after this hearing on eight 
lower court nominees with Justice Priscilla Owen, who had an 
extensive hearing last year.
    I think we need to restructure our priorities on this 
committee, Mr. Chairman. We are shortchanging the Senate's 
constitutional responsibility to advise and consent on judicial 
nominees with this extraordinary case.
    Two of the nominees on the agenda today are for the 
bipartisan U.S. Sentencing Commission. It is my understanding 
that there has been no consultation at all with the Democratic 
Congressional leadership on the choice for a Democratic seat 
for this Commission. Now, this continues a disturbing pattern 
that can only lead to more delay and controversy on the floor 
for these two nominees.
    And we have two nominees to an Article I court, the Court 
of Federal Claims. This court has also traditionally been 
treated in a bipartisan manner, but again, the administration 
has chosen to break with tradition and is moving forward to 
fill all the vacancies without consulting with the Democratic 
leadership or with this committee. That, too, could cause 
delays on the floor, as well, if not in this committee.
    I note also that one of the nominees on the agenda today is 
the most recent of the nominations to that court. The other 
nominees might wonder why he has been moved to the front of the 
line, and frankly, Mr. Chairman, so do I.
    I would like to ask Mr. Wolski a few questions. 
Congratulations on your nomination.
    Mr. Wolski. Thank you, Senator.
    Senator Feingold. I am told that in 1999, you told the 
National Journal that, quote, ``Every single job I have taken 
since college has been ideologically oriented, trying to 
further my principles. I am essentially a Libertarian. I 
believe in limited government, individual liberty, and property 
rights,'' end of quote.
    I would be shocked if you told us you view this next job 
that you have been nominated to as ideologically oriented based 
on the answers that you just gave. In fact, I am sure you are 
going to assure us, and I think you really have already, that 
you would put your personal views aside and simply apply the 
law, and that is what, of course, all nominees say when they 
come before this committee, so let me ask you a few specific 
questions in light of your earlier writing.
    Do you understand why it would concern at least some 
members of this Committee that a self-professed idealogue has 
been appointed to be a judge?
    Mr. Wolski. Well, Senator, I do appreciate the question and 
I appreciate the opportunity to, if I may, qualify the remarks 
from the National Journal article.
    Senator Feingold. Go right ahead.
    Mr. Wolski. As I remember the question, and those 
particular remarks actually came from a profile of the Joint 
Economic Committee in the, I guess it's called the ``Hill 
people'' issue that comes out every 2 years, or I assume it 
comes out every 2 years, and I can say I am not certain what 
exactly language I used in discussing with the reporter, but I 
do recall the question that I was asked, which was why I was 
willing to relocate from California to come to Washington, 
D.C., to work for a Senator from Florida, which is a reasonable 
thing to inquire.
    And the sentiment I tried to express, and perhaps I didn't 
use the best words, was that unlike my colleagues at the 
University of Pennsylvania, where I was an undergraduate in the 
Wharton School, or a lot of my colleagues at the University of 
Virginia School of Law, particularly people who had District 
Court clerkships, to me, trying to get the highest-paid job 
possible was never a concern of mine. Money was never the be 
all and end all for me.
    I was very--I had a tremendous opportunity to be able to go 
to college, and the first in my family. My mother and my father 
didn't have that opportunity, and I have always felt very 
strongly that somebody should give something back to the 
community and that somebody should, when they are given such an 
opportunity and such a privilege of higher education, to do 
something good for the community. And that is why the jobs I 
have taken were jobs in the public sector, which I believe very 
strongly in, jobs in the nonprofit world, jobs that related to 
matters like tax policy, which interested me.
    And the point that I was trying to make was just that 
this--my decision to come here and work for Senator Connie 
Mack, a tremendous opportunity, very respected member of the 
Senate, to do the tax work for his Finance Committee 
responsibilities, was a tremendous opportunity that was 
consistent with my commitment to the public sector and was 
consistent with my commitment to nonprofit interests, and that 
is really the only point I wanted to make in that--
    Senator Feingold. Well, let me first say that I respect 
those comments in terms of your observations and your 
commitment to public service. I remember having a similar 
reaction at law school to what choices others were making. But 
if I could get a direct answer to the question, given that 
explanation--
    Mr. Wolski. I am sorry, Senator.
    Senator Feingold. I think that is fair, the explanation you 
gave. Let me just ask you, do you understand why it would 
concern at least some members of this Committee that a self-
professed idealogue has been appointed to be a judge?
    Mr. Wolski. Yes, I certainly can understand that and I 
guess the reason I went into the extended explanation was just 
that I don't consider myself an idealogue. I'm not somebody who 
rigidly sticks to one position. I'm not somebody who's 
inflexible. I think the people that know me and have worked 
with me on Capitol Hill could attest to that. I have worked 
closely with people in staff of Senate offices on both sides of 
the aisle on a number of bipartisan initiatives, things like 
the low-income housing tax credit or the D.C. Economic Recovery 
Act--
    Senator Feingold. Let me ask you another question. Do you 
understand the concern that some have about someone who 
proclaimed with some pride that he is a Libertarian who 
believes in limited government and property rights being 
appointed to be a judge on this particular court? Do you 
understand why it would lead to some concern?
    Mr. Wolski. Oh, certainly, Senator. I could understand why 
the first part of that might concern somebody. Again, by 
Libertarian, all that I meant was in the context of the 
economic policies that we were pursuing at the Joint Economic 
Committee to try to maintain prosperity, I had a free market 
orientation. I didn't--certainly did not mean that I was a 
Libertarian in the sense that I believe that government is bad 
and we should get rid of government. In fact, I wouldn't have 
spent so many years working in government if I believed that.
    But on the second part of that, I actually must say that it 
shouldn't concern--I think it shouldn't concern anybody that a 
nominee to the Court of Federal Claims supports the notion of 
property rights and supports the notion that there are limits 
to government, because if you think about it, there couldn't be 
a Court of Federal Claims, there couldn't be a place for 
citizens to go to get money damages against the government 
unless there was a recognition that there are property rights, 
unless there was a recognition that there were some limits to 
government--
    Senator Feingold. Well, I think there is some truth to 
that, so let me--
    Mr. Wolski. --whether that is through the Constitution or 
by the government entering into a contract.
    Senator Feingold. I think there is some truth to that. Let 
me ask it another way, then, in fairness to you. Do you agree 
that if you testified here today that you view this appointment 
to the bench as yet another opportunity to further your 
principles of limited government and property rights, that in 
that context, Senators would be justified in voting against 
your confirmation on that basis?
    Mr. Wolski. Thank you for that question, Senator. I 
certainly can assure you that I don't view the Court of Federal 
Claims as a place for somebody to be furthering any political 
or policy views that they have. It is very important in our 
society under the rule of law that judges not ever consider 
their personal views, not ever consider their personal beliefs 
or the positions that they have argued earlier as a counsel 
when they become a judge. It is a very--that is exactly the 
wrong thing to do and--
    Senator Feingold. Fair enough. Let me ask you about a 
specific case. In a brief for the Pacific Legal Foundation, 
Cargill, Inc. v. United States, you argued that it was far 
beyond Congress's power under the Commerce Clause to protect 
ponds that served as a habitat for migratory birds. In the 
brief, you described wetlands as, quote, ``puddles,'' unquote, 
and you raised concerns regarding the longstanding national 
interest in protecting migratory birds.
    In fact, this brief states, quote, ``Jurisdictions over 
puddles was justified by the Ninth Circuit on the basis that 
birds might frolic in these puddles,'' unquote. You also 
stated, quote, ``Will one fewer puddle for the birds to bathe 
in have some impact on the market for these birds,'' unquote. 
You also praised the Supreme Court for its five-to-four 
decision in United States v. Lopez for beginning to reign in 
the abuses of the Commerce power justification for acts of 
Congress.
    As you know, the Supreme Court decision in Penn Central 
requires courts to assess the importance of the governmental 
interest involved in determining if regulations affect a 
taking. If you were asked to decide a takings case that 
involved the protection of wetlands or the protection of 
migratory birds, do you believe that you could rule impartially 
and not enjoin legislation giving the government the ability to 
protect the environment? Do you continue to believe, as you 
asserted in your brief, that Federal environmental laws passed 
under authority of the Commerce Clause, such as the Clean Water 
Act, are unconstitutional?
    Mr. Wolski. Thank you for that question, Senator. At the 
outset, I would like to point out that the brief you are 
mentioning was an advocacy brief on behalf of a client. I was 
taking the position on their behalf and I obviously was living 
up to my duties to make a zealous representation of their 
interests. It is certainly no reflection of what I would do as 
a judge and it is no reflection of my personal views.
    I would point out also that in that particular case, when 
the United States Supreme Court ultimately did consider the 
issue of the Clean Water Act and what Congress intended the 
Clean Water Act to do, the Supreme Court said that whether 
migratory birds could be protected did raise significant 
constitutional issues. So it certainly wasn't a frivolous 
argument. It certainly wasn't an unreasonable argument to make 
and raise on behalf of a party.
    I can assure you, though, if I am fortunate enough to be 
confirmed to be a judge of the Court of Federal Claims that I 
will consider very seriously the important purposes of 
government behind every single regulation that anyone has based 
a takings claim upon. As you may know, the Court of Federal 
Claims actually couldn't invalidate any laws. You take as given 
that the law is legitimate. You take as given that it has got a 
good purpose. And instead, what you are doing is looking to see 
the impact on the property owner.
    As you mentioned, you are correct. Under Penn Central, I 
would certainly look at the economic impact on the property 
owner. I would certainly look at whether the government action 
interfered with reasonable investment-based expectations. And 
also, I would consider the nature and character of the 
government action. In one of the more recent Supreme Court 
cases, I believe it was the Taos Sierra case, the decision by 
Justice Stevens explains quite clearly that under the character 
and nature prong of the Penn Central test, you have got to 
consider the important interests of the government.
    Senator Feingold. But you do not go into this job believing 
that the Clean Water Act passed under the authority of the 
Commerce Clause is unconstitutional, do you?
    Mr. Wolski. No, I do not. That is--that is not the case. 
The Clean Water Act has been upheld and I certainly believe 
that that is a constitutional act.
    Senator Feingold. Thank you, Mr. Chairman, and I thank the 
witness. I know my time is up. I would just like to ask 
unanimous consent that two letters expressing concern about the 
nomination of Mr. Wolski be included in the record.
    Senator Chambliss. Without objection.
    Senator Feingold. Thank you, Mr. Chairman.
    Senator Chambliss. My friend from New York has joined us 
and we are glad to have you here, Chuck. Senator Schumer?
    Senator Schumer. Glad to be here. I have been watching it 
on TV from my office and I have enjoyed your comments.
    I also want to welcome all of the nominees here today, and 
particularly--as I understand it, Judge Williams is no longer 
from New York but hails from New York, although they didn't 
tell me where. Whereabouts, Judge?
    Judge Williams. Flushing, New York.
    Senator Schumer. Flushing? That is known as part of Queens 
to most of you--
    [Laughter.]
    Senator Schumer. --and it is where the New York Mets play 
baseball. Isn't that nice.
    Judge Williams. I must tell you that I worked at Shea as a 
young person.
    Senator Schumer. Did you?
    Judge Williams. Yes, indeed.
    Senator Schumer. I have been a Yankee fan--
    Judge Williams. Oh well.
    [Laughter.]
    Senator Schumer. --but that won't interfere with my--
    Judge Williams. Please, you can strike that comment.
    Senator Schumer. --impartiality as we look at your 
nomination.
    [Laughter.]
    Senator Schumer. I have questions of Victor Wolski. The 
other folks, you can relax.
    [Laughter.]
    Senator Schumer. Maybe you can relax, too, Mr. Wolski.
    I think my position on judges is well known. I have three 
standards in the selection of judges, excellence, in other 
words, legal excellence. You have to be really good. These are 
important jobs. Moderation, I don't like judges too far right 
or too far left because I think judges who are at the extreme 
feel so passionately about what they do that they tend to make 
law rather than interpret law, which is what the Founding 
Fathers wanted us to do. And third, diversity. I don't think 
the bench should all be white males.
    The excellence qualification, I don't have any problems 
with any of the nominees in that regard. It is the moderation 
that I am worried about with you, Mr. Wolski, because you are 
known not as somebody who is moderate, particularly on taking 
issues, but someone who has a decided point of view.
    And to me, for a nominee to just simply say, I will follow 
the law, is not sufficient, because if everyone followed the 
law in the same way, we could have a computer do our judging. 
If everyone followed the law in the same way, it wouldn't 
matter which President nominated you or what your political 
views were. You would rule cases the same. But study after 
study has shown nominees from Democratic Presidents rule 
different than nominees from Republican Presidents, and while 
there are exceptions to every rule, people's personal views 
always enter into the way they follow the law.
    So I have some concerns about your nomination, Mr. Wolski, 
given that you have been quite far over, at least in my 
judgment, on many of the issues that the Court of Claims would 
have to judge, and here is a quote from you. You have said, 
``Every single job I have taken since college has been 
ideologically oriented, trying to further my principles. I am 
essentially a Libertarian. I believe in limited government, 
individual liberty, and property rights.''
    Now, I think I believe in--I know we all believe in those 
things, too, but read in the context of what you have said and 
put up against the kind of cases you have reached out to take 
in order to advance this ideological agenda, I am pretty 
confident that your beliefs are not sort of in the shades of 
gray which most of the world really exists in.
    So first, I would like to ask you, you have said, well, I 
was representing clients and that is why I took this and this 
position when my friend from Wisconsin questioned, but on the 
other hand, you have said, ``every job I have taken has been 
ideologically oriented.'' Just tell me how you can reconcile 
those two views.
    Mr. Wolski. Thank you for the question.
    Senator Schumer. First, you did say that, right?
    Mr. Wolski. I can't be sure that those are my exact words, 
but I do remember the question and I do remember the sentiments 
I was trying to express, and as I explained earlier to Senator 
Feingold, the--maybe I didn't use the best words. First, let me 
state flat out, I don't consider myself an ideologue. I am not 
somebody who takes a rigid position on things and can't be 
flexible. People who have worked with me on Capitol Hill, I 
think know that. I have worked with people on both sides of the 
aisle, staff members for the Democrat as well as Republican 
members of the Finance Committee, on Senator Mack's bipartisan 
agenda and things like low-income housing and tax credit, the 
D.C. Economic Recovery Act, and a number of bipartisan bills.
    That particular comment, what I was trying to get--trying 
to convey was just that I have never chased the highest-paying 
job. I have never been somebody who wanted to go work on Wall 
Street, work for the big firms. I have been interested in 
public sector work. I have been interested in nonprofit work. I 
think it is very important that people do give something back 
to the community and that is how I did that. I was merely 
explaining that coming to work for Senator Mack is consistent 
with my background of having done public sector work and having 
done nonprofit work--
    Senator Schumer. And that is--
    Mr. Wolski. --and that I do believe that those things are 
important. The use of that word, it was probably a poor choice 
of words. Certainly, I recognize that now. But that is not--
that is not what I meant to convey.
    Senator Schumer. Are you saying you didn't say that?
    Mr. Wolski. I am not certain. I could have. It is possible 
I could have misspoken. That is not what I meant, though. By 
``ideological,'' I did not mean I am somebody who is an 
ideologue. I mean I am somebody who has taken public sector 
jobs and nonprofit jobs, jobs that involve public issues, idea-
oriented public issues jobs.
    And anyone who is familiar, I think, with my record over 
the last few years and who knows the sort of cases I have 
taken, I think would agree that I am not a rigid, closed-minded 
person. I am an attorney representing a class of Medicare 
beneficiaries who are suing the tobacco industry to try to 
recover reimbursement to the Medicare system.
    Senator Schumer. Let me ask you, have you taken any cases 
in the environmental law area where you have been on the other 
side, where you have been on the so-called non-taking side or 
the environmental side?
    Mr. Wolski. Well, yes, Senator. As a matter of fact, I have 
been involved in two over the last few years. In fact, the only 
land use matter that I have been involved with in the last 6 
years has been on the side of local governments who were trying 
to prevent commercial development from taking place near them. 
The county had approved the development and they thought that 
there were going to be traffic and safety problems and they 
wanted to stop it. We looked at that for them. That was 
something I worked on--
    Senator Schumer. What case was that? Was that a case that 
was litigated?
    Mr. Wolski. We ended up not filing any Federal action on 
it, but we looked at it and did the legal work for the--
actually, for some towns in New York.
    Senator Schumer. Which towns were those? Not Flushing, I 
presume.
    [Laughter.]
    Senator Schumer. No, they don't have a legal--
    Mr. Wolski. No, towns in Westchester County.
    Senator Schumer. Okay. If you can get us some information 
on that, I would like to know some details about that so I can 
figure that out.
    Mr. Wolski. Certainly. Certainly. But in any event, that 
was a case in which, obviously, the side we were on was seeking 
to prevent commercial development.
    Senator Schumer. Right.
    Mr. Wolski. Another instance is my representation for the 
State of Nevada in its efforts to resist the placement of a 
nuclear repository in Yucca Mountain, and in this particular 
matter, I think that probably every single environmental group 
in the country, at least that I am aware of, is on our side, is 
on the side I am taking. And those are two examples.
    Senator Schumer. Okay, thanks. I still, I think you are 
going to have a hard time saying, ``I meant I enjoyed public 
service when I said every single job I have taken since college 
has been ideologically oriented, trying to further my 
principles. I am essentially a Libertarian. I believe in 
limited government, individual liberty, and property rights.'' 
It strikes me as if you wanted to say, ``I want to serve the 
public and I enjoy being in public service,'' it wouldn't have 
quite come out that way, but let me ask you another one.
    Mr. Wolski. Sure.
    Senator Schumer. This is a letter that you wrote in 1992. 
It is a letter to the editor to the San Francisco Examiner, and 
this is signed by Victor Wolski, Victor J. Wolski. It says, 
``Admitted, it is''--you are talking about the electoral 
college. ``Don't trash States' roles in the electoral college 
system,'' and then you go on to talk about the electoral 
college, and the final paragraph reads as follows.
    ``Admittedly, it is ironic in all of these years when 
people are thoroughly disgusted with a rogue Congress''--this 
was 1992--``that raises taxes, raises spending, raises its 
pay''--by the way, are you against pay raises for Congress 
members?
    Mr. Wolski. Not any more, Senator.
    [Laughter.]
    Senator Schumer. Not any more. They are tied to judges' 
salaries, you might know.
    [Laughter.]
    Senator Schumer. ``--and is so used to the unconstrained 
use of other people's money that its members don't bother to 
balance their own checkbooks. We might see the Presidential 
election decided in the House. However, there are two silver 
linings. Many of the current bums will be gone, and the 
importance of the individual States in our system of government 
will be underscored.'' Did you write that?
    Mr. Wolski. I certainly--I do remember writing a letter to 
the editor. I think that was in response to, was it Chris 
Matthews' column, I believe?
    Senator Schumer. Yes, it was, because you mentioned Chris 
Matthews being upset to have discovered any vestige of State 
sovereignty. So it was. What do you think of those words 11 
years later?
    Mr. Wolski. I certainly think the use of hyperbole was a 
bit much. I meant--certainly didn't mean to--didn't mean any 
disrespect to you as a member of the House at that time, 
Senator.
    [Laughter.]
    Senator Schumer. You mean I wasn't one of the current bums?
    [Laughter.]
    Mr. Wolski. No, no. Even though I am a Mets fan and you are 
a Yankees fan, no.
    Senator Schumer. Well, the Dodgers were known as the bums, 
frankly.
    Mr. Wolski. That was my father's team.
    [Laughter.]
    Senator Schumer. Well, go ahead. Why don't you elaborate a 
little and tell me what you think of this. Again, it strikes me 
as somebody who has a passion on one side of the fence. That is 
not a bad thing. I just am not sure it is the right place for a 
judge. So do you want to say anything else about that?
    Mr. Wolski. Senator, just that I--among the principles that 
I do believe in is the notion of judicial restraint, and I 
believe very strongly that a judge should not try to make law, 
that a judge should not try to make policy. I particularly 
appreciate that having served here in Congress. If I had served 
in Congress before I had written that letter, I am sure that 
the tone would have been different. In fact, I probably 
wouldn't have written it. I have come to appreciate even more 
than I ever did the important role that Congress plays in our 
society and the important role of the legislature. I very much 
enjoyed my time working here in the Senate and I would 
certainly never try to usurp the law-making or the policy-
making role of the Congress or the policy-making role of the 
executive branch, for that matter.
    Senator Schumer. Okay. That does seem at odds with the 
statement that ``every job I have taken since college has been 
ideologically oriented.'' It does again. You know, I will 
follow the law. Given that you are taking this job now, people 
change. I am the first to admit that. I am worried about that.
    Let me ask you this one. In light of the positions you took 
in briefs for the case in Cargill v. United States, would you 
please describe your understanding of Congressional powers 
under the Commerce Clause to regulate under the Clean Water Act 
and the understanding of the term ``navigable waters.'' Your 
brief is--it is contentious, I guess. People might describe it 
as sarcastic. You pose such questions as, is the color of the 
houses the next subject, since certain colors might deter birds 
from an otherwise cozy resting spot.
    And another example of the statement is Congress nowhere 
found that the viability of migratory fowl or endangered 
species populations is dependent upon the preservation of such 
isolated wetlands. However, as I understand it, in the 
Migratory Bird Treaty Act and the North American Wetlands 
Conservation Act, Congress made just those two findings.
    So would you comment on your views on the Commerce Clause 
and the term ``navigable waters.''
    Mr. Wolski. Certainly, Senator.
    Senator Schumer. Navigable, however. I don't know how to 
pronounce that word, to be honest with you.
    Mr. Wolski. I guess it is navigable.
    Senator Schumer. Navigable.
    Mr. Wolski. I am from the same general section of the 
country, so I--
    Senator Schumer. Flushing.
    Mr. Wolski. Well, actually, I am from New Jersey 
originally, Sayreville, near Perth Amboy.
    Senator Schumer. Right.
    Mr. Wolski. Now, I must confess at the outset that this is 
not--that Commerce Clause area is not really something that I 
have litigated in much over the years and looked at much. It is 
not actually something that could come before the Claims Court, 
either, since we take--we accept as valid the laws that are 
before us and don't look to see whether or not there is a--it 
was a permissible exercise of Congressional power.
    Having not looked at the Supreme Court cases in this area 
very recently, as I understand it, the test that the Supreme 
Court employs is whether something is--for something to be 
regulated under the Commerce Clause power of Congress, it 
either has to be--has to involve an article that has been in or 
traveled through commerce or something that might substantially 
affect commerce, and in light of that, obviously, the United 
States Supreme Court in the Wickerd v. Filburn case had held 
that one way to determine whether there is some substantial 
effect on commerce is to consider the aggregation of all the 
impacts or all of the--I guess impacts is probably the best 
word--on commerce from any particular--in that case, it was a 
farmer growing wheat.
    In the Cargill case you have mentioned, the Clean Water Act 
and the scope of the Clean Water Act was what was at issue. I 
understand that the--I believe the United States Supreme Court 
in the Solid Waste Agency of Northern Cook County case had said 
that there were significant constitutional issues involved in 
trying to determine whether Congress's power would extend under 
the Commerce Clause to protect migratory birds in a particular 
circumstance. Certainly, under the treaty power, Congress can 
protect migratory birds, as they have--I think Missouri v. 
Holland was the case that recognized that.
    Senator Schumer. So how does that square with, in your 
brief, that Congress nowhere has found that the viability of 
migratory fowl or endangered species populations is dependent 
on the preservation of such isolated wetlands?
    Mr. Wolski. Well, Senator, I don't believe that in the 
Clean Water Act there were any such findings. In fact, I might 
be mistaken on this, but I believe that, as I remember it, the 
Clean Water Act was dealing with pollution and was concerned 
with pollution to the navigable waters to the United States and 
there was nothing in the legislative history and certainly 
nothing in the language of the Clean Water Act that would make 
reference to the migratory birds, and this was a case 
concerning jurisdiction that was asserted under the Clean Water 
Act. The jurisdiction wasn't asserted under the Migratory Bird 
Treaty Act or some other act of Congress.
    Senator Schumer. But you said Congress nowhere found. You 
meant nowhere in the Clean Water Act, I presume?
    Mr. Wolski. That must be what I meant, Senator, nowhere 
that was relevant to that particular case, because again, the 
jurisdiction that was invoked was the jurisdiction under the 
Clean Water Act. It wasn't under some other act.
    And on navigable waters of the United States, I understand 
those to mean, getting back--I think that was part of your 
original question--I understand those to be waters, not only 
waters that are navigable, but also waters that are adjacent to 
or have some connection to navigable waters. So it is a very 
broad jurisdiction.
    Senator Schumer. Okay. Thank you, Mr. Chairman.
    Senator Chambliss. You know, having practiced law for 26 
years and having been involved in any number of trials and 
appeals of cases, I have been a little bit frustrated being on 
this Committee and having folks look at briefs that nominees 
have written over the years. In one case, I remember we went 
back as long as 12 years and a phrase was taken out of a brief 
that one of our nominees wrote, and I am sure this happened 
during the years when we weren't in control or we didn't have a 
Republican President, so I am not picking on anybody, but it is 
a frustration to me, having practiced law and having taken 
positions as an advocate for my client that, number one, went 
against any number of precedents that were in case law, and I 
don't think it is right to hold somebody accountable to that.
    It is all right to hold them accountable or let them 
explain what they meant by it, and my question to each of you 
is, you have all practiced law or you are practicing law. You 
have been in that position before, but the role of an advocate 
is distinctly different from the role of a judge. I want to 
make sure that we don't have nominees who necessarily have 
their minds made up on an issue that they advocated as a lawyer 
that they are going to take as a judge, and Judge Carney, I 
would like to start with you.
    If you will, each of you just comment on that aspect of 
your being nominated and confirmed to the bench, with respect 
to how you are going to deal with a case on an issue that maybe 
you have advocated the other side of. Where are you going to be 
with respect to how you decide that case from the bench?
    Judge Carney. Well, Mr. Chairman, I don't see my role as a 
legislator or as a prosecutor or as an attorney. I am a judge 
to make sure that there is fairness in the process and to apply 
the law as I understand it from a statute or from what the 
Ninth Circuit or the United States Supreme Court has said. I do 
not let my personal views get into the picture, and I agree 
with your earlier comments as a lawyer, for just to make a 
point or make it entertaining, you sometimes say things that 
you don't really mean, and I would hate to be held to some of 
the things that I have said in the past.
    Senator Chambliss. Judge Selna?
    Judge Selna. Mr. Chairman, I think there is clearly a 
different mindset from an advocate to moving to a judge. I 
experienced that transition over the last 4 years and I think 
the most significant part of that transition is to listen to 
lawyers and let lawyers try their cases. Listen to both sides. 
Whether you have dealt with that issue in the past, generally 
speaking, having been an advocate, you know that there are two 
sides to an issue. You know what arguments the other side will 
put forth. I think the role of the judge is to listen and to 
make his or her best judgment as to what the correct view of 
the law is.
    Senator Chambliss. Mr. Wolski?
    Mr. Wolski. Thank you for the question, Mr. Chairman. 
Certainly, I believe that a judge has an obligation and a duty 
to keep an open mind, to not let any positions they have taken 
in the past, any arguments, any position they have taken in 
argument on behalf of a client in the past, not to allow that 
to affect in any way their understanding and their analysis in 
a particular case, and that I certainly agree with the 
sentiments of my colleagues that that does not play a role in 
the judicial function whatsoever. A judge's duty is to follow 
the law. A judge's duty is to follow the binding precedents of 
higher courts and to put aside any past work they have done, 
put aside any past advocacy they have done in fulfilling that 
obligation.
    Senator Chambliss. Judge Springmann?
    Judge Springmann. Mr. Chairman, you are correct that as an 
advocate representing your client, that that client expects you 
to be passionate in representing their side in a case. But when 
you become a judge, you have to set aside passions and, in 
fact, become dispassionate when you are interpreting the law. 
You have to remain impartial, open minded, and fair for all the 
people that come before you in a court so that they can have 
confidence in the integrity of the system in which you are as a 
trial judge representing. That is not to say, though, that a 
judge should not lose all compassion for human frailty when 
that becomes an issue in a case.
    Mr. Simon. Mr. Chairman, I have spent the last 13 years of 
my life as a Federal prosecutor and the last 4 years as the 
Chief of the Criminal Division in the United States Attorney's 
Office. I have never been a judge and should I be fortunate 
enough to be confirmed, I can only promise you, Mr. Chairman, 
and this Committee that I will do my level best to be fair and 
impartial.
    I, candidly, have some concerns of--not that I can't be 
fair, I know that I can, but that there may be some perception 
that I have spent so much time as a prosecutor, but I am very 
confident that over a period of time, that I will be able to 
demonstrate that I am a fair and reasonable person and that I 
will impartially decide the cases that come before me if I am 
fortunate enough to be confirmed.
    Senator Chambliss. Judge Williams?
    Judge Williams. Thank you, Mr. Chairman. You are absolutely 
right that the role of an advocate is very different from the 
role of a trial judge. In particular, an advocate has a 
responsibility, an ethical obligation to most zealously present 
the position of his or her client as possible, and in the 
context of zealously representing your client, you should use 
every tool at your disposal to make arguments. You should use 
rhetoric. You should use the law to the extent that you can. 
You are required to under the canons of ethics.
    But a judge's role is very, very different. You--I think I 
view it as a two-fold role. It is ensuring that the process of 
the decision making is fair as well as the decision itself. In 
the process side, we are affording every litigant complete due 
process, complete fairness, giving them a full opportunity to 
be heard, and as one of my colleagues eloquently put it, 
listening. That is the biggest thing, is just listening and 
making sure you understand.
    And I have often in my situation as a trial judge gone into 
a case or a trial or an argument thinking one way about a case 
and coming out thinking just the opposite way and ready to go 
and do my own homework, go back over the briefs, go back to the 
library, so that I can come up with my own independent 
decision. Thank you.
    Senator Chambliss. Thank you. Senator Durbin, we are glad 
to have you join us, my friend from Illinois, Senator Durbin.
    Senator Durbin. Thank you very much, and I apologize for 
coming in a little late with all the things we are trying to 
juggle here.
    I thank you all for being here, and I would like to ask a 
general question. How many of you are members of the Federalist 
Society?
    [Mr. Wolski raised his hand.]
    Mr. Wolski. I am.
    Senator Durbin. Mr. Wolski. Is anybody else here a member? 
Could you explain it to me for the record, what the--the reason 
I ask this is when we map the DNA of Bush nominees for court 
positions, we always come across the Federalist Society 
chromosome in so many of them and I am just trying to get to 
the bottom of this, about what it is that makes Federalist 
Society membership an important consideration with some 
nominees, and perhaps, for the record, if you could explain to 
me how you view the Federalist Society and its philosophy.
    Mr. Wolski. Certainly, Senator. On the penultimate question 
that you asked, I am the pickee, not the picker, so I really 
couldn't say why the administration chooses to nominate certain 
people and not others.
    But on the first question, as to what the Federalist 
Society is, it is an organization, primarily a student 
organization, although there are also lawyer chapters, which 
has open forums and debates and sponsors speakers on a wide 
range of issues that relate to the Constitution, issues that 
relate to the legal process.
    When I was at the University of Virginia School of Law, I 
was the President of the Student Chapter of the Federalist 
Society there and we had a number of very good events. They 
were well attended by people from all political walks of life 
and all thought, very well attended, debates on topics such as 
the constitutionality of certain activity--I actually can't 
remember what--well, let me see, it must have had something to 
do with--well, let us put that one aside. And then we had a 
debate on drug legalization, for instance. We had a debate on 
the Ninth Amendment and whether it means anything. The Society 
tends to look at--and sponsor debates and look at issues often 
in the perspective of the historical role of the Constitution 
and what the Framers were doing when they put it together, and 
that is I think as best as I can explain it.
    Senator Durbin. I know where I would put the ACLU in the 
political spectrum. Where would you put the Federalist Society?
    Mr. Wolski. I would be reluctant to try to characterize it 
as one sort of group or another. It is not--it doesn't take 
positions on political issues. It doesn't take positions on 
legal or constitutional issues, for that matter. So since it is 
a group that doesn't take positions and doesn't litigate, 
doesn't get involved in advocating one position or another, I 
don't really think you could do that.
    Senator Durbin. You have been rather outspoken. I think 
some of my colleagues have already questioned you about your 
pride and your ideology, your political ideology. In fact, I 
think you were quoted in the National Journal as saying you 
have--you would like to take that quote back, wouldn't you?
    [Laughter.]
    Senator Durbin. You are quoted in the National Journal as 
saying you are always looking for jobs that let you further 
your ideological--I don't want to misquote you, but could you 
tell me what you said to the National Journal and then if you 
would like to explain it.
    Mr. Wolski. I wish I could remember with certainty what I 
said.
    Senator Durbin. I could probably find it in these notes.
    Mr. Wolski. Well--
    Senator Durbin. Go ahead. Give it your best.
    Mr. Wolski. As I explained earlier to the previous Senators 
who were here, the question was--
    Senator Durbin. Go ahead.
    Mr. Wolski. The question, I believe, that was posed to me--
I guess to actually put things in context, the National Journal 
piece in question, I think, is from the ``Hill people'' special 
issue that comes out every 2 years that does a profile of the 
new Congress, what committees each member is assigned to, and 
talks about Committee staff and does a little profile on each 
committee.
    And in the profile on the Joint Economic Committee, they 
had a--I think it was one paragraph about me that primarily 
talked about my tax work and how the work I do for Senator Mack 
is tax oriented. And the person who was interviewing me asked 
me, why was I willing to relocate from California to come to 
D.C. to work for a Senator from Florida, and the answer I tried 
to express, again, was--I may not have used the best words. I 
am not sure that that was a precise and accurate quote, but it 
certainly has been reported, so I will stick with that quote.
    All that I meant to convey was that the sort of jobs that I 
had taken since college have not been ones designed to try to 
earn the most money. Unlike my friends out of the Wharton 
School, I didn't try to get a job on Wall Street and make a lot 
of money. I was the first person in my family to go to college, 
and my mother is the granddaughter of Lithuanian immigrants. My 
dad is the son of Lithuanian immigrants and--
    Senator Durbin. Are you trying to get on my good side here?
    [Laughter.]
    Mr. Wolski. and I understand that you might have 
something--
    Senator Durbin. Someone has done some homework for you.
    Mr. Wolski. It is one of the--the DNA of the Senators that 
we do before we come.
    [Laughter.]
    Mr. Wolski. But no, in all seriousness, Senator, I had an 
opportunity that my parents didn't have. I was able to go to 
college. I was able to go to law school. And I believe very 
strongly that people should give something back to their 
community. People should try to make society better and take 
advantage of the opportunity that they have had to do that. And 
all that I meant to express was the type of jobs I had had were 
public sector job and nonprofit jobs, jobs that related to tax 
policy.
    The use of the word ``ideological,'' if that is what I had 
said, I wasn't trying to characterize myself as an ideologue 
because I think people who know me and know my record know that 
I am open minded, that I am not rigid. When I worked for 
Senator Mack, it was on a bipartisan basis on a number of tax 
issues that had support widely across the aisle, things like 
the low-income housing tax credit, the D.C. Economic Recovery 
Act.
    Senator Durbin. What about this whole takings question? If 
you are going to argue for ideology under law, that seems to be 
a ripe issue for the conservative right, this whole question of 
takings. And you have had quite a few cases, have you not, 
involving this issue?
    Mr. Wolski. I guess six, seven, 8 years ago when I worked 
at the Pacific Legal Foundation, I did--I was a member of the 
Property Rights Section and I had a number of cases involved in 
that section that involved takings. Typical clients included 
Bernadine Suitum. I don't know if you are familiar with her 
Supreme Court case, but she was an elderly lady who had a plot 
of land in a fully developed subdivision in Incline Village, 
Nevada. Hers was the last plot that hadn't been built on. She 
wanted to build a house on it and she was told that, because of 
the regulations, she couldn't build anything on it.
    So she tried to get into court and sue for just 
compensation since she couldn't make any use at all of her 
property. And the argument was raised that her claim wasn't 
ripe yet, because while she couldn't make any use of her 
property, under the regulations, she could transfer to somebody 
else the right to make more extensive use of their own 
property, and that, therefore, her case wasn't ripe because she 
could still help somebody else out. That was used to kick her 
out of court.
    I did a petition for writ of certiorari to the United 
States Supreme Court and the Supreme Court granted the case, 
reviewed the case. I didn't do the argument before the Supreme 
Court, but we--Mrs. Suitum won nine-to-nothing, again, a 
unanimous opinion written by Justice Souter said that she could 
have her day in court.
    One other case I did in the land use area was for 
Montereyans for Affordable Housing, which is a nonprofit 
organization that was challenging a procedural hurdle that was 
put in their place that would prevent rezoning--actually, it 
wouldn't prevent rezoning. It made it very difficult in 
Monterey to rezone land to allow apartments to be built. If 
somebody wanted to do that, they had to first get the city 
council approval, then they had to go put it on the ballot 
themselves, pay for the election, and win an election just in 
order to have apartments. As I said, I represented an 
affordable housing group and we got that law struck down. That 
is the sort of work that I did.
    Senator Durbin. Were you primarily representing property 
owners who were resisting either government regulation or 
government taking?
    Mr. Wolski. No. Actually, in the takings context, a lot of 
the cases would be seeking just compensation. It is--resistance 
is futile, I guess, after a certain point and you have got to 
choose whether you are going to seek compensation or not. In 
the Court of Federal Claims, for instance, the cases that are 
brought under the Takings Clause are people who accept as given 
the law or the regulation or the government decision that 
restricted the use of their land and accept that as proper and 
don't challenge the purpose, don't challenge the legitimacy of 
that action, but instead say the impact on this has been so 
great as to require just compensation under the Constitution. 
Those are the sort of cases--
    Senator Durbin. You mentioned the Pacific Legal Foundation. 
Is that connected at all with the Federalist Society?
    Mr. Wolski. I am sure that there are probably members of 
the staff of the Pacific Legal Foundation who might also be 
members of the Federalist Society. When I was a staff attorney 
at Pacific Legal Foundation, I had also joined the Sacramento 
Chapter of the Federalist Society and I know that there were at 
least a few others who were.
    Senator Durbin. So let me ask you this question. The Court 
of Claims deals with takings and environmental issues and you 
will come now to a position where you will be sitting in 
judgment. You have prided yourself on your political beliefs, 
political philosophy, political ideology. Should I not have 
some concern as to whether or not you are going to be 
dispassionate and objective when it comes to this Court of 
Claims position or whether you are bringing a political agenda 
to this position?
    Mr. Wolski. I appreciate that question, Senator, and I 
think the answer is no, actually, and the reason why I think 
you shouldn't be concerned is taking the broader perspective of 
my career, looking at everything that I have done, not just 
what--not just a job that I took as a young lawyer right out of 
my clerkship seven, eight, 9 years ago, but look what I have 
done over the whole breadth of my career, the bipartisan work I 
did for Senator Mack on things like the low-income housing tax 
credit, the sort of cases that I have litigated over the last 
few years.
    I represent a class of Medicare beneficiaries who are suing 
the tobacco industry, trying to get reimbursement to the 
Medicare Trust Fund for smoking-related illnesses. I represent 
the State of Nevada in its efforts to resist the placement of 
the nuclear repository in Yucca Mountain. So I have represented 
governments, I have represented the Governor of Puerto Rico, I 
have represented the interests of government in a number of 
cases, as well, and I think I have demonstrated that I am a 
person who can see things fairly and does understand and 
appreciate the importance of government.
    Senator Durbin. Thank you, Mr. Wolski. I may have a few 
written follow-up questions, and to the other nominees who are 
before us, let me thank you for your patience. You come with 
great recommendations.
    I would just say, if I might, Mr. Chairman, by way of 
closing, that this last weekend, I was privileged to join a 
group of my colleagues from the House and Senate to travel to 
Alabama with Congressman John Lewis. Some of you know John 
Lewis, from Atlanta, Georgia, is one of the real heroes of the 
civil rights movement. He was, as a young man, marching across 
Edmund Pettis Bridge in Selma when that terrible bloody Sunday 
occurred.
    John took a group of us, a bipartisan group, down to 
Alabama. For me, it was the first time to visit the State, and 
we went to Montgomery and Selma and Birmingham. We went to the 
corner where Rosa Parks got on the bus and refused to give up 
her seat and we marched across the Edmund Pettis Bridge and we 
went to the 16th Street Baptist Church in Birmingham where the 
four little girls were killed by the bomb.
    It was a moving experience for me. At my age, this was a 
formative part of my life and my values, the civil rights 
movement, and to see it firsthand and to meet the people 
involved in it made a difference.
    At one point while we were traveling, I talked to John 
Lewis about how it all worked out, ultimately it worked out. 
There is still a lot to be done, but ultimately, it worked out. 
The civil rights movement was successful in passing historic 
legislation. And he said to me at one point, there never would 
have been a march from Selma to Montgomery if there wasn't a 
Federal District Court judge named Frank Johnson. Frank Johnson 
from Northern Alabama, a Republican appointee under President 
Eisenhower had the courage to stand up to the establishment, to 
the State courts, and to many of his Federal judges and to say, 
we are going to put an end to this discrimination once and for 
all.
    As a result, he was threatened, his life was threatened, 
his mother's home was under protective surveillance for years 
and he was shunned by the society he lived in. When he passed 
away a few years ago, the tributes and praise were universal 
from everyone who looked back and said, this one Federal 
District Court judge changed history in America.
    And it was a reminder to me as I sit in this Judiciary 
Committee and see literally scores of candidates come through 
here that you never know which one of you, if you are fortunate 
enough to come to the bench, will have that moment, that 
opportunity in history. And I hope, as I hope that the Senator 
and myself will have the courage to see that moment and to 
seize it, even if it is unpopular, that each of you will have 
that wisdom, too.
    Thank you very much. Thanks, Mr. Chairman.
    Senator Chambliss. Thank you, Dick. I hope you held your 
hand over your heart as you flew over Georgia on the way to 
Selma.
    [Laughter.]
    Senator Chambliss. I am not a member of the Federalist 
Society, but just like Senator Durbin, I have heard that an 
awful lot during the hearings that we have had and I have heard 
Senator Hatch, who is a member of the Federalist Society, 
delineate exactly what the Federalist Society is. And while 
some want to paint a different picture, the fact of the matter 
is that the Federalist Society is a mainstream organization 
with no articles of faith or litmus test. Members range from 
pro-choice to pro-life, from those who believe in the original 
meaning to those who focus more on precedent and evolving 
tradition.
    The Federalist Society has hosted speeches by the likes of 
Justice Stephen Breyer, Alan Derschowitz, Kathleen Sullivan, 
and Nadine Strossen, among others. The Federalist Society has 
also received the input and praise of such noted liberal legal 
scholars such as Harvard Professor Lawrence Tribe, Chicago law 
professor Martha Nusbaum, and Yale law professor Ian Ayers, 
among others.
    So I do not believe the Federalist Society membership 
should disqualify anyone from the Federal bench anymore than an 
ABA membership should. I always appreciate all of our 
questions, but that one does seem to come up an awful lot.
    I am sorry my friend Senator Schumer is not here, but he 
made the comment about Republican judges seeming to decide 
cases differently from Democratic judges. But as I look at this 
group, we have got some Republicans here. Mr. Wolski, your 
statement that you have been asked about a number of different 
times, you state in there that you are a Libertarian. I had a 
Libertarian opponent in my last election, and Judge Williams, I 
understand you are a Democrat and that you actually were 
considered for this position by the Clinton administration. Am 
I correct in that?
    Judge Williams. Yes, Mr. Chairman, I was. I didn't get 
quite this far there, but I am told I did get pretty far along 
in the process.
    Senator Chambliss. Well, we have got a good bipartisan 
group of nominees is my point, and I will tell you that as a 
former lawyer, I would certainly look forward to practicing 
before each and every one of you.
    We are going to conclude this panel. The process will 
continue. We are going to move to the next panel and we 
appreciate each of you being here today to provide us with your 
testimony. Thank you very much.
    Judge Carney. Thank you, Mr. Chairman.
    Judge Selna. Thank you, Mr. Chairman.
    Mr. Simon. Thank you, Mr. Chairman.
    Judge Springmann. Thank you, Mr. Chairman.
    Judge Williams. Thank you, Mr. Chairman.
    Mr. Wolski. Thank you, Mr. Chairman.
    [The biographical information of Judge Carney, Judge Selna, 
Mr. Wolski, Judge Springmann, Mr. Simon and Judge Williams 
follow:] 
[GRAPHIC] [TIFF OMITTED] 90303.373

