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



                                                 S. Hrg. 108-135, Pt. 4

 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

    JULY 22, JULY 30, SEPTEMBER 3, SEPTEMBER 17, AND OCTOBER 1, 2003

                               __________

                           Serial No. J-108-1

                               __________

                                 PART 4

                               __________

         Printed for the use of the Committee on the Judiciary



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                       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
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director




                            C O N T E N T S

                              ----------                              

                         TUESDAY, JULY 22, 2003

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   267
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   269
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     6
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1

                               PRESENTERS

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  presenting Steven M. Colloton, Nominee to be Circuit Judge for 
  the Eighth Circuit.............................................     3
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, 
  presenting Steven M. Colloton, Nominee to be Circuit Judge for 
  the Eighth Communications......................................     4
Leach, Hon. Jim, a Representative in Congress from the State of 
  Iowa, presenting Steven M. Colloton, Nominee to be Circuit 
  Judge for the Eighth Communications............................     5
Myrick, Hon. Sue, a Representative in Congress from the State of 
  North Carolina, presenting H. Brent McKnight, Nominee to be 
  District Judge for the Western District of North Carolina......     5
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, 
  presenting R. David Proctor, Nominee to be District Judge for 
  the Northern District of Alabama...............................     9
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama 
  presenting R. David Proctor, Nominee to be District Judge for 
  the Northern District of Alabama...............................     2

                       STATEMENTS OF THE NOMINEES

Castel, P. Kevin, Nominee to be District Judge for the Southern 
  District of New York...........................................    49
    Questionnaire................................................    50
Colloton, Steven M., Nominee to be Circuit Judge for the Eighth 
  Circuit........................................................    11
    Questionnaire................................................    12
Feuerstein, Sandra J., Nominee to be District Judge for the 
  Eastern District of New York...................................    68
    Questionnaire................................................    69
Holwell, Richard J., Nominee to be District Judge for the 
  Southern District of New York..................................    84
    Questionnaire................................................    85
McKnight, H. Brent, Nominee to be District Judge for the Western 
  District of North Carolina.....................................   112
    Questionnaire................................................   113
Proctor, R. David, Nominee to be District Judge for the Northern 
  District of Alabama............................................   178
    Questionnaire................................................   179
Robinson, Stephen, Nominee to be District Judge for the Southern 
  District of New York...........................................   215
    Questionnaire................................................   216

                         QUESTIONS AND ANSWERS

Responses of Steven M. Colloton to questions submitted by Senator 
  Leahy..........................................................   241
Responses of R. David Proctor to questions submitted by Senator 
  Kennedy........................................................   245
Responses of R. David Proctor to questions submitted by Senator 
  Leahy..........................................................   252
Responses of R. David Proctor to questions submitted by Senator 
  Sessions.......................................................   258

                        WEDNESDAY, JULY 30, 2003

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, prepared statement...................................   569
Edwards, Hon. a U.S. Senator from the State of North Carolina, 
  prepared statement.............................................   571
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................   290
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   282
    prepared statement...........................................   582
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   285
    prepared statement...........................................   588

                               PRESENTERS

Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Glen E. Conrad, Nominee to be District Judge for the 
  Western District of Virginia...................................   280
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Larry Alan Burns and Dana Makoto Sabraw, 
  Nominees to be District Judges for the Southern District of 
  California.....................................................   272
Graham, Hon. Lindsey, a U.S. Senator from the State of South 
  Carolina presenting Henry F. Floyd, Nominee to be District 
  Judge for the District of South Carolina.......................   277
Hollings, Hon. Fritz, a U.S. Senator from the State of South 
  Carolina presenting Henry F. Floyd, Nominee to be District 
  Judge for the District of South Carolina.......................   274
Rogers, Hon. Michael, a Representative in Congress from the State 
  of Michigan presenting Henry W. Saad, Nominee to be Circuit 
  Judge for the Sixth Circuit....................................   298
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting Kim R. Gibson, Nominee to be District 
  Judge for the Western District of Pennsylvania.................   281
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon 
  presenting Michael W. Mosman, Nominee to be District Judge for 
  the District of Oregon.........................................   279
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting Kim R. Gibson, Nominee to be District 
  Judge for the Western District of Pennsylvania.................   276
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting Glen E. Conrad, Nominee to be District Judge for the 
  Western District of Virginia...................................   275
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon 
  presenting Michael W. Mosman, Nominee to be District Judge for 
  the District of Oregon.........................................   278

                               WITNESSES

Levin, Hon. Carl, a U.S. Senator from the State of Michigan......   292
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan.   296

                       STATEMENTS OF THE NOMINEES

Burns, Larry Alan, Nominee to be District Judge for the Southern 
  District of California.........................................   375
    Questionnaire................................................   376
Conrad, Glen E., Nominee to be District Judge for the Western 
  District of Virginia...........................................   397
    Questionnaire................................................   398
Floyd, Honry F., Nominee to be District Judge for the District of 
  South Carolina.................................................   423
    Questionnaire................................................   424
Gibson, Kim R., Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   457
    Questionnaire................................................   458
Mosman, Michael W., Nominee to be District Judge for the District 
  of Oregon......................................................   499
    Questionnaire................................................   500
Saad, Henry W., Nominee to be Circuit Judge for the Sixth Circuit   309
    Questionnaire................................................   311
Sabraw, Dana Makoto, Nominee to be District Judge for the 
  Southern District of California................................   520
    Questionnaire................................................   521

                         QUESTIONS AND ANSWERS

Responses of Henry Saad to questions submitted by Senator Durbin.   550
Responses of Henry Saad to questions submitted by Senator Kennedy   552
Responses of Henry Saad to questions submitted by Senator Leahy..   560

                       SUBMISSIONS FOR THE RECORD

Biden, Hon. Joseph R. Jr., a U.S. Senator from the State of 
  Delaware, a letter to the White House..........................   567
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, statement in support of Larry Alan Burns, Nominee 
  to be District Judge for the Southern District of California 
  and Dana Makoto Sabraw, Nominee to be District Judge for the 
  Southern District of California................................   574
Levin, Hon. Carl, a U.S. Senator from the State of Michigan, 
  series of letters concerning Michigan judicial nominees........   594
The State, Columbia, South Carolina, October 24, 1994, article 
  and attachment.................................................   601
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  statement in support of Glen E. Conrad, Nominee to be District 
  Judge for the Western District of Virginia.....................   603

                      WEDNESDAY, SEPTEMBER 3, 2003

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   607
    prepared statements..........................................   817
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   821

                               PRESENTERS

Allard, Hon. Wayne, a U.S. Senator from the State of Colorado 
  presenting Phillip S. Figa, Nominee to be District Judge for 
  the District of Colorado.......................................   616
Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Carlos T. Bea, Nominee to be Circuit Judge for the 
  Ninth Circuit, William Q. Hayes, Nominee to be District Judge 
  for the Southern District of California and John A. Houston, 
  Nominee to be District Judge for the Southern District of 
  California.....................................................   610
Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of 
  Colorado presenting Phillip S. Figa, Nominee to be District 
  Judge for the District of Colorado.............................   613
Cornyn, Hon. John, a U.S. Senator from the State of Texas 
  presenting Marcia A. Crone, Nominee to be District Judge for 
  the Eastern District of Texas..................................   779
Ensign, Hon. John, a U.S. Senator from the State of Nevada 
  presenting Robert Clive Jones, Nominee to be District Judge for 
  the District of Nevada.........................................   609
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Marcia A. Crone, Nominee to be District Judge 
  for the Eastern District of Texas..............................   615
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma 
  presenting Ronald A. White, Nominee to be District Judge for 
  the Eastern District of Oklahoma...............................   608
Reid, Hon. Harry, a U.S. Senator from the State of Nevada 
  presenting Robert Clive Jones, Nominee to be District Judge for 
  the District of Nevada.........................................   612

                       STATEMENTS OF THE NOMINEES

Bea, Carlos T., Nominee to be Circuit Judge for the Ninth Circuit   618
    Questionnaire................................................   619
Crone, Marcia A., Nominee to be District Judge for the Eastern 
  District of Texas..............................................   648
    Questionnaire................................................   649
Figa, Phillip S., Nominee to be District Judge for the District 
  of Colorado....................................................   668
    Questionnaire................................................   669
Hayes, William Q., Nominee to be District Judge for the Southern 
  District of California.........................................   689
    Questionnaire................................................   690
Houston, John A., Nominee to be District Judge for the Southern 
  District of California.........................................   718
    Questionnaire................................................   719
Jones, Robert Clive, Nominee to be District Judge for the 
  District of Nevada.............................................   748
    Questionnaire................................................   749
White, Ronald A., Nominee to be District Judge for the Eastern 
  District of Oklahoma...........................................   761
    Questionnaire................................................   762

                         QUESTIONS AND ANSWERS

Responses of Carlos Bea to questions submitted by Senator Leahy..   782

                       SUBMISSIONS FOR THE RECORD

Allard, Hon. Wayne, a U.S. Senator from the State of Colorado, 
  statement in support of Phillip S. Figa, Nominee to be District 
  Judge for the District of Colorado.............................   786
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  statement in support of Carlos T. Bea, Nominee to be Circuit 
  Judge for the Ninth Circuit, William Q. Hayes, Nominee to be 
  District Judge for the Southern District of California and John 
  A. Houston, Nominee to be District Judge for the Southern 
  District of California.........................................   787
Brown, Willie L., Jr., Mayor, San Francisco, California, letter..   791
Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  statement in support of Marcia A. Crone, Nominee to be District 
  Judge for the Eastern District of Texas........................   792
DenverPost.com Denver, Colorado, June 12, 2002, article..........   793
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, statement in support of William Q. Hayes, Nominee 
  to be District Judge for the Southern District of California 
  and John A. Houston, Nominee to be District Judge for the 
  Southern District of California................................   795
German, G. Michael, San Francisco, California, letter............   802
Goldsmith, Ernest H., Judge of the Superior Court of Claifornia, 
  City and County of San Francisco, San Francisco, California, 
  letter and attachments.........................................   803
Hall, Tony, Supervisor, 7th District, San Francisco, California, 
  letter.........................................................   815
Hardeman, Michael E., Business Representative, Sign Display & 
  Allied Crafts Local Union 510, San Francisco, California, 
  letter.........................................................   816
Mahoney, Patrick J., Judge, Superiror Court of California, San 
  Francisco, California, letter and attachments..................   823
Mexican American Legal Defense and Educational Fund, press 
  release........................................................   824
Migden, Carole, Chairwoman, State Board of Equalization, 
  Sacramento, California, letter.................................   825
Moreno, Carlos R., Associate Justice, Supreme Court of 
  California, San Francisco, California, letter..................   826
Reid, Hon. Harry, a U.S. Senator from the State of Nevada, 
  statement in support of Robert Clive Jones, Nominee to be 
  District Judge for the District of Nevada......................   827
San Francisco Labor Council, AFL-CIO, Walter L. Johnson, 
  Secretary-Treasurer, San Francisco, California, letter.........   828
San Francisco La Raza Lawyers Association, Suzanne G. Rames, 
  Chairperson, Judiciary Committee, San Francisco, California, 
  letter.........................................................   829
San Francisco Police Officers Association, Chris Cunnie, 
  President, San Francisco, California, letter...................   831
SEIU, Local 790, Latino Caucus, Ricardo Lopez, Chair, Oakland, 
  California, letter.............................................   832

                     WEDNESDAY, SEPTEMBER 17, 2003

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........   833
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   984
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   986

                               PRESENTERS

Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting George W. Miller, Nominee to be Judge for the U.S. 
  Court of Federal Claims........................................   834
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland 
  presenting Roger W. Titus, Nominee to be District Judge for the 
  District of Maryland...........................................   835
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland 
  presenting Roger W. Titus, Nominee to be District Judge for the 
  District of Maryland...........................................   837
Nelson, Hon. Bill, a U.S. Senator from the State of Florida 
  presenting Margaret Catharine Rodgers, Nominee to be District 
  Judge for the Northern District of Florida.....................   838

                       STATEMENTS OF THE NOMINEES

Miller, George W., Nominee to be U.S. Court of Federal Claims....   911
    Questionnaire................................................   912
Rodgers, Margaret Catharine, Nominee to be District Judge for the 
  Northern District of Florida...................................   839
    Questionnaire................................................   841
Titus, Roger W., Nominee to be District Judge for the District of 
  Maryland.......................................................   874
    Questionnaire................................................   876

                         QUESTIONS AND ANSWERS

Responses of George W. Miller to questions submitted by Senator 
  Leahy..........................................................   963
Responses of George W. Miller to questions submitted by Senator 
  Durbin.........................................................   974

                       WEDNESDAY, OCTOBER 1, 2003

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................  1082
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........   989
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1095

                               PRESENTER

Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Dora L. Irizarry, Nominee to be District Judge 
  for the Eastern District of New York...........................   990

                        STATEMENT OF THE NOMINEE

Irizarry, Dora L., Nominee to be District Judge for the Eastern 
  District of New York...........................................   993
    Questionnaire................................................   994

                               WITNESSES

Castro-Blanco, James F., Immediate Past President, Puerto Rican 
  Bar Association, New York New York.............................  1052
Douglass, Lewis L., Justice, New York State Supreme Court, and 
  Chair, New York State Commission on Minorities.................  1053
Hayward, Thomas Z., Jr., Chair Standing Committee on Federal 
  Judiciary, American Bar Association, Washington, D.C., and 
  Patricia M. Hynes, Former Chair, Standing Committee on Federal 
  Judiciary, American Bar Association, Washington, D.C...........  1046
Pesce, Michael L., Presiding Justice, Appellate Term, New York 
  State Supreme Court, Second and Eleventh Districts.............  1054

                         QUESTIONS AND ANSWERS

Responses of Dora L. Irizarry to questions submitted by Senator 
  Durbin.........................................................  1059
Responses of Patricia Hynes and Thomas Hayward, Jr. to questions 
  submitted by Senator Durbin....................................  1067

                       SUBMISSIONS FOR THE RECORD

Brennan, Bridget G., Special Narcotics Prosecutor, City of New 
  York, New York, New York, letter...............................  1072
Castro-Blanco, James F., Immediate Past President, Puerto Rican 
  Bar Association, New York New York:
    prepared statement...........................................  1074
    letter, September 28, 2003...................................  1077
Douglass, Lewis L., Justice, New York State Supreme Court, and 
  Chair, New York State Commission on Minorities, prepared 
  statement......................................................  1079
Hayward, Thomas Z., Jr., Chair Standing Committee on Federal 
  Judiciary, American Bar Association, Washington, D.C., and 
  Patricia M. Hynes, Former Chair, Standing Committee on Federal 
  Judiciary, American Bar Association, Washington, D.C., prepared 
  statement......................................................  1085
Johnson, Sterling, Jr., Senior District Judge, Eastern District 
  of New York, Brooklyn, New York, letter........................  1099
Pesce, Michael L., Presiding Justice, Appellate Term, New York 
  State Supreme Court, Second and Eleventh Districts, letter.....  1101

                              ----------                              

                     ALPHABETICAL LIST OF NOMINEES

Bea, Carlos T., Nominee to be Circuit Judge for the Ninth Circuit   618
Burns, Larry Alan, Nominee to be District Judge for the Souther 
  District of California.........................................   375
Castel, P. Kevin, Nominee to be District Judge for the Southern 
  District of New York...........................................    49
Colloton, Steven M., Nominee to be Circuit Judge for the Eighth 
  Circuit........................................................    11
Conrad, Glen E., Nominee to be District Judge for the Western 
  District of Virginia...........................................   397
Crone, Marcia A., Nominee to be District Judge for the Eastern 
  District of Texas..............................................   648
Feuerstein, Sandra J., Nominee to be District Judge for the 
  Eastern District of New York...................................    68
Figa, Phillip S., Nominee to be District Judge for the District 
  of Colorado....................................................   668
Floyd, Honry F., Nominee to be District Judge for the District of 
  South Carolina.................................................   423
Gibson, Kim R., Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   457
Hayes, William Q., Nominee to be District Judge for the Southern 
  District of California.........................................   689
Holwell, Richard J., Nominee to be District Judge for the 
  Southern District of New York..................................    84
Houston, John A., Nominee to be District Judge for the Southern 
  District of California.........................................   718
Irizarry, Dora L., Nominee to be District Judge for the Eastern 
  District of New York...........................................   993
Jones, Robert Clive, Nominee to be District Judge for the 
  District of Nevada.............................................   748
McKnight, H. Brent, Nominee to be District Judge for the Western 
  District of North Carolina.....................................   112
Miller, George W., Nominee to be U.S. Court of Federal Claims....   911
Mosman, Michael W., Nominee to be District Judge for the District 
  of Oregon......................................................   499
Proctor, R. David, Nominee to be District Judge for the Northern 
  District of Alabama............................................   178
Robinson, Stephen, Nominee to be District Judge for the Southern 
  District of New York...........................................   215
Rodgers, Margaret Catharine, Nominee to be District Judge for the 
  Northern District of Florida...................................   839
Saad, Henry W., Nominee to be circuit Judge for the Sixth Circuit   309
Sabraw, Dana Makoto, Nominee to be District Judge for the Sothern 
  District of California.........................................   520
Titus, Roger W., Nominee to be District Judge for the District of 
  Maryland.......................................................   874
White, Ronald A., Nominee to be District Judge for the Eastern 
  District of Oklahoma...........................................   761


NOMINATIONS OF STEVEN M. COLLOTON, OF IOWA, NOMINEE TO BE CIRCUIT JUDGE 
  FOR THE EIGHTH CIRCUIT; P. KEVIN CASTEL, OF NEW YORK, NOMINEE TO BE 
    DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; SANDRA J. 
 FEUERSTEIN, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN 
 DISTRICT OF NEW YORK; RICHARD J. HOLWELL, OF NEW YORK, NOMINEE TO BE 
    DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; H. BRENT 
   MCKNIGHT, OF NORTH CAROLINA, NOMINEE TO BE DISTRICT JUDGE FOR THE 
   WESTERN DISTRICT OF NORTH CAROLINA; R. DAVID PROCTOR, OF ALABAMA, 
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA; AND 
STEPHEN C. ROBINSON, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE 
                     SOUTHERN DISTRICT OF NEW YORK

                              ----------                              


                         TUESDAY, JULY 22, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions 
presiding.
    Present: Senators Sessions, Grassley, and Schumer.

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

    Senator Sessions. Good morning. We are delighted you are 
here today, and we have a nice agenda of nominees. I am glad to 
have as Ranking Member for this Committee today Senator Chuck 
Schumer with us. He is the Ranking Member of the Courts 
Subcommittee also, on which we have worked together on a number 
of issues.
    Our tradition, since we have Members of Congress here, 
would be to start with the Senate Members, and I see Senator 
Shelby, my colleague from Alabama, here and I know that you 
have some remarks to make about the nominee for the district 
court in Alabama. So I would recognize my colleague, Senator 
Richard Shelby.

PRESENTATION OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE 
FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. RICHARD SHELBY, A 
             U.S. SENATOR FROM THE STATE OF ALABAMA

    Senator Shelby. Chairman, Senator Schumer, I will be very 
brief, but I think this is very important. I want to commend 
you, Mr. Chairman, for getting this hearing together.
    I appreciate the opportunity to appear before the Committee 
today to introduce David Proctor, the President's nominee for 
the United States District Court for the Northern District of 
Alabama. Concentrating in labor and employment law, David is an 
experienced and skilled attorney with an impressive record of 
trying cases in both the Federal and State courts. He has 
served a broad range of individual and corporate clients while 
also representing the State of Alabama, my State, in various 
matters.
    David is also active in the community, having served on the 
board of Alabama Goodwill Industries for a dozen years, while 
also remaining active in his church and the lives of his wife, 
Teresa, who is here with him today, and his three children. 
Luke is here; he is 12 years old. Jake is 8. And Shelly Grace 
is 5, but tomorrow, Mr. Chairman, will be her birthday; she 
will be 6 years old tomorrow.
    I and all who know David Proctor have high regard for his 
intellect and integrity, and I believe that he will make a fine 
addition to the Federal bench. Most importantly, Mr. Chairman, 
David Proctor is a man of the law. He understands and respects 
the constitutional role of the judiciary and specifically the 
role of the Federal courts in our legal system. I am confident 
that he would serve honorably and apply the law with 
impartiality and fairness and, thus, I support his confirmation 
without any reservation.
    Again, Mr. Chairman, I thank you for holding today's 
hearing on David Proctor's nomination. I urge the Committee to 
expeditiously report this nomination to the full Senate where 
we can hopefully move it. And, Mr. Chairman, I have some other 
meetings, and if I could leave at this time, I appreciate the 
time of both of you. Thanks.
    Senator Sessions. Thank you, Senator Shelby.
    Senator Grassley, would you like to make comments on the 
Iowa nominee?
    Senator Grassley. Yes, I sure do, obviously.
    Senator Sessions. You are sitting at that table. You could 
be sitting up here on my right where you normally sit on this 
Judiciary panel.
    Senator Grassley. Don't take it personally.
    Senator Sessions. All in all, it is better on this side 
than down there, normally. Trust me.

PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE 
  FOR THE EIGHTH CIRCUIT, BY HON. CHARLES E. GRASSLEY, A U.S. 
                 SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Thank you, Mr. Chairman, Senator Schumer. 
I am pleased to be here today to introduce Steve Colloton, who 
has been nominated by President Bush to be a Federal judge on 
the U.S. Circuit Court of Appeals for the Eighth Circuit. He is 
an outstanding individual with an extensive record of public 
service and an impressive legal career. Steve Colloton will 
make an excellent Federal judge, and I am happy to support his 
nomination. He is here with family members and friends who are 
extremely proud of the work that he has done throughout his 
lifetime in the law and in community service, and they are here 
to support him.
    I have known some of the family for a long, long period of 
time, and he comes from a sound background that is also 
probably as much to do with his capabilities of being a good 
judge as his understanding of the law.
    He hails from Iowa City, Iowa, a graduate of Princeton and 
Yale Law School. I have never held that against him.
    [Laughter.]
    Senator Grassley. He went on to serve as a law clerk to 
Judge Laurence Silberman, U.S. Court of Appeals, D.C., and then 
as a law clerk to Hon. William Rehnquist, Chief Justice. After 
that, he worked as an attorney with the Office of Legal Counsel 
at the Justice Department, and then as Assistant U.S. Attorney 
in the Northern District of Iowa 8 years, with a brief detail 
as an associate independent counsel in the Office of 
Independent Counsel. He went on to become a partner in a 
prominent law firm in Des Moines where he managed a wide range 
of civil litigation.
    Steve Colloton returned to Government service right after 
the 9/11 terrorist attacks when he was unanimously confirmed by 
the Senate to the position of U.S. Attorney in the Southern 
District of Iowa. In that job, he has focused on making sure 
that we get the bad guys, but at the same time, he has made 
sure to protect the civil liberties that are so dear to us.
    In addition to fighting terrorism, Steve has focused his 
efforts on combating crime and enforcing drug laws. 
Specifically, under Steve Colloton's direction, the Iowa U.S. 
Attorney's office has worked hard to implement the Project Safe 
Neighborhood Program to reduce gun violence and has conducted 
extensive training for prosecutors and local law enforcement 
regarding the prohibition of firearms possession by domestic 
abusers. Steve Colloton has also made child support enforcement 
a top priority, forming a task force with State and Federal 
child support recovery workers and investigators.
    In addition to his stellar legal experience and remarkable 
public service, Steve Colloton has many strong supporters. Let 
me give you some examples of the support he has received from 
fellow Iowans.
    Twenty-seven past presidents of the Iowa State Bar wrote, 
``The exceptional quality of Mr. Colloton's experience, 
together with its relevance to this position, uniquely 
qualifies him to represent Iowa on the United States Court of 
Appeals.''
    A member of the Polk County Chiefs of Police and Sheriffs 
Association wrote, and I quote, ``Steve Colloton is the right 
choice for the Eighth Circuit judge position, and we fully 
endorse President Bush's nomination.''
    The interim president of the University of Iowa wrote, and 
I quote, ``Mr. Colloton is a person of highest ethical 
standards and integrity and would be''--and I continue to quote 
then--``a superb member of the Court of Appeals for the Eighth 
Circuit.''
    Drake University Professor of Law Gregory Sisk wrote, 
``Steve Colloton is one of the brightest and most thoughtful, 
hardworking, scholarly, and yet simultaneously practically 
minded attorneys likely to be nominated for any judicial 
position in this State.''
    Even people who have worked on the other side of Steve 
Colloton think highly of him. For example, the attorney for Jim 
Guy Tucker, George Collins, wrote the Judiciary Committee, and 
I quote, ``I am convinced Steve Colloton is an honorable man 
and that when cases come before him, he will call them as he 
sees them. I do not think that a conservative litigant 
demonstrably as such will have any better chance before him 
than any other litigant. I believe that his cases will be 
decided on the law and, to the extent applicable, the facts. I 
respect Steve Colloton and hope that your Committee will also 
respect him and approve the appointment.''
    These letters of support show how much confidence people 
have that Steve Colloton will make a great Federal judge.
    As I have said on many occasions in the past, there are a 
number of things that I look for when I assess whether an 
individual should be a Federal judge. I asked whether the 
judicial nominee has the requisite intellect, knowledge, 
integrity, and judicial temperament to serve on the Federal 
bench. In addition, I ask whether a particular judicial nominee 
will follow the law. That is the text and intent of the 
Constitution and the statutes ratified and enacted. I believe 
that Steve Colloton has all of these qualifications. I believe 
that he will follow the law and have a healthy respect for case 
precedent. And I also believe that he understands the role of a 
judge is to interpret the law rather than create it.
    In sum, I strongly believe that Steve Colloton will make an 
excellent judge of the Eighth Circuit. I urge my colleagues to 
join me in supporting this excellent candidate for the Federal 
bench.
    Senator Sessions. Thank you, Senator Grassley.
    Senator Harkin?

PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE EIGHTH CIRCUIT, BY HON. TOM HARKIN, A U.S. SENATOR FROM 
                       THE STATE OF IOWA

    Senator Harkin. Thank you very much, Mr. Chairman, for 
holding this hearing, and I am pleased to be here with my Iowa 
colleagues to introduce Steve Colloton, who has been nominated 
to serve on the Eighth Circuit Court of Appeals.
    Steve Colloton, as my colleague has said, is a Yale Law 
School graduate, has been Iowa's U.S. Attorney in Des Moines 
since November of 2001. Before then, he practiced law for 
Belin, Lamson, McCormick, Zumbach, and Flynn in Des Moines. He 
has also served as an Assistant U.S. Attorney in Cedar Rapids 
for 6 years. Early in his legal career, he clerked for Supreme 
Court Chief Justice William Rehnquist.
    As Senator Grassley has said, I have known his family in 
Iowa City for a number of years. Mr. Chairman, I supported 
Steve Colloton's nomination to be U.S. Attorney in 2001, and I 
urge the Committee to give his nomination to the Eighth Circuit 
Court of Appeals full and fair and expedient consideration. And 
I hope and I trust, Mr. Chairman, that this Committee and the 
United States Senate will treat Mr. Colloton more fairly and 
judiciously than it did the last nominee from the State of Iowa 
to the Eighth Circuit Court of Appeals, Bonnie Campbell, who 
was not even given the privilege of a vote on the Senate floor. 
I hope this nominee will be treated more fairly.
    This concludes my statement, and I want to again thank the 
Chairman for holding this hearing.
    Senator Sessions. Thank you, Senator Harkin.
    Congressman Leach?

PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE EIGHTH CIRCUIT, BY HON. JIM LEACH, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IOWA

    Representative Leach. Well, thank you, Mr. Chairman, Mr. 
Schumer. Let me just say I am honored to be with my two 
colleagues from Iowa. I will be very brief.
    I come before the Committee not only as not a member of the 
body but not a member of the Judiciary Committee and not 
trained in the field of law. But I do want to give a sense of 
community support for Steve Colloton. Steve and I come from the 
same home town, myself more recently than he, but I have known 
Steve for some 20 years. He comes from one of the most 
respected families in Iowa. He as an individual has an 
exceedingly high intellect, great integrity, decency of 
judgment, fair-mindedness, common sense, respect for the law, 
and I am truly impressed with, in my knowledge of Steve, what a 
natural judicious temperament he has. I personally believe he 
is one of the strongest court nominees in memory and will 
embellish the court, and I would hope the Committee gives Steve 
every benefit of the doubt.
    Thank you all.
    Senator Sessions. Thank you, Congressman Leach, for those 
good words, and we appreciate your service to the country, and 
we are glad that you could join us today.
    Representative Myrick, it is a delight to have you with us. 
I know you want to share your thoughts about the nominee.

PRESENTATION OF H. BRENT MCKNIGHT, NOMINEE TO BE DISTRICT JUDGE 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. SUE MYRICK, 
 A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA

    Representative Myrick. Yes, thank you very much, Chairman 
and Senator Schumer. I appreciate the opportunity to be here. 
Both of our North Carolina Senators are out of town today, and 
so I have the honor of introducing to you Brent McKnight and 
his family and his friends. He has been nominated for a Federal 
judgeship in North Carolina from the Charlotte area.
    Brent has a very impressive resume, which I am sure you 
have seen and I will not go into detail, but I will just simply 
say to you he was a Rhodes Scholar, which I found very, very 
helpful for what he does right now. He is a friend in the sense 
that I have known Brent for a long time. He is one of those 
people that you would be very hard pressed to find anybody in 
our community who has bad things to say about him. He is 
extremely well respected throughout the community, not just the 
judicial community, because he currently serves as a judge, but 
the community as a whole. And he has impeccable character, and 
he has a very strong intellect. But the thing that impresses me 
about him is he has common sense as well, and he gets along 
very well with people. Brent relates well with people, which is 
very important with what he does as a judge.
    He also very carefully evaluates his opinions, and you will 
find again in our community that the people who work in the 
judicial system will tell you he is impartial in his decisions. 
He does what is best.
    So North Carolina would be very fortunate to have him as a 
Federal judge, and I hope this Committee will see its way able 
to send the nomination forward to the full Senate. And, again, 
I appreciate the opportunity to be here today, and I am going 
to take leave, if that is permissible with you.
    Senator Sessions. That will be fine, Representative Myrick. 
And I would note, I wonder if you would agree with Senator 
Elizabeth Dole, likewise highly complimentary of Mr. McKnight, 
and she submitted a statement for the record noting that, yes, 
he was a Rhodes Scholar, but perhaps even impressive to those 
in North Carolina, a Morehead Scholar at the University of 
North Carolina, Chapel Hill, which is quite a prestigious 
event, too.
    Representative Myrick. Very, very important in our State 
and nationally. Thank you for mentioning that.
    Senator Sessions. Thank you very much. I will offer to put 
her statement in the record.
    Senator Schumer, would you like to make any opening 
comments?

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

    Senator Schumer. Thank you, Mr. Chairman. I want to thank 
all of our colleagues in the House and Senate and you, Mr. 
Chairman, for holding these hearings.
    Before I begin, Senator Edwards could not be here to 
introduce Brent McKnight, and he expresses his regrets. And I 
would ask unanimous consent that his statement in favor of Mr. 
McKnight be put in the record.
    Senator Sessions. Without objection, yes.
    Senator Schumer. And also Senator Leahy's statement on the 
nominees be put in the record.
    Senator Sessions. Without objection, they will be made a 
part of the record.
    Senator Schumer. Thank you, Mr. Chairman. And now I want to 
thank you for holding this hearing today and agreeing to put 
the four New York nominees on the agenda. This is a fine day 
for New York. Normally we abide by a rule that requires a week 
from completion of paperwork to a nominee being eligible for a 
hearing. But you and Senator Leahy were willing to waive the 
rule so that these four outstanding nominees could appear 
before us today.
    The rule could be waived because these four nominees are 
not only excellent and moderate and diverse--those are my three 
standards for choosing judges--but because they have broad 
bipartisan support, including, most importantly, support from 
their two Senators, myself and Senator Clinton, the White 
House, and our Governor, Governor Pataki. So this is a 
bipartisan day, and that is how it ought to be when we choose 
judges. It is a stark contrast between the pitched battles we 
are fighting over nominees from other parts of the country.
    Stephen Robinson, Kevin Castel, Richard Holwell, and Sandra 
Feuerstein are very moderates. When you look at these four 
nominees' records, you have a hard time identifying even one 
remark that looks like it comes from an ideologue or an 
extremist.
    As I said, I do not believe ideologues, whether from the 
far left or the far right, are good fits for the bench. 
Ideologues tend to want to make the law, not interpret the law, 
as the Founding Fathers in their--I think this is a statement 
usually used in reference to the deity, but in their infinite 
wisdom. I am so impressing with the Founding Fathers the more I 
am around that it comes close.
    Anyway, that is what they wanted judges to do, interpret 
the law, not make law. And when you have people at the 
extremes, they feel with passion, God bless them, that is part 
of America. But they do not tend to make good judges because 
they want to impose their views on what the law should be. 
These judges meet my three criteria for the judges that I am 
involved in selecting: excellence, legal excellence, all four 
have it. Moderation, as I said, none are at the extremes. And 
diversity, they are not--each individual is not diverse, but as 
a group of four, they are quite diverse, Mr. Chairman. And so 
this gang of four gets high marks on all categories.
    Mr. Chairman, over the past several weeks, Governor Pataki, 
Counsel Gonzales, and I have been able to put the finishing 
touches on an agreement that ensures that all of New York's 
current and immediately forthcoming vacancies will be quickly 
filled and with judges who will do justice for all New Yorkers. 
If you compare our agreement to a trade between baseball teams, 
it is one of those deals where everyone wins, most particularly 
and most importantly, the people of New York.
    These four fine candidates will be followed by two more who 
have already been nominated, two we have all already agreed 
upon, and a fifth judge to be named later. And every one of 
them will be great additions to New York's Federal bench.
    Now, first I want to mention that Senator Clinton had a 
scheduling conflict that prevents her from being here today, 
but I have talked to her and I know she joins me in thanking 
the White House and Governor Pataki for not playing politics 
with New York's bench. And I am proud to have played a role in 
putting these four candidates on the court.
    Mr. Chairman, I would note that the Senate has now 
confirmed 138 of President Bush's judicial nominees. By the end 
of the week, it could add up to 145. And before the August 
recess, if we are lucky, all four of these New Yorkers will be 
confirmed, and our total for President Bush will be over 150. 
So for those keeping score back home, we have confirmed 150; we 
have blocked two. We may block a few more, but even so, Yankee 
fans would be envious of that kind of win-loss record. And we 
are doing pretty good this year, except for those Atlanta 
Braves. I don't know if you root for them from the State next 
door.
    Senator Sessions. Yes, I do.
    Senator Schumer. We have the next best record in baseball.
    Anyway, when you look at those numbers and you look at the 
quality of the nominees we have produced in New York, you have 
got proof positive there is no obstruction going on from our 
side of the aisle. We are working hard to fill the Federal 
judiciary with the best judges out there, but we have to draw 
the line at nominees who want to make law, not interpret it.
    These four nominees are the best evidence of what happens 
when a bipartisan process works right. Let me introduce each of 
them briefly and present their credentials to the Committee.
    Richard J. Holwell, 56, has practiced for over three 
decades as a litigation attorney with White and Case in New 
York, where he acts as the executive partner in charge of the 
firm's global litigation practice. Mr. Holwell is a 1967 
graduate of Villanova University and a 1970 cum laude graduate 
of the Columbia Law School. After law school, he studied at 
Cambridge University on the Columbia-Cambridge fellowship in 
criminology, and he received a diploma in criminology from 
Cambridge University in 1971. He is currently a member of the 
American Bar Association, the New York State Bar Association, 
and the Law Society in London. He currently serves as 
chairperson of a panel of the New York State Supreme Court 
Departmental Disciplinary Committee. He is married, his wife is 
here, and he has two daughters.
    P. Kevin Castel celebrates his 53rd birthday in 2 weeks and 
was born in Jamaica, New York. That means Queens. He received 
his B.S. and J.D. both from St. John's, also in Queens. He 
began his professional career as a law clerk to Hon. Kevin 
Duffy in the Southern District of New York, before joining the 
law firm of Cahill, Gordon and Reindel, where he has been a 
partner since 1983, serving for several years as the firm's 
administrative partner. Over the years, Mr. Castel has been 
involved in an array of civic activities, including service on 
the Legal Aid Board of Directors. He and his wife, Patricia, 
have been married for 26 years, and they have two lovely 
daughters who we are fortunate to have with us here today.
    Stephen C. Robinson, 46, was born in Brooklyn--that is a 
very good credential, as far as I am concerned--and received 
both his B.A. and J.D. from Cornell. After spending several 
years in private practice, he joined the U.S. Attorney's Office 
for the Southern District of New York. Mr. Robinson went on to 
spend a few years as managing director and associate general 
counsel of Kroll Associates before being tapped to be principal 
deputy counsel and special assistant to the Director of the 
FBI. From 1995 to 1998, he was counsel and chief compliance 
officer at Aetna Insurance. With the support from Senators Dodd 
and Lieberman, President Clinton then made this great New 
Yorker the U.S. Attorney for the District of Connecticut, where 
he served from 1998 to 2001. Mr. Robinson's wife, Kathleen 
Sullivan, was a professor at Yale Law School, and she passed 
away a few years ago. He has done--and I know this because I 
have talked with him personally about it--a wonderful job 
raising their daughter as a single dad, and I know that 
Kathleen would be tremendously proud of the job Stephen has 
done as a father and that she is smiling down on us today.
    And, finally, Sandra J. Feuerstein has spent 15 years as a 
judge in the courts of New York State. She has a distinguished 
record of judicial service in New York. Since 1999, Judge 
Feuerstein has served as an Associate Justice of the New York 
State Supreme Court Appellate Division. From 1994 to 1999, she 
served as a Justice of the New York State Supreme Court, and 
from 1987 to 1993 as a judge in the Nassau County District 
Court. Since 1998, Justice Feuerstein has served as an adjunct 
professor of law at Hofstra University School of Law. Prior to 
joining the State bench, Justice Feuerstein served for 2 years 
as a law clerk to Hon. Leo H. McGinity. He is administrative 
judge of the State Supreme Court in Nassau County.
    In addition to all that legal experience, she was a public 
school teacher in the New York State Public Schools from 1966 
to 1971. She attended the University of Vermont and Benjamin N. 
Cardozo School of Law, where she graduated cum laude.
    Justice Feuerstein has a distinguished record of service as 
a judge beyond her work on the bench. In addition to her other 
major roles, she has served as the president of the Nassau 
County Women's Bar Association and vice president of the New 
York State Women's Judges Association. Among other honors, she 
has been named Judge of the Year by the Long Beach Lawyers 
Association and Woman of the Year by the Merrick Chamber of 
Commerce.
    All four of the nominees--Stephen Robinson, Kevin Castel, 
Richard Holwell, and Sandra Feuerstein--are here with their 
families and friends. I want them all to know how proud we all 
are of their accomplishments and how honored I am to have 
played a role in their ascending to New York's Federal bench.
    Thank you, Mr. Chairman.

PRESENTATION OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE 
FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. JEFF SESSIONS, A 
             U.S. SENATOR FROM THE STATE OF ALABAMA

    Senator Sessions. Thank you, Chuck, and those were good 
words indeed. And I know that the New York bench will benefit 
from having four new judges there. You have a lot of important 
cases in that district, and always have over the years, and it 
is always maintained a reputation of legal excellence.
    I hope that my colleague does not believe that an advocate 
who has fought for truth and justice is not a moderate and, 
therefore, cannot be a judge. But the nominee--
    Senator Schumer. Any particular names in mind?
    Senator Sessions. Well, I have one in mind who I believe 
has stood firm for truth and justice, and I do not think he is 
in any way an ideologue or unqualified for the bench.
    But the nominee that I would like to call our attention to 
today and speak of highly is, maybe more in your style, not 
someone that has been involved politically or active in any way 
of that kind, but he has all the necessary traits to make an 
outstanding jurist on the Federal bench. I have known David 
Proctor for a number of years, and I have followed his career. 
He is one of the more respected lawyers in the Birmingham legal 
community and throughout the State, really, on all sides of the 
bar. He is a working, practicing lawyer. This is undoubtedly 
attributed to his excellent work ethic, honesty, and dedication 
to the rule of law.
    Attorneys that I have personally spoken with describe him 
as level-headed, fair-minded, trustworthy, and highly 
intelligent. He will prove to be an invaluable asset to the 
very busy Northern District of Alabama and to our country.
    David's past offers strong evidence of his future promise. 
He received his bachelor's degree from Carson-Newman. In 1986, 
he graduated with honors from the University of Tennessee 
School of Law, where he was a member of the Law Review. 
Immediately after graduating from school, he clerked for Hon. 
H. Emory Widener, Jr., on the Fourth Circuit Court of Appeals. 
So, in addition to practicing in the Federal district courts, 
he has learned from firsthand experience the role a Federal 
judge must play in the appellate level and in maintaining a 
docket. This experience cannot be gleaned from any other 
source.
    After his clerkship, he spent 6 years with one of Alabama's 
finest law firms, Sirote and Permutt. Thereafter, he began his 
own firm, Lahr, Middlebrooks, Price and Proctor. For almost 20 
years, David has served numerous clients and handled a wide 
range of challenging civil issues. David understands the 
Federal courtroom, having litigated approximately 300 cases in 
Federal court alone, some of which proceeded to verdict after 
full trial.
    From all these experiences, he has learned how lawyers and 
litigants should be treated at trial, and this is important to 
me. This conclusion is confirmed by the broad support David has 
earned for his nomination.
    I would like to quote from a letter submitted to me by one 
of the State's most successful trial lawyers, a strong 
Democrat, Jerry Beasley, a leading trial lawyer in the State 
and one of the most successful in the Nation. Although Mr. 
Proctor is a defense lawyer and was generally arguing in 
positions in opposition to Mr. Beasley, Mr. Beasley had this to 
say about David Proctor: ``I have known David Proctor for 
several years, and he will make an outstanding addition to the 
Federal bench. He is a man of high moral character and 
unquestioned integrity. His evenhanded temperament and keen 
knowledge of the law make him well suited for the position.''
    The praise does not end there. Andrew Allen, a prominent 
civil rights lawyer in Birmingham, offered the following 
support: ``Although I am a lifelong Democrat and though I have 
litigated against David Proctor and his firm for almost 15 
years, I write this letter on behalf of David in support of his 
nomination to serve as United States District Judge for the 
Northern District of Alabama. I strongly support his nomination 
because he is a man of high moral character, unquestioned 
integrity, keen intellect, even temperament, and superior work 
ethic.''
    Those are good qualities in a judge. In sum, I believe he 
will make an outstanding addition to the Federal bench and that 
he will ensure an even playing field for all who come before 
him. He has deep roots in the community, which from 1989 to 
2000 he served on the board of the Alabama Goodwill Industries, 
which provides employment opportunities for persons with 
disabilities. He has also volunteered countless pro bono hours 
for A Baby's Place, a home for HIV-positive children. Still 
other charitable organization have benefited from his 
dedication, and he is a deacon at Briarwood Presbyterian 
Church. His involvement in the community demonstrates a 
commitment to public welfare, a trait that will serve him well 
as a judge. He has a reputation for integrity, and I believe he 
will be a welcome addition to a bench that needs some 
additional support at this time. And I think he is a 
professional, is experienced, he works well with people. He can 
manage a caseload, as all of you judges are going to be called 
upon to do, and that strong work ethic.
    At one time, Mr. Chairman, you know, people thought you 
could be a Federal judge and maybe ease off into retirement. 
But it is a busy, tough job today. If you are not prepared to 
work, you do not need the job.
    All right. Anything else we need to do? I would call up--
well, no. First, U.S. Attorney Steve Colloton, since he is the 
court of appeals nominee, we will start with you first, if you 
will raise your right hand and take this oath. Do you swear or 
affirm that the testimony you are about to give will be the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Mr. Colloton. I do.
    Senator Sessions. All right. You may take a seat.
    If you would like to make an opening statement or introduce 
your family, we would be pleased to hear from you at this time.