[GRAPHIC] [TIFF OMITTED] 90303.374

[GRAPHIC] [TIFF OMITTED] 90303.375

[GRAPHIC] [TIFF OMITTED] 90303.376

[GRAPHIC] [TIFF OMITTED] 90303.377

[GRAPHIC] [TIFF OMITTED] 90303.378

[GRAPHIC] [TIFF OMITTED] 90303.379

[GRAPHIC] [TIFF OMITTED] 90303.380

[GRAPHIC] [TIFF OMITTED] 90303.381

[GRAPHIC] [TIFF OMITTED] 90303.382

[GRAPHIC] [TIFF OMITTED] 90303.383

[GRAPHIC] [TIFF OMITTED] 90303.384

[GRAPHIC] [TIFF OMITTED] 90303.385

[GRAPHIC] [TIFF OMITTED] 90303.387

[GRAPHIC] [TIFF OMITTED] 90303.388

[GRAPHIC] [TIFF OMITTED] 90303.389

[GRAPHIC] [TIFF OMITTED] 90303.390

[GRAPHIC] [TIFF OMITTED] 90303.391

[GRAPHIC] [TIFF OMITTED] 90303.392

[GRAPHIC] [TIFF OMITTED] 90303.393

[GRAPHIC] [TIFF OMITTED] 90303.394

[GRAPHIC] [TIFF OMITTED] 90303.395

[GRAPHIC] [TIFF OMITTED] 90303.396

[GRAPHIC] [TIFF OMITTED] 90303.397

[GRAPHIC] [TIFF OMITTED] 90303.398

[GRAPHIC] [TIFF OMITTED] 90303.399

[GRAPHIC] [TIFF OMITTED] 90303.400

[GRAPHIC] [TIFF OMITTED] 90303.401

[GRAPHIC] [TIFF OMITTED] 90303.402

[GRAPHIC] [TIFF OMITTED] 90303.403

[GRAPHIC] [TIFF OMITTED] 90303.404

[GRAPHIC] [TIFF OMITTED] 90303.405

[GRAPHIC] [TIFF OMITTED] 90303.406

[GRAPHIC] [TIFF OMITTED] 90303.407

[GRAPHIC] [TIFF OMITTED] 90303.408

[GRAPHIC] [TIFF OMITTED] 90303.409

[GRAPHIC] [TIFF OMITTED] 90303.410

[GRAPHIC] [TIFF OMITTED] 90303.411

[GRAPHIC] [TIFF OMITTED] 90303.412

[GRAPHIC] [TIFF OMITTED] 90303.413

[GRAPHIC] [TIFF OMITTED] 90303.414

[GRAPHIC] [TIFF OMITTED] 90303.415

[GRAPHIC] [TIFF OMITTED] 90303.416

[GRAPHIC] [TIFF OMITTED] 90303.417

[GRAPHIC] [TIFF OMITTED] 90303.418

[GRAPHIC] [TIFF OMITTED] 90303.419

[GRAPHIC] [TIFF OMITTED] 90303.420

[GRAPHIC] [TIFF OMITTED] 90303.421

[GRAPHIC] [TIFF OMITTED] 90303.422

[GRAPHIC] [TIFF OMITTED] 90303.423

[GRAPHIC] [TIFF OMITTED] 90303.424

[GRAPHIC] [TIFF OMITTED] 90303.425

[GRAPHIC] [TIFF OMITTED] 90303.426

[GRAPHIC] [TIFF OMITTED] 90303.427

[GRAPHIC] [TIFF OMITTED] 90303.428

[GRAPHIC] [TIFF OMITTED] 90303.429

[GRAPHIC] [TIFF OMITTED] 90303.430

[GRAPHIC] [TIFF OMITTED] 90303.431

[GRAPHIC] [TIFF OMITTED] 90303.432

[GRAPHIC] [TIFF OMITTED] 90303.433

[GRAPHIC] [TIFF OMITTED] 90303.434

[GRAPHIC] [TIFF OMITTED] 90303.435

[GRAPHIC] [TIFF OMITTED] 90303.436

[GRAPHIC] [TIFF OMITTED] 90303.437

[GRAPHIC] [TIFF OMITTED] 90303.438

[GRAPHIC] [TIFF OMITTED] 90303.439

[GRAPHIC] [TIFF OMITTED] 90303.440

[GRAPHIC] [TIFF OMITTED] 90303.441

[GRAPHIC] [TIFF OMITTED] 90303.442

[GRAPHIC] [TIFF OMITTED] 90303.443

[GRAPHIC] [TIFF OMITTED] 90303.444

[GRAPHIC] [TIFF OMITTED] 90303.445

[GRAPHIC] [TIFF OMITTED] 90303.446

[GRAPHIC] [TIFF OMITTED] 90303.447

[GRAPHIC] [TIFF OMITTED] 90303.448

[GRAPHIC] [TIFF OMITTED] 90303.449

[GRAPHIC] [TIFF OMITTED] 90303.450

[GRAPHIC] [TIFF OMITTED] 90303.451

[GRAPHIC] [TIFF OMITTED] 90303.452

[GRAPHIC] [TIFF OMITTED] 90303.453

[GRAPHIC] [TIFF OMITTED] 90303.454

[GRAPHIC] [TIFF OMITTED] 90303.455

[GRAPHIC] [TIFF OMITTED] 90303.456

[GRAPHIC] [TIFF OMITTED] 90303.457

[GRAPHIC] [TIFF OMITTED] 90303.458

[GRAPHIC] [TIFF OMITTED] 90303.459

[GRAPHIC] [TIFF OMITTED] 90303.460

[GRAPHIC] [TIFF OMITTED] 90303.461

[GRAPHIC] [TIFF OMITTED] 90303.462

[GRAPHIC] [TIFF OMITTED] 90303.463

[GRAPHIC] [TIFF OMITTED] 90303.464

[GRAPHIC] [TIFF OMITTED] 90303.465

[GRAPHIC] [TIFF OMITTED] 90303.466

[GRAPHIC] [TIFF OMITTED] 90303.467

[GRAPHIC] [TIFF OMITTED] 90303.468

[GRAPHIC] [TIFF OMITTED] 90303.469

[GRAPHIC] [TIFF OMITTED] 90303.470

[GRAPHIC] [TIFF OMITTED] 90303.471

[GRAPHIC] [TIFF OMITTED] 90303.473

[GRAPHIC] [TIFF OMITTED] 90303.474

[GRAPHIC] [TIFF OMITTED] 90303.475

[GRAPHIC] [TIFF OMITTED] 90303.476

[GRAPHIC] [TIFF OMITTED] 90303.477

[GRAPHIC] [TIFF OMITTED] 90303.478

[GRAPHIC] [TIFF OMITTED] 90303.479

[GRAPHIC] [TIFF OMITTED] 90303.480

[GRAPHIC] [TIFF OMITTED] 90303.481

[GRAPHIC] [TIFF OMITTED] 90303.482

[GRAPHIC] [TIFF OMITTED] 90303.486

[GRAPHIC] [TIFF OMITTED] 90303.485

[GRAPHIC] [TIFF OMITTED] 90303.484

[GRAPHIC] [TIFF OMITTED] 90303.483

[GRAPHIC] [TIFF OMITTED] 90303.487

[GRAPHIC] [TIFF OMITTED] 90303.488

[GRAPHIC] [TIFF OMITTED] 90303.489

[GRAPHIC] [TIFF OMITTED] 90303.490

[GRAPHIC] [TIFF OMITTED] 90303.491

[GRAPHIC] [TIFF OMITTED] 90303.492

[GRAPHIC] [TIFF OMITTED] 90303.493

[GRAPHIC] [TIFF OMITTED] 90303.494

[GRAPHIC] [TIFF OMITTED] 90303.495

[GRAPHIC] [TIFF OMITTED] 90303.496

[GRAPHIC] [TIFF OMITTED] 90303.497

[GRAPHIC] [TIFF OMITTED] 90303.498

[GRAPHIC] [TIFF OMITTED] 90303.499

[GRAPHIC] [TIFF OMITTED] 90303.500

[GRAPHIC] [TIFF OMITTED] 90303.501

[GRAPHIC] [TIFF OMITTED] 90303.502

[GRAPHIC] [TIFF OMITTED] 90303.503

[GRAPHIC] [TIFF OMITTED] 90303.504

[GRAPHIC] [TIFF OMITTED] 90303.505

[GRAPHIC] [TIFF OMITTED] 90303.506

[GRAPHIC] [TIFF OMITTED] 90303.507

[GRAPHIC] [TIFF OMITTED] 90303.508

[GRAPHIC] [TIFF OMITTED] 90303.509

[GRAPHIC] [TIFF OMITTED] 90303.510

[GRAPHIC] [TIFF OMITTED] 90303.511

[GRAPHIC] [TIFF OMITTED] 90303.512

[GRAPHIC] [TIFF OMITTED] 90303.513

[GRAPHIC] [TIFF OMITTED] 90303.514

[GRAPHIC] [TIFF OMITTED] 90303.515

[GRAPHIC] [TIFF OMITTED] 90303.516

[GRAPHIC] [TIFF OMITTED] 90303.517

[GRAPHIC] [TIFF OMITTED] 90303.518

[GRAPHIC] [TIFF OMITTED] 90303.519

[GRAPHIC] [TIFF OMITTED] 90303.520

[GRAPHIC] [TIFF OMITTED] 90303.521

[GRAPHIC] [TIFF OMITTED] 90303.522

[GRAPHIC] [TIFF OMITTED] 90303.523

[GRAPHIC] [TIFF OMITTED] 90303.524

[GRAPHIC] [TIFF OMITTED] 90303.525

[GRAPHIC] [TIFF OMITTED] 90303.527

[GRAPHIC] [TIFF OMITTED] 90303.528

[GRAPHIC] [TIFF OMITTED] 90303.529

[GRAPHIC] [TIFF OMITTED] 90303.530

[GRAPHIC] [TIFF OMITTED] 90303.531

[GRAPHIC] [TIFF OMITTED] 90303.532

[GRAPHIC] [TIFF OMITTED] 90303.533

[GRAPHIC] [TIFF OMITTED] 90303.534

[GRAPHIC] [TIFF OMITTED] 90303.535

[GRAPHIC] [TIFF OMITTED] 90303.536

[GRAPHIC] [TIFF OMITTED] 90303.537

[GRAPHIC] [TIFF OMITTED] 90303.538

[GRAPHIC] [TIFF OMITTED] 90303.539

[GRAPHIC] [TIFF OMITTED] 90303.540

[GRAPHIC] [TIFF OMITTED] 90303.541

[GRAPHIC] [TIFF OMITTED] 90303.542

[GRAPHIC] [TIFF OMITTED] 90303.543

[GRAPHIC] [TIFF OMITTED] 90303.544

[GRAPHIC] [TIFF OMITTED] 90303.545

[GRAPHIC] [TIFF OMITTED] 90303.546

[GRAPHIC] [TIFF OMITTED] 90303.547

[GRAPHIC] [TIFF OMITTED] 90303.548

[GRAPHIC] [TIFF OMITTED] 90303.549

[GRAPHIC] [TIFF OMITTED] 90303.550

[GRAPHIC] [TIFF OMITTED] 90303.551

[GRAPHIC] [TIFF OMITTED] 90303.552

[GRAPHIC] [TIFF OMITTED] 90303.553

[GRAPHIC] [TIFF OMITTED] 90303.554

[GRAPHIC] [TIFF OMITTED] 90303.556

[GRAPHIC] [TIFF OMITTED] 90303.557

[GRAPHIC] [TIFF OMITTED] 90303.558

[GRAPHIC] [TIFF OMITTED] 90303.559

[GRAPHIC] [TIFF OMITTED] 90303.560

[GRAPHIC] [TIFF OMITTED] 90303.561

[GRAPHIC] [TIFF OMITTED] 90303.562

[GRAPHIC] [TIFF OMITTED] 90303.564

[GRAPHIC] [TIFF OMITTED] 90303.565

[GRAPHIC] [TIFF OMITTED] 90303.566

[GRAPHIC] [TIFF OMITTED] 90303.567

[GRAPHIC] [TIFF OMITTED] 90303.568

[GRAPHIC] [TIFF OMITTED] 90303.569

[GRAPHIC] [TIFF OMITTED] 90303.570

[GRAPHIC] [TIFF OMITTED] 90303.571

[GRAPHIC] [TIFF OMITTED] 90303.572

[GRAPHIC] [TIFF OMITTED] 90303.573

[GRAPHIC] [TIFF OMITTED] 90303.574

[GRAPHIC] [TIFF OMITTED] 90303.575

[GRAPHIC] [TIFF OMITTED] 90303.576

[GRAPHIC] [TIFF OMITTED] 90303.577

[GRAPHIC] [TIFF OMITTED] 90303.578

    Senator Chambliss. I thank my former colleague over on the 
House side. Ruben Hinojosa is here, and Ruben, we look forward 
before this next panel is seated to you coming forward and 
making some comments about a nominee that I know you have an 
interest in. We are glad to have you here, Ruben, if you will 
just have a seat right there in the center. I will tell you 
that Senator Hutchison and Senator Cornyn have already spoken 
and gave accolades with respect to Mr. Hinojosa. By the way, is 
he kin to you?

   PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED 
  STATES SENTENCING COMMISSIONER BY HON. RUBEN E. HINOJOSA, A 
       REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

    Representative Hinojosa. Not yet.
    [Laughter.]
    Representative Hinojosa. Mr. Chairman, I am pleased to have 
the opportunity to introduce a gentleman from the great State 
of Texas, U.S. District Judge Ricardo Hinojosa, who has been 
nominated to serve on the U.S. Sentencing Commission. I want to 
thank Chairman Hatch and Ranking Member Leahy for having given 
me this opportunity to address the Senate Judiciary Committee, 
and furthermore, I wish to acknowledge and thank you for 
allowing me this opportunity. I wish that Senator Durbin could 
have stayed just a few more moments so that he could have 
learned about this great gentleman that I am introducing.
    Judge Hinojosa is one of the most highly respected Federal 
judges in the State of Texas. He is a judge who is fair and 
impartial. Since 1983, he has served as the United States 
District Judge for the Southern District of Texas. A graduate 
of Harvard School of Law, Judge Hinojosa has been active in the 
legal community, serving on the Committee on Defender Services 
of the Judicial Conference of the United States, the Magistrate 
Judges' Committee of the Judicial Council of the Fifth Circuit, 
and the Judicial Liaison member of the Texas State Bar Board of 
Directors.
    He has combined his service to the law with his outstanding 
service to his local community. He has served as Chairman of 
the Board of Regents of the University of Texas-Pan American 
and as Chairman of the Texas Commission on the Bicentennial of 
the United States Constitution.
    As you know, the U.S. Sentencing Commission is a unique 
body charged with establishing sentencing guidelines for those 
individuals convicted of Federal crimes. Judge Hinojosa's 
recent position as a member of the American Law Institute 
Advisors Group to the Model Penal Code Sentencing Project has 
given him experience and insight into the challenges that the 
Sentencing Commission faces in recommending policy.
    Born and raised in South Texas, I have known Judge Hinojosa 
for over 20 years. Although we are not related, he grew up in 
my wife's hometown, Rio Grande City. I have always found him to 
be tough, but fair, in his judicial decisions.
    In closing, I wish to say that, as I am sure you are aware, 
Judge Hinojosa's nomination has the strong support of Senator 
John Cornyn and Senator Kay Bailey Hutchison. Without any 
reservations, I strongly recommend Judge Ricardo Hinojosa. This 
country will be well served if Judge Hinojosa's nomination is 
approved by your committee.
    Thank you again for allowing me the privilege of testifying 
on behalf of this outstanding American, and I welcome any 
questions that you might have.
    Senator Chambliss. Well, thank you very much, Congressman 
Hinojosa. Coming from you, that is a strong recommendation in 
my book and we look forward to the nominee coming forward and 
speaking and having an opportunity to ask questions.
    Representative Hinojosa. Thank you, sir.
    Senator Chambliss. Thank you very much.
    Representative Hinojosa. Thank you very much for the 
opportunity and I look forward to visiting with you again.
    Senator Chambliss. We will now ask that Judge Hinojosa and 
Mr. Horowitz come forward, please. Before you take your seats, 
if each of you will raise your right hand, please.
    Do you solemnly swear that the testimony you are about to 
give before this Committee shall be the truth, the whole truth, 
and nothing but the truth, so help you, God?
    Judge Hinojosa. I do.
    Mr. Horowitz. I do.
    Senator Chambliss. Thank you. Let me ask each of you if you 
have any opening statement you want to make or if you have any 
family or friends here that you want to recognize. We certainly 
want to give you the opportunity to do that. Judge Hinojosa?

 STATEMENT OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED STATES 
                    SENTENCING COMMISSIONER

    Judge Hinojosa. Senator, thank you very much. First of all, 
I don't really have an opening statement, but I do want to 
thank the President for this nomination and this Committee for 
this hearing. I do want to thank Senators Hutchison and Cornyn 
and Congressman Hinojosa for their nice remarks this afternoon.
    I do have in the audience today a Godchild of mine, Emily 
Williford [ph.] from Austin, Texas, who is presently working 
here in Washington, D.C., and I appreciate her showing up here 
this afternoon.
    And there is another person in the audience I would also 
like to thank and that is Ms. Sheila Joy, who works with the 
Justice Department, and 20 years ago, she held my hand through 
the nomination and confirmation process. She has done it again 
this year and she has done it throughout this period of time 
for all these administrations and for all these people that go 
through this process and she makes it a lot easier and I 
appreciate her help.
    Senator Chambliss. It sounds like she is your good luck 
charm.
    Judge Hinojosa. I hope so. And I also want to thank the 
people I work with who I believe are listening and possibly 
watching as we are having this hearing. Thank you very much, 
Senator.
    Senator Chambliss. Thank you.
    Mr. Horowitz?

 STATEMENT OF MICHAEL E. HOROWITZ, NOMINEE TO BE UNITED STATES 
                    SENTENCING COMMISSIONER

    Mr. Horowitz. Mr. Chairman, I do not have an opening 
statement. I want to echo what Judge Hinojosa said. I am 
certainly honored that the President has nominated me. I am 
honored that the Committee is having this hearing.
    I do have some family members with me that I would like to 
introduce to the committee. With me is my wife, Alexandra, my 
mother, Ann, who came from Florida, and my mother-in-law, 
Sandra Kaufman [ph.], and my father-in-law, directly behind me, 
Charles Kaufman [ph.], so hopefully, he won't throw anything at 
me during the hearing.
    [Laughter.]
    Senator Chambliss. All right. Great. We are happy to have 
all of you here.
    Mr. Horowitz, let me start with you. You have served for 
many years as a prosecutor, first in the U.S. Attorney's Office 
for the Southern District of New York, then in the Criminal 
Division of the Department of Justice. I understand that you 
now work for a major law firm and engage in criminal defense 
work. What is your view as to the general appropriateness of 
the sentencing guidelines and what perspective will you bring 
to the Sentencing Commission as a former prosecutor who now 
does defense work?
    Mr. Horowitz. Well, Mr. Chairman, I believe that the 
experiences I have had, first as a law clerk and then as a 
prosecutor for 11 years, representing clients who have been 
under investigation, both before I became a prosecutor and 
since, will hopefully give me a breadth of experience in 
viewing the guidelines, in looking at them. The Commission has 
right now an interesting array of experiences among their 
Commissioners. There are a number of judges. and hopefully, I 
can add to that through the perspective of my experience.
    I know, as you know, the current head of the Criminal 
Division, Mike Chertoff, who I work for, as well as his 
predecessor, Jim Robinson, who I worked for, both served as 
defense lawyers and as prosecutors and U.S. Attorneys and I 
think it does allow you to look at problems from a big picture 
and understand from all sides of the issue what these 
guidelines mean and how they should be considered and applied.
    Senator Chambliss. Judge Hinojosa, as a sitting Federal 
District Court judge, you have been called upon to apply the 
sentencing guidelines countless times. I am sure you have also 
gotten earfuls from many of your colleagues about the 
guidelines. I know you have gotten an earful from those of us 
who did defense work from time to time. What is your view as to 
the general appropriateness of the sentencing guidelines, and 
specifically, do you think it works well or does it work most 
of the time?
    Judge Hinojosa. Senator, I guess I am one of the group that 
gets smaller as each year goes by that actually has done 
sentencing both under the old system as well as under the 
guidelines system. From 1983 to 1987, I actually sentenced 
individuals under the old system, and I have to say that I find 
the Sentencing Commission guidelines very helpful for the 
system.
    Under the old system, we would spend a lot of time, or at 
least I did, trying to figure out what I had done with a 
particular kind of case and a particular kind of defendant with 
certain characteristics that were similar to the present 
defendant and the amount of drugs involved in a drug case, for 
example, and trying to make things work on in an equal fashion 
and in a fair fashion. So you would spend a lot of time trying 
to go back, trying to find other cases that you had worked on 
and sometimes talking to other judges about the same kind of 
cases.
    Under the guidelines, we have a totally different system 
because, as you know, the Commission guidelines set the 
procedure and the parameters that the judges are to follow. And 
I have to say that I find them helpful because, in many ways, 
they basically have the same factors I used to consider myself 
when I had to make a decision with regards to a particular 
sentence as far as the role in the offense of an individual, 
the involvement in the crime itself, in a drug case, for 
example, the amount of drugs, whether there was a firearm 
involved and the relevant conduct involved and acceptance of 
responsibility, all these factors that are put into the 
Commission guidelines which makes us think about these in every 
single case and I find them to be helpful.
    Senator Chambliss. Do you think the guidelines give you 
enough flexibility? That was a question that I raised a lot of 
time with judges, and I didn't do an extensive amount of 
Federal criminal work, but I occasionally did and the 
guidelines--I practiced under the old system as well as under 
the guidelines themselves, just like you having been on the 
bench, and I sometimes had a problem with the judge not having 
flexibility, particularly with a defendant or an accused who, 
in trying to negotiate some sort of settlement of the case, 
there just--the judge's hands were somewhat tied. Have you ever 
been in those kind of positions, where you didn't feel like you 
had enough flexibility?
    Judge Hinojosa. To some extent, I guess in some cases, you 
might feel that way, Senator, but I have to say that within the 
guidelines themselves, there are a lot of fact findings that a 
judge has to make that give you the discretion within the 
guidelines themselves, and, of course, in the very unusual 
situations where someone is cooperating with the government, as 
you well know, the government can file a motion to depart based 
on cooperation and assistance. I say unusual, which really it 
is not, because that does happen and it is a tool that is used 
to help make bigger cases.
    In the situations where one finds that it is totally out of 
the heartland of the cases, a judge has the opportunity to 
depart. In the Koon case, the U.S. Supreme Court certainly 
gives a judge an opportunity to do that.
    Senator Chambliss. Let me ask to both of you, do you 
believe that a member of the Sentencing Commission should 
implement the sentencing guidelines in a way that he or she 
believes that Congress would have intended even if the member 
disagrees with that Congressional intent? Is there any question 
in your mind about that?
    Mr. Horowitz. No question about that at all.
    Judge Hinojosa. I do feel that part of the responsibility 
of the Sentencing Commission is to look at the directives from 
the Congress, sir.
    Senator Chambliss. Okay. Would you agree with me that the 
central premise of the Sentencing Reform Act was to create 
uniformity of sentences and try to eliminate disparities in the 
sentences handed out by different judges for similar offenses, 
and do you think that is a fair and desirable goal?
    Mr. Horowitz. Mr. Chairman, I do believe that eliminating 
the unwarranted disparities that existed before the system was 
put in place is the correct goal of the guidelines and would 
certainly be part of my responsibility in serving in this 
position.
    Judge Hinojosa. I agree with that also, Senator, and I 
think that is the reason that the Congress saw fit to create 
the United States Sentencing Commission, because there was a 
viewpoint from all segments and members of Congress that that 
was important, and I think that is the viewpoint of the public 
in the United States.
    Senator Chambliss. Gentlemen, let me assure you, the fact 
that none of my colleagues are here in no way diminishes what 
we know to be the importance of the job to which you have been 
nominated. You both have the kind of experience and you 
obviously, from just looking and talking to both of you, you 
have the right kind of temperament to be confirmed for this 
position. So let me assure you that we take this seriously. We 
know you are going to take your job seriously and we appreciate 
very much you being here today and sitting through the previous 
panel and having a little patience with us to do that. So thank 
you very much for being here and thank your family members for 
being here, also.
    [The biographical information of Judge Hinojosa and Mr. 
Horowitz follow.]
    Senator Chambliss. I would like unanimous consent to insert 
Senator Hatch's statement for the record, and without 
objection, that is done.
    I would also like to insert into the record statements from 
Senator Leahy and Senator Boxer.
    I announce to all of my colleagues on the Committee that 
the record will remain open until 5:00 p.m. one week from 
today, Wednesday, March 13, for anyone to submit additional 
questions or additional matters for the record. Excuse me, I 
said the 13th. The 19th. The record will remain open until the 
19th.
    This hearing is concluded. Thank you.
    [Whereupon, at 4:00 p.m., the Committee was adjourned.]
    [Additional material is being retained in the Committee 
files.]
    [Questions and answers and submissions for the record 
follow.]
[GRAPHIC] [TIFF OMITTED] 90303.580

[GRAPHIC] [TIFF OMITTED] 90303.581

[GRAPHIC] [TIFF OMITTED] 90303.582

[GRAPHIC] [TIFF OMITTED] 90303.583

[GRAPHIC] [TIFF OMITTED] 90303.584

[GRAPHIC] [TIFF OMITTED] 90303.585

[GRAPHIC] [TIFF OMITTED] 90303.586

[GRAPHIC] [TIFF OMITTED] 90303.587

[GRAPHIC] [TIFF OMITTED] 90303.588

[GRAPHIC] [TIFF OMITTED] 90303.589

[GRAPHIC] [TIFF OMITTED] 90303.590

[GRAPHIC] [TIFF OMITTED] 90303.591

[GRAPHIC] [TIFF OMITTED] 90303.592

[GRAPHIC] [TIFF OMITTED] 90303.593

[GRAPHIC] [TIFF OMITTED] 90303.594

[GRAPHIC] [TIFF OMITTED] 90303.595

[GRAPHIC] [TIFF OMITTED] 90303.596

[GRAPHIC] [TIFF OMITTED] 90303.597

[GRAPHIC] [TIFF OMITTED] 90303.598

[GRAPHIC] [TIFF OMITTED] 90303.599

[GRAPHIC] [TIFF OMITTED] 90303.600

[GRAPHIC] [TIFF OMITTED] 90303.601

[GRAPHIC] [TIFF OMITTED] 90303.602

[GRAPHIC] [TIFF OMITTED] 90303.603

[GRAPHIC] [TIFF OMITTED] 90303.604

[GRAPHIC] [TIFF OMITTED] 90303.605

[GRAPHIC] [TIFF OMITTED] 90303.606

[GRAPHIC] [TIFF OMITTED] 90303.607

[GRAPHIC] [TIFF OMITTED] 90303.608

[GRAPHIC] [TIFF OMITTED] 90303.609

[GRAPHIC] [TIFF OMITTED] 90303.610

[GRAPHIC] [TIFF OMITTED] 90303.611

[GRAPHIC] [TIFF OMITTED] 90303.612

[GRAPHIC] [TIFF OMITTED] 90303.613

[GRAPHIC] [TIFF OMITTED] 90303.614

[GRAPHIC] [TIFF OMITTED] 90303.615

[GRAPHIC] [TIFF OMITTED] 90303.616

[GRAPHIC] [TIFF OMITTED] 90303.617

[GRAPHIC] [TIFF OMITTED] 90303.618

[GRAPHIC] [TIFF OMITTED] 90303.619

[GRAPHIC] [TIFF OMITTED] 90303.620

[GRAPHIC] [TIFF OMITTED] 90303.621

[GRAPHIC] [TIFF OMITTED] 90303.622

[GRAPHIC] [TIFF OMITTED] 90303.623

[GRAPHIC] [TIFF OMITTED] 90303.624

[GRAPHIC] [TIFF OMITTED] 90303.625

[GRAPHIC] [TIFF OMITTED] 90303.626

[GRAPHIC] [TIFF OMITTED] 90303.627

[GRAPHIC] [TIFF OMITTED] 90303.628

[GRAPHIC] [TIFF OMITTED] 90303.629

[GRAPHIC] [TIFF OMITTED] 90303.630



  NOMINATIONS OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE FOR THE 
FIFTH CIRCUIT; RICHARD D. BENNETT, NOMINEE TO BE DISTRICT JUDGE FOR THE 
 DISTRICT OF MARYLAND; DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR 
   THE WESTERN DISTRICT OF LOUISIANA; J. LEON HOLMES, NOMINEE TO BE 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS; SUSAN G. BRADEN, 
  NOMINEE TO BE JUDGE FOR THE COURT OF FEDERAL CLAIMS; AND CHARLES F. 
      LETTOW, NOMINEE TO BE JUDGE FOR THE COURT OF FEDERAL CLAIMS

                              ----------                              


                        THURSDAY, MARCH 27, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 3:07 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
presiding.
    Present: Senators Cornyn, Sessions, and Leahy.

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Senator Cornyn. The Senate Committee on the Judiciary on 
judicial nominations will come to order. It is my pleasure to 
be chairing this and I am certainly pleased to be with the 
ranking member, Senator Leahy, on this important occasion. We 
have a number of distinguished members who are here before us 
who I know are on tight schedules. We are here, of course, to 
consider the nominations of Edward Prado, to be a United States 
Circuit Judge for the Fifth Circuit; Richard D. Bennett, to be 
United States District Judge for the District of Maryland; Dee 
D. Drell to be United States District Judge for the Western 
District of Louisiana; J. Leon Holmes, to be United States 
District Court Judge for the Eastern District of Arkansas; 
Susan Braden, to be Judge of the Court of Federal Claims; and 
Charles F. Lettow, to be Judge of the Court of Federal Claims.
    Senator Leahy and I have both agreed that we will reserve 
our statements, in the interest of time, and because we know 
our colleagues who are here to introduce these judges are on a 
tight schedule, themselves.
    We will, in the order of seniority, recognize Senator 
Sarbanes for his introduction.

  PRESENTATION OF RICHARD D. BENNETT, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE DISTRICT OF MARYLAND, BY HON. PAUL SARBANES, A 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Sarbanes. Mr. Chairman, Senator Mikulski and I are 
pleased to be here to present Richard Bennett to the Committee. 
Understanding the press on your time, I will try to be brief. 
But let me say it is a pleasure to appear today on behalf of 
this distinguished member of Maryland's legal community.
    Dick Bennett was educated in Maryland at the Severn School 
in Severna Park. Actually, he is now on the Board of Trustees 
of the school. He went to the University of Pennsylvania, where 
he had high academic honors and was also honorable mention All-
Ivy League Lacrosse. That may not mean much to you, but it 
means a lot in Maryland, I want you to know.
    [Laughter.]
    Senator Sarbanes. And then he went from the University of 
Pennsylvania to the University of Maryland School of Law, where 
he was on the Maryland Law Review.
    I am not going to go through all of his legal background. 
He has been associated with three Baltimore law firms, two very 
large ones. He is now a partner at Miles and Stockbridge, which 
is one of our leading law firms. But early on in his legal 
career, he went into the U.S. Attorney's Office as an Assistant 
U.S. Attorney and worked there for a little more than 4 years. 
This was not too long after he graduated from law school.
    At the same time, he was in the Army, the U.S. Army, and 
then in the Army Reserve and subsequently in the Maryland 
National Guard, serving in the Adjutant General's Division. He 
rose to be a major in the National Guard.
    I just want to mention a couple of things about him because 
he came back to become the U.S. Attorney for the District of 
Maryland and to serve with distinction in that office. We have 
had a string of very good U.S. Attorneys in our State and Dick 
was certainly among the top of the group. In fact, he is now on 
the Board of Directors of the National Association of Former 
U.S. Attorneys, which is obviously some recognition with 
respect to his abilities on the part of his peers.
    I want to mention for just a moment his political 
involvement. That may sound a little strange here, but I think 
it is important. It helps to make a point I want to make.
    He went on the Baltimore City Republican Central Committee, 
which is kind of a lonely place, I have to say, to succeed Fred 
Motts, who became a U.S. District Judge and just stepped down 
as the Chief Judge not too long ago of our District Court. In 
1982, he ran for the Maryland State Senate, was defeated. In 
1994, he was the Republican candidate for Attorney General. 
That didn't prove out. And in 1998, he was a candidate for 
Lieutenant Governor. In a way, I think we may have done him a 
favor in those elections. Otherwise, I am not sure he would now 
be here to be a Federal District Judge.
    The important point I want to emphasize, though, is I 
respect this political involvement on his part. It was always 
done in an honorable way. As is important in our system, he was 
contributing to the functioning and the workings of our 
political democracy. I have known him a long time. We have been 
on opposite sides of the political fence, but I certainly 
respect him personally and professionally and I believe he will 
make a good Federal District Judge.
    We have a very good bench in our State and we are very 
proud of it. We work very hard at trying to protect its 
quality. Dick Bennett, I think, reflects the respect for 
others, an open mind. I think he will be fair. I think he will 
hear people out. He has had extended trial experience. He is 
really a very experienced litigator, much of it in the Federal 
Court. So he knows the workings of the Federal Court and he 
knows how the system operates and I think he will be a very 
effective judge.
    He has taken a strong interest in our community. He has 
been on the Board of Directors of the Kennedy Krieger Institute 
in Baltimore, one of the leading institutions in the world 
dealing with the problems of disabled children.
    So I am pleased to come today to speak on behalf of someone 
with whom I contended politically over the years, but for whom 
I have a high regard and whom I am convinced will make a very 
fair and honorable Federal District Judge. I very much hope 
that the Committee, after hearing him out, will see fit to 
report him favorably to the United States Senate. Thank you 
very much.
    Senator Cornyn. Thank you very much, Senator, for those 
comments.
    Senator Mikulski, we would be delighted to hear from you.

  PRESENTATION OF RICHARD D. BENNETT, NOMINEE TO BE DISTRICT 
JUDGE FOR THE DISTRICT OF MARYLAND, BY HON. BARBARA MIKULSKI, A 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Mikulski. Thank you very much, Mr. Chairman and 
members of the Committee. I am here today to really 
enthusiastically support the nomination of Dick Bennett to be a 
Federal District Court judge in Maryland.
    I sat at this table in 1990 to support his nomination to be 
the U.S. Attorney under President Bush's dad, and I will tell 
you, as U.S. Attorney, he did not disappoint us. He was an 
outstanding U.S. Attorney and the way he conducted himself, 
conducted the office, and brought honor and integrity to the 
U.S. Attorney's office.
    When I look to how am I going to support a Federal judge, I 
have three criteria: Judicial competence, highest integrity, 
and demonstrated dedication to protecting core constitutional 
values and guarantees. Dick Bennett is more than well qualified 
in all three of those areas. He has been recognized as one of 
the best trial lawyers in America. He has received numerous 
awards from professional legal organizations. And at the same 
time, he has been honored for his work in the field of victims' 
rights, so he brings balance.
    In terms of integrity, he has decades of community service 
that Senator Sarbanes has talked about. He served for 20 years 
in the Army National Guard.
    When you look at his family background, you will see that 
he is a product of the greatest generation. He dad was an 
electrician. His dad fought at Okinawa and then came home to 
raise a family, and his mom was a school teacher. Mr. Bennett 
put himself through law school by coaching sports at a local 
Catholic high school. So it has been just hard work, 
dedication, values around patriotism, and then really 
developing outstanding skills as a lawyer.
    I am just going to submit my statement for the record. 
Senator Sarbanes covered it, and I note others.
    When you have got someone who was honored by the Maryland 
State Attorneys' Association, by getting an award from a 
Democratic Governor for his work on victims' rights, for also 
being a volunteer at a soup kitchen, and found time to be a 
U.S. Attorney, to be a dad. I think this is the kind of person 
we want, and his peers say this man is tough, fair, balanced, 
and one smart lawyer, and I think he will be a terrific judge.
    Senator Cornyn. Thank you very much, Senator Mikulski and 
Senator Sarbanes, for your introductions. We appreciate that 
very much.
    I know that a number of members both on the Senate side and 
the House side have other conflicts. I am trying to accommodate 
your schedule the best I can. I know, Senator Bingaman, I know 
you have a pressing engagement elsewhere, but we would be 
delighted to hear from you and any comments you might have.
    The Chairman. Mr. Chairman, before he starts, I just 
couldn't help but notice all the Senators here endorsing 
President Bush's nominees. They are all Democrats. It is just 
somewhat unusual because we so rarely were able to get a lineup 
like that when President Clinton was here for Republicans to 
endorse his nominees. I am glad to see bipartisanship is back.
    Senator Cornyn. It is refreshing. I am happy, as you are, 
to see such consensus selections and such bipartisan support.
    Senator Bingaman?

 PRESENTATION OF SUSAN G. BRADEN, NOMINEE TO BE JUDGE FOR THE 
 COURT OF FEDERAL CLAIMS, AND CHARLES F. LETTOW, NOMINEE TO BE 
JUDGE FOR THE COURT OF FEDERAL CLAIMS, BY HON. JEFF BINGAMAN, A 
           U.S. SENATOR FROM THE STATE OF NEW MEXICO

    Senator Bingaman. Thank you, Mr. Chairman. I will be very 
brief, but enthusiastic, in speaking on behalf of two of the 
nominees, the two nominees before you today for the U.S. Court 
of Federal Claims, Charles Lettow and Susan Braden.
    Chuck Lettow and I became acquainted--he and my wife and I 
became acquainted when we were all in law school at Stanford 
over 35 years ago. He is a superb lawyer. He has been with the 
Cleary Gottlieb firm for over 25 years. He has had raw 
litigation experience. He clerked for the Supreme Court and for 
the Court of Appeals before that. His reputation as a lawyer, 
as a litigator, as a fair, balanced, even-handed individual, I 
think, is unparalleled. So we are very fortunate to have him as 
a nominee for this position.
    Susan Braden, I have also known for a long time, not as 
long as I have known Chuck, but she is also extremely 
accomplished and respected in her field. She has over 30 years 
of litigation experience, both in the Federal Government and 
the private sector. She is now with Baker and McKenzie, 
practices in antitrust, intellectual property, tax and property 
rights areas, and specializes in complex civil litigation. She, 
again, is an extremely qualified nominee for this important 
position.
    I commend both nominees to the Committee and I urge you to 
act favorably upon them and do so quickly. Thank you very much 
for allowing me to speak today.
    Senator Cornyn. Thank you very much, Senator Bingaman. We 
appreciate your testimony here today.
    Since we have such a distinguished panel and I know 
everybody has got various other pressing engagements, I 
understand Congressman Tauzin has an appointment at 3:30. 
Senator Landrieu, would you mind if we turn to our colleague 
from the House first?
    Senator Landrieu. Go right ahead.
    Representative Tauzin. It is not necessary. I always yield 
to my colleague.
    Senator Landrieu. Ooh, he is being so nice today.
    [Laughter.]
    Senator Landrieu. Thank you, Mr. Chairman.
    Senator Cornyn. We would be delighted to hear from you, 
Senator.

PRESENTATION OF DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR 
  THE WESTERN DISTRICT OF LOUISIANA, BY HON. MARY LANDRIEU, A 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Landrieu. I will just be very brief, and I thank 
the Congressman. I will submit this statement on behalf of 
actually Senator Breaux and myself and the Congressman will add 
his own personal words. But we are all pleased to be here today 
to really enthusiastically support this nominee, Dee Drell, for 
the Western District.
    Dee has practiced law for over 30 years. He started out as 
an Advocate General for the Corps with the Army and then spent 
30 years with the Gold law firm. But his career has not only 
spanned 30 years, Mr. Chairman, but he has done almost every 
aspect or practiced every aspect of law from criminal 
prosecution to criminal defense, insurance defense, plaintiffs' 
work, and has a wide array of other litigation cases.
    In addition to this broad and very deep understanding of 
the law, he has also served his community in many special ways. 
I particularly was impressed with his commitment as a lay 
preacher with the Episcopal Church in his home district, as 
well as volunteering a great many hours to the Louisiana Task 
Force on Racial and Ethnic Fairness in the Courts. He is a 
board member for the Family Mediation Council, which I think is 
also very impressive as we try to keep our families together 
and strengthen them and minimize the conflict in divorce and 
separation. I think that goes a long way.
    He stepped out, Mr. Chairman, many years ago, before we 
really had come together as a community to understand how to 
advocate for those stricken with AIDS and spoke out in this 
community and advocated for their legal defense and their fair 
shake under the law.
    With that, I will submit the rest of my statement. His 
wife, Susannah, is here, and I know Congressman Tauzin joins me 
in saying how pleased and proud we are to support someone with 
such excellent legal credentials, but also has shown such a 
compassion and a heart for the people that he represents and 
seeks to serve. Thank you.
    Senator Cornyn. Thank you, Senator Landrieu. We will 
certainly make your statement, as well as Senator Breaux's in 
support of this nominee, part of the record, without objection.
    Congressman Tauzin, we would be delighted to hear from you.