 STATEMENT OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE 
                     FOR THE EIGHTH CIRCUIT

    Mr. Colloton. Thank you, Mr. Chairman. I have no formal 
statement, but I do want to thank the Committee for convening 
this hearing. I would like to thank Senator Grassley and 
Senator Harkin and Congressman Leach for introducing me here 
this morning.
    I would, if I may, like to introduce my family. I am joined 
today by my wife, Deborah, my sisters, Laura and Ann. My 
parents came out from Iowa, John and Mary Ann Colloton, and my 
brother-in-law, Chip and my sister-in-law Wendy are here.
    Senator Sessions. Maybe they will stand for us. We just 
want to see you all.
    Senator Schumer. Very nice.
    Senator Sessions. We are glad you are here from Iowa, and 
other places I assume.
    Anything else?
    Mr. Colloton. No, that is all. Thank you for that 
opportunity, Mr. Chairman.
    [The biographical information of Mr. Colloton follows:] 

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    Senator Sessions. Mr. Colloton, I appreciate the fact that 
you are a United States Attorney, having had that job myself 
for a number of years. Do you think that is a good experience 
for you for the office that you are seeking, the Court of 
Appeals?
    Mr. Colloton. I do, Senator. I thank you for the question 
and appreciate your comments about the United States Attorney 
job. It has been for me a fine experience in which I have been 
able to continue my contribution to public service. I have been 
privy, of course, to a wide range of litigation in both 
criminal and civil areas in that capacity, and I have also had 
a better chance to really understand the administration of 
justice from a management level in that capacity, so I think in 
all those ways it has been a helpful preparatory experience.
    Senator Sessions. Were you an Assistant United States 
Attorney in Iowa, there?
    Mr. Colloton. I was, Senator.
    Senator Sessions. How long?
    Mr. Colloton. From about 1991 to 1999, so about 8 years in 
the Northern District of Iowa, and now I am the United States 
Attorney in the Southern District, the partner district in the 
State.
    Senator Sessions. Of course, all of your practice as an 
Assistant United States Attorney was in Federal Court before 
Federal Judges, or virtually all of it. Tell me about any 
observations you have about things you would like to do that 
you think could make the legal system better? Do you have any 
insights that you have gained over the years?
    Mr. Colloton. Well, Senator, I think particularly in Iowa 
where we are fortunate to have a strong Federal bench and a 
good solid bar, I believe civility among attorneys, civility 
among the bar is an issue that's always important to lawyers, 
and I think that we have an opportunity to grow in that area 
through bar relationships, bench/bar relationships. So that is 
one area that I would focus on and suggest would be an 
important area.
    Senator Sessions. You were the appellate coordinator in the 
United States Attorney's Office in the Northern District when 
you were an assistant; is that correct, the appellate 
coordinator and handled appellate work while you were there? 
What court was that in, and do you think that experience would 
be beneficial to you in this job?
    Mr. Colloton. Yes, Senator, I do. During my service as an 
Assistant United States Attorney I ultimately was asked to 
serve in that capacity as the coordinator of appellate 
litigation for the U.S. Attorney in the Northern District of 
Iowa. This was toward the end of my service in the late 1990's, 
and that gave me an opportunity to manage a range of litigation 
within the office to appear with some regularity before the 
United States Court of Appeals for the Eighth Circuit, which is 
the court to which I've been nominated, and I think that among 
other experiences I've had was a very useful and germane 
experience in preparing me for this potential service if I'm so 
fortunate to be approved.
    Senator Sessions. You have been a litigator. Do you think 
bringing that experience to the Court of Appeals might be 
helpful in some instances? Do you think in your experience, 
have there been times when you think the appellate court might 
not have quite captured the essence of what was occurring in 
the courtroom?
    Mr. Colloton. Well, far be it from me to say that about a 
court of appeals, Senator Sessions, but I do think that 
experience as a member of the practicing bar and for judges 
sometimes that come from the practicing bar can be an advantage 
for a court. I have been a practicing lawyer for several years 
now, and my focus has been on practicing law. It's been sort of 
a case-by-case incremental law practice, and I've been in the 
trenches, so to speak, in the District Courts practicing both 
in the Federal and to some extent in the State courts during my 
time in the private practice, but particularly in the Federal 
Courts, and I do hope that if I am fortunate enough to be 
approved that my recent experience as a member of the 
practicing bar would bring some insight to the Court of 
Appeals, yes.
    Senator Sessions. The Court of Appeals academic grade 
points are not always determinative in my view, but I think a 
lawyer who shows an aptitude and an interest and is able to 
handle written work as well as litigate, that is an asset to 
you on the Court of Appeals, and your background as an honors 
graduate from Princeton, and a Yale graduate, having clerked 
for Judge Silberman on the D.C. Circuit, having clerked for the 
Chief Justice of the United States, now Chief Justice 
Rehnquist. Your experience as an appellate lawyer in the U.S. 
Attorney's Office is a really special background for it, and I 
think from the reputation you have garnered as a man of 
integrity and character and good judgment, those combinations 
make you a really highly-qualified nominee. We are glad to have 
you.
    Mr. Colloton. Thank you, Mr. Chairman, for those kind 
words. I appreciate them.
    Senator Sessions. I congratulate Senator Grassley and 
Harkin and the President.
    Senator Schumer. Mr. Chairman, since I have to leave soon, 
in the interest of getting on to our next panel, I will just 
ask consent that I be allowed to submit some questions in 
writing.
    I congratulate the family on their pride in Mr. Colloton 
getting this far.
    Senator Sessions. It is a great honor, and one step below 
the Supreme Court. You will handle a lot of important cases and 
so far you have received extraordinary support and 
congratulations.
    The good news it here are no more questions, and I thank 
you very much.
    Mr. Colloton. Thank you very much. Thank you, Senator.
    Senator Sessions. Now we will have the next panel. I think 
we will have room for everybody, do we not?
    Senator Schumer. We do.
    Senator Sessions. If you will step up, all the district 
nominees.
    You have taken your seats. I now have to ask you to stand 
and take your oath. If you would raise your right hand and take 
this oath.
    Do you swear or affirm that the testimony you are about to 
give will be the truth, the whole truth and nothing but the 
truth, so help you God?
    Mr. Castel. I do.
    Judge Feuerstein. I do.
    Mr. Holwell. I do.
    Judge McKnight. I do.
    Mr. Proctor. I do.
    Mr. Robinson. I do.
    Senator Sessions. Thank you very much.
    Senator Schumer, I know you have got some nominees here, 
people you care about, and I will yield to you at this time.
    Senator Schumer. Thank you, Mr. Chairman. I will not ask 
long questions of the nominees. I will reserve the right to 
submit other questions in writing, but obviously, I am very 
familiar with four of the six and have heard good things about 
the other two. So I have one question for every nominee, and 
unfortunately, you have to answer it first--
    Senator Sessions. I normally ask them to tell about their 
families or if you need to go first--
    Senator Schumer. No, no. One of the joys I get is seeing 
the families, so I would like that.
    Senator Sessions. I guess we can start over here with Mr. 
Castel. If you want to give a brief opening statement or any 
comments, then introduce your family, that would be fine.

STATEMENT OF P. KEVIN CASTEL, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE SOUTHERN DISTRICT OF NEW YORK

    Mr. Castel. Thank you very much, Mr. Chairman.
    I am delighted that at this moment my wife, Patricia, and 
my daughter, Jeanne, are in New York following this on 
capitalhearings.org, and my young daughter, Allison is at camp. 
So I am here today on my own, and very happy to be here.
    I have no opening statement.
    [The biographical information of Mr. Castel follows:] 
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    Senator Sessions. Judge Feuerstein?

STATEMENT OF SANDRA J. FEUERSTEIN, NOMINEE TO BE DISTRICT JUDGE 
              FOR THE EASTERN DISTRICT OF NEW YORK

    Judge Feuerstein. Good morning, Mr. Chairman. Good morning, 
Senator Schumer.
    I have no formal opening statement, but I would like to 
welcome family and friends here today. First of all my mother, 
Judge Annette Elstein, who is an Immigration Judge; my husband, 
Albert, who was born in Brooklyn, Senator Schumer. That's good, 
right?
    [Laughter.]
    Judge Feuerstein. My terrific sons, Adam Feuerstein, who is 
here with his wife, Karen and my granddaughter, Arielle; my 
wonderful son, Seth, who's here with his wife Sharon and my 
grandsons. I think they're watching on closed circuit TV which 
is why it's quiet here. My grandsons Jacob and Joshua. My dear 
friends, Joan Katz, Phil and Joyce Glickman, Nan Weiner, Dale 
Twillis and Arlene Zalayet, have also accompanied me here 
today.
    Senator Sessions. Outstanding. We are glad that you are all 
here.
    Senator Schumer. If they are in the room, could we have 
them stand? I just like to see them. It is nice.
    Judge Feuerstein. Well, I would like you to see Arielle's 
dress because it's quite spectacular, but perhaps afterwards.
    Senator Schumer. Welcome.
    Senator Sessions. Thank you.
    Judge Feuerstein. Thank you.
    [The biographical information of Judge Feuerstein follows:] 

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    Senator Sessions. Mr. Holwell?

 STATEMENT OF RICHARD J. HOLWELL, NOMINEE TO BE DISTRICT JUDGE 
             FOR THE SOUTHERN DISTRICT OF NEW YORK

    Mr. Holwell. Thank you, Senators. I too have no prepared 
remarks, but I would like to introduce my beautiful wife of 32 
years, Nancy; my two wonderful daughters, Ana and Eve; my 
sister-in-law Barbara; and my good friend, Hon. Paul Friedman, 
a District Court Judge here in the District of Columbia.
    Senator Sessions. Very good. If you would stand. We are 
delighted to have you with us.
    [The biographical information of Mr. Holwell follows:] 
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    Senator Sessions. Judge McKnight?

 STATEMENT OF H. BRENT MCKNIGHT, NOMINEE TO BE DISTRICT JUDGE 
           FOR THE WESTERN DISTRICT OF NORTH CAROLINA

    Judge McKnight. Thank you very much. I have no formal 
opening statement. I am honored to be here. I would like to 
thank Senators Edwards and Dole for their support, and 
Congressman Myrick for coming and speaking today.
    In addition, my wife, Beth, I would like to introduce, and 
my sons, Brent, Matthew and Stephen. This is their first 
introduction really to Washington, and they are learning a lot. 
I'm so proud and happy to have them here.
    In addition, my father-in-law and mother-in-law, Charles 
and Sherry Herion are here, as well as some friends. Howie and 
Debbie Donahoe and their sons Chris and C.J.; John and Carol 
Sittema; and Larry and Barbara Gregory. I hope I've got them 
all, and if we could--
    Senator Sessions. Yes, if you would stand, we would 
appreciate it. It is good to see the boys there. I got to meet 
them earlier. Very good, thank you.
    [The biographical information of Judge McKnight follows:] 
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    Senator Sessions. David Proctor.

STATEMENT OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE FOR 
                THE NORTHERN DISTRICT OF ALABAMA

    Mr. Proctor. Yes, sir. Thank you, Mr. Chairman, and thank 
you, Senator Schumer.
    My lovely wife, you've heard the line my better half, she's 
my better nine-tenths. Teresa is here, along with our children, 
Luke, Jake and Shelly Grace. And Senator Shelby was nice enough 
to mention Shelly's birthday is tomorrow. We are very pleased 
that she could be here for that.
    Also I have--my mother is unable to travel. She's in a 
retirement community in St. Petersburg, Florida, but her 
brother and sister, David Ames and Tootie Brown are here, along 
with David's wife, Carol, and Tootie's children Alec Brown and 
Liz Repass, who are my cousins, and Liz's son, John Thomas. 
They've traveled up from Salem, Virginia to be with us today.
    I would like to thank you. It's an honor and privilege to 
be here before you.
    Senator Sessions. Thank you. If you would please stand. 
Happy birthday, Shelly Grace. Since it is not today, I will not 
sing, not that I could.
    Senator Schumer. He would not sing tomorrow either, Shelly 
Grace. [Laughter.]
    [The biographical information of Mr. Proctor follows:] 
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    Senator Sessions. Mr. Robinson.

STATEMENT OF STEPHEN C. ROBINSON, NOMINEE TO BE DISTRICT JUDGE 
             FOR THE SOUTHERN DISTRICT OF NEW YORK

    Mr. Robinson. Thank you, Mr. Chair. Senator Schumer, thank 
you so much for your kind remarks. In particular, thank you for 
mentioning my wife, who I hope is watching and would be proud, 
not so much that I'm here today, but mostly proud of our 
daughter, who has grown to be a fine young lady, and she is 
here with us today, Victoria.
    Unfortunately, my mother, Yvonne Robinson, and my two 
brothers, Guy and Chester, are not here today, but they are 
back at Brooklyn anxiously awaiting word on the events of 
today.
    I also would like to thank Senator Clinton and Senators 
Dodd and Lieberman for their long-term friendship and support 
that I've enjoyed over the years. Thank you very much and I'm 
very happy to be here.
    Senator Sessions. Very good.
    Mr. Robinson. If Victoria could just stand for a moment.
    Senator Sessions. Yes, excuse me. Hello.
    [The biographical information of Mr. Robinson follows:] 
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    Senator Sessions. Senator Schumer?
    Senator Schumer. Thank you. I always enjoy seeing the 
families. It is a nice day. And to see the family's pride in 
their loved one before us is a wonderful thing.
    I just have one question. Before I do that, I do want to 
ask you something, Mr. Castel. I have a daughter, Allison, a 
young daughter, who is also in camp right now, so we share 
something in common. My daughter is 14.
    Mr. Castel. Mine is going to be 13 on September 7th, and 
she also plays CYO basketball, as I know your daughter does.
    Senator Schumer. Yes, she does. My daughter is a--I loved 
sports, but I was not--our team's motto in high school was: 
``We may be small, but we are slow.''
    [Laughter.]
    Senator Schumer. My daughter has a gift from God. She is 
just a great athlete, and she loves sports, and she is at 
sports camp actually up in the Catskills, Kutcher Sports 
Academy.
    Anyway, my one question for all the nominees is this, and 
unfortunately you have to answer it first, Mr. Castel. Can you 
name for me a judge, could be at your local level, could be at 
the national level, but a judge you admire and would hope to--
we all have role models we look up to as we move forward. That 
is what I would ask each of you.
    Mr. Castel. Well, I may be criticized for being someone who 
is trying to influence a future colleague, but Chief Judge Mike 
Mukasey in the Southern District is somebody who I do admire 
greatly. He has a terrific temperament. He has shown backbone 
and courage, and I have a very high regard for him, and I have 
a very high regard for him, and I have to quickly mention 
before--not to take Senators' time--but my own personal mentor, 
Hon. Kevin Thomas Duffy for whom I clerked and who is still 
sitting on the Southern District Bench. He has been a great 
influence on me.
    I thank you for the question, Senator. So I don't get into 
trouble, I want to mention that my brother-in-law, Kevin 
McLernon, has arrived in the Senate room and is here. Thank 
you.
    Senator Schumer. Thank you.
    Judge Feuerstein?
    Judge Feuerstein. I actually can't think of one person in 
particular, but there are certainly--
    Senator Schumer. Name a few.
    Judge Feuerstein. There are attributes that I think go into 
making a good judge, and beyond being a good judge, a good 
person, and as far as judges go, I would have to say Judge 
Arthur Spatt, who sits in the Court which hopefully I will 
someday sit in; and Judge Leo McGinity, with whom I worked for 
many years, and who is now a colleague of mine on the appellate 
division. Judge Marie Santagata, and of course, as a role model 
for women, Justice Sandra Day O'Connor in the Supreme Court.
    Senator Schumer. Mr. Holwell?
    Mr. Holwell. Thank you for the question, Senator. The two 
that stand out in my mind of the judges I've practiced before, 
I would have to mention Judge Gagliarti from the Southern 
District, who was a man of great demeanor and great measure, 
and Judge Weinfeld, also of the Southern District, who was a 
man of great intelligence and brilliance.
    Senator Schumer. Thank you.
    Judge McKnight?
    Judge McKnight. Thank you, Senator. If I could name a few 
as well?
    Senator Schumer. Please.
    Judge McKnight. In terms of a judge that's known 
nationally, someone I greatly admire, is Learned Hand, for his 
fidelity to the law and to the facts, his precision of analysis 
and language, his courage in his defense of liberty.
    At the local level, I've been a judge on the State Court as 
well as the Federal Court, and four come to mind. The Honorable 
Sam Ervin of the Fourth Circuit Court of Appeals, again for his 
courage and fidelity to the law, and understanding of trials 
and how they work; James B. McMillan for his courage in the 
Charlotte-Mecklenburg integration; Graham Mullen, my chief, for 
his attention to the details of the Court as well as to the 
ideals of the Court; and Frank W. Snepp, who is now deceased, 
but on the North Carolina State Superior Court, who taught me 
much.
    Senator Schumer. Thank you.
    Mr. Proctor?
    Mr. Proctor. Yes. Senator Schumer, thank you for the 
question. I would have to start with Judge Widener, who I had 
the privilege of clerking for and who really introduced me to 
the Federal Court system. We've had two very high-quality chief 
judges, one retired now, Sam Pointer, who works at the 
Birmingham firm of Lightfoot, Franklin and White, and I look 
forward to hopefully, if I'm fortunate to be confirmed, to 
serve under Judge Clemon, who I've gotten to know quite well 
over the years in both a legal and a personal way.
    Senator Schumer. Mr. Robinson?
    Mr. Robinson. Thank you for the question, Senator Schumer. 
If I am fortunate enough to be confirmed, I would have the 
great honor of serving with several judges whom I have 
practiced before and have gotten to know and admire and respect 
greatly. One has been mentioned by Mr. Castel, Chief Judge Mike 
Mukasey. He's a judge who has shown great integrity, great 
courage in the work that he's done, and also a sense of humor 
and a good rapport with both colleagues on the bench and the 
practitioners before him.
    Secondly, I would mention Judge Keenan. As a young 
Assistant United States Attorney I was fortunate enough to try 
three cases before Judge Keenan, and admired the way he 
conducted his courtroom, and treated even a very green, young 
Assistant United States Attorney, and did one of the most 
impressive things that ever happened to me in my career. He 
actually asked me to bring my mother in so that he could talk 
to her in chambers without me present. And to this day I've 
never found out the content of that conversation, but at least 
I am happy to say my mother did not disown me. But I've always 
respected him, and the way he worked a courtroom, the way he 
treated counsel, and then both of their knowledge and fidelity 
to the law.
    And the last I'll mention is Judge Lynch, who was the Chief 
of the Criminal Division when I was an Assistant United States 
Attorney, and has been a person who has been very influential 
to me and very supportive of me. He's a giant intellect, a 
person of great integrity, and someone I admire greatly.
    Senator Schumer. Thank you. I want to thank you all. I 
apologize to the Chair and all of you that I have to be gone, 
but I congratulate all of you on your nominations and look 
forward to your confirmations.
    Mr. Castel. Thank you, Senator.
    Judge Feuerstein. Thank you, Senator.
    Mr. Holwell. Thank you, Senator.
    Mr. Proctor. Thank you, Senator.
    Mr. Robinson. Thank you, Senator.
    Senator Sessions. I just have a few questions I would ask 
you. One of the questions that is important is understanding 
the role of courts. This is the last opportunity the people 
just about, except when the matter is on the floor and then 
there are no questions to be asked, this is really the only 
chance in which the people get to ask you, will you be true to 
the constitutional framework? Because when a judge declares 
that the Constitution says something, you have a lifetime 
appointment, and it is difficult to deal with if that is not 
accurate.
    So we would like to know, do you understand the role of the 
court, what do you understand with regard to the role of the 
court and your responsibility to follow the law as it is 
existing, as exposed to expansive interpretations of the law?
    Mr. Castel. Thank you for the question, Mr. Chairman.
    I think an affection for the rule of law in our 
constitutional system means a tremendous respect for the 
separation of powers. The role of the legislature, the 
executive, and the judiciary have to be confined to their 
respective domains if our system is going to work. I would view 
my job, if I were confirmed, as not only following the 
precedent handed down from the Supreme Court and the Court of 
Appeals, but also at the same time, respecting the boundaries, 
not trying to play amateur legislator in any respect. I 
appreciate the question. It's a very important question, and I 
believe in the separation of powers doctrine down to my toes.
    Thank you very much.
    Senator Sessions. Thank you very much.
    Judge 
    Judge Feuerstein. Thank you for the question, Mr. Chairman. 
I agree with Mr. Castel as far as the separation of powers and 
following precedent. I presently sit on an appellate court, so 
I am really in favor of this.
    [Laughter.]
    Judge Feuerstein. I view a judge's role as interpreting and 
not creating law. That is the job of the legislature, and I 
believe that my career on the bench has demonstrated my 
execution of my duties with respect for separation of powers 
and precedent. And that would be the end of my statement. Thank 
you.
    Senator Sessions. Thank you.
    Mr. Holwell?
    Mr. Holwell. Thank you, Mr. Chairman. I agree with Mr. 
Castel and Judge Feuerstein. Judicial restraint surely ha to be 
the touchstone of the court system, particularly at the 
District Court level. No one elects a District Court Judge, and 
yet he sits or she sits for a lifetime, and it's particularly 
imperative for judges to understand that great power cannot be 
abused, and the deference must be paid to the other branches of 
the Government.
    Senator Sessions. Judge McKnight?
    Judge McKnight. Thank you, Mr. Chairman. If I am so 
fortunate as to be confirmed, it is my deep-seated belief, one 
that I've acted on in 14 years now as a judge, that the role of 
the judge is precisely to interpret the law as it is given to 
him or her, not to make law, not to expand beyond the law, not 
to play legislator, but to follow precedent, honestly, fairly, 
with integrity, to respect precedent that is established, to 
follow the statutes and give a precise and fair interpretation 
of the statutes, and do my best with what is given to me, to 
apply it to specific fact situations accurately and justly. 
Thank you.
    Senator Sessions. Thank you.
    Mr. Proctor?
    Mr. Proctor. Thank you, Mr. Chairman. When I clerked for 
Judge Widener, that was ingrained in my from the beginning of 
my legal career, that we should respect the rule of law; we 
should decide cases and controversies from the meaning of the 
Constitution and not try to legislate, and that we should seek 
the narrowest holding possible and not overwrite from the 
bench. And I'm committed to virtually all the things I've heard 
my co-panelists say, but I think you know from our 
conversations before, I am committed deeply to the rule of law 
and the fact that a judge has an inherently limited Federal 
judicial power invested in him by the Constitution, and I would 
uphold that duty if I was so fortunate to be confirmed.
    Senator Sessions. Very good.
    Mr. Robinson?
    Mr. Robinson. Thank you, Mr. Chair, for that question. I 
think it is an important one, and let me start briefly by 
saying I agree with my colleagues. I have a deep and abiding 
respect for the rule of law. I have tried to show that and live 
that as an Assistant U.S. Attorney, as Deputy General Counsel 
of the FBI, and again as a U.S. Attorney.
    I believe that the way this system works well is for judges 
to follow the precedent that has been set before them and to 
rule narrowly, as narrowly as possible, with an eye towards the 
law as it has been set forth. We are not legislators. We have 
not been elected. We have not chosen that path in life. But we 
have chosen to participate in an executive--I mean in a 
judicial, in a co-equal branch of the Government, and that's 
important, but it's also important for us to understand our 
role in that process, and that is not to legislate, but to 
interpret and follow the law.
    Senator Sessions. I think you have answered that well. 
There will be temptations. There will be times when somebody 
would want you to rule in a way that you think would really be 
good public policy perhaps, but it is not supported by the law, 
and the more I look at the strength of the United States, the 
more I am convinced that this Nation's fundamental power and 
ability to grow and progress is based on the rule of law. You 
look at the countries like Hong Kong, that have a legal system, 
how they flourish when other countries around them are not 
doing well. New York, for example, has these complex commercial 
cases affecting the whole world a lot of times, and plus we are 
having those all over the country now, in Alabama and 
everywhere else.
    But people invest here. They believe in doing business with 
Americans. We are able to be competitive in the world 
marketplace because people think they can get justice in our 
courts, and they are not worried about an investment. You think 
about the idea of an average citizen can borrow $150,000 to buy 
a house and pay it back at less than 6 percent interest over 30 
years, this is a tribute to our legal system. It has really 
been a source of our strength, and I do believe that some 
opinions in recent years have gone beyond a legitimate 
interpretation of our law, and I think it undermines public 
respect for law, and if the public ever believes that judges 
are nothing more than politicians too like us, then I think 
that great respect and reservoir of respect that exists could 
be undermined.
    Let me ask you this, now briefly, each one of you. The 
challenge of a Federal District Judge is great. There are a lot 
of pressures and a lot of intensity, a lot of deadlines that 
have to be met. Frequently there are injunctions and things 
that require weekends and nights. The backlog is there. Clients 
have large amounts of money at stake. Are you willing to see 
yourself as a servant to the system, and if need be, put in 
extraordinary hours and manage your docket effectively? It is 
certainly not an easy job.
    Do you have any thoughts about that, Mr. Castel?
    Mr. Castel. Thank you, Mr. Chairman. I do have some 
thoughts. First of all, I think, and I probably can say this 
about my co-panelists, you don't get to this table unless you 
have an incredible work ethic, and I think you really 
particularly--my familiarity tends to be more with the Federal 
Courts in New York. It is a crushing load. It is hard work. 
I've told my family, because they've asked the question, you 
know, will I be working harder or less hard than I am now, a 
partner in a law firm. My answer is probably over at least the 
next 3 years until I get my sea legs, I anticipate probably 
working harder, but it's responsibility that I eagerly embrace.
    Thank you, Senator.
    Senator Sessions. Thank you.
    Judge Feuerstein?
    Judge Feuerstein. Thank you for the question, Mr. Chairman. 
I presently sit in what I believe is the busiest appellate 
court in the country, and so I am used to work, and as Mr. 
Castel has said, I believe everyone on this panel probably is. 
I have never shirked it. I look forward to the challenges if I 
am fortunate enough to be confirmed. And frankly, when you love 
what you do, it's not a hardship.
    Senator Sessions. Well said.
    Mr. Holwell?
    Mr. Holwell. Mr. Chairman, I agree with a statement you 
made earlier, that if it were ever true, it certainly is not 
the case that one can retire to the bench. The extraordinary 
demands on the judiciary can only be met by people continuing 
to put their shoulder to the wheel of labor. I think what Mr. 
Castel said is correct, we've all done that to get this far, 
and should we be so lucky as to be confirmed by the Senate, we 
will continue in that vein.
    Senator Sessions. Good.
    Judge McKnight?
    Judge McKnight. Mr. Chairman, thank you for the question. 
In my time on the bench I have seen the importance of it over 
and over again. When I was a State judge we have a very 
overburdened court system in Charlotte, and I worked hard to 
manage the docket there and did so. Likewise on the Federal 
bench as a Magistrate Judge, we have one of the highest 
weighted caseloads in the country, and I have, I believe, 
effectively manage the cases.
    But let me just say this. My commitment is to work hard, to 
put in the hours and give each case the time and thought it 
deserves, and I will do so.
    Senator Sessions. Judge McKnight, do you have any comments 
on the role of the magistrate for your fellow judges to be? I 
know in the Southern District of Alabama, where I practiced for 
a number of years, the magistrates were given a lot of work and 
they responded very well. It is a prestigious position, and you 
got quality nominees and they did quality work. Do you think 
some judges, district judges around the country could use 
magistrates more effectively?
    Judge McKnight. Thank you, sir. I believe so. I have been 
very fortunate in the Western District, that the District 
Judges who reviewed and supervised my work, have allowed me to 
work to the full extent of the statute, which has been expanded 
in terms of the responsibility of the magistrate judge several 
times since 1980, and I would encourage judges to make full use 
of it. It, of course, takes loads off of them and gives them 
time to focus on their role, what is important. And yes, sir, I 
would underscore their role as strongly as I could.
    Senator Sessions. Mr. Proctor?
    Mr. Proctor. Thank you, Mr. Chairman. I think the reason 
that I have sought this position is a call to service, a call 
to service of my country, the people of Alabama and my 
colleagues in the bar. I plan to bring the diligence and work 
ethic I've demonstrated as a lawyer and that I've been taught 
by my partners, such as Richard Lehr and David Middlebrooks, 
and from some of my former partners at my old firm, like Steve 
Brickman and Brad Sklar. I hope to bring that diligence and 
work ethic to the bench. And I certainly agree with your 
comment that you've shared with me before, that this is not a 
retirement job, this a roll-your-sleeves-up-and-get-to-work 
job.
    Senator Sessions. You have that reputation as a worker.
    Mr. Robinson?
    Mr. Robinson. Thank you, Mr. Chairman. I agree with my 
colleagues again. I have always been a person who has worked 
extremely hard, in large part because I enjoy that, and that's 
what the jobs that I've been in require. And should I be 
fortunate enough to be confirmed, I would pledge that the 
question for me will not be am I putting in the hours that I 
will work diligently so that everyone who appears before the 
bench has the confidence that their case has been heard, that 
their voice has been not only listened to but heard by the 
Court, and that a careful and thoughtful process has been 
engaged in and a decision reached. And I think that that's 
important, not only for myself going forward in the job, but 
for the confidence that litigants and parties have before the 
Court. So I think that's extremely important that we all do 
that, and have tremendous faith, having gotten to know my 
colleagues at the table recently, that we will all do that.
    Senator Sessions. I agree. This is a first rate panel. We 
are glad you are here. There are litigants that have filed 
motions that ought to be granted, and the sooner they are 
granted, the better things happen in the legal system. I know 
you will do that. Your backgrounds have held up. You have been 
investigated by your bar association and by the President and 
by the FBI, by the staff of the U.S. Senate, and you have 
passed a whole lot of hurdles to get here. I think each one of 
you represent the best of the legal system of America. I look 
forward to your confirmations.
    If there is nothing else at this point, we will be 
adjourned. But I will note that the record will be open for 
further questions that you may receive in the form of written 
questions. Anything else? If not, we are adjourned.
    [Whereupon, at 11:11 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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NOMINATIONS OF HENRY W. SAAD, OF MICHIGAN, NOMINEE TO BE CIRCUIT JUDGE 
 FOR THE SIXTH CIRCUIT; LARRY ALAN BURNS, OF CALIFORNIA, NOMINEE TO BE 
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; GLEN E. CONRAD, 
 OF VIRGINIA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
  VIRGINIA; HENRY F. FLOYD, OF SOUTH CAROLINA, NOMINEE TO BE DISTRICT 
      JUDGE FOR THE DISTRICT OF SOUTH CAROLINA; KIM R. GIBSON, OF 
PENNSYLVANIA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
  PENNSYLVANIA; MICHAEL W. MOSMAN, OF OREGON, NOMINEE TO BE DISTRICT 
     JUDGE FOR THE DISTRICT OF OREGON; AND DANA MAKOTO SABRAW, OF 
 CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF 
                               CALIFORNIA

                              ----------                              


                        WEDNESDAY, JULY 30, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:17 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch presiding.
    Present: Senators Hatch, Specter, Sessions, Graham, Leahy, 
Feinstein, Feingold, Durbin, and Edwards.
    Chairman Hatch. I apologize for being a little bit late. I 
have been in since 6:00 and I am still having trouble keeping 
up with it all, and I apologize to my colleagues who have had 
to wait. I apologize to my colleagues on this Committee.
    Senator Leahy. I can vouch for the fact that he was here at 
6:00. I looked out the window and I saw him coming in.
    [Laughter.]
    Chairman Hatch. Leahy does not even get out of bed at 6:00, 
I have to tell you. I have been around him. I cannot blame him.
    I am going to forego, or at least hold off on my statement. 
Should we hold off on our statements so that we can accommodate 
our fellow Senators? If you do not mind, we will start from 
your right and go to the left, and start with you, Fritz. 
Senator Hollings, we will call on you to speak first, then John 
Warner. Excuse me. We are going to have Senator Feinstein go 
first because she has an amendment on the floor and has asked 
to speak first.
    Senators Levin and Stabenow have asked for 45 minutes to 
speak and have agreed to follow all of the other Senators. I 
will ask them and Congressman Rogers to come to the witness 
table. You are due on the floor too and you want to speak.
    So we will go with Senator Feinstein, then with Senator 
Specter, and then we will go to Senator Hollings.

   PRESENTATION OF LARRY ALAN BURNS AND DANA MAKOTO SABRAW, 
  NOMINEES TO BE DISTRICT JUDGES FOR THE SOUTHERN DISTRICT OF 
 CALIFORNIA, BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Mr. Chairman, let me thank you very much 
for this courtesy. I really do appreciate it, and I will try to 
be very brief.
    I am very pleased to introduce to the Committee two 
Southern District of California nominees, Larry Burns and Dana 
Sabraw. These nominees will fill two of the five new Southern 
District judgeships created by the Department of Justice 
reauthorization legislation enacted last year. The screening 
committee submitted their names to the President in March, who 
then nominated them in May. I think their presence here really 
represents a very successful conclusion to what was a multi-
year effort to address a tremendous caseload crisis in the San 
Diego area.
    I would very much like to thank the Chairman and the 
Ranking Member without whom these judgeships would not have 
been created, so thank you very, very much.
    Until these judgeships were authorized, the Southern 
District of California had a weighted caseload average of 
approximately a thousand cases per judge. This is the highest 
in the country and more than twice the national average. I hope 
we can confirm Judge Sabraw and Judge Burns as quickly as 
possible because the District truly needs them. They have a 
very heavy caseload of complex and heavy cases including some 
large narcotics cases.
    I am pleased to report that both judges come unanimously 
endorsed by the California Bipartisan Judicial Selection 
Committee. They are two more examples of how well this process 
can work if Democrats and Republicans approach the issue 
collaboratively.
    Judge Burns is joined at today's hearing by his wife Kristi 
and his two sons, Andrew, 17 and Adam, 15. Could you all stand 
up so the Committee could acknowledge your presence? We are 
delighted to have you here. Thank you very much.
    Judge Burns is a lifetime California resident, graduated 
from the University of San Diego Law School in 1979. The 
American Bar Association unanimously rated him well qualified, 
its highest rating. Since 1997 he served as a magistrate in the 
Southern District where he has garnered rave reviews. Notably, 
he received the Judge of the Year award from the Consumer Trial 
Lawyers of San Diego.
    Prior to his service on the bench, Judge Burns worked as an 
Assistant U.S. Attorney in the Southern District of California 
from 1985 to 1997 and as a Deputy District Attorney from 1979 
to 1985. He has tried over 150 criminal cases to verdict.
    During his time in the U.S. Attorney's Office, he enjoyed 
one of the most distinguished careers of any U.S. Attorney in 
the Southern District's history. His career reflects increasing 
levels of responsibility including positions as Chief of the 
Violent Crimes Sections and Deputy U.S. Attorney, the third-
ranking position in the office. He had received superior 
performance awards from the Department of Justice in 1989, 
1990, 1991 and 1992. He was only the second prosecutor from San 
Diego to be inducted into the American Academy of Trial 
Lawyers, which is an invitational organization limited to the 
best trial lawyers on both the criminal and civil defense side 
of the United States. A number of his professionals give him 
their highest marks, but in the interest of time I will just, 
if I may, enter those comments into the record.
    Chairman Hatch. Without objection.
    Senator Feinstein. Thank you.
    I am equally pleased to introduce Southern District of 
California nominee, Dana Sabraw, to the Judiciary Committee. He 
is joined by his wife, Summer Stephan, his son, Jack, age 12, 
and his twin daughters, Stephanie and Kimberly, age 10. I am 
very partial to girls, age 10. I would like to ask the family 
to stand so that we might see them as well. Thank you very much 
for being here. We really appreciate it.
    I also understand that John Yang, the President of the 
National Asia-Pacific American Bar Association, is in 
attendance as well. Could you please rise, Mr. Yang, so that we 
could see you. Thank you very much.
    Chairman Hatch. We are happy to welcome all of you here.
    Senator Feinstein. Judge Sabraw is another exemplary 
candidate. Like Judge Burns, he received a unanimous well-
qualified rating from the ABA. He, again, similarly, earned his 
undergraduate degree from San Diego State University, and his 
law degree from the University of the Pacific in 1985. He was a 
member of the Law Review and the school honor society, 
graduating in the top 10 percent of his class.
    After law school he worked for the oldest law firm in Santa 
Barbara called Price, Postel and Parma. He then became 
associate and partner in the firm of Baker and McKenzie, one of 
the largest law firms in the world.
    Judge Sabraw was appointed by California Governor Pete 
Wilson to the Municipal Court in 1995 and then to the Superior 
Court in 1998. As a judge he has tried nearly 200 cases ranging 
from serious felonies to multi-party complex civil litigation.
    He has remained active in the community despite his 
daunting workload. He is past president of the Oliver Wendell 
Holmes Inn of Court. He has also been on the Board of Directors 
of the Asian Business Association, the Falcons Youth Baseball, 
the San Diego County Judges Association and the Pan-Asian 
Lawyers. Judge Sabraw founded the Positive Impact Program in 
1998, and through this program, it is kind of interesting, 
judges, attorneys and community volunteers have educated over 
6,000 fifth graders about the justice system. He has the 
endorsement of the Mayor of San Diego, Dick Murphy, who says 
that his skill, judgment and integrity would bring honor to the 
Federal bench.
    I would like to end on that note. I think we have two very 
distinguished nominees. Again, an evenly-divided bipartisan 
screening panel found them eminently qualified, and unanimously 
presented them to the President of the United States.
    Thank you for the courtesy, Mr. Chairman.
    Chairman Hatch. Thank you, Senator. We will turn to Senator 
Specter.
    Senator Specter. Well, thank you, Mr. Chairman. I too am 
about to offer an amendment on the Energy bill, but I think 
Senator Cantwell will be there for a little bit longer, and I 
know two of my senior colleagues here, so I would defer to 
Senator Hollings and Senator Warner, and then ask for 
recognition to introduce a Pennsylvania nominee.
    Chairman Hatch. That would be fine, but I think what I am 
going to do is let both South Carolina Senators go if I can. Is 
that okay with you, because Senator Graham is here, so we can 
keep it consistent?
    Senator Specter. That is acceptable, Mr. Chairman.
    Chairman Hatch. Senator Hollings, we will turn to you now. 
Glad to have you here.

 PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. FRITZ HOLLINGS, A 
         U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Hollings. Thank you very much, Mr. Chairman, and 
distinguished members of the Committee. In deference to all of 
us here who have business on the floor, let me ask that my full 
statement be included in the record as if delivered.
    Chairman Hatch. Without objection.
    Senator Hollings. I would ask Judge Henry Floyd and his 
wife to stand. Also we are honored to have the Chief Justice of 
our State Supreme Court Jean Toal.
    Chairman Hatch. Welcome. We are so happy to have you all 
here.
    Senator Hollings. We welcome you to the Committee.
    Chief Justice Toal says Henry Floyd is the ``go to guy.'' 
Any time they have a problem at the Supreme Court level, they 
have been going to him at the Circuit bench level for the past 
12 years. Specifically, he has the unanimous well-qualified 
American Bar Association rating. He is a three-term State House 
Representative. I could go down on and on, on all the different 
experiences he has had in the 20 years at the bar.
    Specifically he has balanced judicial temperament, Mr. 
Chairman. He does not go around harassing people about 
religion. He has a professional work ethic and a sharp legal 
mind. He does not go around publicly campaigning on 
controversial Supreme Court decisions. This is the kind of 
judge that you have got to commend Senator Lindsey Graham for 
having. I can tell you right now, with all the rhubarb and the 
headlines and the controversy about judicial confirmations here 
in the U.S. Senate, this one will go through unanimously 
because he is just totally of a judicial temperament, and that 
sharp legal mind, and well-balanced judgment, and depth of 
experience and everything else like that, he has got glowing 
bipartisan support all over the State.
    Chairman Hatch. Senator Hollings, do you think that we 
might even be able to avoid one of these time-consuming votes?
    Senator Hollings. You have got to give credit to Senator 
Lindsey Graham. I had a lot of letters recommending him, and I 
was sort of looking forward to it, but you know, the Supreme 
Court and that funny decision they made in Florida, so I never 
got the chance.
    Chairman Hatch. The reason I raise that issue is because we 
are now voting on judgeship nominees we really never had to 
have roll call votes on, taking a lot of the time of the 
Senate, where we never did that before.
    Senator Hollings. I want to thank the Committee and you, 
Mr. Chairman, for your fine consideration.
    Senator Specter. Senator Hollings, when you mention 
religion and campaigning on controversial decisions, when are 
you going to go for the jugular?
    [Laughter.]
    Senator Hollings. When am I going to vote for who?
    Senator Specter. The jugular. You are the master of the 
Senate at going for the jugular except possibly for Senator 
Warner.
    Senator Hollings. Let my lawyer, Warner, answer that.
    [Laughter.]
    Senator Warner. I will stand by the old first captain. He 
still walks down the halls with the record he has had, World 
War II.
    Chairman Hatch. Thank you. We are happy to have you here, 
Senator Hollings.
    [The prepared statement of Senator Hollings appears as a 
submission for the record.]

 PRESENTATION OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE WESTERN DISTRICT OF VIRGINIA, BY HON. JOHN WARNER, A 
            U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. I will be very brief, and like Senator 
Hollings, I will ask that my statement be included in the 
record.
    We have one of these magnificent public servants, who has 
for 27 years been a Magistrate Judge in the Western District of 
Virginia in the Federal Court system, and the highlight of this 
hearing would be asking the Judge to introduce his lovely wife, 
Mary Ann. Would you stand, please, Mary Ann? That is the full 
reason why this wonderful man I think has received this 
nomination.
    I say to my colleagues, Glen Conrad has been nominated by 
the President to serve as a judge on the United States District 
Court for the Western District of Virginia, nominated to fill 
the vacancy of James Turk, who began service in 1972 and 
recently took senior status, a remarkable jurist in the annals 
of Virginia history.
    Senator Allen was to have joined me here today, and I will 
unanimous consent that his statement be placed in the record 
together with mine.
    I just simply say to my colleagues, in putting this 
statement in, that the background of this nominee makes him 
highly qualified for this position. Both Senator Allen and I 
extensively interviewed a wide range of individuals, and this 
nominee came to the forefront.
    His experience with the law is extensive. He has a record 
27 years. That coupled with his temperament, his integrity and 
judicial demeanor is consistent with the high standards of the 
Federal bench and bar, and I urge his rapid confirmation by the 
United States Senate.
    I thank my colleagues.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator. We appreciate having 
you here.
    Let us turn to Senator Specter.

PRESENTATION OF KIM R. GIBSON, NOMINEE TO BE DISTRICT JUDGE FOR 
THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN SPECTER, A 
          U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    I have the pleasure of introducing a very distinguished 
Pennsylvanian, Judge Kim Richard Gibson for nomination to the 
United States District Court for the Western District of 
Pennsylvania.
    Judge Gibson is a State Court judge now, has been for the 
past 5 years, has an outstanding record, a graduate of West 
Point in 1970, magna cum laude on his JD degree from the 
Dickinson School of Law in 1975.
    While in the military service, has extensive experience in 
the Judge Advocate General's Office, and returning to the 
practice of law in Somerset County, Pennsylvania, which in the 
past 2 years has become a very famous county where one of the 
9/11 flights went down, and then the mine disaster last year. 
It is good to have something very positive for Somerset County 
and I think Judge Gibson's nomination to the Federal bench is 
just that. He had practiced law in Somerset County as a sole 
practitioner for 20 years, from 1978 to 1998, in a wide 
variety, and I think that kind of diversity is something which 
is very, very positive.
    Judge Gibson has been recommended by the bipartisan 
nominating panel, which Senator Santorum and I have 
established, and with all of the big firm lawyers having come 
to the bench in so many parts of our State as well as the 
country, it is good to see a sole practitioner from a small 
county come to the Federal bench.
    In the interest of brevity, Mr. Chairman, I would ask that 
a resume be included in the record with a detailed statement of 
Judge Gibson's legal background, and in conclusion the two most 
popular words of any statement, I would ask Judge Gibson to 
introduce his lovely wife, and as television had it, their 
three sons.
    Judge Gibson. Thank you, Senator Specter. With me today is 
my wife, Rebecca, my son, Connor, my son, Sean, my son, 
Matthew, and also accompanying me today is my law clerk, John 
Egers, and my secretary, Kimberly Talarovich.
    Chairman Hatch. We welcome all of you to the Committee.
    Senator Specter. Thank you very much, Mr. Chairman. As I 
said, I would like to excuse myself. I am due on the floor 
shortly.
    Chairman Hatch. Thanks, Senator.
    We will turn to Senator Graham now, and then go across the 
table.

 PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. LINDSEY GRAHAM, A 
         U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman.
    I would like to associate myself with at least some of 
Senator Hollings' remarks, not all. That part about me being a 
good guy, I really want to associate myself with that.
    But Senator Hollings and I do agree on this, that Judge 
Henry Floyd, Mr. Chairman, will be a great addition to the 
Federal bench. He has been serving, as Senator Hollings 
indicated, for over a decade at the State level. I can tell you 
firsthand, I have appeared before him as a judge, before I was 
elected to Congress. I think I lost. It probably had nothing to 
do with him, a lot to do with me. But Judge Floyd was rated in 
the top three judges of our entire state. Justice Toal is a big 
fan, and I certainly admire her, but we have Senator Larry 
Martin from Pickens County, Judge Floyd's home county, my home 
county. Larry has been in politics a long time, and anyone who 
has been around Judge Floyd would tell you that he is a quality 
person, he wears the robe well, and if you go into his court 
you are going to be treated fairly no matter where you come 
from, no matter what station in life you have, and I think he 
will be a great addition to the Federal bench. His colleagues 
and those who practice before him, rate him very highly in all 
the areas that matter to me.
    We have a lot of politics in our judicial process. That is 
sort of the way it was meant to be. I think we have way too 
much. I do not associate myself with some of the things that 
Senator Hollings said, but we are here today trying to do some 
good, and South Carolina will be better off if we can get Judge 
Floyd nominated. I want to recommend to my colleagues on the 
Republican and Democratic side of the aisle, that if you vote 
for Judge Floyd you will have done a good thing for the State 
of South Carolina and the United States.
    At this time, Judge Floyd, I think you would be honored to 
introduce your family, if you would do that.
    Judge Floyd. Thank you, Senator. This is my wife, Libba, 
and my daughter, Betts here. My good friend, Scott Dover is 
with us in addition to the two people that Senator Hollings 
mentioned.
    Chairman Hatch. We are happy to welcome all of you here.
    Senator Graham. Welcome to Washington, and God bless in 
your new endeavors. I am very proud of you, Henry. You will 
make a great judge for us.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you.
    We will turn to Senator Wyden and then Senator Smith.

PRESENTATION OF MICHAEL W. MOSMAN, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE DISTRICT OF OREGON, BY HON. RON WYDEN, A U.S. SENATOR 
                    FROM THE STATE OF OREGON

    Senator Wyden. Thank you, Mr. Chairman. Let me begin, Mr. 
Chairman, by thanking you for all of your courtesies. You have 
been so kind to me on so many matters, and we very much 
appreciate your handling this priority nomination for Oregon.
    As you know, I feel very strongly about working in a 
bipartisan way. When I came to the Senate, Senator Hatfield was 
enormously helpful to me, and Senator Smith has just been so 
gracious and so thoughtful. We have done all of our judicial 
nominations together, and I am very proud to be here today, Mr. 
Chairman, and colleagues, to support the fine choice that 
Senator Smith has made for this particular nomination, Mike 
Mosman, to be of service on the United States District Court 
for the District of Oregon.
    He has an outstanding record as a tough prosecutor. I 
believe his law enforcement background will be a significant 
asset to the Federal bench in Oregon.
    He has such an interesting background, Mr. Chairman. Many 
may know, it has been reported in our newspapers, that at one 
time he wanted to be a marriage counselor. This strikes me as 
ideal training for the kind of position that he will be serving 
in.
    But I support Mike Mosman for three major reasons. The 
first is I am convinced that he is committed to equal rights 
for all Americans, and I would also like to praise his 
listening skills. A number of organizations in Oregon raised 
questions, for example, with respect to Mr. Mosman's positions 
on a variety of social issues, and Mr. Mosman really reached 
out and listened, and showed his concern, and I credit him for 
that. His commitment to equal rights for all Americans and his 
willingness to listen has been especially important to me.
    Second, I believe he is going to be fair, and that is a 
prerequisite for anyone serving in this position. He showed 
that as a prosecutor. He will show that as a U.S. District 
Judge.
    Third, I think he understands the role of a judge in this 
position. He understands he is not a legislator. He is not out 
there writing bills and pushing legislation, but he is to serve 
as a judge on a whole host of concerns that come up throughout 
the west. He is a westerner. He understands our issues, and I 
am convinced that he would be an excellent nominee if 
confirmed.
    I am glad once again to be able to join my good friend and 
colleague, Mr. Chairman, in sending to you another nominee that 
has the bipartisan support of both of Oregon's Senators, 
Michael Mosman.
    Chairman Hatch. Thank you, Senator Wyden. We appreciate 
having you here, and we appreciate the good bipartisan way you 
and Senator Smith work on these judges.
    Senator Smith, we will turn to you, and then we will go to 
Senator Allen, then Senator Santorum.

PRESENTATION OF MICHAEL W. MOSMAN, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE DISTRICT OF OREGON, BY HON. GORDON SMITH, A U.S. 
                SENATOR FROM THE STATE OF OREGON

    Senator Smith. Thank you, Chairman Hatch, Senator Leahy, 
Senator Durbin. I appreciate very much your consideration of 
Michael Mosman today, and it is also a privilege of mine to be 
here with my colleague, Ron Wyden, again in a bipartisan way in 
recommending a judge for the United States of America.
    Recently the ABA rated Michael Mosman well-qualified. There 
is a reason for that. He is actually supremely qualified. He 
was the number one student at Utah State University, its 
valedictorian. He was the editor-in-chief of the Brigham Young 
University Law Review. He went on to clerkships with Malcolm 
Wilkey of the D.C. Circuit and Lewis Powell of the United 
States Supreme Court. He has had a distinguished career in 
private practice with the law firm of Miller and Nash. But he 
felt a calling, if you will, to public service and sought a 
position with the U.S. Attorney's Office.
    I did not know Michael Mosman prior to our looking for a 
United States Attorney for Oregon. I believe I had met him, but 
could not say that I knew him. I knew of him. Senator Wyden and 
I established a bipartisan commission, and he surfaced as the 
number one recommendation of this bipartisan panel. He has been 
an outstanding United States Attorney for Oregon in the war on 
terrorism and in keeping the people of Oregon safe from those 
who would harm them.
    In addition to that, in going forward for this position, 
again from a bipartisan panel the number one recommendation was 
for Michael Mosman to fill this vacancy.
    I think it is a high tribute to him that in the audience 
today are two sitting judges of the United States District 
Court in Oregon, Judge Hogan and Judge Haggerty. Those 
gentlemen are here. If they could stand up, I would like to 
acknowledge them. They are here because they recognize, having 
seen him advocate before the bar of the Federal Courts in 
Oregon, his professionalism and would not be here as a Democrat 
and as a Republican if they did not think so highly of him.
    Chairman Hatch. Happy to have both of you here. We are 
honored to have you here.
    Senator Smith. Mr. Chairman, I could go on, but I think his 
record speaks for itself. I will conclude with an incident 
having nothing to do with the law.
    Recently, my wife and I were having dinner at a nice place 
in Oregon. We were attended by a lovely young woman who was our 
waitress. She was bright and very well-mannered. And, after the 
meal she introduced herself as Mike Mosman's daughter. I 
thought what man would not be proud to have a young woman like 
that as his daughter. I think it speaks well of her parents, 
but particularly of the man who will be judged by you today, 
Michael Mosman. I, without reservation, recommend him for 
confirmation to the United States District Court of Oregon.
    Thank you, sir.
    Chairman Hatch. Thank you. We appreciate both of you being 
here. We appreciate the good testimony, and we will put all 
statements in the record.
    Senator Graham asked me to have articles in support of 
Judge Floyd be included in the record at the appropriate place 
following his remarks.
    We will turn now to Senator Allen, then Senator Santorum.

 PRESENTATION OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE WESTERN DISTRICT OF VIRGINIA, BY HON. GEORGE ALLEN, A 
            U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Allen. Thank you, Mr. Chairman, Senator Leahy, 
Senator Durbin. It is my pleasure to join with my colleague, 
Senator Warner, in strongly supporting the nomination of Glen 
Conrad, a fellow Virginian, to serve on the United States 
District Court for the Western District of Virginia.
    I am glad that he is joined by his wonderful wife, Mary Ann 
Conrad, who I thought so much of in the days I was Governor 
that I appointed her to serve on the Community College Board 
for the State of Virginia. They are a wonderful team in service 
in a variety of ways to Virginia and to their communities.
    It is a great pleasure to advocate strongly for Glen 
Conrad. I have known Glen Conrad since 1977. I consider the 
Western District of Virginia my home. When I graduated from law 
school at UVA, I went down and was a law clerk for then U.S. 
District Court Judge Glen Williams in Abingdon, Virginia, and 
there was a magistrate judge there, Glen Conrad. So as a pup 
coming out of law school, you are always learning as much as 
you can as far as how tough decisions are made, and how you 
handle a very voluminous docket. In fact, we had the highest 
caseload per district in the country, and it is still a high 
caseload. I got to know Glen Conrad then, and have watched him 
over the years. He ended up moving up to Roanoke. I have 
followed him over the years, and when this opportunity arose 
and you are thinking of who would best know this Western 
District of Virginia, which covers the Piedmont with courtrooms 
in Danville, Lynchburg and Charlottesville, and the Shenandoah 
Valley Harrisonburg, Roanoke, Abingdon, and Big Stone Gap in 
southwest Virginia. Glen Conrad's name certainly was on the top 
of the list.
    Here is a person who knows the judges, knows the operation 
of the court, has been tested for decades, and been examined by 
lawyers who have had cases before him, and litigants before 
him. Judge Conrad was found to be not only experienced and 
knowledgeable in the law with a ripe judicial philosophy, but 
also understands how to mete out justice in a fair, equitable 
way, and in a way that does not deny the litigants proper 
recourse and quick, efficient justice, so that justice is not 
delayed because of unnecessary procedures. He is a person who 
is just outstandingly qualified.
    He is a product of Virginia's education system. He received 
both his undergraduate and law degrees from the College of 
William and Mary. I think it is appropriate you are having this 
hearing on him today because today, in 1619 in Jamestown, was 
the first meeting of the first legislative body in the new 
world. For Mr. Leahy, who is near Massachusetts, that is 1 year 
before the Pilgrims landed for history.
    Senator Leahy. We think of Massachusetts as a Southern 
State where I come from.
    [Laughter.]
    Senator Allen. If you read the Mayflower Compact, they 
thought they were landing in Northern Virginia.
    [Laughter.]
    Regardless, I think it is appropriate that a gentleman from 
William & Mary is being considered today. He does have the 
knowledge, the experience, and the qualifications.
    The Virginia Bar Association, the Roanoke Bar Association, 
the Virginia Association of Defense Attorneys have endorsed 
him, and Judge Conrad received a highly recommended rating from 
the Virginia Women's Attorney's Association.
    So, Mr. Chairman and members of the Committee, Judge Conrad 
is genuinely deserving of this honor. He has devoted his life 
to the law, to the bench, and I know he will do a tremendous 
job, and I recommend him with my highest recommendation and ask 
for your prompt consideration of Judge Conrad, so he can get to 
work as soon as possible because this judgeship has been 
declared a judicial emergency by the National Judicial 
Conference. I thank you, Mr. Chairman, and members of the 
Committee, and look forward to voting for Judge Conrad on the 
floor as soon as possible.
    Chairman Hatch. Well, thank you, Senator Allen. We 
appreciate having you here, as all of our colleagues, and it 
was a great statement. You and Senator Warner are to be 
complimented, helping this good man to have this opportunity.
    Senator Allen. Thank you, Mr. Chairman.
    Chairman Hatch. Thank you.
    Senator Santorum?

PRESENTATION OF KIM R. GIBSON, NOMINEE TO BE DISTRICT JUDGE FOR 
THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK SANTORUM, A 
          U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Santorum. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here and testify. I want to thank all of the 
members of the Committee for their indulgence. I am here to 
testify on behalf of Judge Gibson for the U.S. District Court 
of the Western District of Pennsylvania. Judge Gibson is a 
Common Pleas Court Judge in Somerset County, which is a rural 
county that became somewhat, well, it became very famous as a 
result of the events of 9/11. That is where Flight 93 crashed, 
and actually Judge Gibson has been involved in some of the 
follow-up work that has been done on that, in his role as a 
judge and a leader in the community.
    I did not know Judge Gibson prior to his name surfacing as 
a result of the Committee that Senator Specter and I have put 
together to go through the qualifications of applicants who 
would like to be judges in the Western District. We recommended 
Judge Gibson to the President because of his just outstanding 
credentials.
    He stood head and shoulders above a very qualified field, 
and this is a man who not only is he a judge and served as a 
solicitor for Somerset County and was a solo practitioner and 
worked at the Public Defender's Office, but he has a very 
distinguished career as a graduate of West Point, having served 
8 years on active duty in the JAG Corps, 15 years as a 
reservist, a commander of a unit, was deployed during Desert 
Storm in 1991.
    So he has served this country already in a very 
distinguished capacity, and very, very well, and has a 
tremendous record. He is just universally,f from left to right, 
Democrat to Republican, admired in Somerset County, and came 
with the full and hearty recommendation of everybody that I 
have run into, and I have run into a lot as a result of this 
nomination. They have been contacting me in support of Judge 
Gibson.
    So it is a real pleasure to be here today to recommend him 
to this Committee, and I want to thank the President for making 
the nomination, and I certainly hope that he is acted upon 
favorably by this Committee.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Santorum. We appreciate 
you and Senator Specter appearing for the judge, and we are 
grateful to have you here.
    Senator Santorum. Thank you very much.
    Chairman Hatch. Thanks for your good testimony.
    We are going to have the statements of the Chairman and the 
ranking member, and then we are going to turn to the two 
Senators from Michigan and Hon. Michael Rogers, who we will ask 
to take their chairs up here.

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

    Chairman Hatch. Let me say, today, the Committee has the 
privilege of considering the nominations of seven outstanding 
lawyers to be Federal judges. I commend President Bush for 
nominating each of them, and I look forward to their testimony.
    The first nominee from whom we will hear is Henry W. Saad, 
who has been nominated for a position on the United States 
Court of Appeals for the Sixth Circuit. This is an historic 
appointment.
    Upon his confirmation, Judge Saad will become the first 
Arab American to sit on the Sixth Circuit, which covers the 
States of Kentucky, Ohio, Tennessee and Michigan. It is long 
past time for this Committee to consider Judge Saad's 
nomination.
    He was first nominated to fill a Federal judgeship in 1992, 
when the first President Bush nominated him for a seat on the 
United States District Court for the Eastern District of 
Michigan. The fact that he did not get a hearing may have 
worked to his benefit, since he was appointed, in 1994, by 
Governor Engler to a seat on the Michigan Court of Appeals. He 
was elected to retain his seat in 1996 and again in 2002, 
receiving broad bipartisan support in each election.
    On November 8th, 2001, President Bush nominated Judge Saad 
for a seat on the Sixth Circuit, the position for which we are 
considering him today. When no action was taken on his 
nomination during the 107th Congress, President Bush 
renominated him to the Sixth Circuit on January 7th, 2003. All 
told, Judge Saad has been nominated for a seat on the Federal 
bench three separate times. I think it is high time this 
Committee considered his nomination.
    Judge Saad's credentials for this position are impeccable. 
He graduated with distinction from Wayne State University in 
1971 and magna cum laude from Wayne State University Law School 
in 1974. He then spent 20 years in the private practice of law, 
with one of Michigan's leading firms, Dickinson, Wright, 
specializing in product liability, commercial litigation, 
employment law, labor law, school law and libel law.
    In addition, he has served as adjunct professor at both the 
University of Detroit Mercy School of Law and at Wayne State 
University School of Law.
    Judge Saad is active in legal and community affairs. Some 
of the organizations he has been involved with include 
educational television, where he serves as the trustee, the 
American Heart Association, Mothers Against Drunk Driving and 
other nonprofit organizations that serve the elderly and the 
impaired.
    As a leader in the Arab American Community, Judge Saad has 
worked with a variety of organizations in promoting, 
understanding and good relations throughout all ethnic, racial 
and religious communities. He is an outstanding role model.
    Judge Saad enjoys broad bipartisan support throughout his 
State, as evidenced by endorsements in his last election by the 
Michigan State AFL-CIO and the United Auto Workers of Michigan. 
He has received dozens of letters of support from leading 
political figures, fellow judges, law professors, private 
attorneys, the Michigan Chamber of Commerce and a variety of 
other groups.
    Let me quote from just a few of the letters received in 
support of Judge Saad's nomination.
    Maura D. Corrigan, chief justice of the Michigan Supreme 
Court wrote, ``Henry Saad has distinguished himself as a fair-
minded and independent jurist who respects the rule of law, the 
independence of the judiciary and the constitutional role of 
the judiciary in our tripartite form of Government. Judge Saad 
is a public servant of exceptional intelligence and integrity. 
He has the respect of the bench and the bar.''
    Other judges have written that he is ``a hardworking and 
honorable individual'' and that he is ``an outstanding 
appellate jurist with a strong work ethic.''
    Roman Gribbs, a lifelong Democrat and retired judge wrote, 
``Henry Saad is a man of personal and professional integrity, 
is fair-minded, very conscientious and is, above all, an 
outstanding jurist.''
    Judge Saad has clearly earned the respect and admiration of 
his colleagues on the Michigan State court bench. His 
nomination does deserve consideration by this Committee. I hope 
that our consideration of Judge Saad's nomination is not 
overshadowed by collateral arguments about the propriety of 
holding this hearing.
    Let me make this absolutely clear. Holding this hearing 
today is entirely consistent with the longstanding blue slip 
policy of this Committee. Since I first became Chairman of this 
Committee in 1995, I have followed the same blue slip policy 
crafted by two former Democratic chairmen of this Committee, 
Senator Kennedy and Senator Biden.
    Here is the Committee's blue slip policy, as explained in a 
letter by former Chairman Joe Biden, to the first President 
Bush, dated June 6th, 1989. ``For many years, under both 
Democratic and Republican chairmanships, the return of a 
negative blue slip meant that the nomination simply would not 
be considered. That policy was modified under Senator Kennedy's 
chairmanship so that the return of a negative blue slip would 
not preclude consideration of the nomination. A hearing and 
vote would be held, although the return of a negative blue slip 
would be given substantial weight.''
    Chairman Biden continued to explain the blue slip policy 
that the Committee would follow under his chairmanship as 
follows:
    ``The return of a negative blue slip will be a significant 
factor to be weighed by the Committee in its evaluation of a 
judicial nominee, but it will not preclude consideration of 
that nominee unless the administration has not consulted with 
both home State Senators prior to submitting the nomination to 
the Senate. If such good-faith consultation has not taken 
place, the Judiciary Committee will treat the return of a 
negative blue slip by a home State Senator as dispositive, and 
the nominee will not be considered.''
    I will submit a copy of his letter for the record.
    In the case of Judge Saad, as with other Michigan nominees, 
there is a clear record of consultation by the Bush White House 
with the Michigan Senators. White House records indicate that 
beginning on April 10th, 2001, White House Counsel Alberto 
Gonzalez began discussions with the offices of the Michigan 
Senators regarding the vacancies on the Sixth Circuit and in 
the Eastern District of Michigan.
    On May 17th, 2001, Judge Gonzalez provided the names of the 
individuals being considered for the Michigan vacancies and 
invited both Senators to provide feedback. The record is clear 
that over the next year, through subsequent telephone 
conversations, as well as written correspondence, there was 
extensive consultation and repeated invitations to the Michigan 
Senators to provide their input into the nomination process.
    In fact, I understand the White House offered to consider 
nominating both of the individuals championed by the Michigan 
Senators to Federal judgeships, although I believe they were 
District Court judgeships. Although President Bush ultimately 
did not nominate those individuals, the consultation 
requirement was undeniably fulfilled in the case of Judge Saad 
and the other Michigan nominees.
    I will continue to work with my friends and colleagues from 
Michigan, Senators Levin and Stabenow, the White House, Senator 
Leahy, and others on the Committee to reach an acceptable 
resolution in filling traditional vacancies in Michigan and the 
Sixth Circuit.
    And while the Michigan Senator's negative blue slips have 
been, and will continue to be accorded substantial weight, 
indeed, I delayed a hearing on any of the Michigan nominees 
because of the Michigan Senators' views. Their negative blue 
slips are not dispositive under the Committee's Kennedy-Biden-
Hatch blue slip policy.
    Again, I fervently hope that the debate that I anticipate 
will occur in my decision to schedule this hearing will neither 
distract, nor detract, from the historic significance of Judge 
Saad's nomination, which was noted by Judge George Steeh, III, 
a distinguished Arab American appointed by President Clinton to 
the Eastern District of Michigan. He said, as quoted in the 
Detroit Free Press on November 9th, 2001, that President Bush's 
nomination of Judge Saad, in the wake of the September 11th 
attacks, ``conveys an important message to all of the citizens 
and residents of this country and that we embrace and welcome 
diversity, and that we are extending the American dream to 
anyone who is prepared to work hard.''
    I could not agree more. Judge Saad is a fine jurist who 
will make an outstanding addition to the Sixth Circuit, and I 
look forward to hearing from him this morning or afternoon, 
whichever the case may be.
    With that, I will turn to the ranking member.

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

    Senator Leahy. Thank you, Mr. Chairman.
    Chairman Hatch. Is Mr. Rogers here? Take your seat.
    Senator Leahy. It is unfortunate when one wants to recite 
history, every so often those troubling little irrefutable 
facts come in the way in the recitation. So I thought maybe I 
would go over some of the irrefutable facts, which may give a 
different view than my friend, the distinguished Chairman, has 
just given.
    Today, is the first time Chairman Hatch will ever have 
convened a hearing for a judicial nominee with two negative 
blue slips returned to the Committee--the first time ever. I 
believe it also may be the first time any chairman, Democratic 
or Republican, in any Senate Judiciary Committee, whether with 
a majority of Democrats or a majority of Republicans, proceeded 
with a hearing on a judicial nominee over the objection of both 
home-State Senators. It is certainly the only time in the last 
50 years. I know it is the only time in the 29 years I have 
been in the Senate.
    So, today, actually should be noted in the annals of the 
Senate and of our Committee for the precedent set by this 
hearing, for the hubris behind it, and for the brazenness of 
the double standard it sets. In collusion with a White House of 
the same party, the Senate's majority this year has launched a 
lengthening series of changed practices and broken rules on 
this Committee. And the White House, which seems to be calling 
more and more, determining how the independent Senate will act 
and more and more whittling away the independence of the 
Senate, the White House, and some in the Senate, have even 
suggested change in the Senate's rule to consolidate the White 
House's control over the judicial nomination process.
    Over the last 3 years, time and again the good-faith 
efforts of Senate Democrats to repair the damage done to the 
judicial confirmation process over the previous 6 years has 
been met with nothing but hubris. The kind of hubris is now 
also having a corrosive effect on the other body, the House of 
Representatives, that we have seen very dramatically in the 
past few weeks.
    Now, when Chairman Hatch chaired this Committee, but not 
with a Republican President, but with a Democratic President, 
Bill Clinton, one negative blue slip from a Senator was enough 
to doom a nomination and prevent a hearing on that nomination; 
indeed, among the more than 60 Clinton judicial nominees for 
this Committee did not even consider. There were several who 
were blocked even though they had positive blue sips from both 
their States.
    It appeared so long as any Republican Senator had an 
objection to the nomination of a Democratic President, that was 
honored. The nomination did not go forward. For example, when 
Senator Helms of North Carolina objected to an African-American 
nominee from Virginia, not only from his own State, but from 
Virginia, it was never allowed to go forward.
    When Senator Slade Gorton, my good friend from the State of 
Washington objected to nominees from California, they were held 
up. Earlier this year, the Committee, under the Chairman, took 
the unprecedented action of proceeding to a hearing on the 
nomination of Carolyn Kuhl to the Ninth Circuit over the 
objection of Senator Boxer from California.
    Now, when the senior Senator from California, Senator 
Feinstein, announced her opposition to the nomination as well, 
I suggested to the Chairman that further proceedings on the 
nomination ought to be carefully considered and we not proceed 
on the nomination, especially as it was opposed by the Senators 
from both that State and that was well known.
    In fact, Senator Feinstein, the senior Senator from 
California, has reminded the Chairman of his statements in 
connection with the nomination of Ronnie White, of Missouri. 
That was a nominee that got through our Committee, with both 
Democratic and Republican votes, but was defeated by 
Republicans in a party-line on the Senate floor.
    The Chairman said had he known that both home State 
Senators were opposed, he never would have proceeded, but, in a 
continuing series of changes of practices and positions this 
year, the Committee has proceeded to proceed with the Kuhl 
nomination, and of course the party-line vote was resolved.
    Now, we are making a further profound change in practices. 
When the Democratic President was doing the nominating and 
Republican Senators were objecting, a single objection from a 
single home State Senator stalled the nomination. In fact, I do 
not believe the Chairman can cite a single example of a single 
time that he went forward with a hearing over the objection of 
a negative blue slip of a single Republican home State Senator. 
There is none.
    But now the Republican President is doing the nomination, 
and all of a sudden the rules just change. No amount of 
objection by Democratic Senators is sufficient. It only took 
one Republican to object to a nomination of President Clinton, 
and now no matter if both home State Senators or Democrats 
object to a nomination of President Bush, the rules are 
entirely different.
    Chairman overrode the objection of one home State Senator 
with the Kuhl nomination, and he overrides the objections of 
both home State Senators for the Michigan nomination.
    I doubt we will hear from the other side of the aisle. It 
is the truth of the two policies that has been followed. While 
it is true various chairmen, and I admit various chairmen of 
the Judiciary Committee have used the blue slip in different 
ways, some actually unfairly and others toward attempting to 
remedy the unfairness, it is also true that each of those 
chairmen was consistent in his application of his own policy; 
that is, until now.
    The double standard the Republican majority has adopted 
obviously depend upon the occupant of the White House, and I 
suspect the White House has ignored the independence of the 
Senate and is pulling the strings. But this change in practice 
marks another example of the double standard.
    Last week, the Republican majority chose to abandon our 
historic practice of bipartisan investigation. This is 
something that has always been done in the nearly 30 years I 
have been here. There is an investigation, and you have both 
Republican and Democrats who work closely together, so both the 
Chairman and the Ranking Member get the same result, but that 
has been abandoned and abandoned the meaning of consistent 
practice of protecting minority rights. They did that by 
changing and overruling the longstanding Committee rule that 
required a member of the minority to cut off debate in order to 
bring the matter to a vote.
    Incidently, a rule that was put in place at the insistence 
of then ranking minority member, Strom Thurmond, who wanted to 
make sure the Republican minority was protected. The Republican 
minority, as long as they were in the minority, they were 
protected. The second the Democrats go into the minority, we 
are not going to follow the rules any more. They do not have to 
be protected.
    Now, this week, the Committee takes another giant step in 
the direction of partisanship through this hearing. Apparently, 
Republican Senators will stop at nothing in their efforts to 
aid and abet the White House with a Republican President in an 
effort to politicize the Federal judiciary.
    The Federal judiciary should not be an arm of either the 
Democratic or Republican Parties. He should be independent. We 
can elect Republicans, and Democrats, and Independents, and 
that is fine. That is an area where they should be partisan in 
the Congress or the presidency, but not in the Federal 
judiciary. That should be independent.
    Now, both, and what makes it more difficult is that both of 
the Senators from Michigan are among the most respected members 
of the Senate, both are fair-minded, both have formed 
bipartisan coalitions time and time again, and both of them 
have attempted to work with the White House to offer their 
advice, but their input was rejected.
    They have now suggested another way to end the impasse on 
judicial nominations for Michigan. Their suggestion was a 
bipartisan commission along the lines of a similar one in 
Wisconsin. I see the distinguished Senator from Wisconsin here. 
I think that is a good one.
    I am familiar with these kind of bipartisan screening 
commissions. Vermont, which has had, since I have been here, 
Republican Senators, Democratic Senators, and now an 
Independent Senator, they have used such a commission for more 
than 25 years with great success. When I came here, I was the 
first, and actually still the only Democrat elected in 
Vermont's history to the U.S. Senate, but the then-senior 
Senator, Republican Senator, worked with me to set up such a 
commission.
    Now, I commend the Senators representing Michigan for their 
constructive suggestions and for their good-faith effort to 
continue to work with the administration, even though they do 
not seem to want to.
    So now we are faced with a nomination from Michigan to the 
United States Court of Appeals for the Sixth Circuit, opposed 
by both Michigan Senators, and it appears that again we will 
ignore our practices and our rules to pick a judicial fight.
    Of course, if we also have time, we will probably get to 
review the nominations of Michael Mosman, Judge Kim Gibson, 
Glen Conrad, Judge Henry Floyd, Magistrate Judge Larry Burns, 
and Judge Dana Sabraw, both nominated for the Southern District 
of California, and all of whom have received very, very glowing 
testimonies from their Senators of both parties. All of them 
have the support of both of their home State Senators. Two of 
these District Court nominations were the product of a 
bipartisan Selection Commission, which has worked extremely 
well for the citizens of California.
    In fact, I congratulate the Senators from the State of 
California and the people from the State of California for 
working out that kind of a commission. I think what it 
guarantees is that these are going to be consensus nominees, 
and they will probably get a vote on the floor of the Senate 
that will reflect the fact that they are consensus nominees.
    In fact, had such a bipartisan commission been allowed to 
include California's Circuit Court nominees, we might not be 
faced with the divisive nomination of Carolyn Kuhl. President 
Bush promised, and I was heartened by his promise on the 
campaign trail, that he would be a uniter and not a divider. 
Unfortunately, that was before the election, and the practice 
in office with respect to judicial nominees has been most 
divisive. In fact, citing the remarks of the White House, the 
Lansing State Journal recently reported, for example, that the 
President is simply not interested in compromise on the 
existing vacancies in the State of Michigan.
    Under our Constitution, the Senate has an important role in 
the selection of our judiciary. It was the brilliant design of 
our Founders to establish that the first two branches of 
Government would work together to equip the third branch to 
serve as an independent arbiter of justice, not an arm of the 
Senate, not an arm of the White House, not an arm of either of 
the political parties, but as an independent arbiter, and that 
they relied on the checks and balances of the Senate and the 
White House to make sure they would be independent.
    As conservative columnist George Will wrote this past 
weekend, ``A proper Constitution distributes power among 
Legislative, Executive and Judicial institutions so that the 
will of the majority can be measured and expressed in policy 
and for the protection of minorities, somewhat limited.''
    Well, the structure of our Constitution and our own Senate 
rules of self-governance are designed to protect minority 
rights and to encourage consensus. And despite the razor-thin 
margin of recent elections, the majority party is not acting in 
a measured way, but in complete disregard for the traditions of 
bipartisanship that have always been the hallmark of the 
Senate.
    When there was a Democratic President in the White House, 
as I said, Circuit Court nominees were delayed and deferred, 
and vacancies in the Court of Appeals more than doubled under 
Republican leadership of the Senate, from 16 in January, 1995, 
to 33 when the Democratic majority took over in July of 2001. 
And we then went and whittled back, but now with a Republican 
President, very substantially on those.
    In fact, under Democratic leadership, in spite of the 
abuses by Republicans and in spite of the 6 years of them 
blocking President Clinton's nominations, we proceeded to 
consider and confirm two nominees to the Sixth Circuit, 
notwithstanding that all of President Clinton's nominees to 
that have been blocked for years.
    We proceeded to confirm two more this year. The vacancies 
that once plagued the Sixth Circuit have been cut in half. The 
eight vacancies have been caused by the refusal of the 
Republicans to consider President Clinton's nominees. The 
Democrats have allowed four of them to be filled in the last 
few months. The Sixth Circuit currently has more judges and 
fewer vacancies than it has had in years.
    Those of us who were involved in this process in the years 
1995 to 2000 know that the Clinton White House bent over 
backwards to work with the Republican Senators and seek their 
advice. In fact, my distinguished colleague, in his brilliant 
history of his own career, here in the Senate, refers to his 
working with President Clinton on that.
    There were many times when the White House made nominations 
at the direct suggestion of Republican Senators. In fact, I was 
there on some of those occasions. And there are judges sitting 
today on the Ninth Circuit, and the Fourth Circuit, the 
District Courts in Arizona, Utah, and Mississippi and many 
other places only because of recommendations of Republican 
Senators were honored by a Democratic President.
    In contrast, since the beginning of his time in the White 
House, the Bush administration sought to overturn traditions of 
bipartisan nominating commissions that run roughshod over the 
advice of Democratic Senators. They tried to change the 
exemplary systems in Wisconsin, the State of Washington, and 
Florida that worked so well.
    So, today, despite the best efforts of two extremely well-
respected Senators from Michigan who proposed a bipartisan 
commission, similar to their sister State of Wisconsin, the 
administration has rejected compromise.
    I object to this reversal of position for obvious partisan 
gain and the unprecedented hearing, unprecedented hearing, 
going as far back as we can find in 50 years, that is being 
held today. I will participate in the questioning of Judge Saad 
because his nomination has raised some concerns. His judicial 
opinions against whistleblowers--those people who really do 
protect the Government--and his opinions against victims of 
discrimination, as well as his opinions on cases involving 
workers' rights give me great concern about his willingness to 
follow the law, but he will have a chance to answer those 
questions. So I look forward to his testimony.
    Senator Feingold. Mr. Chairman?
    Chairman Hatch. Senator?
    Senator Feingold. Mr. Chairman, I just want to make a brief 
statement. I feel truly privileged to serve on this Committee.
    Senator Leahy. I would ask to put my whole statement in the 
record.
    Chairman Hatch. Without objection, we will put the whole 
statement in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. Senator, I would like to turn to the 
Senator from Michigan.
    Senator Feingold. I would like to just make a brief 
statement if I could.
    Chairman Hatch. All right.

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

    Senator Feingold. Obviously, I think this is one of the 
most distinguished bodies in the Senate. We have jurisdiction 
over issues that have a huge impact on the daily lives of our 
constituents, civil rights, the prevention and punishment of 
crime, the civil justice system and the Federal judiciary to 
just name a few.
    These are some of the most complicated and contentious 
issues the Senate faces, but because of that it is in this room 
that I have also been part of some of the most vigorously 
intense and challenging debates of my entire career. I have 
enjoyed these debates, and I have enjoyed working with my 
colleagues on this Committee.
    As I noted at our meeting last week, one of the things that 
makes it possible for us to work together, even on these very 
contentious issues is the respect for our rules and for 
practices of the Committee that have developed over time. Since 
the beginning of this year, I have watched with dismay as the 
rules and practices that have guided this Committee's actions 
and nominations for many years have been tossed aside in order 
to push through the most nominees possible in the shortest 
period of time.
    An agreement between Senators Thurmond, Biden, Dole and 
Byrd, honored since the mid-1980's, on the number of 
controversial nominees to be considered in a single hearing, 
the minimum time for the minority to prepare for a hearing 
after a nominee's file is complete, and the timing of Committee 
votes after a hearing is held has now, for all intents and 
purposes, been eliminated.
    Nominees are now routinely scheduled for a Committee vote 
before questions have even been asked, much less answered. The 
rule that allows any matter to be held over for a week has been 
essentially eliminated. And, of course, Committee Rule IV, 
which had been in effect as a protection for the minority since 
1979, has been violated twice, even after an agreement was 
reached to reinstate it after the first violation.
    With this hearing today, Mr. Chairman, we are overthrowing 
another longstanding practice of the Committee. This one, as 
the Ranking Member discussed, dates back more than a century. 
Both Michigan Senators who are with us today have expressed 
their opposition to this nominee by returning negative blue 
slips. Yet we are having a hearing in this Committee.
    For years, Mr. Chairman, you refused to have hearings on 
nominees put forward by President Clinton, and you often cited 
objections from only one home State Senator. Once again, the 
rules have changed based on the politics of the moment rather 
than based on any recognizable principle. I think that is very 
unfortunate.
    We all know the history of the vacancies on the Sixth 
Circuit. One Clinton nominee for that circuit, Judge Helene 
White, holds the dubious distinction of being the nominee who 
waited the longest for the courtesy of a hearing, in vain. She 
was pending in this Committee for over 4 years. She never got a 
hearing. And, remember, both blue slips were returned on her 
nomination.
    So this is the circuit where consultation and compromise is 
most needed, but the White House has steadfastly refused. Even 
with four vacancies, this White House could not find a way to 
reach out to Senators Stabenow and Levin and try to make amends 
for the shabby treatment of Helene White and Kathleen McCree 
Lewis.
    This White House has made all four nominations without 
working with the two Senators from Michigan. It has refused all 
overtures by the Senators to try to work together and come up 
with a compromise that would have led to the four seats being 
filled long ago.
    Now, I want to see these vacancies on the Sixth Circuit 
filled. I want there to be judges working hard to bring fair 
and equal justice to the people of Michigan, Ohio, Kentucky, 
and Tennessee. What is happening here today is not helping to 
break this deadlock. I have little doubt that the vast majority 
of our caucus will support the two Senators from Michigan in 
their fight to be adequately consulted on judges who will sit 
in their State.
    Mr. Chairman, this is another sad day among many that we 
have had on judicial nominations. I do welcome the nominees and 
their families, and I am sorry that what should be a day of 
celebration and pride is instead another day of controversy. 
But I felt I had to comment on the continued uprooting of the 
Committee's rules and practices.
    Thank you for letting me speak, Mr. Chairman.
    Chairman Hatch. Well, thank you, Senator. As you know, 
there is a real dispute over whether the rules have been 
violated or not, with our side taking a different position from 
yours. I have to say in the case of Ronnie White, at least he 
got a vote. He may have been defeated, but he at least got a 
vote. That is something that a lot of our nominees are not 
getting. And every one of the cases cited by my friend from 
Vermont has an argument and an answer to it. I will not take 
time to do that now.
    I would just mention that Mr. Saad has been blocked through 
three nominations for 11 solid years, so--well, maybe not solid 
years, but he was first nominated in 1992 and has been 
nominated three times, and, unfortunately, he is caught in this 
controversy, which I am trying to solve. I believe Presidents, 
their nominees, their executive nominees, especially judges, 
deserve votes. They deserve up-and-down votes. If you don't 
like them, vote against them. If you like them, vote for them. 
But we are finding that we are not doing that.
    Having said that, let me just turn to our two distinguished 
Senators from Michigan. I have a high regard for both of them. 
It is unfortunate that we have to be at this crossroads. I 
don't always feel good about these conflicts and these 
problems. I certainly don't feel good about the politics 
involved. But as long as I have known Senator Levin, which is a 
long time, he has always been straightforward, has always been 
fair, and I know that he differs with the administration and 
perhaps with me on this, and I respect him. Senator Stabenow, 
who has been a hard-working Senator ever since she has been 
here, and we are grateful to have both of you here, and then we 
will turn to Michael Rogers at the end. But we have agreed to 
give an extraordinary amount of time to the three of you, which 
is right, I think, under these circumstances. And I intend to 
listen to your comments.
    I might have to get up and go out a couple of times. If I 
do, it is not out of disrespect. Please understand that. But we 
will start with you, Senator Levin, and then we will go to 
Senator Stabenow, and then we are honored to have Hon. Michael 
Rogers from the House of Representatives here, and we look 
forward to hearing your testimony as well.
    Senator Levin?

  STATEMENT HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF 
                            MICHIGAN

    Senator Levin. Thank you, Mr. Chairman. We appreciate the 
opportunity to appear before this Committee today. We obviously 
would have preferred that our appearance be under different 
circumstances.
    We oppose the decision to proceed with this nomination and 
the other nominations for Michigan vacancies without addressing 
serious concerns that we have raised regarding fundamentally 
unfair treatment of Michigan judicial nominees during the 
previous administration.
    This Committee last held a hearing on a nominee for a 
Michigan vacancy on the Sixth Circuit on May 7, 1997, more than 
6 years ago and more than 3\1/2\ year before President 
Clinton's term expired.
    The fact that the last 3\1/2\ years of the Clinton 
Presidency passed without a hearing on Michigan's Sixth Circuit 
nominees was not because there were no Michigan vacancies on 
that court. It was not because President Clinton failed to 
submit nominees for those vacancies. And it was not the result 
of questions about the character or the qualifications of the 
President's nominees to those vacancies. Rather, it resulted 
from Senator Abraham's decision to refuse to return his blue 
slips on the nomination of Michigan Court of Appeals Judge 
Helene White and Kathleen McCree Lewis.
    The record shows that this Committee honored Senator 
Abraham's refusal to return those blue slips. But even after 
Senator Abraham finally returned his blue slips on the two 
nominations in the spring of 2000, the two women were not given 
hearings. That distortion of the judicial nominating process 
was grossly unfair to the two nominees and deprived the 
previous administration of the consideration by the Senate of 
those two nominees.
    We seek a just resolution, and Senator Stabenow and I have 
returned the blue slips with objections to proceeding to the 
current nominees until that resolution is achieved.
    As we have expressed to you personally, we believe that 
moving forward without resolving the impasse in a bipartisan 
manner could deepen partisan differences and make future 
efforts to resolve this matter more difficult. The number of 
Michigan vacancies on the Federal courts provide an unusual 
opportunity for a bipartisan compromise. Efforts to forge 
compromise so far have not been successful, but we hope those 
efforts will continue.
    In order to fully understand our concerns, a brief history 
of the Michigan vacancies on the Sixth Circuit is in order. 
Judge Helene White was nominated to a vacancy on the Sixth 
Circuit on January 7, 1997, after Judge Damon Keith assumed 
senior status. I returned my blue slip on Judge White's 
nomination. Senator Abraham did not.
    More than 10 months later, on October 22nd, Senator Leahy, 
as Ranking Member of this Committee, delivered what would be 
the first of at least 16 statements on the Senate floor, made 
over a 4-year period, regarding the Sixth Circuit nominations. 
He called for the Committee to act on Judge White's nomination. 
His appeal, like the others that were to follow, was 
unsuccessful.
    For instance, on October 21, 1998, more than a year and a 
half after Judge White was nominated, Senator Leahy returned to 
the floor, where he warned that, ``At each step of the process, 
judicial nominations are being delayed and stalled.'' His plea 
was ignored. Senator Abraham's blue slip remained unreturned, 
and the 105th Congress ended without a hearing for Judge White.
    In January 1999, President Clinton again submitted Judge 
White's nomination. That day, I sent one of many notes to both 
Senator Abraham and Chairman Hatch. In that letter, I said that 
the 105th Congress had ended without Judge White being granted 
a Judiciary Committee hearing and suggested that fundamental 
fairness dictated that she receive an early hearing in the 
106th Congress. Still no blue slip from Senator Abraham. His 
decision was honored and, again, no hearing.
    On March 1, 1999, Judge Cornelia Kennedy took senior 
status, opening a second Michigan vacancy on the Sixth Circuit. 
The next day, Senator Leahy returned to the floor, repeated his 
previous statements that nominations were being stalled, and 
raised Judge White's nomination as an example.
    The exercise of the blue slip power by Senator Abraham was 
clearly motivated during this period by his repeated efforts to 
obtain the nomination by President Clinton of Jerry Rosen, a 
district court judge in the Eastern District of Michigan, for 
Judge Kennedy's seat. However, in September of 1999, President 
Clinton decided to nominate Kathleen McCree Lewis to that seat.
    Soon thereafter, I spoke with Senator Abraham about the 
Lewis and White nominations. It had been more than 2-1/2 years 
since Judge White was first nominated. Twice in the next 6 
weeks, Senator Leahy urged the Committee to act, calling the 
treatment of judicial nominees ``unconscionable.''
    On November 18, 1999, I again wrote Senator Abraham and 
Chairman Hatch, urging hearings in January of 2000 for the two 
Michigan nominees. At that time, I noted that Judge White had 
been waiting for nearly 3 years for a hearing. I stated that 
the confirmation of the two women was ``essential for 
fundamental fairness.'' My appeals were for naught and 1999 
ended without Senator Abraham's blue slips and, therefore, 
without Judiciary Committee hearings.
    In February of 2000, Senator Leahy again spoke on the 
Senate floor about the multiple vacancies on the Sixth Circuit. 
Less than 2 weeks later, I made a personal plea to Senator 
Abraham and Chairman Hatch to act on the Michigan nominees. 
Again, I was unsuccessful. Senator Abraham's blue slips 
remained unreturned, and no hearing was scheduled.
    On March 20th of the year 2000, the chief judge of the 
Sixth Circuit sent a letter to Chairman Hatch expressing 
concerns about an alleged statement from a member of this 
Committee that, ``due to partisan considerations,'' there would 
be no more hearings or votes on vacancies for the Sixth Circuit 
Court of Appeals during the Clinton administration. The judge's 
concern would turn out to be well founded.
    Finally, on April 13, 2000, Senator Abraham returned his 
blue slips for Judge White and Ms. Lewis, without indicating 
approval or disapproval. I had previously understood that 
Senator Abraham's decision not to return blue slips on the two 
nominees had prevented them from being granted a Judiciary 
Committee hearing. So the day that Senator Abraham returned his 
blue slips, I not only spoke to Chairman Hatch, but I also sent 
him a letter reminding him that blue slips had now been 
returned on the two nominations, expressing my concern about 
the unconscionable length of time the nominations had been 
pending, and urging that they be placed on the agenda of the 
next Judiciary Committee confirmation hearing. Again, my 
efforts were unsuccessful. That hearing passed without the 
Michigan nominees being on the agenda.
    On May 2, 2000, I tried again and sent another note to 
Chairman Hatch, but neither Judge White's nor Ms. Lewis's 
nominations were placed on the Committee's hearing agenda then, 
or ever. Over the next several months, Senator Leahy went to 
the floor ten more times to urge action on the Michigan 
nominees, and more than once I also raised the issue on the 
Senate floor.
    In the fall of 2000, in a final attempt to move the 
nominations of the two Michigan nominees, I met with Majority 
Leader Lott to discuss the situation. And on the 12th of 
September, I sent him a letter saying that, ``The nominees from 
Michigan are women of integrity and fairness. They have been 
stalled in the Senate for an unconscionable amount of time 
without any stated reason.'' Neither the meeting with Senator 
Lott nor the letter prompted this Committee to act on the 
nominations, and the 106th Congress ended without hearings for 
either woman.
    Judge White's nomination was pending for more than 4 years, 
the longest period of time any circuit court nominee has waited 
for a hearing in the history of the United States Senate. Ms. 
Lewis's nomination was pending for more than a year and a half.
    Senator Abraham's refusal to return blue slips on the White 
and Lewis nominations did not relate to either woman's 
qualifications; rather, his refusal stemmed from his effort to 
persuade the White House to nominate Jerry Rosen, his preferred 
nominee to the Cornelia Kennedy seat on the Sixth Circuit. That 
unreturned blue slips of one Republican Senator precluded 
Judiciary Committee consideration of two nominees of a 
Democratic President, but two negative Democratic blue slips do 
not prevent the Committee from now proceeding with hearings for 
a nominee of a Republican President is simply not acceptable.
    At least one version of Judge White's and Ms. Lewis's blue 
slips read the following: ``No further proceedings on this 
nominee will be scheduled until both blue slips have been 
returned by the nominee's home State Senators.''
    In 1997, when asked by a reporter about a Texas nominee 
opposed by that State's Republican Senators, Chairman Hatch 
said, ``The policy is that if a Senator returns a negative blue 
slip, that person's going to be dead.''
    And on October 7, 1999, Chairman Hatch said, with respect 
to the nomination of Judge Ronnie White, ``I might add, had 
both home State Senators been opposed to Judge Ronnie White in 
Committee, Judge White would never have come to the floor under 
our rules. I have to say that that would be true whether they 
are Democrat Senators or Republican Senators. That has just 
been the way the Judiciary Committee has operated.''
    During the entire Clinton Presidency, it is my 
understanding that not a single judicial nominee--not one--got 
a Judiciary Committee hearing if there was opposition by one 
home State Senator, let alone two. Both home State Senators now 
oppose proceeding with President Bush's Michigan judicial 
nominees absent a bipartisan approach.
    Inconsistencies in the Committee's blue slip policy are 
troubling. But equally troubling is that even after their blue 
slips were returned by Senator Abraham, Judge White and Ms. 
Lewis were still denied hearings. Senator Abraham returned his 
blue slips in April 2000, providing more than enough time for 
the Committee to hold a hearing. What happened? Please listen 
to what Kent Markus of Ohio said about President Clinton's 
Sixth Circuit nominees.
    Professor Markus was nominated by President Clinton in 
February of 2000, also to fill a vacancy on the Sixth Circuit. 
Both home State Senators indicated their approval of his 
nomination. Nevertheless, he was not granted a Judiciary 
Committee hearing. His troubling account of that experience 
sheds added light on the Michigan situation. In his testimony 
before this Committee last May, this is what Professor Markus 
said:
    ``To their credit, Senator DeWine and his staff and Senator 
Hatch's staff and others close to him were straight with me. 
Over and over again, they told me two things: one, there will 
be no more confirmations to the Sixth Circuit during the 
Clinton administration; and, two, this has nothing to do with 
you, don't take it personally, it doesn't matter who the 
nominee is, what credentials they may have, or what support 
they may have. See item number one.''
    And Professor Markus continued: ``On one occasion, Senator 
DeWine told me, `This is bigger than you and it's bigger than 
me.' Senator Kohl, who had kindly agreed to champion my 
nomination within the Judiciary Committee, encountered a 
similar brick wall. The fact was a decision had been made to 
hold the vacancies and see who won the Presidential election. 
With a Bush win, all those seats could go to Bush rather than 
Clinton nominees.''
    Senator Stabenow and I are not alone in the view that we 
hold that what occurred with respect to these nominees was 
fundamentally unfair. On more than one occasion, Judge 
Gonzales, the current White House counsel, has acknowledged 
that it was wrong for the Republican-led Senate to delay action 
on judicial nominees for partisan reasons, at one point even 
calling the treatment of some nominees during the Clinton 
administration ``inexcusable.''
    Mr. Chairman, I doubt that any member of this Committee or 
of the Senate from either party would simply acquiesce if 
confronted with this set of facts. Senator Stabenow and I are 
determined to do what we can to see to it that the tactic used 
against the two Michigan nominees does not succeed. But we are 
equally determined to see a bipartisan solution. In order to 
achieve a fair resolution of this past injustice, Senator 
Stabenow and I have proposed a bipartisan commission to 
recommend nominees to the President. Similar commissions have 
been used in other States. That commission would not guarantee 
a recommendation for any particular individual, much less the 
nomination of any particular individual, since that is 
obviously up to the President. Yet that proposal has been 
rejected.
    Mr. Chairman, all of us have an opportunity to seek a 
bipartisan solution to the problem, avoiding a highly divisive 
and acrimonious debate. With this number of vacancies, we have 
an unusual opportunity to find a better path for consideration 
of judicial nominees. Finding that path would be of great 
benefit, not just as a solution to this problem but to set a 
positive tone for the resolution of other disputes perhaps as 
well.
    As to the qualifications of the nominee before you today, 
we would ask that the Committee hold the record open so that we 
can complete our vetting process. Our process began just a week 
and a half ago when we were suddenly--and, I may say, 
surprisingly--confronted with the decision that our blue slip 
objections, which we based on the procedural history just 
outlined, would be ignored.
    Each of us who was here over the past several years knows 
what occurred with respect to the two Michigan nominees to the 
Sixth Circuit. And I believe that every one of us here at that 
time knows that what occurred was unfair to those nominees. All 
of us can contribute to the resolution of this situation. 
Notwithstanding that today's hearing is being held over our 
objection, we still have time to reach a bipartisan compromise 
and to move forward together, and I hope that we can do just 
that.
    Thank you.
    Chairman Hatch. Thank you, Senator. We appreciate having 
your viewpoint.
    Senator Levin. And I would ask unanimous consent that the 
letters that I referred to be made part of the record.
    Chairman Hatch. Without objection, we will make them part 
of the record.
    Senator Stabenow, we will turn to you?