PRESENTATION OF DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR 
  THE WESTERN DISTRICT OF LOUISIANA, BY HON. BILLY TAUZIN, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA

    Representative Tauzin. Senator, thank you and greetings 
from the Governor. I have to tell you, I recently had the 
pleasure of cooking him a gumbo at his mansion in Austin, and I 
am becoming an honorary Texan, I think.
    [Laughter.]
    Representative Tauzin. Let me thank Mary and John for their 
excellent statements in support of our candidate, Dee Drell. He 
is truly, as Mary said, a remarkable individual.
    How many nominees do you find who have practiced both as 
trial attorneys and as defense council for insurance firms, and 
criminal defense, as well? His background is truly extensive in 
that regard. It includes, by the way, service in the United 
States Army in the JAG Corps, stationed in Fort Benning.
    He and Susannah are the proud parents and even grandparents 
now of three children and two grandchildren. They are sort of 
the rock-bed people you want to live next door to, just great 
individuals, dedicated to his work and service to the bar and 
to legal counsel.
    Mary has articulated some of the most, I think, sterling 
qualities about Dee personally, and that is his commitment to 
community, his work with his church and his work for those less 
fortunate, his defense of indigents in his community on the 
Indigent Defender Board, his work with the AIDS victims in his 
community and their legal rights, and his work for families in 
trouble and trying to help them out through difficult times.
    He has got what we would all want in a judge if we were 
ever called before the bench, and as someone who knows the law, 
loves the law, respects it, and at the same time has a sterling 
heart and understands human nature. He is the kind of person, I 
think, that the Senate will feel extraordinarily proud the day 
you bring him up and vote him into the membership of the United 
States District Courts.
    He is going to make our State proud, too. We produce some 
pretty interesting and very dramatic personalities in our 
politics, but we also produce some incredible jurists. He would 
be one of those. I predict that once you take our 
recommendation to heart and act on it and the Senate acts on 
it, that there will be a day when you look back on this and 
say, boy, that was a good move we made because we put a great 
person on the Federal bench who is going to serve this country 
well and be a model for other jurists around the country.
    I really feel good about this nominee. Our whole delegation 
worked hard in selecting him. We work as a team, Democrats and 
Republicans, when we make our nominations, and as you can see 
with John and Mary's support, that is evident here today. We 
hope that you will act speedily on his nomination and present 
him to a life of service on the Federal bench. Thank you.
    Senator Cornyn. Thank you.
    Senator Leahy. Merci. Merci.
    Representative Tauzin. I don't talk French any more, 
Senator.
    [Laughter.]
    Representative Tauzin. In fact, I apologize for the fleur 
de lis on my tie today.
    Senator Leahy. You never spoke it very well to begin with.
    [Laughter.]
    Representative Tauzin. Well, I didn't speak that real 
French. We speak a Cajun variety.
    Thanks again.
    Senator Cornyn. Congressman Tauzin, thank you very much. We 
appreciate your appearance here today and your contribution on 
the House side and certainly here today, as well. Thank you.
    Representative Tauzin. Thank you very much.
    Senator Cornyn. I would be delighted to hear from our 
colleagues from Arkansas. Senator Lincoln, we would be 
delighted to hear your testimony.

 PRESENTATION OF J. LEON HOLMES, NOMINEE TO BE DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON. BLANCHE LINCOLN, 
           A U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Lincoln. Thank you, Mr. Chairman, and I will try to 
be brief, as well. To the Chairman and members of the Judiciary 
Committee, I certainly appreciate the opportunity to appear 
before you this afternoon to introduce Leon Holmes, who has 
been nominated to be United States District Judge for the 
Eastern District of Arkansas.
    As the senior Senator from Arkansas--
    Senator Pryor. She likes to rub that in.
    [Laughter.]
    Senator Lincoln. Well, I am the last of four children. I 
never got to be senior anything.
    [Laughter.]
    Senator Lincoln. I am very pleased to support Mr. Holmes 
for this very important post.
    We are joined today by his wife, Susan, and two of his five 
children, J. Frank and Hannah, and I know they are very, very 
proud of their father and I certainly know why, having visited 
with him, and I am sure the Committee will be, as well, as they 
finish these proceedings.
    After reviewing his record and speaking with many of his 
friends and colleagues in Arkansas, I can assure the Committee 
that Leon Holmes is not only a superb lawyer and a 
distinguished scholar, he is also a very trusted friend by 
many. They hold him in high regard, and that goes for many 
people across our great State.
    Mr. Holmes is a native of Hazen, Arkansas, which isn't too 
far from my hometown of Helena over in East Arkansas. After 
high school, Leon graduated with special distinction from 
Arkansas State University in 1973. Not satisfied with only a 
baccalaureate degree, he continued his education by earning a 
law degree from the University of Arkansas, a master's degree 
in political philosophy from Northern Illinois University, and 
a doctorate in political science from Duke University.
    Leon's professional career is equally as impressive. In 
addition to being named as a partner at the law firm of 
Quattlebaum, Grooms, Tull and Burrow in Little Rock, Mr. Holmes 
has held a variety of positions, including law clerk for 
Justice Frank Holt on the Arkansas Supreme Court, also as 
assistant professor at Augustana College in Rock Island, 
Illinois, and adjunct facility member of the University of 
Arkansas at Little Rock School of Law.
    Additionally, which I found to be very interesting, you all 
may also find as interesting, that while pursuing his 
education, Mr. Holmes worked as a door-to-door salesman, a 
newspaper carrier, a carpenter's helper, and my favorite, a pea 
picker.
    [Laughter.]
    Senator Lincoln. Well, as a farmer's daughter, let me tell 
you, I hold that in great esteem, having worked the land 
myself. And I also believe the fact that Mr. Holmes knows the 
value of an honest day's work, both as a lawyer and as a 
laborer, I think it is a good indication that he has the life 
experience required to administer the law in a fair and 
impartial manner regardless of who the litigants before him may 
be.
    Even though Mr. Holmes and I may not agree on every issue, 
that is not the only test I apply to determine an individual's 
fitness for the Federal Judiciary. I evaluate judicial nominees 
based on their willingness to cooperate with the Senate during 
the confirmation process. Then in addition, I carefully 
consider a nominee's skills, their experience, intellect, and 
ability to understand and apply established precedent.
    Fundamentally, I am very interested in knowing that a 
nominee can fulfill his responsibility under the Constitution 
to apply the law fairly, without political favor or bias. 
Having visited with Mr. Holmes in my office extensively, I am 
satisfied that Mr. Holmes has met that standard.
    In closing, I want to thank Chairman Hatch and Senator 
Leahy for working with Mr. Holmes and with me and my staff in 
preparing for this hearing today. I appreciate the 
consideration of this nominee and I encourage members of the 
Committee to support his confirmation and do it in an 
expeditious way, and I would like to take this opportunity to 
congratulate Mr. Holmes and his family for such much in terms 
of the achievements they have already made and the many ways I 
know that they will make all Arkansans very proud. Thank you, 
Mr. Chairman.
    Senator Cornyn. Thank you very much, Senator Lincoln.
    We would now be delighted to hear from the junior Senator 
from Arkansas, Senator Pryor.
    [Laughter.]

 PRESENTATION OF J. LEON HOLMES, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON. MARK PRYOR, A 
            U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Pryor. Thank you, Mr. Chairman. It is an honor for 
me to be here today and introduce to the Committee Leon Holmes.
    One thing I have to disclose on the front end is that I 
have known Mr. Holmes since 1986, when I was a summer law clerk 
at his law firm of Wright, Lindsey and Jennings in Little Rock. 
After I graduated from law school, I joined that firm as an 
associate and he and I worked together there until he left a 
year or two later. I consider him a friend. He has gained the 
reputation in the last several years as being one of the finest 
lawyers in Arkansas and I am very, very proud of his career and 
very proud to have watched him develop and grow as a person and 
as a lawyer over the years.
    There is no question in my mind that Leon is very qualified 
for this position. Also, I have no question and no doubt about 
the fact that he will be fair and impartial. I have talked to a 
number of lawyers in Arkansas. They are very pleased with 
President Bush's selection here. There are a lot of lawyers and 
a lot of people in the State that may not agree with him 
completely on some issues, but they certainly feel like he is 
qualified to be on the bench, he will set his personal feelings 
aside, and he will administer justice fairly and impartially.
    Whenever you talk to lawyers in Arkansas about Leon Holmes, 
there is one word that keeps coming up. First, they always say 
how smart he is and how hard he works and just what a decent 
human being he is. But the one word that keeps coming up is 
``integrity,'' and he has it, and I am very proud that 
President Bush has nominated him and I am proud to support his 
nomination today. Thank you.
    Senator Cornyn. Thank you, Senator Pryor, and thank you, 
Senator Lincoln. We are glad to have you here today.
    Chairman Hatch, who was not able to be here, does have a 
written statement for the record which will be entered in the 
record, without objection, as does Senator Grassley supporting 
Charles Lettow. Senator DeWine has a statement supporting Susan 
Braden. Senator Hutchison has a written statement concerning 
Judge Edward Prado and Susan Braden, as well. It is without 
objection, each of those will be entered in the record.

 PRESENTATION OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE FIFTH CIRCUIT, BY HON. JOHN CORNYN, A U.S. SENATOR FROM 
                       THE STATE OF TEXAS

    Senator Cornyn. I am happy that Chairman Hatch has asked me 
if I could help fill in today to chair this proceeding for many 
reasons, but especially because of my admiration for and 
support for President Bush's nomination of Edward Prado to the 
U.S. Court of Appeals.
    I have known Ed and Maria and their son, Edward, for many 
years, since we are natives of San Antonio, Texas, and I can 
say that in the years that Ed Prado has served on the bench, 
first as a State District Court judge and in recent years as a 
United States District Court judge, he is an exceptional jurist 
and I am confident he will continue to serve with great 
distinction on the Fifth Circuit Court of Appeals.
    There are actually three vacancies on the Fifth Circuit, 
and two vacancies from Texas, alone. President Bush has 
nominated Priscilla Owen to fill one of the others and her 
nomination was acted on favorably by the entire Judiciary 
Committee this morning and will now be reported to the floor.
    The Judicial Conference has designated both of these 
vacancies on the Fifth Circuit as judicial emergencies. The 
American Bar Association, which has sometimes been referred to 
as the gold standard, has unanimously rated Judge Prado ``well 
qualified,'' a rating that he is certainly deserving of.
    So I look forward to today's hearing and my hope is that 
Judge Prado's nomination will be acted on favorably not only by 
the entire Judiciary Committee, but then he will be swiftly 
confirmed and will be serving soon on the Fifth Circuit Court 
of Appeals.
    Prior to his service, or, I should say, after he served on 
the State District Court bench, Ed Prado served as a public 
defender in the Western District of Texas and then as U.S. 
Attorney from 1981 to 1984. He is a graduate of the University 
of Texas, receiving both his undergraduate and law degrees 
there, and started his career as an Assistant District Attorney 
in Bexar County, of which San Antonio is the county seat, and 
also served in the U.S. Army Reserves from 1972 to 1987.
    Throughout his two decades of service, both to the State of 
Texas and to the nation while in the Federal system, Judge 
Prado has served with compassion, respect for the law and for 
the lawyers and litigants who come before him, and, I might 
add, with good humor, something he is especially noted for. His 
courtroom demeanor not only has served to help put litigants, 
witnesses, and jurors at ease, which is an important 
characteristic of a trial judge, but it has not detracted from 
the appropriate seriousness of the proceedings in which he has 
presided.
    Those same characteristics, each of those characteristics, 
I am confident, would serve him well in his new role in the 
Federal Judiciary on the Fifth Circuit. Obviously, he would be 
interacting not only with counsel, but with his colleagues on 
the court and with others who come in contact with the court, 
should he be confirmed.
    I urge all the members of this Committee to give Judge 
Prado favorable consideration.
    At this point, I am going to withhold any further sort of 
general statement and ask the ranking member, Senator Leahy, to 
make any remarks that he may wish to make. Senator Leahy?

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. We kind of have to 
be here, but our colleagues wanted to leave, so I wanted to 
give them a chance to speak first.
    This is our sixth Judiciary Committee hearing for the 29th 
judicial nominee held in the last 2 months. We have moved 
expeditiously. We have confirmed 11 judicial nominees, a couple 
more next week, which will bring us to about 15. I commend my 
colleagues on the other side of the aisle, because I remember 
the last time the Republicans were in the majority in the first 
session of a Congress, they didn't confirm 15 judges until 
September. In fact, they didn't have the sixth hearing until 
the end of October. It is probably coincidence that there was a 
Democratic President at that time and that is why it took until 
September to get 15 judges, a Republican President now, and I 
just mention that for whatever it is worth.
    I am pleased to see a new nominee from Texas to the Fifth 
Circuit, Judge Prado, and I have read with a great deal of 
interest his background, especially a couple of the trials he 
held. It has been a long time since we have had a Latino 
nominee to the Fifth Circuit. I think it was Chairman Biden who 
had the last nomination, and that was for Judge Benavides 9 
years ago.
    Of course, President Clinton did nominate two talented 
Hispanic nominees to vacancies in the Fifth Circuit, Enrique 
Moreno and Judge Jorge Rangel, and you were referring to the 
ABA. They had the highest possible ratings, but it wasn't that 
they got voted down, they just never had a hearing. They never 
had a vote, never had a hearing. Actually, there was a third 
nominee of President Clinton's to the Fifth Circuit, Alston 
Johnson of Louisiana, with strong support of both his home 
State Senators, but he was never allowed to have a hearing, 
either.
    I mention this because sometimes there is a question of how 
hearings go. None of these Fifth Circuit nominees were ever 
allowed to have hearings. There are a lot of others. Ricardo 
Morado was never given a hearing, Christine Arguello another. 
Judge Richard Paez, Sonia Sotomayor, and Hilda Tagle were held 
up.
    We have tried to do different here. In fact, in 17 months 
when I was Chairman, we whipped through about 100 judges, 
setting an all-time record, an all-time record at least during 
the last two Presidencies.
    So I congratulate you, Judge Prado and the others. Judge 
Ruben Castillo, who is a U.S. District Court judge in Illinois 
and a member of the Sentencing Commission, speaks very highly 
of you, and he came in and told me that. I have a high regard 
for him, so I was pleased with that. The Congressional Hispanic 
Caucus is impressed with you, sent the Committee a letter 
supporting your confirmation.
    Then we have the three District Court nominees, Richard 
Bennett, Dee Drell, and Leon Holmes. Mr. Holmes' record does 
leave me with some concern, and I will submit a number of 
questions for the record. I know it was, Mr. Chairman, when 
your party controlled this Committee during the Clinton 
Presidency, we were told that if you had somebody with a record 
of activism like Mr. Holmes, that they would not be allowed to 
have a hearing, and your side was always very consistent on 
that. They didn't.
    I take that back. There was one of Senator Specter's former 
aides who said she was an activist, Mary McLaughlin, and made 
her really fight to get out of Committee. But then, of course, 
an anonymous hold was put on by your side, so she was never 
allowed a vote. Apparently, it appeared that in private 
practice in a firm in Philadelphia where they handled pro bono 
cases, she dared to handle one involving choice issues. I don't 
think anybody is going to do that on Mr. Holmes, but I am sure 
we will be told if we do that we are resorting to inflammatory 
rhetoric.
    I mention this because there seems to be very, very much of 
a double standard. We have two more of this President's 
nominees to the Court of Federal Claims. As I explained at our 
last hearing, appointments to this court have--I have been here 
with six Presidents--have always had a tradition of bipartisan 
cooperation. Federal Claims have had a certain number of 
Democrats, a certain number of Republicans. The first time--I 
have been here with President Ford, President Carter, President 
Reagan, former President Bush, President Clinton, now this 
President Bush.
    All the other Presidents always followed what had been the 
practice for Presidents long before I came here of having that 
accommodation and compromise, both parties. This has not been 
here. For more than 2 years, Republicans blocked President 
Clinton's appointment, Larry Baskir, until a compromise could 
be reached. They refused to give him a hearing, refused to 
allow any other vacancies to be filled until the administration 
promised to keep conservative Judge Loren Smith as the Chief 
Judge.
    Finally, Senator Hatch agreed to allow President Clinton's 
nominees to have hearings and votes if the administration named 
a staff member of his to the court. Shortly after President 
George Bush was inaugurated, he removed the court's chief judge 
and installed Senator Hatch's staff member as the new and 
current chief judge. It may be fine and all that, but it is 
different than the way it was done.
    Last fall, the Democrats were in the majority. We took the 
exceptional action of moving the nomination of Larry Block, 
another staff member for Senator Hatch, to the Court of Federal 
Claims at the request of the ranking Republican, even though it 
was a turn for a Democrat. We thought we would have some kind 
of bipartisan fairness. We didn't get it. In fact, Judge Sarah 
Wilson, who was serving with distinction on the Court of 
Federal Claims, well respected, talented lawyer, graduate from 
Columbia and so on, was bounced out by the President and Senate 
Republicans refused to accommodate a request to consider her 
nomination for a continued position there.
    I say this because we see the same thing with respect to 
the Sentencing Commission, Parole Commission, and others, and I 
worry that we are allowing that kind of accommodation, the kind 
of bipartisanship that usually moves things along very well, 
something I tried to do by setting a record, I don't think 
during the 6 years that the Republicans controlled this 
Committee and President Clinton was there, I don't think there 
was ever a time in 17 months when they moved as many judges as 
I did for President Bush. They certainly didn't for the 17 
months prior to me taking over. We thought there would be some 
recompense, but there has not been.
    I will point out what Senator Sessions, who is here, and 
Senator Grassley have argued, that vacancies on courts such as 
the D.C. Circuit remain open due to the enormous costs that are 
involved in filling that position.
    Senator Sessions. That still may not need to be fully 
filled.
    Senator Leahy. I believe their report was that it costs 
about $1 million per judge. The Washington Post wrote today the 
Court of Federal Claims should be eliminated altogether. They 
do have a case load that is about an eighth that of the 
District Court.
    So I just mention that. It is funny how some of these 
things that are raised, depending upon who is in the White 
House, suddenly change. I would urge the White House and 
Chairman Hatch to work with us to assemble the type of 
bipartisan panel that Senator Hatch helped assemble in 1997 and 
1998 when President Clinton was there to fill the remaining 
vacancies that showed balance.
    I am hopeful by nature. In my faith, we always believe in 
redemption. In this Lenten season, I just pray for such 
redemption, Mr. Chairman. Now that the white-haired group have 
taken over the thing, I will leave you to your own devices, but 
I will submit a number of questions for the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Senator Leahy.
    I want to recognize Senator Sessions in just a moment, but 
your comments do provoke a few thoughts of mine that are not 
new--
    Senator Leahy. I thought they might.
    Senator Cornyn. --not new to you, since we have discussed 
them previously. I must tell you that for somebody who is new 
to this institution, but somebody who has been in public 
service before at the State and local level, I really think 
that the judicial confirmation process needs some serious work. 
I think we need a fresh start.
    I do not see that we are doing the job that we should be 
doing for the American people in a bipartisan way by pointing 
to past grievances on both sides, and I realize that for every 
one that Republicans might point to, Democrats would point to 
some that they perceive as being wrong. I really would not--and 
I am sure it goes both ways--I would not really want to make 
any judgment about that because, frankly, I think there is 
nothing that I could say or that anybody else could say that 
would probably convince either side that they are wrong.
    All I would say is that as somebody who is new to the 
Senate and somebody who is an eternal optimist, as you are--I 
think you have to be an optimist to be in public life today 
because you have to look for opportunities toward the future 
and hope rather than get bogged down into the sins of the 
past--that we could, on a bipartisan way, come up with some 
process that would be a tremendous improvement over the current 
judicial confirmation process.
    I think the depths to which the process has sunk at this 
point is really one that does not reflect well on this 
institution. I don't think it serves the interests of the 
American people well. I think it also does not serve the people 
who are nominated by the President, whether they be a 
Republican or a Democrat office holder, well. I think it 
probably discourages people who are nominated or who might be 
nominated to serve in these important positions when their 
nominations are left pending for so long or when, as you point 
out, they don't get a vote, an up-or-down vote either in the 
Committee or, as we see now, on the Senate floor in the case of 
Miguel Estrada.
    I wish, and this is maybe just an expression of my 
hopefulness and my optimism, that we can look beyond what has 
happened in the past and look forward and try to find a way 
that we can do the job that we have been elected to do here in 
the Senate better than we have done in the past.
    I understand, since you have been here longer than I have, 
much longer, you have a knowledge and an experience that I do 
not have in terms of how the process has worked in the past, 
but I would, rather than look to the past, I would look to the 
future as an opportunity to perhaps break with that past to the 
extent that this process has not served the American people or 
the United States Senate very well.
    Senator Leahy. Mr. Chairman, if I could just respond to 
that very briefly, the Senator from Texas comes from a great 
State. He has one of the finest backgrounds of any Senator 
here, having served in all three branches of government and 
having done that with distinction. I mean that very seriously 
and I think he is a welcome addition to the Senate and improves 
the gene pool to the extent that we have that. And again, I 
mean that very seriously.
    I take to heart what he has said. I find myself in 
agreement with almost all of it, or probably all of it. The 
only thing I would look to for the past is it has been my 
experience, and my experience with five of the last six 
Presidents of both parties, that there was always an effort, a 
real effort on the part of the White House to work with both 
parties in the Senate when it came to judicial nominations.
    In talking when I was first here with Senators, again from 
both parties, who had been here at that time a long time, they 
told me that had always been their experience. At that time, 
when I was first here at the age of 34, some of the much older 
ones at that time had served in the time of President Truman 
and said that through all those Presidents, Truman, Eisenhower, 
Kennedy, Johnson, Nixon, there had always been this effort on 
judicial nominations.
    I could say honestly that this White House, there has not 
been that effort, and I think that if there was, I think that 
there would be, certainly among the Senators in both parties 
who care, as the Senator from Texas obviously does, there would 
be a response to it in such a way that most of these problems 
would not exist, and I have discussed this with a number of 
senior members of the Senator's party as well as senior members 
of my party who are no longer here, who have just observed it 
from the outside. They all feel the same way.
    I pass that on because I share his hope that that may 
change, but it is a change that has to come from both ends of 
Pennsylvania Avenue. It can't be simply a case of dictating. 
The Constitution does say ``advise and consent,'' not ``advise 
and rubber stamp.'' I think it could be better, especially as I 
find with our personal friendships. The Senator Alabama, who is 
here, and I are not ideological soul mates, but time and time 
again, we have accommodated each other on things of interest to 
each other because we realize that life has to go on.
    I pass that on. We are waiting to talk to these nominees, 
and I would be glad to work with the Senator from Texas in the 
future on this.
    Senator Cornyn. Thank you, Senator Leahy. I appreciate 
that. I will take you up on that.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Senator Leahy, I would nominate Judge 
Cornyn. Maybe we can nominate Judge Cornyn and find him a 
partner and lead us out of this thicket, smooth over some of 
the difficulties we have had.
    Senator Leahy. If you didn't have white hair before, you 
would after that.
    [Laughter.]
    Senator Sessions. I would just like to say in brief 
response that in President Clinton's administration, there were 
377 judges confirmed, only one voted down. None were ever 
filibustered on the floor. None were ever voted down in 
Committee on a party-line vote. And when he left office, there 
were only 41 nominees left pending unconfirmed. When former 
President Bush left office and the Democrats controlled the 
Senate, there were 54 nominees unconfirmed.
    I think the record is--there has been far too much 
criticism of the Republican record on confirmation of President 
Clinton's judges. The numbers do not justify that. But we can 
discuss that, and maybe it is time for us to see if we can 
reach some more harmony. Judge Cornyn, I nominate you to maybe 
lead us into a more happy day.
    Senator Cornyn. Thank you for your vote of confidence, 
Senator Sessions. I appreciate that. It is my hope that we can 
do better than we have in the past.
    The Committee will now hear from Judge Edward Prado of San 
Antonio, who has been nominated to the U.S. Circuit Court for 
the Fifth Circuit. Judge Prado, if you come forward, and if you 
would please raise your right hand before you sit down so that 
I can administer the oath.
    Do you swear that in the testimony you are about to give 
before the Committee, you will tell the truth, the whole truth, 
and nothing but the truth, so help you, God?
    Judge Prado. I do.
    Senator Cornyn. Thank you. Please have a seat.
    Judge Prado, if you would like to give an opening statement 
or introduce perhaps your better half or any other friends or 
supporters you have here with you, please feel free to do so.

 STATEMENT OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE FOR 
                       THE FIFTH CIRCUIT

    Judge Prado. Thank you, Senator, and thank you for the 
opportunity--thank the Committee for the opportunity of 
accommodating us today and hearing us. I know that the Senate 
has a very busy schedule this week, a hectic schedule, and I 
know I speak for the other nominees and we appreciate you 
taking the time to accommodate us and giving us the opportunity 
to appear before the Committee today.
    With me today is my wife of 29-and-a-half years, my best 
friend, the judge at home. She is the one that wears the robe, 
Maria Prado. Some dear friends from the Administrative Office 
of the Courts, the Chief of the Defender Services Division of 
the Administrative Office of the Court, Ted Lidz, two of my 
dear friends that are in that office with him, Merrill Friedman 
and Dick Wolfe, and also from the Administrative Office, 
Richard Jaffee is here and I appreciate them coming over.
    I would like to also recognize our son, who is not here 
today. He is in college and could not be here, Edward. He is 
here in spirit. Hopefully, he is hitting the books and 
studying, as well.
    Also, my parents who could not be here. My father, who is 
87 years old, my Little League coach, my soccer coach, disabled 
veteran from World War II and past President of his DFW Post, 
and up until last year, he was still driving to the bingos and 
helping run the bingos at his DFW Post every night. My mother, 
who is 84. She was my Den Mother when I was a Cub Scout, was 
PTA President when I was in elementary school, was PTA 
President when I was in high school. So I would like to 
recognize my parents who have done a lot for me and I 
appreciate it.
    Senator Cornyn. Thank you, Judge Prado.
    [The biographical information of Judge Prado follows:] 
    [GRAPHIC] [TIFF OMITTED] 90303.631
    
    [GRAPHIC] [TIFF OMITTED] 90303.632
    
    [GRAPHIC] [TIFF OMITTED] 90303.633
    
    [GRAPHIC] [TIFF OMITTED] 90303.634
    
    [GRAPHIC] [TIFF OMITTED] 90303.635
    
    [GRAPHIC] [TIFF OMITTED] 90303.636
    
    [GRAPHIC] [TIFF OMITTED] 90303.637
    
    [GRAPHIC] [TIFF OMITTED] 90303.638
    
    [GRAPHIC] [TIFF OMITTED] 90303.639
    
    [GRAPHIC] [TIFF OMITTED] 90303.640
    
    [GRAPHIC] [TIFF OMITTED] 90303.641
    
    [GRAPHIC] [TIFF OMITTED] 90303.642
    
    [GRAPHIC] [TIFF OMITTED] 90303.643
    
    [GRAPHIC] [TIFF OMITTED] 90303.644
    
    [GRAPHIC] [TIFF OMITTED] 90303.645
    
    [GRAPHIC] [TIFF OMITTED] 90303.646
    
    [GRAPHIC] [TIFF OMITTED] 90303.647
    
    [GRAPHIC] [TIFF OMITTED] 90303.648
    
    [GRAPHIC] [TIFF OMITTED] 90303.649
    
    [GRAPHIC] [TIFF OMITTED] 90303.650
    
    [GRAPHIC] [TIFF OMITTED] 90303.651
    
    [GRAPHIC] [TIFF OMITTED] 90303.652
    
    [GRAPHIC] [TIFF OMITTED] 90303.653
    
    [GRAPHIC] [TIFF OMITTED] 90303.654
    
    Senator Cornyn. Since you and I know each other very well 
and have for, as best I can figure, about the last 23 years--
    Judge Prado. I won't tell on you if you won't tell on me.
    [Laughter.]
    Senator Cornyn. I want to recognize Senator Sessions, I 
guess, for any questions he may have at this point and I will 
reserve.
    Judge Prado. Senator Sessions and I also go back a long 
way. We were part of the Department of Justice and we were U.S. 
Attorneys in our respective divisions some time back.
    Senator Cornyn. That is what I hear, so he may have some 
questions for you.
    Senator Sessions. Judge Prado, it is a delight to see you 
in this position. It was all of us in the U.S. Attorney team 
who were so happy when you were appointed to the District 
bench. I can say without hesitation, Senator Cornyn, that there 
were none of the 94 United States Attorneys better liked and 
more respected than Judge Prado and it was a real day of 
celebration when he ascended to the bench and left the pit of 
the United States Attorney's Office. He did a great job as 
United States Attorney and I really--he was well known for 
that. So I salute you and congratulate you, Judge.
    I notice you have written about the courtroom and 
technology. I go back to my old courtroom in Alabama now and 
they have got it wired and Assistant United States Attorneys 
are using all kinds of things. Do you think that is helpful, 
and what can we do to improve technology in the courtroom?
    Judge Prado. I am fortunate enough that the Administrative 
Office of the U.S. Courts has its national training center for 
judges in San Antonio and Federal judges from around the 
country come to San Antonio for computer training. As part of 
that program, they were able to put all sorts of technology in 
my courtroom. We have real-time instant transcript for the 
lawyers, videotaping ability, videoconferencing ability, 
Internet access and computers for the lawyers. It has really 
made trials easier, quicker. The juries understand. The lawyers 
are able to make their presentations through use of the 
technology and get their points across a lot easier and I think 
it has really helped the justice system having all this 
technology that makes it easier for everyone.
    Senator Sessions. Judge, one thing that I think is 
important to the democratic process, since you will be, I am 
confident, receiving a lifetime appointment, will not be 
subject to the voters or the public in any way, do you have a 
philosophy that properly respects the democratic branches of 
government that pass the laws and make the laws? I know Judge 
Paez was brought up. I was concerned about that. I voted for 
cloture and voted against his confirmation, but he had written, 
well, judges have a right to act when the legislature fails to 
act. It is incumbent on judges to act, he wrote, and that 
troubled me.
    Do you think, Judge, that the judicial branch is bound to 
the orthodox interpretation of language in statutes and that 
they should not reach beyond that to impose personal views 
through the court?
    Judge Prado. Senator, the law means what it says. It should 
be clear on its face what it means. We as judges are called 
upon to interpret the law. We are not there to set our judgment 
as to what is right or wrong. The laws are there to decide what 
is right and wrong and we are not there to clean up everything 
that we perceive as being wrong. That is not our 
responsibility. Our responsibility is to interpret the law as 
best we can that has been passed by the Senate, signed off by 
the President. Two branches of government had decided this is 
the law and we are, as judges, are bound to follow that law 
unless it is clear to us that for some reason that law is 
unconstitutional and violates the Constitution.
    I have always given due deference to laws passed by 
Congress and assumed that when the House of Representatives, 
the Senate, and the President have said that this is the law of 
the country, that myself as a District judge should give due 
deference to that law, and unless it is clear on its face to me 
that I am convinced that it is unconstitutional, I will follow 
the law as it was intended to be followed by Congress and the 
President.
    Senator Sessions. Thank you, and I think that is correct. 
In fact, I believe we are in some ways maybe having more of a 
confirmation and a deeper understanding of that, maybe not in 
this Senate, but I believe among the Bar as a whole, people are 
realizing that a lifetime-appointed judge must be neutral on 
political issues and it must be an arbiter of the law as 
written, and that does mean sometimes you may have to declare a 
statute unconstitutional. If it violates the Constitution, that 
is following the law. We do need to show restraint, I think.
    One more question. You have been a District judge now for a 
number of years. Do you have any thoughts about being a Circuit 
judge and some things you might be different than you have been 
subjected to over the years?
    Judge Prado. I think I will be more sympathetic and 
understanding of what took place at the District Court level, 
and I think that is what I bring to the Circuit Court. Nineteen 
years ago--19 years and one week ago, I had my confirmation 
hearing before this Committee for my District Court bench, and 
so it has been 19 years that I have sat there and I think I 
bring the practical experience of a trial judge to the Circuit 
Court and that will be invaluable experience that enables me to 
better understand what took place on the District Court level 
to determine if it was appropriate or not, and I think that 
experience that I have is going to be invaluable to me on the 
Circuit Court.
    Senator Sessions. I think it will, too. Judge, 
congratulations. I think your integrity, your work ethic, your 
commitment to America are going to stand you in good stead. I 
know you are going to be a great judge on the Court of Appeals 
and we are proud of you.
    Judge Prado. Thank you.
    Senator Cornyn. Thank you, Senator Sessions.
    Judge Prado, I, of course, know you appreciate the 
important distinction between your role as a trial judge and 
the role that you will now serve when confirmed as an appellate 
judge. I have heard appellate judge defined as a person who 
hides in the hills while the battle rages below, and when it is 
over, swoops down to shoot the wounded.
    [Laughter.]
    Senator Cornyn. Seriously, how do you regard the difference 
in the way that you will approach your job as a District judge 
with the collegial decision making process on an appellate 
court, where you will be a member of a panel, perhaps, in an en 
banc court?
    Judge Prado. It will be different, but I think my 
experience in different avenues is going to be invaluable. I 
talked with Senator Sessions about my experience on the 
District Court level, but having been an assistant Federal 
public defender and attempting to defend people in Federal 
Court was a humbling experience. Then running the U.S. 
Attorney's Office and seeing it from the avenue was very 
valuable. The short time I was on the District Court bench, the 
short time I was an Assistant District Attorney on the county 
level, bringing all those avenues of experience to the Circuit 
Court, I think is going to be invaluable.
    It will be a different job, dealing with--trying to work 
with other judges in reaching a decision. You won't be seeing 
as many people. It certainly will be a more isolated position. 
But I am looking forward to the challenge of doing something 
different and using all this experience I have to try to make 
as good a decision as I can on the cases that will be coming 
before me as a Circuit judge.
    Senator Cornyn. Thank you, Judge. I don't have any more 
questions myself personally, but as you can imagine at this 
time in our Nation's history, there is a lot going on here in 
Washington and particular here at the U.S. Senate. I know there 
are other members of the Committee who would like to be here 
today that are unavoidably absent who may want to submit 
questions to you in writing, and so the record will be left 
open for that process.
    But unless we have any further questions today from Senator 
Sessions, then we thank you for being here and would be glad to 
excuse you at this time.
    Judge Prado. Thank you.
    Senator Sessions. Congratulations.
    Senator Cornyn. Now, the Committee will hear from Richard 
D. Bennett, nominated to be the United States District Judge 
for the District of Maryland; Dee D. Drell, nominated to be 
United States District Judge for the Western District of 
Louisiana, which is within the Fifth Circuit; J. Leon Holmes, 
nominated to be U.S. District Court Judge for the Eastern 
District of Arkansas; and Susan G. Braden and Charles F. 
Lettow, who have both been nominated to serve as judge on the 
U.S. Court of Federal Claims.
    Before we get started, ladies and gentlemen, if you would 
please raise your right hand so you can be sworn.
    Do each of you swear that the testimony you are about to 
give before this Committee is the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Mr. Bennett. I do.
    Mr. Drell. I do.
    Mr. Holmes. I do.
    Ms. Braden. I do.
    Mr. Lettow. I do.
    Senator Cornyn. Thank you very much. Please, have a seat.
    If any of you would like to give an opening statement or 
introduce any family member or friends who have come here to 
support you here at this hearing, I know that joining the 
bench, ascending to the bench, as sometimes people refer to it, 
is a momentous event in the career of any lawyer and certainly 
I am glad that those of you who have been able to do so have 
brought friends and family with you to observe this hearing and 
to celebrate this important milestone in your career.
    I would like to go ahead and first recognize Mr. Bennett 
for that purpose, for any statement you might have or any 
introductions you might like to make.

 STATEMENT OF RICHARD D. BENNETT, NOMINEE TO BE DISTRICT JUDGE 
                  FOR THE DISTRICT OF MARYLAND

    Mr. Bennett. Thank you, Mr. Chairman. I would first like to 
thank President Bush for nominating me for this position and I 
certainly want to thank the strong support I have received here 
today from my two home State U.S. Senators, Senator Paul 
Sarbanes and Senator Barbara Mikulski. I am, indeed, humbled by 
their comments.
    My family, due to the confusion between yesterday and 
today, is not able to be here. My wife, Jane, daughter Ridgely, 
daughter Lizzy, and son Craig cannot be here. Particularly 
Craig is disappointed because he was able to cut classes 
yesterday for college, but I said 1 day is enough, so he is 
back up at college. My sister, Jackie, and particularly my 
mother, Mary Lou Bennett, to whom Senator Mikulski made 
reference earlier today. Today is her 85th birthday, so I will 
be with her later and would like to pay tribute to my mother on 
her 85th birthday.
    I thank you, Mr. Chairman.
    Senator Cornyn. Very good. Thank you, Mr. Bennett.
    Mr. Drell?

STATEMENT OF DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR THE 
                 WESTERN DISTRICT OF LOUISIANA

    Mr. Drell. Thank you, Senator. I want to, first of all, 
acknowledge the presence of my wonderful wife, Susie, who is 
right behind me here, literally standing or sitting behind me 
on purpose. She and I have been married for 33 years and we 
have three great children who could not be here. We had some 
friends here, as well, but they had to unfortunately fly home 
today.
    I have three wonderful children, as I said. Brad, my won, 
is an attorney, as well. He is back home holding down the fort 
at the firm, fielding my phone calls. I have another child who 
is in the--at the University of Texas in Austin, I might add, 
and my daughter graduated from there and is actually doing 
graduate work at LSU. So we have lots of connections there.
    I want to also express my gratitude to the President for 
the nomination, for the Congressional--to the Louisiana 
Congressional Delegation for its support.
    And I want to just say one other thing, and that is that I 
really--I had occasion to visit some folks ta a newspaper not 
too many moons ago and they asked me my impressions about the 
process for being nominated as a District judge, and the first 
words I could think of were that I was very pleased that the 
process really had a lot of integrity, and I mean that 
sincerely. I have been very pleased to see the manner in which 
I have been dealt with through certainly kindness, 
understanding, and I am most appreciative of being here today. 
Thank you.
    Senator Cornyn. Thank you, Mr. Drell.
    You and Mr. Bennett have both alluded to the fact, I 
believe, that we were supposed to proceed at a different time 
for this hearing and had to reschedule because of what is 
affectionately called the vote-a-rama during the budget 
resolution at which the Senators were required to vote every 
ten minutes on numerous amendments offered to the budget 
resolution, and so we appreciate your understanding of that and 
your flexibility.
    One of the things I have had to learn, being new to the 
Senate, is that once you become a member of the Senate, you no 
longer have any control whatsoever over your schedule, and so 
you are experiencing perhaps what Senators experience on a 
daily basis and it can be a little disorienting at times, but 
we appreciate your patience and your understanding on behalf of 
all your families and those who would have loved to have been 
here but cannot be here now.
    Mr. Drell. Thank you.
    Senator Cornyn. Mr. Holmes?

STATEMENT OF J. LEON HOLMES, NOMINEE TO BE DISTRICT COURT JUDGE 
              FOR THE EASTERN DISTRICT OF ARKANSAS

    Mr. Holmes. Thank you, Senator. I want to introduce my wife 
of 31 years, Susan, who is with me here. Two of our children 
are here, Hannah and J. Frank. Also with me is my secretary 
from my law firm, Lisa Cox, and Lisa tells me that she has met 
you, Senator Cornyn, when she worked for John Casey, and she 
refers to you as Justice Cornyn, so--
    Senator Cornyn. I am known by many names and titles.
    Mr. Holmes. It is always with great respect and affection 
in the way that you--in the kind and respectful way that you 
introduced yourself to her when you met her in John Casey's 
office when she was employed there.
    I do have a son who is married and has three children and 
lives in Michigan. They could not come. I have a son who is 
married and has two children and lives in the great State of 
Wisconsin. I have a daughter who is in college and as we speak 
is in Austria studying, I hope.
    I want to thank Senator Tim Hutchinson for submitting my 
name on a list to the President of the United States for 
consideration for this position. I want to thank the President 
for nominating me. And I do know that before the nomination, 
the President consulted with Senator Lincoln and with then 
Senator-elect Pryor and spoke with both of them before I was 
nominated, and it was before Senator Pryor was sworn in, and 
they both told him that they would support me and I very much 
appreciate their gracious and enthusiastic support through this 
process and the words that they said for me today.
    Senator Cornyn. Thank you.
    Ms. Braden?

STATEMENT OF SUSAN G. BRADEN, NOMINEE TO BE JUDGE FOR THE COURT 
                       OF FEDERAL CLAIMS

    Ms. Braden. I would like to thank the President for this 
great honor--
    Senator Cornyn. There is a little button there you need to 
press. There you go.
    Ms. Braden. I would like to thank the President for the 
honor of nomination to this interesting and very special court, 
and I think one that will be even more important to the country 
in the aftermath of the war and in the war on terrorism.
    I would like to mention, I was nominated for the seat of 
Roger Anderwalt, who was a colleague of mine in the Justice 
Department who passed away 2 years ago. We grew up together. We 
were friends. We had--our children were in school together. 
They were in bar or bat mitzvah classes together. It was very 
special to me to be nominated for Roger's seat. I will have a 
lot of work to do and big shoes to fill if I am fortunate 
enough to be confirmed through this process.
    I am very grateful to Senator Sessions and Senator 
Hutchinson, Senator Thurmond, who is not here, Senator 
Bingaman, all of which wrote letters to help me advance to 
become nominated by the President. Senator Cornyn, obviously, 
you have been a supporter, and all of their staffs. You know, 
the truth of the matter is, without them, all of this would 
have never been possible for me. I have had so many people who 
have been very helpful and I am very grateful for that.
    I would like to introduce my husband who is with me, Tom 
Susman, who is the Bruce Willis look-alike over here.
    [Laughter.]
    Ms. Braden. Tommy is going to have to leave because his 
daughter, Shana, is being--getting married, and he is going to 
run out of the hearing as soon as this is finished, I think, to 
get an airplane to see her. Our daughter, Daley Susman, is a 
freshman--a sophomore--excuse me, a junior at Yale, and she is 
currently in Madrid studying at NYU abroad for this semester 
and I am grateful that she is there and safe. And I am very 
grateful for all of you to make this hearing possible today and 
the great folks at the Justice Department who helped us 
prepare.
    Senator Cornyn. Thank you very much.
    Mr. Lettow, because of my last name, I am sensitive to 
mispronouncing others' last names and I hope I haven't 
butchered yours. Would you pronounce it for me?