  STATEMENT OF HON. DEBBIE STABENOW, A U.S. SENATOR FROM THE 
                       STATE OF MICHIGAN

    Senator Stabenow. Well, thank you, Mr. Chairman.
    First, I would thank you and members of the Committee for 
allowing me and allowing Senator Levin to have the opportunity 
to address you today on this important issue. I completely 
agree with Senator Levin's testimony, and I thank him for his 
leadership in trying to bring fairness to the nomination 
process in the Sixth Circuit Court of Appeals. I also welcome 
Judge Saad to the hearing.
    Since I did not come to the Senate until 2001, I want to 
focus on the future, having supported Senator Levin's 
testimony. Senator Levin has clearly outlined the history of 
how two highly qualified women failed to get a hearing before 
this Committee for more than 4 years and 1\1/2\ years, 
respectively.
    Mr. Chairman, it seems to me that the best way to end this 
impasse is to forge a bipartisan compromise. If the 
administration and Senator Levin and I do not do so, I am 
concerned that this struggle between the two branches of 
Government will continue for some time. Senator Levin and I 
have proposed to settle this conflict, as has been indicated, 
by appointing a bipartisan commission to make recommendations 
to the White House on judicial nominations. Our proposal would 
be based on a commission that is up and working just across 
Lake Michigan in Wisconsin.
    The State of Wisconsin commission has produced bipartisan 
nominees for both the district and the circuit courts since its 
inception under the Carter administration. In fact, just 
recently, the Republican Chairman of the House Judiciary 
Committee, Representative James Sensenbrenner, joined 
Wisconsin's two Democratic Senators, Senators Kohl and 
Feingold, in announcing the renewal of their commission to 
recommend to the President nominees for Wisconsin vacancies on 
the Seventh Circuit Court of Appeals.
    Mr. Chairman, since he is your counterpart on the House 
Judiciary Committee, I am sure you know Congressman 
Sensenbrenner well, and you know that Chairman Sensenbrenner 
probably has a great deal of political and policy differences 
with Senators Kohl and Feingold. But for the sake of balance 
and fairness, he agreed to help form the bipartisan Wisconsin 
commission, and I commend all of those involved in that 
process.
    And according to press reports, Chairman Sensenbrenner has 
said that the White House is ``willing to go through the 
commission process'' for an appeals court nominee from 
Wisconsin.
    The Wisconsin commission includes representatives from the 
Wisconsin Bar Association, the deans of the State's law 
schools, as well as members appointed by both Republicans and 
Democrats, and they only recommend qualified candidates that 
have the support of the majority of the commission. The 
President then looks to the recommendations of the commission 
when making his nominations. The Wisconsin commission's 
recommendations have always been followed by the President, 
Democrat or Republican. Regardless of their political party, 
they have always been followed.
    This type of commission preserves the constitutional 
prerogatives of both the President and the Senate. It allows 
the President to pick one of the recommended nominees and 
protects the Senate's advise and consent role.
    Mr. Chairman, Wisconsin is not the only State, as we all 
know, where this type of bipartisan commission works. In a 
similar form, it has worked in several other States, including 
Washington State, California, and, as the esteemed Ranking 
Member indicated, in Vermont.
    I strongly believe that this is the best way to correct 
this current situation, and I would ask that the members of 
this Committee support such a bipartisan solution. If this 
process is good enough for Wisconsin, if this process is good 
enough for Congressman Sensenbrenner, why is it not good enough 
for us in Michigan? It would take almost no time to set up a 
similar commission in Michigan, and we are prepared to do so to 
move this process along.
    Senator Levin and I are interested in finding a bipartisan 
solution to this problem. If we can agree on a commission, we 
are willing to accept recommended nominees even if they are not 
Helene White or Kathleen Lewis or any other person we would 
choose if it were up to us.
    Let's let a bipartisan commission work, and we all will let 
the chips fall where they may. Mr. Chairman, let's look to the 
future and restore civility to this process. This has gone on 
too long.
    I urge all the members of this Committee to support this 
bipartisan solution, and I would like to thank you again for 
allowing us to testify. I would be happy to answer questions, 
and I am hopeful that we can join together in resolving this 
issue.
    Chairman Hatch. Thank you, Senator Stabenow. We appreciate 
your remarks.
    Congressman--
    Senator Levin. Mr. Chairman, I am wondering if I could be 
excused at this time.
    Chairman Hatch. You sure can.
    Senator Levin. Thank you.
    Chairman Hatch. We know how busy you are, and we are happy 
to do so.
    Congressman Rogers, we will take your testimony now.

PRESENTATION OF HENRY W. SAAD, NOMINEE TO BE CIRCUIT JUDGE FOR 
THE SIXTH CIRCUIT, BY HON. MICHAEL ROGERS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Representative Rogers. Thank you, Mr. Chairman. Good 
morning, and Senator Leahy as well. Thank you for allowing me 
to testify today along with the members of the Committee, 
Senator Levin, and Senator Stabenow. I certainly appreciate the 
opportunity to be here today.
    I have the very great privilege to be here today to 
introduce a great jurist who is not only a personal friend, but 
someone who has distinguished himself in the practice of law. 
But, first, Mr. Chairman, I would like to say I appreciate all 
that you have gone through to come to the conclusion to hold 
this hearing today. In talking with you personally, your staff, 
and the administration, the anguish in which you reached this 
conclusion should be noted for the public. This has not been a 
political decision for you. This has been a decision about 
justice and fairness and balance.
    There are some extenuating circumstances that have brought 
us all here today. I have heard the word ``unprecedented'' 
several times, and I certainly won't get into the intricacies 
of Senate rules. But we do have something that is 
unprecedented. The Administrative Office of the U.S. Courts has 
deemed the circumstances in the Sixth Circuit Court a 
``judicial emergency''--unprecedented. Nearly 40 Assistant 
United States Attorneys wrote letters speaking to the dangers 
of the vacancies of this court to bringing justice to the 
people for the Sixth Circuit--also unprecedented.
    I am not here today, Mr. Chairman, to argue and debate the 
Senate rules, as my fellow colleagues from Michigan have done. 
But I do believe, today, that the victim is not the Senate 
rules, if this hearing does not go forward and certainly the 
nomination be confirmed for Henry Saad and the others on the 
Sixth Circuit. But the real victims will be those of terrorism, 
of organized crime, of white-collar criminals and drug cartels. 
Some 435-plus cases are now being held up in the Sixth Circuit 
because of the vacancies and the lack of the Circuit's ability 
to process these cases. That and those folks, Mr. Chairman, are 
the true victims.
    But I do not want to forget why we are here. I am here for 
something pretty spectacular, a great moment in someone's life 
to have the opportunity to be here for a hearing to serve the 
people of the United States in the Federal courts. And I would 
ask not only a good friend of mine but, again, a great jurist, 
Mr. Saad, if he would please stand up and introduce his guests 
who are here with him today, with your indulgence, Mr. Chair.
    Henry?
    Judge Saad. Thank you. Thank you, Mr. Chairman. With me 
today are my son, Andrew Saad, who is here from college. My 
oldest son, Edward, who is practicing law in New York, is, I 
believe, probably practicing law in New York.
    Also with me today is Mara Letica; her son, Kyle Johnson; 
my law clerk, Melissa Taylor; my secretary of long standing, 
Margot Stallard; my other good friend, J.P. Mackley. I am sure 
I missed some other people. And I appreciate the introduction, 
and I appreciate the courtesy to appear before you.
    Chairman Hatch. We are happy to have all of you here. 
Thanks for introducing them, Judge Saad.
    Representative Rogers. Thank you, Mr. Chairman. Thank you, 
Henry. And I just wanted to go over a little bit--you did a 
great job, Mr. Chairman, talking about his background. I just 
want to cover some different things, if I may.
    Judge Henry Saad is a distinguished court of appeals judge 
with over a decade of experience on the bench. He has sat on 
the Michigan Court of Appeals since 1994, having been re-
elected twice with bipartisan support. And I can speak 
personally to that, Mr. Chairman. I actually campaigned with 
Mr. Saad on the first time in some very, very Democrat areas of 
my district, and it was overwhelming, the support and 
admiration those communities had for Mr. Saad.
    The American Bar Association rated Judge Saad as qualified 
to sit on the U.S. Court of Appeals for the Sixth Circuit. The 
nomination, and I hope confirmation, of Judge Saad is a 
testament to the American dream and the ideals upon which our 
Nation is moored.
    Born in Detroit to parents of Lebanese descent, Judge Saad 
is the first person in his family to attend college. Now the 
son of a welder for one of Detroit's automakers stands on the 
threshold of becoming the first Arab American appointee to the 
Sixth Circuit Court. The importance of Judge Saad's nomination 
to our Nation's Arab American communities and really all 
minority communities cannot be understated. Hailing from 
Michigan, which possesses over 400,000 citizens of Arab 
descent, I am acutely aware of the positive message sent by 
Judge Saad's nomination to the Federal bench. At a time when 
many Arab American communities are suspect of their Government, 
the Arab American community needs Judge Saad as a role model.
    In addition to being a leader in Michigan's Arab American 
community, Judge Saad has continually sought to bring together 
people of differing faiths. He was a board member of the 
National Council of Christians and Jews after founding the 
American Arabic and Jewish Friends, which is now a subsidiary 
of the National Conference of Community and Justice.
    Distinguished attorney and former Labor Department 
Solicitor General George Salem said it best, and I quote, 
``Judge Saad has spent his career building good relations with 
all ethnic communities.''
    While diversity on the Federal bench, Mr. Chairman, is 
important, there is no doubt that Judge Saad also possesses the 
judicial temperament consistent with an independent Federal 
judiciary. However, do not just take my word for it. Here are 
what some of Judge Saad's colleagues, both Republicans and 
Democrats, have to say regarding his fitness for the Sixth 
Circuit Court of Appeals, and I quote:
    ``Judge Saad personifies the ideal judicial temperament we 
all seek and admire.'' Roman Gibbs, former Democrat Mayor of 
Detroit.
    ``Despite allegiances to different political parties, we 
almost always resulted in a consensus. Henry is known and 
respected as a scholar and great member of our court.'' 
Michigan Appellate Court Judge Mark Cavanaugh.
    ``Judge Saad has indeed sought common ground and often 
achieved it.'' Alan May, Vice Chair, National Conference for 
Community and Justice.
    I quote: ``Judge Saad is a person of the highest integrity 
and ability and a person deeply committed to the rule of law 
under the Constitution.'' Robert Sedler, professor of law and 
counselor to the American Civil Liberties Union.
    Those testimonials, Mr. Chairman, are all from individuals 
affiliated directly or indirectly with the Democrat Party in 
the State of Michigan. And they reveal that Judge Saad is the 
embodiment of the independent Federal judiciary. Additionally, 
it is my understanding that Jim Zogby, the president of the 
Arab American Institute and a prominent Democrat activist, is 
also sending a letter of support to the Committee on behalf of 
Judge Saad.
    Please allow me to share just a few more of these from two 
very, very respected jurists in Michigan's legal community.
    ``Judge Saad is one of the most thoughtful and fair-minded 
jurists on the court.'' Stephen Markman, Michigan Supreme Court 
Justice and former Senate Judiciary Committee staff member, and 
that ought to say it all for you, Mr. Chairman.
    Chairman Hatch. That says a lot.
    Representative Rogers. And I quote again: ``Henry Saad has 
distinguished himself as an independent jurist who respects the 
rule of law, the independent of the judiciary, and the 
constitutional role of the judiciary.'' Maura Corrigan, 
Michigan Supreme Court Chief Justice.
    Now, in the courtroom, Judge Saad has served the citizens 
of Michigan with competence and integrity. He has significant 
appellate experience in both civil and criminal matters, 
authoring well over 75 published majority opinions. The respect 
afforded Judge Saad is best exemplified by the broad bipartisan 
support of his nomination to the Federal appellate bench. 
Groups as disparate as the United Auto Workers and the Michigan 
Chamber of Commerce have endorsed his nomination.
    Furthermore, Judge Saad was asked to serve on the Iraqi 
Advisory Committee of the American Bar Association by former 
Detroit Mayor and incoming American Bar Association President 
Dennis Archer.
    Like any public servant, Judge Saad is dedicated to 
improving the law and helping his State and local community 
through volunteer work. Judge Saad was the Chairman of the 
board of the Oakland Community College Foundation, president of 
the Wayne State University Law School Alumni Association, and 
he is currently a member of the Board of Visitors of the Ave 
Maria Law School.
    Additionally, in 1997, Judge Saad received the Salute of 
Justice, John O'Brien Award for Outstanding Volunteer Service 
to the People of Oakland County. In 1995, he received the Arab-
American and Chaldean Council Civic and Humanitarian Award for 
Outstanding Dedication to Serving the Community with Compassion 
and Understanding.
    I think, Mr. Chairman, we have made quite clear his 
qualifications, and the good news in all of this is my two 
esteemed colleagues in the Senate, Senators Levin and Stabenow, 
don't question the qualifications of Henry Saad to serve on the 
U.S. Circuit Court of Appeals. But while my primary mission 
today is to introduce my good friend and distinguished jurist, 
I would be remiss if I did not take the opportunity to address 
the emerging judicial crisis surrounding the Michigan nominees 
of President Bush to the Sixth Circuit.
    The fact is today represents the first hearing for a 
Michigan judicial nominee for over 2\1/2\ years into the Bush 
administration. Just as there is no dispute over Judge Saad's 
qualifications to serve on the Sixth Circuit, the same holds 
true for the remaining three Michigan nominees to the Federal 
appellate bench. The other judges--Honorable Richard Allen 
Griffin, Honorable David McKeague, and Susan Bieke Neilson--are 
all distinguished jurists who have served the citizens of 
Michigan with competence and integrity. All of Michigan's four 
appellate nominees have received favorable ratings from the 
American Bar Association and have widespread bipartisan support 
and respect from the legal community.
    Senator your decision today to initiate hearings on the 
Michigan Four, as they have become known back home, is 
commendable, but only a start. Fairness to these judges and to 
the American citizens who seek the timely administration of 
justice requires that these nominees be provided not only a 
hearing but also a vote in the full Senate. The continued 
wholesale blocking of Michigan nominees, despite their 
unquestioned merit, is inconsistent with the dignified 
traditions of the United States Senate.
    Of course, it should also be noted that the wholesale 
blockade of Michigan nominees also extends to district court 
nominees Thomas Luddington and Dan Ryan as well.
    Moreover, the Sixth Circuit is critically understaffed as 
these nominees have been nominated to fill vacancies that have 
been designated--and I repeat again because it is this 
important, Mr. Chairman--by the non-partisan National Judicial 
Conference as ``judicial emergencies''--again, unprecedented.
    Additionally, the United States Attorney's Office for the 
Eastern District of Michigan issued a formal letter indicating 
that the severe understaffing in the Sixth Circuit hinders 
effective prosecution of criminal cases. Post-9/11, with all 
going on in the world today, Mr. Chairman, hardly do we find 
that acceptable circumstances. Again, unprecedented.
    In fact, the partisanship currently surrounding the 
Michigan Four is a recent phenomenon because there is a strong 
record of bipartisanship relating to former President Clinton's 
Federal judiciary nominees from Michigan, and I just want to go 
over these real quickly, Mr. Chairman, if I may.
    Michigan Senator Spencer Abraham, a Republican, supported, 
even chaired the confirmation hearing for Hon. Eric Clay, who 
was President Clinton's first nominee to the Sixth Circuit 
Federal Court of Appeals. With then-Senator Abraham's strong 
support, Judge Clay was the first Clinton administration 
Federal appellate court nominee to get a hearing in the 105th 
Congress and the second to be confirmed by the Senate. Of 16 
judgeships on the Sixth Circuit, Judge Clay continues to be the 
only Michigander.
    The bipartisanship during the Clinton administration did 
not end with Judge Clay. Then-Senator Abraham also supported 
Clinton Federal district court nominees Arthur Tarnow, George 
Steeh, Victoria Roberts, Marianne Battani, and David Lawson. 
These five judges, all with Senator Abraham's support, are now 
judges on our Federal court.
    As you see, the partisanship surrounding Michigan judges is 
only of recent vintage. Unfortunately, Mr. Chairman, the 
citizens of Michigan are in grave jeopardy of losing Michigan's 
voice on the Sixth Circuit. Four seats, one-quarter of the 
circuit's membership, hang in the balance, and it would be an 
injustice for the people of Michigan to lose their 
representation in the judicial process.
    Mr. Chairman, as elected officials, we should work together 
to promote the system of justice that is timely, fair, and 
ensures Michigan's residents are represented by Michigan 
judges. Again, this hearing is a step in the right direction, 
and I applaud you for the courage to proceed with this hearing 
and steadfastly urge without delay the swift confirmation of 
Judge Henry William Saad to the U.S. Court of Appeals for the 
Sixth Circuit.
    Mr. Chairman, I thank you, and I would ask that this place 
be the place where we seek justice and not seek retribution for 
at least perceived wrongs in the past. The fact that we do have 
a whole series of unprecedented events with the judicial 
emergency declaration and the Assistant United States Attorneys 
declaring the dangers of the vacancies of this court, I applaud 
again your courage for having this Committee hearing and 
nomination process, and I would hope that we could find that 
thoughtful debate and end what unfortunately has become a very 
partisan temper tantrum and come to the conclusion that justice 
should be brought to the people of Michigan in the Sixth 
Circuit. And I thank you very much, Mr. Chairman and Ranking 
Member, for the opportunity to testify today.
    Chairman Hatch. Thank you, Congressman Rogers. We 
appreciate your taking the time--
    Senator Leahy. Mr. Chairman, if I might, when you finish, I 
want to say something while he is still here.
    Chairman Hatch. Sure. We appreciate your taking time to 
come over.
    Senator Leahy. I want to say it while he is still here.
    Chairman Hatch. No, I understand. If you will wait so 
Senator Leahy can also make a comment. I know it is tough to 
give this kind of time over on this side of the Hill, but we 
are happy to have you here, and we appreciate your remarks.
    Senator Leahy would like to say something.
    Senator Leahy. I also thank the Congressman for coming over 
here. He has been very patient. He has been here all morning, 
and I know with his workload that is also difficult, and his 
willingness to come here when he is not in session, when the 
other body is on recess, so I appreciate doubly your taking the 
time.
    Representative Rogers. Thank you, Senator.
    Senator Leahy. I was a little bit concerned hearing some of 
your statistics, and I know you did not intend this impression. 
But when you spoke of the vacancies, you understand that for 5 
years there were nominees by President Clinton to fill some of 
those vacancies. They were never allowed to have a hearing or a 
vote. Had they been allowed that, had President Clinton's 
nominees been allowed to even be voted on, there wouldn't have 
been a vacancy.
    When I became Chairman, I very quickly after I became 
Chairman, even though these vacancies were all--by sworn 
statement, were kept vacancies so that President Clinton 
couldn't nominate anybody. Notwithstanding that, shortly after 
I became Chairman, I held the first hearing on a Sixth Circuit 
nominee in, I think, 5 years. It was President Bush's nominee. 
And we have now confirmed four. We have actually had--since 
then we have had a 50-percent increase between the time I was 
Chairman and Senator Hatch again was Chairman, we have had a 
50-percent increase in the number of active judges on the 
court, four judges confirmed--Rogers, Gibbons, Sutton, and 
Cook. I just didn't want to leave the impression that nothing 
has been done nor that vengeance was taken because people 
nominated by President Clinton for the Sixth Circuit were not 
allowed to have hearings.
    In fact, as I said, the first such hearing in 5 years was 
one I held on one of President Bush's nominees, and we have put 
in four judges and confirmed four judges to that circuit since 
then.
    Chairman Hatch. Well, maybe before you leave, Congressman, 
if you could give a few more minutes, we have a vote on, but I 
will just make some short comments, and then we will go to the 
vote and recess and come right back.
    Let me first point out that the current controversy about 
Michigan nominees dates back more than a decade. At the end of 
President George Herbert Walker Bush's administration, Bush I, 
two Michigan nominees to the Federal courts, John Smetanka and 
Henry Saad--who is before us today--never got hearings in the 
Democratic-controlled Senate and failed to attain confirmation. 
Judge Saad has been waiting for 11 years.
    As President Clinton named his nominees to fill judicial 
vacancies, there was no expectation, let alone demand, that the 
two previous nominees be renominated by a new administration. 
Accordingly, President Clinton did nominate Michigan nominees 
to both the Sixth Circuit and the district courts. In fact, 
nine of those nominees were confirmed. A majority were 
confirmed during Republican control of the Senate; in other 
words, Clinton nominees.
    Two nominees, Helene White and Kathleen McCree Lewis, 
failed to attain confirmation. Now, I feel badly about that. 
The primary criminal for their failed nomination was the lack 
of consultation with one of the home State Senators, which is 
an absolute must in this process. And there was none.
    In his letter to the then-White House Counsel Beth Nolan, 
Senator Abraham wrote to express his astonishment and dismay 
that President Clinton forwarded the nomination for a Sixth 
Circuit seat without any advance notice or consultation. What 
was particularly troubling was that Senator Abraham had worked 
with the previous White House counsel, Mr. Ruff--a great man, 
by the way--to improve the consultation process.
    In fact, despite previous difficulties, Senator Abraham had 
fully cooperated with the administration in advancing the 
nominations of a number of Michigan nominees. Unfortunately, 
the situation again deteriorated, and the White House reverted 
to its previous pattern of lack of consultation.
    In fact, Senator Abraham was not consulted and, in fact, 
was told by the White House counsel that, despite earlier 
representations, the administration felt under no real 
obligation to do anything of the kind, which is unprecedented. 
And because of the White House's lack of consultation, the 
nominations of the two individuals did not move forward.
    Now, this was consistent with both Democrat and Republican 
well-stated policy communicated to Mr. Ruff, that if good-faith 
consultation has not taken place, the Judiciary Committee will 
treat the return of a negative blue slip by a home State 
Senator as dispositive and the nominee will not be considered.
    Now, I also want to note that today's hearing is not 
unprecedented. There have been nominations where negative blue 
slips were returned and a Senator's objection was certainly 
considered, but did not stop the process or necessarily defeat 
the nomination. For instance, Albert Moon was nominated in 
October 1985 to be United States District Judge for the 
District of Hawaii. Although both home State Senators returned 
negative blue slips, a confirmation hearing was held in late 
November 1985. Mr. Moon's confirmation was held over by the 
Committee in December 1985 in business meetings, and the 99th 
Congress adjourned before action on the nomination could be 
completed.
    Other examples are the nomination of John C. Shabazz, 
nominated to be U.S. District Judge for the Western District of 
Wisconsin, and the nomination of Judge John L. Coffey, of 
Wisconsin, to be U.S. District Judge for the Seventh Circuit. 
In both cases, Senator Proxmire returned blue slips prior to 
the Committee hearing, noting his objection to the nomination.
    In the case of Judge Shabazz, Senator Proxmire also 
appeared and testified at the Committee's business meeting 
regarding his opposition to the nomination. Both confirmations 
were favorably reported by the Committee, and both were 
confirmed by the Senate.
    While Senator Biden was Chairman, the Committee considered 
the nomination of Vaughn R. Walker to be U.S. District Judge 
for the Northern District of California. Senator Cranston 
opposed, the Democrat Senator at that time opposed this 
nomination, sending letters to President Bush and Senator Biden 
expressing his opposition. In November 1989, the Committee 
favorably reported the nomination and the full Senate confirmed 
Mr. Walker by unanimous consent.
    Now, just to make the case a little more clear, I don't 
feel good about Helene White and Kathleen McCree Lewis. But, of 
course, I had nothing to do with the problem, and the problems 
were created by the Clinton White House.
    Now, I would like nothing better than to work this out in a 
bipartisan way, and I have already talked to both Senators from 
Michigan and expressed that to them, and I will work to do 
that. This has been an embarrassing thing.
    But let me just make the record clear with this chart. The 
record is clear that previous Presidents were treated fairly by 
the Senate. It is time to give President Bush the same courtesy 
and move forward with his Michigan judges to the Sixth Circuit 
and to the district courts.
    And, by the way, my comments about if two negative blue 
slips are returned that person is basically dead referred to 
district court nominees. We are talking about circuit court 
nominees. And I don't know of any cases where circuit court 
nominees have not been given at least a hearing and a vote. 
There may be some, but I cannot think of any off--
    Senator Sessions. Mr. Chairman, could I comment on that?
    Chairman Hatch. Could I just finish this?
    Senator Sessions. All right.
    Chairman Hatch. Then I would be glad to have you comment.
    Senator Leahy. I will go first.
    Chairman Hatch. I have to go to the Ranking Member first, 
and then I will come to you.
    The record is clear that previous Presidents were treated 
fairly by the Senate, and I think President Bush deserves the 
same type of courtesy that the previous Presidents had, 
including President Clinton. And I think we should move forward 
with these Michigan judges to the Sixth Circuit and the 
district courts.
    Now, on this chart, during the current Bush Presidency, the 
Senate has confirmed no Michigan judges in almost 2 years. Six 
nominations are pending and have been for quite a while.
    During the Clinton Presidency, if you will notice there, 
the Senate confirmed nine Michigan judges, and I was Chairman 
for six of those years.
    Although two Michigan nominees were left unconfirmed at the 
end of the Clinton Presidency--Helene White and McCree Lewis--
two nominees were also left without hearings at the end of 
President Bush I when he ended his term in 1992.
    Now, during the first Bush Presidency, the Senate confirmed 
six Michigan judges, and two nominations were returned to the 
President.
    So for those who like to keep score and who think that is 
the way to do this, the Michigan judge tally would be as 
followed: the current President Bush, zero for six. Zero. Can't 
even get a vote up or down in Committee. And up to now, lots of 
complaints about even holding hearings. But we have reached a 
point where the leadership has said these hearings have to go 
forward, and I think they are right. And we have given plenty 
of consideration to the negative blue slips, and I am going to 
give even more by trying to work out some bipartisan compromise 
if I can. But it is going to have to be a decent compromise.
    Bush II, zero for six, the current President Bush. 
President Clinton got nine; two didn't make it. The prior 
President Bush, Bush I, got six but two didn't make it.
    So when we talk about these things, we have got to get all 
the facts here, and, frankly, again, I will say that I don't 
feel good about this controversy. I happen to like both 
Michigan Senators. I like Spence Abraham, too, and he was not 
without honor here. He was right in what he did. And everybody 
knew it here. So to now try and paint that like President 
Clinton was not being treated fairly is just not quite 
accurate, especially under those circumstances, because I was 
here and they did not even deign to talk to Senator Abraham, 
which is something that has to be done, no matter who is in the 
Presidency. And I believe this administration has been doing a 
good job.
    Now, some Democrats interpret it that unless they do what 
the Democrat wants them to, he is not consulting. Well, that is 
not what consultation is.
    So I just wanted to make those points. I will turn to 
Senator Leahy, and then I am going to finish with--
    Representative Rogers. Well, I think the numbers are in 
your favor, Mr. Chairman, and I appreciate your effort for 
justice, not retribution.
    Senator Leahy. If I might, Mr. Chairman, now that you have 
recognized me--
    Chairman Hatch. Sure.
    Senator Leahy. And I certainly don't want to cut off 
Congressman Rogers. I want him to have time, too. But for those 
who think we don't always agree on things, I happen to 
absolutely agree with Senator Hatch that it is important to 
have all the facts, and two of them were sort of overlooked in 
this.
    One, we talked about Henry Saad being sent up here by 
former President Bush and not given a hearing. The little thing 
that was overlooked, it was 6 days before the end of the 
session. A number of nominees, quite a large number of 
nominees, were sent up by former President Bush just a few days 
before the end of the session. It was made very clear by folks 
at the Bush White House that they knew they would not get a 
hearing under the so-called Thurmond rule, Strom Thurmond's 
longstanding rule that within 6 months of an election you don't 
hold hearings on judges unless you have both the Chairman and 
Ranking Member and both party Leaders agree. And I don't know 
anybody who has ever had a hearing 6 days before you are about 
to adjourn.
    But they were sent up for two reasons: one, former 
President Bush fully expected to get re-elected; but, secondly, 
it was a nice political thing to lay out a number of these 
judges in different parts of the country and say now here is 
the kind of people I want for my next term. Nobody, Republican 
or Democrat, in my 29 years here has ever expected somebody to 
be confirmed 6 days before adjournment, nor did former 
President Bush. I think what he expected to do was be re-
elected, and he was just going to put all these people in early 
on in the next year. That is just one fact that should be put 
out.
    Another one, when we talk about procedures of past 
Chairmen, my Chairman is this man. He is my Chairman, and I 
want to talk about his procedure, which is this: Never once, 
never once, when it was a Democratic President did he violate 
the blue slip rule. And those negative blue slips were all from 
Republican Senators--
    Chairman Hatch. Ronnie White.
    Senator Leahy. Never once.
    Chairman Hatch. Ronnie White.
    Senator Leahy. Never once did he--you actually had 
favorable blue slips on Ronnie White, and then when--
    Chairman Hatch. Negatives.
    Senator Leahy. No, you had two positives. He was voted out 
of Committee, and then Senator Ashcroft said, wait, I have 
changed my mind, I am not in favor of him. And Senator Bond--
    Chairman Hatch. At the time of the vote there were two 
negative blue slips.
    Senator Leahy. Yes, well--
    Chairman Hatch. And he got a vote. He got a vote. Our 
people aren't getting votes.
    Senator Leahy. He got sandbagged.
    Chairman Hatch. We are being filibustered.
    Senator Leahy. He got sandbagged and you know it.
    I am going to go vote, speaking of votes.
    Chairman Hatch. All right. Senator Sessions?
    Senator Sessions. I was going to recall, Mr. Chairman, your 
leadership in opposing a movement when President Clinton was 
President to expand the power of the blue slip to circuit judge 
nominees, and Republicans wanted to do that. You said that we 
should not do that, we should maintain the position that on a 
circuit nominee, a blue slip was not dispositive. And you stood 
firm on that, and we had a vote on it, and your position 
prevailed.
    You have shown integrity and consistency in these issues.
    Chairman Hatch. Can I interrupt you on that? You know, it 
was not unreturned blue slips that prevented hearings for 
Clinton nominees. It was the utter lack of consultation by the 
Clinton White House with home State Senators that prevented 
those nominees from going forward and getting votes. That is a 
rule that really we have always honored around here.
    Now, look, there are some nominees I wish could have gotten 
through. I think I have expressed that. But I acted in good 
faith to move as many judicial nominees as I could, and I think 
my record is pretty darn good. It was much better than the 
record when the Democrats controlled the Congress.
    I don't want to go into all the statistics. We have been 
through them before, but the fact of the matter is it was much 
better. And I get a little tired of this partisanship that 
keeps coming up with selective recollections.
    Sorry to interrupt you, Senator, but to be honest with you, 
this is the third nomination of Judge Saad, and he hasn't been 
given the time of day until now. I think it is time to start 
giving people at least the time of day. And, frankly, these 
nominees deserve up-and-down votes. Maybe they will be 
defeated. I don't know. But they deserve--the President 
deserves up-and-down votes, and especially when they get out of 
Committee and get to the floor, and especially when they are on 
the floor. We have never in the history of this country had a 
filibuster, a true filibuster against a judicial nominee until 
this President. And, frankly, it is not only unjustified, it is 
reprehensible what is going on.
    I am sorry to keep you here, but I think it is important--
    Representative Rogers. Absolutely, Mr. Chairman.
    Chairman Hatch. --that you report back to our friends in 
Michigan that this is not quite as clear-cut as our friends on 
the other side are trying to make it. In fact, it isn't the way 
they are trying to make it.
    Senator I am sorry to interrupt you.
    Senator Sessions. Well, John Smetanka was a United States 
Attorney with me. He was a brilliant guy, a decent person. 
Everybody liked him, moderate in demeanor and philosophy, 
studied at Catholic Seminary, just in every way a fine person. 
He sat over a year and never got a vote. And I remember that 
one distinctly. We were all just very concerned, his fellow 
United States Attorneys were, that he was denied that.
    The first 9 nominees out of 11 that President Bush sent 
forward never got a hearing, I do not believe. Nine of the 11 
never even got a hearing when the Democrats controlled this 
Committee for almost 2 years. That was an unprecedented 
blocking of nominees. I have never--I don't think we have ever 
seen that.
    When we first started this new Congress and President Bush 
was elected, the Democrats demanded, after having complained 
about blue slip policies when President Clinton was President, 
they demanded enhanced power to block nominees with a blue 
slip. You remember that? It was very intense. They just 
demanded they have even more power to block nominees, and 
hopefully that didn't happen.
    Another unprecedented thing happened. Two nominees for the 
circuit court were voted down in Committee, Priscilla Owen and 
Pickering. No Clinton nominees were ever voted down in 
Committee the entire time you were Chairman, Mr. Chairman.
    Chairman Hatch. That is right.
    Senator Session. We had filibusters in Committee. That has 
never been done before, and you finally invoked the power of 
the Chair to call a vote, which you have the power to do, to 
end the filibuster in Committee, and we have had filibusters on 
the floor of the United States Senate for Federal judges, which 
has never occurred in the history of this country.
    So for the Democrats to suggest that they are somehow 
carrying on in the fashion that was carried on when President 
Clinton was nominating and Republicans had the majority here is 
just wrong. They have changed in a whole lots of ways and using 
a blue slip to block every nominee, four of them en bloc, 
without stating any objection for them, is such an abuse of 
that policy, I think we just simply have got to confront it, 
Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    We have got to get over. We are late for a vote. But let me 
just say this: There has been a rumor that somebody on the 
Democrat side might invoke the 2-hour rule. I hope that is not 
true, but that has been a rumor. But if they do--and they would 
have a right to, although I think it would not be good faith in 
my eyes. But if they do, then we will have to recess until the 
end of the session today, and we will continue to finish this 
hearing by the end of the day. So I just want to make everybody 
aware that that is not going to stop this hearing from going 
forward. It is just going to make it inconvenient and miserable 
for everybody if that happens to occur. I hope it will not, and 
I hope that is just a rumor. But I have heard it, and I just 
thought I would make that clear so everybody will understand.
    I want to thank you for your patience, for being here, and 
for your kind remarks.
    Representative Rogers. Thank you, Mr. Chairman.
    Chairman Hatch. And I want to thank the other two Senators 
as well. I appreciate their position. I appreciate their 
feelings. And I want to try and help them and help Michigan, if 
I can. But I sure as heck think we ought to get up-and-down 
votes for these people.
    Representative Rogers. Thank you for your passion, Mr. 
Chairman.
    Chairman Hatch. With that, we will recess until I can get 
back.
    [Recess 12:20 p.m. to 12:44 p.m.]
    Chairman Hatch. I am going to wait just a few more minutes, 
and then I am going to start. I hate to start without Senator 
Leahy, but I have been waiting for almost 15 minutes. I know 
there is not a follow-up vote. So I hope the Democrats will 
send somebody in here for this hearing, but if not, we will 
proceed.
    I have been informed by my counsel that Senator Leahy said 
to go ahead and start. So, Judge Saad, we are going to ask you 
to come forward. Please 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 Saad. I certainly do. Thank you.
    Chairman Hatch. Thank you.

STATEMENT OF HENRY W. SAAD, NOMINEE TO BE CIRCUIT JUDGE FOR THE 
                         SIXTH CIRCUIT

    Judge Saad. Shall I be seated, Mr. Chairman?
    Chairman Hatch. You surely can. We are very honored to have 
you before the Committee. You have an excellent reputation, as 
has been explained here by the Congressman, and I am well aware 
of it myself, having followed this saga now for the last 11 
years. And I intend to see that you are treated fairly, and I 
intend to see that their nominations are treated fairly, if we 
can, when they achieve the Presidency. But the point I have 
been making is I don't think President Bush has been treated 
very fairly, although I think we treated their nominees as 
fairly as I could under the circumstances.
    Now, we are honored to have you here with members of your 
family and your friends, some of your friends. Would you care 
to make a statement before the Committee?
    Judge Saad. The only statement I would like to make, Mr. 
Chairman, is that I am absolutely pleased and honored to be 
here. I have had a great respect as a student of government for 
our Government in total, what our Founding Fathers did for this 
Senate, and its traditions, and I respect and honor what you 
are doing and what the Senate Committee is doing, and I am 
prepared to answer any questions that you may have.
    [The biographical information follows:] 
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    Chairman Hatch. Well, thank you. I appreciate that.
    I was going to turn to Senator Leahy first and have him ask 
whatever questions he felt inclined to do, but let me at least 
start it, and hopefully he will arrive or one of the Democrats 
will. Usually we have at least one who will represent the 
Democrats.
    Judge Saad, you have a lot of experience as a practicing 
attorney, as a teacher of law, as a State appellate judge. How 
has this experience prepared you to be a judge on the Sixth 
Circuit Court of Appeals?
    Judge Saad. Thank you, Mr. Chairman, for that question. I 
think the most important quality of an appellate judge is the 
ability and the willingness to listen to both sides, to give 
the litigants and the attorneys who argue before the court the 
respect due the positions they have.
    Chairman Hatch. Thank you. I have--
    Judge Saad. To keep--I'm sorry.
    Chairman Hatch. Keep going. I am sorry. I thought you were 
through. Go ahead.
    Judge Saad. To keep an open mind, not to pre-judge matters, 
to give both the--not only the fact of impartiality but the 
appearance of impartiality. I've had the honor of teaching 
legal ethics, what we call professional responsibility, in one 
of our local law schools. And what we teach the students and 
what I have tried to teach interns, externs, anybody that I 
work with, is that you accord the parties a fair hearing, you 
keep an open mind. You're governed by the rule of law, not your 
own intuitions. And, indeed, as complicated as the law is these 
days, if we just go by gut instinct and intuition, I think all 
of us who are lawyers know that you would end up with some 
difficulty.
    The real purpose of appellate review is to make, at least 
in our court, as an intermediate appellate court in Michigan, 
is to be an error-correcting court, to follow the rule of law, 
which means also to follow the rule of law that governs our 
conduct as judges, so that if the standard of review is clearly 
erroneous or de novo or abuse of discretion, those rules govern 
us. So we abide by the rules, and we give people a fair 
hearing, keep an open mind.
    Chairman Hatch. Well, thank you.
    Let me interrupt for a second and put the statement of 
Senator Richard Durbin into the record at the appropriate 
place.
    You have been active in a number of legal, civic, and 
charitable organizations. Could you please explain to the 
Committee what you have done to reach out to all segments of 
society and what results you feel that you have achieved in 
doing this type of work?
    Judge Saad. Well, I think it is important for a lawyer and 
our professional rules of responsibility say that it's 
important for a lawyer to give back to the community. So as a 
lawyer, I was involved in, as I'm sure the record will show, 
numerous charitable and legal organizations: Wayne County 
Neighborhood Legal Services, which provided legal service to 
the poor; New Detroit, which tried to seek some common ground 
with some of the issues that Detroit faced in the mid- to late 
1960's. I've worked with the National Conference of Christians 
and Jews for outreach and ecumenical purposes. Teaching law 
school is another way to give back to the community. I teach at 
two local law schools, and I'm on an advisory board of a third. 
And the list can go on, but I don't want to take all your time 
going through all that. But I think it's very important in all 
of these outreach activities.
    I've also worked with various committees of the American 
Bar Association over the years. I've worked on committees of 
the Michigan Bar Association, the Detroit Bar Association. So 
giving back to your profession both by working through 
committees of the various bar associations and I think your 
ethnic and religious communities for purposes of bringing 
people together is very important. And then I think the 
litigants in your courtroom have the impression that not only 
are you somebody who takes the law seriously, but you take your 
role as a human being in giving back to society very seriously.
    Chairman Hatch. I know you very well. I know your 
reputation. I know what you have done. I have a tremendous 
amount of respect for you. I don't see any reason to ask you 
any further questions.
    I think what I am going to do, though, is ask you to stay 
here because I have been informed that perhaps Senator Edwards 
will be coming. I would like to give any Democrat who wants to 
ask any questions some time with you.
    Judge Saad. I would be pleased to do that, Mr. Chairman.
    Chairman Hatch. I hate to have you just sit and wait, but I 
want to be fair to my colleagues.
    Judge Saad. I would be pleased to wait at your discretion.
    Chairman Hatch. Well, thank you so much. Then what I will 
do is I will begin with the other district court nominees, and 
I will move ahead with them. But if any of the Democrats 
arrive, I will have to interrupt them so that they can get back 
to you, if that is all right with the district court nominees 
as well.
    Judge Saad. Okay.
    Chairman Hatch. So, with that, we will ask you to stick 
around for a while. I won't keep you all day. If nobody shows 
up, they won't show up.
    Judge Saad. Thank you, Mr. Chairman. I'd be happy to. Thank 
you.
    Chairman Hatch. Okay. Thank you.
    Chairman Hatch. Then if I could have Larry Alan Burns, Glen 
E. Conrad, Henry F. Floyd, Kim R. Gibson, Michael W. Mosman, 
and Dana Makoto Sabraw all take your seats, I would appreciate 
it. Well, if you could all raise your right hands, if you 
would. Do you solemnly swear to tell the truth, the whole 
truth, and nothing but the truth, so help you God?
    Judge Burns. I do.
    Judge Conrad. I do.
    Judge Floyd. I do.
    Judge Gibson. I do.
    Mr. Mosman. I do.
    Judge Sabraw. I do.
    Chairman Hatch. Thank you very much. Please take your 
seats, and we will go from my left to your right. And we will 
start with you, Judge Burns, if you have any comments you would 
care to make. I think most of you have introduced your family 
and your friends, but those of you who haven't might want to 
take the opportunity to do that. In that regard, we welcome all 
of you here. This isn't always the most pleasant Committee to 
watch or to sit through. It has become one of the most partisan 
committees I have ever sat on, and, frankly, it gets really old 
to me. But that is the way it is, and it is a great Committee 
and we have great people on this Committee, people of 
tremendous ability, but a lot of deep feelings. And so I 
apologize in part for the Committee and the way we act from 
time to time, but there are some deep, strong feelings, and I 
think people need to know that.
    Judge Burns, we will start with you. You need to press this 
little button in front. You will see a little red light come on 
if you press it lightly.
    Judge Burns. I think I did it.
    Chairman Hatch. Okay. You will all need to do that.