  STATEMENT OF CHARLES F. LETTOW, NOMINEE TO BE JUDGE FOR THE 
                    COURT OF FEDERAL CLAIMS

    Mr. Lettow. Mr. Chairman, you have done just fine, in fact, 
perfectly. It is Lettow.
    Senator Cornyn. Lettow, okay. Very good. Thank you very 
much. please proceed with any statement or introductions you 
would like to make.
    Mr. Lettow. Mr. Chairman, I am especially grateful for the 
hearing. I know it has been a difficult hearing for the members 
of the Committee and so on, but I am actually very, very 
grateful that we are able to appear before you today. I am 
especially appreciative of the support of Senator Bingaman. We 
have known each other a long time and have been friends 
throughout that time. I am also especially grateful for the 
support of Senator Grassley, because our families have known 
each other also for even longer. And I am very grateful, as 
well, for the support of the Virginia Senators, John Warner and 
Senator George Allen.
    It happens that I am lucky, living in the immediate area, 
to have most of my family here. I actually am fortunate enough 
to have a bride. We have been married not quite 40 years. It 
shows a little bit about my age, but in any--probably hers, 
too--
    Senator Cornyn. Your good judgment, no doubt.
    Mr. Lettow. Well, it has all worked out very well. And my 
wife, Sue, is here, and most of our children are here, as well.
    Our daughter, who is a law professor in this city, had to 
teach class. She teaches criminal procedure, a favorite topic 
of hers, and has to teach this afternoon, so she is not here.
    Our eldest son, Carl, is here. He happens to be a 
litigator. I don't know how he got that particular profession 
in mind, but he is a litigator with a firm in the Virginia 
area.
    Our next son, John, is here. He is a scientist and 
engineer. John is accompanied by his wife, Phoebe, who is a 
graphic artist. They did not bring along their little son, Eli. 
That might have caused a little more disruption to the 
Committee than the Committee might want.
    And then, finally, our youngest son, Paul, who is in law 
school, but this happens to be his spring break, so he is in 
quite good shape.
    I also have been very fortunate in having had the same 
secretary for--I am going to say it, I am not sure she will 
appreciate it--29-and-a-half years. Cheyenne Cashin is here, 
and she doesn't look like we have been working together for 
that long, but she has been of great help to me and my 
colleagues.
    And I am also very lucky in having one of my colleagues 
here with whom I have worked for many years, Matthew Slater, 
and he is a fellow who has experience in all three branches of 
government and, in fact, served the last administration as the 
principal Deputy General Counsel of the Air Force, but has been 
a fellow with whom I have litigated cases for a long time.
    Senator Cornyn. Thank you very much.
    I just have really one question for each of you, and as I 
said, you have already been through a very extensive process, 
FBI background investigation, thorough vetting by the Justice 
Department obviously before the President chose to nominate 
you. There has been a thorough investigation of your 
qualifications and experience and I commend each one of you for 
meriting the confidence of the President for these important 
positions that you have been nominated to fill.
    I can tell you from personal experience that changing roles 
from that of a practicing lawyer to that of a judge is, indeed, 
a transformation, certainly a transformation in attitude and 
approach because, of course, the role that you will play once 
confirmed is different from the role that you have performed in 
the past as a practitioner.
    But I would just like to ask each one of you to comment in 
turn on this question, really. As you know well, the role of 
judge in our Federal constitutional system is unique. The 
people choose their Representatives in Congress and the 
President and Vice President in large part because of their 
position on a variety of political issues, both large and 
small, and, of course, they are frequently controversial, the 
positions that candidates for Congress or the executive branch 
may take.
    Judges are different. Judges are selected for their legal 
skills and for their ability to set aside your personal views 
in order to interpret and apply the law as written by others. 
What can each of you do to assure this Committee that, if 
confirmed, you will be able to put aside any personal views you 
may have, whether they be political or just deeply held 
personal convictions, on any particular matter and interpret 
and apply the law as written by others, whether it be the acts 
of Congress or precedents of a higher court?
    Mr. Bennett, if you would start with that.
    Mr. Bennett. Yes, Mr. Chairman. I just had the privilege of 
finishing reading David McCullough's book John Adams and was 
greatly moved by the passages there with respect to Chief 
Justice Marshall and the ultimate impact of Marbury v. Madison 
and what is the judiciary stays out of the political fray and 
merely interprets the law.
    And having been a U.S. Attorney on one side of the aisle in 
the courtroom and then having been an active lawyer on the 
other side, having been a counsel to a Congressional Committee 
before, I have a strong respect for the judiciary and its role 
and that is not to be a super-legislature, and I don't believe 
it is the role of a judge to aggressively try to impose his or 
her views, but merely to interpret the law, and indeed, to the 
extent that judges don't do that, it throws the whole system 
out of kilter.
    So I think it is very important to observe the fact that 
people arrive to this Congress, a strong presumption of 
constitutionality should be given to all the laws passed by 
Congress and all the emotions that are brought to the floor of 
the Congress and it is merely the role of a judge to interpret 
the law and apply the law as best he or she can.
    Senator Cornyn. Thank you, Mr. Bennett.
    Mr. Drell?
    Mr. Drell. Thank you, Mr. Chairman. What Mr. Bennett has 
said, of course, is correct, and interestingly, I come from the 
only what we call civil law State in the Union, Louisiana. 
Louisiana has always had the concept that the judge's role was 
to interpret the law as written by the legislature. The 
legislature has been deemed from the earliest days as the 
ground bulwark from which the other part springs, and 
interpretation comes second.
    The role of a judge is indeed to put one's personal 
business aside. The role of a judge is indeed to follow the law 
as is proclaimed by the legislature. It is not much different 
moving up to a Federal District Court in terms of the way I 
understand the role of a judge to be. It comes from that 
Louisiana background.
    So it is always--it is always possible, of course, for a 
judge to think about his or her personal feelings. The key is 
the ability to look at both sides of an issue, to be absolutely 
fair, to give the deference that is due to the statute, to the 
will of the legislature, if you will. And it is not that hard 
to do if you take your role and your duty and your oath 
seriously. So that is where I come down on it.
    Senator Cornyn. Thank you.
    Mr. Holmes, I would like to know whether you agree with the 
comments of Mr. Bennett and Mr. Drell, but I would also like to 
know, if you do agree, why in the world would you want to serve 
in a position where you would have to exercise restraint and 
you could not, if you were true to your convictions about what 
that role as a judge should be, how you could feel like you 
have done everything you could in order to perhaps achieve 
justice in any given case.
    Mr. Holmes. Senator, thank you very much for the question 
and for giving me the opportunity to say something about that 
topic.
    Let me say that, first of all, I know it is going to be 
difficult for this Committee to assess that question, and I 
know it is a very important question. The judiciary, above all, 
needs to be impartial, and it needs to not only to be 
impartial, but also to appear impartial.
    And the question that you asked really relates to 
integrity. It really relates to how seriously do you take your 
oath to be a judge and the recognition of the difference 
between the role as a judge and the role as a lawyer, an 
advocate, the role as a citizen participating in the democratic 
process and advocating sometimes views that are controversial 
for the sake of what that particular individual believes to be 
creating a better and more just society.
    I have always taken my obligations very seriously. I 
believe that I have the reputation in Arkansas, as reflected by 
the support of my Senators and the support that they 
reflected--they said that I have from the Bar, of taking my 
obligation seriously. One of the obligations that we have as 
citizens is to participate in the democratic process and try to 
advance beliefs that we think will create a more just society, 
and I have taken that obligation as a citizen seriously. I have 
taken my obligations as a member of my church, as my faith, 
seriously, and all the other obligations that I have done as a 
lawyer, I have done that.
    I have represented the parents of staff members of both of 
my Senators, and so they know how seriously I take my 
obligation to represent my clients, and I will bring that same 
commitment to fulfill my obligations to the judiciary. I will 
honor my oath. I will set aside my personal views. And I will 
enforce the law as decided by the Congress, as interpreted by 
the Eighth Circuit Court of Appeals and the United States 
Supreme Court.
    And let me say on that, you asked us, what could we tell 
you that would--tell the Committee that would help show that we 
can set aside our personal views, and I want to tell you one 
thing and then I will pass on. But my uncle, my oldest--my 
mother's oldest brother, Morris Greenwald, was a part-time 
policeman. When he was the age that I am now, he was murdered 
by prison escapees. My wife's oldest uncle on our mother's side 
was murdered by prison escapees. For the last 4 years, I have 
represented a man who has been twice convicted of killing a 
State policeman while he was an escapee for prison. I can and I 
will and I have set aside my personal views.
    Senator Cornyn. Thank you, Mr. Holmes.
    Ms. Braden?
    Ms. Braden. I think your question also relates to the 
earlier one that Senator Sessions asked in the prior panel, 
which is I understand your respect for separation of powers. 
The court in which I have been nominated has even more 
restricted jurisdiction than my colleagues on the District 
Court. We have very limited jurisdiction. And it is also trial 
court. So it would be quite unusual for our court, at least, to 
have an opportunity to consider a constitutional question. 
Perhaps, we were thinking hypothetically, that perhaps in a tax 
case. But otherwise, simply, we don't have jurisdiction. That 
is the answer to that question.
    Certainly, we have no question as trial judges to be other 
than totally obedient to the Supreme Court and our Circuit 
Court, which is the Federal Circuit. However, I must say that 
if I disagreed with a decision of the Federal Circuit in some 
respects, having total obedience for the case, I would probably 
take the time to put in a paragraph why I would differ, or 
perhaps because the court may reconsider the issue in a 
different case down the road and may find that perspective to 
be helpful. But in terms of the decision before you, I mean, it 
is not--it is a non-starter. I mean, it is a total obedience 
question.
    The last thing I was going to say was, you know, among the 
institutions in our government that share high public opinion 
is the bench, the judiciary and our Supreme Court. People in 
our country believe that our judicial system is fair and the 
responsibility for ensuring that that continues rests on our 
shoulders for the remainder of our generation to preserve that 
for our children.
    I would say that one final thing my--I have a relative who 
signed the Declaration of Independence, and so I guess it is 
something I do think about. He gave his fortune to the army, to 
General Washington, essentially, to support his troops, and 
died bankrupt because of it. And so I have to think about the 
fact that I was given this legacy, the freedom that I share 
today to be able to walk up and down the street in this city 
and to enjoy the privileges of freedom that we hope to bring to 
other nations. So I have got a job to ensure that the judicial 
branch continues that reputation in our country.
    Senator Cornyn. Mr. Lettow?
    Mr. Lettow. I think, Mr. Chairman, there are at least three 
things that anyone who is offered or contemplated the task of 
being a Federal judge ought to keep in mind. The first, I 
think, is certainly to be not only fair and even-handed in 
addressing facts and the law, but to be perceived as such. That 
just goes without saying. Certainly, one's own attitude and 
approach toward that has a lot to do with how the courtroom 
actually works, and Judge Prado, who was here earlier, is a 
very good example of that. I think he is sensitive to the 
people who are in his courtroom.
    The second thing is there has to be a sense of equal 
justice, that there is justice for each person individually 
that is equal.
    And third, there has to be a respect for separation of 
powers, as Ms. Braden said. I happened to be lucky enough to 
clerk for two people who believed quite strongly in separation 
of powers, Chief Justice Burger and Judge Dunaway on the Ninth 
Circuit, and, in fact, sorted through Chief Justice Burger's 
jurisprudence in the context of administrative law in an 
article that I had written because he felt so strongly about it 
and adopted canons of construction that would enhance or ensure 
that that separation was maintained, and certainly the respect 
for Congressional enactments through plain meaning and the 
Chevron case, for example, in administrative construction, and 
I happened to be counsel, not lead counsel, but a counsel in 
the Chevron case, so I was particularly happy that that has 
been a lodestar for administrative law jurisprudence. Thank 
you.
    Senator Cornyn. Thank you very much.
    Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman. It is a delight 
to be with you. To all of you, I say congratulations. You have 
gone through, as Senator Cornyn said, reviewed by Senators and 
the Department of Justice and the President of the United 
States and the ABA, the FBI, and then the people on this 
Committee, and don't think they don't scour through everything. 
Sometimes, they don't have to find anything, really, to cause a 
ruckus. But this time, you have cleared all of those hurdles. 
It is a thing to celebrate and I congratulate you for it.
    Richard Bennett, good to see you again.
    Mr. Bennett. Good to see you again, Senator.
    Senator Sessions. You came in as United States Attorney at 
the end of my tenure, and Judge Prado came in at the beginning, 
and both of you are extraordinary members of that fine group of 
United States Attorneys. You had a terrific reputation. I know 
the ABA has given you the highest rating and I have the strong 
feeling, the support from your Senators, it speaks so well of 
you.
    Mr. Bennett. Thank you, Senator.
    Senator Sessions. Susan Braden, it is good to see you.
    Ms. Braden. It is good to see you.
    Senator Sessions. I remember when you were battling for 
truth and justice for an Alabama corporation and I enjoyed 
talking with you about it and seeing your passion for the 
employees and everybody involved in that and tried to do 
something good, and it almost worked. I really admired you 
greatly for that.
    Mr. Chairman, I think these are fine nominees. You have 
asked an important question and they have answered it 
truthfully. Their backgrounds speak for themselves. I have no 
doubt that each of them will be tremendous members of the 
judiciary.
    Senator Cornyn. Thank you, Senator Sessions.
    I share your view about each of these nominees and am 
hopeful that they will be voted on favorably by the entire 
Judiciary Committee when we have that opportunity, hopefully 
very soon, and then will be referred to the floor for a vote of 
the entire Senate and hopefully confirmed to the important 
positions that you have been nominated to serve in.
    [The biographical information of Messrs. Bennett, Drell, 
Holmes, Ms. Braden, and Mr. Lettow follow.] 
[GRAPHIC] [TIFF OMITTED] 90303.655

[GRAPHIC] [TIFF OMITTED] 90303.656

[GRAPHIC] [TIFF OMITTED] 90303.657

[GRAPHIC] [TIFF OMITTED] 90303.658

[GRAPHIC] [TIFF OMITTED] 90303.659

[GRAPHIC] [TIFF OMITTED] 90303.660

[GRAPHIC] [TIFF OMITTED] 90303.661

[GRAPHIC] [TIFF OMITTED] 90303.662

[GRAPHIC] [TIFF OMITTED] 90303.663

[GRAPHIC] [TIFF OMITTED] 90303.664

[GRAPHIC] [TIFF OMITTED] 90303.665

[GRAPHIC] [TIFF OMITTED] 90303.666

[GRAPHIC] [TIFF OMITTED] 90303.667

[GRAPHIC] [TIFF OMITTED] 90303.668

[GRAPHIC] [TIFF OMITTED] 90303.669

[GRAPHIC] [TIFF OMITTED] 90303.670

[GRAPHIC] [TIFF OMITTED] 90303.671

[GRAPHIC] [TIFF OMITTED] 90303.672

[GRAPHIC] [TIFF OMITTED] 90303.673

[GRAPHIC] [TIFF OMITTED] 90303.674

[GRAPHIC] [TIFF OMITTED] 90303.675

[GRAPHIC] [TIFF OMITTED] 90303.676

[GRAPHIC] [TIFF OMITTED] 90303.677

[GRAPHIC] [TIFF OMITTED] 90303.678

[GRAPHIC] [TIFF OMITTED] 90303.679

[GRAPHIC] [TIFF OMITTED] 90303.680

[GRAPHIC] [TIFF OMITTED] 90303.681

[GRAPHIC] [TIFF OMITTED] 90303.682

[GRAPHIC] [TIFF OMITTED] 90303.683

[GRAPHIC] [TIFF OMITTED] 90303.684

[GRAPHIC] [TIFF OMITTED] 90303.685

[GRAPHIC] [TIFF OMITTED] 90303.686

[GRAPHIC] [TIFF OMITTED] 90303.687

[GRAPHIC] [TIFF OMITTED] 90303.688

[GRAPHIC] [TIFF OMITTED] 90303.689

[GRAPHIC] [TIFF OMITTED] 90303.690

[GRAPHIC] [TIFF OMITTED] 90303.691

[GRAPHIC] [TIFF OMITTED] 90303.692

[GRAPHIC] [TIFF OMITTED] 90303.693

[GRAPHIC] [TIFF OMITTED] 90303.694

[GRAPHIC] [TIFF OMITTED] 90303.695

[GRAPHIC] [TIFF OMITTED] 90303.696

[GRAPHIC] [TIFF OMITTED] 90303.697

[GRAPHIC] [TIFF OMITTED] 90303.698

[GRAPHIC] [TIFF OMITTED] 90303.699

[GRAPHIC] [TIFF OMITTED] 90303.700

[GRAPHIC] [TIFF OMITTED] 90303.701

[GRAPHIC] [TIFF OMITTED] 90303.702

[GRAPHIC] [TIFF OMITTED] 90303.703

[GRAPHIC] [TIFF OMITTED] 90303.704

[GRAPHIC] [TIFF OMITTED] 90303.705

[GRAPHIC] [TIFF OMITTED] 90303.706

[GRAPHIC] [TIFF OMITTED] 90303.707

[GRAPHIC] [TIFF OMITTED] 90303.708

[GRAPHIC] [TIFF OMITTED] 90303.709

[GRAPHIC] [TIFF OMITTED] 90303.710

[GRAPHIC] [TIFF OMITTED] 90303.711

[GRAPHIC] [TIFF OMITTED] 90303.712

[GRAPHIC] [TIFF OMITTED] 90303.713

[GRAPHIC] [TIFF OMITTED] 90303.714

[GRAPHIC] [TIFF OMITTED] 90303.715

[GRAPHIC] [TIFF OMITTED] 90303.716

[GRAPHIC] [TIFF OMITTED] 90303.717

[GRAPHIC] [TIFF OMITTED] 90303.718

[GRAPHIC] [TIFF OMITTED] 90303.719

[GRAPHIC] [TIFF OMITTED] 90303.720

[GRAPHIC] [TIFF OMITTED] 90303.721

[GRAPHIC] [TIFF OMITTED] 90303.722

[GRAPHIC] [TIFF OMITTED] 90303.723

[GRAPHIC] [TIFF OMITTED] 90303.724

[GRAPHIC] [TIFF OMITTED] 90303.725

[GRAPHIC] [TIFF OMITTED] 90303.726

[GRAPHIC] [TIFF OMITTED] 90303.727

[GRAPHIC] [TIFF OMITTED] 90303.728

[GRAPHIC] [TIFF OMITTED] 90303.729

[GRAPHIC] [TIFF OMITTED] 90303.730

[GRAPHIC] [TIFF OMITTED] 90303.731

[GRAPHIC] [TIFF OMITTED] 90303.732

[GRAPHIC] [TIFF OMITTED] 90303.733

[GRAPHIC] [TIFF OMITTED] 90303.734

[GRAPHIC] [TIFF OMITTED] 90303.735

[GRAPHIC] [TIFF OMITTED] 90303.736

[GRAPHIC] [TIFF OMITTED] 90303.737

[GRAPHIC] [TIFF OMITTED] 90303.738

[GRAPHIC] [TIFF OMITTED] 90303.739

[GRAPHIC] [TIFF OMITTED] 90303.740

[GRAPHIC] [TIFF OMITTED] 90303.741

[GRAPHIC] [TIFF OMITTED] 90303.742

[GRAPHIC] [TIFF OMITTED] 90303.743

[GRAPHIC] [TIFF OMITTED] 90303.744

[GRAPHIC] [TIFF OMITTED] 90303.745

[GRAPHIC] [TIFF OMITTED] 90303.746

[GRAPHIC] [TIFF OMITTED] 90303.747

[GRAPHIC] [TIFF OMITTED] 90303.748

[GRAPHIC] [TIFF OMITTED] 90303.749

[GRAPHIC] [TIFF OMITTED] 90303.750

[GRAPHIC] [TIFF OMITTED] 90303.751

[GRAPHIC] [TIFF OMITTED] 90303.752

[GRAPHIC] [TIFF OMITTED] 90303.753

[GRAPHIC] [TIFF OMITTED] 90303.754

[GRAPHIC] [TIFF OMITTED] 90303.755

[GRAPHIC] [TIFF OMITTED] 90303.756

[GRAPHIC] [TIFF OMITTED] 90303.757

[GRAPHIC] [TIFF OMITTED] 90303.758

[GRAPHIC] [TIFF OMITTED] 90303.759

[GRAPHIC] [TIFF OMITTED] 90303.760

[GRAPHIC] [TIFF OMITTED] 90303.761

[GRAPHIC] [TIFF OMITTED] 90303.762

[GRAPHIC] [TIFF OMITTED] 90303.763

[GRAPHIC] [TIFF OMITTED] 90303.764

[GRAPHIC] [TIFF OMITTED] 90303.765

[GRAPHIC] [TIFF OMITTED] 90303.766

[GRAPHIC] [TIFF OMITTED] 90303.767

[GRAPHIC] [TIFF OMITTED] 90303.768

[GRAPHIC] [TIFF OMITTED] 90303.769

[GRAPHIC] [TIFF OMITTED] 90303.770

[GRAPHIC] [TIFF OMITTED] 90303.771

[GRAPHIC] [TIFF OMITTED] 90303.772

[GRAPHIC] [TIFF OMITTED] 90303.773

[GRAPHIC] [TIFF OMITTED] 90303.774

[GRAPHIC] [TIFF OMITTED] 90303.775

[GRAPHIC] [TIFF OMITTED] 90303.776

[GRAPHIC] [TIFF OMITTED] 90303.777

[GRAPHIC] [TIFF OMITTED] 90303.778

[GRAPHIC] [TIFF OMITTED] 90303.779

[GRAPHIC] [TIFF OMITTED] 90303.780

[GRAPHIC] [TIFF OMITTED] 90303.781

[GRAPHIC] [TIFF OMITTED] 90303.782

[GRAPHIC] [TIFF OMITTED] 90303.783

[GRAPHIC] [TIFF OMITTED] 90303.784

[GRAPHIC] [TIFF OMITTED] 90303.785

    Senator Cornyn. We will leave the record open until 5:00 
p.m. on Wednesday, April 2, for any Senators who wish to submit 
written questions to any of the nominees appearing before the 
Committee this afternoon.
    With that, ladies and gentlemen, this hearing on judicial 
nominations is now adjourned.
    [Whereupon, at 4:37 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]
[GRAPHIC] [TIFF OMITTED] 90303.786

[GRAPHIC] [TIFF OMITTED] 90303.787

[GRAPHIC] [TIFF OMITTED] 90303.788

[GRAPHIC] [TIFF OMITTED] 90303.789

[GRAPHIC] [TIFF OMITTED] 90303.790

[GRAPHIC] [TIFF OMITTED] 90303.791

[GRAPHIC] [TIFF OMITTED] 90303.792

[GRAPHIC] [TIFF OMITTED] 90303.793

[GRAPHIC] [TIFF OMITTED] 90303.794

[GRAPHIC] [TIFF OMITTED] 90303.795

[GRAPHIC] [TIFF OMITTED] 90303.796

[GRAPHIC] [TIFF OMITTED] 90303.797

[GRAPHIC] [TIFF OMITTED] 90303.798

[GRAPHIC] [TIFF OMITTED] 90303.799

[GRAPHIC] [TIFF OMITTED] 90303.800

[GRAPHIC] [TIFF OMITTED] 90303.801

[GRAPHIC] [TIFF OMITTED] 90303.802

[GRAPHIC] [TIFF OMITTED] 90303.803

[GRAPHIC] [TIFF OMITTED] 90303.804

[GRAPHIC] [TIFF OMITTED] 90303.805

[GRAPHIC] [TIFF OMITTED] 90303.806

[GRAPHIC] [TIFF OMITTED] 90303.807

[GRAPHIC] [TIFF OMITTED] 90303.808

[GRAPHIC] [TIFF OMITTED] 90303.809

[GRAPHIC] [TIFF OMITTED] 90303.810

[GRAPHIC] [TIFF OMITTED] 90303.811

[GRAPHIC] [TIFF OMITTED] 90303.812

[GRAPHIC] [TIFF OMITTED] 90303.813

[GRAPHIC] [TIFF OMITTED] 90303.814

[GRAPHIC] [TIFF OMITTED] 90303.815

[GRAPHIC] [TIFF OMITTED] 90303.816

[GRAPHIC] [TIFF OMITTED] 90303.817

[GRAPHIC] [TIFF OMITTED] 90303.818

[GRAPHIC] [TIFF OMITTED] 90303.819

[GRAPHIC] [TIFF OMITTED] 90303.820

[GRAPHIC] [TIFF OMITTED] 90303.821

[GRAPHIC] [TIFF OMITTED] 90303.822

[GRAPHIC] [TIFF OMITTED] 90303.823

[GRAPHIC] [TIFF OMITTED] 90303.824

[GRAPHIC] [TIFF OMITTED] 90303.825

[GRAPHIC] [TIFF OMITTED] 90303.826

[GRAPHIC] [TIFF OMITTED] 90303.827

[GRAPHIC] [TIFF OMITTED] 90303.828

[GRAPHIC] [TIFF OMITTED] 90303.829

[GRAPHIC] [TIFF OMITTED] 90303.830

[GRAPHIC] [TIFF OMITTED] 90303.831

[GRAPHIC] [TIFF OMITTED] 90303.832

[GRAPHIC] [TIFF OMITTED] 90303.833

[GRAPHIC] [TIFF OMITTED] 90303.834

[GRAPHIC] [TIFF OMITTED] 90303.835

[GRAPHIC] [TIFF OMITTED] 90303.836

[GRAPHIC] [TIFF OMITTED] 90303.837

[GRAPHIC] [TIFF OMITTED] 90303.838

[GRAPHIC] [TIFF OMITTED] 90303.839

[GRAPHIC] [TIFF OMITTED] 90303.840

[GRAPHIC] [TIFF OMITTED] 90303.841

[GRAPHIC] [TIFF OMITTED] 90303.842

[GRAPHIC] [TIFF OMITTED] 90303.843

[GRAPHIC] [TIFF OMITTED] 90303.844

[GRAPHIC] [TIFF OMITTED] 90303.845

[GRAPHIC] [TIFF OMITTED] 90303.846



 NOMINATIONS OF CAROLYN B. KUHL, OF CALIFORNIA, NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE NINTH CIRCUIT; CECILIA M. ALTONAGA, OF FLORIDA, NOMINEE 
TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; AND PATRICIA 
A. MINALDI, OF LOUISIANA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN 
                         DISTRICT OF LOUISIANA

                              ----------                              


                         TUESDAY, APRIL 1, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
room SD-226, Dirksen Senate Office, Hon. Orrin G. Hatch, 
Chairman of the Committee, presiding.
    Present: Senators Hatch, Sessions, Chambliss, Leahy, 
Kennedy, Feinstein, Schumer, and Durbin.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. All right, we will begin.
    It is a pleasure to welcome before the Committee this 
morning three exceptional nominees for the Federal bench.
    Our circuit nominee is Carolyn Kuhl, who has been nominated 
to fill a judicial emergency on the Ninth Circuit, which is the 
most notoriously liberal Federal court in the United States. 
This is the court that gave us the infamous Pledge of 
Allegiance case, which held that the Pledge of Allegiance is 
unconstitutional because it contains the word ``God'' in it. As 
a result, public school children in nine Western States and two 
territories that constitute the Ninth Circuit will be forbidden 
from pledging allegiance to the flag of the United States, even 
as their mothers and fathers, uncles and aunts, other relatives 
and friends are fighting in Iraq to preserve our National 
security and the ideals that we most treasure in this Nation. 
As my esteemed colleague Senator Schumer put it, this case is 
``way out of the mainstream on the left side.''
    Unfortunately, the Pledge of Allegiance case is not an 
anomaly. Just last month, the Ninth Circuit decided to ignore 
and distort controlling Supreme Court precedent in order to 
skew the playing field in favor of criminal defendants. The 
Court concluded that a key law prohibiting child pornography 
was unconstitutional as applied to certain criminal defendants. 
Amazingly, the panel handed down this ruling to a defendant who 
had knowingly and voluntarily pled guilty to violating the 
child pornography law with materials that traveled across State 
lines. As a result, child pornographers can flock to the Ninth 
Circuit to practice their trade unfettered by Federal criminal 
law. As the author of the PROTECT Act and the Comprehensive 
Child Protection Act of 2003--bills that will toughen laws 
against child pornography, child abuse, and child 
victimization--I shudder for the welfare of the millions of 
children who live in the Ninth Circuit. Decisions like these 
are the perfect examples for why our country needs good, 
constitutionalist judges on the Federal bench.
    The Ninth Circuit has also held in recent years that 
California's so-called three-strikes law, which imposes life 
sentences on career criminals, was unconstitutional. It held 
that a prisoner who was convicted of making terroristic threats 
had a right to procreate through artificial insemination. This 
case, which became known as the procreation by FedEx case, was 
later reversed by an en banc panel of the Ninth Circuit, but 
just barely. Yet another gem from the Ninth Circuit held that 
prisoners have a constitutional right to pornography, which had 
been banned because inmates had used it to harass women guards. 
Fortunately, saner heads prevailed, and this case was reversed 
en banc.
    Plenty of Ninth Circuit Court opinions and decisions, 
however, are not corrected en banc, which has led to the Ninth 
Circuit holding the dubious distinction of having the highest 
and widest Supreme Court reversal rate in the country among 
Federal courts of appeals. Over the past 7 years, the Supreme 
Court has reversed an average of 80 to 90 percent of the Ninth 
Circuit cases it hears. Just last term, the Supreme Court 
reversed the Ninth Circuit in 15 of 19 cases, 8 times 
unanimously. And so far in the current term, the Ninth Circuit 
has been reversed in 8 out of 11 cases. Three of these were 
unanimous summary reversals, which means that the Court simply 
reversed on the basis of the petition for certiorari, without 
asking for briefs or even oral arguments.
    This pattern of decisions, some of which can be described 
as downright wacky, and its high reversal rate has led to the 
perennial introduction of legislation seeking to split the 
Ninth Circuit, given that so many of its States seek to 
disassociate themselves from such inherently illogical rulings.
    I have taken the time to recite the state of affairs on the 
Ninth Circuit in brief because I think that it will benefit 
from the confirmation of such an esteemed and experienced 
jurist as Carolyn Kuhl, whose record demonstrates her 
commitment to following precedent and steering clear of 
judicial activism. At the same time, I want to make clear that 
I, for one, do not believe that the ideological composition of 
a court should have any determination on whether an otherwise 
qualified nominee should be confirmed. As I have said before on 
numerous occasions, I do not believe that ideology has any 
role, constitutional or otherwise, in the advice and consent 
process.
    I recognize, however, that some of my Democratic colleagues 
disagree with me. They place great importance on achieving what 
they have referred to as appropriate balance on a court in 
determining whether to vote to confirm a judicial nominee. So I 
know that they will find it interesting that of the 25 active 
judges on the Ninth Circuit, 17 of them were appointed by 
Democratic Presidents and 14 of them were appointed by 
President Clinton alone. In fact, four Clinton nominees to the 
Ninth Circuit were confirmed in 2000, a Presidential election 
year. Despite this record, only one of President Bush's three 
nominees to the Ninth Circuit was confirmed in the last 
Congress. So much for achieving the so-called balance. And 
while we just confirmed Jay Bybee to the Ninth Circuit last 
month, it is high time that Carolyn Kuhl is afforded a hearing 
before this Committee.
    Judge Kuhl has an exemplary record that includes service as 
both a committed advocate and an impartial jurist. The American 
Bar Association has rated her well qualified for this position. 
Although the ABA used to be the gold standard as far as my 
Democratic colleagues were concerned, I am only half joking 
when I say that the ABA rating of well qualified seems to have 
become the kiss of death for President Bush's judicial 
nominees. The two nominees blocked in Committee last year, 
Charles Pickering and Priscilla Owen, both received well 
qualified ratings, as did Miguel Estrada, whose nomination has 
been filibustered on the Senate floor now for nearly 2 months. 
Carolyn Kuhl deserves to fare better, and I certainly hope she 
does.
    I expect that we will hear a great deal about Judge Kuhl's 
qualifications during our next panel of witnesses, so I want to 
focus on the widespread support for her nomination, because the 
ABA is not alone in its judgment that she is well qualified for 
the Ninth Circuit.
    Since 1995, Judge Kuhl has served as a judge on the Los 
Angeles County Superior Court. Nearly 100 of her fellow judges 
on that court have written to the Committee to voice their 
ardent support for her nomination. Here is what they have to 
say: ``We are Republicans, Democrats, and Independents and have 
all had the opportunity to observe the leadership and demeanor 
of Judge Kuhl...We know she is a professional who administers 
justice without favor, without bias, and with an even hand. We 
believe her elevation to the Ninth Circuit Court of Appeals 
will bring credit to all of us and to the Senate that confirms 
her. As an appellate judge, she will serve the people of our 
country with distinction, as she has done as a trial judge.''
    Another letter came from the officers of the Litigation 
Section of the Los Angeles County Bar Association. With more 
than 3,000 members, this is the largest voluntary bar 
association in the United States. They write, ``By reputation 
and our personal experience, Judge Kuhl is extremely 
intelligent, hard-working and thoughtful. She gained the 
prestigious appointment as Supervising Judge of the Complex 
Courts after only a few years on the bench because of those 
traits. In addition, she has a well-deserved reputation as 
being a fair-minded judge who follows legal precedent...On a 
personal level, we have come to know her as a warm, witty and 
deeply caring person. We could not recommend her more highly 
for nomination to the Ninth Circuit Court of Appeals.''
    I will submit copies of these letters for the record, 
without objection, along with copies of other letters of 
support we have received for Judge Kuhl's nomination.
    Unfortunately, no judicial nominee these days seems to 
escape criticism, at least circuit nominees, by the liberal 
special interest groups. Judge Kuhl is no exception. I expect 
that we will hear attacks on her record as an attorney for the 
Justice Department during the Reagan administration, when she 
was doing her duty to represent the position of the United 
States. We will probably hear attacks on her record in private 
practice stemming from the types of clients she represented and 
the positions she took on their behalf. And I expect that we 
will hear some unfounded criticism of decisions she has made as 
a California State court judge.
    These types of attacks on President Bush's judicial 
nominees have become so commonplace, and often bear so little 
relationship to the nominees' actual records, that they bring 
to mind the children's story of the boy who cried wolf. After 2 
years of smear campaigns, with each consecutive nominee being 
declared more anti-this and pro-that than the former, these 
groups have simply lost credibility, especially when you 
consider their poor track record in predicting what kind of 
judges nominees will turn out to be.
    Two cases in point are Supreme Court Justices David Souter 
and John Paul Stevens. The left-wing groups predicted that both 
of these nominees would roll back decades of protections for 
women, minorities, and the general population. Of course, the 
test of time has told a different story: Justice Souter and 
Justice Stevens are considered stalwart votes on the Court's 
liberal wing. We should keep this in mind as we consider the 
claims of the left-wing groups who oppose Judge Kuhl and other 
Bush nominees.
    In addition to Judge Kuhl, we will hear from two nominees 
for the Federal district court bench: Cecilia Altonaga, who has 
been nominated for the Southern District of Florida, and 
Patricia Minaldi, who has been nominated for the Western 
District of Louisiana. And I will reserve my remarks on these 
nominees until after Judge Kuhl's testimony.
    I look forward to hearing from all of our nominees on 
today's agenda, and I commend President Bush for nominating 
each of them.
    We will now turn to the Democrat leader on the Committee.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you.
    Today we are meeting, as you have said, to consider the 
nomination of California Judge Carolyn Kuhl. I note you have 
already attacked anybody who would question her qualifications. 
There are some who might think that her very, very strong 
support of Bob Jones University, a university where they teach, 
Mr. Chairman, that both your religion and mine are basically 
cult religions, had a very segregationist background, but has 
been strongly endorsed by a number of members of your party, so 
I suspect that that is something that can be overlooked.
    I am delighted to see the distinguished Majority Leader 
here. When you were talking about how badly treated Republicans 
have been, I think you probably overlooked the fact that the 
Senate has confirmed five Tennessee judicial nominees since 
President Bush took office--one circuit court nominee, four 
district court nominees. In fact, when I moved the Julia Smith 
Gibbons nomination through this Committee in record time and on 
to the floor, it was the first nominee confirmed to the Sixth 
Circuit in almost 5 years. We have since confirmed two of 
President Bush's nominees to that court.
    I mention this, Mr. Chairman, because under the fairness of 
your reign as Chairman during the Clinton years, you refused to 
even allow hearings or votes on three of President Clinton's 
nominees to that same court. There is now just one vacancy in 
Tennessee, and that is for the seat of Thomas Gray Hull for the 
Eastern District. President Bush has said that he is going to 
nominate people to fill vacancies within 180 days. He is 
probably not aware of the fact that that became vacant way over 
180 days ago.
    I mention this because sometimes the practice does not 
match the rhetoric. The rhetoric is printed in the press. The 
press, unfortunately, rarely picks up the practice, with some 
notable exceptions.
    The district court nominees have the support of their home 
State Senators, although, as I will discuss in a moment, 
Senators Graham and Nelson have had a most difficult time 
getting the White House to agree to continue the tradition of 
the Florida bipartisan selection commission and have only 
recently come to a meeting of the minds with the White House.
    The circuit court nominee before us today, Judge Carolyn 
Kuhl, is not supported by both of her home State Senators. Her 
appearance before this Committee, despite that clearly stated 
opposition, is the latest in a string of transparently partisan 
actions taken by the Senate's new majority since the beginning 
of this Congress. In each of these actions--each of them 
unprecedented--Republicans have done something that they never 
did while in the majority from 1995 to 2001. Of course, then 
there was a Democratic President. Then they were willing to 
follow the rules as they saw them, especially if those rules 
worked against a Democratic President. Now they will ignore the 
rules if following the rules would not work to the benefit of a 
Republican President. They have taken every one of those 
steps--every one of those steps of ignoring past precedent, of 
ignoring our rules, has been done in lockstep with the White 
House further politicizing the whole question of picking 
judges. I believe the Republican majority has shown a corrosive 
and raw-edged willingness to change, bend, even break the rules 
they followed before when it was a Democratic President there. 
They will break, bend, and change the rules to help a 
Republican President. And lest some observers wrongly conclude 
that this sudden and orchestrated--and it orchestrated with the 
White House--series of rules changes is just politics as usual, 
it is not.
    First, in January, one hearing was held for three 
controversial circuit court nominees, scheduled to take place 
in the course of a very busy day in the Senate. There were also 
three other judges on that, six in all. There was no precedent 
for this in the years that Republicans served in the majority 
and a Democrat was in the White House. In 6 years during the 
Clinton administration, never once were three circuit court 
nominees, let alone three very controversial ones, brought 
before this body in a single hearing. Why the change in 
practice? There is a Republican in the White House.
    When there was a Democratic President in the White House, 
circuit nominees were delayed and deferred, and vacancies on 
the courts of appeals more than doubled when the Republicans 
were in charge of this Committee, from 16 in January 1995 to 33 
when the Democratic majority took over partway through 2001.
    Then in 17 months, we held hearings on 20 circuit judges. 
Now, while Republicans averaged seven confirmations to the 
circuit court every 12 months, the Senate under Democratic 
leadership confirmed 17 in its 17 months in the majority. We 
did that with a White House that was more uncooperative than 
any of the six Presidents I have served with. So we have gone 
from idling during the time this Committee had during the time 
when President Clinton was in office to full speed ahead.
    That is not the only politicized action. The Republican 
majority supported and facilitated the renomination of 
Priscilla Owen to a seat on the U.S. Court of Appeals for the 
Fifth Circuit even though she had been rejected by this 
Committee. Then they brought it back during a hearing where no 
new facts of significance were issued, but a lot of rhetoric 
about unfairness and so on, a lot of leading questions asked, 
carefully orchestrated with the White House.
    Now the Republican majority has scheduled this hearing for 
a nominee who does not have blue slips returned from both her 
home State Senators. Now, we will surely hear today a long 
recitation of the history of the blue slip. We will hear how 
unfairly it may have been used before. We will hear how other 
Chairmen, Senators Kennedy and Biden, modified their policies 
to allow for more fairness. And we will hear how the Chairman's 
real objection during the Clinton administration was the so-
called lack of consultation with Republican Senators and how 
fairly and successfully President Bush's White House has 
consulted. And I am sure the Chairman will tell us he is the 
heir to Democratic traditions, that he has followed these 
policies, et cetera, et cetera, et cetera.
    Well, it is true various Chairmen of the Judiciary 
Committee have used the blue slip in different fashions. I will 
refer to how this Chairman has. Today is the first time that 
this Chairman will ever have convened a hearing for a judicial 
nominee who did not have two positive blue slips returned to 
the Committee. The first time, ever. Of course, we now do have 
a Republican President. And despite protestations that this has 
been the Chairman's consistent policy over time, it hasn't 
been. The facts show exactly the opposite.
    These pieces of blue paper are what the Chairman uses to 
solicit the opinion of home State Senators about the 
President's nominees. When President Clinton was in office, 
this was the blue slip sent to Senators asking their consent. 
It says, ``Please return this form as soon as possible to the 
nomination office. No further proceedings on this nominee will 
be scheduled until both blue slips have been returned by the 
nominee's home State Senators.''
    When President Bush began his term and Senator Hatch took 
over, the blue slip was then quickly changed. It simply says to 
return it as soon as possible. The blue slip that was good 
enough for Chairman Hatch when there was a Democratic President 
suddenly changed to benefit a Republican President.
    The new blue slip contains no requirement that the 
President may have to engage in sufficiently meaningful 
consultation with home State Senators. All it has is a 180-
degree turn from what it used to be.
    The blue slip was strictly enforced by the Chairman during 
the Clinton administration. It operated as an absolute bar to 
the consideration of any nominee to any court unless both home 
State Senators had returned positive blue slips. I remember 
going down to meet with President Clinton with the 
distinguished Chairman with me, and he made that very, very 
clear in our meetings in the Oval Office with the President. 
Until both blue slips came back, there would be no hearing. He 
said that is the way it is, that is the way it has always been, 
that is the way it always will be. Ah, but then the Presidency 
changed, and suddenly all the rules changed.
    Remember, in the 106th Congress alone, more than half of 
President Clinton's circuit court nominees in the 106th 
Congress were defeated through the operation of the blue slip. 
Maybe the most vivid is the story of the United States Court of 
Appeals for the Fourth Circuit. Senator Helms was permitted by 
this Committee to resist President Clinton's nominees for 6 
years. The distinguished Chairman told me personally that we 
couldn't go forward with those nominees, I believe African-
Americans and others, because Senator Helms would not return a 
blue slip. James Beaty was first nominated to the Fourth 
Circuit for North Carolina by President Clinton in 1995, but 
there was no action on his nomination in 1995, 1996, 1997, or 
1998 because one Senator had not sent back a blue slip. Another 
Fourth Circuit nominee from North Carolina, Rich Leonard, was 
nominated in 1995, but no action was taken in 1995 or 1996. 
James Wynn, again, a North Carolina nominee to the Fourth 
Circuit, sent to the Senate by President Clinton in 1996, sat 
without action in 1999, 2000, and 2001 because both blue slips 
were not back.
    That was the rule, and I was told very forcefully and told 
by the distinguished Chairman in the presence of the former 
President in the Oval Office because that is the rule. 
Suddenly, the rule was changed.
    I think now we see a bit of revisionism fit for study by 
Sovietologists saying there was insufficient consultation.
    There were many times when the White House under President 
Clinton made nominations at the direct suggestion of Republican 
Senators, and there are judges sitting today on the Ninth 
Circuit, the Fourth Circuit, and the district courts in 
Arizona, Utah, Mississippi, and many other places only because 
the voices of Senators in the opposite party were heeded. In 
fact, in one case, at least one case, in Utah went forward 
because I went down and personally sat down with the President 
and urged him to go forward. But, instead, since the beginning 
of his time in the White House, the Bush administration has 
sought to divide, not unite, has sought to overturn traditions 
of bipartisan nominating commissions.
    They changed the systems in Wisconsin, Washington, and 
Florida that had worked so many years. They ignored the 
protests of Senators like Barbara Boxer and John Edwards who 
wanted to reach a true compromise and they even suggested 
Republican alternatives. They were told they were irrelevant.
    Ignoring bipartisan judicial nominating commissions is just 
another step in the march to entirely politicizing the Federal 
judiciary. It is exactly what the Bush White House did to the 
State of Florida. Last year, Senators Graham and Nelson were 
compelled to write in protest to the White House Counsel's 
flaunting of the time-honored procedures--a procedure that had 
been followed when there were both Republican and Democratic 
Senators in Florida and Republican and Democratic Presidents. A 
process that had worked to fill 29 district court vacancies 
over 10 years was bypassed by this President. I am glad the 
White House has finally agreed to the Florida Senators' 
proposals so we can get on with processing the nomination of 
Cecilia Altonaga. And I hope the White House will start working 
with other Democratic Senators and increase the almost non-
existent level of consultation. I have been here during the 
Ford administration, the Carter administration, the Reagan 
administration, the former Bush administration, the Clinton 
administration, and now this administration. I have never--and 
I can state this categorically--never been here with an 
administration that has shown less interest in working with 
Senators on judicial nominees than this one.
    I object to this hearing being held, but I will participate 
in the questioning of Judge Kuhl. I understand the 
distinguished Chairman has completely turned on end what has 
been his rule when there was a President of the other party, 
but he has called it up and we will go forward.
    We will talk about her past advocacy for aiding educational 
institutions which discriminate on the basis of race, like Bob 
Jones, or on religion, something of interest, I would assume, 
to Catholics, to Mormons, and others who have been greatly 
discriminated against by Bob Jones, as well as her work on the 
case involving fundamental constitutional rights, including the 
right to privacy. So we will look forward to it, and I think it 
will be an interesting time.
    So nice to be here with you, Mr. Chairman.
    Chairman Hatch. Well, it is so nice to have you. I 
understand you disagree with me somewhat here and, as usual, I 
think, have misstated the rules and the cases.
    Now, we have Hon. Bill Frist, the Majority Leader, who I 
know has to leave in a short time, so we are going to turn to 
him next. Then we are going to turn to the distinguished 
Senator from California who would like to make a statement, and 
then we will go back to Senator Graham, and then we will go to 
the witnesses.