STATEMENT OF LARRY ALAN BURNS, NOMINEE TO BE DISTRICT JUDGE FOR 
              THE SOUTHERN DISTRICT OF CALIFORNIA

    Judge Burns. I have no opening statement. I want to 
reiterate what Judge Saad said. I'm pleased to be here. I thank 
the Chairman and the Committee for holding a hearing and am 
looking forward to answering any questions the Committee may 
have.
    [The biographical information follows:] 
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    Chairman Hatch. Well, thank you.
    Judge Conrad?

 STATEMENT OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE FOR 
                THE WESTERN DISTRICT OF VIRGINIA

    Judge Conrad. Senator, likewise, I'm very pleased to be 
here. It's not very often that we in the judiciary get to see 
our representative Government at work, and it's thrilling for 
me to attend this hearing and to participate and to answer the 
Senators' questions.
    [The biographical information follows:] 
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    Chairman Hatch. Well, you are a glutton for punishment if 
you want to see this representative Government.
    [Laughter.]
    Chairman Hatch. No, I appreciate that. I am just trying to 
be humorous.
    Judge Floyd?

 STATEMENT OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE FOR 
                 THE DISTRICT OF SOUTH CAROLINA

    Judge Floyd. Thank you, Mr. Chairman. I have no opening 
statement except to reiterate that I'm glad to be here and I 
appreciate the opportunity to have this hearing and answer your 
questions.
    [The biographical information follows:] 
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    Chairman Hatch. Well, thank you so much.
    Judge Gibson?

 STATEMENT OF KIM R. GIBSON, NOMINEE TO BE DISTRICT JUDGE FOR 
              THE WESTERN DISTRICT OF PENNSYLVANIA

    Judge Gibson. Thank you, Mr. Chairman. I don't have any 
opening statement either. I want to express my appreciation to 
the Committee for having me here and what a great honor it is 
to appear before this body, and especially nice is the fact 
that a lot of my family could be here with me, and I'm sure 
it's something they'll always remember.
    [The biographical information follows:] 
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    Chairman Hatch. Well, thank you so much.
    Mr. Mosman?

 STATEMENT OF MICHAEL W. MOSMAN, NOMINEE TO BE DISTRICT JUDGE 
                   FOR THE DISTRICT OF OREGON

    Mr. Mosman. Thank you, Mr. Chairman. I also have no opening 
statement. I'm honored to be here and prepared to answer this 
Committee's questions.
    [The biographical information follows:] 
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    Chairman Hatch. Well, thank you so much.
    Judge Sabraw?

 STATEMENT OF DANA MAKOTO SABRAW, NOMINEE TO BE DISTRICT JUDGE 
            FOR THE SOUTHERN DISTRICT OF CALIFORNIA

    Judge Sabraw. Thank you, Mr. Chairman. Like my colleagues, 
I do not have an opening statement, but I am honored and 
delighted to be here and happy to answer any questions.
    [The biographical information follows:] 
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    Chairman Hatch. Well, let me tell you how honored we are to 
have all of you here. It is a terrific thing for us, and, 
frankly, I feel very, very good about all of your willingness 
to serve. It seems to me that we are blessed to have people of 
your quality willing to give up what really is a lucrative 
profession to serve at the level that you are willing to serve. 
It is not easy in this day and age, and we are finding that 
there are some people who will not accept these positions 
because of the low pay in comparison to what they make as 
lawyers. But there are many, many others who really want to 
give service to our country, and I don't know of any entity 
that is more important than the third separated branch of 
Government, the Federal court system. So it is very, very 
important what you are doing, and we are very grateful to have 
all of you here.
    Let me start with you, Judge Burns. Before becoming a 
magistrate judge, you spent your career as a prosecuting 
attorney, primarily handling criminal cases. As a judge, the 
majority of the cases you have handled are civil in nature. How 
did you prepare yourself to make this transition from being a 
prosecutor, from litigating primarily criminal cases, to 
deciding primarily civil cases given your background?
    Judge Burns. Thank you, Senator, for giving me the 
opportunity to explain that.
    I had some experience in the business community. I served 
on a board of directors for a local bank in San Diego. I was 
the only lawyer on the bank for about 3-1/2 years and, as such, 
I managed our civil litigation. I didn't personally handle the 
cases, but I hired our outside counsel, and I monitored all of 
our legal activity.
    Aside from that, I found that the number of cases I tried 
as a prosecutor prepared me quite well to understand issues, to 
get to the important issues in a case, and to focus parties' 
attention on issues. And I found that the dichotomy between 
civil and criminal law in that regard wasn't as great as it 
seemed.
    Chairman Hatch. Okay. Thank you.
    As a former prosecutor, what assurances can you give to 
criminal defendants who appear before you that they will 
receive fair treatment in your courtroom?
    Judge Burns. Well, I can give them the assurance of a track 
record. I have been endorsed, as the Chair probably knows, by 
the criminal defense organizations in San Diego. There was that 
concern, of course, anytime a prosecutor takes the bench, but I 
think my record over the last 6 years has been one of being a 
balanced person who listens carefully to both sides and hits 
the ball right down the middle.
    Chairman Hatch. That is my belief.
    Mr. Conrad, Judge Conrad, you have spent practically your 
entire career as a United States magistrate judge. You are now 
being nominated for a lifetime position as a Federal judge in 
the District Court for the Western District of Virginia. In 
what ways has this prepared you? And I am also impressed by 
your desire that you have shown, which to me is a passionate 
interest, in educating future lawyers about Federal court civil 
procedure and practice and legal practice in the Western 
District of Virginia. Could you please talk a little bit about 
your longstanding involvement in continuing legal education as 
well?
    Judge Conrad. Thank you, Senator, for the opportunity to 
address those subjects.
    Yes, I have been a United States magistrate judge for many 
years, and public service was the field which I always wanted 
to enter. As for the question concerning preparation to serve 
as United States district judge, as you know, Senator, the 
function of the magistrate judge and United States district 
judge overlap to a very great extent, and I think it's a very 
good training field, a very good basis for preparation to serve 
in that higher office.
    We are committed in the Western District of Virginia to 
educating the younger lawyers about the Federal court, 
encouraging both litigants and attorneys to use the forum 
provided by the Federal court, not to be afraid of the rules 
and not to be afraid of the procedures, but to embrace those 
and use them to their clients' benefit. And I believe that 
we've been successful in making the Western District of 
Virginia a comfortable place and a user-friendly place to 
practice law.
    Chairman Hatch. Great.
    Judge Floyd, tell the Committee about your work on the 
Board of Commissioners on Grievances and Discipline, which, as 
I understand it, is empowered to deal with complaints against 
members of the bar and, of course, has a concomitant duty to 
make recommendations for disciplinary conduct and how this 
experience may have helped you to become a judge?
    Judge Floyd. Thank you, Mr. Chairman. I've had the 
opportunity to serve both on the Lawyers' Grievance Committee 
as well as the Commission on Judicial Conduct where we 
investigate and conduct hearings and make recommendations for 
disciplinary actions against attorneys as well as judges. That 
early on prepared me to become a circuit judge, because that is 
pretty much what I would do after I was sworn in as a circuit 
judge. It's a process of being open-minded and doing a thorough 
investigation and trying to be fair to all sides and reach a 
proper result.
    Chairman Hatch. Thank you.
    Judge Gibson, you have had a long and successful career in 
the United States Army, particularly as a Judge Advocate 
General. How has that prepared you for this current calling 
that you now receive from the President?
    Judge Gibson. Well, thank you for that question, Mr. 
Chairman. As well as many other life experiences that I've 
had--
    Chairman Hatch. One other aspect of that, too, though, just 
one other question so you can answer both at the same time. 
During your tenure on the bench, you have been instrumental in 
initiating the victim impact panels and the juvenile drug 
court, which is only the second court of its kind in 
Pennsylvania on which you serve as a judge. So I would like you 
to also include that in your explanation as to how that may 
have helped you and your reasons for starting those 
initiatives.
    Judge Gibson. Well, thank you very much, Mr. Chairman. With 
regard to your first inquiry about my experience in the Army, I 
think it helped me develop a sense of fairness and an ability 
to work with people and the ability also to make decisions when 
they need to be made and weigh all the factors and treat people 
with respect when you are doing that. And I try to do that with 
all the litigants and the counsel and witnesses who come into 
my courtroom.
    With regard to the juvenile drug court program that we 
initiated, you're correct that it was the second such court in 
Pennsylvania, and it has given me one of my most memorable 
experiences in the judiciary because we've been able to get 
kids to go back to school, complete grades, whereas, before, 
they had been failing. We've been able to keep them drug-free 
with the work of the whole Committee that we work with, working 
with their parents. And we do that by bringing them into court 
frequently and supervising and encouraging.
    As far as the victim impact panel, Mr. Chairman, before I 
took the bench, I went and sat and listened to a victim impact 
panel where the mother of someone who had been killed in a 
drunk-driving incident testified and stated what had happened 
to her. And I was so moved by it that I thought that anyone who 
came before the court for a drunk-driving type offense would 
benefit from hearing the terrible consequences that can occur 
from that. So we did initiate that, and we now require that as 
part of the probation and the diversionary programs that we do 
have.
    So I think both those programs have worked well.
    Chairman Hatch. Well, thank you.
    Mr. Mosman, you have spent quite a bit of time in your 
professional career in the U.S. Attorney's Office for the 
District of Oregon. I would like you to expand on how your 
experience there has prepared you to be a Federal judge, and 
let me just add another question so you can answer both at the 
same time.
    Having appeared before judges on many occasions during the 
course of your distinguished legal career--and you have a 
distinguished academic background as well, as do all of you--I 
am sure you have had ample opportunity to reflect on the 
quality of judge that you would like to become. And I would not 
mind hearing you describe briefly for the Committee what you 
think the proper role of a judge in our constitutional system 
is and what qualities you believe are necessary for a judge to 
fulfill a Federal judgeship role.
    Mr. Mosman. Thank you, Mr. Chairman. I think the principal 
thing about my career in the U.S. Attorney's Office that has 
helped me prepare for this nomination is my experience with 
many different criminal trials. I've had the opportunity 
perhaps in this kind of career to try more cases than I might 
otherwise have done. And so seeing those trials, participating 
in them, watching how that unfolds in Federal court has been 
very beneficial to me.
    I think also it's given me an opportunity to watch Federal 
judges in action and, as you have said, to ponder what it means 
to be a Federal judge, what those qualities are that make for a 
good Federal judge. I think I would go back to the time I had 
with Justice Lewis Powell, where I first really saw in action 
the kind of civility and decency and respect that he manifested 
constantly to litigants that really for me are the primary 
hallmarks of a great judge.
    Chairman Hatch. The reason I ask these questions in a very 
real sense is, having practiced in federal courts myself, and 
having had at least two major curmudgeon judges, trial judges, 
during my tenure, both very brilliant people--Wallace Gorley in 
the Western District of Pennsylvania and none other than the 
heralded and fabled Judge Ritter in Utah--we sometimes get the 
attitude around here that once you get to these lifetime 
appointments, the whole demeanor changes and it goes to some of 
the judges' heads where they think they--you know, they will 
acknowledge that they are the closest thing to godhood in this 
life, but some of them think they have actually achieved 
godhood. So we have to continually talk in those terms, that 
the service you give is service that should be fair to 
everybody--litigants, attorneys, people in the courtroom, 
witnesses, et cetera. And some judges go way beyond where they 
should go, in my opinion. And I just want to kind of hope you 
will always remember this discussion here in this hearing room 
today.
    Judge Sabraw, you have been recognized for your pro bono 
efforts by various Committee organizations in San Diego and 
surrounding areas. Now, would you agree that the most effective 
means for a judge to implement change in the Committee is not 
simply from behind the bench but, instead, must include direct 
interaction with the members of the community over whom he 
presides? And as an attorney, your litigation experience 
focused predominantly on civil matters, yet since your 
appointment to the bench, you have handled a varied docket. As 
a matter of fact, in 2000, you were named the Criminal 
Presiding Judge of the North County Division of the San Diego 
Superior Court.
    How do you think your litigation and judicial experience 
will best aid you in the challenges that await your 
confirmation on the bench for the Southern District of 
California?
    Judge Sabraw. Yes, thank you, Mr. Chairman. I think the 
opportunity I've had on the State bench is a wonderful platform 
for the Federal bench. I served on the State court for 8 years. 
Equally divided in those years, I've handled both civil and 
criminal cases. Prior to becoming the criminal supervising 
judge for the North County, I handled felonies exclusively, 
serious felony crimes of all sorts, and then 1 year as criminal 
supervising judge assigning out cases and handling all of the 
plea dispositions.
    Thereafter, and to date, I've served exclusively in a civil 
direct calendar department covering general jurisdiction, 
multi-party litigation cases. So I'm hopeful that that 
experience will feed directly into a smooth transition onto the 
Federal bench.
    Chairman Hatch. Well, thank you so much. I really 
appreciate it.
    I have looked over your careers and your resumes and your 
work that you have done, both outside the bench and on the 
bench. And I am really impressed with all of you, and I think 
everybody on this Committee should be impressed with all of 
you. And I hope that we can get you through. It is apparent we 
cannot get you through before the August recess. I would have 
to put you on tomorrow's markup, and I think that would be 
difficult to do under the current circumstances. But I will do 
everything in my power to put you on the markup when we get 
back and get you through as soon as possible, because every one 
of you will be filling seats that are drastically needed. And I 
have seen a lot of panels in my day and an awful lot of good 
people who are serving in the Federal judicial system, but I 
don't know that I have ever seen a better panel than this one.
    So I just want to compliment each and every one of you for 
being willing to participate, being willing to interrupt your 
careers, being willing to go on these lifetime, very lonely 
positions, because once you go on the bench it is pretty tough 
to really do a lot of things that you have been used to doing 
without serious criticism. So you do kind of go into a 
cloister, to a degree--not nearly as bad as the Supreme Court. 
I will never forget I went over there not too long ago, and one 
of the Justices came running up to me and said, ``Oh, a real 
human being.''
    [Laughter.]
    Chairman Hatch. He said, ``We never see any real human 
beings over here.'' I think he was excluding his clerks and 
secretaries, but the point is that it is a cloister and it is a 
difficult place.
    Now, Senator Edwards is here. I am through with my 
questions. I am through with my questions of this district 
panel, but we can come back to Judge Saad anytime you want to 
if you care to ask any questions of these folks.
    Senator Edwards. I don't, Mr. Chairman. Could I just make--
in fact, I don't need more than 60 seconds. I just wanted to 
make a quick point, and if you want to conclude with--
    Chairman Hatch. Well, why don't I release them, then, and 
tell you that we will do our best to get your through right 
after we get back from the recess. We will do everything in our 
power to do this for you, and I believe we will get you 
through.
    So, with that, we are going to release you and allow you to 
go. I just feel fortunate we were able to get this done, so 
thanks so much for being here. We appreciate your service. We 
appreciate your willingness to serve our country. Thanks so 
much.
    Judge Burns. Thank you, Mr. Chairman.
    Judge Conrad. Thank you, Mr. Chairman.
    Judge Floyd. Thank you, Mr. Chairman.
    Judge Gibson. Thank you, Mr. Chairman.
    Mr. Mosman. Thank you, Mr. Chairman.
    Judge Sabraw. Thank you, Mr. Chairman.
    Chairman Hatch. All right. Let's have Judge Saad come back 
up to the witness table. Senator Edwards would like to make a 
statement, and then we will go from there.
    Senator Edwards. Thank you very much, Mr. Chairman.
    Mr. Chairman, as you know, you and I and the White House 
worked very closely together to reach a consensus on Judge 
Allyson Duncan and her nomination to the Fourth Circuit Court 
of Appeals, which moved through the Committee quickly and moved 
through the United States Senate with strong support. I think 
it is an example of what can be constructively accomplished 
when we go about this process the right way, in a constructive 
way, and reach consensus about these nominees.
    My concern about Judge Saad is going forward with the 
nomination of a judge over the objection of both home State 
Senators. I think it is important not just for those Senators 
but for the process, for us to go about this in exactly the way 
we did with Judge Duncan, which I think is the process that 
works and the process that we should adopt as a model. And I 
just wanted to come for the purpose of--I don't have questions 
for the judge. I wanted to come for the purpose of expressing 
that, with all respect to the Chairman, who has worked with me 
on any number of issues. But on this particular issue, I think 
it is of great concern to me to go forward with Judge Saad over 
the objection of both of his home State Senators, particularly 
when we have a model like Allyson Duncan, which I think 
represents what we should be doing.
    And I would just ask the Chairman if I could put my full 
statement in the record.
    Chairman Hatch. Without objection, we will do that.
    [The prepared statement of Senator Edwards appears as a 
submission for the record.]
    Chairman Hatch. I agree with you, it is wonderful when we 
can have cooperation and everybody is working closely together.
    I think we have made a case that Judge Saad, in his third 
nomination and waiting 11 years, deserves to be considered and 
have a vote up and down. But there is a difference in feeling 
on this, and I acknowledge my colleagues and respect my 
colleagues in that regard.
    By the way, for the district court nominees, we are going 
to keep the record open, as we will with you, Judge Saad, if 
nobody else comes, we will keep the record open for written 
questions, and any Senator on this Committee can ask any 
questions they want, and we will keep the record open until 
next Monday. And hopefully the Senators will put their 
questions in writing, and that will give all of you a month to 
answer the questions, which is usually enough time.
    So, thank you, Senator.
    Senator Edwards. Thank you, Senator.
    Chairman Hatch. I think what we will do is just wait for a 
few more minutes and see if there are any other Democrats who 
would care to ask any questions.
    Sorry to do this to you, but I want to give my colleagues 
every chance to come and ask any questions they care to.
    Judge Saad. I understand the professional courtesy, Mr. 
Chairman. Thank you.
    Chairman Hatch. We will release the district court judges. 
I don't think there is anybody who is going to come and ask any 
questions. So if you would care to go, you have got our 
approval. But please answer your written questions as soon as 
you can.
    [Pause.]
    Chairman Hatch. I have been informed that there are no 
other Democrats who are planning on coming, but let the record 
show that we have been here for 3 hours, most all of which has 
been spent on Judge Saad. I am willing to spend all day, if 
necessary, to allow any Democrat the opportunity to question. 
This is the time to do so. But in the event none are going to 
come--and I have been informed they will not--we will keep the 
record open for them to file written questions.
    I don't see any reason for a further hearing. You have 
presented yourself. You have been here long enough, and 
everybody has really had an opportunity, and an ample 
opportunity, to come and ask you any questions they would care 
to ask. And I am hopeful that we can--I hope I can find some 
Solomonic way of resolving this impasse because the four 
circuit court of appeals judgeship nominees by this 
administration all appear to be excellent to me, and I think to 
the people of Michigan. And for the people of Michigan, this is 
not fair to have this impasse because the people of Michigan 
are not getting the judicial representation that they deserve, 
and ultimately if this continues on, I think it is going to be 
much to the detriment of the State. And I think we have made a 
pretty ample case that because of the lack of consultation, 
that is why the two judges did not get through, although nine 
did. And I was one of those who saw that they got through. And 
I would have seen that the other two got through had it not 
been for that type of inappropriate impasse.
    The administration, whichever it is, has an obligation to 
consult. I admit some of our Democrat friends think that 
consultation means approving whoever they want to approve, not 
the administration. Unfortunately, the Constitution doesn't 
back them up. The Constitution says the President has the power 
of nomination.
    Now, we do have the power of advise and consent, but that 
means a vote up and down. It means holding hearings and asking 
good questions, and maybe sending interrogatories or written 
questions. But it ultimately means a vote up and down. That is 
what the advise and consent process should be, especially where 
there has been consultation. And in your case, Judge Saad, 
there has been ample consultation, more than ample. In the case 
of Kuhl, overwhelming consultation with both California 
Senators, but especially Senator Boxer, who was the first one 
to withhold her blue slip or to send in a negative blue slip. 
And I think in every instance this administration has made an 
effort to consult with Senators up here of both parties. And in 
your case, they certainly have done so, and it isn't fair for 
good nominees like you and the others to be held up under these 
circumstances, and to be held up crying foul over Helene White 
and Kathleen McCree Lewis, both of whom are nice people. And I 
know of both of them. I knew Ms. Lewis' father, Wade McCree, 
and thought the world of him and would like to have helped her. 
But under the circumstances, I have to--there is only so much I 
can do, also.
    With regard to never having brought up a judge with two 
negative blue slips, it is basically true with regard to 
district court nominees. But I can remember when Ronnie White 
was brought up and both negative blue slips were there. I could 
have refused to go to a vote, but we went to a vote, and he at 
least got a vote up and down, which is something that is not 
being accorded the Bush nominees. And I might add--the Bush II 
nominees, we will put it that way, and many of the 54 holdovers 
that were left at the end of the Bush I administration, 
including you, Mr. Saad--Judge Saad, I should say.
    So I don't think there is a very good argument against 
voting up and down on your and the other three nominees, 
including the two district court nominees. There is a 
difference between withholding blue slips on district court 
nominees, I agree, when both Senators were against a district 
court nominee because those nominees are right in the State. 
They don't represent a multiple-State situation. So there is a 
difference between withholding blue slips on district court 
nominees than there is in withholding blue slips on circuit 
court of appeals nominees.
    Now, I would just point out with regard to Ronnie White, 
there were two negative blue slips by Republican Senators. I 
was the Chairman. And I could have taken the position that we 
shouldn't go to a vote. But we did. And he had a vote up and 
down. Now, admittedly, the second negative blue slip occurred 
shortly before that vote, but, nevertheless, it was negative. 
But the Republicans did vote up and down. He was the only one 
that I recall voted down by the Republicans in the Senate in 
the Clinton years. Everybody else who was brought up had a vote 
up and down and passed. And most of them passed by unanimous 
consent.
    But, to make a long story short, you deserve better 
treatment than this. We are going to do everything in our power 
to see that you get that vote up and down, and I believe that 
if it is the vote up and down, you will win because I think 
people of fairness will appreciate the fact that you have a 
tremendous reputation in the law. And I want to make sure that 
you are treated fairly.
    Now, with regard to Ronnie White, just to correct the 
record, there was one positive blue slip, one negative blue 
slip. The negative blue slip was by a member of this Committee, 
and I asked the member, I said, ``Do you have any objection to 
me bringing Judge White up?'' And the member said, ``No, but 
just make sure that I'm listed as a no vote,'' which I did.
    But by the time he came to the floor, there were two 
negative blue slips in the sense that both Senators had decided 
to oppose Ronnie White. So I treated that as a negative blue 
slip.
    To their credit, we went ahead with a vote. They could have 
stopped the vote, but we went ahead with the vote. And it was 
to my credit, too, because I wanted to go ahead. I think he 
deserved a vote. And I believe you do, and I believe the ones 
that are being filibustered do, the ones that are being 
filibustered for the first time in history. I think we have got 
to break through this type of maltreatment of Bush nominees and 
consider treating them in a fair and balanced manner and give 
them votes up and down, especially when they come to the floor.
    So, with that, we will recess this Committee. As far as I 
am concerned, you have had your hearing. But the record will be 
open for any questions that they want to ask in writing, and we 
would appreciate it if you would get the answers back as soon 
as you can.
    Judge Saad. I most certainly will, and I thank you for the 
hearing, Mr. Chairman.
    Chairman Hatch. Well, thanks, Judge. It is great to have 
you here, and I admire you and I admire what you have been able 
to do.
    With that, we will recess until further notice.
    [Whereupon, at 1:24 p.m., the Committee was adjourned.]
    Questions and answers and submissions for the record 
follow.]
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  NOMINATIONS OF CARLOS T. BEA, OF CALIFORNIA, NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE NINTH CIRCUIT; MARCIA A. CRONE, OF TEXAS, NOMINEE TO BE 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS; PHILLIP S. FIGA, OF 
 COLORADO, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO; 
 WILLIAM Q. HAYES, OF CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE 
   SOUTHERN DISTRICT OF CALIFORNIA; JOHN A. HOUSTON, OF CALIFORNIA, 
 NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; 
  ROBERT CLIVE JONES, OF NEVADA, NOMINEE TO BE DISTRICT JUDGE FOR THE 
  DISTRICT OF NEVADA; AND RONALD A. WHITE, OF OKLAHOMA, NOMINEE TO BE 
          DISTRICT JUDGE FOR THE EASTERN DISTRICT OF OKLAHOMA

                              ----------                              


                      WEDNESDAY, SEPTEMBER 3, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch and Cornyn.

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

    Chairman Hatch. Today, the Committee has the privilege of 
considering the nominations of seven outstanding lawyers to be 
federal judges. I want to commend President Bush for nominating 
each of them, and I look forward to hearing each of your 
testimonies.
    Since there are so many Senators here this morning waiting 
to speak on behalf of the nominees, I will keep my opening 
remarks quite brief.
    The first nominee from whom we will hear is Judge Carlos 
Bea, our nominee for the Ninth Circuit Court of Appeals. He has 
had an exemplary legal career in California as a successful 
attorney and as an impartial jurist. During his 32-year career 
in private practice, Judge Bea appeared in court on a regular 
basis and was the lead counsel in approximately 125 jury 
trials.
    In 1990, Judge Bea was appointed and subsequently elected 
to his current position as a judge on the San Francisco 
Superior Court. He was re-elected, without opposition, to the 
superior court in 1996 and again in 2002. In this capacity, he 
has literally handled thousands of cases and presided over 
hundreds of trials. President George H.W. Bush nominated Judge 
Bea for a federal district judgeship in 1991; however, no 
hearing was held on his nomination during the 102nd Congress. 
His long wait for a fair and well-deserved hearing before the 
Senate Judiciary Committee ends today.
    As with other nominees to the Ninth Circuit that this 
Committee has considered this year, Judge Bea's colleagues 
overwhelmingly support his confirmation to the Federal 
appellate bench. Thirty-seven judges of the San Francisco 
Superior Court, who serve with Judge Bea and work with him 
every day, sent a letter to the Committee praising his skills 
as a jurist. They wrote, ``Judge Bea has distinguished himself 
in presiding over ground-breaking complex litigation in the 
insurance coverage and environmental areas, as well as handling 
many asbestos trials.'' The letter also recognizes his service 
on many of the superior court's management committees and the 
fact that before becoming one of their colleagues, ``Judge Bea 
was considered by the legal community to be one of the finest 
civil trial lawyers in San Francisco.'' So I will submit a copy 
of this letter for the record.
    In addition to his Superior Court colleagues, California 
Supreme Court Justice Carlos Moreno, San Francisco Mayor Willie 
Brown, and representatives of the San Francisco Bay Area's 
Hispanic community have all written to this Committee 
expressing enthusiastic support for the judge and for his 
confirmation to the Ninth Circuit. I hope my colleagues will 
join me in supporting him as well, and I look forward to 
hearing his testimony this morning.
    In addition to Judge Bea, the Committee will hear testimony 
from six well-qualified district court nominees. In the 
interest of time, I will reserve my remarks on the district 
court nominees until after we have heard from Judge Bea.
    We will turn to the Ranking Member upon arrival.
    We have a number of Senators who care to testify on behalf 
of various nominees this morning, and we will start with Hon. 
Don Nickles from Oklahoma.

 PRESENTATION OF RONALD A. WHITE, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE EASTERN DISTRICT OF OKLAHOMA, BY HON. DON NICKLES, A 
                   U.S. SENATOR FROM OKLAHOMA

    Senator Nickles. Mr. Chairman, thank you very much, and I 
want to thank you for scheduling this hearing on several 
outstanding nominees to the Federal bench, one of whom is from 
my home State of Oklahoma, a friend of mine, Ron White. His 
wife, Lisa, is with him as well. He is well qualified to be a 
Federal district judge. Senator Inhofe and I both interviewed 
several people and came to the conclusion that Ron White would 
be an outstanding addition to the Federal court.
    He has been an attorney with the very prestigious Tulsa 
firm of Hall Estill for 17 years. He has been a partner since 
1992. His practice has covered a variety of areas. As an 
attorney, 60 percent of his court appearances were in Federal 
court. He is admitted to practice before the Oklahoma Supreme 
Court, the U.S. Court of Appeals for the Tenth Circuit, and the 
U.S. District Court in the Northern, Eastern, and Western 
Districts of Oklahoma.
    He received his law degree from the University of Oklahoma 
in 1986. He has been involved in numerous organizations and 
charities in the State. He has received the ABA rating 
unanimously qualified. I am very happy to strongly support his 
nomination and urge the Senate to move quickly with his 
confirmation.
    I thank you, Mr. Chairman, for allowing me to speak, and I 
have a Budget Committee hearing so I need to run. So thank you, 
Mr. Chairman.
    Chairman Hatch. We understand. Thank you so much, Senator 
Nickles. We appreciate you taking the time to be here.
    If I can, I will just go across the table, so we will go to 
you, Senator Ensign. We were going to have Senator Reid. When 
he arrives, we will talk to him.

  PRESENTATION OF ROBERT CLIVE JONES, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE DISTRICT OF NEVADA, BY HON. JOHN ENSIGN, A U.S. 
                SENATOR FROM THE STATE OF NEVADA

    Senator Ensign. Thank you, Mr. Chairman. It is an honor for 
me to be here today before the Senate Judiciary Committee to 
introduce a great bankruptcy judge from my State of Nevada, Mr. 
Robert Clive Jones. Since taking the bench, Judge Jones has 
heard thousands of bankruptcy cases. He has overseen many of 
Nevada's most complex and controversial bankruptcy cases since 
taking the bench and has done so with great care, fairness, and 
prudence.
    He is respected and admired throughout the legal community 
for his belief and his dedication to the rule of law. Judge 
Jones has served on the Federal bankruptcy bench in my home 
State of Nevada for the past two decades.
    Additionally, in 1986, Judge Jones was appointed to the 
Bankruptcy Appellate Panel, U.S. Court of Appeals of the Ninth 
Circuit, and has served with distinction as a member of this 
panel for consecutive 7-year terms. This is the only active 
Bankruptcy Appellate Panel in the United States, and it has 
settled substantial questions of bankruptcy law and 
interpretation of the bankruptcy statute.
    Judge Jones also served on the U.S. Conference Committee on 
Codes and Conduct from 1989 to 1995. This Committee is 
responsible for drafting, adoption, and interpretation of codes 
of conduct for U.S. judges and judicial employees.
    A long-time resident of Nevada, Judge Jones began his 
education not in my State of Nevada but in the Chairman's home 
State of Utah at Brigham Young University. He later earned his 
law degree at the University of California, graduating in the 
Order of the Coif, indicating a place in the top 10 percent of 
his graduating class.
    Upon graduation, Judge Jones served as a clerk for Judge J. 
Clifford Wallace on the U.S. Ninth Circuit Court of Appeals and 
then began a career in Nevada in the private sector until his 
appointment to the bankruptcy court in 1983.
    Judge Jones' extensive legal background and his commitment 
to public service make him an excellent choice as U.S. District 
Court Judge for the District of Nevada.
    Mr. Chairman, I know his wife, Anita Michele, is proud of 
him for being here today, and the State of Nevada is proud of 
Robert and all that he represents for our great State. And I 
appreciate you expeditiously considering his nomination, and I 
join with Senator Reid in a bipartisan way to forward his 
nomination today.
    Chairman Hatch. Well, thank you so much, Senator Ensign. We 
appreciate you being here, and we will allow you to go. We know 
how busy all of you are.
    We will turn to Senator Boxer at this point, and we look 
forward to hearing your testimony, Senator.

PRESENTATION OF CARLOS T. BEA, NOMINEE TO BE CIRCUIT JUDGE FOR 
  THE NINTH CIRCUIT, WILLIAM Q. HAYES, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA, AND JOHN A. 
HOUSTON, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT 
 OF CALIFORNIA, BY HON. BARBARA BOXER, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Boxer. Chairman Hatch, thank you very much. I am 
very pleased today to introduce to you Judge Carlos Bea, the 
nominee for the Ninth Circuit Court of Appeals. And I wonder if 
it would be all right with you if we could ask his family to 
stand, and perhaps he could just give you the names of this 
beautiful family he has brought with him.
    Chairman Hatch. Of course it would be. That is quite a 
family. I really enjoyed meeting them.
    Senator Boxer. Judge, do you want to introduce them?
    Judge Bea. Yes, Senator Boxer, Chairman Hatch. My wife and 
the mother of these four strapping lads: Dominic, Nicholas, 
Alex, and Sebastian. And my father-in-law, Albert Reed Rubey; 
and over here, Reed Rubey, Jr., and his two children, Dina and 
Henry. And we are also honored to have from San Francisco 
Richard Wall, my law school classmate, and from New York, Lou 
Guzzo of the New York Fire Department, a veteran of 9/11.
    Chairman Hatch. Well, you know how to influence this 
Committee, is all I can say.
    [Laughter.]
    Chairman Hatch. We are delighted to have all of you here. 
It is wonderful to have you here, and we look forward to 
getting this hearing over and getting Judge Bea confirmed.
    Senator Boxer. Thank you so much. I will be brief and ask 
unanimous consent that my entire statement be placed in the 
record.
    Chairman Hatch. Without objection, we will put all entire 
statements in the record.
    Senator Boxer. Mr. Chairman, I am also very proud to 
introduce two nominees for the Southern District Court of 
California: William Hayes and John Houston. And if it is okay 
with you, I know they would be proud to show you their families 
as well. So let's start with Mr. Hayes, and we will go to John.
    Mr. Hayes. I would like to introduce my wife, Julia 
Jauregui; my father, Robert Hayes; and my mother, Margaret 
Hayes.
    Chairman Hatch. We are delighted to have all of you here.
    Senator Boxer. Mr. Houston?
    Judge Houston. Good morning, Senator.
    Chairman Hatch. Good morning.
    Judge Houston. It is my pleasure to introduce my wife, 
Charlotte Houston; my son, John Allen; my mother and father, 
John and Charlotte Houston; my sister, Vera; my sister, Rita; 
my sister, Sharon; my niece, Michelle; my niece, Alex; my 
brother-in-law, Dr. Rev. Tommie London; my sister-in-law, 
Shandra Houston; and my brother, Gregory Houston.
    Chairman Hatch. Well, we are delighted to have all of you 
here. We appreciate you coming and supporting the nominee.
    Senator Boxer. Mr. Chairman, I know you can tell the 
excitement in the room because these nominees have worked so 
hard and so long, and these are good nominees.
    Let me just begin by discussing for a moment Judge Bea. He 
was born in Spain and has lived in California for most of his 
life. He received both his undergraduate and law degrees from 
Stanford, and he has an impressive legal career. And you have 
cited some of the things, so I won't cite all of them, but just 
to say that he practiced law in San Francisco for 30 years 
before he was appointed a judge on the San Francisco Superior 
Court. And he was elected to the seat in 1990, has been re-
elected twice by the voters of San Francisco. He has taught at 
Stanford and Hastings Law School.
    I will just skip over a lot of his qualifications and just 
read you a couple of comments.
    One reporter wrote of him, ``He has received high marks for 
his specialty, handling complex civil litigation disputes.''
    Another reporter, who spoke with numerous lawyers, wrote 
that, ``He is at his best handling monstrous size cases that 
pose difficult legal questions presented by sophisticated 
lawyers.''
    So this just gives you a sense of this man because this is 
obviously a difficult time in our society, and we are going to 
have complex issues, and they are going to be gray areas. So I 
think that this is an excellent choice.
    Judge Bea has been endorsed by the San Francisco La Raza 
Lawyers Association, the Mexican American Legal Defense Fund, 
and I am very happy that they have lent their support.
    Turning to the district court nominees, I want to comment 
on the process that brought these two wonderful people to you 
today. In a truly bipartisan fashion, Mr. Chairman, the White 
House Counsel, Senator Feinstein, and I have worked together to 
create a judicial advisory Committee for our State, one in each 
Federal judicial district in the State. And I have to tell you, 
it is balanced. Each Committee has a membership of six: three 
appointed by the White House, three appointed jointly by 
Senator Feinstein and myself.
    Each member's vote counts equally, and a majority is 
necessary for the recommendation. So both Judge Houston and Mr. 
Hayes were reviewed by the Southern District Committee and 
strongly recommended for these positions. Judge Houston had 
extensive experience as a Federal prosecutor before his 
appointment as a magistrate judge. Mr. Hayes has extensive 
civil experience as a private attorney before becoming a 
Federal prosecutor, rising to the position of head of the 
Criminal Division in the U.S. Attorney's Office.
    So, again, I am just so pleased to be here today, and I am 
delighted with these three nominees, and I do hope that we will 
see them move forward quickly.
    Thank you very much.
    [The prepared statement of Senator Boxer appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator Boxer. Thanks for taking 
the time.
    Mr. Karim-Panahi. Mr. Chairman, my name is Parviz Karim-
Panahi from Southern California. This Senator and Senator 
Feinstein, and previous Senators, they have created the most 
corrupt judiciary, Federal judiciary in Southern California--
    Chairman Hatch. We are going to have to ask--we are going 
to have to ask for order. We are going to have to ask for 
order. The Committee will be--
    Mr. Karim-Panahi. I wanted to put this matter before you--
    Chairman Hatch. We understand but--
    Mr. Karim-Panahi. --and before this Judiciary Committee to 
know what is happening. I have nothing to do against these 
nominees, but what has been happening in the past 20 years or 
30 years, I am talking about not--
    Chairman Hatch. All right, sir. I have got to ask you to 
refrain because we are going to continue this hearing, and we 
appreciate your strong feeling--we appreciate your strong 
feelings, but we are not going to allow disruptions in the 
Committee.
    We are going to turn to our Minority Whip next and 
accommodate Senator Reid, and then we will finish with the two 
of you, and then we will come back to Senator Hutchison.

 PRESENTATION ROBERT CLIVE JONES, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S. SENATOR 
                    FROM THE STATE OF NEVADA

    Senator Reid. Mr. Chairman, I appreciate it very much. I 
left Senator Specter on the floor, and he asked if I could get 
back as quickly as I can.
    Chairman Hatch. We understand.
    Senator Reid. So I very much appreciate this.
    Mr. Chairman, Clive Jones has a great pedigree. He is a 
fine man. He graduated from an outstanding law school, UCLA. He 
has worked in the private sector where he was a partner in a 
law firm for a number of years, prior to being chosen to be a 
United States bankruptcy judge in the District of Nevada. He 
has worked in this capacity now for more than two decades. He 
has served as a chief judge for about 10 years. He was 
appointed to the only active Bankruptcy Appellate Panel in the 
country for more than a dozen years.
    Mr. Chairman, I notice that our esteemed nominee is joined 
today by his family. I have to remark that my admiration for 
this nominee is matched by my admiration for his wife. She 
comes from a wonderful family. Her father, a man by the name of 
Wayne Bunker, has had an outstanding career in accounting in 
the State of Nevada and in public service generally. I had the 
good fortune of being able to attend a meeting with him this 
past Sunday. Of course, recognizing the modest and really the 
humble man that he is, he would never, ever talk to me about 
the fact that his son-in-law was about to get this most 
important job. And I knew that his pride was significant in the 
fact that his son-in-law may be able to be a judge and of the 
caliber that he feels he deserves, that is, a Federal district 
judge.
    So I have the greatest respect for Clive, and also for his 
wife, Michele, who is an outstanding musician. They have four 
wonderful children. Their youngest boy is in law and 
accounting. He is a grandfather. He has worked in the scouting 
program. Both Clive and Michele can sing. They have been part 
of a very important choral group in Las Vegas called the Bluth 
Chorale, which is well known in Nevada and parts of the Western 
United States.
    So, Mr. Chairman, it is with pleasure that I recommend to 
this Committee Clive Jones to be a Federal district judge.
    Chairman Hatch. Well, thank you so much, Senator. We 
appreciate your testimony. We know you are busy, and we 
appreciate you taking the time from your busy schedule.
    Senator Campbell, we will go to you.

 PRESENTATION OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF COLORADO, BY HON. BEN NIGHTHORSE CAMPBELL, 
           A U.S. SENATOR FROM THE STATE OF COLORADO

    Senator Campbell. Thank you, Mr. Chairman. Senator Allard, 
my colleague, and I have appeared before you a number of times 
to recommend nominees for different positions. I have to say 
that I am very pleased to be here to support one. But you know 
as well as I do, Mr. Chairman, that the process by which a 
person gets nominated to the bench is not easy, and to get here 
in front of your Committee, they have to have pretty widespread 
support. And without that broad support, they simply couldn't 
be this far. Clearly, in democracy there is opportunity for 
anyone, any American, to dissent. But these nominations are not 
by accident, and I happen to think that all seven of these 
judicial nominees, including the appeals court nominee for the 
Ninth Circuit, are good nominees.
    It is my pleasure to be here with my friend and colleague, 
Senator Allard, to introduce Phillip Figa, a good Coloradan, a 
well-qualified jurist, and I hope you will agree he is well 
suited to serve as a Federal judge. I would like to abbreviate 
my statement and have included in the record with your 
permission a full statement and an editorial by the Denver Post 
in support of Mr. Figa.
    Chairman Hatch. Without objection.
    Senator Campbell. And as the other nominees have done, I 
wonder if I could ask Mr. Figa to introduce his wife, Candace, 
and his son, Ben, and daughter, Elizabeth.
    Mr. Figa. Mr. Chairman, this is my wife, Candy; my son, 
Ben; and my daughter, Lizzie.
    Chairman Hatch. We are delighted to have all of you here 
and look forward to--
    Senator Campbell. I notice the other nominees also have 
their families here, Mr. Chairman, and I think that if you are 
going to serve in public office anywhere, whether it is an 
elected position or an appointed position, without the support 
of your family we couldn't be doing these things. And I am sure 
the same applies to our judges, and I am just delighted to see 
their families are supporting them.
    Mr. Chairman, Phillip Figa is a well-qualified person to 
serve on the U.S. District Court for Colorado. He has been a 
Coloradan for 27 years and is an excellent jurist who will be a 
terrific addition to the Federal bench.
    Since Phillip Figa earned his juris doctor degree at 
Cornell University Law School back in 1993, both his career and 
personal life have been one of service. He has accomplished a 
well-balanced combination of service in the local community in 
addition to his achievements in private practice. He is the 
president of Burns, Figa and Will, a well-respected law firm 
located in Englewood, Colorado. He is a fellow with the 
International Society of Barristers, whose membership includes 
about 600 outstanding trial lawyers dedicated to excellence and 
integrity and advocacy.
    He has led the Colorado Bar Association, including service 
through everything as the head of the bar association's Ethics 
Committee. He has also served as the Chairman of the board of 
the Anti-Defamation League's Mountain States Region. He enjoys 
very broad bipartisan support, including former Senator and 
State Senate Majority Leader Mike Feeley's endorsement; also 
the endorsement of Colorado's Supreme Court Justice Gregory 
Hobbs, who predicted he would have a very fine view of the 
judiciary as the third branch of Government and a person who 
calls them as he sees them.
    Former President of the Colorado Bar Association Miles 
Cortez said of Phillip, ``Figa's extensive Federal court 
experience will likely enable him to hit the ground running.''
    John Sadwith, the Executive Director of the Colorado Trial 
Lawyers Association, said of Phil, ``He is a calm, even-
tempered person. I can't think of anything but superlatives.''
    On Friday, August 22nd, the Denver Post editorial, which I 
asked to be included in the record, declared that Phillip 
Figa's nomination was a win-win judicial pick. It states him as 
a good, solid choice, well-qualified lawyer with a moderate 
reputation. It goes on to describe him as a highly competent 
and smart lawyer who is known for being fair and thoughtful, 
and I think in this position that is a sentence that we all 
would try to adhere to, being fair and thoughtful.
    So I just wanted to add my personal endorsement. I think he 
will be a very, very fine nominee, and I look forward to the 
early action of this Committee on confirming him.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you so much, Senator.
    [The prepared statement of Senator Campbell appears as a 
submission for the record.]
    Chairman Hatch. Senator Allard, if I could ask you to defer 
to Senator Hutchison who has an appropriations meeting she has 
to get to.
    Senator Allard. Mr. Chairman, I would be glad to defer to 
Senator Hutchison.
    Chairman Hatch. We will come right back to you.
    Senator Hutchison?