 PRESENTATION OF CAROLYN B. KUHL, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE NINTH CIRCUIT, BY HON. BILL FRIST, A U.S. SENATOR FROM 
                     THE STATE OF TENNESSEE

    Senator Frist. Mr. Chairman, it is with great pleasure that 
I am here to commend Carolyn Kuhl to this Committee's 
consideration, and I thank the Chairman and the Ranking Member 
and all the members of the Committee for allowing me this 
opportunity to give you my brief testimony.
    I realize that it is unusual for a Senator who is not from 
a nominee's home State to make such an introduction, but if 
this helps, I can tell you that Carolyn Kuhl is as bright as 
anyone I know in Tennessee, and I can say that because I have 
known her for 30 years, and a number of classes, but one in 
particular, a chemistry class, at Princeton University, and 
everything that I struggled with, she sailed.
    I was delighted to read, Mr. Chairman, that along with 
everyone else the--I was able to read that the President has 
nominated my friend and classmate, Carolyn Kuhl, to serve on 
the Ninth Circuit, and that is why I am here.
    Judge Kuhl and I attended Princeton University at a time, a 
unique time in the history of that university, a time of change 
and formation as an institution, and then also for us as 
individuals. I can tell you, Mr. Chairman, that a woman 
graduating from Princeton in those early 1970's with a 
chemistry degree, and, I should add, with honors, signifies an 
achievement greater than many may understand. Certainly the 
fact that Judge Kuhl went on to graduate from Duke Law School 
in the Order of the Coif makes clear why she sits here today 
and why I have no doubt she is eminently well qualified.
    Like many Senators of late, I have turned for guidance to 
the Founding Fathers, and especially to the father of the 
independent Judiciary, John Adams, to find the right standard 
by which to give advice/consent on a judicial nominee. Adams 
was clear. He memorialized for us what the standard should be 
for the men and women who should be our judges: men of 
experience on the laws, of exemplary morals, invincible 
patience, unruffled calmness, an indefatigable application, who 
will be appointed for life and subservient to none.
    This is a high standard. It is a standard which knows no 
politics. It is a standard devised when there were no organized 
parties. It is a standard both for the nominees and for the 
Senate as stewards of the independent judiciary. And this is a 
high standard, but one that Judge Kuhl meets in every single 
respect.
    In reviewing Judge Kuhl's record, I was most struck by the 
wide support she has received, referred to by the Chairman, 
without regard to partisan politics. I was impressed by the 
letter from 23 women, all of whom sit as judges on the Superior 
Court of Los Angeles, the letter dated February 22, 2002. They 
write, and I quote, ``Judge Kuhl is seen by us and by members 
of the bar who appear before her as a fair, careful, and 
thoughtful judge who applies the law without bias. She is 
respected by prosecutors, public defenders, and members of the 
plaintiffs' and defense bar. She is conscientious, scholarly, 
courteous, and willing to listen with an open mind to the 
arguments of counsel. Judge Kuhl approaches her job with 
respect for the law and not a political agenda. Judge Kuhl has 
been a mentor to new women judges who join our court. She has 
helped promote the judicial careers of women, both Republican 
and Democrat.''
    Mr. Chairman, these judges also point out that Judge Kuhl, 
and I quote, ``supported Hon. Margaret Morrow when Judge Morrow 
was awaiting a hearing. She also wrote in support of President 
Clinton's nomination of Hon. Richard Paez.''
    Her colleagues go on to say in this letter, ``Carolyn Kuhl 
is also a very decent, caring, honest, and patient human being 
who is a delight to have as a professional colleague and 
friend. As sitting judges, we more than anyone appreciate the 
importance of an independent, fair-minded, and principled 
judiciary. We believe,'' they conclude, ``that Carolyn Kuhl 
represents the best values of such a judiciary.''
    Mr. Chairman, as you well know, there are two types of 
praise that are most significant in public life: the honest 
praise of your opponents and the informed praise of your 
colleagues.
    In closing, I am pleased to commend to you the nomination 
of Carolyn Kuhl, and I will leave you with this request: I hope 
that today you ask her tough questions. I seem to recall that 
these are the ones she most enjoys answering.
    Thank you, Mr. Chairman.
    Chairman Hatch. Well, thank you, Leader. We appreciate you 
taking time from what we know is a tremendously busy schedule 
to be with us today, and we are glad to have you here. We will 
allow you to go.
    Senator Frist. Thank you.
    Senator Leahy. I might note, Mr. Chairman, I am a great 
admirer of John Adams. I love the David McCullough book on him. 
I would also point out to the distinguished Majority Leader, 
John Adams was the first President who tried to pack the 
Federal courts. I just thought I would mention that.
    Chairman Hatch. All right. We will turn to the 
distinguished Senator from California, and then I am going to 
turn to the distinguished Senator from Florida.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman, and I 
really appreciate this opportunity. I really want to be here 
during this hearing, particularly for Judge Kuhl. 
Unfortunately, Senator Byrd has called a meeting of Ranking 
Members of the Appropriations Committee at 11:00 on the 
supplemental, and the emergency supplemental is being marked 
up, as you know, at 2 o'clock this afternoon. That presents 
real logistical problems for me.
    I wanted to say something--
    Chairman Hatch. Would it be helpful to you if I turn to you 
first for questions?
    Senator Feinstein. It would. I would appreciate that very 
much.
    Chairman Hatch. With the permission of the ranking member, 
I will do that so that we can accommodate you.
    Senator Feinstein. Well, if that is possible. If not, I can 
try to work it out some other way. But I have been asked to 
submit letters from my colleagues Senator Barbara Boxer and 
Senator Bill Nelson for the record, and with your permission I 
would like to do that.
    Chairman Hatch. Without objection, we will put them in the 
record.
    Senator Feinstein. I want to just make a couple of comments 
about Judge Kuhl because I think in her nomination we see the 
classic dilemma. I have never had more letters from sitting 
judges in support of a candidate than I have with respect to 
this judge, Carolyn Kuhl. Every one of them went out of their 
way--and I am a reader of letters and I know when they pro 
forma and I know when they are not. And they clearly are not in 
this case.
    I have received a letter from the Los Angeles County Bar 
Association representing 20,000 Los Angeles lawyers, and I 
think the letter says something that we ought to take note of, 
and that is, and I quote, ``The recent trend in attacking the 
qualifications of judicial candidates on the basis of positions 
advocated on behalf of clients is misguided for a variety of 
reasons.'' And then they point out the reasons. And I think we 
ought to think a little bit about this. I would like to put 
that letter, if I might, in the record.
    Chairman Hatch. Without objection, it will go into the 
record.
    Senator Feinstein. I think it is very rare that we have an 
appellate court nominee that has this kind of background. 
Clearly, this is an extraordinarily bright woman. I think it is 
very rare that we have an appellate court nominee that has the 
kind of experience that she has had on the court, the most 
diverse court in the United States, the Los Angeles Superior 
Court.
    I want to just read into the record on e paragraph from one 
letter from Judge Paul Boland, and you correctly stated there 
are 94 superior court judges from Los Angeles who have signed 
in support, and there are 24 other separate letters from judges 
in support. But I think this paragraph has to be considered, 
and I would like to read it.
    ``Judge Kuhl is widely regarded as one of the most 
dedicated, knowledgeable, skillful, and thoughtful judges 
sitting on the Los Angeles Superior Court. In criminal and 
civil judicial assignments, she has distinguished herself as a 
judge who is highly intelligent, renders balanced, reasoned 
decisions, is intellectually honest, and is even-handed and 
fair. In criminal cases, prosecutors and criminal defense 
lawyers alike single her out for praise. In civil matters, the 
plaintiffs' bar and the defense bar universally respect her. 
During our years of service together on the superior court, I 
have never heard any criminal or civil lawyer express the view 
that Judge Kuhl issued a ruling or rendered decisions that were 
in any way influenced by a particular judicial philosophy or 
political ideology or were motivated by a judicial or political 
agenda. As a member of the superior court, she has consistently 
strived to make decisions that are legally correct and devoid 
of bias.''
    And then he goes on, as a Supervising Judge of Complex 
Litigation, to describe how she came into that area and within 
6 months ended up supervising the area. You know, clearly this 
is an outstanding judge.
    Now, on the other hand, we have a wide array of letters 
from socially connected organizations in strong opposition to 
this nominee. These letters, I would say from my reading, 100 
percent point out their concerns, all of which go back to the 
time before she was a judge and about which I hope to ask a 
number of questions when my time comes.
    I think the job for this Committee is really to reconcile 
those social viewpoints with her performance over a substantial 
period of time as a Los Angeles Superior Court judge.
    Now, when I have asked questions of people that have come 
in to see me, well, she didn't demonstrate that as a judge. 
They would say to me, ``Well, she didn't have a case that would 
cover that point.'' So what we have is sort of a complete 
polarization.
    Now, what has concerned me in the time I have sat on this 
Committee is those judges about which there is the least, we 
know the least. Those judges that go through very often are 
those judges that haven't written, haven't spoken, really don't 
have much record; therefore, there is nothing to pin the tail 
on the donkey. And what concerns me about the Federal judiciary 
is what I call the dodo head syndrome, that we end up getting a 
lot of judges about which we know very little but who are not 
necessarily the brightest and the best, which I believe the 
Federal system should be.
    So this is a hard case in point, and it may be well that 
Judge Kuhl is really the one, I think, that is going to make 
the outstanding point in this regard.
    So I guess what I want to say, Mr. Chairman, is that this 
is a very big hearing, indeed, because the sides are well 
polarized. On one bench, you have virtually the entire Los 
Angeles sitting superior court, and on the other, you have some 
of our finest and best social organizations throughout the 
United States. It is going to be very interesting to see how it 
turns out.
    I say this as someone that has an open mind. I have not 
taken a position, but I hope to ask a number of questions.
    Also, to kind of identify it, there is one additional 
letter I would like to read, and it was a surprising letter to 
me because it is from a Vilma Martinez, who is a Democrat, is a 
veteran of civil rights battles. She is well known to me. She 
testified against Judge Robert Bork's nomination to the Supreme 
Court, and she says, and I quote, ``Like others dedicated to 
the independence of our judiciary, I certainly do not want 
ideologues serving as judges on our Federal courts. That is why 
I think Judge Kuhl would make a great addition to the Ninth 
Circuit. She served for 7 years in the California Superior 
Court, et cetera.'' And she says, ``Before that, she and I were 
law partners for 9 years. Judge Kuhl is what I think of as an 
old-fashioned judge. She cares about due process for everyone. 
During her service on the superior court, she has shown that 
she is careful to hear both sides. She doesn't try to influence 
the outcome of a case in favor of one side or the other. She is 
serious about her oath to follow the law, whatever the 
result.''
    And so I would like to add that record, if I may, as well 
to the record.
    Chairman Hatch. Without objection, we will put it in the 
record.
    Senator Feinstein. I thank you for this courtesy, Mr. 
Chairman.
    Chairman Hatch. Well, thank you, Senator.
    We will turn to our distinguished friend from Florida, 
Senator Graham.

  PRESENTATION OF CECILIA M. ALTONAGA, NOMINEE TO BE DISTRICT 
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, BY HON. BOB GRAHAM, 
            A U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Graham. Thank you very much, Mr. Chairman and 
members of the Committee. In deference to the Committee's very 
heavy and important agenda today, I am going to abbreviate my 
remarks and would ask that my full statement be included in the 
record.
    Chairman Hatch. We will put the full statement in the 
record, Senator.
    Senator Graham. Thank you very much, Mr. Chairman.
    I also wish to thank you for your prompt scheduling of this 
hearing. As I have said before, the Southern District of 
Florida is one of the largest in terms of case filings and 
busiest in terms of the complexity of those cases judicial 
districts in the country, and I appreciate your concern to see 
that it continues to be fully staffed.
    Chairman Hatch. Thank you, Senator.
    Senator Graham. Mr. Chairman, on behalf of Senator Bill 
Nelson and myself, I am pleased to introduce to the Committee 
Hon. Cecilia M. Altonaga. She currently serves as a judge on 
the State of Florida's Eleventh Circuit, the highest trial 
court in our State.
    Judge Altonaga is joined today by her husband, George 
Mencio, Jr., also a lawyer, specializing in international law. 
Her three daughters--Natalie, 13, Caroline, 10, and Gabriella, 
4--are at home in Miami, and I know they are very proud of 
their mother today.
    Mr. Chairman, I am honored to introduce you to this nominee 
not only because she is an able jurist who hails from our State 
of Florida, but also because her confirmation will further 
realize our shared commitment to the goal that our judiciary 
should be as varied as our society. I would like to submit for 
the record and read a portion of a letter which I have received 
from Mr. Victor M. Diaz, Jr., who is the president of the Board 
of Directors of the Cuban American Bar Association in Miami, 
Florida. Mr. Diaz writes, ``Judge Altonaga is an outstanding 
jurist who is extremely well qualified for the position to 
which she has been nominated. Judge Altonaga's appointment also 
will bring much needed diversity to our local Federal court 
judiciary. Most importantly, Judge Altonaga represents the 
highest aspirations of our profession from a personal and 
ethical standpoint and will serve as a role model to all who 
will come before her.''
    I ask that the full letter be included.
    Chairman Hatch. Without objection, we will put it in the 
record.
    Senator Graham. Today, with Senator Nelson, I support the 
nomination of Cecilia M. Altonaga, who is about to become the 
first Cuban American woman to serve as a Federal judge. Judge 
Altonaga's solid qualifications make her an ideal candidate for 
service on the Federal bench. A graduate of Florida 
International University in Miami and the Yale University 
School of Law, Judge Altonaga has served her community as 
assistant county attorney in Miami-Dade County and as a judge 
on the county court of Florida's Eleventh Circuit prior to her 
ascending to the circuit court.
    Beyond these impressive credentials, Judge Altonaga 
possesses the temperament that the job requires. Her college 
alumni publication reports that her professor remembers her as 
a disciplined, goal-oriented student who wasn't afraid to work 
hard. And, Mr. Chairman, I think maybe one of the best 
qualifications for a Federal district judge is this statement 
by her professor: ``She was one of the best listeners I ever 
had.''
    She is clearly suited for this challenge work. Judge 
Altonaga is an intelligent, committed, well-respected candidate 
for the Federal bench, and I appreciate the Committee's 
consideration of her nomination and have every expectation that 
both this Committee and the full Senate will act on this 
nomination without delay.
    Chairman Hatch. Well, thank you, Senator. We appreciate you 
taking time from your busy schedule to be here, and that is 
high praise indeed for Judge Altonaga. So we appreciate you 
being here.
    Senator Graham. Thank you.
    Senator Leahy. It is nice to have you back.
    Chairman Hatch. It sure is. We have two members of this 
Committee who need to go to the meeting with Senator Byrd, so 
we will call on Senator Leahy first and then we will call on 
Senator Feinstein from California second, and I will defer my 
questions until after the two of them. We are going to have 
ten-minute rounds, so Senator Leahy?
    I forgot to ask you to give any statement you would care. 
We will do that, as well.
    Senator Leahy. You can do that first.
    Chairman Hatch. Would you raise your right hand. Do you 
solemnly swear to tell the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Judge Kuhl. I do, Senator.
    Chairman Hatch. Thank you. Judge Kuhl, we are very grateful 
to have you before us today and we look forward to hearing your 
testimony. Do you have a statement you would care to make 
before we get into--

 STATEMENT OF CAROLYN B. KUHL, NOMINEE TO BE CIRCUIT JUDGE FOR 
                       THE NINTH CIRCUIT

    Judge Kuhl. I don't have a statement that I have brought to 
make. I would like to introduce my family, but being aware of 
the time, perhaps I could--
    Chairman Hatch. No, please do. No, we want you to do that.
    Judge Kuhl. All right. Thank you. I have with me here today 
my husband, Hon. William Highberger, who is a judge also on my 
court and my partner in all things. I have my daughters, Helen 
and Anna Highberger. Helen is the elder and I am very proud of 
them--
    Chairman Hatch. We are happy to have you here.
    Judge Kuhl. --and they are here today. And also my father 
and my brother, who have come from Fort Worth, Texas, to be 
here. My father is a retired railroad executive and my brother 
is a computer consultant and they are both learning to fly. My 
brother soloed last week, so I really proud to have them.
    Chairman Hatch. We are really proud to have you here, and 
that is great that you can do that. Thank you. We are so happy 
to have your family here with you and we welcome you and hope 
you can enjoy this hearing.
    [The biographical information of Judge Kuhl follows:] 
    [GRAPHIC] [TIFF OMITTED] 90303.847
    
    [GRAPHIC] [TIFF OMITTED] 90303.848
    
    [GRAPHIC] [TIFF OMITTED] 90303.849
    
    [GRAPHIC] [TIFF OMITTED] 90303.850
    
    [GRAPHIC] [TIFF OMITTED] 90303.851
    
    [GRAPHIC] [TIFF OMITTED] 90303.852
    
    [GRAPHIC] [TIFF OMITTED] 90303.853
    
    [GRAPHIC] [TIFF OMITTED] 90303.854
    
    [GRAPHIC] [TIFF OMITTED] 90303.855
    
    [GRAPHIC] [TIFF OMITTED] 90303.856
    
    [GRAPHIC] [TIFF OMITTED] 90303.857
    
    [GRAPHIC] [TIFF OMITTED] 90303.858
    
    [GRAPHIC] [TIFF OMITTED] 90303.859
    
    [GRAPHIC] [TIFF OMITTED] 90303.860
    
    [GRAPHIC] [TIFF OMITTED] 90303.861
    
    [GRAPHIC] [TIFF OMITTED] 90303.862
    
    [GRAPHIC] [TIFF OMITTED] 90303.863
    
    [GRAPHIC] [TIFF OMITTED] 90303.864
    
    [GRAPHIC] [TIFF OMITTED] 90303.865
    
    [GRAPHIC] [TIFF OMITTED] 90303.866
    
    [GRAPHIC] [TIFF OMITTED] 90303.867
    
    [GRAPHIC] [TIFF OMITTED] 90303.868
    
    [GRAPHIC] [TIFF OMITTED] 90303.869
    
    [GRAPHIC] [TIFF OMITTED] 90303.870
    
    [GRAPHIC] [TIFF OMITTED] 90303.871
    
    [GRAPHIC] [TIFF OMITTED] 90303.872
    
    [GRAPHIC] [TIFF OMITTED] 90303.873
    
    [GRAPHIC] [TIFF OMITTED] 90303.874
    
    [GRAPHIC] [TIFF OMITTED] 90303.875
    
    [GRAPHIC] [TIFF OMITTED] 90303.876
    
    [GRAPHIC] [TIFF OMITTED] 90303.877
    
    [GRAPHIC] [TIFF OMITTED] 90303.878
    
    [GRAPHIC] [TIFF OMITTED] 90303.879
    
    [GRAPHIC] [TIFF OMITTED] 90303.880
    
    [GRAPHIC] [TIFF OMITTED] 90303.881
    
    [GRAPHIC] [TIFF OMITTED] 90303.882
    
    Chairman Hatch. We will to go Senator Leahy first.
    Senator Leahy. Thank you, and I welcome you, too. I am glad 
your family could be here. I have thought of the thousands of 
judicial nomination hearings I have been at, and most of them, 
there have been--it actually is thousands now--most of them 
have had family members. I have often felt that somewhere in 
the archives, wherever that family is, somewhere, someday they 
will pull out the transcript and find who is there, and I think 
it is a nice thing to do. We even had one judge who had the 
transcript from about 35, 45 years before when his father had 
become a judge and he was there.
    Judge Kuhl, as an aide to Attorney General William French 
Smith, who was Attorney General then, you were one of a small 
group of lawyers who pressed for what I believe is a radical 
change in policy to allow private nonprofit schools that 
discriminate based on race to receive tax-exempt status, and 
that was a drastic departure from the policy that had been in 
place.
    In 1970, the Nixon administration, following the Court 
decision, adopted Internal Revenue Service rules denying tax 
exemption for schools that racially discriminate. Many of us 
feel that President Nixon was right in that, but the Congress, 
and I was not in the Congress at the time, left those rules 
standing.
    In 1981, the U.S. Supreme Court agreed to review two 
decisions of the Court of Appeals for the Fourth Circuit which 
upheld IRS actions denying tax-exempt status to Bob Jones 
University and Goldsboro Christian Schools, Inc. The Reagan 
Justice Department prepared to and initially did defend the IRS 
actions and rules. In other words, the Reagan administration 
took the same position the Nixon administration had.
    But in January 1982, the Justice Department suddenly 
announced a change in its position. It found the IRS had no 
legal authority to deny tax-exempt status and agreed to give 
the schools, despite their blatant policies of racial 
discrimination, the tax exemption, aside from any other 
questions of religious discrimination. This was specifically 
on--they did discriminate on religious, but on the racial 
discrimination.
    Now, according to news articles and Congressional hearings, 
you were one of three lawyers characterized as part of the Bob 
Jones team who opposed the prevailing policy and pressed for 
the legal switch to give Bob Jones its tax exemption. In other 
words, you wanted to change what had been policy since 1970, 
and you wrote a memo along with Charles Cooper to Assistant 
Attorney General Brad Reynolds that was shown at the House Ways 
and Means Committee in which you argued that the IRS policy was 
simply wrong.
    You wrote, ``The Commissioners' ruling denying tax-exempt 
status to these racially discriminatory private educational 
institutions is supported by neither the language nor the 
legislative history of Section 501(c)(3).'' I want to note that 
that point, the IRS nondiscrimination policy, had been approved 
by two United States Courts of Appeals in three separate 
appeals.
    Now, Judge, at the time you authored the memo to Assistant 
Attorney General Reynolds urging this drastic change in policy, 
were you aware that more than 200 lawyers in the Justice 
Department Civil Rights Division objected to that change of 
position?
    Judge Kuhl. Senator, I am glad that you have asked this 
question right at the outset of the hearing--
    Senator Leahy. I knew you wouldn't be surprised that I 
would.
    Judge Kuhl. --because I am grateful for an opportunity to 
address this issue. I regret having taken the position that I 
did in support of the government's change of position at that 
time and I would like to explain that, if I may take the time 
to do that.
    Senator Leahy. When you do, would you also respond to the 
charge of the New York Times that you and your two other co-
workers were a band of ``young zealots,'' their words, in 
forcing a change in policy that was so strongly opposed by many 
senior officials in various executive branches during a 
Republican administration?
    Judge Kuhl. Certainly. I will address that, Senator.
    I do want to state at the outset, though, you had mentioned 
in your opening statement about some of them, I would call them 
abhorrent policies of Bob Jones University, and you can be sure 
that I had no sympathy for those policies. I share the same 
religion that you do, and I--
    Senator Leahy. Judge Kuhl--
    Judge Kuhl. Yes?
    Senator Leahy. First off, your religion, I want you to 
know, I have never asked, never would, and don't even know the 
religion of 99 percent of the people that come here. That is--
we don't--none of us have religious tests here.
    Judge Kuhl. I appreciate that, and I think that is very 
appropriate, Senator, but I wanted to say that so that you 
would understand in response to your comment that I had 
absolutely no sympathy for Bob Jones, either with respect for 
its racially discriminatory policies or with regard to its 
teachings with respect to other religions.
    The issue as I saw it, as it was considered during the 
Reagan administration, was whether the IRS was overstepping and 
taking an overly broad interpretation of its authority under 
its governing statute as it asserted that it had the authority 
to define public policy and to then deny tax exemptions on the 
basis of that public policy. That was the issue.
    I told you that I regret taking the position that I did at 
the time, and that is the case for two reasons. First, I did 
not at that time understand the traditional role of the Justice 
Department, which is to defend the positions of the agencies as 
long as there is a reasonable argument that can be made in 
defense of those agencies, and I don't think that I--well, I 
didn't as a very young staffer fully understand that, and I 
was--I had only been in Washington for a few months when this 
came up and I was a young staff assistant--
    Senator Leahy. But that is almost hornbook law.
    Judge Kuhl. I am sorry?
    Senator Leahy. You didn't learn that in law school? I mean, 
I--
    Chairman Hatch. Why don't you let her answer the question 
and maybe she will answer it.
    Senator Leahy. I am surprised what you are saying, 
because--
    Judge Kuhl. Well, I had never worked for the government 
before, so it wasn't apparent to me.
    The second and the more important reason why I think that 
the decision was wrong is because it did not properly put the 
nondiscrimination principle that should have been primary in 
this decision first. I was concerned about the IRS policy 
giving the IRS, of all agencies, the authority to interpret 
public policy and enforce it, and I was particularly concerned 
about all-girls' schools. I had attended an all-girls' school 
and I did not want to see a precedent created that would have 
meant that tax exemptions could be taken away from all-girls' 
schools because they discriminated against men. But--
    Senator Leahy. Let me--
    Judge Kuhl. If I could just say a couple other things--
    Senator Leahy. Go ahead.
    Judge Kuhl. --because I do want to get to the ``band of 
zealots'' point that you asked me about.
    Senator Leahy. I am not--I realize you wouldn't filibuster 
on an answer, but time runs out and I want time to follow up on 
this, but please go ahead.
    Judge Kuhl. Well, perhaps if the time runs out, Senator 
Hatch would give you a little more time, but--as much time as 
you want, I should say.
    Senator Leahy. Kind of you to ask.
    Judge Kuhl. But I did want to finish this explanation and 
to say that focusing on the narrow legal issue was not the 
right thing to do in that situation. The nondiscrimination 
principle and the importance of enforcement of the civil rights 
laws by the executive branch should have taken sway and should 
have been primary in making that decision.
    As to the ``band of zealots'' point, the Deputy Attorney 
General and the head of the Civil Rights Division both advised 
the Attorney General to change positions in the Bob Jones case. 
So as far as the memorandum I wrote, I am sure that the 
Attorney General looked at that memorandum, but there were 
senior officials, including also the Under Secretary of the 
Treasury, which I didn't know at the time, but I found out 
later the Under Secretary of the Treasury urged that the 
President take that position, as well, or that the Secretary of 
Treasury take that position, and, of course, it was the 
Attorney General's decision, and thank you, Senator, for 
allowing me to make that explanation.
    Senator Leahy. Because you wrote to Senator Boxer that you 
felt the traditional role of the Department of Justice is to 
defend regulations issued by executive branch agencies when the 
regulations are challenged in litigation. That was not the way 
you felt then. That is the way you feel now as you are up for--
now that you are appearing for the confirmation hearing, that 
is your opinion today, but that was not your opinion when you 
were at the Justice Department.
    Judge Kuhl. Well, I wrote that letter to Senator Boxer 2 
years ago, but I also came to the conclusion that the Bob Jones 
ruling or change of decision was wrong while I was at the 
Justice Department. I had conversations with people as I went 
along, and by the time I was in the Solicitor General's Office, 
I had reached that conclusion and discussed that with Solicitor 
General Fried, who was my boss, and he has mentioned that in an 
article he wrote for the New York Times a brief while ago.
    Senator Leahy. It just seems strange, of all the issues you 
could have taken on, you take this one, whether ``band of 
zealots'' is an adequate term or not. You chose one that seems 
hard to defend both legally and socially, waged a fierce 
campaign, 200 career lawyers saying, and these are people who 
came in in both Democratic and Republican administrations, 
saying you are wrong. It just--were there other cases during 
your tenure at the Justice Department in which you recommended 
that the U.S. confess error in the Supreme Court?
    Judge Kuhl. I can't think of any, Senator.
    Senator Leahy. So we just have this. I am looking at the 
material that was turned over to the Senate Finance Committee 
and the House Ways and Means Committee concerning legislation 
to deny Federal tax-exempt status, a number of Justice 
Department memoranda. At least during the Reagan 
administration, they could be turned over. Apparently, they are 
not allowed now. These were turned over 2 months after they 
were written.
    One of the documents was a memorandum written by you on 
December 8, 1981, to Solicitor General Kenneth Starr noting 
then-President Reagan and then-Vice President Bush's campaign 
statements on private schools. That memo had an excerpt from 
President Reagan's campaign platform stating he opposes the IRS 
attempt to remove the tax-exempt status of private schools by 
administrative fiat. Did that influence you in your arguing for 
this change?
    Judge Kuhl. Senator, that didn't have any part of the 
memorandum that I wrote, which was a legal analysis. I did 
forward it to the Attorney General, because as his staff 
assistant, I felt that it was information that he should have.
    Senator Leahy. But you didn't include that in your 
argument, the political position?
    Judge Kuhl. No, Senator, I didn't put that in my 
memorandum.
    Senator Leahy. My time is up. I will have other questions, 
either in a follow-up or in questions for the record, and Mr. 
Chairman, I appreciate your courtesy in allowing me to go 
first.
    Chairman Hatch. Happy to do it. I will also extend the same 
courtesy to the Senator from California, who can ask her 
questions now.
    Senator Feinstein. Thank you very much, Mr. Chairman. Judge 
Kuhl, good morning.
    Judge Kuhl. Good morning, Senator.
    Senator Feinstein. In 1985, you argued in the Thornburgh 
case that the Supreme Court should overturn Roe v. Wade. Your 
brief claimed that stare decisis is a principle of stability--I 
am quoting now. ``A decision as flawed as we believe Roe v. 
Wade to be becomes a focus of instability, and thus is less 
aptly sheltered by that doctrine from criticism and 
abandonment.''
    In the case of UAW v. Brock, you argued that the Supreme 
Court should reverse a decades' old doctrine of associational 
standing which allows associations to represent constituent 
members in court in some circumstances. Specifically, you 
argued that, and I quote, ``At the least, absent a showing of 
particularized need, an organization should not be allowed to 
bring suit to assert the individual rights of its members.''
    Can you explain to me in these two cases why you thought it 
was appropriate to overturn Supreme Court precedent? When, in 
your view, should an attorney advocate for the overturning of 
Supreme Court precedent? Why should the Committee believe that, 
upon appointment to the Circuit Court, you will not again 
attempt to shape the law instead of just interpreting it?
    Judge Kuhl. Okay. I understand the importance of that 
question, Senator, and I am going to give a brief answer to one 
part and then try to explain each case.
    As an attorney, I think it is appropriate to advocate to 
overturn Supreme Court precedent when it is in your client's 
interest. In other words, as attorneys, we are really not 
constrained in what we argue so long as it is within the bounds 
of ethics. We do what--we argue what is best to represent our 
client.
    As judges, that is not what we do, and so I know how 
important it is to you and to other women in this country to 
understand that I am fully committed as a judge to following 
the law. Since the Thornburgh case, the Casey case has 
completely looked at Roe again and has reaffirmed the Roe 
decision, and understand that I am fully committed to fully and 
fairly and properly enforcing a woman's constitutional right to 
reproductive freedom.
    Senator Feinstein. Do you believe it was correctly decided?
    Judge Kuhl. Do I believe that Casey was correctly decided?
    Senator Feinstein. Casey and Roe.
    Judge Kuhl. Casey and Roe? As an advocate at the time that 
I wrote the Thornburgh brief, and maybe I should turn back to 
the Thornburgh brief now. The Thornburgh brief was in 1985. 
Casey was decided reaffirming Roe in 1993. That was a 
considerable period later.
    In the Thornburgh brief, I was representing the Reagan 
administration. President Reagan had taken the position 
publicly, both before and after he was elected, that Roe v. 
Wade should be overruled. Also, prior to the Thornburgh brief, 
the Justice Department had filed a brief in Akron. Akron 
occurred before Thornburgh. And in Akron, the Justice 
Department had argued for a severe narrowing of Roe v. Wade by 
saying the States should have--well, there is a right to 
privacy, but States should have a great deal of leeway and be 
given deference in their interpretation of that right. In other 
words, the States' interpretation of the right should be looked 
at carefully by the Supreme Court.
    That argument was very poorly received by the Supreme 
Court. Justice Blackmun said, if you are not asking that Roe v. 
Wade should be overruled, are you asking that Marbury v. 
Madison should be overruled? And so it seemed to me that, given 
the position of the President, the Justice Department should 
argue forthrightly what the President's position was. And at 
that time, there was considerable academic criticism of Roe v. 
Wade by Paul Freund, Archibald Cox, Alexander Bickel, and Ruth 
Bader Ginsburg. I am not sure whether her criticism was before 
or after that time, but she also criticized the reasoning of 
Roe, and I thought those arguments should be presented as 
advocacy on behalf of the President.
    Senator Feinstein. You didn't quite answer my question. Do 
you believe that Roe was correctly decided?
    Judge Kuhl. Senator, I am not comfortable with giving my 
opinion with respect to any particular precedent as to whether 
it was correct or not. My job as a judge--and I am performing 
that job now--I take percent and apply it fully, completely, 
and fairly, whether or not I agree with it.
    As an advocate for the President, I thought that those 
criticisms of Roe were well taken. In the passage of time 
between Roe and Casey, however, stare decisis became much more 
important. In other words, there continued to be cases decided 
under the Roe v. Wade principle, and certainly after Casey, 
stare decisis is paramount. That is to say that Roe v. Wade and 
Casey are some of the most fully established precedent that I 
can think of in our jurisprudence.
    Senator Feinstein. Okay. Let me go to some of the comments 
that Charles Fried made, and I am sure you probably know about 
that, made in 1985. He recalled how he made his decision as 
Solicitor General to file an amicus brief in Thornburgh v. 
American College of Obstetricians and Gynecologists. The United 
States, since it was not a party to the case, was not obligated 
to file a brief. Fried recounted how he received 
recommendations from the various divisions of Justice, Civil 
Rights, Civil and Legal Policy on how to proceed.
    Let me just quote him directly. ``The most aggressive memo 
came from my friends Richard Willard and Carolyn Kuhl in Civil, 
who recommended that we urge outright reversal of Roe.'' Did 
you, in fact, write a memo to the Solicitor General urging the 
outright reversal of Roe?
    Judge Kuhl. Yes, Senator, and the reasons for that are that 
this was not the first time that the government had entered the 
dialogue in the Supreme Court on abortion. In the Akron case, 
which came up before Thornburgh, the United States had already 
taken a position on abortion and on the right to privacy.
    In the Thornburgh case, then, it seemed to me the issue was 
would we continue this argument that undercut Roe, or in light 
of the President's position, strongly held and strongly taken 
that Roe should be overruled, would we present to the Court the 
academic criticism that had been--that was out there. And I 
thought that it was important to be honest with the Court and 
to be forthright about what the President's position was.
    Senator Feinstein. Well, let me ask this question. When, 
generally, do you believe it is acceptable to overturn Supreme 
Court precedent?
    Judge Kuhl. Well, certainly as a Circuit Court judge, I 
would never do that. That would never be my job, to overturn 
Supreme Court precedent. For the Supreme Court, stare decisis 
is extremely important. Our government is a government of laws. 
It can't--the result in a case can't be different depending on 
which parties come before the Court, and so, therefore, stare 
decisis must be very important and overturning a precedent must 
be very rare because we must build on what has gone before. 
That is what we do as judges.
    Senator Feinstein. Okay. In 1989, you authored a brief on 
the issue of choice. By then, you had left the government and 
joined the private law firm of Munger, Tolles and Olson, and in 
your capacity as a private lawyer, you wrote a brief in the 
Rust v. Sullivan case on behalf of the American Academy of 
Medical Ethics, and at the beginning of your brief, you again 
criticized the Supreme Court's abortion jurisprudence by 
quoting a dissent from Justice O'Connor in the Thornburgh case, 
and the quote is as follows. ``The Court's abortion decisions 
have already worked a major distortion in constitutional 
jurisprudence. No legal rule of doctrine is safe from ad hoc 
nullification by this Court when an occasion for its 
application arises in a case involving abortion.''
    Would it be fair to say that in 1989, when you drafted the 
American Academy brief, you were still a critic of the Supreme 
Court's jurisprudence on abortion?
    Judge Kuhl. Senator, the brief in that case was written by 
me on behalf of a client. The client came to me and requested 
that that brief be drafted, and that brief primarily addresses 
the First Amendment issue there, the First Amendment issue 
being whether the government could place restrictions on 
speech, if you will, in a Federal agency program.
    I took on the representation because I was trying to build 
an appellate practice. Filing briefs in the Supreme Court is a 
prestigious thing to do, and the--and in First Amendment 
issues, they are particularly prestigious.
    Justice O'Connor did make that statement in a--I can't 
remember, was it a concurring or a dissenting opinion, but she 
did make that statement. And again, her statement was pre-
Casey. That is to say, I think there was--the terms that are 
coming to mind are too strong, but the Court was making its way 
with some difficulty pre-Casey, I think, in the abortion area, 
and it seems to me that with Casey, the Court came to rest, 
looked at Roe again, and firmly rearticulated the rights of Roe 
v. Wade and a woman's right to reproductive freedom, and so I 
think those earlier criticisms that Justice O'Connor had would 
not be pertinent subsequent to Casey.
    Senator Feinstein. Was this a pro bono client?
    Judge Kuhl. No, Senator.
    Senator Feinstein. Thank you. Would I have time for one 
more question, Mr. Chairman?
    Chairman Hatch. Sure.
    Senator Feinstein. I wanted to ask you a question on the 
subject of sexual harassment. While you served as Deputy 
Solicitor General in the Reagan administration, you co-authored 
an amicus brief in the sexual harassment case Meritor Savings 
v. Vinson. The plaintiff, a bank teller, alleged that her 
supervisor, the branch manager, forced her to submit to 
unwelcome sexual advances over a 4-year period, during which 
time she feared she would lose her job if she refused.
    Your brief on behalf of the United States and the EEOC took 
the side of the employer. You argued in support of the District 
Court's ruling that what occurred was simply a voluntary 
personal relationship between coworkers and that that would not 
be actionable under Title VII of the Civil Rights Act. Your 
brief ignored the power held by a supervisor over subordinate 
in these circumstances, as well as the EEOC's own guidelines 
providing that sexual harassment can be actionable as long as 
the advances are unwelcome.
    The Supreme Court unanimously rejected your position in an 
opinion written by Justice Rehnquist. Were you involved in the 
decision to file a government brief taking the side of the 
employer in this case?
    Judge Kuhl. I was involved--
    Senator Feinstein. Instead of the plaintiff?
    Judge Kuhl. I was involved in that decision, Senator. 
Actually, the brief--the Supreme Court's decision in Meritor 
closely tracked the brief that we filed. The reasoning is 
nearly identical to what we were urging on the Court.
    The only reason that the Justice Department was not--was 
urging a reversal had to do with the very technical 
interpretation of the Court's findings of fact. We were not 
arguing, that is, the Justice Department was not arguing that 
that relationship she had was voluntary. That was the finding 
of the trial court. The District Court had found that the 
relationship was voluntary. That was the fact we were given to 
work with.
    That was a technical issue on which the Supreme Court and 
we disagreed. It was, in my opinion, much more significant that 
this was the first case in which the Justice Department had 
argued in the Supreme Court that sexual harassment was 
prohibited by Title VII, and I am proud that we took that 
position and I stated after the Supreme Court's decision came 
down, I stated publicly that the Justice Department was very 
happy with the decision in the Meritor case.
    Senator Feinstein. I guess I--of course, I am not an 
attorney, but I am puzzled by--the EEOC is charged with 
enforcing Title VII and, as I understand it, had guidelines in 
place setting the unwelcomeness standard, and yet you chose not 
to accept that standard.
    Judge Kuhl. Well, this issue of voluntariness being--the 
question was whether the trial court's finding of voluntariness 
was equivalent to a finding of unwelcomeness. The Supreme Court 
found that it was not equivalent to a finding of unwelcomeness 
and we were very happy with that position. But the District 
Court had found that it was a voluntary relationship, and so 
that is what we were working with. And as I say, we were very 
happy with the Supreme Court's decision and stated that--and 
stated that at the time.
    Senator Feinstein. Thank you. Mr. Chairman, I don't want to 
take any more time, but I have some questions. Perhaps I can 
send them--
    Chairman Hatch. You take whatever time you would like. I am 
happy to wait and I will ask my questions later.
    Senator Feinstein. All right. If I may, I will ask another 
one, then.
    Chairman Hatch. Sure.
    Senator Feinstein. Environmental groups, such as the Sierra 
Club and the National Resources Defense Council, have written 
to me to express serious concerns about your nomination. These 
organizations argue that you would bring, and I quote, 
``extreme viewpoints to the Federal bench if conferred by the 
Senate.'' I would like to submit the NRDC's letter dated 
January 28, if I may, into the record.
    Chairman Hatch. Without objection.
    Senator Feinstein. Thank you, Mr. Chairman.
    In particular, there is concern about your legal advocacy 
in the Supreme Court case UAW v. Brock while an attorney at the 
Solicitor General's Office. In that case, you urged the Supreme 
Court to overturn the doctrine of associational standing, and 
we talked about it and know what it is.
    Specifically in the case, you argued that, and I quote, 
``Representative standing by an association should generally 
not be recognized.'' The Supreme Court rejected your position.
    According to the NRDC letter, associated standing, ``serves 
as a basis for standing for every other environmental group 
that proceeds to court to protect the environment for all 
Americans.'' Can you explain your opposition to associational 
standing?
    Judge Kuhl. Senator, the position of the United States in 
UAW v. Brock, I believe was set before I came to the Solicitor 
General's Office. I argued that case. I had just recently come 
to the office and I argued it, but I am not on the brief. If 
you look at the brief in that case, I am not on the brief.
    So again, I didn't have any trouble arguing the position. 
It was a position that--well, the government had won in the 
court below, so we were defending a winning argument in the 
court below in that case. But again, that was an argument made 
on behalf of a client.
    I can tell you that under California law, which is what I 
enforce every day, we basically have no standing requirements. 
A person without any injury whatsoever can come into court and 
sue. You may be familiar with the 17-200, Business and 
Professions Code 17-200 cases, and those are purely private 
attorney general cases. There is no standing requirement 
whatsoever. And I enforce that law all the time. Maybe I have 
a--up until a few months ago, when I became supervising judge, 
I had a 17-200 case before me probably once a week.
    And so this is an example. I don't carry the advocacy that 
I made in the interests of the United States. The United States 
often argues for narrow standing, not just in the Reagan 
administration, often argues for narrow standing to protect the 
executive branch discretion, if you will. And I don't take 
those arguments and carry them into my work as a judge.
    As far as environmental cases generally, I have support 
from Mr. Tom Girardi, eminent plaintiffs' lawyer in the area 
who was counsel in the Erin Brokovich cases, and he had some 
similar cases in front of me until recently when I took over my 
supervisory job. So I think that the litigants who have 
appeared in front of me in that area are very comfortable.
    Senator Feinstein. Perhaps you would respond to this, in 
view of what you have just said. In his memoirs, Order and the 
Law, Charles Fried wrote about the active role you played in 
attempting to limit the doctrine of associational standing, and 
let me read an excerpt from his book, and I quote. ``My deputy 
and counselor, Carolyn Kuhl, launched a frontal attack on this 
trend, arguing that groups should not have standing to make 
claim except as they could show themselves to be 
representatives of classes of individuals in traditional class 
actions. A vast array of organizations, ranging from the 
Chamber of Commerce through the AMA to the NAACP, opposed our 
submission. It was rejected by the court with no dissent.''
    Now, do you still oppose the doctrine--I am asking you now 
for personal view--of associational standing?
    Judge Kuhl. Well, I really--I don't have, in a sense, 
personal views about cases anymore. I have no problem with what 
the Court did in that case. I accept the Court's rejection of 
what was a kind of a novel argument. I will recognize that the 
UAW v. Brock case was kind of a novel argument. The reason it 
was made was because, first of all, we were defending a ruling 
that had been made by the lower court. But secondly, the 
thought was that applying class action standards would assure 
that when an association came before a court, that its members 
actually were being represented, all of its members' interests 
were being represented if the organization itself was not 
injured.
    But the Supreme Court rejected that. I have no problem with 
that. I would have no problem applying that standard in Federal 
Court, and as I say, in State Court, we have a much lesser 
standard. We have pretty much no standing. I mean, you don't 
even have to be a member--it doesn't even have to be an 
association filing on behalf of its members. It can just be an 
uninjured individual suing as a private attorney general, and I 
enforce that law all the time.
    Senator Feinstein. Okay. I would like to read you an 
excerpt from a letter I received from Mark Kleiman, an attorney 
who appeared before you in the case of Lou v. Moore. Mr. 
Kleiman writes, and I quote, ``I represent a whistleblower 
named Deborah Moore. Ms. Moore worked as a medical office 
biller for a physician. After discovering irregularities in 
Medicare and other insurance billing, an outright falsification 
of patient charting, Ms. Moore reported what she had found to 
various government agencies. She was then sued by her 
employer's business partner. California State law includes a 
provision to protect whistleblowers and others who speak out to 
government agencies or in public fora from being subject to 
frivolous lawsuits. These lawsuits are commonly known as SLAPP 
suits, Strategic Litigation Against Public Participation. 
California laws give defendants who are the victims of 
frivolous lawsuits, such as SLAPP actions, the right to move 
for dismissal and to obtain attorney's fees and costs. The 
defense of Ms. Moore involved a significant amount of work and 
Ms. Moore incurred nearly $40,000 in legal fees. Then the 
plaintiff voluntarily dismissed his action against Ms. Moore 
just days before a crucial hearing. Judge Kuhl, however, 
refused to award Ms. Moore the attorney's fees to which she was 
entitled.''
    Mr. Kleiman goes on to say that the appellate court 
reversed you, holding that your decision, ``constitutes a 
nullification of an important part of California's anti-SLAPP 
litigation and relieved the plaintiffs of the punishment which 
the anti-SLAPP statute imposes on persons who use the courts to 
chill others' exercise of their constitutional rights.''
    Could you please respond to Mr. Kleiman's and the appellate 
court's criticism of your decision in this case?
    Judge Kuhl. I would be glad to try to do that, Senator. 
That was an issue of first impression and Mr. Kleiman properly 
describes what the SLAPP statute is designed to accomplish. In 
that particular case, what is called a SLAPP motion was brought 
by this whistleblower defendant, saying that there was no basis 
for the litigation. Now, ordinarily, litigation can be filed 
and we don't test at the beginning of the litigation whether 
there is a basis for the lawsuit. But when it is a SLAPP 
lawsuit, in other words, when someone is exercising their First 
Amendment rights or reporting something to the government, then 
there is a higher standard involved.
    So in this case, the defendant's motion was that the 
lawsuit should be dismissed because it didn't have an adequate 
factual basis. I never got to hear that motion because the case 
was dismissed by the plaintiff. No doubt seeing this motion, 
they thought they couldn't defend it perhaps, and they 
dismissed it.
    The issue of first impression was what power remains to the 
court at that point. The statute said that when a motion is 
granted, when a SLAPP motion is granted, fees may be awarded. I 
never had a chance to decide that SLAPP motion, so could I 
award fees or not? And so it was an issue of statutory 
construction and an issue of first impression.
    I struggled a good bit with the issue of, well, what is the 
jurisdiction of the court when the case has gone away? The 
court of appeal handled that, I thought, well, and not in a way 
that was argued to me on the trial court, and the court of 
appeals said the court always has authority to decide adjunct 
issues that remain when the case is dismissed.
    As I say, it was an issue of first impression. Justice 
Walter Croskey wrote the decision and you have a letter from 
him in support of my nomination, and I thank you also for 
having recognized those letters in my support, Senator.
    Senator Feinstein. Thank you. While you were in private 
practice, did you participate in any litigation on a pro bono 
basis, and if so, could you tell us which cases and the general 
subject matter?
    Judge Kuhl. Yes, I can, Senator. I took on matters that 
were referred by public counsel, and these were matters--one 
was on behalf of Enorma Mays and one was on behalf of Leonore 
Gonzales. Each of these cases involved the very sad situation 
where people with--in lower socio-economic brackets may be 
preyed upon by people trying to take their home, a kind of--
they would fraudulently record a deed or forge a deed, and both 
of those cases were variations on that situation. I filed suit 
on behalf--in the separate cases on behalf of each and, 
happily, was able to get title back in the hands of my clients 
and have their homes restored to them.
    Senator Feinstein. Any other pro bono cases?
    Judge Kuhl. Those would have been the ones, Senator. For 
the 9 years that I was in practice after I was in public 
service with the government, I was having my children, and they 
are here, and I am very proud of them. I think I have done 
pretty well. But I was trying to hold down a partnership in a 
major law firm and to raise my children. But what I am happy to 
say is that there came a point when I was able to undertake 
public service again and to go on the bench and become a 
Superior Court judge.
    Senator Feinstein. In 1993, when you drafted a brief for 
Mary Baldwin College in support of the constitutionality of the 
exclusion of women from the Virginia Military Institute, were 
you working for the organization on a pro bono basis, and how 
did you decide to take on Mary Baldwin as a client instead of 
another public interest organization?
    Judge Kuhl. That brief actually, in the VMI case, was not a 
brief in support of the constitutionality of VMI. The position 
taken in that brief was that the court should accept the VMI 
case. It was a brief in support of the petition for certiorari. 
It was asking the Supreme Court to take that case so as to 
clarify that all-women's schools could--were not 
unconstitutional, essentially.
    The brief, if you look at it, mostly is a defense of all-
women's schools and the value of single-sex education for 
women. It does--it is in support of VMI in the sense that says, 
yes, Supreme Court, please take this case, but it does not 
offer any constitutional argument in support of what VMI was 
doing. So it was a narrow brief under those circumstances.
    It was filed on behalf of the women's organizations. It was 
referred to me through counsel who was representing VMI; in 
other words, the VMI, perhaps, had found three colleges in 
Virginia who wanted to file a brief, but their brief was 
limited, and the major portion of it was kind of a, we call 
them ``Brandeis briefs,'' in support of women's education, as 
women's single-sex education.
    Senator Feinstein. What was the group that you represented 
that Mary Baldwin was part of? What was the organization?
    Judge Kuhl. I may be wrong, but my recollection is it was 
just the three colleges. It wasn't a group. It was the three 
women's colleges in Virginia.
    Senator Feinstein. So you are saying the point of the brief 
was to sustain three women's colleges?
    Judge Kuhl. The point of the brief was these women's 
colleges said we feel that the decision of the Court of Appeal 
has made us uncertain about the constitutionality of what we do 
and maybe whether we can keep getting tax exemptions. So, 
please, Supreme Court, take this case and clarify that single-
sex education for women is not unconstitutional.
    Senator Feinstein. Do you happen to recall what the three 
women's--these were private women's colleges?
    Judge Kuhl. They were private women's colleges. It was Mary 
Baldwin--I'm just not remembering, Senator, I'm sorry.
    Senator Feinstein. Perhaps you could get that to me.
    Judge Kuhl. Surely, I would be glad to.
    Senator Feinstein. I would like to read the brief.
    Judge Kuhl. Yes, I would be glad to get the brief to you, 
Senator.
    Senator Feinstein. Thank you very much.
    I see Senator Durbin. Thank you very much, Mr. Chairman. I 
appreciate the time. Thank you.
    Chairman Hatch. Thank you, Senator. I know you take these 
matters seriously, and I was glad to be able to give that time 
to you.
    Let me take my time for questions now and just ask a few, 
along the same lines, if I can.
    Judge Kuhl, in response to written questions from Senator 
Boxer, you stated that, ``The Federal Government has, and 
should, play an aggressive, vigorous role in fighting 
discrimination.''
    You also stated, ``The civil rights laws have had a major 
impact in changing our society for the better, including by 
giving the Executive Branch the power to punish unlawful 
discriminatory conduct in employment, housing, Government 
contracting and Federal programs. The Government must continue 
to be a force for change by rooting out discrimination under 
its statutory mandates and bringing actions to compensate 
victims of discrimination.''
    Now, your record and reputation as a judge supports this 
commitment to following our civil rights laws. Let me ask you 
about one specific case, and I hope I am pronouncing this 
correctly. It is Frances Iwekaogwu--is that about right?
    Judge Kuhl. I think that's about right, Senator, yes.
    Chairman Hatch. It is close enough.--v. City of Los 
Angeles. Do you recall this case?
    Judge Kuhl. Yes, I do Senator.
    Chairman Hatch. Can you please just tell us about it a 
little bit.
    Judge Kuhl. Yes, this was a case--and I think the 
pronunciation is Iwekaogwu. That's the way I pronounce it--but 
this was a case that came before me during about a three-month 
period that I sat as a pro tem justice of the California Court 
of Appeal, and I wrote the opinion in that case.
    It was about a Nigerian-born African-American employee--
engineer--who was an employee at the County of Los Angeles, who 
the jury found had been discriminated against and had been 
retaliated against for complaining about discrimination. And in 
that case, the jury's fact-findings were being challenged, and 
my opinion recites the evidence in favor of the plaintiff in 
order to support the position of the jury award, and it also 
affirmed an award, a rather substantial award, of emotional 
distress damages for the plaintiff.
    We published the decision--my colleagues and I published 
the decision--because it takes some Ninth Circuit precedent 
speaking to the issue of what evidence may be offered in 
support of a race discrimination claim and takes that law into 
California law. So that is why we published it.
    Leo James Terrell, the attorney for Mr. Iwekaogwu, has 
written a letter strongly supporting your nomination. In his 
letter he said that he is an attorney for the NAACP and a life-
long Democrat. He also say that you were, ``A major factor in 
the successful resolution of that case.''
    He continued on saying, ``During the lengthy litigation 
process, I found that Judge Kuhl was fair, impartial, competent 
and at all times extremely professional. I, personally, have no 
problem with the appointment of a Republican judge to the Ninth 
Circuit bench as long as that judge is fair and impartial. 
Judge Kuhl is just that person.''
    ``I submit that your decision regarding the appointment 
should be based solely on the competency of the judicial 
candidate, not on politics. I will do everything in my power to 
ensure that Judge Kuhl receives a nomination and to see that 
this nomination obtains the advice and consent of the Senate, 
as well as the public.''
    I will submit that letter for the record, without 
objection.
    Now, Judge Kuhl, I would like to ask you a few questions 
about your role in the Bob Jones University case, since that 
has come up. Let us get one thing clear at the outset, your 
views in 1982 on the position of the United States in the Bob 
Jones case were never meant to endorse racially discriminatory 
policies of Bob Jones University, were they?
    Judge Kuhl. That's correct, Senator. We were focusing on 
the narrow legal issue of the IRS's statutory authority.
    Chairman Hatch. And you have never agreed with those 
discriminatory activities of Bob Jones University.
    Judge Kuhl. I certainly have not, Senator, and I hope that 
my performance as a judge shows that I value the diversity of 
the legal community and the community at-large in which I work 
and that I strive to continue to work of enforcing the civil 
rights laws that have been such a wonderful force for change in 
our society in the last 40 years.
    Chairman Hatch. What was your position at the Justice 
Department at the time the Bob Jones case arose?
    Judge Kuhl. I was a special assistant to the Attorney 
General.
    Chairman Hatch. How old were you at that time?
    Judge Kuhl. I was 29.
    Chairman Hatch. Twenty-nine. How long had you been out of 
law school at that time?
    Judge Kuhl. I'm going to say I think it was about two-and-
a-half years, perhaps closer to three.
    Chairman Hatch. Did you have any decision-making authority 
at the Justice Department at that time in that position?
    Judge Kuhl. No, sir.
    Chairman Hatch. In a recent Legal Times article, Charles 
Cooper, a highly respected Washington lawyer, who worked with 
you at the Justice Department, supported the fact that you were 
a junior lawyer at the Department at the time of the Bob Jones 
case. He characterized the left-wing group's description of 
your role in the decision-making process as ``unfair,'' and 
``grossly incomplete.''
    Now, speaking of your role, Mr. Cooper said that Judge 
Kuhl, ``Wasn't making policy. She was taking notes when she and 
I were even in the room.''
    Now, it is now 21 years later from when you, as a young 
lawyer, without any real authority, were in the Justice 
Department. You have been a State trial judge for 7 years, 
since 1995. Prior to that, you were a partner in a well-
regarded Los Angeles law firm, really well-recognized all over 
the country. You now believe that your position on the Bob 
Jones case in 1982 was wrong, for a variety of reasons, and you 
have so stated that.
    If I understand your answers correctly, you believe that it 
was wrong because it appeared insensitive to minorities, 
regardless of the nondiscriminatory motives of the persons 
advocating or advancing this position.
    If I understand you correctly, you also believe it was 
wrong because, indeed, it was the duty of the Justice 
Department to defend Federal agencies, which it did not do 
here.
    Now, is my understanding basically correct here?
    Judge Kuhl. Yes, Mr. Chairman, it is.
    Chairman Hatch. I want to share the Committee an op-ed that 
you have mentioned, written by Harvard law professor, and 
former Solicitor General Charles Fried, for whom you worked 
several years after the Bob Jones case was decided.
    Now, in that op-ed, which was published on January 17th of 
this year in the Los Angeles Times, Professor Fried says, ``The 
left-wing rap against Kuhl is that more than 20 years ago, as a 
29-year-old junior member of the U.S. Attorney General William 
French Smith's staff, she expressed a view that, however odious 
the practices and beliefs of Bob Jones University, it was not 
the job of the IRS to make social policy by deciding which 
nonprofits would enjoy the tax exemptions mandated by 
Congress.''
    Now, is that a fairly accurate summary of your views at 
that time?
    Judge Kuhl. Yes, Senator.
    Chairman Hatch. Mr. Fried continued, ``Certainly, Kuhl, a 
devout Roman Catholic, could have harbored no personal sympathy 
for the virulently anti-Catholic University. By the time Kuhl 
came to the Office of the Solicitor General as my deputy in 
1985, I knew she had come to believe, as did I, that she had 
been wrong if, for no other reason, than seeming to side with 
Bob Jones confused the Reagan administration's message that we 
were strongly committed to civil rights and racial equality, 
while opposed to quotas.''
    I will submit a copy of that editorial for the record, 
without objection.
    Now, Judge Kuhl, is Professor Fried right when he says that 
by the time you began working for him in 1985, you had already 
determined that your position on the Bob Jones case was wrong?
    Judge Kuhl. Mr. Chairman, yes, Professor Fried is correct 
in stating that.
    Chairman Hatch. And it was a narrow position at that time, 
basically one that you did not think that the IRS should be 
setting policy.
    Judge Kuhl. That's correct, Mr. Chairman.
    Chairman Hatch. Now, I think it is important to note that 
you have long held your belief that your original position on 
the Bob Jones case was wrong. Now, this is not a so-called 
``confirmation conversion,'' and anybody who tries to make it 
that is--to use the word again--wrong.
    Now, you have carried this belief with you for 21 years. 
Now, it takes an honest person of great integrity to admit when 
she is wrong, and I commend you for it here.
    Now, just to clarify. Judge Kuhl, the memo you wrote, to 
which Senator Leahy referred on the Bob Jones case, was not an 
appeal, a recommendation on appeal certiorari or amicus curiae 
matter or it certainly was not a recommendation in those areas, 
was it?
    Judge Kuhl. That's correct. It was a memorandum to, I 
believe, the assistant attorney general, and I was at that time 
a special assistant to the Attorney General.
    Chairman Hatch. The reason I bring that up is because we 
get continuously this argument that the seven living former 
Solicitors General should be ignored in the Miguel Estrada case 
and that certain Democrats should be allowed to have a fishing 
expedition into the recommendations on appeal certiorari and 
amicus matters, which of course this was not; is that correct?
    Judge Kuhl. That's correct.
    Chairman Hatch. Judge Kuhl, my time is up. I will turn to 
the esteemed Senator from Illinois, Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Thank you, Judge Kuhl, for joining us.
    I was out at another meeting, and I came back to hear both 
Senator Feinstein and Senator Hatch say that you do not hold to 
the position on Bob Jones University, in which you wrote in a 
memo 21 years ago as an employee of the Department of Justice; 
is that true?
    Judge Kuhl. That is correct, Senator Durbin, yes.
    Senator Durbin. Let me ask you if positions that you have 
taken relative to affirmative action, where you referred to it 
as ``a divisive societal manipulation,'' have you changed your 
position on that?
    Judge Kuhl. Well, Senator, since I wrote that article, 
first of all, the primary thrust of that article was to state 
the importance of individual remedies and of putting persons 
who have been discriminated against back in the place where 
they should have been, absent that discrimination, and that was 
the thrust of that article.
    Since I wrote that article, however, the Supreme Court--
that article was written at a time when the Supreme Court was 
very much up in the air about race-based remedies when there 
had been prior discrimination. Since that time, the Supreme 
Court has come to rest on that issue in the Adarand case and 
has held that in appropriate circumstances, race-based remedies 
can be used to remedy past discrimination.
    Senator Durbin. Have you changed the position you stated in 
the Thornburgh case, in which you called on the Supreme Court 
to abandon Roe v. Wade?
    Judge Kuhl. Well, Senator, since the Thornburgh brief was 
written, the Casey case has been decided. Casey looked at Roe 
again, considered the criticisms that had been made of that 
decision and reaffirmed that decision. Casey is the law of the 
land. It strongly reaffirms the right, the constitutional right 
to women's reproductive freedom, and I would apply that 
precedent fully and completely. I have absolutely no trouble 
with that, Senator.
    Senator Durbin. So it is a basis of, I mean, do you accept 
the Court's premise of the privacy issue here?
    Judge Kuhl. Yes, certainly.
    Senator Durbin. Then, let me ask you about a specific case, 
which I have found to be the most troubling of anything you 
have been involved in, Sanchez-Scott v. Alza Pharmaceuticals.
    In this case, a breast cancer patient went to her 
oncologist for a routine visit. During this visit, the doctor 
brought a man, described only as ``a person who was looking at 
Dr. Polonsky's work'' into the examination room. This man 
turned out to be a drug salesman for Alza Pharmaceuticals, as 
the patient later found out. This man, this drug salesman in 
the doctor's office, watched the examination, which included 
removal of the patient's shirt and bra. Citing an invasion of 
privacy, the patient sued the salesman and the pharmaceutical 
company.
    You rejected the invasion of privacy claim by the breast 
cancer patient, when this drug salesman was invited into the 
room to watch this woman disrobe for the medical evaluation.
    On appeal, the Court of Appeals unanimously found in favor 
of the plaintiff, reversing your decision.
    Would you like to explain your concept of privacy, as it 
applies to that fact situation?
    Judge Kuhl. Yes, Senator.
    First of all, I think it's important to recognize, in that 
case, that the woman, I'm sure, was very upset with her doctor, 
and had a right to be upset with her doctor, for allowing this 
third person into the examining room. She did have a tort claim 
against the doctor that was part of the lawsuit, but was left 
standing by my decision, and was not interfered with at all. In 
other words, her claim against the doctor that he didn't get 
her consent to allowing this person to come in, that claim was 
going to go forward.
    Senator Durbin. But I take it you rejected her claim 
against the salesman in the room and the pharmaceutical company 
that he worked for.
    Judge Kuhl. That claim was the claim that was before me, 
and the Court of Appeal had I think a closer focus in that 
situation on the seriousness of the invasion, not just because 
of the presence in the room, but because of what also happened 
in the room, and they also--
    Senator Durbin. It is a pretty outrageous situation, is it 
not?
    Judge Kuhl. I think it is an outrageous situation.
    Senator Durbin. But you did not see it as an invasion of 
privacy?
    Judge Kuhl. Well, I was trying to interpret California law. 
What was being cited to me was Michigan precedent. I think that 
the Court of Appeal has clarified the law in this area. I am 
happy that it has been clarified. I have certainly no problem 
with what the Court of Appeal did.
    And Justice Paul Turner, who wrote the decision in that 
case, has written in support of my nomination, and I think 
addresses, in some detail, this decision and states that, 
although he overturned it, there were strong arguments to be 
made in support of it.
    But let me restate again, I think that the woman had very 
good reason to be upset, and good reason to be upset with her 
doctor for letting this third person in the room.
    Senator Durbin. But had no right to a claim of action 
against the person who was brought into the examining room, nor 
the company he worked for.
    Judge Kuhl. After looking at the law was presented to me, 
that was the conclusion that I reached, but the Court of Appeal 
has clarified that. I am very happy with the Court of Appeal's 
decision, and I certainly would follow that in the future.
    Senator Durbin. I would think common sense would have 
clarified that.
    Let me ask you about an article that you wrote in the New 
York Times on June 16, 1993. Were you working for the 
Department of Justice at that time?
    Judge Kuhl. No, Senator, that--I'm sorry--was--
    Senator Durbin. After your--
    Judge Kuhl. I can see it through the paper. I think I know 
what you are referring to.
    Senator Durbin. ``Clinton dithered, Reagan didn't.''
    Judge Kuhl. I was in private practice at that time.
    Senator Durbin. You have got an interesting paragraph in 
this story, and I think the Chairman should take a look at 
this, as well as other members, and here is what it says, and I 
quote, ``President Ronald Reagan knew what he was looking for 
and how to find what he wanted. He had a clear view of how he 
wanted Supreme Court jurisprudence to change and had an 
intelligent, discreet and trusted advisory, William French 
Smith, his first Attorney General, who knew how to organize the 
selection process.'' And then you go on to talk about the 
process followed by President Reagan in filling Supreme Court 
vacancies and the process followed by President Clinton.
    Is it fair to conclude from that paragraph that you are 
saying that President Reagan--you speak in positive terms here, 
that he did not dither--had at least a concept of an ideology 
that he was seeking? And, if so, is your ideology part of the 
issue that we should consider here as you seek this important 
position?
    Judge Kuhl. Senator, what I was talking about in that 
article was the selection--President Reagan's side of it--what 
I was talking about was the selection of Justice Sandra Day 
O'Connor. And I know that President Reagan, I know that 
Attorney General--I certainly know that Attorney General Smith 
was very proud of that nomination, and I assume the President 
was as well.
    I think it was clear that President Reagan and Attorney 
General Smith wanted judges who would follow the law, who would 
interpret, as best they could, what the legislator enacted and 
who would not themselves legislate, and that's what I was 
talking about.
    Senator Durbin. Strict constructionism?
    Judge Kuhl. I would reject that label, Senator. I think 
that I am just a constructionist, if you're applying it to me.
    Senator Durbin. I am just asking. What--
    Judge Kuhl. What I try to do, and maybe this can--
    Senator Durbin. Was Justice William Douglas a 
constructionist?
    Judge Kuhl. Well, maybe this can help, Senator
    When I was sworn in seven-and-a-half years ago as a judge 
of the Los Angeles Superior Court, I quoted Justice Felix 
Frankfurter as the type of judge that I wanted to be. And 
Justice Frankfurter said that the highest duty of a judge is to 
put aside one's personal will and one's private views and 
follow the law, and that's what I believe. I said that then, 
seven-and-a-half-years ago, on the occasion of my swearing in 
as a judge of the court I am now on, and that is my model.
    Senator Durbin. I would like to submit some questions for 
the record, since I do not have enough time to get into them 
here, about your views as a constructionist. Usually, people 
try to say what kind of constructionist they are, but you are 
now in a generic category, and I assume there are strict 
constructionists, and flexible constructionists, and liberal 
constructionists, and conservative constructionists, but you 
are just a constructionist.
    And I am going to ask some questions, if I can, to follow 
up in writing as to what that really means and how that might 
apply to a given case.
    Let me just close, Mr. Chairman, with your permission, I 
would like to ask that a letter from Senator Boxer, as well as 
several organizations, relative to this nomination be made part 
of the record.
    Chairman Hatch. Without objection.
    Senator Durbin. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Hatch. We will turn to Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman.
    First, I would like to say I did not hear all of the 
distinguished ranking member's comments about the ``blue slip'' 
policy with regard to Circuit Court of Appeals, but it is clear 
that it has never been the policy of this Committee that one 
Senator who happened to be in the circuit could block a 
nominee.
    In fact, I remember very distinctly, not long after I came 
to the Senate, that when President Clinton was President, and 
you were Chairman of the Committee, and that a Republican 
member said we should adopt such a policy, and there was a 
debate within the Republican Conference, and you spoke 
forcefully and aggressively that it was not a good policy, and 
there was a vote, and your position prevailed.
    And it has never been the policy of this Senate that, with 
regard to Courts of Appeals nominees, a single blue slip is a 
decisive factor. In fact, the Presidents have always asserted 
that they have much less need, with regard to a regional 
appointment like a circuit judge, to seek home State approval 
even.
    We just had one from Alabama, one from the Eleventh 
Circuit, and the President makes his own pick, basically, and I 
think that is a healthy thing. So I just would want to defend 
you on that.
    Judge Kuhl, with regard to this matter that you were just 
being asked about, about the doctor and the drug company 
representative being in the examining room, let me just say it 
is amazing to me how much drug company representatives are 
involved in medical practice. Sometimes they know more than the 
doctor. Sometimes they are known to come in and give advice on 
operations and things of that nature. So it is an odd thing to 
me that that occurs, but do I understand that the doctor had 
approved this man coming into the room?
    Judge Kuhl. The doctor had brought the third person into 
the examining room.
    Senator Sessions. So the doctor, who had the care of the 
patient under his control, invited this person to come into the 
room; is that correct?
    Judge Kuhl. That was my understanding of the facts, yes.
    Senator Sessions. And you allowed the lawsuit to go forward 
against the physician, but did not allow it to go forward 
against the third party who the doctor had allowed to come into 
the room.
    Judge Kuhl. Yes, Senator.
    Senator Sessions. Well, that, to me, is a close call at 
best. I think that is what law is all about--who is responsible 
for the bad act occurring. You allowed the case to go against 
the responsible party, it seems to me, and I am not sure that--
I think a good case can be made that if he was asked into the 
room or allowed to come into the room by the physician that the 
person should not be held liable under these circumstances. I 
just do not know, but I do not think that is an extreme opinion 
at all.
    Mr. Chairman, I have to go to the floor to preside, and I 
would yield back my time.
    I would just say this nominee's record is extraordinary. 
She has got a tremendous background and not only has the 
academic background, she clerked for Justice Anthony Kennedy on 
the Ninth Circuit, which is the circuit you will be going on, a 
great justice, and in the course of that, that is the finest 
experience that a court judge can have, to clerk on that very 
same court. She finished academically with the highest honors 
and has had just a terrific record on the bench in California.
    All of these judges writing on your behalf has got to be a 
source of great comfort and affirmation for you. So I 
congratulate you, and I think she will make an outstanding 
member of the bench.
    Chairman Hatch. Thank you, Senator.
    We will turn to Senator Kennedy.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you very much.
    Welcome, Judge.
    Judge Kuhl. Thank you, Senator.
    Senator Kennedy. I regret that I was not here earlier.
    I took the opportunity this morning to go to the Supreme 
Court and to hear the University of Michigan case, and as I sat 
in the court, I was mindful that next year we are going to have 
the 50th anniversary of the Brown v. Board of Education.
    And I am also very mindful that I think the issue of 
discrimination, and racism, and bigotry are--America will never 
be America until we free ourselves from it. That is why I 
believe that this case is so important because I believe that 
if it is decided in certain ways, with the Voting Rights Act 
coming up in another year, the extension for the Voting Rights 
Act, it could perhaps have profound implication on this and 
really be perhaps a watershed kind of decision, in terms of how 
this country is going to proceed with issues of discrimination 
in our society.
    It was, obviously, extremely well-argued by both sides, but 
it still, I think, underlies really, at least for me, the 
importance of civil rights in our society. As you well 
understand, we wrote discrimination into the Constitution, we 
fought a Civil War. Dr. King led us, in a very important way, 
over a long period of time, but we are still wrestling with 
this problem, and there has been a variety of different, 
obviously, decisions which have had important implications in 
the recent times, but it is an area which I am very interested 
and strongly committed to.
    So I hope you will just understand if you will come back 
and revisit at least the Bob Jones situation. I know that I 
listened to the comments of our Chair and also your responses 
to that situation, and it was some time ago.
    It is one thing to have an opinion about the Bob Jones case 
and have a view about it, but I am looking through your 
activity during this period of time as a high-level Government 
lawyer in the administration--the Reagan--you worked to reverse 
the longstanding policy granting the tax exemption of racially 
discriminatory private schools, and you sought to reverse the 
policy, over the objections of the head of the IRS, and the 
acting Solicitor General, and then the head of the Office of 
Legal Counsel, Ted Olson.
    And more than 200 employees of the Civil Rights Division 
signed letter opposing the Reagan administration position in 
the Bob Jones case, as casting serious doubt upon the 
Division's commitment to enforce vigorously the Nation's civil 
rights.
    I remember this case very, very clearly, and it was a 
major, major cause celebre, in terms of the consideration and 
the judgment on it.
    And then the Supreme Court rejected the arguments that you 
had sought to put forward, to deny tax-exempt status to 
racially discriminatory schools. Only one justice, one justice 
only, Justice Rehnquist, dissented.
    And then in response to the written questions from Senator 
Boxer, you said that you had no decision-making authority with 
respect to the Government's position and that the decision was 
made by the Attorney General.
    I am sure it is correct the Attorney General made the 
ultimate decision, but it appears you took a prominent role. 
You co-authored a 40-page memoranda. The then head of the Civil 
Rights Division, Bradford Reynolds, arguing the IRS policy of 
denying tax-exempt status to racially discriminatory schools 
should be changed.
    You wrote a memo to Ken Starr, collecting Reagan campaign 
material, showing that Reagan, as a candidate, had opposed IRS 
attempt to remove the tax-exempt status of these schools, and 
statements from the 1980 Republican platform, opposing the 
IRS's position policy.
    And in a book written about the role of the Solicitor 
General, it is noted that the Reagan administration's interest 
in the case bubbled up from the middle ranks, especially from 
you and another attorney. You are described as a key member of 
the Bob Jones team, that you sought to reverse the IRS policy, 
circumventing the acting Solicitor General to do so.
    So the issue is why you felt that you had to play such an 
unusually active role in getting the Government to restore the 
tax-exempt status to the racially discriminatory schools. I 
know it has been a long time, and as I believe you have 
answered that in terms you did not believe the IRS ought to be 
making that judgement. If there is anything you want to--
    Can you cite a case in which you have held for civil 
rights' plaintiffs? Have you had any cases?
    Judge Kuhl. Yes, Senator, I can, and I appreciate your 
saying, harking back to that time of Bob Jones and saying it 
was such a big case. It was way over my head at the time. I 
really, as I have said in my answers to Senator Boxer, it was 
wrong because the Justice Department should have been defending 
the traditional position of the IRS, and it was wrong because 
it didn't put nondiscrimination first, and that's where the 
emphasis should have been, despite the concerns about what the 
IRS might do in the future to all-women schools or whatever, 
which was what was in my head.
    But with respect to my current record, Senator, I'm very 
proud of the decision that I wrote during the time that I sat 
on the Court of Appeal in the case called Iwekaogwu, and in 
that case the Court of Appeal--I was writing for them--affirmed 
the jury verdict in favor of a civil rights plaintiff, an 
African-American who had been discriminated against in the 
workplace in county employment, and upheld a very significant 
emotional distress award in his favor.
    In that case, we took Ninth Circuit precedent that is very 
strong in favor of the types of evidence that can be presented 
in discrimination cases in favor of the plaintiff and put into 
that State law.
    So I'm very proud of that decision, and I'm also proud that 
civil rights lawyers who know my work, such as Leo Terrell, who 
was counsel in that case, have written on my behalf and Vilma 
Martinez, whom I have known for many years.
    Senator Kennedy. Well, again, that is impressive because I 
have very high regard for her. I know her well.
    If you have other cases on this, we would welcome them.
    You said, as I understand this morning, that while you are 
still the justice, you expressed regret to Charles Fried about 
the Bob Jones case. As I understand, Fried had said that you 
did come to him and tell him that the position you took was 
wrong politically because it sent the wrong message. What do 
you remember, when you said you took the wrong position, did 
you believe it politically because it was just basically wrong 
in terms of the underlying values of the consideration of the 
case. Do you remember?
    Judge Kuhl. There wasn't any one particular conversation 
that I recall, but I know that we had discussion about Bob 
Jones, and certainly we did say that taking that position had 
been really a disaster for the Reagan administration, absolute 
disaster.
    But I also felt--I don't know whether I expressed this to 
Charles Fried--but I also felt that we really had had the wrong 
focus there for the reasons I have stated and that the policies 
of nondiscrimination should have come forward, and any problems 
we had about potential IRS overbreadth should have been taken 
care of through legislation or regulations, but I didn't have 
the breadth to see that at that time.
    Senator Kennedy. Let me just continue on this point.
    This is not the only case that gives me concern. The Reagan 
administration actually rolled back protections for minorities 
in cases such as school desegregation and affirmative action.
    While working in the Solicitor General's Office, you signed 
onto briefs that opposed remedial affirmative action in that 
Local 28 of the Sheet Metal Workers' case. The union in that 
case had egregiously violated Title VII, they administered 
discriminatory entrance exams, paid for cram courses for 
relatives of members that were unavailable to minorities, 
favored white applicants, while denying transfers of qualified 
blacks, and issued temporary work permits to white members of 
distant construction unions, but despite the evidence of 
intentional discrimination, you opposed affirmative action 
programs to remedy this discrimination.
    Then, in private practice, you wrote an article making 
plain your opposition to affirmative action. Indeed, you 
criticized Affirmative Action as a divisive societal 
manipulation.
    Is there anything you want to tell us about that Sheet 
Metal case or your views about affirmative action. The real 
question I have is how can you give us assurance, based on your 
record, that you will be fair on civil rights cases, and you 
will be able to set aside your political views?
    Judge Kuhl. Certainly, Senator. I want to emphasize that in 
the article, the primary thrust of that article had to do with 
my feeling that there needed to be a real insistence on 
seriously taking individual remedies seriously; that is, 
sometimes in class actions, there will be an overall remedy, 
but the people who should have been given jobs and who lost 
those--didn't get those jobs because of discrimination, need to 
be put where they should have been, and that was the point of 
that article.
    But with respect to my current perspectives now, I have 
minorities--plaintiffs--come before me all the time. I am proud 
that this is a record that I have, that I have the support of 
the bar, both sides of the bar. And more importantly, having 
lived in Los Angeles now for some period of time, this is a 
very multicultural environment that I live in and one that I'm 
really very proud of.
    I was recounting, to some of my friends, that I had bene to 
a Chinese-American Bar Association event about a week-and-a-
half ago, and this was on a Friday evening. It was crowded and 
so forth. But here at this event, Justice Carlos Moreno, a 
recent appointee to the California Supreme Court was there. I 
was sitting at the table with my former colleague, Enrique 
Romero, and I was sitting next to my colleague, George Wu, 
Karen Nobumoto, who is former president of the State bar, 
former president of African-American Lawyers, who was receiving 
an award, local political figures, local and statewide 
officeholders were there.
    And it was just, it really made me smile because here was 
an example of a way to affirm cultural identity, but yet open 
up, in this professional context, and have all groups come 
together in harmony, knowing each other, respecting each other 
and working together. And that is the kind of society that I 
would hope for, Senator.
    Senator Kennedy. Well, I think I could not agree with you--
I think if you look back over the history of a lot of those 
nominees, you would find out that a lot of them had a lot of 
difficulty in getting to where they are and are now serving 
with great distinction.
    That is not, in terms of your kind of situation, but it 
does, I think it is important, and that is what we are 
attempting to achieve.
    I would just ask you a global question, and it is along the 
lines of what I have mentioned before. We, obviously, entrust 
the Federal judges with protection of the highest ideals of our 
republic. They should actively protect the rule of law and play 
a special role in advancing the civil rights and civil 
liberties, and they should stand against discrimination in our 
society, and they should prevent the personal views of anyone 
from interfering with the rights of people.
    Now, let me, if I can, make this point. You, however--and 
then get your reaction--appear to be an activist--I want to 
hear how you respond to this--an activist for your political 
goals. You have taken extraordinary steps, while a Government 
employee, to push the Government to call for overturning the 
Roe v. Wade. You have chosen to defend restriction on a woman's 
right to choose, even when those restrictions were clearly 
contrary to Federal law.
    You have been specifically named as one of a band of the 
young zealots who tried to have the Federal Government weigh in 
on the side of racially discriminatory policies of higher 
education. You argue in favor of the Virginia Military 
Institute policy of discriminating against women. You argued 
that a woman who suffered humiliating sexual harassment at work 
was not entitled to any compensation under antidiscrimination 
laws. As a judge, you dismissed a case brought by a breast 
cancer victim after her doctor invited a drug salesman into the 
examination room while the doctor examined her. The two men 
apparently mocked the patient.
    In all of these cases, the position you supported, was 
rejected. If you become a judge of the Ninth Circuit, how can 
we be sure that you will not continue this sort of lack of 
sensitivity on issues of civil rights and women's rights 
issues?
    Judge Kuhl. Senator, the positions that I took as an 
advocate, I put those aside, and I put aside my role of 
advocacy when I became a judge seven-and-a-half years ago. I 
now have a record as a bench officer that I am very proud of, 
in support of the rights of all people who come before me.
     And as a trial judge, you know, you see these people face-
to-face that come into your courtroom, and it is so apparent to 
me how important it is that people who come into my court not 
only are fairly treated, but feel fairly treated, and that is 
the sensibility that I bring to my job as a judge, following 
the law, whether or not I agree with the law, and treating 
everyone who comes before me fairly, without regard to their 
social station, without regard to their race or their 
ethnicity.
    And I take great joy in working with our highly diverse 
juries that we have in Los Angeles, who come together and just 
do such a wonderful job putting aside who they are, what their 
social station is and working together to make our jury system 
work so well.
    So those are some of the things that I am committed to, 
Senator. And I think that the support that I have from my 
colleagues, from the Court of Appeal justices who know my work 
and have written on my behalf, from 23 women colleagues who 
have written on my behalf, and from the bar, generally, 
including the plaintiff's bar, even though I was a defense 
lawyer, I think all of that speaks to my performance as a 
jurist and to the fairness that I bring to the job.
    Senator Kennedy. I believe my time is up.
    I will yield to Mr. Chambliss, if I can do that, before 
Senator Hatch comes back.
    [Laughter.]
    Chairman Hatch. I am here, but did you have any further 
questions?
    Senator Kennedy. No, that is fine. Thank you.
    Chairman Hatch. We will go to Senator Chambliss, then.
    Senator Chambliss. Thank you, Mr. Chairman.
    Judge Kuhl, I notice that you are a graduate of Duke, and I 
will have to tell you that I am not going to let it cloud 
consideration of your nomination that the Duke women beat my 
University of Georgia women over the weekend. But it was a 
great ball game.
    I don't want to leave hanging what Senator Durbin was 
talking to you about because I can see the argument on the 
floor right now. Somebody is going to take your comments about 
being a constructionist of the Constitution. I want to give you 
an opportunity to expand on that a little bit.
    If anybody asks me, after practicing law for 26 years, what 
category I would fit in with respect to the Constitution, I 
tend to think I would be more of a strict constructionist. As I 
judge, I am hearing you say that maybe you are a little more 
moderate than that, but I don't want to put words in your 
mouth. I want to give you an opportunity to say what you really 
mean by that.
    So let's start off talking about the Constitution and how 
you as a member of the Ninth Circuit bench would approach any 
case that has constitutional issues. What would be your 
response to any case coming before you with respect to 
constitutional issues and your interpretation thereof?
    Judge Kuhl. Well, perhaps I wasn't too clear in my response 
to Senator Durbin, mainly trying to avoid labels because I 
don't find them to be very helpful. But I think in approaching 
a constitutional issue, one approaches it first with the 
language of the Constitution, the history of the enactment in 
that provision in the Constitution, and importantly also the 
precedents that have evolved under that constitutional 
provision. And those, I think, have to be the foundation of 
where one turns for beginning a constitutional analysis.
    Senator Chambliss. I think you could not have been clearer 
in your statement about precedents, irrespective of what 
personal feelings you have. You obviously have a terrific 
reputation as a trial judge on the Los Angeles Superior Court 
bench and I just want to confirm the fact that, as you have 
already stated, whatever your personal feelings may be, you 
would look at what the law says, what the precedent is with 
respect to any issue, be it a social issue, a criminal issue, 
or a constitutional issue, and that is how you would 
interpret--or you would abide by those precedents in 
interpreting the set of facts that might be before you.
    Judge Kuhl. That is correct, Senator. That is what I have 
taken on as my responsibility as a judge and a responsibility I 
hope I have discharged well.
    Senator Chambliss. I don't want to go back and belabor the 
point again, but Mr. Durbin asked you about the case Sanchez-
Scott v. Alza Pharmaceuticals, and also Senator Sessions did. 
There were some comments about the letter from Judge Paul 
Turner, who is the Presiding Justice on the California Court of 
Appeals. He was the author of the opinion that overturned your 
decision in this case.
    Very honestly, he writes a pretty good opinion in this 
letter regarding that case and he talks about how you made a 
very well-reasoned decision and it was a very touch call for 
you to make. And his decision overturning your decision, he 
gives again some pretty good rationale as to why you thought 
the way you thought and how your opinion was written, and also 
how his opinion was written.
    Mr. Chairman, I would like to enter this letter in the 
record.
    Chairman Hatch. Without objection, we will put it in the 
record.
    Senator Chambliss. I want to go to another case, Judge 
Kuhl. I understand that some of the opposition to your 
nomination stems from claims that you represented Shell Oil 
Company in defending the company against having to pay for 
clean-up of contaminated land. I understand that your role in 
this case did not have anything to do with whether or not Shell 
Oil Company was liable to the plaintiffs.
    Could you please clarify what your role was in the Nelson 
v. Shell Oil case? When did you become involved in the case and 
what issues did your argument focus on?
    Judge Kuhl. Yes, Senator, and in Nelson v. Shell Oil I was 
hired, I think, after the first appellate decision had come 
down. In other words, there had been a trial, there had been an 
appeal. There was a partial reversal on the appeal, there was 
another opinion. This case was up on appeal on appeal about 
three times.
    I was hired as appellate counsel on the case to address the 
issue of the amount of the punitive damages award, and I made 
arguments to the court of appeal about the amount of that award 
and that was arguing on behalf of the defendant that it should 
have been a smaller award. And that was the extent of my 
involvement in that particular case.
    Senator Chambliss. I understand in 1993 you represented 
three private women's colleges in an amicus curiae brief before 
the U.S. Supreme Court regarding the constitutionality of the 
exclusion of women from Virginia Military Institute.
    First, can you tell me how you became involved in that 
case, and could you please tell me what position you took 
regarding the constitutionality of denying women admission to 
the VMI?
    Judge Kuhl. Yes. In the VMI brief that I wrote, I was 
contacted and requested to write a brief on behalf of the three 
women's colleges. And primarily what the women's colleges 
wanted to address in that brief was the importance of single-
sex education for women.
    I am familiar with that topic because I myself went to an 
all-girls school for high school and my two daughters are in 
all-girls--well, one is in an all-girls school now; one will be 
next year. So I feel pretty strongly about the helpfulness of 
that to women as preparation for professional lives.
    But in any event, the brief primarily described the 
literature that supports the value of single-sex education for 
women and asked the Supreme Court to take the VMI case in order 
to clarify that whatever it said with respect to VMI, single-
sex education for women would not be unconstitutional.
    The women's colleges felt insecure, if you will, based on--
with respect to the court of appeal opinion and if that had 
been left standing, they were concerned that arguments could be 
made that they might lose their tax exemption or that they were 
being discriminatory in not admitting them.
    Senator Chambliss. Judge Kuhl, I understand from your 
statement and previous statements by other folks up here that 
you have strong bipartisan support on your nomination, 
including bipartisan support of 23 female judges on the Los 
Angeles Superior Court bench. Is that correct?
    Judge Kuhl. That is correct, Senator.
    Senator Chambliss. I think that is all I have, Mr. 
Chairman.
    Chairman Hatch. Thank you.
    Before I turn to Senator Schumer, let me just clarify one 
thing. Some of your critics certainly on the outside have tried 
to paint the picture that you are insensitive to civil rights. 
I don't think anybody here has tried to do that; at least I 
hope not.
    Didn't you find for the plaintiff in the Grobeson case?
    Judge Kuhl. Yes, that is correct.
    Chairman Hatch. Can you elaborate for the Committee on that 
case and explain that to us?
    Judge Kuhl. Yes, Senator. The Grobeson case was a case 
involving a police officer with the Los Angeles Police 
Department who was openly gay. And he had prior litigation with 
the police department, but in this particular case the issue 
had to do with his being disciplined for several situations, 
one of which was wearing a police officer uniform in a gay 
rights parade without the, allegedly--I mean, there was a 
factual dispute--without the permission of LAPD.
    Another one had to do with, I believe, his attendance at a 
funeral for an AIDS victim in uniform. There were several 
incidents such as that and he had been disciplined by the 
department, and the issue before me in that case was the 
discipline that had been given to him. And I reversed the 
discipline on the ground that he had not been adequately given 
notice of the charges against him in a particular instance, and 
so that discipline was reversed.
    Chairman Hatch. Well, I will put into the record an 
Associated Press article about the Grobeson case. The article 
was dated September 6, 2001. It just said, ``A judge has 
ordered the police department to reverse a suspension of a 
former officer who won a landmark legal settlement that dealt 
with alleged discrimination and harassment toward gays within 
the agency. Superior Court Judge Carolyn Kuhl said Tuesday the 
department must provide former Sergeant Mitchell Grobeson with 
pay, plus interest, for a 195-day suspension in which he 
received no salary. The judge's order didn't specify the amount 
owed to Grobeson.''
    And it goes on to say that he wore his police uniform 
without permission while attending a gay pride festival, and in 
a magazine advertisement recruited homosexuals to the LAPD. 
``Police officials couldn't be reached for comment Thursday. 
Grobeson and two other officers won $770,000 in a civil suit in 
February 1993. As part of the damages, the department promised 
to improve its hiring and training of gay officers. But 
Grobeson claims the department failed to follow up with the 
reforms and filed another suit in January 1996. In the second 
suit, he also alleges that fellow officers and supervisors 
harassed him. The department filed misconduct charges against 
Grobeson in June 1996. He later retired on a stress disability 
claim and challenged the suspensions in court. In 1999, Kuhl 
threw out the suspensions because the department's Board of 
Rights modified the formal charges against Grobeson without 
giving him fair notice. Negotiations between Grobeson and the 
department for possible settlement broke down and his attorney 
sought an order asking for back pay,'' unquote.
    Is that a fairly accurate account?
    Judge Kuhl. As best I remember, Senator, yes, Mr. Chairman.
    Chairman Hatch. Okay, thanks.
    We are going to turn to Senator Schumer, and perhaps he 
will be our last questioner today.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. I thank you for 
the courtesy. If I hadn't been able to make it back, you were 
willing to wait and I very much appreciate that.
    Judge Kuhl, I want to welcome you and your family here 
today. I want to congratulate you on the nomination.
    Judge Kuhl. Thank you, Senator.
    Senator Schumer. I am sorry that this is going to be--that 
it is already an adversarial and contentious process, but I am 
sure you appreciate the magnitude of the job you have been 
nominated for, obviously a lifetime appointment, and the 
importance of us fulfilling our constitutional duties in this 
process, not to ourselves but to the people I represent.
    As I was reading your record this weekend, and in 
particular I was looking at one of the cases, the most 
contentious one, Azucena Sanchez-Scott v. Alza Pharmaceuticals, 
I began thinking about the pattern of nominees we have seen 
from the White House.
    Anyone who thinks that the nominees are just chosen on the 
basis of legal excellence and don't have a view just has to 
look at the nominees who are before us. They are not mainstream 
moderate by and large. They are people any objective observer 
would say are way over.
    The Ninth Circuit is one that I give special consideration 
to. I voted for Mr. Bybee to come to the Ninth Circuit because 
it is largely a Democratic circuit and I believe in balance. 
And so my inclination would be to be supportive of you, but 
when I had read some of these things, they cry out for 
explanation and that is why I have to ask you these because 
just because we want balance doesn't mean you give a carte 
blanche to everybody.
    I have been thinking about the nominees that we have seen, 
in general. We on our side of the aisle have talked about, as I 
said, how many of these White House judicial nominees are out 
of the mainstream, in general. But when you go over the record 
one after the other, it becomes even clearer. And the clearer 
it gets, I think the more worried mainstream Americans will 
get.
    I believe that 10 or 15 years from now, there is going to 
be a rebellion if the Presidents gets his way and puts every 
one of his nominees on the court because they are going to be 
doing things that most people find outrageous. And it is 
especially frightening when it comes to women's rights. I think 
it is fair to say that, viewed collectively, many of these 
nominees are engaged in a campaign to roll back the clock on 
women's rights.
    Let's look at the facts. Jeffrey Sutton, a Sixth Circuit 
nominee, sought out the opportunity to represent an employer 
who had discriminated against a woman because she had become 
disabled by breast cancer. The woman's name is Patricia Garret. 
Ms. Garret was head of the ob/gyn neonatal unit at the 
University of Alabama-Birmingham Hospital. She took a leave of 
absence. When she returned, she had been demoted. Mr. Sutton 
apparently believed this was the right thing to do and sought 
out the opportunity to fight Ms. Garret's effort to get her job 
back.
    Priscilla Owen, a Fifth Circuit nominee who has just been, 
without a second hearing, renominated by this Committee after 
she was defeated the first time, always on a party-line vote--
if the President is seeking unity, I don't think we would get 
so many party-line votes. Anyway, she invented additional 
hurdles blocking a woman's access to her constitutional right 
to choose. Judge Alberto Gonzales, now the White House Counsel, 
said that Justice Owen's opinion in that case was an instance 
of unconscionable judicial activism.
    By the way, we did, of course, have a second hearing for 
Justice Owen, but renominated her. It didn't change the votes. 
The membership had changed.
    And then we have Deborah Cook, a Sixth Circuit nominee. She 
ruled against a widow in a claim against Wal-Mart for the 
wrongful death of her husband. The widow's initial suit had 
been dismissed for insufficient evidence, but then it became 
clear that Wal-Mart had instructed employees to lie and hide 
the evidence. The widow won her effort to reinstate the suit 
based on evidence that Wal-Mart had covered up, but Justice 
Cook dissented, holding that the widow shouldn't be allowed.
    Just last week, in addition to this confirmation hearing 
today, we held a confirmation hearing for James Leon Holmes. 
Now, he is a nominee for the district court. Usually, we give 
more deference to the district court, but Mr. Holmes has said 
that rape leads to pregnancy about as often as it snows in 
Miami. Is that the kind of person anyone wants on the bench? Is 
that the kind of person who is mainstream?
    According to the best estimates out there, we have 30,000 
rape- or incest-induced pregnancies each year in America. It 
snowed in Miami exactly once in the last century. Is that the 
kind of sensitivity, whatever your ideology, that someone who 
is being elevated to the Federal court should show? Of all the 
people out there, why do we have so many of these situations, 
not just one, but one after the other?
    And if that weren't offensive enough, Mr. Holmes has also 
said that women are obligated to subjugate themselves to their 
husbands. That is the kind of 19th century thinking we are 
seeing from these 21st century nominees.
    So, Judge Kuhl, I hope you will understand why I am 
concerned about the ideology and agenda that these nominees are 
taking with them to the Federal bench, because they get out 
from the Congress they are gone; they are there for life. I 
hope you understand why I am reviewing the records closely and 
fully to figure out what kind of judges they will be.
    I have voted for close to 95 percent of the President's 
nominees, even though I don't agree with most of them on choice 
or on any of the other issues. But some are just too far over.
    I am disappointed to say that your record gives me real 
cause for concern. I am deeply concerned that you not only 
believe Roe v. Wade is wrongly decided--it is not good enough 
for me to say ``I will follow the law.'' We have had that 
before. We had Mr. Thomas come before this Committee and say he 
had never discussed Roe v. Wade, and it is clear that he has 
not been a down-the-middle interpreter of that.
    But when you were a Government lawyer and then your job was 
defending the Constitution, you pushed the U.S. Government to 
ask the court to reverse Roe. Now, if you were following the 
law as Solicitor General, you wouldn't have done that. And just 
because you are here before us today under these circumstances 
and say you will follow the law, that is not assurance enough; 
it shouldn't be assurance enough.
    I am going to cover the Roe area--my colleagues have--in a 
second round or in writing, but I want to take this time to ask 
you about Azucena Sanchez-Scott v. Alza Pharmaceuticals. I just 
want to review the case so it is in the record, so people know 
what it is.
    Ms. Sanchez-Scott was a breast cancer patient. She was 
undergoing chemotherapy treatment. One day, she went to see her 
doctor for a checkup and was escorted to a private examination 
room to wait. When the doctor arrived, he was accompanied by 
another man. The doctor introduced the other man as Mr. 
Martinez and said that Mr. Martinez was, quote, ``a person who 
was looking at the doctor's work,'' unquote.
    The doctor instructed Ms. Sanchez-Scott to undress from the 
waist up. He had her get up on the examination table, into the 
examination position, and then rolled down the waistband of her 
skirt so he could examine her abdomen.
    And now I am reading from the appellate court opinion, 
quote, ``During the examination, Ms. Sanchez-Scott began to 
feel extremely hot and flushed. She carried a pocket fan with 
her for such occasions. She took the fan out of her purse and 
began to fan herself to feel cooler. At this point, the doctor 
took the fan from Ms. Sanchez-Scott and gave it to Mr. 
Martinez. Mr. Martinez was told, quote, `it would give him 
something to do.' Mr. Martinez began fanning Ms. Sanchez-Scott, 
who became extremely''--I am quoting from the case--``who 
became extremely uncomfortable because the doctor and Mr. 
Martinez both started to laugh. The plaintiff told Mr. Martinez 
she would fan herself, but Mr. Martinez refused her request and 
continued to fan her. Mr. Martinez watched the doctor examine 
Ms. Sanchez-Scott's''--they are specific, but I will just say 
body.
    ``As the examination continued in Mr. Martinez' presence, 
Ms. Sanchez-Scott continued to become more comfortable.'' This 
is still the case. ``As soon as the examination was concluded, 
Ms. Sanchez-Scott got up and tried to cover herself because she 
was embarrassed and uncomfortable.''
    Then the doctor told Ms. Sanchez-Scott, with Mr. Martinez 
still present, she would need a chest x-ray and a mammogram. 
When Ms. Sanchez-Scott went to the receptionist to schedule her 
procedures, she was asked--by the way this part, I am just 
summarizing the facts, when I started with ``Then the doctor.''
    Ms. Sanchez-Scott went to the receptionist to schedule her 
procedures and she asked who Mr. Martinez was. The receptionist 
responded Mr. Martinez was a sales representative from a 
pharmaceutical company.
    Now, I think, and I believe most Americans think, 
regardless of their political ideology, that this is outrageous 
conduct on the doctor's part. To bring a sales representative 
from a drug company into a private examination room, without 
explaining to the patient what is happening and getting her 
explicit permission, is unconscionable. It is not just a close 
question.
    My God, I don't know who Judge Turner is, I don't know what 
his views are, but if he thinks that this is a close question--
it was reversed unanimously by the court of appeals--he ought 
to talk to--I have asked five or six women. To a person, they 
are outraged, outraged. And when I told them that a letter was 
sent in saying it is a close question, they were amazed. They 
said who pulled the strings for that one?
    I don't know if that is the case, but I don't think anyone 
thinks this is a close question. It is a gross violation of Ms. 
Sanchez-Scott's privacy. And God bless her. Unlike so many 
other women who might face this humiliation, she found herself 
a lawyer and she filed suit. And the case came to you and you 
dismissed it, at least pertaining to Mr. Martinez and the drug 
company.
    You said, as I understand it, that because she didn't ask 
questions and object, Ms. Sanchez lost any right to privacy she 
may have had. You also agreed with the defendants that no 
reasonable person would have found Mr. Martinez' presence to be 
highly offensive, and that this was nothing more than--and 
these are your words--``a situation which she found socially 
uncomfortable,'' socially uncomfortable.
    The appellate court that sits above you unanimously 
reversed you in this case, and I have to say I can see why they 
did. I don't think I have seen a more disturbing ruling from a 
judicial nominee since I have been in the Senate.
    I think most Americans would be horrified to hear that your 
view of privacy rights, particularly in that situation, 
depended on someone who was scared and upset having to ask 
questions. And then to hear that you are being considered for a 
lifetime appointment on the Federal bench demands not just a 
letter from another judge that we don't know about saying it 
was a close question, even though he ruled against you. I need 
a lot more than that to have confidence that you will be a 
judge who is fair to women.
    So I have to ask you this: How do you explain the ruling 
issued in this case, and what can you tell us to assuage so 
many of my colleagues' concerns that you have too narrow a view 
of privacy rights?
    Judge Kuhl. Well, Senator, first of all, with respect to 
the Sanchez-Scott case, I can certainly understand the upset 
that the woman had and her feeling of betrayal, perhaps, 
because of what her doctor had done. And the fact of the matter 
is that she had a lawsuit, a tort action, against her doctor 
for failure to obtain her consent to bring a third party into 
the examining room, and that that cause of action went forward 
and was left standing and was not at issue in the case.
    With respect to women's rights, I--
    Senator Schumer. Can I just ask you a few more questions? 
Do you stand by her words that to protect her privacy rights, 
she had an obligation to ask questions?
    Judge Kuhl. Well, Senator, it is the case that if she had 
given consent--and the court of appeal opinion says this--if 
she had given consent that there wouldn't be a privacy cause of 
action. But I think the important thing here was--
    Senator Schumer. Well, wait. Had she given consent?
    Judge Kuhl. No, Senator, she had not given consent, and 
that is why I say that her claim against the doctor was really 
at the forefront here because he was the one who had control of 
the examination room and he was the one who invited this third 
party in. And that is why she had a tort action, a tort claim 
against the--
    Senator Schumer. Do you have any evidence that the third 
party was coerced to come into the room?
    Judge Kuhl. No, I don't think that was my point, Senator.
    Senator Schumer. Well, explain it to me. You said that the 
doctor invited him in.
    Judge Kuhl. That is right. It was the doctor's decision to 
bring this third party into the examination room, and therefore 
it was--she was very legitimate in being upset at his not 
having obtained her consent to bring this person into the 
examination room that was in his doctor's office.
    Senator Schumer. Yes. I don't follow your--in other words, 
you are thinking that Mr. Martinez was blameless?
    Judge Kuhl. That is not my point, Senator, but I am saying 
that she had a claim which went forward against the doctor.
    Senator Schumer. Right, but you were reversed. How many 
judges were on the appellate panel that reversed you?
    Judge Kuhl. There are three on our appellate court who do 
so, and I think in that--
    Senator Schumer. Just let me ask you this.
    Judge Kuhl. Go ahead, Senator.
    Senator Schumer. No. Please.
    Judge Kuhl. Well, I think that the appellate court in doing 
that clarified the law in what was a rather unclear area, and I 
welcome that and certainly would follow that law in the future.
    Senator Schumer. And one other thing. You say it was a 
situation which she found socially uncomfortable. I don't even 
get that one.
    Judge Kuhl. I really don't recall that from the transcript. 
I would be glad to look at it, if you like. I am not saying it 
wasn't there, but I just don't recall those words, so I really 
can't comment on the context. I am sorry.
    Senator Schumer. Well, in the defendant's motion to 
dismiss, that is what you said.
    Judge Kuhl. In the defendant's motion to dismiss.
    Senator Schumer. You sustained the motion to dismiss.
    Judge Kuhl. That probably would have been a demurrer, yes, 
I think.
    Senator Schumer. Do you think you made a wrong decision in 
this case?
    Judge Kuhl. Yes. I think the appellate court was correct, 
Senator, and I also think you have mentioned me--grouped me in 
with others and suggested that mainstream and moderate is 
something that would not apply to me. And I think that the many 
letters of support from people who have worked for me--
    Senator Schumer. You know, I--
    Judge Kuhl. --who have reviewed--
    Senator Schumer. Please.
    Judge Kuhl. --who have reviewed my decisions, people who 
have worked with me on a commission appointed by the chief 
justice to restate all of California law in easily 
understandable jury instructions--if ever there was an 
opportunity to twist the law, it would be in that committee. 
And six members, six of my colleagues on that Committee have 
written and said this is somebody who looks straight down the 
middle at the law.
    And Justice Carlos Moreno, of the California Supreme Court, 
has written on my behalf. Civil rights lawyers Leo Terrell, 
Vilma Martinez, former head of MALDEF, have written on my 
behalf. And I think those who know my work have great 
confidence and have expressed that very clearly that I am a 
judge who follows the law and applies justice without reference 
to persons.
    And certainly on women's issues, Senator, a number of women 
have mentioned in their letters, including the 23 women 
colleagues who have written on my behalf, that I am someone who 
mentors other women. I am proud of that. I have been lifted up 
by other women who have gone before me and have established the 
principles of equal rights for women that I enjoy the benefit 
of, and I hope to pass that tradition on to my daughters. And I 
have tried to as best I can in my professional life assist 
other women as they travel the path that I have traveled.
    Senator Schumer. Do you think your own views on Roe v. Wade 
are right down the middle?
    Judge Kuhl. Well, Senator, my views on Roe v. Wade are that 
I would enforce the law, that I would follow the Casey 
decision--
    Senator Schumer. Do you think your personal views, your 
personal views--we have learned, despite when people say they 
will enforce the law, personal views influence that and that is 
what leads to why we don't have nine-nothing decisions on the 
Supreme Court. That is why every analysis shows that people's 
philosophy and who appointed them has a huge difference in how 
they vote.
    I think what we are trying to establish here is simply 
saying ``I will follow the law'' is not good enough because 
that is what people now who reportedly have strong views on 
things tell us and it just doesn't work that way on the bench.
    Judge Kuhl. I know that you--
    Senator Schumer. Otherwise, we would have a computer that 
will follow the law. Individual judgments actually determine 
how you would follow the law. I mean, in this case clearly you 
did something--and I appreciate your admitting it was a 
mistake--that 99 out of 100 people, in my judgment, wouldn't 
have come up.
    Judge Kuhl. Senator, I appreciate your view and understand 
your view with respect to how judges work, but my view of how 
judges work is consistent with Justice Felix Frankfurter.
    When I went on the bench, I took a quote from Frankfurther 
and I stated to the people who were there 7\1/2\ years ago that 
that was my judicial philosophy, and he said that the highest 
exercise of judicial duty is to subordinate one's personal will 
and one's private views to the law.
    Senator Schumer. So why do you think that appointments by 
Democratic Presidents and appointments by Republican Presidents 
have such differences in how they decide, and there has been 
study after study that shows it, if we all just follow the law?
    Judge Kuhl. Well, going back to the article that was 
referred to earlier, I think that President Reagan, for 
example, attempted to pick judges who were committed to 
following the law, not legislating, trying to find out as best 
as they could--and this is what I try to do--what it is that 
the legislation means and implementing that without regard to 
what I think. Sometimes, you have to make a conscious choice in 
your mind to put something aside, and you do it and you go 
forward.
    Senator Schumer. Why in the Solicitor General's office did 
you urge that they move to overturn Roe v. Wade, when your job 
as Solicitor General to follow the law and urge the Solicitor 
General to follow the law?
    Judge Kuhl. My job in the Solicitor General's office was 
one of several roles--one of two roles I guess I held as an 
advocate. And as an advocate, one certainly needs to take 
precedent into account, but one's primary job as an advocate is 
to make arguments that support the interests of one's client. 
And in that case, President Reagan as the President had very 
clearly stated his position that Roe v. Wade should be 
overruled. It is very different from--
    Senator Schumer. Don't you swear to uphold and defend the 
Constitution in that job?
    Judge Kuhl. I think so.
    Senator Schumer. I think so, too, and the law of the land 
was Roe v. Wade.
    Judge Kuhl. Well, Senator, the law of the land is also that 
a lawyer may ask a court to overrule a precedent. I mean, it 
has never been the case, or it certainly has never been my 
understanding that one may never ask a court to overrule a 
prior ruling.
    Senator Schumer. So did you then think that Roe v. Wade 
wasn't the law of the land?
    Judge Kuhl. No, I am not saying that. I am saying--
    Senator Schumer. Shouldn't have been the law of the land is 
a better way to put it.
    Judge Kuhl. No. What I am saying is that the advocacy there 
was that the President and the executive branch had a position 
with respect to that and we asked the Supreme Court to do so. 
One of the reasons why we did so--or in my mind, one of the 
reasons to do so was because the Government had already in the 
Akron case previously taken a position on Roe v. Wade and it 
was a position that said that States should be given 
significant deference in legislating in the abortion area.
    And Justice Blackmun, sitting on the bench in that case in 
the Supreme Court, had asked Solicitor General Rex Lee, well, 
are you asking that Roe should be overruled? And General Lee 
said no. And Justice Blackmun said, well, then, should Marbury 
v. Madison be overruled? And he was very concerned about the 
argument and I can understand that. I thought that if this was 
the position of the executive branch and the position of the 
President that it should be presented in a credible fashion 
forthrightly.
    Senator Schumer. Yes, but here is the contradiction, I 
think, in what you are saying. If you are defending the 
Constitution and Roe v. Wade is constitutional law, how can you 
urge its reversal?
    I would just make one other point here. Charles Fried was 
then the Acting Solicitor General and he also signed the brief, 
but he said that some of the--I believe this is a quote from 
him--``Some of the political people in the Department''--that 
is his quote--unquote, were to eager to do so and, quote, ``the 
most aggressive memo came from Carolyn Kuhl in the Civil 
Division, who recommended that we urge outright reversal of 
Roe.''
    No one else, even the Solicitor General himself, I guess, 
went that far, and you say you were sort of on your own helping 
President Reagan when so many of the others in the Department 
higher up than you didn't think we ought to go that far?
    Judge Kuhl. Oh, Senator, the--
    Senator Schumer. And it was not the law, it was not the law 
of the land.
    Judge Kuhl. Professor Fried, then-General Fried was the 
Acting Solicitor General. He eventually was confirmed as 
Solicitor General. He certainly was senior to me and it was his 
decision to file the brief. Richard Willard was the Assistant 
Attorney General. He was senior to me and it was his 
recommendation to file the brief.
    So I am not exactly sure I am answering your question, but 
perhaps I don't understand it.
    Senator Schumer. Were you one of the most aggressive in 
urging in the Solicitor General's office that Roe be overturned 
when you were there?
    Judge Kuhl. I was not in the Solicitor General's office at 
that time. That is Professor Fried's characterization. I did 
urge that the Department be forthright with the Court and, 
since it was the position of the President, present that view 
to the Supreme Court, and present to the Supreme Court the 
arguments of the many constitutional scholars who at that time 
had taken that position--Alexander Bickel and Ruth Bader 
Ginsburg, Harry Wellington.
    Senator Schumer. Judge, I am not asking what other people 
think. I am not even asking what President Reagan thinks 
because the position--we are looking at you as you are coming 
here and saying you will uphold the law.
    You also, when you had this job, said you would uphold the 
law. I think you are asked to do that, and back then you said--
and Roe v. Wade was clearly the law of the land, and here you 
are not an elected President at the top of the Government, not 
even on the U.S. Supreme Court--
    Chairman Hatch. Nor was she a judge at the time. She was an 
advocate for the President.
    Senator Schumer. But, Orrin, it is the analogous position.
    Chairman Hatch. But you are talking to her as a judge.
    Senator Schumer. Well, you are being asked to and you swear 
an obligation to uphold the law. And I would say if you asked 
most people to look at your record and what you have said that 
at least it is reasonable to doubt, given this and given some 
of the other things, that once you got on the bench, you would 
see upholding the law as most Americans do, which means keeping 
Roe v. Wade.
    Judge Kuhl. Well, Senator, I have already said that I see 
upholding the law and my job as a judge as applying Roe v. Wade 
and applying Casey. I just may not understand your premise 
about the job of the Solicitor General.
    As a judge, I don't like it when people ask me questions, 
so I shouldn't really be asking you questions.
    Senator Schumer. You can.
    Judge Kuhl. But my question would be is your premise that 
as a lawyer for the United States, one should never argue that 
precedent should be overruled, because that is not my 
understanding of the job of a lawyer for the Government.
    Senator Schumer. If you think the precedent is not in 
consonance with the law of the land, you should argue that it 
be overruled. But you are saying two things that are different. 
One is you are saying you argued that Roe should be overturned, 
but at the same time you argued that your job there would be 
to--your stated your job there is to uphold the law of the 
land.
    I think, Orrin, it is analogous to being a judge.
    Chairman Hatch. Well, if you will yield, that is not what 
she said.
    Senator Schumer. Well, why don't you say it again? How do 
you square the idea that you swore an oath to uphold the 
Constitution, that Roe v. Wade was the established law of the 
land, and you were among the most vigorous in urging that it be 
overturned? That is the question in a nutshell.
    Judge Kuhl. Well, I think, Senator, when as a lawyer one 
takes an oath to uphold the law of the land, what one is saying 
is that as an official of the Government, one is going to 
follow the law. In other words, if the Supreme Court interprets 
a statute in a particular way and you are advising an agency as 
to how to act, you tell that agency, you act in accordance with 
the law. I have never understood it to mean as an advocate that 
one cannot ask a court to overrule a prior precedent.
    Senator Schumer. So you are saying you were an advocate 
when you were in the Solicitor General's office?
    Judge Kuhl. That is correct.
    Senator Schumer. But you will not be an advocate as a 
judge?
    Judge Kuhl. That is correct.
    Senator Schumer. Even though in each case, you were asked 
to swear an oath to uphold the law of the land?
    Judge Kuhl. I think one's duty is different in the two 
cases.
    Senator Schumer. I will leave it at that.
    Chairman Hatch. That is my point.
    Judge Kuhl. Thank you, Senator.
    Chairman Hatch. Okay, thank you, Senator.
    I am going to finish up with--
    Senator Schumer. Mr. Chairman, could I just ask unanimous 
consent that the letter from Ms. Azucena Sanchez-Scott to 
Senator Leahy of March 3, 2003, be added to the record?
    Chairman Hatch. Without objection.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Hatch. We are going to wind up with you and then 
we will have to recess for the two district court judges until 
two o'clock.
    As you previously noted, Judge Kuhl, there are plenty of 
respected legal scholars who believe that Roe v. Wade was a 
poorly-written opinion and as a matter of constitutional law it 
was wrong, some of whom are pro-choice advocates, such as 
Archibald Cox, John Hart Ely, and others, and you have 
mentioned a few.
    Each of the abortion-related cases that you have been asked 
about were before the Supreme Court's seminal opinion in Casey. 
Is that correct?
    Judge Kuhl. That is correct, Mr. Chairman.
    Chairman Hatch. That needs to be brought out. Anybody who 
says that once the Supreme Court rules, we just always have to 
follow it no matter what anybody says, just doesn't understand 
the law because there have been Supreme Court precedents 
overruled from time to time because they have been wrong.
    So to just say that because the Supreme Court rules that 
that is within the Constitution--well, it is until it is 
overruled.
    Judge Kuhl. Well, Mr. Chairman, it just occurred to me that 
Brown v. Board of Education would be such a case, overruling 
Plessy v. Ferguson.
    Chairman Hatch. Well, sure. That means that if you were up 
for a judge before Brown v. Board of Education, with this 
reasoning you would have to uphold Plessy v. Ferguson. I mean, 
that is crazy. That is the trouble with getting into ideology, 
and that is why those who come before this Committee--I expect 
you to uphold the law regardless of your personal views. Your 
personal views are irrelevant.
    Now, do your personal views ever affect any litigation? I 
imagine every context of your life might affect a case, but 
that is true of every judge. Every judge has to think, but that 
doesn't mean that you would violate the law in your thought 
processes.
    Now, Judge Kuhl, let me just ask you some follow-up 
questions about the Sanchez-Scott case that you decided. It is 
my understanding that the particular motion to dismiss that you 
had granted had nothing to do with the claims against the 
doctor and that your ruling would have allowed the claims 
against the doctor to go forward. Is that right?
    Judge Kuhl. That is correct, Mr. Chairman.
    Chairman Hatch. Well, that is right. Now, please explain 
which claims were involved in the motion you ruled on and what 
your ruling meant for the ultimate disposition of the case.
    Judge Kuhl. The claims against the doctor were tort claims 
for failure to obtain consent from the woman in the examining 
room that was the doctor's examination room.
    Chairman Hatch. Right.
    Judge Kuhl. And the claim against the third party who came 
into the room was an invasion of privacy claim.
    Chairman Hatch. Well, that is right. Now, to my knowledge, 
the case settled before trial. Is that correct?
    Judge Kuhl. That is correct, the case did settle before 
trial.
    Chairman Hatch. That is right. It is my understanding that 
those of us hearing about the facts of Sanchez-Scott case for 
the first time might be troubled by the conduct of this 
particular doctor and the pharmaceutical representative. But I 
think we need to keep in mind that judges do not decide cases 
based on their personal responses to the behavior of the 
litigants, but based on the law.
    Now, Judge Kuhl, I understand that you dismissed the 
constitutional right of privacy claim and were affirmed by the 
appellate court on that issue. Is that correct?
    Judge Kuhl. That issue actually was not appealed, was not 
taken up on appeal.
    Chairman Hatch. Okay.
    Judge Kuhl. It was dropped, I think is the way of saying 
it.
    Chairman Hatch. As I understand it, there were additional 
invasion of privacy claims brought under California State law.
    Judge Kuhl. That is right. The invasion of privacy claim 
that went up on appeal was State common law.
    Chairman Hatch. Can you elaborate on the State law involved 
in the claims and how the law led you to your ruling?
    Judge Kuhl. Well, the common law in that case was not well-
articulated by the courts of appeal and the primary case that 
was being cited to me was an 1881 case from Michigan. Now, the 
appellate court relied heavily on that case, but as I think 
Justice Turner indicates in his letter, my job was to follow 
California law. And the appellate court imported that Michigan 
case into California law and clarified the law in a way that I 
think is helpful going forward in the future.
    Chairman Hatch. Now, some of my colleagues have implied, or 
at least have created the impression that the appellate court's 
reversal in that case somehow demonstrates that you are 
insensitive to litigants who come before you.
    I just want to share with all of my colleagues and with 
everybody watching this and with you, Judge Kuhl, a letter that 
Senator Chambliss has already mentioned but which bears 
repeating. This letter is from Judge Paul Turner, who authored 
the appellate court opinion in the Sanchez-Scott case, for 
which you have been somewhat criticized here by a colleague.
    Judge Turner wrote, quote, ``I can tell the difference 
between a trial judge making a tough call in the context of 
competing legal interests on one hand and bias or prejudice on 
the other hand,'' unquote.
    He went on to state that, quote, ``A strong argument can be 
made that Judge Kuhl correctly assessed the competing societal 
interests the California Supreme Court requires all jurists in 
this State to weigh when determining whether the tort of 
intrusion has occurred,'' unquote.
    He concluded by stating, quote, ``With all respect to those 
who have criticized Judge Kuhl as being insensitive or biased 
because of my opinion in Sanchez-Scott, they are simply 
incorrect,'' unquote.
    Now, I am going to read just a little bit more about it 
because I think it is quite unfair to try and imply, because 
you were reversed in this case, a reversal that you accept and 
you said probably was right, that you were insensitive or 
biased.
    He is what he says, and this is right out of the letter 
which I put in the record, without objection. ``First, there 
was no issue in the Sanchez-Scott case involving the 
constitutional right of privacy. Footnote 1 of the opinion 
expressly states that there was no issue of the constitutional 
privacy right before our court when we considered the Sanchez-
Scott case. Second, the plaintiff's tort claim against the 
doctor himself for failing to obtain his patient's fully 
informed consent was not at issue before Judge Kuhl and this 
court. Ms. Sanchez-Scott's claim against the physician was to 
be litigated in any case, even if the drug salesperson and his 
employer did not remain in the case. Third, the Sanchez-Scott 
case involves some issues of first impression under California 
law involving the tort of intrusion, as defined in the 
Restatement Second of Torts, Section 652(b), which even as of 
this date have not been clearly defined with identifiable 
bright line rules by California courts.''
    That is what you meant when you said ``I think the 
appellate court got it right,'' even though you were trying to 
do your best to try to define this area. Am I right?
    Judge Kuhl. Yes, Mr. Chairman, absolutely.
    Chairman Hatch. He goes on to say, ``The California Supreme 
Court has described the tort of intrusion as involving, quote, 
`degrees and nuances to societal recognition of our 
expectations of privacy,' unquote, and, quote, `relative,' 
unquote, concepts. Much of the analysis in our decision was 
premised upon the 1881 Michigan Supreme Court decision of the 
DeMay v. Roberts case. In ruling on the demurrer, Judge Kuhl 
was required to apply what the California Supreme Court has 
characterized as degreed and nuanced rules of law involving 
relative concepts. Fourth, attached to the complaint filed in 
Superior Court was a letter explaining why the drug salesperson 
was in the examining room during the breast examination. That 
letter explained that he was present because he was 
participating in an oncology mentorship program. The purpose of 
the program was to allow the salesperson to, quote, `better 
learn how an oncologist attends to patients, manages 
medications, and generally oversees administrative functions of 
the office,' unquote.''
    ``In other words,'' the judge goes on to say, ``the purpose 
of the mentorship program was to ensure better delivery of 
health care services to breast cancer patients. Under 
California law, in evaluating whether the tort of intrusion has 
occurred, a court must weigh the reasons for the intrusive 
conduct. When Judge Kuhl concluded that the mentorship program, 
which was designed to improve treatment for breast cancer 
patients, was a sufficient justification for allowing the drug 
salesperson to be present during the examination, she did not 
demonstrate bias or insensitivity. In fact, a strong argument 
can be made that she correctly assessed the competing societal 
interests the California Supreme Court requires all jurists in 
this State to weigh in determining whether the tort of 
intrusion has occurred. Now, with all respect to those who have 
criticized Judge Kuhl as being insensitive or biased because of 
my opinion in Sanchez-Scott, they are simply incorrect.''
    That is Justice Paul Turner, the Presiding Justice, who 
comes down rather heavily on your side. Now, this is the second 
time we have put this letter in the record, so I kind of resent 
the misuse of this type of information to try and imply that 
you might have been insensitive or biased.
    It is my understanding that the appellate court ruling 
merely held that the claims the plaintiff alleged were 
sufficient to state a cause of action. Am I right?
    Judge Kuhl. That is correct, Mr. Chairman.
    Chairman Hatch. It did not make a determination about 
whether or not the invasion of privacy had occurred. Is that 
correct?
    Judge Kuhl. That is correct, Mr. Chairman.
    Chairman Hatch. Now, Judge Kuhl, this was probably an 
emotionally-charged case for the plaintiff. But as we know, 
judges have to rule on the law, to the best of their ability.
    Now, how will you in the future handle cases that involve 
particularly sensitive issues?
    Judge Kuhl. Well, in particularly sensitive issues I always 
try to--in all cases, I try to follow the law. That is my 
primary goalpost. I do it with understanding of the 
difficulties that may face that individual plaintiff. In the 
trial court, we have those people in front of us and it is 
important that they always be treated with dignity, with 
understanding, with sympathy, and then the law is applied. And 
the decision goes according to what the law demands, as applied 
to the facts.
    Chairman Hatch. What more could we ask of a judge than 
that?
    Now, Judge Kuhl, you have been asked repeatedly about 
briefs you wrote on behalf of your clients both as a Government 
lawyer and as a lawyer in private practice. Now, I want to 
remind my colleagues of a fundamental principle, which is that 
the arguments a lawyer makes on behalf of her client should not 
be taken as evidence of her personal views.
    Lawyers have an ethical obligation to provide the best 
possible representation to their clients and to make all of the 
reasonable arguments in support of their clients' positions.
    You agree with that, don't you?
    Judge Kuhl. Yes, Mr. Chairman.
    Chairman Hatch. Now, Rule 1.2(b) of the ABA Model Rules of 
Professional Conduct provides, quote, ``A lawyer's 
representation of a client, including representation by 
appointment, does not constitute an endorsement of the client's 
political, economic, social or moral views or activities,'' 
unquote. This principle is as equally applicable whether the 
lawyer is in private practice or is in government service.
    Now, Judge, this has been a rather long hearing. It has 
been difficult to sit through and you have been there a long 
time. I have to say this, that I have not seen a better witness 
for any appellate court, circuit court of appeals appointment--
    Judge Kuhl. Thank you, Mr. Chairman.
    Chairman Hatch. --in my whole 27 years in the United States 
Senate. I would have to say that I think Priscilla Owen and you 
are two of the best witnesses I have ever seen. Now, I am not 
just saying that. I mean, I am not trying to be kind here. I am 
just saying that you have handled yourself very well.
    I can't for the life of me see why anybody would not want 
you to serve on the Ninth Circuit Court of Appeals. I 
personally believe, with your approach to the law, maybe that 
circuit will start getting it right for a change rather than 
being reversed almost every time the Supreme Court reviews 
their decisions.
    So I want to compliment you. You have handled this hearing 
very, very well. You answered every question forthrightly. You 
covered the law well. You made it very clear that regardless of 
your personal ideologies or beliefs or anything else, you are 
not going to let that interfere with your obligation as a judge 
to provide justice and to uphold the law as it is written, 
regardless of how stupidly sometimes we legislators write it. I 
think that is a fair appraisal.
    Now, I just want to say that because, for the life of me, I 
can't imagine why we have had to wait until now, 21 months 
later, to give you a hearing, and even now some of my 
colleagues are complaining about it. Actually, I don't like to 
overrule colleagues, but the fact of the matter is there is a 
justice in this country that ought to be followed even on this 
Committee, and people who are nominated by the President ought 
to be given a chance, to the extent the Committee can hold the 
hearings. And I have to say that I have always tried to do 
that, even though some have criticized, because I have had all 
kinds of problems getting colleagues to go along with me.
    I think it is absolutely ridiculous to say that any case is 
constitutional law and can never possibly be reconsidered. 
Perhaps Marbury v. Madison, and I can name a number of other 
cases that probably should never be reconsidered, but most 
cases sometimes have to relooked at.
    And I think we can trust you to look at your job in the 
light of doing it in the best possible way you can, within the 
law, while upholding the precedents of the Supreme Court. Now, 
you have said you will do that. I am counting on you doing 
that. I am counting on you being a great member of the Ninth 
Circuit Court of Appeals.
    And I hope my colleagues will look at this record and look 
at your testimony today and quit obstructing--only a few have 
done this. I am hopeful that the colleagues on this Committee 
will not. But those who have obstructed your consideration of 
even having a hearing I think are so wrong that it is just 
pathetic.
    So, with that, I want to thank you for being here. I want 
to thank your family. We really appreciate having all of you 
with us. You young daughters should be very proud of your 
mother. I know your father is very proud of her as his wife, 
and your grandfather and uncle here at very proud of her as 
well.
    Thank you for being here. I apologize to the district court 
nominees, but we will recess until 2 o'clock when we will hear 
the testimony of the district court nominees.
    With that, we will recess until 2 o'clock.
    [Whereupon, at 1:12 p.m., the Committee recessed, to 
reconvene at 2:00 p.m., this same day.]
    AFTERNOON SESSION [2:05 p.m.]
    Senator Sessions. [Presiding.] All right, we shall begin. 
Senator Hatch asked me to chair the afternoon hearing, and if 
our nominees would come forward, we will commence.
    Would you raise your right hand? Do you swear to tell the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Judge Altonaga. I do.
    Judge Minaldi. I do.
    Senator Sessions. Please take your seats.
    We are delighted that you are here today. Congratulations 
on going through quite a lengthy process. As you know, Senators 
look at nominees, and they call lawyer friends, and they check 
on qualifications. Then those names are floated to the 
Department of Justice, and they do background checks, and then 
the Department of Justice and the White House will look at it. 
The FBI is required to do a background check on you. The ABA 
conducts their background analysis, and they talk to lawyers 
you have litigated with or litigated against or who have been 
before you in court, and they ask how well you do, which I 
think is a valuable contribution to the process. And eventually 
this Senate takes all your paperwork and all the answers to all 
the questions that are submitted, and staffers pore through it 
all. And as you have seen from this morning, it doesn't take 
much to have someone find an objection if they want to find 
one.
    So I would congratulate both of you on getting this far, 
number one, and number two, not having any controversies that 
are likely to slow down your nomination, at least none that I 
know of.
    So we are delighted you are here. Would you like to make 
any opening statement or introduce any family members that are 
with you? Judge Altonaga?