 PRESENTATION OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE 
     FOR THE EASTERN DISTRICT OF TEXAS, BY HON. KAY BAILEY 
       HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Hutchison. Thank you so much, Mr. Chairman, and 
thank you, Senator Allard. I appreciate that so much.
    I am pleased to recommend the nomination of Judge Marcia 
Crone. Judge Crone is a Dallas native, and she is joined today 
by her husband, Seth, and I would like to ask him to stand. 
Their two children are not with them, I understand, but, Seth, 
thank you for being here.
    Chairman Hatch. Happy to have you.
    Senator Hutchison. Judge Crone is currently serving as a 
U.S. magistrate judge in the Southern District of Texas, having 
been there in that capacity since 1992.
    Mr. Chairman, I have never given you a nominee with higher 
academic credentials than Judge Crone. She was valedictorian of 
her high school, one of the largest and best high schools in 
our State. She was a National Merit Scholar. She had a 4.0 at 
the University of Texas, was a member of Phi Beta Kappa, and 
graduated first in her class from the University of Houston Law 
School.
    Chairman Hatch. That is pretty impressive, is all I can 
say.
    Senator Hutchison. I have to say, if she ever made a B, I 
guess she would have thought that was failure in life.
    Chairman Hatch. That makes you wonder how balanced she is.
    [Laughter.]
    Senator Hutchison. But in addition to her academic 
credentials, she also has a wonderful professional achievement 
record. She has served in private practice with a great law 
firm in Houston, Andrews and Kurth, and became a partner there 
until her appointment to the Federal bench. And as a U.S. 
magistrate, she has presided over a number of civil and 
criminal cases. In her 10 years there, she has authored 700 
opinions, over 130 of which are published.
    She has also been active in the community, in the bar 
association; she serves on the board of directors of the 
Garland Walker Inn of Court, is a mentor to Houston area law 
students, and is active in her church.
    She meets the high standards to which we hold Federal 
judges, and we had a number of appellants for this seat in East 
Texas, a newly created seat that will be in Beaumont. And she 
just came out on top of our Committee process, which, as you 
know, is a bipartisan process.
    So thank you, Mr. Chairman, for allowing me to introduce 
her. I couldn't recommend anyone more highly. And thank you for 
your courtesies.
    Chairman Hatch. Thank you, Senator Hutchison. We appreciate 
you taking time to be here. I am sure we will move ahead.
    Senator Allard?

 PRESENTATION OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE DISTRICT OF COLORADO, BY HON. WAYNE ALLARD, A U.S. 
               SENATOR FROM THE STATE OF COLORADO

    Senator Allard. Mr. Chairman, thank you for allowing me the 
opportunity to be here this morning and for holding this timely 
hearing. It is a great honor to introduce Phil Figa to the 
Judiciary Committee. He is up for consideration for the vacancy 
in the Colorado Federal District Court caused by the 
recruitment of Judge Match. Judge Match's departure leaves big 
shoes to be filled. However, by the end of this hearing on Phil 
Figa, I am sure you will understand why I believe that Phil is 
the right person for the job. I also want to thank Senator 
Campbell, my colleague and family member from Colorado, for 
working with me to help expeditiously fill this important 
vacancy.
    Before I go any further, I, too, would like to welcome 
Phil's wife, Candy, and his children, Ben and Lizzie, to the 
hearing. Candy, Ben, and Lizzie, I bet you know--or, Mr. 
Chairman, I think it is an unusual opportunity for the children 
to be present when their father has to show up for a job 
interview. And so it is a privilege, I think, to be able to see 
something like that happen with a member of your family.
    Earlier this summer, I had the privilege of having Ben Figa 
serve in my office as an intern, and through this experience, I 
learned to admire the strong family values so apparent in every 
member of the Figa family. I have warned Phil that the 
nomination process is a grueling one, but I know his family's 
continued support and encouragement will provide the strength 
and energy he needs in order to stand steadfast in pursuit of 
this most worthy endeavor.
    Senator Campbell has already mentioned the strong and 
outstanding academic and community credentials that Phil will 
bring to the bench. And I would second that he has a keen 
intellect, an ideal temperament, and that is no secret. In a 
letter dated June 10, 2003, Senator Campbell and I wrote to the 
Committee, ``Mr. Figa is highly qualified and will ably serve 
the people of the United States. . .(he) is well known 
throughout the Colorado legal community for his credibility, 
integrity, hard work, and firm grasp of the law.'' His 
supporters hail from across party lines and include a variety 
of elected officials from all levels of local, State, and 
Federal Governments.
    Phil and Candace have been married for 30 years. They met 
in college at Northwestern, where he received his degree in 
1973, Phi Beta Kappa. Candy then put Phil through law school at 
Cornell, paying for his education by teaching English in a 
nearby New York high school. Twenty-7 years ago, they moved to 
Boulder, Colorado, where Phil began a clerkship at Sherman and 
Howard. Eventually, the firm hired him as a full-time attorney. 
While in Boulder, Candy decided to attend law school at the 
University of Colorado, and I had to chuckle when he mentioned 
that between college and law school, they had 10 years of study 
dates together.
    At Sherman and Howard, Phil worked with his mentor, Hugh 
Burns, a Rhodes Scholar and well-known attorney. Eventually, 
the two would form their own law firm, known today as Burns, 
Figa and Will. And I would just mention that Figa just doesn't 
stand for Phil. Candy also works at the firm. Together, they 
have partnered for 25 years in the successful and prestigious 
practice.
    I had a good laugh when Phil said his ``work relationship'' 
with his wife may have been aided by the fact that they were on 
different floors and they had to communicate via e-mail. My 
wife and I have worked together in the same business, too, and 
we never had that luxury.
    Mr. Chairman, when considering the nominee, please know 
that Mr. Figa 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 I have mentioned, his 
nomination has enjoyed broad and bipartisan support from 
judges, colleagues, and both Democrat and Republican Members of 
Congress. Of the many gracious comments I have heard about 
Phil, none characterizes him better than a statement made by 
the managing partner at his firm. He said, ``He is a gracious 
fellow. . .a very likable person. He's a gentlemanly 
character.''
    Phil is well grounded in family values. He enjoys the 
Colorado outdoors. And according to criminal defense lawyer 
Gary Lozow, Figa is a ``thoughtful and bright person who will 
make a good Federal judge and is mindful of the awesomeness of 
taking on that responsibility.'' The Rocky Mountain News noted 
that he has achieved a rare balance in his life of family, law 
practice, and community activities. The Denver Post has 
endorsed him, and since my colleague has already asked that his 
endorsement be made a part of the record, I will not make that 
request.
    Mr. Chairman, Phil Figa will serve our Nation with the 
utmost of respect to our country and our Constitution, and for 
this, I urge you to forward his nomination to the Senate with a 
favorable recommendation. He is, in a word, ideal for the 
Federal bench.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator. We sure appreciate you 
coming, and I am sure that Mr. Figa does as well. So thank you 
for taking time out of your busy schedule.
    Without objection, we will put the statement of the 
Democrat leader on the Committee, Senator Leahy, and also the 
statement of Dianne Feinstein in the record before the 
testimony of the Senators who have appeared.
    Chairman Hatch. Well, Judge Bea, why don't we start with 
you? If you will raise your right hand, 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 Bea. I do, sir.
    Chairman Hatch. Thank you so much.
    Judge Bea, would you care to make an opening statement? We 
are delighted to have your family with you. What a good-looking 
family you have. In fact, every judgeship nominee here has a 
wonderful family.

STATEMENT OF CARLOS T. BEA, NOMINEE TO BE CIRCUIT JUDGE FOR THE 
                         NINTH CIRCUIT

    Judge Bea. Thank you, Senator. I think I will let my family 
be my opening statement, and we will proceed right to the 
questioning.
    Chairman Hatch. Well, thank you so much. That is good. I 
think that is a pretty good opening statement.
    [The biographical information follows:] 
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    Chairman Hatch. You have significant experience as a 
private litigator and practitioner representing both plaintiffs 
and defendants in primarily civil litigation, and since 1990, 
of course, as a State court trial judge. Now, I understand that 
you have also participated on appellate panels of the San 
Francisco Superior Court during your tenure there.
    Now, could you tell us how these experiences have helped or 
prepared you to serve on the Ninth Circuit Court of Appeals? 
And how would you characterize the key differences between the 
trial and the appellate judicial roles?
    Judge Bea. Well, I think the key difference between the 
trial and the appellate court is the ability of the trial court 
to determine facts, weigh the evidence, weigh the credibility 
of witnesses, and come to conclusions when there is not a jury 
there.
    The appellate court, of course, has to determine the case 
from the record that's presented and has a much narrower scope 
of review and fact-finding, of course, than does the trial 
court.
    I have been fortunate, as you mentioned, to have been both 
on the plaintiff and the defendant side, even in FELA cases, 
which I think you have some experience with. For 15 years I was 
a defense attorney, and then for the next 15 years I was a 
plaintiff's attorney.
    Chairman Hatch. It is a lot nicer being a plaintiff's 
attorney, is it not?
    Judge Bea. I think it's better paid for certain.
    Chairman Hatch. Much easier too.
    Judge Bea. And besides, you win more often.
    Chairman Hatch. That is right.
    Judge Bea. So that gave me a great deal of experience in 
trial practice, and of course I think the 3 years I spent on 
the appellate panel of the Superior Court, including 1 year 
when I was the Presiding Judge, helped me because we were 
taking appeals from the Municipal Court directly to the 
Superior Court.
    Chairman Hatch. That is great. You have been active in 
efforts to make our legal system more understandable and 
accessible to both Hispanics in this country and Spanish in the 
Latin American audiences abroad. As I understand it, one 
example of such efforts was your hosting of a program on 
Spanish language television in the San Francisco area that 
addresses various legal topics from labor union rights to 
handling speeding tickets.
    Could you tell us about some of your other outreach efforts 
to the Hispanic community in the San Francisco area, and tell 
us how successful some of these efforts have been.
    Judge Bea. Well, getting back to that, I was the host of a 
two- or three-minute segment every week which took questions 
from the public as to how do you pay for a traffic ticket, how 
do you use small claims court, what contracts have to be in 
Spanish to be enforceable in California, and this would go on 
once a week, and I would give a Spanish language explanation of 
this on the 6 o'clock news which had a pretty wide readership.
    In addition to that, of course, I've been pretty active in 
the Hispanic National Bar Association, and they have a moot 
court competition, nationwide moot court competition, and I 
have sat as a judge in that. And I've participated in a lot of 
Hispanic National Bar Association matters including I'm 
supposed to give a speech tomorrow in San Jose, but I won't be 
there. One of my friends, Alex Aldemondo, is taking my place, 
giving a speech on motions in limine, which is a trial practice 
issue.
    I've attempted to give as much education as I can to the 
hispanic community that needs to be educated in the Spanish 
language.
    Chairman Hatch. That is great. Can you tell us about some 
of your pro bono activities, particularly those that led to 
your Civil Order of Merit Award from the King of Spain in 1993, 
and of course the Distinguished Judge Award from the La Raza 
Lawyers of San Francisco in 2002.
    Judge Bea. Well, we found, back in the late 1970's we found 
that many Basque immigrants who had come as shepherds to the 
Western United States, probably also to Utah, certainly in 
Idaho, Nevada, California, had not been informed of their 
rights to become American citizens after a period of time 
working here. In some cases they had been misinformed by their 
bosses to keep them on the farm. The Spanish Government at that 
time--this was 1979, a democratic government of Spain--asked me 
to please help inform these folks about their rights to become 
citizens in the United States, as I have become a citizen, and 
so I started a program of doing that. Then that led to sort of 
representing all the Spaniards and some other hispanics, 
relatives of Spaniards, who found themselves in legal 
difficulties, whether it be immigration or criminal misdemeanor 
type cases, and I would go to the jails and try to get them out 
on their own recognizance. I appeared also in Immigration Court 
several times for persons who had been here so long that they 
were entitled to remain, although their paperwork wasn't all 
that good.
    Chairman Hatch. I am really impressed with you and your 
service. Once of my closest friends is Paul Laxalt, who is a 
Basque himself, and very proud of it, as he should be. I am 
proud of the service that you have given.
    The Ninth Circuit Court of Appeals is a very controversial 
court in this country. It is reversed a high percentage of the 
time by the Supreme Court. Of course, they hear thousands of 
cases that the Supreme Court does not have time to consider. My 
only caution to you there is just that we need people there who 
are going to abide by the rule of judging, which is to 
interpret the laws that are made by those who have to stand for 
reelection, in other words, those who are politically supposed 
to be making the laws, not judges. That is an easy statement, 
but a lot of times where there are cases that are in gray 
areas, where the law has not defined it, or where there is an 
inter-circuit conflict, and I would count on you being one of 
the real stable solid people on that court because of your 
experience, and help to bring that court more into the 
mainstream than it is right now. We are hopeful that you will 
be able to do that.
    Judge Bea. Thank you, Senator.
    Chairman Hatch. It is a wonderful opportunity to serve on a 
very distinguished court which is probably the largest 
population presiding circuit court in the country, and it is 
very, very important. It is an honor to have you here. It is an 
honor for you to be nominated by the President of the United 
States, and to have the support of both of your senators. That 
means a lot to me. We will try to put you through as quickly as 
we can.
    I want to compliment your family. They look like really 
wonderful people, and I am sure they are, and we are grateful 
to have you here, and I will do everything in my power to get 
you through as quickly as we can.
    Judge Bea. Thank you very much.
    Chairman Hatch. Thank you. With that, we will let you go.
    I am pleased now to turn to our District Court nominees on 
today's agenda. Our first nominee, Marcia Crone, is a graduate 
of the University of Houston Law Center. She worked as an 
associate and later as a partner at the prestigious law form of 
Andrews and Kurth before being appointed as a Federal 
Magistrate Judge in 1992.
    If you could just come up and take your seat right there. 
We welcome you. You are on your far right.
    I have no doubt that her elevation to the District Court 
will greatly benefit the Eastern District of Texas.
    Phillip Figa, our nominee for the District of Colorado has 
been actively involved in the Colorado legal community since 
the beginning of his legal career.
    If you all will just take your seats as I announce you. Mr. 
Figa.
    A graduate of Cornell Law School, Mr. Figa has been a 
partner at a Colorado litigation firm for the past 20 years. He 
currently serves on the Board of Directors of the Anti-
Defamation League for his region, and has assumed various 
leading roles in the American Bar Association and the Colorado 
Bar Association. So I look forward to confirming this very 
accomplished and community-oriented practitioner to the federal 
bench. We welcome you here, both of you.
    Robert Clive Jones is our nominee for the District of 
Nevada. Judge Jones graduated from UCLA School of Law in the 
top 10 percent of his class. A member of the Order of the Coif, 
and having served as an associate editor of the UCLA Law 
Review. He clerked for Ninth Circuit Judge J. Clifford Wallace 
before entering private practice. In 1983 he was appointed to 
the U.S. Bankruptcy Court for the District of Nevada, where he 
currently serves. I think Nevada is very fortunate to have you 
as a person who will serve on the Federal District Court Bench, 
and we are grateful that you are willing to make this 
sacrifice.
    William Hayes has been nominated to the Southern District 
of California. Mr. Hayes received his BS, JD and MBA degrees 
from Syracuse University. He began his legal career as a civil 
litigation associate. Then in 1987 joined the United States 
Attorney's Office for the Southern District of California where 
he currently serves as Criminal Division Chief. Mr. Hayes is an 
extremely accomplished trial lawyer, and I believe his 
extensive civil and criminal legal experience will serve him 
very well when he is confirmed to this position, and I expect 
to see that you are. We are delighted to have you here and 
delighted you have this opportunity.
    John Houston is our nominee for the Southern District of 
California. Judge Houston entered public service after law 
school when he joined the U.S. Army Judge Advocate General 
Corps. He then joined the U.S. Attorney's Office for the 
Southern District of California before his appointment in 1998 
as a Federal Magistrate Judge. Judge Houston has been 
recognized repeatedly for his outstanding legal skills over the 
course of his career, and I have no doubt that he will continue 
to serve well the Southern District of California upon his 
elevation to the District Court Branch, and we are honored to 
have you here. We look forward to talking with you.
    Our nominee for the Eastern District of Oklahoma, Ronald 
White, is a distinguished litigator. After graduating from the 
University of Oklahoma Law School in 1986, Mr. White joined the 
law firm of Hall, Estill, Hardwick, Gable, Golden and Nelson in 
Tulsa. His practice has focused on litigation in the areas of 
tort and insurance defense, medical malpractice, corporate 
litigation, ERISA and telecommunications. Mr. White is a well-
respected legal practitioner in Oklahoma and will make a fine 
addition to the Federal Bench there.
    I want to welcome all of you impressive nominees to the 
Committee, and I certainly commend the President for nominating 
each of you to these positions.
    Would any of you care to make any opening statements? We 
will start with you, Judge Crone.

STATEMENT OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE FOR 
                 THE EASTERN DISTRICT OF TEXAS

    Judge Crone. Mr. Chairman, thank you very much. It is such 
an honor to be here today before the Committee, and I just want 
to express what great feelings I have to be given the 
opportunity to serve the country. I have been very honored to 
be a United States Magistrate Judge, and I look forward to 
continuing my service if confirmed.
    My husband is here with me today. Unfortunately, my 
children, who--I guess you would say in our household academics 
are important. But my two daughters, who are in high school, it 
is science test day on Wednesdays. So they are in school today.
    Chairman Hatch. They need to be there.
    Judge Crone. But thank you, Mr. Chairman.
    [The biographical information of Judge Crone follows:] 
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    Chairman Hatch. We are delighted to have you here.
    Mr. Figa?

STATEMENT OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE FOR 
                    THE DISTRICT OF COLORADO

    Mr. Figa. Mr. Chairman, first of all, I would like to thank 
you and the Committee for allowing me the opportunity to be 
considered on such an expedited basis.
    In addition to my family, I would like to introduce a few 
people including Chuck Turner, the Executive Director of the 
Colorado Bar Association, who came out for this.
    Chairman Hatch. Glad to have you here, Chuck.
    Mr. Figa. My law partner, J. Kemper Will, who came out from 
Denver yesterday for the hearing.
    Chairman Hatch. I am honored you are here.
    Mr. Figa. Good friends, Jim and Marlene Bailor of 
Washington, D.C., and my children's college classmates, Seth 
Rosen and Erica Gorchow, who are here today.
    Chairman Hatch. Good to have you both here.
    Mr. Figa. And I would also like to thank my Senators for 
their participation in this process, and their support, and of 
course, the President for honoring me with this nomination.
    [The biographical information of Mr. Figa follows:] 
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    Chairman Hatch. Thank you.
    Mr. Hayes?

STATEMENT OF WILLIAM Q. HAYES, NOMINEE TO BE DISTRICT JUDGE FOR 
              THE SOUTHERN DISTRICT OF CALIFORNIA

    Mr. Hayes. Thank you, Mr. Chairman. I just wanted to thank 
you as well for scheduling this hearing, and also wanted to 
express my thanks to both of the Senators from California for 
their support.
    [The biographical information of Mr. Hayes follows:] 
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    Chairman Hatch. Thank you.
    Judge Houston?

STATEMENT OF JOHN A. HOUSTON, NOMINEE TO BE DISTRICT JUDGE FOR 
              THE SOUTHERN DISTRICT OF CALIFORNIA

    Judge Houston. Good morning, Mr. Chairman. I thank you for 
the opportunity for this expedited hearing.
    I would also like to thank my family for being here today 
to support me in this endeavor as they have throughout my legal 
career, and also a special thanks to the Senators for their 
support.
    [The biographical information of Judge Houston follows:] 
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    Chairman Hatch. Thank you.
    Judge Jones?

 STATEMENT OF ROBERT CLIVE JONES, NOMINEE TO BE DISTRICT JUDGE 
                   FOR THE DISTRICT OF NEVADA

    Judge Jones. By way of introduction, Mr. Chairman, if I 
may, my companion and spouse is here, Anita Michele; and my 
youngest daughter, Kimberly Miller and her husband Ryan. 
Kimberly is a nursing student, graduating from Brigham Young. 
Ryan works for a nationwide CPA firm officed in Las Vegas.
    Chairman Hatch. Delighted to have you with us.
    Judge Jones. For the record, I can just mention we have 
three other children. They are here with us in spirit, my 
daughter JaNae and Mark Barrow reside in Phoenix. He works for 
a medical provider firm. JaNae is a prior teacher. They have 
three of our grandchildren. My son Justin and Jenn live in Las 
Vegas, Nevada. They have two children. Justin is an attorney 
and CPA, again in a large national firm. And Melissa Henrich 
and Jake. Melissa is a middle school math teacher in Phoenix, 
Arizona, and Jake is a graphic arts computer specialist. He is 
studying for his business degree in Mesa Community College and 
then on to ASU.
    It is a great honor to be here. I am very much humbled, and 
appreciate the President for his nomination and the time of the 
Committee. Thank you.
    [The biographical information of Judge Jones follows:] 
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    Chairman Hatch. Thank you, Judge Jones.
    Mr. White?

STATEMENT OF RONALD A. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR 
                THE EASTERN DISTRICT OF OKLAHOMA

    Mr. White. Good morning, Mr. Chairman. I would like to 
thank you for scheduling the hearing. The President has honored 
me with this nomination, and I also express deep appreciation 
to Senators Nickles and Inhofe for their support.
    I only brought one friend for support today, but she is the 
best one I have, my beautiful wife, Lisa.
    Chairman Hatch. We are happy to have you here, very much. 
That is a pretty good friend. That is all I can say.
    [The biographical information of Mr. White follows:] 
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    Chairman Hatch. If you would all stand, I will swear you 
all in.
    Do you solemnly swear that 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 Crone. I do.
    Mr. Figa. I do.
    Mr. Hayes. I do.
    Judge Houston. I do.
    Judge Jones. I do.
    Mr. White. I do.
    Chairman Hatch. Let us start with you, Judge Crone. You 
have already had a distinguished career as both an attorney and 
as a United States Magistrate Judge. Obviously, you have gained 
some insight from your professional experience on both sides of 
the docket which will influence your judicial temperament as a 
Federal District Court Judge.
    Having had the experience as both a judge and an advocate, 
would you speak just briefly about the role and significance of 
your experience, and maybe the role and significance of 
judicial temperament, and state what elements of judicial 
temperament you consider to be the most important.
    Judge Crone. Thank you, Mr. Chairman. Yes, having been a 
practitioner--I've practiced law for 14 years in a variety of 
capacities. I worked in labor and employment areas, products 
liability, commercial litigation, and have a good grasp of many 
of those areas, which I found very useful when I moved to be 
the magistrate judge, or one of the magistrate judges in 
Houston.
    In that capacity my knowledge of the law has greatly 
expanded. It has been a true challenge to master the law and 
also to understand the litigants, what's really driving the 
litigants. I enjoy the exposure to the criminal law which I did 
not have as a practitioner. That was strictly civil. It's, I 
think, caused me to have much greater insight into what's 
valuable in this country, what people think is important, and 
really an insight into some of the problems plaguing the 
society that I've seen through the criminal docket. It's been 
an eye-opening experience, and I think it's been very helpful 
to me to be understand and empathize, but also realize the very 
serious and significant difficulties in many areas that are 
challenges to the country, to the viability and stability of 
our country.
    I think that combining those two areas of experience will 
help me tremendously on the District Court Bench. I welcome the 
opportunity to handle felony criminal matters. To date I have 
only handled pretrial matters on the felony side. Of course 
I've done misdemeanor cases and things like that, that we do 
have jurisdiction of.
    I think judicial temperament is key. What is brought forth 
to me is the very importance of these cases to the litigants. I 
think judicial temperament, you need to be very serious about 
the matter at hand. This is an important decision in these 
people's lives, whether it's civil or criminal, and to treat 
the litigants with the utmost respect, courtesy, dignity to 
which they're entitled. We are very fortunate in the United 
States to be able to resolve the problems in the courtroom, not 
in a battlefield and not in a back alley. And I think the 
judicial role is to see that that privilege is afforded to all 
citizens, residents of the United States.
    Chairman Hatch. Thank you. That is helpful. One of the 
things we worry about here is that, I have often said that 
being a Federal Judge, District, Circuit or Supreme Court 
Justice, is the closest thing to godhood in this life, because 
once you are there, the only way they can remove you is for 
really bad action. Unfortunately, there are some judges, who 
once they get on the bench, allow it to go to their head and 
become very dictatorial and temperamental.
    I would caution each of you to try and realize that you are 
dealing with human beings. You are dealing with attorneys, some 
of whom are highly skilled, some of whom are just learning, and 
you are dealing with various witnesses and so forth, and it is 
good to be humble on the bench if you can, and I just mention 
that to all of you. It is tough to be a judge, because once you 
start making decisions, you are going to irritate somebody all 
the time, and somebody is going to call you arrogant no matter 
what you do. But just keep that in mind, that you are servants 
of the public, and I sure hope that you can be humble servants 
of the public and do everything you can.
    Judge Crone, you have served as a magistrate judge for more 
than 10 years, and I have been impressed by your commitment to 
serve your country in that capacity, and I am sure it was 
somewhat of a transition to adjust to work after your career as 
an attorney. You have talked a little bit about that 
transition. As a magistrate judge, how do you believe that has 
prepared you to serve as a Federal District Court Judge?
    Judge Crone. I've been very fortunate as a magistrate judge 
to have a number of consent cases where I really fit in the 
same capacity as an Article III District Judge, and have 
handled those cases in their entirety, a number of them. And I 
think that has prepared me by basically doing many of the same 
duties as a District Judge would do.
    Also, seeing the pretrial part of the criminal aspect, the 
District Judges often don't see the pretrial work that we do, 
initial appearances, bond hearings and things like that. It 
gives me a good grasp on that entire procedure, because then 
moving into the felony trials, I think I'm prepared for that. I 
know that there will be additional issues that come up that I 
have not been dealing with, but I have basically become 
familiar with suppression issue and the like.
    In the Southern District of Texas we have a large habeas 
docket, so I've dealt with many criminal issues, handling 
innumerable petitions for writs of habeas corpus. I think that 
that has been the best training ground as a Magistrate Judge 
for a District Judge position that one could really imagine, 
because I would be dealing with the same type of issues, the 
lawyers' understanding of the sensitivities that are required, 
the amount of preparation that's required. One really needs to 
know the law and the different areas of each case before you to 
really understand what the legal issues are as well as the 
factual dynamics of the case. So I think it has been just 
invaluable experience, and I want to continue my education in 
that area.
    What I've enjoyed about the job is I'm learning something 
new all the time, and I think that's going to continue 
throughout because every case always presents something 
different. There's a new twist, there's a new issue, there are 
new laws that are passed, when we're looking at that, and it's 
just always been a very challenging and dynamic environment, 
and I look forward to hopefully being able to continue that.
    Chairman Hatch. Thank you.
    Mr. Figa, in 1995 you created a Federal pro bono mentor 
program for Colorado. This program assists Colorado's Federal 
Trial Bench in providing counsel for pro se litigants, in whose 
civil cases the judges determine are in need of appropriate 
counsel. Can you elaborate on the program's significance and 
purpose?
    Mr. Figa. Yes, sir, Mr. Chairman. I was delighted, as State 
Bar President of Colorado to institute this program that would 
enable junior and senior lawyers to work together to handle 
cases that the Court believed needed attention by 
representation for pro se litigants, mostly prisoners, some 
civil cases. Where there was some plausible merit to the 
plaintiff's claim, the Court felt it was important to have 
someone learned in the law handle those individuals' cases and 
as it turned out, we were able to get the support of the court 
and the bar to enlist a number of junior and senior lawyers to 
work together, which would help the litigants of course, which 
would help the court, and which would help junior lawyers 
develop the skills and values they need by being mentored by a 
senior lawyer in working on such cases, and I was appointed to 
one of them and actually won a judgment and was able to donate 
a sizable amount of the proceeds from the recovery of that case 
to the program to finance others who would be going forward in 
representation of clients under the program.
    Chairman Hatch. Our District Court are overburdened with 
litigation. How do you feel about mediation and arbitration as 
maybe forms of alternative dispute resolution?
    Mr. Figa. I think those are significant advances in terms 
of dispute resolution. I have participated in numerous 
arbitrations and mediations over my 27 years of trial practice, 
and I would try to encourage that to the extent possible. It 
seems to me that the court itself can be a significant 
participant in encouraging alternative uses of judicial 
resources and non-judicial resources to help resolve disputes 
and to ease the congested dockets in our Federal Courts today.
    Chairman Hatch. Thank you.
    Mr. Hayes, what do you believe will be your biggest 
challenges in assuming the role of a Federal Judge in 
California and how are you going to address them?
    Mr. Hayes. Thank you for your question, Mr. Chairman. As 
you're aware, I've spent the last 17 years as a prosecutor for 
the United States, and so I look forward to the challenge to 
again, reacquainting myself with civil practice. I spent 3 
years in civil practice in Colorado, and have some taught some 
law school classes dealing with civil practice. Although that's 
certainly the area that I need to reacquaint myself with, I've 
begun that process and will continue to reacquaint myself with 
civil practice to complement my extensive criminal experience.
    Chairman Hatch. How are you going to balance the interests 
of the prosecution and the defense in criminal trials?
    Mr. Hayes. Senator, I will be able to do that, as in civil 
practice we represented both plaintiffs and defendants. When I 
was in civil practice I did represent a criminal defendant. I 
represented, obviously, the United States for the last 17 
years. I've litigated before the--for the United States and 
against the United States. I certainly understand the 
difference between being an advocate and a judge. I've been 
fair and evenhanded as a prosecutor, and I would be as a judge 
if I am fortunate enough to be confirmed.
    Chairman Hatch. You've taught a variety of legal and 
business courses at four different academic institutions. Could 
you elaborate just a little bit on the courses that you teach 
and what you have learned from these experiences?
    Mr. Hayes. I've taught the legal and ethical environment of 
business in business law at the University of Colorado. I've 
taught an accounting class at National College in Colorado. 
I've taught a number of law school classes at Thomas Jefferson 
Law School in California. Those were criminal procedure, white-
collar crime. I also taught tax fraud at the University of San 
Diego College of Law. It has given me a wide background in a 
number of areas. I've enjoyed interacting with a variety of 
students both in the graduate business schools and in law 
schools. It's been a very professionally rewarding experience 
and has motivated me to obtain some expertise in a number of 
legal areas.
    Chairman Hatch. Thank you.
    Judge Houston, you have given numerous speeches on the 
progress that African-Americans have made in the last century 
and the challenges that they face in the 21st century, and you 
have noted a number of historical contributions of such 
prominent African-Americans, Homer Plessy, Olivia Brown, Rosa 
Parks, Dr. Martin Luther King, Jr., and as a matter of fact you 
have been a member of the Martin Luther King Day Parade 
Committee in San Diego for more than 20 years, I believe.
    Can you tell the Committee how the experiences of these 
individuals have influenced the decisions that you have made 
throughout your career and what role this influence will play 
after you are confirmed as a Federal District Court Judge?
    Judge Houston. Thank you for the question, Senator. The 
role these individuals have played in my mind to make me a 
better judge has been the attribute primarily of courage. If 
you look at Plessy in the late 1900's, Mr. Plessy had the 
audacity to challenge the system because he felt that he could, 
he should be able to ride in a railroad car on the railroad 
line on which he worked and sit with anyone else. That was a 
hard task for him to do I'm certain in the late 1900's, and to 
pursue his dream that the American system was for everyone, and 
that his rights were that as--worth as much as those of any 
other citizen, and pursuing his dream through the courts.
    Certainly Dr. King has been very instrumental in American 
history. Dr. King also exhibited the courage and the belief 
that the Constitution has meant what it said, that America is 
to treat all members of the society in an equal and fair-handed 
manner.
    The other individuals, the other civil rights leaders I've 
mentioned have all had the same common thread, courage to 
believe that the system is there to work for each and every 
person. I've participated in the Martin Luther King Parade over 
the years because it's been my view that to bring a parade to 
the city of San Diego, with the assistance of the City Council 
and the San Diego County Commissioners, along with the San 
Diego Police Department is only a testament of Dr. King's 
interest in ensuring that this is a free and open society to 
everyone.
    Every dealing I've had in the public sector has surrounded 
the issue of open access and freedom for everyone, and that the 
Constitution and the laws of the United States apply to each 
and every one.
    How do I bring that into the courtroom? In the courtroom I 
look at every litigant in a fair and equal manner. Every 
litigant walks into the courtroom on the criminal side innocent 
until proven guilty regardless of the charges. And on the civil 
side, I've learned as a Magistrate Judge that litigants come to 
court seeking justice for the wrongs that have been done 
against them, whether it's in a discrimination area, breach of 
contract, it could be a business venture between one 
corporation and another. They come to see justice and redress 
in our legal system, and I have learned through the course of 
my responsibilities as a Magistrate Judge that every litigant 
in a courtroom seeks the same thing. They want a fair, timely 
ruling from a court, and regardless of whether they win or 
lose, when they leave that courtroom they should feel that 
justice has been done and they've had their day in court.
    My judicial philosophy is to that end, that every person 
who approaches my courtroom with a case will know that they 
will receive a fair and impartial hearing, that I will keep an 
open mind, that I will listen and not make a decision until the 
end of the day, until the evidence is closed, and that I will 
give 150 percent to every matter that comes before the court to 
ensure access to the courts. In my view, these factors lead to 
public confidence in the integrity of the judicial system, and 
it's my aim and goal to continue to proceed, if I'm confirmed 
as District Court Judge, to ensure that my courtroom is open to 
the public in such a matter.
    Chairman Hatch. Thank you, Judge. One other thing, in your 
question there you said your involvement in your community has 
centered primarily on children who are under served. I take a 
great interest in that, among many other things, but certainly 
in children. But you cited several programs, but one in 
particular is called Judges in the Classroom. Would you please 
tell the Committee just a little bit about this program?
    Judge Houston. Certainly, Senator, and I appreciate that 
question as well. As is indicated in my application, the 
children in our communities is our--you know, they represent 
our future. We must, as judges, as all respectable members of 
our society, reach out and assist these children to be the best 
adults that they can be by providing tools to them during their 
childhood, and resources during their childhood, so that they 
can grow into responsible and productive citizens of the United 
States.
    The Judges in the Classroom program is actually a program 
that was created by the current presiding Magistrate Judge, and 
in this program Federal District Court Judges, Magistrate 
Judges and Bankruptcy Judges, have volunteered to make 
themselves available to the classrooms in the public school 
system in the city of San Diego.
    Teachers contact us individually to ask us to come to their 
classrooms. We coordinate with the teacher as to the subject 
matter for the day, and the subjects include: government, the 
jury system, trial practice, what it takes to be a lawyer or a 
judge, and what it takes to be a responsible citizen, and the 
duty of all citizens to vote once they become of age. We 
instill these values and thoughts in the children's minds at a 
very early age through this particular program.
    This program also entails a component wherein students come 
to the classroom for mock trials, Goldilocks and the Three 
Bears. Criminal trials, 100 Dalmatians, there's a skit for 
that. So that they can experience being participants in the 
courtroom proceedings as lawyers, judges, as a lawyer, defense 
counsel, prosecutor, witnesses, jurors and judge and bailiff, 
and it has been a very well-recognized program in the city of 
San Diego, and I'm very pleased to be a part of it.
    Chairman Hatch. I compliment you for being part of it and 
for the good work that you have done. You are clearly qualified 
for this position, as all of you are, and I am very proud of 
you.
    Mr. Jones, let me take a moment with you. You have served 
on the Federal Bankruptcy Court for 20 years. You are used to 
being punished and beaten up I am sure.
    [Laughter.]
    Judge Jones. That is right, Senator.
    Chairman Hatch. What skills have you mastered during your 
tenure that you think would be helpful in serving on the 
Federal District Court Bench, which naturally has a broader 
jurisdiction?
    Judge Jones. Two decades have taught me some of the skills 
of judging. I consider the most important to be temperament. I 
think of course high on the list of functions of a judge are 
determine and resolve disputes. But certainly a very important 
part of that is simply to listen. Aside from evidentiary 
objections that you are making decisions on quickly, probably 
the greatest function of a judge, either a Bankruptcy Judge or 
a District Court Judge is to listen to the dispute and to allow 
the parties, as well as the attorneys, to feel like they have 
had their day in court.
    I had a great experience, Mr. Chairman, on the Bankruptcy 
Appellate Panel, some 13 years listening to appeals from 
Bankruptcy Courts throughout the Ninth Circuit. It's given me a 
great perspective in analyzing decisions, evidentiary 
decisions, bankruptcy law decisions. It was a wonderful 
experience for a long time. Our bankruptcy appellate panel was 
the only panel that was functioning throughout the country. 
Now, of course, most of the circuits do have functioning 
bankruptcy appellate panels, but for those few years it was a 
great experience to help settle bankruptcy law throughout the 
country and consequently, many of those decisions are cited 
throughout the country. That has brought to my mind a very, an 
additional very important quality of a judge, and that is 
fairly, analytically determining the law and its application to 
the facts in front of you. When you do have to--hopefully we 
don't have to publish so often on the District Court as you 
might have to as an appellate judge, but when you do publish, 
being sure that your interpretations of the law are correct and 
fair. So I would say in summary, temperament, being a long 
listener, a fair and impartial, unbiased determiner, when you 
have to make decisions, those are some of the greatest 
qualities that I think hopefully I've learned a little bit 
about and would bring to bear.
    Chairman Hatch. Thank you. In your questionnaire you have 
mentioned a number of boards upon which you have served. One in 
particular, a charitable organization called Opportunity 
Village, I believe, assists the mentally disabled. Could you 
please tell that Committee a little bit more about that 
particular group?
    Judge Jones. I served on that board for a couple of years, 
Mr. Chairman. A great jurist in our community, Judge Lloyd 
George, has a son who receives the services at Opportunity 
Village. That's a great organization in our State and certainly 
in our community. They have several formal places of conducting 
business there. They entertain throughout the day a large group 
of mentally challenged, mentally retarded persons. They give 
them employment. They do actual projects and help to earn a 
living for themselves. In addition, they perform educational 
functions, and finally, they perform housing functions under 
State and Federal grant programs providing housing for those 
who are in need. It was a great opportunity to serve in that 
capacity for a couple of years.
    Chairman Hatch. Thank you.
    I failed to turn to my colleague from Texas who probably 
would like to say a few words about the Texas nominee here. I 
apologize.

 PRESENTATION OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF TEXAS, BY HON. JOHN CORNYN, A U.S. 
                SENATOR FROM THE STATE OF TEXAS

    Senator Cornyn. Not necessary, Mr. Chairman. I do want to 
thank you for chairing these important hearings. I do not think 
there is anything more important that we do in the United 
States Senate than hold confirmation hearings for members of 
the Federal Bench. I am slightly prejudiced, given my 13 years 
as a State District Court Judge, but all we have to do is to 
read the newspaper or watch television to see that the framers' 
concept of what a judge should be and how a judge should act 
still remains controversial, as crazy a notion as that may 
seem. I have got to say that without exception, that President 
Bush's judicial nominees have not only all been well qualified, 
including this panel and the one that preceded them, but also 
committed to the role that judges should play under our 
Constitution, that is, not as lawmaker, but as someone who 
interprets the law, not as a alternative legislative branch or 
a super legislature or someone who wears a black robe and 
legislates from the bench, but someone who understands that 
their job is to interpret the law and to render judgment based 
on a set of facts determined by the fact finder in accordance 
with the legislature and apply the laws determined by the 
legislature or by some appellate court or appellate court 
precedent.
    That is an honorable, a tough job sometimes, but it is 
always important, and I want to congratulate each one of you 
for your willingness to take on this important job and just 
reinforce in your own minds something you already know, and 
that is the tremendous gravity and importance of the role that 
you have agreed to accept.
    In particular I wanted to be here for Judge Marcia Crone's 
confirmation, Mr. Chairman, because I had the pleasure along 
with Senator Hutchison, who I know was able to be here earlier, 
to recommend her to the President, and the President did see 
fit to accept that recommendation, and as well I think as he 
should because of her distinguished service already as a 
magistrate, Federal magistrate, working in 1992 in one of our 
busiest districts in the United States Southern District of 
Texas, there in the Houston Division. She has distinguished 
herself as an outstanding jurist. She has authored 
approximately 700 opinions already as a Federal Magistrate, 
over 130 of which have been published. I am sorry I was not 
able to be here earlier when the official introductions were 
being made, but I will ask that the remainder of my 
introduction be made part of the record of the hearing.
    Chairman Hatch. Without objection.
    Senator Cornyn. And did want to come to congratulate Judge 
Crone and her family for this tremendous honor and commend her 
for accepting this tremendous responsibility that she has 
demonstrated her willingness to take on, and with that, Mr. 
Chairman, I thank you very much and pass it back to you.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator.
    Mr. White, let us just finish with you, and then if Senator 
Cornyn has any questions, we will turn to him.
    Just one. In your questionnaire you mentioned the pro bono 
case in which you successfully appealed the decision of a self-
funded health plan administrator in denying benefits for a life 
saving surgical procedure to a plan participant. Tell us about 
that case and your view on the importance of pro bono work.
    Mr. White. Thank you, Mr. Chairman. I think those are all 
very important issues because they do involve both pro bono and 
the health care system as we have in our country now.
    A substantial part of my practice is in ERISA benefits 
litigation, and that's afforded me the opportunity to appear in 
Federal Court on those issues quite frequently, and it's also a 
rather, some would say obtuse area of the law, and I've enjoyed 
learning that area. Because it is not widely practiced, I 
receive a lot of questions from other clients of my firm, from 
other lawyers in the community, and cold calls off the street 
because they've heard my name and they think maybe I can help 
them with a problem they're having with their health plan or 
their health insurance, and I'm always pleased to take those 
calls and meet with those people if I can because it is a very 
complex area.
    This particular situation was a gentleman who had a aortic 
aneurism, and he was an employee--he was disabled so he's no 
longer working, but he was a former employee of a major Tulsa 
employer, one that my firm had done work for previously a few 
years before but we no longer represented. He needed surgery to 
repair that aneurism and he needed it quickly. At the time the 
introduction of stent technology, where a wire mesh tube is put 
into the aneurysm and then the aneurysm cut away was brand new, 
brand new technology, and as most health plans do, this 
particular major employer's health plan had an exception, an 
exclusion for experimental procedures. Without this procedure 
this man would die.
    I convinced my firm to allow me to take a case against a 
major Tulsa employer and former client and possibly a client in 
the future, to attempt to convince them through the 
administrative appeals process for that plan to change their 
mind.
    We went through the administrative appeals process. I 
gathered evidence from his physicians, from experts across the 
country, and with his help, and by taking an approach, not a 
confrontational approach, but a reasoned and persuasive 
approach, we were able to convince the appellate panel of that 
health plan to change their minds and approve that surgery in a 
timely manner, and to that extent it had a very happy ending.
    Chairman Hatch. Thank you.
    There are a lot of questions we could ask all of you, but 
you are all qualified, and I know that, and I think everybody 
else knows it too, so I am going to do everything in my power 
to get all of you confirmed as soon as possible. I just 
appreciate your willingness to serve because these are among 
the most important positions in our society, and they should be 
venerated by every person in our society because of the great 
work the Federal Bench does. I do not care whether you are 
Democrats or Republicans, we have had great people in both 
parties, people from all persuasions who have become great 
judges. We have had people from all persuasions who have been 
less than great judges too. But I am counting on all six of 
you, and of course, Mr. Bea as well, to be great judges. We 
look forward to seeing you work on the bench and look forward 
to getting you through the Senate.
    With that, I am going to recess until further notice. Thank 
you all for your service.
    [Whereupon, at 11:22 a.m., the Committee was recessed until 
call of the Chair.]
    [Questions and answers and submissions for the record 
follow.]
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 NOMINATIONS OF MARGARET CATHARINE RODGERS, OF FLORIDA, NOMINEE TO BE 
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; ROGER W. TITUS, OF 
 MARYLAND, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND; 
 AND GEORGE W. MILLER, OF VIRGINIA, NOMINEE TO BE JUDGE FOR THE UNITED 
                     STATES COURT OF FEDERAL CLAIMS

                              ----------                              


                     WEDNESDAY, SEPTEMBER 17, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
presiding.
    Present: Senators Cornyn and Craig.

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

    Senator Cornyn. Good morning. This hearing of the Senate 
Judiciary Committee will be convened, and I know we have a 
number of Senators who are going to make some introductions, 
and, of course, I will recognize Senator George Allen from 
Virginia. We will recognize you for your comments and 
introduction, Senator Allen, in just a moment.
    The purpose of today's hearing is to consider the 
nominations of Margaret Catharine Rodgers to be United States 
District Judge for the Northern District of Florida; Roger W. 
Titus to be United States District Judge for the District of 
Maryland; and George W. Miller to be Judge for the United 
States Court of Federal Claims.
    I want to thank Senator Hatch, who could not be here today, 
for scheduling this important hearing. I believe that 
considering the confirmation of judicial nominees is among the 
most important duties that the United States Senate has. 
Obviously, these are very important positions. And it is with 
great pleasure that I welcome the nominees this morning, and we 
will get a chance to hear from you and hopefully have a chance 
for you to introduce your family and friends who accompanied 
you on this wonderful occasion.
    But at this time I would like to recognize my colleague, 
the junior Senator from Virginia, Senator George Allen, for any 
comments he might care to make.
    Senator Allen?

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

    Senator Allen. Thank you, Mr. Chairman, and thank you for 
having this hearing. And I know this Committee goes through 
many candidates, and I know you as Chairman and as a member of 
this Committee have worked to make sure that we as a Senate 
have the advice of the Judiciary Committee and move forward on 
these qualified nominees. And while you may be the junior 
Senator from Texas, you have hit the road with strong force, 
and you have just been truly a tremendous asset to the Senate 
and to America with your knowledge, your experience, your 
expertise, and also your commitment for equity and fairness and 
consideration of judicial nominees.
    Mr. Chairman, I am here this morning to speak to you and 
members of the Committee to support and introduce the 
nomination of a fellow resident of the Commonwealth of 
Virginia, George W. Miller, to be a judge on the United States 
Court of Federal Claims. His wife, Kay, and son, George III, 
are back towards the back there, if they would please rise.
    Senator Cornyn. Why don't you stand and be recognized, if 
you would, please. Thank you. Thank you for coming.
    Senator Allen. I would say, Mr. Chairman, that Mr. Miller 
has exceptional legal expertise that has prepared him very well 
for being a judge on the Court of Federal Claims. He has 
through his years, as you can see from his resume, served in 
the U.S. Navy Judge Advocate General Corps, served in the 
United States Naval Reserve. He served as a law clerk for Hon. 
Bruce Forrester on the United States Tax Court. From 1968 to 
1970, Mr. Miller was in the Office of the Assistant General 
Counsel for Logistics for the United States Department of 
Defense.
    Since 1970, George Miller has been with the law firm of 
Hogan and Hartson here in Washington, D.C., becoming a partner 
in 1977. Mr. Miller also served the Commonwealth of Virginia 
for several years as an eminent domain counsel in the Northern 
Virginia District for the Virginia Department of 
Transportation. Most importantly and relevant to your 
consideration of his capabilities and experiences, he has been 
admitted to several courts of the U.S.: the Tax Court of the 
United States, the U.S. Court of Federal Claims, and he is also 
admitted to the bar in Virginia, New York, and the District of 
Columbia. He has spent much time as a lawyer handling a broad 
range of civil litigation, takings litigation, and commercial 
arbitration matters. His cases have been heard in the U.S. 
Court of Federal Claims, the very court that he has been 
nominated to serve. And, in fact, I asked Mr. Miller, ``What 
percentage of your cases are in that court?'' He said, ``Fifty 
percent or more.'' So that is a fairly unique Federal court, 
and so he has the experience of how it ought to operate and 
operate well.
    Indeed, he is on the Advisory Council for the U.S. Court of 
Federal Claims as well, and I am very confident, Mr. Chairman 
and members of the Committee, that you will find him to be an 
outstanding nominee and, more importantly, an outstanding 
judge.
    So I would ask you in the most respectful way to examine 
this gentleman, and when you examine George Miller's record, 
his exceptional record, in particular in the Court of Federal 
Claims, you will find, I think, Mr. Chairman, an outstanding 
candidate that we would want to move forward with, with all 
deliberate speed--to the extent there is deliberate speed in 
the Senate, but as quickly as possible.
    I thank you for having this hearing and also for your 
perseverance in making sure our nominees get prompt and fair 
consideration. Thank you, Mr. Chairman.
    Senator Cornyn. Thank you very much for your comments, 
Senator Allen. We are delighted to have you here today.
    Senator Warner sent along some written comments, and they 
will, without objection, be made part of the record, as will 
the complete written statements of each of our Senators who are 
making statements here today. Thank you very much for being 
with us.
    Senator Allen. Thank you, Mr. Chairman.
    Senator Cornyn. At this time it is my pleasure to recognize 
Senator Sarbanes for purposes of any comments he would like to 
make relative to the nomination of Roger Titus, and then we 
will recognize Senator Mikulski. Thank you very much for being 
here.

 PRESENTATION OF ROGER W. TITUS, 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. I am 
very pleased to come before the Committee today, along with my 
colleague, Senator Mikulski, to introduce a very highly 
respected leader in Maryland's legal community, Roger Titus, 
who has been nominated to serve on Maryland's Federal district 
court.
    Roger Titus received his undergraduate degree from 
Maryland's Johns Hopkins University and then his law degree 
from Georgetown University Law Center. While he was at law 
school, he worked as a claims adjuster for Allstate Insurance, 
and I just mention that to just sort of show he has had some 
real grass-roots experience if he is going to go on the Federal 
bench and understand the problems of ordinary litigants.
    He went on to a very distinguished legal career. He was in 
a small firm in private practice, was a city attorney for the 
city of Rockville for a number of years, but then joined 
Venable, Baetjer and Howard, which is one of our State's 
absolutely leading law firms, has been with them now for a 
number of years and, of course, is a partner.
    He has had a range of experience in private practice. I 
think it will serve him well on the Federal bench. He has 
concentrated in litigation. He has had significant experience 
in State and local government law, in general litigation, 
constitutional litigation. He has handled a wide range of 
complex commercial litigation matters and, in addition, has had 
a very successful career in the appellate courts.
    He has also--and I want to stress this--been a leader in 
our legal community. He has been very active in a range of bar 
activities, including serving as president of the Maryland 
State Bar Association. We have a very strong, active State Bar 
Association in the State of Maryland. We are very proud of it. 
It has a whole range of programs committed to enhancing the 
professionalism of the legal profession in our State. They do 
not give the presidency of that organization out very lightly, 
and Roger has served as its president and has been a member of 
its Board of Governors for a number of years. He has also been 
head of the Maryland Municipal Attorneys Association, the Trial 
Court Judicial Nominating Commission. There are a whole range 
of bar activities, all of which I think reflect his own 
personal commitment to elevating the standards of legal 
practice and legal service in this country.
    He is a member both of the American College of Trial 
Lawyers and the American Academy of Appellate Lawyers. And I 
think it is fair to say that within his profession he is 
regarded as preeminent amongst his colleagues at the bar. In 
fact, the Montgomery County Bar Association just a few years 
ago gave him the Century of Service Award. They picked 15 
people who had been the best attorneys and judges in the 20th 
century in terms of legal excellence and service to the bar and 
community in Montgomery County, which is his home, and he was 
amongst the 15 selected. I think that is quite a high honor.
    He has also been involved in a number of civic activities, 
most importantly heading up the Board of Trustees of Suburban 
Hospital, and we know, of course, what is involved if you head 
up a major hospital board and the significance of that.
    So this is a man of wide experience, breadth and depth of a 
very strong commitment to the best principles of the legal 
profession. I think he will be a stellar addition to our 
Federal district court. We are proud of our court in Maryland. 
We think it does a very good job, and I think Roger Titus 
brings to it the kind of qualities that we look for in a judge: 
excellent intellectual credentials, the breadth and experience 
to understand the situations confronting litigants who will 
come before his court, active participant in our legal 
community, high contribution to the legal discourse of our 
State, participation in Maryland's civic community, and he 
really is a person who commands respect and esteem in our 
State. His nomination by President Bush has been received with 
great favor throughout both the profession and the broader 
community in our State, and I am delighted to come today and 
introduce him to the Committee and to urge his favorable 
consideration upon you.
    Thank you.
    Senator Cornyn. Thank you very much, Senator Sarbanes. We 
appreciate your comments and your presence here today, as we do 
Senator Mikulski, and we are delighted to have you here. We 
would be happy to hear any comments you would like to make with 
regard to this nomination.

 PRESENTATION OF ROGER W. TITUS, 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. I 
appear before the Committee today with great enthusiasm to 
recommend to the Committee the nomination of Roger Titus to be 
on the Federal district court in Maryland. Senator Sarbanes has 
elaborated on this in great detail, but let me just say from my 
perspective, when I look to moving a judge from our community 
and voting for them on the floor from other communities, I look 
for three tests: one, judicial competence, as verified by peers 
and the legal community itself; second, high integrity and kind 
of a pattern of community service, public service; and, number 
three, dedication to core constitutional principles and 
guarantees.
    Judge to-be, I hope, Mr. Titus meets these tests well and 
beyond the norm. First of all, on judicial competence you will 
note from the record that he received a unanimous ``well 
qualified'' from the ABA. In our own community, he is regarded 
as a lawyer's lawyer, heading up the bar association, and, 
again, the outstanding way in which he practiced law. If we 
talk about Mr. Titus, one word if you had to describe him was 
``distinguished.'' He has been distinguished in every 
undertaking he has pursued.
    When it comes to high integrity and community service, yes, 
he was a city attorney and has done public law. He has been on 
the Board of Trustees of Suburban Hospital. But one case in 
particular I would like to bring to your attention. As a 
practicing attorney, he undertook representing on a pro bono 
basis something called Mobile Medical Care. This is a program 
that provides free medical care to poor and homeless people, 
and they wanted to have a headquarters in Montgomery County. 
Well, zoom, zoom, we got into the NIMBY, the ``not in my back 
yard.''
    Mr. Titus threw himself into this case with all the vigor 
and intellectual capacity and legal competency that he could, 
and as you know, zoning can be arcane. The community was 
enormously prickly. It took great negotiation skills. And, you 
know, he has been with pretty feisty law firms, but he gave it 
all that he had and treated them like they were a blue-ribbon 
or a blue-chip client. That is the kind of man that is coming 
before you today.
    By the way, he won that case.
    That just kind of tells you something about the man and 
something about the character. We are very proud of him. Though 
he was born in Washington, D.C., he is truly a son of Maryland, 
being raised in our own Montgomery County and attending our 
schools, like Johns Hopkins and, of course, Georgetown Law. His 
wonderful wife, Catherine, is with him, and we are so pleased 
that they have really been Team Maryland in many of their 
community services.
    He was the first in his family to go to law school. In 
fact, he started out as an electrical engineer, and now he is 
one of many of a family of lawyers. Two of his children are 
lawyers.
    Again, Senator Sarbanes has outlined really the legal 
career of Mr. Titus and how he had his own firm in Montgomery 
County, in Rockville. Then that firm merged with one of the two 
law firms in the United States, Venable, Baetjer and Howard. We 
might note to the Committee one of its partners is Ben 
Civiletti, former U.S. Attorney General, and it is just one of 
the most prestigious law firms in our State.
    So when we go through, you can just see the outstanding way 
that Mr. Titus has practiced law, lived in his community, and 
we believe that he deserves the support that the Committee 
should have, and we should move him expeditiously. This is an 
outstanding appointment. This Committee and the Senate will be 
proud of the job that Mr. Titus will do as a Federal district 
court judge.
    Thank you.
    Senator Cornyn. Thank you very much, Senator Mikulski and 
Senator Sarbanes, for your presence and participation here 
today.
    I see Senator Nelson in his usual just-in-time fashion is 
here, and we would be delighted to hear from you, Senator 
Nelson, with regard to any comments you would like to make 
about the nomination of Margaret Catharine Rodgers.

   PRESENTATION OF MARGARET CATHARINE RODGERS, NOMINEE TO BE 
 DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA, BY HON. 
     BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Nelson. Mr. Chairman, thank you, and it is my 
delight. You know, one of the great things about the Senate is 
you get to meet all of these nominees, and sometimes it is 
three for a particular vacancy, and we have kind of worked out 
a deal with the White House where Bob Graham and I will 
interview all the nominees, and then let the White House know 
if we have an objection. So we get to interview quite a few, as 
you can imagine, with the size of Florida and all of the 
vacancies that occur. And I must say that as I have not only 
interviewed Casey Rodgers but I have had other people tell me 
about her, I have received more good comments about this 
nominee than is usually the case. And it is with a great deal 
of pleasure that I come here to welcome her along with you, Mr. 
Chairman, and her husband, James, and their children, and they 
are here to support her.
    The judicial appointees are charged with making important 
decisions that greatly impact the daily lives of our citizenry, 
and so we want the nominees to possess a great deal of 
knowledge and experience, and we want that judicial temperament 
of being impartial and fair and compassionate. And I think that 
Mrs. Rodgers possesses these traits, and she passes the test 
with flying colors with regard to her professional experience, 
and she will be an excellent judge.
    She is a graduate of California Western School of Law, was 
sixth in her class. She has been a lawyer, and most recently 
she has been a magistrate judge in the Northern District. And 
that, by the way, is another interesting fact that I have found 
since Senator Graham and I have interviewed so many nominees. 
You usually do not have to worry about the magistrate judges, 
that they have the--first of all, they have passed the test to 
be selected by the judges, and then they have that great 
experience.
    Prior to her service on the bench, she had her own law 
firm. She served as general counsel for the Better Business 
Bureau, and she has been a member of the United States Army. 
She is active in her community through a number of civic 
organizations, and it is her hometown of Pensacola that have 
spoken out so vigorously on her behalf. And based on her 
professional success and my observations, I believe that she 
will be an excellent judge, and I highly commend her to the 
Committee, Mr. Chairman.
    Senator Cornyn. Senator Nelson, thanks for those comments 
and for your participation during this important confirmation 
hearing for Ms. Rodgers, and the insights that Senators provide 
about their home State nominees is immensely valuable to the 
Committee, and I want to say thanks again for being here.
    Senator Cornyn. If I may ask the nominees, please, to come 
forward and be sworn, we will be glad then to proceed with any 
statements you might care to make.
    Do you swear that the testimony you are about give before 
the Committee will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Judge Rodgers. I do.
    Mr. Titus. I do.
    Mr. Miller. I do.
    Senator Cornyn. Thank you very much. Please have a seat. 
Looks like, Judge Rodgers, you are on this end. We can either 
move you or move the--
    Well, thanks to each of you for being here today. And 
Chairman Hatch does send his regrets. He is unavoidably absent 
from the hearing. But I know each of you know enough about the 
operation of the Senate to know that there are other eyes and 
ears observing and listening to the proceedings here today. 
And, of course, each one of you has already been through quite 
an examination before you get to this point, through groups 
like the American Bar Association, through Federal agencies 
like the FBI, not to mention the evaluation process leading up 
to your nomination by the President. And so we know you have 
been scrutinized and analyzed, and your records combed with a 
fine brush.
    But we would be delighted to hear any comments you might 
have to make in terms of any opening statement. And it is 
entirely appropriate--and we are not too formal here--if you 
would like to introduce members of your family or friends who 
happen to be accompanying you on this important day, 
recognizing the significance that this day must have in your 
life and the life of those who love you and support you in what 
you are doing.
    So, Judge Rodgers, please proceed with any comments you 
would like to make.

STATEMENT OF MARGARET CATHARINE RODGERS, NOMINEE TO BE DISTRICT 
           JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA

    Judge Rodgers. Thank you, Mr. Chairman. Is this on?
    Senator Cornyn. Now it is.
    Judge Rodgers. Thank you. It is indeed an honor and a 
privilege for me to be here today. And I want to thank you, Mr. 
Chairman, and the other members of the Committee for scheduling 
this hearing and giving me the opportunity to address the 
Committee.
    I also want to thank Senator Nelson for being here today 
and for his kind words of support on behalf of my nomination.
    While I don't have an opening statement per se, I would 
like to take the opportunity to introduce some special people 
who are here with me today for support.
    First, I have my husband Jim; I have my daughter Hannah 
Rodgers, my stepdaughter Maggie Pschandl, stepdaughter Jamie 
Lajter, daughter Maggie Rodgers. I would say that Maggie and 
Hannah are not unhappy about having to miss school this week. 
And I don't know if they're more happy about, or more excited 
about being here today or being able to attend the World Cup 
game on Sunday. I just told them they have to hold their cheers 
until Sunday.
    My long-term secretary, Kathy Rock, and her husband Bob. 
They've come all the way from Pensacola. My mother, Jane 
Hubbard, and my uncle, John Morris, who I know my father, who's 
deceased, is pleased to have my Uncle John here today in his 
place. My sister, BJ Greer, from Pensacola; and my dearest and 
closest friend, Susan Fisher, who resides here in the 
Washington area with her husband and children.
    And I want to tell them that I am very grateful to all of 
them for being here, and grateful for all their support. And 
thank you.
    [The biographical information of Judge Rodgers follows:] 
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    Senator Cornyn. Thank you, Judge Rodgers, and thanks to 
each of you for being here and supporting Judge Rodgers on this 
important day. I could tell you from my experience, even though 
I have never been a Article III judge, I was a State district 
judge and a member of the Texas Supreme Court for a period of 
13 years in my previous life, and it is important on occasions 
like this to have those who are near and dear to you here for 
support, and we are delighted to have you here.
    At this time, Mr. Titus, I would be glad to hear any 
opening comments you might have to make.

 STATEMENT OF ROGER W. TITUS, NOMINEE TO BE DISTRICT JUDGE FOR 
                    THE DISTRICT OF MARYLAND

    Mr. Titus. Thank you, Mr. Chairman. I first wanted to thank 
my Home State Senators Sarbanes and Mikulski for their very 
generous remarks. I thought I was at a funeral listening to me 
being praised.
    Senator Cornyn. They were awfully nice, I noticed.
    Mr. Titus. But it's wonderful to have their support and 
encouragement as I go through this quest.
    I don't have an opening statement, either, but I did want 
to remark on one thing that Senator Mikulski reported to you 
about me being an electrical engineering student, as by way of 
introducing my family--and by way of explaining to you how I've 
done my best to increase the population of the legal 
profession.
    I was indeed an electrical engineering student at Johns 
Hopkins, struggling in that subject with my fellow electrical 
engineering student, Michael Bloomberg, who was my fraternity 
brother. And two things happened in 1961: I changed majors, to 
political science; and I eloped with the daughter of a lawyer. 
I don't recommend that as the way to meet your first lawyer--
that's the first lawyer I ever knew. Since that time, however, 
I've worked hard to populate the legal profession, as you will 
hear from my introductions.
    The woman I eloped with, Cathie Titus, is right here, my 
wife. My daughter Paula, a lawyer, is with me. Her husband 
Felix is not able to be here today. He's not a lawyer, but he 
just was appointed by Governor Ehrlich to the Trial Court 
Nominating Commission for Montgomery County to select judges.
    My son Richard is here, also a lawyer. His wife Marlene is 
here, and she's also a lawyer. We have one person who kept the 
whole group honest, my son Mark, who's an educator. He's here.
    I have four grandchildren. They're not in law school yet. 
My oldest grandson is Benjamin Laboy; his sister Grace Laboy; 
my granddaughter Emily Titus; and my grandson Drew Titus.
    I also have a nephew who's attending American University 
who's here, Kevin Gaughan. And lo and behold, I have a dentist 
of mine that retired. And I guess he has nothing better to do. 
He's shown up here today to watch me. This is the man who's 
known my mouth in special ways--Melvin Slann is in the back 
there.
    Senator Cornyn. That is dedication and friendship 
personified.
    Mr. Titus. And finally, I wanted you to know that seated in 
the audience is Reggie Felton, who is a member of the Board of 
Education of Montgomery County, which is one of my clients.
    And I have nothing further to say.
    [The biographical information of Mr. Titus follows:] 
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    Senator Cornyn. Thank you. One of the things, being elected 
from the State of Texas, I don't talk about an awful lot, but I 
am a product of Montgomery County schools, at least for a 
period of my growing up and my dad was stationed at Walter Reed 
Army Medical Center, and we lived in Kensington, Maryland. But 
we are delighted to have all of you here today. Thank you for 
being here to support soon-to-be Judge Titus.
    Mr. Miller, we would be glad to hear any comments or 
introductions you might have to make.

 STATEMENT OF GEORGE W. MILLER, NOMINEE FOR THE UNITED STATES 
                    COURT OF FEDERAL CLAIMS

    Mr. Miller. Thank you very much, Senator Cornyn.
    I first of all want to say that I am deeply gratified by 
the nomination by President Bush. And I've always believed that 
the highest calling of a lawyer is to be a judge. And I take 
this opportunity very seriously and look forward to, hopefully, 
making a positive contribution to the administration of justice 
on the Court of Federal Claims.
    I want also to thank the Committee for scheduling the 
hearing as promptly as it did. That has not always been the 
case in these matters. I know I, and I think the others who are 
here today share my view that it is everything we could have 
asked for in terms of expeditious consideration, and we 
appreciate it greatly.
    You have already met, through Senator Allen, my wife Kay, 
who is here, and my son George, who is also here. I'd like to 
introduce two other friends and colleagues who are here. The 
first is Austin Mittler, who is my law partner and mentor, has 
been with Hogan & Hartson since 1968, even longer than I, and 
has for many years been the head of our litigation practice 
group.
    And with him is Steven L. Simrodt, a law school classmate 
of mine and long-time friend, who lives and works on Capitol 
Hill. So it was easy for him to come over, and I appreciate 
greatly his presence.
    Our daughter, who lives in Austin, Texas, was not able to 
be with us this morning, but I hope she's listening on the 
Internet. And our son Bill, who is in his third year at 
Vanderbilt University Law School, was also not able to be here 
this morning. I hope he's studying hard, as I have every reason 
to believe that he is.
    And obviously, I want to make appropriate thanks to Senator 
Allen for his very gracious remarks, and for Senator Warner and 
the help and assistance that I've received from the members of 
the staffs of both of the Senators from Virginia.
    I have no opening statement other than those remarks.
    [The biographical information of Mr. Miller follows:] 
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    Senator Cornyn. Thank you very much, Mr. Miller.
    I am happy to have been joined by my colleague Larry Craig. 
And Senator Craig, if you have any comments at this point 
before we launch into the questions, I would be glad to 
recognize you for that purpose.
    Senator Craig. I have no questions, thank you very much, 
Mr. Chairman. I am here to listen and to get to know these 
three nominees better.
    Senator Cornyn. Excellent. We are glad you could be here in 
person.
    Well, let me just launch into a few questions here, if we 
may. First, Judge Rodgers, there was comment made about your 
experience as a magistrate judge, and I wonder if you could 
tell the Committee a little bit about your experience in that 
capacity--the kinds of cases you have heard, kinds of 
responsibilities that you have assumed and discharged as a 
Federal magistrate judge.
    Judge Rodgers. All right. Thank you, Mr. Chairman. If I 
might, before I embark on answering your question, I was remiss 
in not thanking Senator Bob Graham as well earlier. Senator 
Graham has submitted comments for the record, and I am deeply 
grateful to him for that and, again, was remiss earlier in not 
mentioning that.
    Senator Cornyn. We will certainly make those, as we will 
all other written comments made by Senators, as part of the 
record. Thank you for remembering that.
    Judge Rodgers. Thank you.
    The last 16 or so months have been probably the most 
rewarding in my career, and that's the time that I have been 
serving as a magistrate judge on the United States District 
Court for the Northern District of Florida. This position has, 
in my opinion and in my experience, been invaluable to me, and 
I think it will prove to be invaluable if I am fortunate enough 
to be confirmed by the Senate.
    As far as day-to-day responsibilities as a magistrate, I 
now perform many of the same or similar type of duties that the 
district court judges on our court perform. In our district, 
magistrate judges are fully utilized. And what I mean by that 
is they have both a civil and a criminal docket. They manage 
both.
    On the criminal side, I handle all felony initial 
appearance proceedings, beginning with, again, the initial 
appearance, the arraignment, detention hearings, which are of 
course evidentiary hearings. I do on occasion accept pleas in 
felony cases. That is done on a report and recommendation basis 
to the district court.
    We also have a very large misdemeanor docket in the 
Northern District of Florida due to the number of military 
facilities that we have in our area, as well as National 
Seashore areas. On the misdemeanor side of the docket, I handle 
the case from the inception all the way through the trial, 
through sentencings, and I will add that, as part of that, I do 
on occasion apply the Sentencing Guidelines in Class A 
misdemeanor cases. So I have some familiarity with the 
Sentencing Guidelines, which I think will prove useful to me 
down the road if I am confirmed.
    I also handle violation of probation hearings, as well as, 
again, sentencings, and handle matters pertaining to the grand 
jury as a magistrate.
    On the civil side of the docket, our duties are vast. And I 
would add that on the Northern District of Florida, our docket 
is approximately 90 percent civil. Over half of that docket is 
made up of cases that the magistrates handle on a day-to-day 
basis, those cases being Social Security cases, habeas corpus 
matters, petitions and motions, as well as prisoners' civil 
rights cases. And I handle those cases on report and 
recommendation to the district court judges.
    We also handle all of the civil discovery matters as 
magistrates on our district court, which, as you can imagine, 
keeps us very busy and requires a good command of the Federal 
Rules of Civil Procedure, which, again, I think will prove 
useful down the road if I am confirmed.
    The, I guess, more of a subjective benefit of having served 
as a magistrate is that it has allowed me to develop a certain 
judicial temperament. I enjoy my time in the courtroom as well 
as outside the courtroom, but I do believe that the time that 
I've spent in the courtroom as a magistrate judge has been 
invaluable to me and will prove to be so down the road.
    I think it has taught me a lot about respect for the 
litigants that come into the courtroom. As a district court 
judge, I'm the first--excuse me, as a magistrate judge, I am 
the, really, the first person that they see and hear from in 
the courtroom, and I feel that I represent the court. And as a 
district court judge, if I'm confirmed, I feel the same way, 
that I would have a duty and a responsibility to ensure that 
the litigants are treated fairly, respectfully, courteously. 
And not just the litigants, but the attorneys as well, the 
jurors, and every member of the public that comes into the 
courthouse, because it is a public forum.
    But in short, I think that the time that I've spent as a 
magistrate has been invaluable, and I think would prove to be 
invaluable down the road if I'm fortunate enough to be 
confirmed.
    Thank you.
    Senator Cornyn. Thank you very much.
    Mr. Titus, during your introduction, I was--one of the 
things that you have done or the honors that you have received 
caught my attention, in particular being admitted to the 
American College of Trial Lawyers, which I know is reserved, 
really, for people at the top of their profession, people who 
represent clients in courtrooms. And you, of course, having 
spent a lot of time in the courtroom as a lawyer, I know, in 
all likelihood, share my concern that there are a lot of people 
who can't afford to resolve their differences in a courtroom 
because of the cost. Particularly we are talking about civil 
cases. We know indigents who are charged with crimes can get 
court-appointed lawyers. But also the delay that seems to be 
built in too often in our civil litigation system precludes 
many people from seeking resolution of their disputes in a 
court of law.
    And I wondered what thoughts you might have about either 
case management techniques of alternative dispute resolution or 
other similar techniques you might be able to use to make sure 
that more people have access to the courts, and not less.
    Mr. Titus. Thank you, Mr. Chairman.
    One of the activities that I've been engaged in since 1989 
is being a member of the--the full long name for it is the 
Standing Committee on Rules of Practice and Procedure of the 
Court of Appeals of Maryland. We call it the rules committee. 
It's a tongue-twister.
    Since I've been on that committee, I was, among others, 
given the chairmanship of the management of litigation 
subcommittee. And one of the concerns of that Committee is to 
address the very type of thing that you're mentioning now. 
While I was chairman, we came up with a mandatory requirement 
for all circuit courts in our State to have differentiated case 
management plans, so that a complex case would be on one type 
of a track and a very simple case would be on a very simpler 
track.
    That has worked very well, because it means that a case 
that should be inexpensive to litigate ends up on a rather 
quick, short track for discovery and pre-trial and so forth. 
Another aspect of it is that there are mandatory conferences 
with the presiding judge early in the case, to discuss such 
things as discovery planning, but most importantly, to talk 
about the alternatives for resolving the matter without having 
to go through the full-blown process of preparing for and 
conducting an actual trial. So it provides for--and I've been 
sometimes disappointed that it hasn't been implemented as well 
as I'd like--but it provides for the possibility of early 
intervention by mediation.
    In the Federal court to which I've been appointed, 
significant use is made of the magistrate judges to conduct 
mediations. And I've participated in a number of them, and they 
do an extraordinarily good job of helping the parties identify 
a solution to their case, that is, not necessarily one that's 
going to be hammered out in a courtroom with uncertain results 
and possibly high costs.
    So those are obvious concerns to me, and that's how I've 
acted on them in the past.
    Senator Cornyn. Thank you very much. I think it was Ambrose 
Bierce who defined litigation as something to which you go in--
or people who resolved their disputes through basically a 
sausage-grinding process. And he said it more artfully than I 
can remember right now, but essentially sometimes it is hard, 
through the litigation process, to identify the winner from the 
loser; both of them are so battered and bruised and depleted 
during the process. So I am glad to hear of your commitment to 
differentiated case management land alternative dispute 
resolution.
    Mr. Miller, you are also an advocate of the use of 
alternative dispute resolution. Can you talk a little bit about 
your ideas about how those ADR techniques can be used to 
resolve disputes that will be pending before the U.S. Federal 
Court of Claims?
    Mr. Miller. Thank you, Senator Cornyn.
    I, as Senator Allen mentioned, have been a member of the 
Advisory Council of the Court of Federal Claims for the past 9 
years. And one of the things which the Court of Federal Claims 
has itself done very recently is to establish a pilot program 
seeking to utilize alternative dispute resolution techniques 
more aggressively to try to settle cases that should be settled 
at an early point in the proceedings.
    My own experience in that regard has been that there is no 
substitute for judicial involvement at a point in time, 
hopefully when the parties have conducted some discovery, know 
what the facts of the case are, and the parties would benefit 
from a neutral evaluation by a judge who can share with the 
parties what his reaction might be if he were confronted with 
the particular facts and circumstances. And the Court of 
Federal Claims ADR pilot program seeks to utilize so-called 
settlement judges for that purpose.
    And I would hope that that pilot program will be expanded--
modified as appropriate, given the court's experience with the 
pilot program--but expanded to be even more widely utilized in 
the Court of Federal Claims. I think that there has been a lot 
of progress in that regard to date in that court, and my 
impression is that the judges are very interested in expanding 
the reach of the ADR pilot program, which I support.
    Senator Cornyn. Senator Leahy, the Ranking Member of the 
Judiciary Committee, is unable to be here in person but has 
sent a written statement which will be made, without objection, 
part of the record.
    Mr. Miller, tell me, for those who may not be as familiar 
as you are with the work of the United States Court of Federal 
Claims, what you consider to be the greatest challenges that 
confront that court.
    Mr. Miller. Senator Cornyn, I think one of the greatest 
challenges confronting that court is ensuring the expeditious 
decision of cases. There was a time, I think, when 
practitioners generally regarded the Court of Claims, as it was 
then known, as a forum in which it could take a long time to 
get a decision. I was a member of a litigation practice reform 
task force in 1996, which studied that issue, made some 
recommendations. And my own experience is that, as a result of 
that activity and of the work of the Advisory Council, the 
Board of Governors of the Bar Association of the Court of 
Federal Claims, and the active participation of the judges of 
the Court of Federal Claims, that the court has come a long 
distance from the era when it was, I think, widely regarded as 
too slow in rendering decisions. And I think, at this point in 
time, that perception among the members of the bar has 
generally changed, and the court is in fact must more, in my 
judgment, conscious of the need to render its decisions quickly 
as well as well. And I think continuing that trend is one of 
the most significant challenges facing the court.
    Senator Cornyn. Are there case-disposition standards that 
exist for that court? And how is the court doing in terms of 
meeting those standards, if they exist?
    Mr. Miller. It is my understanding, Senator, that the court 
has an internal operating rule or procedure which contemplates, 
as I understand it, that within 30 days of the filing of the 
last brief or the conclusion of the hearing, the matter is set 
for argument. Argument, in turn, is set within 60 days of the 
last brief or conclusion of the hearing, and decision is 
rendered within 30 days of argument; therefore, within 90 days 
of the conclusion of the trial proceedings.
    My impression is that the court is generally adhering to 
that guideline. Now obviously there are cases which for one 
reason or another should be stayed pending, perhaps, a decision 
of the Court of Appeals for the Federal Circuit which may 
resolve the case or to permit the parties to arrive at an 
amicable resolution. But I think in principle that is the 
timetable which the court has internally set for itself. And as 
an outside observer, it is my impression that the court adheres 
to that timetable in most of the cases that come before it and 
are not otherwise candidates for some sort of delay.
    Senator Cornyn. Thank you.
    As each of you know, judges are not legislators. And 
sometimes a judge is confronted with a legal precedent, or 
maybe even a statute, which directs a result that they may not 
personally agree with or be happy with. Of course, the United 
States Supreme Court precedents are binding on all lower 
Federal courts, and circuit court precedents are binding on the 
district courts. I would like to hear a little bit from each of 
you--perhaps, Ms. Rodgers, starting with you--about your 
observations with regard to the duty of a United States Federal 
district judge to follow precedents of higher courts and the 
statutes passed by Congress in the event that they aren't 
unconstitutional.
    Judge Rodgers. Thank you, Mr. Senator, Mr. Chairman.
    If I am fortunate enough to be confirmed, my judicial 
philosophy as a district court judge would be one of respect 
for the limited powers of the district court, and also respect 
for the separation of powers. If I'm confirmed, I would leave 
the matter of law-making and legislating to the Congress, where 
it rightfully belongs. I wouldn't have any problem doing that 
whatsoever.
    Senator Cornyn. What is your approach to a--let's say the 
United States Supreme Court has not passed on an issue that you 
need to decide. Where would you look for guidance, and how 
would you arrive at a decision absent a clear precedent or a 
clear statute?
    Judge Rodgers. Well, the first place I would look would be 
to the law or precedent of our circuit, which would be the 11th 
Circuit Court of Appeals. In the absence of any guiding 
precedent in that circuit, I would most probably look to 
circuit court decisions in other circuits that might be 
analogous to the facts before me or the legal issues before me. 
In the absence of any guidance, or persuasive guidance, from 
other circuits, I would, in reviewing Federal legislation, I 
would first afford the statute a presumption of 
constitutionality. From there, I would apply statutory rules 
and principles of construction to try to arrive at the 
statute's meaning. And in the event the statute was not clear 
or there was some ambiguity there, I would rely on legislative 
history to guide me in determining the statute's meaning.
    Senator Cornyn. Mr. Titus, do you agree that occasionally 
judges have to make decisions that are unpopular or perhaps may 
not even be consistent with their own personal preferences 
because precedent, faithful application of precedent or a 
statute requires it?
    Mr. Titus. Thank you, Mr. Chairman. I don't think there's 
any question but that a judge's personal views are irrelevant. 
When it comes to a case that comes before a judge that has a 
controlling precedent or a statute that dictates the result, 
you have to follow it.
    I have been an advocate for people who I didn't like or 
whose views I didn't like, and that's the nature of the 
advocate's job. Your job is to be the advocate. And a judge is 
in the same situation. You bury your personal feelings and you 
follow the precedent, follow what the law is.
    Senator Cornyn. Are you saying that the role of an advocate 
is represent the client faithfully without regard to whether 
you like the client or even agree with their legal arguments?
    Mr. Titus. That's what the Code of Professional 
Responsibility says--zealously represent the client to the best 
of my ability.
    Senator Cornyn. And what should we glean from, let's say, 
for example, the kinds of cases that you have handled and maybe 
the kinds of positions that you have taken as an advocate on 
behalf of a client, what should we glean from that in terms of 
your ability to perform the duties of a United States Federal 
district judge. Is it relevant at all?
    Mr. Titus. Well, I have been involved in cases where the 
positions I took were not necessarily popular. One of those was 
mentioned by Senator Mikulski. I mean, I was having people 
booing at me and everything else trying to get an 
administrative headquarters for an organization to provide 
medical care for the homeless. But I had a client and I had a 
job to do, and we got the job done.
    Senator Cornyn. Does that have any bearing, do you think, 
on how you will regard such cases, or other cases, as a judge? 
I guess what I am trying to get at--I am not asking the 
question very well--but what the difference in the role is 
between that of an advocate and that of a judge, and what 
relevance your conduct as an advocate should have in terms of 
our consideration of whether you should be confirmed as a 
judge.
    Mr. Titus. Well, what I'm trying to say is I feel very 
comfortable with the constraints that are upon a judge to 
follow precedent, to make decisions that may not be popular but 
which are bound by--are controlled by precedent or by statute. 
And I was simply trying to draw an analogy to the fact that 
lawyers, as advocates, frequently have to advocate positions 
with which they may not personally agree but which is in the 
interest of the client to advocate. And I'm comfortable with 
making that transition and keeping my own personal views, 
whatever they may be, not in the forefront of any decision 
making as a jurist.
    Senator Cornyn. Thank you.
    Mr. Miller, would you comment on those same questions?
    Mr. Miller. Well, I think I have actually little to add to 
the comments of Judge Rodgers and Mr. Titus. I would say that I 
think the first task, actually both of the advocate and, I 
think, of the judge, is to, having ascertained the relevant 
facts, look up the law. And just as the advocate seeks to 
marshall precedents in support of his client's position, so, it 
seems to me, the judge, in analyzing the existing law and 
relevant authority, is seeking to find out, at least initially, 
if it's possible to do so, what the law is. And having 
ascertained that, assuming he is able to do so, that in turn 
sets the course that the judge necessarily is on to make a 
decision, regardless of what his personal views of what might 
be good policy in the circumstances might be.
    Senator Cornyn. Thank you very much.
    Well, I want to thank each of you for being here today to 
answer a few questions in addition to the multitude of 
questions you have already answered to even get to this point, 
and to congratulate you and your families on your nomination. 
It is my hope that your nominations will be voted out of the 
Committee quickly and that you will be speedily confirmed by 
the United States Senate. I think your record, your answers to 
these questions and others have shown not only your 
qualification for the office to which you have been nominated, 
but your temperament is appropriate to that job, and your 
approach to the unique role of judging in our legal system 
commends itself toward your confirmation.
    There may be other questions that will be tendered to you 
in writing by members of the Committee. That is their right. 
And we will hold the record open for that purpose.
    But with that, this hearing today will be concluded. And 
thank you again for being here.
    [Whereupon, at 11:00 a.m., the Committee was adjourned.]
    [Questions and answers follow.]
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  NOMINATION OF DORA L. IRIZARRY, OF NEW YORK, NOMINEE TO BE DISTRICT 
               JUDGE FOR THE EASTERN DISTRICT OF NEW YORK

                              ----------                              


                       WEDNESDAY, OCTOBER 1, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Kyl, Schumer, and Durbin.

  OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 
                        STATE OF ARIZONA

    Senator Kyl. This hearing will come to order.
    The agenda of the Senate Judiciary Committee this morning 
is to hear from a candidate for Federal district court and 
witnesses in connection with her nomination. The candidate is 
Dora Irizarry. She is a candidate for the United States 
District Judge for the Eastern District of New York, and she is 
going to be introduced this morning by the Senator from New 
York, who I will turn to in just one moment.
    Let me explain for those of you in the audience. As is 
frequently the case, the Members of the Senate are each 
supposed to be in four different places as of 10 o'clock, so we 
are going to take turns here in conducting this hearing. I want 
to make two points.
    First of all, the fact that not everybody is up here does 
not mean that we do not care or that we will not all review the 
record and talk to the people who are here in moving the 
nomination forward or dealing with the nomination. And, 
secondly, therefore, the failure of a lot of members to cross-
examine and quiz and ask a lot of questions and so on does not 
denote lack of interest. That interest will be certainly 
revealed as the nominee proceeds through the process and we 
have additional hearings. But for this hearing this morning, I 
regret to say there may be some lack of attendance from time to 
time, and I just do not want any of you to take that as a lack 
of respect for this nominee or for the process. It certainly 
does not represent that at all.
    Now, I know that Senator Schumer--at least I believe 
Senator Schumer would like to introduce the nominee, and, 
therefore, let me call upon the Senator from New York.

PRESENTATION OF DORA L. IRIZARRY, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE EASTERN DISTRICT OF NEW YORK, BY HON. CHARLES E. 
       SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. I very much 
appreciate the opportunity not only to be here today and serve 
on this Committee, but particularly to introduce our nominee, 
Dora Irizarry, to the Federal Court for the Eastern District of 
New York, which represents four counties that have a population 
of 7 million people, including my home county of Brooklyn. And 
our nominee is from Brooklyn as well.
    Now, I just want to say before I begin, Senator Clinton 
would have been here as well but had prior scheduling, as the 
Chairman said. At 10:00 in the morning, we are supposed to be 
in four places at once, but she wanted to convey her support 
for the nominee as well.
    Also, I would say that Judge Irizarry's parents and son, 
Justin, could not be here today, but I know they are very proud 
of Dora's accomplishment. And I would also note just for the 
record, a sign of our times, her sister and brother-in-law 
could not be here either. Judge Irizarry's sister is an Army 
civilian and her brother-in-law is an enlisted man, and they 
both are stationed in Fort Buchanan in Puerto Rico. So I want 
to congratulate them, wish them well, and thank them for the 
service to our country.
    Now, coming here today to introduce Judge Irizarry is a--
excuse me--is a particular pleasure for me. So pleasurable that 
I am overcome here today.
    [Laughter.]
    Senator Schumer. It is a particular pleasure for me because 
her nomination is an example, Mr. Chairman, of what happens 
when the process works right. We are filling all of the 
vacancies on New York's Federal courts with nominees who have 
bipartisan support. All of the relevant parties, myself and 
Senator Clinton, Governor Pataki, and the White House, are not 
only comfortable supporting all of the judges we put on the 
Federal bench, but we believe each of them will do the Nation a 
credit as members of the Judiciary.
    The Committee is familiar with the judge's biography, so I 
am just going to touch on a couple of highlights.
    She was born in Puerto Rico but raised in New York, and she 
graduated from one of the best high schools not only in New 
York City but in the country, and that is the Bronx High School 
of Science, which you have to take a test to pass and it is 
very hard to get in.
    From there she went to Yale College--not bad--and Columbia 
Law School--excellent; my brother went there--before embarking 
on a 16-year distinguished career as a New York prosecutor. She 
was appointed to the New York City Criminal Court by Mayor 
Giuliani and then to the Court of Claims by Governor Pataki. 
She left the bench a few years ago, ran for public office, and 
has been in private practice since.
    Now, as the Committee knows, because I talk about this all 
the time--and I also want to welcome so many guests from New 
York who are here today. I want to thank them all for being 
here, including--we have some judges who are here, we have some 
members of the bar, some members who have been very active in 
the Latino legal community, and just friends of the judge. And 
they fill the room, and I want to welcome everyone here. For 
fear of offending anyone, I will not single anybody out, except 
there is one person I served in the Assembly with in 1974 when 
I was first elected to the Assembly at the young age of 23, and 
that is Judge Michael Pesce, my friend who serves on the 
Brooklyn Supreme Court. But I will not tell them what we talked 
about--well, can I? Jon would appreciate it. No? All right. I 
will tell him privately. In any case, so I welcome everybody 
here.
    Now, you may not be familiar, but the Committee knows, 
because I talk about this a lot. I have three standards when I 
help select judges in New York and when I vote on judges here 
in Washington. And they are these: excellence, moderation, and 
diversity.
    Excellence: A judge should be legally excellent. The 
Federal courts have awesome power, and we do not want someone's 
brother-in-law or political hack. We want the best.
    Moderation: I do not like judges too far right. You know 
that, Mr. Chairman. I also do not like judges too far left and, 
in fact, on my legal Committee have knocked out a number of 
people who the Committee thought highly of because I thought 
they were ideologues of the left. And I think ideologues, 
whether they be of the far right or the far left, want to make 
law. And the Founding Fathers wanted people to interpret the 
law. Nothing against these ideologues. They care passionately. 
But when you care so passionately about something, it is sort 
of harder to just interpret law rather than make it.
    And my third qualification is diversity. I do not think the 
bench should just be white males. Obviously, that is an 
important standard as well.
    Well, Judge Irizarry clears the bar on all three. First, 
her background shows good, excellent training and experience, 
and she has had an excellent record. I was impressed by her 
background. But when I met with her--I had read her biography--
I was very impressed, Mr. Chairman, with her legal knowledge 
and with her candor. There was no trying to beat around the 
bush, figure out what I wanted to hear and then say it. She 
said what she thought. She also had a great grasp of things.
    I always ask nominees: What are some opinions that you are 
critical of by the Supreme Court or other? And she gave two 
really thoughtful opinions, not the kind of thing you would see 
that she was critical of. One she was critical of from the 
right; one she was critical of from the left. But really 
thoughtful and impressive.
    Now, I know that the ABA has found her not qualified, but 
their concerns are not based on her legal knowledge or her 
intellectual ability. Everybody gives her high marks on those. 
Rather, the ABA's concerns regard the standard of temperament 
from the bench. And I asked Judge Irizarry about these concerns 
when she came to be interviewed by me. Her answers were quite 
persuasive. While she suggested the concerns may have been a 
bit exaggerated in some instances, she did not duck it. She 
took full responsibility for the temperament concerns, 
discussed candidly the growing she has done since then, and 
expressed a genuine commitment to ensuring that these concerns 
do not follow her to the bench.
    As my colleagues know, when a red flag is raised regarding 
a judicial nominee, I believe the burden is on him or her to 
demonstrate that he or she deserves lifetime appointment to a 
powerful post of Federal judge. In my opinion, Judge Irizarry 
has carried that burden and carried it well.
    I am proud to support her nomination, proud to commend her 
to my colleagues on the Committee, and look forward to her 
swift confirmation by the full Senate.
    Thank you, Mr. Chairman.
    Senator Kyl. Thank you very much, Senator Schumer.
    Senator Hatch had an opening statement, which detailed much 
of the information that you raised, and I am going to insert 
that in the record rather than take the time to read it here. 
But I did want all of you who traveled to be here today to know 
of Senator Hatch's strong support for the nominee and his 
conclusion, much the same as Senator Schumer has expressed 
himself, as well as a recitation of Judge Irizarry's record. 
And so that will be made a part of the record.
    Senator Schumer. Mr. Chairman, I would just ask unanimous 
consent that Senator Leahy, who is the ranking Democrat on the 
Committee, also in support of the judge's nomination, that his 
full statement be added to the record.
    Senator Kyl. Without objection, it will be included in the 
record.
    Now, Judge Irizarry, if you would take the dais, and I 
think I am going to ask you, first of all, if you would like to 
introduce members of your family who are here.
    Judge Irizarry. Thank you very much. Good morning to 
everyone, and good morning, Mr. Chairman. Good morning, Senator 
Schumer. I thank you very much for your continued and 
unwavering support and for that very generous and kind 
introduction.
    If you would just bear with me, please, I would like to 
make special note of some people who did come a long way to be 
here with me today:
    The Honorable Michael Pesce, who is the Presiding Justice 
of the Appellate Term in New York State Supreme Court for the 
Second and the Eleventh Districts, which covers part of the 
Eastern District of New York.
    The Honorable Lewis L. Douglass, Justice of the Supreme 
Court of the State of New York, who sits in Brooklyn Supreme 
Court and is also the Chair of the Franklin H. Williams 
Commission on Minorities in the Courts.
    And James Castro-Blanco, immediate past president of the 
Puerto Rican Bar Association and also a member of the Mayor's 
Committee on Judicial Nominations.
    As Senator Schumer noted, my son, Justin, could not be 
here. He is in school in Idaho, and they are finishing up the 
term. So it was a little difficult for him to be here today. 
And my parents are a little elderly, and it was difficult for 
them to travel from Puerto Rico. And you have heard about my 
sister, Rosario, and Gilbert Marrero, and they are serving 
their country with the Army, and it was difficult for them to 
get away. And they are stationed in Puerto Rico.
    And I do not want to disrespect all of the people who came 
here today. There are too many names to mention. But I do want 
to make special note of certain individuals who are here today: 
Manuel Romero, who is president-elect of the Brooklyn Bar 
Association; Dolly Caraballo, who is the current president of 
the Puerto Rican Bar Association; Telesforo DelValle, Jr., who 
is here with his wife, Claudia; and he is past president of the 
Puerto Rican Bar Association, past president of the New York 
Region Hispanic National Bar Association, past vice president 
of the New York State Criminal Trial Lawyers Association, and 
has sat on many judicial nominating committees; Honorable 
Francois Rivera from New York State Supreme Court sitting in 
Brooklyn; Honorable Ariel Belen, Justice of the Supreme Court, 
State of New York, sitting in Brooklyn, and is one of the 
founders of the Cervantes Society, which is an umbrella 
organization within the Office of Court Administration, which 
joins together all Hispanic employees from the custodians to 
the judges under one umbrella group. His daughter, Lauren, who 
is 11 years old, is with us here today. And Fredric Newman, who 
is partner of the firm that I am currently with, Hoguet, 
Newman, and Regal, and I believe Judge Douglass' daughter is 
here today with his grandson as well.
    Thank you very much, Mr. Chairman, for the opportunity.
    Senator Kyl. Well, thank you, and we welcome all of you to 
this hearing and are delighted to have you here.
    Now, may I swear you in? Would you raise your right hand 
and affirm 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 Irizarry. I do so swear.
    Senator Kyl. Thank you. Now, Judge, let me ask you if you 
would like to give an opening statement, and then members of 
the Committee can refer questions to you.