STATEMENT OF CECILIA M. ALTONAGA, NOMINEE TO BE DISTRICT JUDGE 
              FOR THE SOUTHERN DISTRICT OF FLORIDA

    Judge Altonaga. Mr. Chairman, thank you. I don't have any 
opening statement, but I would like to introduce my husband, 
Attorney George Mencio.
    Senator Sessions. We are delighted to have you. Very good.
    Judge Altonaga. Thank you.
    Senator Sessions. Is he in private practice?
    Judge Altonaga. Yes, he is.
    Senator Sessions. That is good. He can remind you what it 
is like to meet a payroll and have to appear before judges. 
Sometimes judges forget what that real-life world is like.
    [The biographical information of Judge Altonaga follows:] 
    [GRAPHIC] [TIFF OMITTED] 90303.883
    
    [GRAPHIC] [TIFF OMITTED] 90303.884
    
    [GRAPHIC] [TIFF OMITTED] 90303.885
    
    [GRAPHIC] [TIFF OMITTED] 90303.886
    
    [GRAPHIC] [TIFF OMITTED] 90303.887
    
    [GRAPHIC] [TIFF OMITTED] 90303.888
    
    [GRAPHIC] [TIFF OMITTED] 90303.889
    
    [GRAPHIC] [TIFF OMITTED] 90303.890
    
    [GRAPHIC] [TIFF OMITTED] 90303.891
    
    [GRAPHIC] [TIFF OMITTED] 90303.892
    
    [GRAPHIC] [TIFF OMITTED] 90303.893
    
    [GRAPHIC] [TIFF OMITTED] 90303.894
    
    [GRAPHIC] [TIFF OMITTED] 90303.895
    
    [GRAPHIC] [TIFF OMITTED] 90303.896
    
    [GRAPHIC] [TIFF OMITTED] 90303.897
    
    [GRAPHIC] [TIFF OMITTED] 90303.898
    
    [GRAPHIC] [TIFF OMITTED] 90303.899
    
    [GRAPHIC] [TIFF OMITTED] 90303.900
    
    [GRAPHIC] [TIFF OMITTED] 90303.901
    
    [GRAPHIC] [TIFF OMITTED] 90303.902
    
    [GRAPHIC] [TIFF OMITTED] 90303.903
    
    [GRAPHIC] [TIFF OMITTED] 90303.904
    
    [GRAPHIC] [TIFF OMITTED] 90303.905
    
    Senator Sessions. Judge Minaldi?