STATEMENT OF DORA L. IRIZARRY, NOMINEE TO BE DISTRICT JUDGE FOR 
                THE EASTERN DISTRICT OF NEW YORK

    Judge Irizarry. Thank you for the opportunity to make an 
opening statement, but I think that I will waive that at this 
time.
    Thank you.
    [The biographical information follows:] 
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    Senator Kyl. All right. Let me just ask you one or two pro 
forma questions. You have dealt with these in your 
questionnaire to the Committee, but the question that most 
members want to be sure has been affirmed in oral testimony is 
the question of how you would approach decisionmaking and what 
you would base your decisions on as a judge. As you know, there 
has been some political contention here about confirmation of 
judges, and I think the first thing we always want to know or 
to hear from you is precisely how you would approach the issue 
of judging, of making decisions?
    Judge Irizarry. Thank you for asking that question. It is 
an important question. I would follow the law, the case law as 
set forth by the United States Supreme Court and, of course, by 
the court of my circuit, the Second Circuit, and, of course, 
follow the Constitution of the United States. It is the role to 
follow the precedent as set forth by those courts and by the 
Constitution.
    Senator Kyl. And occasionally there are cases of first 
impression, or at least counsel argue that there are cases of 
first impression and you have to sometimes go beyond what is 
clear precedent. In those cases, how would you approach the 
decisionmaking?
    Judge Irizarry. Well, I would certainly go to the statute. 
There is usually a relevant statute that is of concern, whether 
it's procedural or substantive. And if the meaning is not 
plain, then certainly I would go to the legislative history and 
look at what the legislative intent was, and certainly the 
intent of Congress should be given deference in that regard.
    Senator Kyl. To the extent that you can divine the 
intentions of 100 people who on any given day can be at least 
on two sides of any particular issue, good luck when you have 
to do that.
    [Laughter.]
    Senator Kyl. Maybe with that I should turn to my colleague, 
Senator Schumer, and see if he has any questions. He probably 
would want rebuttal time first.
    Senator Schumer. No rebuttal time, Mr. Chairman. And we 
work quite well together on many issues, and we disagree on 
some, as he said.
    I would say that it is probably a calm day in the Senate 
when there are only two sides to the issue. But I have asked, 
of course, Judge Irizarry many questions and thoroughly 
reviewed her record, and I have no further questions here.
    Senator Kyl. Thank you. Then let me just ask one last 
question for you to make a comment on the record. There will be 
testimony, as was noted, regarding the American Bar 
Association's rating, and perhaps I should have mentioned that 
we will have in our panels--the next panel will be Thomas 
Hayward, Jr., Chair of the Standing Committee of the Federal 
Judiciary, American Bar Association--we are very happy to have 
him with us--and Pat Hynes, former Chair of the Standing 
Committee on the Federal Judiciary, American Bar Association. 
And then the final panel will consist of James Castro-Blanco 
from New York, Hon. Lewis Douglass, and Hon. Michael Pesce, who 
have all been previously introduced.
    So let me just ask you if you would like to comment on the 
issue of temperance that--judicial demeanor and temperance that 
Senator Schumer alluded to, if you would like to say anything 
about that before these other panelists are called forward.
    Judge Irizarry. Thank you, Mr. Chairman. I am grateful for 
the opportunity to address that issue. I'm grateful for this 
hearing to have that opportunity.
    Like the Committee, when the ABA set forth its finding or 
the rating, I received the same letter that the Senate got, 
which was one sentence just indicating what the rating was. 
And, frankly, I had thought that the interview had gone rather 
well, so I was a bit surprised at the rating.
    Let me start by just saying this, what I believe is the 
proper temperament of a judge, and certainly temperament is an 
important aspect or element to be considered in determining 
whether someone should be a judge or not. And temperament, 
proper temperament and proper demeanor should be at the 
forefront of any judge's thoughts anytime that he or she is in 
the courtroom or out of the courtroom.
    I believe that a judge should have the proper respect and 
reverence for the law; a judge should be respectful of the 
dignity of all who come before him or her and respectful of 
their opportunity to be heard and give them that opportunity to 
be heard. Everyone should have their day in court. It is 
important for a judge to have a sense of justice and, most 
importantly, for a judge to be fair, understanding, and 
compassionate.
    I believe that I have conducted myself in that manner, and 
certainly I have always striven to achieve all of those goals 
while I have been on the bench. And so I was, frankly, very 
surprised to hear of these allegations because during the time 
that I was sitting as a judge, I had never received any 
complaints. I have always had the utmost confidence of my 
superiors, who never seemed to hesitate to ask me to take over 
in very difficult situations, including one incident I recall 
in criminal court where there were 800 cases on the calendar, 
we had wall-to-wall people outside and inside the courtroom. 
This is in criminal court. And the judge who was sitting in 
that part had had a problem with Legal Aid, and they had 
stormed out in protest the day before and were refusing to 
handle cases. And my supervisor asked me to please step in and 
see if I couldn't take care of all of those people's cases. And 
I did. I worked it out with the attorneys. I had a meeting with 
everyone concerned--prosecutors and everyone from the defense 
panel--and we were able, thank goodness, to dispense justice 
efficiently and as quickly as possible and got everyone out by 
6:30 in the evening.
    And certainly those are very trying situations, and for 
anyone who has not practiced in the courts of New York State, 
and specifically in New York City, it's very hard to explain to 
you what those courts are like. They are the busiest courts in 
the country, particularly criminal court, where an average 
calendar can run 150, 200 cases a day. And you have to do that 
between 9:30 and 5 o'clock. You deal with maybe 50, 70 
different lawyers. In Supreme Court, you can have a calendar 
that can run up to 100 cases, and, again, you're dealing with 
similar numbers of lawyers. Everyone comes with their own 
agenda.
    As a judge, my only agenda is to make sure that the cases 
are handled properly, that everyone is heard. Sometimes you're 
dealing with litigants who are mentally ill. In the criminal 
term where I sat, sometimes you have defendants who are 
violent. And so you have safety concerns for everyone in the 
courtroom, including the attorneys as well.
    And so you have lawyers who come in with their own agenda. 
Sometimes--many times they are unprepared. They are late. 
Everybody is rushing off. They also have many places to be at 
the same time, so everyone is rushing. And very often they want 
to take control of the courtroom.
    And so it takes a very firm and tough judge to be able to 
take control of the courtroom, and at the same time be mindful 
that you have to be fair and you have to be just and you have 
to be compassionate, and that the appropriate amount of time 
has to be taken for each case to be able to handle it properly. 
At times it means modulating the tone of your voice, and 
certainly there could be some who could mistake that as yelling 
or screaming. Everybody has a different opinion as to what is 
yelling and what is screaming. And it may be that people are 
unhappy with the ruling that I have made. In an adversarial 
system, not everyone is going to be happy with the outcome.
    So I am truly sorry to know that anyone felt offended, that 
anyone might have been hurt by anything that I might have done 
in the courtroom. Certainly that was not my intention. I firmly 
believe that--in the 7 years that I sat on the bench, there was 
a mellowing-out process that I went through and gradually sort 
of learned what techniques kind of worked better. You learn to 
be a bit more patient with attorneys who are brand new, and you 
try to work within that framework and try to follow those kinds 
of high, lofty goals that I just outlined for the Committee 
with respect to what is appropriate judicial temperament.
    Chairman Hatch. Well, thank you so much.
    Senator Kyl. Might I just say thank you for that answer. I 
think it was an explanation that needed to be on the record, 
and it was well put. And as I announced earlier, we will be 
doing some musical chairs, but you are now blessed to have the 
Chairman of the Judiciary Committee presiding, and thank you 
very much
    Judge Irizarry. Thank you, Senator. Good morning, Mr. 
Chairman.
    Chairman Hatch. Good morning. We are happy to have you 
here, and I have no questions for you. I understand they have 
covered some of the questions that others may have. So with 
that, we welcome you to the Committee, and we will complete 
this hearing. Okay?
    Judge Irizarry. Thank you very much. I thank you for this 
opportunity.
    Chairman Hatch. Thank you so much, Judge.
    Our third panel will be Thomas Z. Hayward, Jr., the Chair 
of the Standing Committee on the Federal Judiciary, the 
American Bar Association, and Pat Hynes, the former Chair of 
the Standing Committee on the Federal Judiciary, the American 
Bar Association. We will be happy to take your testimony at 
this time. We welcome both of you. We know that you have very 
difficult jobs here and that it takes a lot of your time, but 
it means a lot to the Bar Association and it means a lot to 
this Committee.
    We will turn to you, Mr. Hayward, and if you could limit 
yourself to 5 minutes each, we would appreciate it, because I 
am due down at Finance as well.

STATEMENTS OF THOMAS Z. HAYWARD, JR., CHAIR, STANDING COMMITTEE 
  ON FEDERAL JUDICIARY, AMERICAN BAR ASSOCIATION, WASHINGTON, 
 D.C., AND PATRICIA M. HYNES, FORMER CHAIR, STANDING COMMITTEE 
  ON FEDERAL JUDICIARY, AMERICAN BAR ASSOCIATION, WASHINGTON, 
                              D.C.

    Mr. Hayward. Thank you, Mr. Chairman and members of the 
Committee. My name is Thomas Z. Hayward, Jr. I am a practicing 
lawyer in Chicago, and I am Chair of the American Bar 
Association's Standing Committee on Federal Judiciary. With me 
today is Patricia Hynes, a former member and past Chair of the 
Committee, and a circuit member for this investigation. We 
appear here to present the views of the association on the 
nomination of Dora Irizarry to be a United States District 
Court Judge for the Eastern District of New York. After careful 
investigation and consideration of her professional 
qualifications, a majority of our Committee is of the opinion 
that the nominee is not qualified for the appointment. A 
minority found her to be qualified.
    Before discussing the specifics of this case, I would like 
to briefly review the committee's procedures so that you will 
have a clear understanding of the process the Committee 
followed in this investigation. A more detailed description of 
the committee's procedures is contained in our committee's 
booklet, ``Standing Committee on Federal Judiciary: What It Is 
and How It Works.''
    The American Bar Standing Committee investigates and 
considers only the professional qualifications of a nomine: his 
or her competence, integrity, and judicial temperament. 
Ideological or political considerations are not taken into 
account. Our processes and procedures are carefully structured 
to produce a fair, thorough, and objective peer evaluation of 
each nominee. A number of factors are investigated, including 
intellectual capacity, judgment, writing and analytical 
ability, industry, knowledge of the law, breadth of 
professional experience, character, integrity, compassion, 
courtesy, open-mindedness, patience, freedom from bias, 
commitment to equal justice under the law, and general 
reputation in the legal community.
    The investigation is ordinarily assigned to the Committee 
member residing in the judicial circuit in which the vacancy 
exists, but it may be conducted by another Committee member or 
former member. In the current case, Mrs. Hynes, in her capacity 
as a former member, was asked to undertake this investigation 
because the current member from the Second Circuit was already 
undertaking another investigation.
    The starting point of an investigation is the receipt of 
the candidate's responses to the public portion of the Senate 
Judiciary Committee questionnaire. These responses provide the 
opportunity for the nominee to set forth his or her 
qualifications--professional experience, significant cases 
handled, major writings, and the like. The circuit member makes 
extensive use of the questionnaire in the investigation. In 
addition, the circuit member examines the legal writings of the 
nominee and personally conducts extensive confidential 
interviews with those likely to have information regarding the 
integrity, professional competence, and judicial temperament of 
the nominee, including, where pertinent, Federal and State 
judges, practicing lawyers in both private and government 
service, legal services and public interest lawyers, 
representatives of professional legal organizations, and others 
who are in a position to evaluate the nominee's integrity, 
professional competence, and judicial temperament. This process 
provides a unique peer review aspect to our investigation.
    Interviews are conducted under the assurance of 
confidentiality. If information adverse to the nominee is 
discovered, the circuit member will advise the nominee of such 
information if he or she can do so without breaching the 
promise of confidentiality. During the person interview with 
the nominee, the nominee is given a full opportunity to rebut 
the adverse information and provide any additional information 
bearing on it. If the nominee does not have the opportunity to 
rebut certain adverse information because it cannot be 
disclosed without breaching confidentiality, the investigator 
will not use that information in writing the formal report and 
the committee, therefore, will not consider those facts in its 
evaluation.
    Sometimes a clear pattern emerges in the interviews, and 
the investigation can be briskly concluded. In other cases, 
such as this one, conflicting evaluations over some aspect of 
the nominee's professional qualifications may arise. In those 
instances, the circuit member takes whatever further steps are 
necessary to reach a fair and accurate assessment of the 
nominee.
    Upon completion of the investigation, the circuit member 
then submits an informal report on the nominee to the Chair, 
who reviews it for thoroughness. The circuit member then 
prepares a formal investigative report, containing a 
description of the candidate's background, summaries of all 
interviews conducted, including the interview with the nominee, 
and an evaluation of the candidate's professional 
qualifications, which is then circulated to our entire 15-
member committee, together with the nominee's completed Senate 
Judiciary questionnaire and copies of any other relevant 
materials. After careful consideration of the formal report and 
its enclosures, each member submits his or her vote to the 
Chair, rating the nominee ``Well Qualified,'' ``Qualified,'' or 
``Not Qualified.''
    I would like to emphasize, Mr. Chairman, that an important 
concern of the Committee in carrying out its function is 
confidentiality. The Committee seeks information on a 
confidential basis and assures its sources that their 
identities and the information they provide will not be 
revealed outside the committee, unless they consent to 
disclosure or the information is so well known in the community 
that it has been repeated to the Committee member by multiple 
sources. It is the committee's experience that only by assuring 
and maintaining such confidentiality can sources be persuaded 
to provide full and candid information. However, we are also 
alert to the potential for abuse of confidentiality. The 
substance of adverse information is shared with the nominee, 
who is given full opportunity to explain the matter and to 
provide the additional information bearing on it. And as I 
previously indicated, if the information cannot be shared, the 
information will not be used by the Committee in reaching its 
evaluation.
    Now, turning to the investigation specifically of this 
nominee, Judge Irizarry was nominated on April 28, 2003. Carol 
Dinkins of Houston, Texas, who was then Chair of the Standing 
Committee, and my predecessor, assigned Mrs. Hynes to the 
investigation, as explained above. She began her investigation 
shortly after receiving the nominee's May 23, 2003, responses 
to the public portion of the Senate Judiciary Committee 
questionnaire.
    On July 9th, Mrs. Hynes prepared and submitted to Chair 
Dinkins an informal report that presented the results of her 
thorough investigation, including summaries of all of her 
confidential interviews and a description of her interview with 
the nominee. On July 11th, Mrs. Hynes' formal report was 
transmitted to all members of the committee. Those who had 
questions were encouraged to contact Mrs. Hynes directly. After 
all Committee members had an opportunity to study the report 
and the attachments, they reported to the Chair their votes on 
the qualifications of the nominee. A majority of the Committee 
found the nominee ``Not Qualified'' and a minority found her 
``Qualified.'' This vote was reported to you on July 21, 2003.
    With your indulgence, Mr. Chairman, I will now ask Mrs. 
Hynes to describe her investigation of the nominee.
    Chairman Hatch. Thank you so much, Mr. Hayward.
    Ms. Hynes, we are happy to have you here.
    Ms. Hynes. Good morning, Mr. Chairman. I appreciate the 
opportunity to be here. My name is Patrician Hynes. I am a 
trial lawyer from New York, and as Mr. Hayward indicated, I am 
a former member of this Committee and a past Chair of this 
committee. With that background, I was asked to undertake the 
investigation of the qualifications of Dora Irizarry to be a 
United States District Judge for the Eastern District of New 
York.
    During my membership on the committee, both as the Second 
Circuit member and as Chair, I participated in numerous 
investigations of potential and actual nominees to the U.S. 
Courts of Appeals and to the U.S. District Courts. My 
investigation of this nominee was conducted in the same manner 
as all investigations by the Standing Committee are conducted, 
as just explained by our Chair, Thomas Hayward.
    My investigation was conducted over a two-and-a-half-month 
period, during May, June, and July of this year. It included 
approximately 70 confidential interviews, including more than 
50 lawyers and 17 judges. During each conversation I inquired 
how the person knew, if at all, the nominee and what the person 
knew about the nominee's professional competence, judicial 
temperament, and integrity that would bear on her 
qualifications to serve as a United States district judge. I 
also inquired if they knew any reason why the nominee was not 
qualified to serve as a district court judge.
    I made a particular effort to locate and speak to lawyers 
who had had trials before this nominee because this nominee was 
a sitting judge, and the best way to find out how a judge 
conducts themselves is to ask lawyers who appear before that 
judge. And Judge Irizarry sat in the criminal court in 
Brooklyn. She also sat in the Supreme Court in Brooklyn, the 
Supreme Court in Manhattan. For a short time at the beginning 
of her career as a criminal court judge, she sat in the Bronx.
    In addition to the interviews, I also reviewed other 
materials, her questionnaire, decisions she had written. I also 
met privately with Judge Irizarry in her office. And during the 
course of our meeting, concerns that had been identified during 
my investigation were discussed with Judge Irizarry, and she 
was given an opportunity to rebut the adverse information and 
provide any other additional information.
    The majority of the lawyers that I interviewed raised 
concerns about Judge Irizarry's temperament. These lawyers were 
both prosecutors and defense lawyers from the three different 
counties where she had sat as a judge, both on the criminal 
court and the Supreme Court, being Bronx, Manhattan, and 
Brooklyn. These comments by the lawyers who had appeared before 
Judge Irizarry all had a starkly common theme and included 
statements such as that Judge Irizarry was gratuitously rude, 
abrasive, and demeaned attorneys; that she flew off the handle 
in a rage for no apparent reason and would scream at attorneys; 
that she was impatient and did not fully listen to legal 
arguments and did not have a good grasp of the legal issues 
presented to her; and that she took offense easily, was short-
tempered and volatile, and got angry when lawyers disagreed 
with her; that she was rigid and dismissive and did not treat 
lawyers with respect.
    On the issue of judicial temperament, the committee's 
background booklet states that ``in investigating judicial 
temperament, the Committee considers the nominee's compassion, 
decisiveness, open-mindedness, courtesy, patience, freedom from 
bias and commitment to justice under the law.''
    Our committee, in reviewing my report on the nominee, could 
not and did not discount the number of complaints about the 
nominee's temperament. Certainly some attorneys who appeared 
before her have not encountered problems, but unfortunately 
they do not adequately make up for the substantial number of 
negative comments concerning her judicial temperament. The 
breadth and depth of these negative comments signal a serious 
control issue. If the investigation had disclosed that the 
nominee's judicial temperament had improved over the years as 
she acquired more experience, the Committee would not have 
exhibited the same amount of concern. However, the concerned 
comments about Judge Irizarry's lack of judicial temperament 
appeared consistently until her resignation from the State 
bench to run for political office.
    The best judge in the world can have a bad day from time to 
time, and a judge who is smart and trying to run a tight 
courtroom will almost inevitably leave some of the lawyers or 
litigants with a bad taste from time to time. But this 
investigation and the information gathered goes beyond the 
thesis that, occasionally, with a crowded docket and stressful 
conditions, a judge may step over the line insofar as 
temperament is concerned. After careful consideration of my 
report, a major of the Committee was of the view that the 
nominee is not qualified for the position. A minority of the 
Committee found her to be qualified.
    Our Committee takes most seriously its responsibility to 
conduct an independent investigation of the professional 
qualifications of judicial nominees. There is no bright-line 
litmus test as to whether a nominee is or is not qualified. Our 
recommendation is not the result of tallying the comments--pro 
and con--about a particular nominee. Rather, in making our 
evaluation, we draw upon our previous experience, the 
information and knowledge we gain about the nominee during the 
course of our investigation, and our independent judgment. I 
must stress that we apply the same standards and criteria to 
all nominees.
    In my service on the committee--and I was a member of the 
Committee for 5 years and a Chair for a year--I have either 
conducted or reviewed literally hundreds of reports on judicial 
nominees. And, unfortunately, I have never before experienced 
such widespread and consistent negative comments about a 
nominee's temperament.
    I thank you for allowing us to share our views with the 
committee.
    Chairman Hatch. Well, thank you so much.
    Senator Durbin, do you have any questions?
    Senator Durbin. How frequently has the ABA come to this 
conclusion about nominees?
    Ms. Hynes. On the basis of temperament, Senator?
    Senator Durbin. Yes.
    Ms. Hynes. I have not gone back and done a history. I would 
say infrequently. That I can say for certain.
    Senator Durbin. Mr. Hayward, do you know?
    Mr. Hayward. Yes, Senator. Contemplating that question, I 
went back and checked, and it has been most infrequent. It goes 
all the way back to before President Reagan was in office as 
President of the United States.
    Senator Durbin. That was the only other example you could 
find?
    Mr. Hayward. Yes, sir. There has been nothing since then.
    Senator Durbin. I am wondering, Ms. Hynes. I found in my 
experience, having run for political office and practiced law, 
that full-time lawyers sometimes look down their noses at 
people who get involved in political life, do not think they 
are real lawyers. Did you notice in any of the reactions to 
Judge Irizarry perhaps that feeling because she had chosen to 
be a political candidate?
    Ms. Hynes. Not at all, Senator. The comments that were made 
by lawyers who appeared before her, these were lawyers who had 
appeared before us long before she obviously resigned from the 
bench. No one made any comment to me about her resignation to 
run for office.
    Senator Durbin. Did you try to screen out political bias 
because she had been a declared Republican candidate for 
Attorney General from her critics?
    Ms. Hynes. Senator, I did not in my interviews discern any 
concern with politics. There was no discussion of politics at 
all. It was simply for the lawyers--they were lawyers who were 
interviewed because they had dealt with appeals from Judge 
Irizarry, and they were lawyers who appeared before her. Of the 
lawyers who appeared before her, the temperament was the issue 
that was discussed and volunteered from the get-go. In terms of 
my placing a call, I did a lot of work to locate trials and 
lawyers on both sides, prosecution and defense. And when I 
would call and say, ``I am calling on behalf of the ABA about 
Judge Irizarry,'' the first comments that were made by the 
majority of the attorneys that I interviewed who had appeared 
before her were discussions of her temperament.
    Senator Durbin. I am sorry I was not here earlier, and this 
may have been touched on. Did you look into whether any formal 
complaints had been filed against her while she served as 
judge?
    Ms. Hynes. It is a requirement of our Committee that the 
nominee provide to us a waiver whereby we can then inquire into 
the various grievance committees of any jurisdictions where a 
nominee may have been sitting. I did that, and what came back 
is their form letter that said there is nothing in the public 
files that indicates any, you know, complaints against this 
nominee.
    Senator Durbin. So how do you balance that between what 
appears to be overwhelming and compelling evidence against her 
on temperament, and yet when it comes to the actual evidence of 
complaints filed, the file is empty?
    Ms. Hynes. Senator, quite frankly, my take on that is that 
lawyers do not view the grievance Committee procedure as a 
vehicle--or may not view it as a vehicle to discuss a judge's 
temperament. But it was certainly a situation where there was--
her reputation was widely known as someone who had a 
temperament issue.
    Senator Durbin. Well, I might say, Mr. Chairman, I think we 
look at each nominee--at least I do--on three levels: 
integrity, honesty, the question of legal skills, and I think 
equally important is the question of temperament. It is 
virtually impossible for us to judge in a snapshot experience 
with a nominee what their temperament is. And this is a matter 
of concern. I am glad that we held this hearing because, as Mr. 
Hayward has indicated, this is an extraordinary finding. I am 
going to look at it very carefully.
    Thank you.
    Chairman Hatch. Well, thank you so much, Senator.
    I thank you both for your time and your effort to be here 
and for your assistance to this Committee not just today but 
through the years. We appreciate it.
    Mr. Hayward. Thank you, Mr. Chairman. On behalf of all 
members of the committee, we thank you for those comments.
    Chairman Hatch. Thank you so much.
    Ms. Hynes. Thank you, Senator.
    Chairman Hatch. Thank you for being here.
    [The prepared statement of Mr. Hayward and Ms. Hynes 
appears as a submission for the record.]
    Chairman Hatch. We will now turn to our fourth panel: James 
F. Castro-Blanco, Esq., immediate past president of the Puerto 
Rican Bar Association, from Shearman and Sterling in New York; 
Hon. Lewis L. Douglass, Justice, New York State Supreme Court, 
Chair of the Franklin H. Williams Commission on Minorities; and 
Hon. Michael L. Pesce, Presiding Justice, Appellate Term, New 
York State Supreme Court.
    We are very honored to have the three of you here, and we 
look forward to hearing your testimony. We will start with you, 
Mr. Castro-Blanco.

STATEMENT OF JAMES F. CASTRO-BLANCO, IMMEDIATE PAST PRESIDENT, 
        PUERTO RICAN BAR ASSOCIATION, NEW YORK, NEW YORK

    Mr. Castro-Blanco. Thank you, Mr. Chairman.
    Chairman Hatch and members of the United States Senate 
Committee on the Judiciary, thank you very much for giving me 
this opportunity to testify supporting the nomination of Judge 
Dora L. Irizarry to the position of United States District 
Court Judge for the Eastern District of New York. My 
recommendation is based upon my own experiences working with 
Judge Irizarry as well as numerous conversations I have had 
with many members of the legal community. As a former Assistant 
United States Attorney in the Eastern District of New York, I 
have had the opportunity to practice before some of the most 
outstanding jurists in the Nation. Judge Irizarry would be an 
excellent addition to that court. Her wisdom, compassion, 
integrity, and love of the law will enable her to be an 
extraordinary district court judge. I am confident that she 
will serve with distinction.
    I have the honor to serve on the New York City Mayor's 
Advisory Committee on the Judiciary. In that role, I have 
reviewed many judicial applications and interviewed many 
candidates. The most important qualities I look for in a 
candidate are integrity, proper judicial demeanor, knowledge of 
the law, and a sense of compassion. Judge Irizarry possesses 
all of these qualities in abundance.
    During my tenure as president of the Puerto Rican Bar 
Association, I worked extensively with Judge Irizarry to 
increase opportunities for Hispanic attorneys and to provide 
scholarship money for Hispanic law students. Her efforts in 
this regard have been recognized by the Hispanic legal and 
business communities. Her honors and awards, while too numerous 
to list, evidence her service to the community and the esteem 
in which she is held.
    Earlier this year, the Board of Directors of the Puerto 
Rican Bar Association voted to approve Judge Irizarry's 
nomination to the district court. That decision was based upon 
the board's review of Judge Irizarry's record and reputation. 
Additionally, prior to the vote, members of the board who have 
appeared before Judge Irizarry discussed the judge's ability to 
effectively and respectfully run her courtroom. The board 
agreed that she possesses the intellect and judicial demeanor 
to be an outstanding district court judge.
    My practice as a trial lawyer has been conducted solely in 
the Federal courts. As a result, I have not had the opportunity 
to appear before Judge Irizarry. My interactions with Judge 
Irizarry have taken place through many community service-
related activities. Judge Irizarry and I have served as 
panelists on law school forums. We have been speakers at Bar 
Association functions and have worked closely organizing events 
honoring prominent individuals who have made a positive impact 
on our community.
    I have observed Judge Irizarry interact with many 
individuals in a variety of forums. Some of those individuals 
have challenged her views on a variety of issues in a very 
confrontational manner. She has always maintained her poise in 
such situations and treated people respectfully even when that 
courtesy was not returned. In my opinion, her demeanor on all 
occasions during which I have observed her has been 
professional and measured.
    Judge Irizarry's career epitomizes the American dream. From 
her humble beginnings in Puerto Rico and the projects of the 
South Bronx, using her intellect and perseverance, she 
graduated from Yale University and Columbia School of Law. 
Forsaking a highly paid Wall Street career, she served as an 
assistant district attorney and then as a judge of the New York 
City Criminal Court and New York State Court of Claims. During 
her career as a public servant, she continued to be a community 
leader, mentor, and role model.
    Judge Irizarry's generosity of spirit and fine character 
are apparent from her interactions with all the people she 
encounters. Her reputation among practitioners is that of a 
fair and no-nonsense judge. She had led the kind of 
multidimensional life that will allow her to mete out justice 
in a thoughtful and fair way. It is my belief that Dora L. 
Irizarry possesses all the qualities necessary to be an 
extraordinary district judge. In short, her judgment, 
intellect, and character set her apart. I am honored to have 
been given the opportunity to speak in support of her 
nomination, and I thank you.
    Additionally, just one note. There is in New York State a 
Commission on Judicial Conduct where attorneys can freely lodge 
complaints against any judge.
    [The prepared statement of Mr. Castro-Blanco appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you. We appreciate having your 
testimony.
    Justice Douglass, honored to have you here. I look forward 
to hearing from you.

 STATEMENT OF HON. LEWIS L. DOUGLASS, JUSTICE, NEW YORK STATE 
    SUPREME COURT, AND CHAIR, NEW YORK STATE COMMISSION ON 
                           MINORITIES

    Justice Douglass. Thank you. I have with me my grandson, 
E.J., because it is not every day that you can see your 
grandfather testify before a United States Senate Committee.
    Chairman Hatch. We welcome you, E.J. You are sitting 
straight up. You are someday going to be a judge yourself, I 
can just tell.
    Justice Douglass. I am a Justice of the Supreme Court in 
New York, and I am also chairperson of the New York Commission 
on Minorities. That is a commission consisting of 21 judges and 
lawyers appointed by the chief judge to develop programs to 
improve the opportunities for minorities in our system and to 
improve the perception of fairness in the system. We hold 
meetings throughout the State and maintain an ongoing dialogue 
with minority Bar Associations and develop training programs on 
the issues of diversity for judges.
    I met Judge Irizarry about 10 years ago, when we both were 
judges appointed by the Governor to sit on a court called the 
Court of Claims. Our assignments had nothing to do with claims. 
It was an appointed court created to handle the overload of 
felony prosecutions. We were all appointed to the Court of 
Claims and then immediately assigned to the Supreme Court to 
handle major felony prosecutions.
    Judge Irizarry steadily gained a reputation among lawyers 
as a superb judge. She did expect everyone who appeared before 
her to adhere to the rules and to perform in a way that 
enhanced the dignity of the court. She was, nevertheless, fair 
and evenhanded.
    Like many of us who grew up in inner cities, she believed 
that when a person is found guilty, after a fair trial, it is 
important that government, through the courts, make a strong 
statement that criminal behavior is unacceptable and that 
social circumstances are not an excuse for crime. In short, she 
had a reputation as a tough but fair judge. While presiding 
over these felony prosecutions, she took on young lawyers as 
interns and became active in Bar Association activities and 
eventually became president of the Hispanic Judges Association. 
And I know that you know of her excellent academic background.
    Let me turn to what I think is particularly unique and 
important. We have done remarkable things in this country in 
the past 50 years since the Supreme Court outlawed segregation 
and moved us to a more opened society. Judge Irizarry's 
appointment would be another confirmation of that achievement. 
In the mid-1960's, her father worked as an electrician at the 
Federal Building in lower Manhattan which housed the Federal 
court. At that time, like other minorities, he worked on 
Federal projects because minorities were not then readily 
admitted into the unions. He, of course, admired Federal 
judges, as we all did, and still do. The idea that his daughter 
would someday stand before a Committee of the Congress for 
consideration for appointment as a Federal judge would have at 
that time been viewed as pure fantasy. But here we are 
considering the appointment of Dora, now having graduated from 
Yale and Columbia and having served as a State judge.
    I tell you, it makes me feel good not only to endorse her 
because of her scholarship and reputation as a State judge, and 
because she is one of the nicest people I know, but it makes me 
feel good because it shows that all the struggles, all the 
demonstrations, all the tears were all worthwhile, and we can 
be proud of the system of government under which we now live.
    [The prepared statement of Justice Douglass appears as a 
submission for the record.]
    Chairman Hatch. Thank you so much, Justice Douglass.
    We will turn to you, Justice Pesce.

    STATEMENT OF HON. MICHAEL L. PESCE, PRESIDING JUSTICE, 
   APPELLATE TERM, NEW YORK STATE SUPREME COURT, SECOND AND 
                       ELEVENTH DISTRICTS

    Justice Pesce. Thank you, Mr. Chairman, for the 
opportunity, and if I may, if I can digress a bit, rather than 
read the statement which I submitted, I should address myself 
directly to the one issue that appears to have arisen regarding 
Dora's--as I call her--qualifications to sit as a Federal 
district judge, and that is the issue of temperament.
    Senator Durbin, you asked a very interesting question of 
Pat Hynes, and the question was: Were there any complaints and 
official reports made by attorneys about Judge Irizarry's 
behavior while on the bench, or temperament? And she did not 
have an answer to that. I have an answer to that because I was 
her immediate supervisor, and I would be the one who would 
receive such an official complaint, and the answer to that is 
no.
    In addition, I did receive complaints about Dora Irizarry 
about how she ran the courtroom. I was her supervising judge, 
and I was the first person--I guess the first target of lawyers 
who complained.
    The Brooklyn bench that was part of the Second Judicial 
District with Richmond County, Staten Island, is the largest 
single administrative judicial district in the country. It had 
116 judges when I was a supervising judge and the 
administrator. It had employees of over 1,000 people. It had 
12,000 felony indictments. It had 52,000 civil filings and 
other matters that it handled. The volume was tremendous. I 
think E.J. would describe it as being ``humongous.''
    Half of the judges sat in Criminal. In the criminal parts, 
there were six judges who handled the bulk of the indictments, 
would prepare the cases for trial. I can assure you that in my 
career as a judge, I never encountered two lawyers who were 
willing to go forward with any case to trial. They always found 
ways to delay, to postpone. My statement has some reference to 
that.
    In order to effectively run those six parts that had all of 
the 12,000 felony indictments, you had to be tough, capital T, 
capital O--and the rest you know. And unless you are tough, you 
are not getting anything done. And unless you are tough, what 
happens is that the lawyers take over the courtroom. They run 
your calendar.
    The stress and the pressure are tremendous. I used to do 
that type of work. I used to fly off the handle. I used to be 
rude. I used to get angry at lawyers. That was part of the 
nature of the work that was done. It was not fun. It was the 
worst time that I ever spent on the bench. I am sure Dora feels 
the same way. I put her there. And I would not put her there 
unless I knew she could do the job, I knew that she could be 
tough. That was part of the job description. If she could not 
do it, she would have been out. I never even once received a 
complaint from the district attorney of Kings County, who 
happens to be a friend, and he would be more than happy to 
confide in me socially or especially professionally that he was 
having problems with Dora Irizarry. He was not. Staff 
assistants were, perhaps. Assistant district attorneys were. 
Not once did I receive a phone call from the head of the Legal 
Aid Society, which represents the substantial bulk of attorneys 
who represent indigents in criminal matters, who was also a 
friend, who could easily have confided in me. But Legal Aid 
attorneys certainly did complain to me, as did assistant 
district attorneys. And in many cases, they were exaggerated, 
but in many cases, I realized that it was part of the work that 
took place in the part that Dora Irizarry had.
    From that part, she went on to Manhattan, and she went, I 
think, to heaven, because in Manhattan she did trials and that 
was easy.
    I did receive complaints from attorneys. I would receive 
complaints about other judges. It does not justify the judge 
sometimes flying off the handle. But judges are human beings. 
We are imperfect human beings. And she will probably continue 
to be an imperfect human being. But as a human being and as a 
judge, she is absolutely one of the best I have ever known, one 
of the best I have ever supervised.
    And I think my statement ends by saying that the common 
description by attorneys about Dora Irizarry was that she is 
trying to run the courtroom as if it was the Federal bench. And 
I said, well, that is very appropriate for the nomination.
    So one thing that really surprised me is that--I am sorry 
Pat Hynes did leave. I have known Pat Hynes a long time. I was 
never called by the American Bar Association regarding the 
impression of temperament, and that kind of surprised me. The 
New York Bar Association called. Other groups called. But Pat 
Hynes never called me. And I know her well, and she knows me. 
And I was kind of surprised that she was even here to speak 
about the temperament.
    I would be glad to take questions.
    Chairman Hatch. Well, thank you so much. I would point out 
that it is not an easy job for the Bar Association people, and, 
you know, it takes a lot of their time, and it is all 
volunteer.
    But the testimony of you three is very important to me, and 
I personally appreciate you taking the time to be down here. So 
your time has not been wasted.
    Senator Durbin, I will turn to you.
    Senator Durbin. Thank you, Mr. Chairman, and thank you all 
for your testimony.
    I might ask the two judges who are here: How common is it 
that official complaints are filed by attorneys against judges? 
Either one of you.
    Justice Douglass. I do not think that it is common for 
official complaints, but it is common for lawyers to go to the 
administrative judge and say, ``I want to tell you something 
off the record.'' And Mike can speak to when that happens. But 
when lawyers are unhappy, they do not hesitate to go to the 
supervising judge or administrative judge or to see them at a 
coffee shop and say, ``You know, Judge So-and-so is not 
treating me right.'' That is very common.
    Senator Durbin. I would think that perhaps the point made 
by Ms. Hynes earlier is one that I can recall from my own 
practice. I was in a small town. But if you decide that you are 
going to go to war with a judge, you better never plan on going 
back to his courtroom. And I think that is a restraint from 
some official complaints.
    Justice Douglass. They could always speak to the 
administrative judge kind of off the record.
    Senator Durbin. Right. But the point that she made in her 
testimony was that she spoke to--had 70 interviews, 50 lawyers 
and 17 judges, and said the overwhelming majority came to the 
same conclusion about the temperament of the nominee. And the 
point that I think is equally important is that it appeared 
that it was not just a matter of her taking command of a 
courtroom early in her career and establishing her reputation, 
but that these incidents appeared to take place throughout her 
career on the bench. That to me is a troubling situation.
    I would say that I am an Illinois lawyer, a downstate 
lawyer, which is not in the big leagues of Chicago law practice 
when I was in private practice. And I know that New York 
lawyers are not known as being docile or deferential by nature. 
But it seems to me that some very serious charges have been 
raised here that go beyond whether she was controlling her 
docket. It is a question of how she controlled it and whether 
or not she would bring those same characteristics to the 
Federal bench.
    Judge Pesce, you say with some pride that you were tough, 
rude, angry, and flew off the handle. Maybe that is the way you 
do business in New York. I do not know. But I would say that if 
nominees to the Federal bench came to us and said, ``We are 
going to be tough, rude, angry, and fly off the handle to get 
things done,'' they would have a tough time before this 
Committee.
    Justice Pesce. Yes, Senator, that should be taken along 
with the other statement I made that we are not perfect human 
beings. You fly off the handle. You are rude when you are faced 
with over 100 felony indictments. I looked at some of the 
numbers, and I think 1 year Dora had 8,230-something 
appearances in 1 year, which means that there were 8,232 
different attorneys who appeared before her on cases throughout 
the year. And when you have hundreds of appearances in 1 day, 
it is tough.
    I do not expect the Federal dockets to have that kind of 
volume because it is impossible, and I would be the first to 
admit that it is almost impossible to handle those 
circumstances. And with those circumstances and those 
conditions and not being a perfect individual, you will find 
the occasion when you are rude, ruder than you want to be. But 
also, if you are rude in one instance, that attorney will not 
forget it because he is sitting in the courtroom and he sees 
you as a judge go through 85 cases, and everything is fine. And 
on the 86th case, the attorney stands up and he is hit a bit by 
the judge in a way that he does not particularly like, he is 
going to remember that.
    Senator Durbin. I do not question that. I can still 
remember how judges treated me, and it has been over 20 years 
since I have been in the courtroom.
    Justice Pesce. And how judges treated me when I was an 
attorney.
    Senator Durbin. Sure. We do not forget those things. But 
let me just say to you, I still am struck by Mr. Hayward's 
statement that the ABA could not find a similar case involving 
temperament where they found a person not qualified in over 20 
years. They had to go back to the Reagan administration--before 
the Reagan administration to find a similar case. So it 
appeared that what came out in this interview process was very 
extraordinary, and we have many Federal judicial nominees who 
have had State court experience in very trying circumstances 
who come to us aspiring to the Federal bench. So it appears 
that it was a very unusual finding as a result of their 
interview process.
    Justice Pesce. I dare say--and I may be out on a limb on 
this one, having part of my statement describe what Brooklyn 
and Staten Island are like as the humongous judicial district, 
the largest in the Nation--is that I am sure you have had 
nominees who have come from similar courts. But I can assure 
you--I invite you to visit--that the manner in which Brooklyn, 
Kings County, runs because of the volume, sheer volume, is 
unparalleled, not even in Manhattan, New York county, not even 
in the Bronx, which is Bronx County, not even in Queens. Not 
even L.A., which is the second largest judicial unit. Kings 
County is quite a place to be.
    And, again, I have to repeat that if the problem were as 
serious as Pat Hynes found it to be, Dora Irizarry would not 
have lasted in that part. I would have replaced her. The 
district attorney of Kings County would have spoken out loud.
    Senator Durbin. So you did not receive any informal 
complaints about her demeanor in the courtroom?
    Justice Pesce. I did receive informal complaints from 
attorneys who would meet me socially at meetings and say, 
``She's trying to run the courtroom like it's a Federal 
bench,'' which means strict adherence to her rules. And while 
you may tell the attorney once that this is the way I want 
things done, in a State court that attorney does not seem to 
pay attention.
    Senator Durbin. Did they bring to your attention some of 
the things that came out in the interviews--throwing objects at 
attorneys in the courtroom, things like that?
    Justice Pesce. That never came to my attention.
    Senator Durbin. Were you aware of that, Justice Douglass?
    Justice Douglass. No, I never heard that until this moment.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    We will make all of your full written statements part of 
the record. I want to thank everybody who has appeared here 
today. Judge Irizarry, we are very happy to have you here, and 
we will try to move with expedition on your nomination. And we 
appreciate the efforts that everybody has made, especially you 
Supreme Court Justices. That means a lot to us, and we just 
want to wish you continued good fortune on the bench and your 
good work there, because what you do is extremely important.
    With that, we will recess until further notice.
    [Whereupon, at 11:09 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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