STATEMENT OF PATRICIA A. MINALDI, NOMINEE TO BE DISTRICT JUDGE 
             FOR THE WESTERN DISTRICT OF LOUISIANA

    Judge Minaldi. Mr. Chairman, I want to thank you very much 
for the opportunity to be here. I don't have an opening 
statement. I don't have any family here to introduce, although 
my husband and my two boys are with me in spirit.
    Senator Sessions. Very good.
    [The biographical information of Judge Minaldi follows:] 
    [GRAPHIC] [TIFF OMITTED] 90303.906
    
    [GRAPHIC] [TIFF OMITTED] 90303.907
    
    [GRAPHIC] [TIFF OMITTED] 90303.908
    
    [GRAPHIC] [TIFF OMITTED] 90303.909
    
    [GRAPHIC] [TIFF OMITTED] 90303.910
    
    [GRAPHIC] [TIFF OMITTED] 90303.911
    
    [GRAPHIC] [TIFF OMITTED] 90303.912
    
    [GRAPHIC] [TIFF OMITTED] 90303.913
    
    [GRAPHIC] [TIFF OMITTED] 90303.914
    
    [GRAPHIC] [TIFF OMITTED] 90303.915
    
    [GRAPHIC] [TIFF OMITTED] 90303.916
    
    [GRAPHIC] [TIFF OMITTED] 90303.917
    
    [GRAPHIC] [TIFF OMITTED] 90303.918
    
    [GRAPHIC] [TIFF OMITTED] 90303.919
    
    [GRAPHIC] [TIFF OMITTED] 90303.920
    
    [GRAPHIC] [TIFF OMITTED] 90303.921
    
    [GRAPHIC] [TIFF OMITTED] 90303.922
    
    [GRAPHIC] [TIFF OMITTED] 90303.923
    
    [GRAPHIC] [TIFF OMITTED] 90303.924
    
    [GRAPHIC] [TIFF OMITTED] 90303.925
    
    [GRAPHIC] [TIFF OMITTED] 90303.926
    
    [GRAPHIC] [TIFF OMITTED] 90303.927
    
    [GRAPHIC] [TIFF OMITTED] 90303.928
    
    [GRAPHIC] [TIFF OMITTED] 90303.929
    
    [GRAPHIC] [TIFF OMITTED] 90303.930
    
    [GRAPHIC] [TIFF OMITTED] 90303.931
    
    [GRAPHIC] [TIFF OMITTED] 90303.932
    
    [GRAPHIC] [TIFF OMITTED] 90303.933
    
    [GRAPHIC] [TIFF OMITTED] 90303.934
    
    [GRAPHIC] [TIFF OMITTED] 90303.935
    
    [GRAPHIC] [TIFF OMITTED] 90303.936
    
    [GRAPHIC] [TIFF OMITTED] 90303.937
    
    [GRAPHIC] [TIFF OMITTED] 90303.938
    
    Senator Sessions. Judge Altonaga, I was impressed with your 
background and going to Florida International with highest 
honors, Yale Law School, and law clerk to Judge Edward B. Davis 
in the Southern District of Florida. That is a good experience 
for a would-be Federal judge, and, of course, you have served 
as a judge now for a number of years.
    And, Judge Minaldi, likewise, you went to Wesleyan 
University and graduated with honors and Tulane Law School, a 
fine law school, and have been a district attorney and a 
prosecutor and a judge now since 1997. Is that right?
    Judge Minaldi. That's correct, Mr. Chairman.
    Senator Sessions. Both of you, I think, have excellent 
backgrounds for the position that you would be seeking.
    We always ask some questions relating to what has come to 
be known around here as judicial activism. I think that is a 
legitimate series of questions on inquiry to be made of 
nominees because this is the last political accountability you 
have. After confirmation, then if you do not have a proper 
respect for the legislative branch, the branch that is asked to 
confirm your nomination, or the executive branch that nominates 
you, then the system is not working correctly. So we need to 
know fundamentally: Do you respect the separation of powers? Do 
you understand the role that courts have in interpreting the 
law? Do you understand that you have not been politically 
empowered by the voters, which is traditionally the source of 
power in a democracy, but have been given a lifetime 
appointment, unaccountable to voters; and, therefore, if you do 
not show personal restraint and, by nature, you don't 
understand the role of the judiciary, then that is an upsetting 
thing, that can cause serious trouble.
    And we have had on the bench and still have on the bench 
judges who just seem to enjoy causing turmoil, reinterpreting 
the meaning of the Constitution, it seems to me, to declare 
statutes unconstitutional or to take other actions that are 
dubious under traditional interpretations of the law.
    So I guess I would ask both of you: Have you thought about 
that? Do you understand that if you want to be in politics now 
is your last chance to get out of the judicial branch and go 
into that? And are you willing to follow the law even if you 
don't like it, to enforce those statutes and the constitutional 
requirements even if they are not the best? I will start with 
you, Judge Altonaga.
    Judge Altonaga. Thank you, Mr. Chairman. I would say that 
my primary obligation as a trial court judge is to interpret 
and study the law and to apply it, and whenever I am called 
upon to review an act of our legislature, begin the endeavor 
with a presumption of constitutionality.
    I might add that my background as a litigator was to serve 
as an assistant county attorney representing local government, 
and I represented local leaders of our government, the 
commissioners and the mayor, and we assisted them in drafting 
local legislation, ever mindful that it could be subject to 
scrutiny by the courts and would very frequently be called upon 
to go into court to urge that the ordinance in question be 
deemed constitutional, reminding the courts that it was the 
commissioners and the mayor that made policy and that the 
courts were there to review the constitutionality of the 
particular legislation but not the wisdom or the efficacy 
necessarily of the ordinance.
    So I'm very mindful of what the role is, especially of a 
trial court judge. My role is not to make law. I am certainly 
not elected or placed into this position that I currently have. 
And if I am confirmed, that would not be my role or the mandate 
that I would have.
    Thank you.
    Senator Sessions. Judge Minaldi?
    Judge Minaldi. Mr. Chairman, I actually welcome the 
opportunity to get out of politics and have nothing to do with 
politics anymore. I am a firm believer in the concept of 
separation of powers. I think it is a fundamental concept in 
our society and to be absolutely respected by judges.
    I have absolutely no intention of doing anything other than 
applying the law as it exists, as legislated by Congress and as 
interpreted on those occasions by the Supreme Court. I don't 
have any desire to be a judicial activist. I think when I made 
my transition from being an advocate to being a judge on the 
State court, I knew what my responsibilities were in that 
regard, and I put those--the robes of advocacy aside and put on 
the robes that were appropriate for the bench; and that once 
you take your responsibility seriously, I think that's--it can 
be very easy for people who take that responsibility seriously 
to do.
    Senator Sessions. And how long were you a prosecutor?
    Judge Minaldi. Thirteen years, sir.
    Senator Sessions. And were you a prosecutor, Judge 
Altonaga?
    Judge Altonaga. I was a local government lawyer. My 
practice was civil.
    Senator Sessions. I want to ask you this as a person who 
has spent the better part of a professional career as a 
prosecutor, Federal and State. I know you are committed to 
giving the defendant a fair trial, and, in fact, the appellate 
courts look over your shoulders to make sure you do give them a 
fair trial and will reverse a trial court if they make an 
error. But, really, it needs to be in your heart to give the 
defendant a fair trial.
    But, also, I would ask you to think about this and ask you 
whether or not you will commit to give the prosecution a fair 
trial, because a prosecutor cannot appeal many of the rulings, 
most of the rulings that a trial judge makes. And there have 
been judges, when faced with questions, maybe they don't want 
to take time to research the law or they are not real sure what 
the law is and they just sort of routinely rule for the 
defendant on the theory that if they rule for the prosecutor 
they might get reversed or the case would have to be tried 
again.
    I believe a prosecutor, if they have evidence that is 
worthy of being admitted in the court, ought to be able to have 
it admitted, and the judge shouldn't be erring, trying to level 
the playing field or be afraid to so rule.
    Would you give the prosecutor a fair chance, Judge 
Altonaga?
    Judge Altonaga. Mr. Chairman, I give both sides--it is my 
goal and it's my wish that in every case I give both sides a 
fair chance. And just by way of example, motions to suppress 
are routinely heard prior to trial, and the defense clearly has 
the right to seek appellate review of an adverse ruling after 
the conclusion of the case, but the prosecution does not.
    It is my practice in my courtroom to require that motions 
to suppress be heard before trial to give the prosecution, if 
it's my intention to suppress any evidence, time to consult and 
to file and seek extraordinary relief with the appellate court. 
So I am ever mindful that both sides are entitled to a fair 
trial, and I strive to do that in every case.
    Senator Sessions. Well, I have been before great judges 
that consistently have adhered to that ruling, but I have seen 
judges who rule during trial, making it impossible to appeal. 
And sometimes I have thought or heard others talk about other 
judges who believed that the judge did that deliberately. So 
that would be wrong, I think.
    Judge Minaldi, would you comment on that?
    Judge Minaldi. Yes, Mr. Chairman. As you said, as a 
prosecutor for 13 years, I saw those kinds of judges, too. So I 
am very familiar with that, and I think it is an unfortunate 
thing.
    I think we all have to be mindful of the awesome power that 
a prosecutor's office has, the ability to obtain arrest 
warrants, indictments and charging by bills of information, and 
it's an awesome power and can affect people's lives. I took 
that seriously when I was a prosecutor, but I take equally as 
seriously as a judge the awesome power and responsibility that 
a judge has in making sure that there is a level playing field 
for--that the State gets a fair trial, that the defendant gets 
a fair trial, and that the appropriate burdens of proof are 
applied in an appropriate manner.
    Senator Sessions. I think you stated that very well, and as 
a young prosecutor, some of the Federal judges taught me a lot 
of lessons in court and made me better at my work because they 
didn't allow prosecutors to get away with anything, and I think 
that is certainly important.
    But as you know, Judge Minaldi, when the government rests, 
an unelected Federal judge with a lifetime appointment can 
dismiss the case, grant a judgment of acquittal, and there is 
no appeal whatsoever and the defendant is released forever on 
that charge. So it is an august responsibility.
    Judge Minaldi. It most definitely is, and one that I would 
take very seriously, Mr. Chairman.
    Senator Sessions. Case management is something that I 
believe is important in a Federal judge, and maybe you can 
share some of your ideas about that. And, additionally, I would 
just ask for your commitment to work hard to manage the cases 
that will come before you. If there ever was a time when being 
a Federal judge was a pretty easy job, that is no longer the 
case. There are constant demands, cases are increasing in 
numbers, and for the most part, our judges are doing a good job 
of handling more cases and disposing of more cases.
    So are you committed to managing your docket? And do you 
have any ideas about what you would like to do to improve case 
management?
    Judge Altonaga. Mr. Chairman, I've been on the bench almost 
7 years now, and during the course of that time, I have served 
in different divisions within our circuit, both in the county, 
at the county level and at the circuit level. And every time 
one enters a new division, you learn about different ways of 
case management because the caseload is different depending on 
the division that you're in and the way of getting a case to 
final conclusion varies depending on the nature of the case.
    So every time I've entered a new division, I've learned 
about ways to effectively case manage and move cases along so 
that they're not delayed, and that there's final resolution to 
the case in a timely manner.
    In the criminal division where I currently am assigned, my 
last count was that I was the second lowest judge in terms of 
caseload. I effectively manage my cases by, number one, working 
very hard, by not simply setting the cases out in a long time 
period so I don't see the litigants or hear about the case 
until it gets called, but by bringing them in to check on the 
status, have the attorneys report to me what it is they are 
doing to make sure we are going to meet the anticipated date of 
trial, and work with the lawyers, if we're going to reset a 
trial, how much work is left to be done, how much time do you 
need to do it in, and to get some commitments. I think 
effective case management means that the judge needs to have a 
hands-on role with the lawyers and with the litigants and 
letting the lawyers know I know about what's happening in this 
case and I expect you to tell me if you're encountering some 
delay.
    Senator Sessions. Judge Minaldi?
    Judge Minaldi. Mr. Chairman, I'm currently on the court 
of--excuse me, the Docket Management, Case Delay Reduction Task 
Force that is a statewide task force throughout the State of 
Louisiana, and we are attempting to come up with some new and 
innovative methods for helping to decrease what is a widespread 
problem in most of the courts across the State and one that the 
public complains, I think, the most about, the delay that it 
takes in coming to a final conclusion in court.
    I would like to stress, though, that no matter what we find 
or what we do, I don't think there's any magic formula for 
making cases go quickly because any solution that we find 
requires the hard work and tenacity of judges in making sure 
that they are available to do the work, that they pay close 
attention to their caseloads, and that they do everything they 
can to move those cases forward.
    Unfortunately, I don't think that always happens, and I do 
commit to you that that is the type of judge I am right now, 
and if I'm lucky enough to be confirmed in this position, that 
is the kind of judge I will continue to be.
    Senator Sessions. Well, you are right on there. We 
certainly need to emphasize case management.
    Are you aware that in the Federal court the Congress has 
established very tight sentencing guidelines? I remember being 
at one Eleventh Circuit conference when I was United States 
Attorney, and one of the senior judges said, ``The truth is, 
gentlemen, Congress does not trust you to sentence.''
    There was a real serious debate in America in the last 
1970's about the efficacy of incarceration, even, and we went 
through a big, tough debate over that, and the Congress 
concluded and the American people concluded that punishment 
does make a difference. And I have no doubt in my mind that one 
of the great causes of the reduction in crime is the fact that 
we are identifying repeat offenders and they are serving longer 
time.
    I guess my question to you, though, is this: Having had 
your own standards of sentencing, being used to evaluating 
cases in State systems according to your own subjective 
analysis about what sentence ought to be imposed, which I am 
sure has validity, I ask you to recall that the Congress has 
narrowed your discretion dramatically. A tough sentence in a 
big drug case may be, if you like the defendant and feel sorry 
for them, 25 years; if you don't like them and you want to give 
them a heavy sentence, it is 28 or 29, and that is about all 
the range you have got.
    And so there have been some judges that are so personally 
committed one way or the other about the sentence that they 
attempt to manipulate the guidelines, to twist them in a way 
that allows them to more nearly effect the sentence they think 
is appropriate.
    So, again, you still have a chance to get out of this job. 
Are you willing to follow the guidelines that the Congress put 
forward even if you think they are stupid?
    Judge Altonaga. Senator, first of all, I would certainly 
follow the law in all respects, and that would include the 
guidelines. In my current position, although I do have certain 
discretion in sentencing a certain category of defendants, my 
discretion has also been taken away by the Florida Legislature 
in many respects. We have minimum mandatories. We have 
mandatory sentencing in many areas. For those who have prior 
convictions and have a criminal record, sometimes we have 
absolutely no discretion.
    So I am right now in the position of having both areas 
where I do exercise discretion and areas where I do not. I am 
comfortable in adhering to the laws that I apply now as a State 
judge, and if I am lucky enough to be confirmed, I am 
comfortable that I will similarly follow the guidelines and 
mandatory sentencing as established by Congress.
    Judge Minaldi. Mr. Chairman, I am sure I would never think 
that the sentencing guidelines were stupid, but I will tell you 
that although there is probably a little bit more discretion in 
the Louisiana State courts that there are in the Florida State 
courts, we do have certain crimes for which there are mandatory 
minimums. We do have certain laws regarding repeat offenders 
which prescribe mandatory minimums as well. So I'm not unused 
to that system.
    We did at one point have sentencing guidelines. They were 
later repealed. However, I don't--I'd have to say that I think 
one of the most onerous duties a judge has is to attempt to 
effect an appropriate sentence for any defendant, and in 
Louisiana, we are told that we must absolutely individualize 
and particularize those sentences to the defendant and the 
facts of the crime.
    So it will be different, but I don't think I will have any 
trouble whatsoever applying the sentencing guidelines as 
Congress has felt appropriate to hand down.
    Senator Sessions. In many ways, it is a freeing thing. If 
somebody comes before you and you can give them 20 years or 
probation in a State court system, here the Congress 
objectively, before this case ever came before you, set out the 
factors that would narrow that range, and I guess in some ways 
it can free your conscience rather than burden your conscience. 
But I have seen judges make their lives miserable by feeling 
that if they were writing the guidelines, it wouldn't have been 
the same. And I think you have just got to follow them because 
if judges don't, then the system begins to break down. And if 
the U.S. Attorneys don't believe you are going to follow them, 
then they don't follow them, and the whole thing begins to 
collapse.
    Before the guidelines, we had tremendous diversity in 
sentencing. So that was why Senator Thurmond and Senator 
Kennedy came together and passed the guidelines. It provides 
uniformity of sentences based on objective factors that treat 
the poor, the rich, the black, the white, the same.
    Well, this has been an interesting discussion. I know that 
you will do well on the bench. Your records certainly indicate 
that. I believe and I hope that your nominations would move 
forward in an expeditious way, that you won't be left in limbo 
for too long. If there is anything we can do here on this 
Committee to answer any questions, I hope that you will ask 
them. And if you become a judge and you think there is 
something wrong with the guidelines, write me. Don't violate 
them, would be my suggestion. In fact, I have offered 
legislation with Senator Hatch to narrow what we think is an 
extreme difference between crack and powder cocaine. I think if 
the Congress is going to take over sentencing, we ought to 
constantly monitor it to make sure that it is making sense in 
the real world and not ask judges to enforce rules that sounded 
good 15 years ago but, as history has disclosed, may be not 
quite so healthy.
    Anything else that you have before the Committee?
    Judge Minaldi. No. Thank you.
    Judge Altonaga. Thank you, Mr. Chairman.
    Senator Sessions. Thank you. Congratulations on getting 
this far.
    We are adjourned, and we will note the record will remain 
open until Tuesday, April 8th at 5:00 p.m. for follow-up 
questions. We are adjourned.
    [Whereupon, at 2:27 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
[GRAPHIC] [TIFF OMITTED] 90303.939

[GRAPHIC] [TIFF OMITTED] 90303.940

[GRAPHIC] [TIFF OMITTED] 90303.941

[GRAPHIC] [TIFF OMITTED] 90303.942

[GRAPHIC] [TIFF OMITTED] 90303.943

[GRAPHIC] [TIFF OMITTED] 90303.944

[GRAPHIC] [TIFF OMITTED] 90303.945

[GRAPHIC] [TIFF OMITTED] 90303.946

[GRAPHIC] [TIFF OMITTED] 90303.947

[GRAPHIC] [TIFF OMITTED] 90303.948

[GRAPHIC] [TIFF OMITTED] 90303.949

[GRAPHIC] [TIFF OMITTED] 90303.950

[GRAPHIC] [TIFF OMITTED] 90303.951

[GRAPHIC] [TIFF OMITTED] 90303.952

[GRAPHIC] [TIFF OMITTED] 90303.953

[GRAPHIC] [TIFF OMITTED] 90303.954

[GRAPHIC] [TIFF OMITTED] 90303.955

[GRAPHIC] [TIFF OMITTED] 90303.956

[GRAPHIC] [TIFF OMITTED] 90303.957

[GRAPHIC] [TIFF OMITTED] 90303.958

[GRAPHIC] [TIFF OMITTED] 90303.959

[GRAPHIC] [TIFF OMITTED] 90303.960

[GRAPHIC] [TIFF OMITTED] 90303.961

[GRAPHIC] [TIFF OMITTED] 90303.962

[GRAPHIC] [TIFF OMITTED] 90303.963

[GRAPHIC] [TIFF OMITTED] 90303.964

[GRAPHIC] [TIFF OMITTED] 90303.965

[GRAPHIC] [TIFF OMITTED] 90303.966

[GRAPHIC] [TIFF OMITTED] 90303.967

[GRAPHIC] [TIFF OMITTED] 90303.968

[GRAPHIC] [TIFF OMITTED] 90303.969

[GRAPHIC] [TIFF OMITTED] 90303.970

[GRAPHIC] [TIFF OMITTED] 90303.971

[GRAPHIC] [TIFF OMITTED] 90303.972

[GRAPHIC] [TIFF OMITTED] 90303.973

[GRAPHIC] [TIFF OMITTED] 90303.974

[GRAPHIC] [TIFF OMITTED] 90303.975

[GRAPHIC] [TIFF OMITTED] 90303.976

[GRAPHIC] [TIFF OMITTED] 90303.977

[GRAPHIC] [TIFF OMITTED] 90303.978

[GRAPHIC] [TIFF OMITTED] 90303.979

[GRAPHIC] [TIFF OMITTED] 90303.980

[GRAPHIC] [TIFF OMITTED] 90303.981

[GRAPHIC] [TIFF OMITTED] 90303.982

[GRAPHIC] [TIFF OMITTED] 90303.983

[GRAPHIC] [TIFF OMITTED] 90303.984

[GRAPHIC] [TIFF OMITTED] 90303.985

[GRAPHIC] [TIFF OMITTED] 90303.986

[GRAPHIC] [TIFF OMITTED] 90303.987

[GRAPHIC] [TIFF OMITTED] 90303.988

[GRAPHIC] [TIFF OMITTED] 90303.989

[GRAPHIC] [TIFF OMITTED] 90303.990

[GRAPHIC] [TIFF OMITTED] 90303.991

[GRAPHIC] [TIFF OMITTED] 90303.992

[GRAPHIC] [TIFF OMITTED] 90303.993

[GRAPHIC] [TIFF OMITTED] 90303.994

[GRAPHIC] [TIFF OMITTED] 90303.995

[GRAPHIC] [TIFF OMITTED] 90303.996

[GRAPHIC] [TIFF OMITTED] 90303.997

[GRAPHIC] [TIFF OMITTED] 90303.998

[GRAPHIC] [TIFF OMITTED] 90303.999

[GRAPHIC] [TIFF OMITTED] 903031.000

[GRAPHIC] [TIFF OMITTED] 903031.001

[GRAPHIC] [TIFF OMITTED] 903031.002

[GRAPHIC] [TIFF OMITTED] 903031.003

[GRAPHIC] [TIFF OMITTED] 903031.004

[GRAPHIC] [TIFF OMITTED] 903031.005

[GRAPHIC] [TIFF OMITTED] 903031.006

[GRAPHIC] [TIFF OMITTED] 903031.007

[GRAPHIC] [TIFF OMITTED] 903031.008

[GRAPHIC] [TIFF OMITTED] 903031.009

[GRAPHIC] [TIFF OMITTED] 903031.010

[GRAPHIC] [TIFF OMITTED] 903031.011

[GRAPHIC] [TIFF OMITTED] 903031.012

[GRAPHIC] [TIFF OMITTED] 903031.013

[GRAPHIC] [TIFF OMITTED] 903031.014

[GRAPHIC] [TIFF OMITTED] 903031.015

[GRAPHIC] [TIFF OMITTED] 903031.016

[GRAPHIC] [TIFF OMITTED] 903031.017

[GRAPHIC] [TIFF OMITTED] 903031.018

[GRAPHIC] [TIFF OMITTED] 903031.019

[GRAPHIC] [TIFF OMITTED] 903031.020

[GRAPHIC] [TIFF OMITTED] 903031.021

[GRAPHIC] [TIFF OMITTED] 903031.022

[GRAPHIC] [TIFF OMITTED] 903031.023

[GRAPHIC] [TIFF OMITTED] 903031.024

[GRAPHIC] [TIFF OMITTED] 903031.025

[GRAPHIC] [TIFF OMITTED] 903031.026

[GRAPHIC] [TIFF OMITTED] 903031.027

[GRAPHIC] [TIFF OMITTED] 903031.028

[GRAPHIC] [TIFF OMITTED] 903031.029

[GRAPHIC] [TIFF OMITTED] 903031.030

[GRAPHIC] [TIFF OMITTED] 903031.031

[GRAPHIC] [TIFF OMITTED] 903031.032

[GRAPHIC] [TIFF OMITTED] 903031.033

[GRAPHIC] [TIFF OMITTED] 903031.034

[GRAPHIC] [TIFF OMITTED] 903031.035

[GRAPHIC] [TIFF OMITTED] 903031.036

[GRAPHIC] [TIFF OMITTED] 903031.037

[GRAPHIC] [TIFF OMITTED] 903031.038

[GRAPHIC] [TIFF OMITTED] 903031.039

[GRAPHIC] [TIFF OMITTED] 903031.040

[GRAPHIC] [TIFF OMITTED] 903031.041

[GRAPHIC] [TIFF OMITTED] 903031.042

[GRAPHIC] [TIFF OMITTED] 903031.043

[GRAPHIC] [TIFF OMITTED] 903031.044

[GRAPHIC] [TIFF OMITTED] 903031.045

[GRAPHIC] [TIFF OMITTED] 903031.046

[GRAPHIC] [TIFF OMITTED] 903031.047

[GRAPHIC] [TIFF OMITTED] 903031.048

[GRAPHIC] [TIFF OMITTED] 903031.049

[GRAPHIC] [TIFF OMITTED] 903031.050

[GRAPHIC] [TIFF OMITTED] 903031.051

[GRAPHIC] [TIFF OMITTED] 903031.052

[GRAPHIC] [TIFF OMITTED] 903031.053

[GRAPHIC] [TIFF OMITTED] 903031.054

[GRAPHIC] [TIFF OMITTED] 903031.055

[GRAPHIC] [TIFF OMITTED] 903031.056

[GRAPHIC] [TIFF OMITTED] 903031.057

[GRAPHIC] [TIFF OMITTED] 903031.058

[GRAPHIC] [TIFF OMITTED] 903031.059

[GRAPHIC] [TIFF OMITTED] 903031.060

[GRAPHIC] [TIFF OMITTED] 903031.061

[GRAPHIC] [TIFF OMITTED] 903031.062

[GRAPHIC] [TIFF OMITTED] 903031.063

[GRAPHIC] [TIFF OMITTED] 903031.064

[GRAPHIC] [TIFF OMITTED] 903031.065

[GRAPHIC] [TIFF OMITTED] 903031.066

[GRAPHIC] [TIFF OMITTED] 903031.067

[GRAPHIC] [TIFF OMITTED] 903031.068

[GRAPHIC] [TIFF OMITTED] 903031.069

[GRAPHIC] [TIFF OMITTED] 903031.070

[GRAPHIC] [TIFF OMITTED] 903031.071

[GRAPHIC] [TIFF OMITTED] 903031.072

[GRAPHIC] [TIFF OMITTED] 903031.073

[GRAPHIC] [TIFF OMITTED] 903031.074

[GRAPHIC] [TIFF OMITTED] 903031.075

[GRAPHIC] [TIFF OMITTED] 903031.076

[GRAPHIC] [TIFF OMITTED] 903031.077

[GRAPHIC] [TIFF OMITTED] 903031.078

[GRAPHIC] [TIFF OMITTED] 903031.079

[GRAPHIC] [TIFF OMITTED] 903031.080

[GRAPHIC] [TIFF OMITTED] 903031.081

[GRAPHIC] [TIFF OMITTED] 903031.082

[GRAPHIC] [TIFF OMITTED] 903031.083

[GRAPHIC] [TIFF OMITTED] 903031.084

[GRAPHIC] [TIFF OMITTED] 903031.085

[GRAPHIC] [TIFF OMITTED] 903031.086

[GRAPHIC] [TIFF OMITTED] 903031.087

[GRAPHIC] [TIFF OMITTED] 903031.088

[GRAPHIC] [TIFF OMITTED] 903031.089

[GRAPHIC] [TIFF OMITTED] 903031.090

[GRAPHIC] [TIFF OMITTED] 903031.091

[GRAPHIC] [TIFF OMITTED] 903031.092

[GRAPHIC] [TIFF OMITTED] 903031.093

[GRAPHIC] [TIFF OMITTED] 903031.094

[GRAPHIC] [TIFF OMITTED] 903031.095

[GRAPHIC] [TIFF OMITTED] 903031.096

[GRAPHIC] [TIFF OMITTED] 903031.097

[GRAPHIC] [TIFF OMITTED] 903031.098

[GRAPHIC] [TIFF OMITTED] 903031.099

[GRAPHIC] [TIFF OMITTED] 903031.100

[GRAPHIC] [TIFF OMITTED] 903031.101

[GRAPHIC] [TIFF OMITTED] 903031.102

[GRAPHIC] [TIFF OMITTED] 903031.103

[GRAPHIC] [TIFF OMITTED] 903031.104

[GRAPHIC] [TIFF OMITTED] 903031.105

[GRAPHIC] [TIFF OMITTED] 903031.106

[GRAPHIC] [TIFF OMITTED] 903031.107

[GRAPHIC] [TIFF OMITTED] 903031.108

[GRAPHIC] [TIFF OMITTED] 903031.109

[GRAPHIC] [TIFF OMITTED] 903031.110

[GRAPHIC] [TIFF OMITTED] 903031.111

[GRAPHIC] [TIFF OMITTED] 903031.112

[GRAPHIC] [TIFF OMITTED] 903031.113

[GRAPHIC] [TIFF OMITTED] 903031.114

[GRAPHIC] [TIFF OMITTED] 903031.115

[GRAPHIC] [TIFF OMITTED] 903031.116

[GRAPHIC] [TIFF OMITTED] 903031.117

[GRAPHIC] [TIFF OMITTED] 903031.118

[GRAPHIC] [TIFF OMITTED] 903031.119

[GRAPHIC] [TIFF OMITTED] 903031.120

[GRAPHIC] [TIFF OMITTED] 903031.121

[GRAPHIC] [TIFF OMITTED] 903031.122

[GRAPHIC] [TIFF OMITTED] 903031.123

[GRAPHIC] [TIFF OMITTED] 903031.124

[GRAPHIC] [TIFF OMITTED] 903031.125

[GRAPHIC] [TIFF OMITTED] 903031.126

[GRAPHIC] [TIFF OMITTED] 903031.127

[GRAPHIC] [TIFF OMITTED] 903031.128

[GRAPHIC] [TIFF OMITTED] 903031.129

[GRAPHIC] [TIFF OMITTED] 903031.130

[GRAPHIC] [TIFF OMITTED] 903031.131

[GRAPHIC] [TIFF OMITTED] 903031.132

[GRAPHIC] [TIFF OMITTED] 903031.133

[GRAPHIC] [TIFF OMITTED] 903031.134

[GRAPHIC] [TIFF OMITTED] 903031.135

[GRAPHIC] [TIFF OMITTED] 903031.136

[GRAPHIC] [TIFF OMITTED] 903031.137

[GRAPHIC] [TIFF OMITTED] 903031.138

[GRAPHIC] [TIFF OMITTED] 903031.139

[GRAPHIC] [TIFF OMITTED] 903031.140

[GRAPHIC] [TIFF OMITTED] 903031.141

[GRAPHIC] [TIFF OMITTED] 903031.142

[GRAPHIC] [TIFF OMITTED] 903031.143

[GRAPHIC] [TIFF OMITTED] 903031.144

[GRAPHIC] [TIFF OMITTED] 903031.145

[GRAPHIC] [TIFF OMITTED] 903031.146

[GRAPHIC] [TIFF OMITTED] 903031.147

[GRAPHIC] [TIFF OMITTED] 903031.148

[GRAPHIC] [TIFF OMITTED] 903031.149

[GRAPHIC] [TIFF OMITTED] 903031.150

[GRAPHIC] [TIFF OMITTED] 903031.151

[GRAPHIC] [TIFF OMITTED] 903031.152

[GRAPHIC] [TIFF OMITTED] 903031.153

[GRAPHIC] [TIFF OMITTED] 903031.154

[GRAPHIC] [TIFF OMITTED] 903031.155

[GRAPHIC] [TIFF OMITTED] 903031.156

[GRAPHIC] [TIFF OMITTED] 903031.157

[GRAPHIC] [TIFF OMITTED] 903031.158

[GRAPHIC] [TIFF OMITTED] 903031.159

[GRAPHIC] [TIFF OMITTED] 903031.160

[GRAPHIC] [TIFF OMITTED] 903031.161

[GRAPHIC] [TIFF OMITTED] 903031.162

[GRAPHIC] [TIFF OMITTED] 903031.163

[GRAPHIC] [TIFF OMITTED] 903031.164

[GRAPHIC] [TIFF OMITTED] 903031.165

[GRAPHIC] [TIFF OMITTED] 903031.166

[GRAPHIC] [TIFF OMITTED] 903031.167

[GRAPHIC] [TIFF OMITTED] 903031.168

[GRAPHIC] [TIFF OMITTED] 903031.169

[GRAPHIC] [TIFF OMITTED] 903031.170

[GRAPHIC] [TIFF OMITTED] 903031.171

[GRAPHIC] [TIFF OMITTED] 903031.172

[GRAPHIC] [TIFF OMITTED] 903031.173

[GRAPHIC] [TIFF OMITTED] 903031.174

[GRAPHIC] [TIFF OMITTED] 903031.175

[GRAPHIC] [TIFF OMITTED] 903031.176

[GRAPHIC] [TIFF OMITTED] 903031.177

[GRAPHIC] [TIFF OMITTED] 903031.178

[GRAPHIC] [TIFF OMITTED] 903031.179

[GRAPHIC] [TIFF OMITTED] 903031.180

[GRAPHIC] [TIFF OMITTED] 903031.181

[GRAPHIC] [TIFF OMITTED] 903031.182

[GRAPHIC] [TIFF OMITTED] 903031.183

[GRAPHIC] [TIFF OMITTED] 903031.184

[GRAPHIC] [TIFF OMITTED] 903031.185

[GRAPHIC] [TIFF OMITTED] 903031.186

[GRAPHIC] [TIFF OMITTED] 903031.187

[GRAPHIC] [TIFF OMITTED] 903031.188

[GRAPHIC] [TIFF OMITTED] 903031.189

[GRAPHIC] [TIFF OMITTED] 903031.190

[GRAPHIC] [TIFF OMITTED] 903031.191

[GRAPHIC] [TIFF OMITTED] 903031.192

[GRAPHIC] [TIFF OMITTED] 903031.193

[GRAPHIC] [TIFF OMITTED] 903031.194

[GRAPHIC] [TIFF OMITTED] 903031.195

[GRAPHIC] [TIFF OMITTED] 903031.196

[GRAPHIC] [TIFF OMITTED] 903031.197

[GRAPHIC] [TIFF OMITTED] 903031.198

[GRAPHIC] [TIFF OMITTED] 903031.199

[GRAPHIC] [TIFF OMITTED] 903031.200

[GRAPHIC] [TIFF OMITTED] 903031.201

[GRAPHIC] [TIFF OMITTED] 903031.202

[GRAPHIC] [TIFF OMITTED] 903031.203

[GRAPHIC] [TIFF OMITTED] 903031.204

[GRAPHIC] [TIFF OMITTED] 903031.205

[GRAPHIC] [TIFF OMITTED] 903031.206

[GRAPHIC] [TIFF OMITTED] 903031.207

[GRAPHIC] [TIFF OMITTED] 903031.208

[GRAPHIC] [TIFF OMITTED] 903031.209

[GRAPHIC] [TIFF OMITTED] 903031.210

[GRAPHIC] [TIFF OMITTED] 903031.211

[GRAPHIC] [TIFF OMITTED] 903031.212

[GRAPHIC] [TIFF OMITTED] 903031.213

[GRAPHIC] [TIFF OMITTED] 903031.214

[GRAPHIC] [TIFF OMITTED] 903031.215

[GRAPHIC] [TIFF OMITTED] 903031.216

[GRAPHIC] [TIFF OMITTED] 903031.217

[GRAPHIC] [TIFF OMITTED] 903031.218

[GRAPHIC] [TIFF OMITTED] 903031.219

[GRAPHIC] [TIFF OMITTED] 903031.220

[GRAPHIC] [TIFF OMITTED] 903031.221

[GRAPHIC] [TIFF OMITTED] 903031.222

[GRAPHIC] [TIFF OMITTED] 903031.223

[GRAPHIC] [TIFF OMITTED] 903031.224

[GRAPHIC] [TIFF OMITTED] 903031.225

[GRAPHIC] [TIFF OMITTED] 903031.226

[GRAPHIC] [TIFF OMITTED] 903031.227

[GRAPHIC] [TIFF OMITTED] 903031.228

[GRAPHIC] [TIFF OMITTED] 903031.229

[GRAPHIC] [TIFF OMITTED] 903031.230

[GRAPHIC] [TIFF OMITTED] 903031.231

[GRAPHIC] [TIFF OMITTED] 903031.232

[GRAPHIC] [TIFF OMITTED] 903031.233

[GRAPHIC] [TIFF OMITTED] 903031.234

[GRAPHIC] [TIFF OMITTED] 903031.235

[GRAPHIC] [TIFF OMITTED] 903031.236

[GRAPHIC] [TIFF OMITTED] 903031.237

[GRAPHIC] [TIFF OMITTED] 903031.238

[GRAPHIC] [TIFF OMITTED] 903031.239

[GRAPHIC] [TIFF OMITTED] 903031.240

[GRAPHIC] [TIFF OMITTED] 903031.241

[GRAPHIC] [TIFF OMITTED] 903031.242

[GRAPHIC] [TIFF OMITTED] 903031.243

[GRAPHIC] [TIFF OMITTED] 903031.244

[GRAPHIC] [TIFF OMITTED] 903031.245

[GRAPHIC] [TIFF OMITTED] 903031.246

[GRAPHIC] [TIFF OMITTED] 903031.247

[GRAPHIC] [TIFF OMITTED] 903031.248

[GRAPHIC] [TIFF OMITTED] 903031.249

[GRAPHIC] [TIFF OMITTED] 903031.250

[GRAPHIC] [TIFF OMITTED] 903031.251

[GRAPHIC] [TIFF OMITTED] 903031.252

[GRAPHIC] [TIFF OMITTED] 903031.253

[GRAPHIC] [TIFF OMITTED] 903031.254

                                   - 
