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




                                                 S. Hrg. 108-135, Pt. 7

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               ----------                              

              MARCH 24, APRIL 8, JUNE 4, AND JUNE 16, 2004

                               ----------                              

                           Serial No. J-108-1

                               ----------                              

                                 PART 7

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         Printed for the use of the Committee on the Judiciary

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS


                    U.S. GOVERNMENT PRINTING OFFICE
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                                                 S. Hrg. 108-135, Pt. 7
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

              MARCH 24, APRIL 8, JUNE 4, AND JUNE 16, 2004

                               __________

                           Serial No. J-108-1

                               __________

                                 PART 7

                               __________

         Printed for the use of the Committee on the Judiciary

                       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

                              ----------                              

                       WEDNESDAY, MARCH 24, 2004
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    34

                               PRESENTERS

Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting Paul S. Diamond, Nominee to be District 
  Judge for the Eastern District of Pennsylvania.................     2
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting Paul S. Diamond, Nominee to be District 
  Judge for the Eastern District of Pennsylvania.................     1

                        STATEMENT OF THE NOMINEE

Diamond, Paul S., of Pennsylvania, Nominee to be District Judge 
  for the Eastern District of Pennsylvania.......................     3
    Questionnaire................................................     4

                         QUESTIONS AND ANSWERS

Responses of Paul S. Diamond to questions submitted by Senator 
  Leahy..........................................................    31
                              ----------                              

                        THURSDAY, APRIL 8, 2004
                    STATEMENTS OF COMMITTEE MEMBERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   212
Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................    37
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   215
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   222

                               PRESENTERS

Bond, Hon. Christopher S., a U.S. Senator from the State of 
  Missouri presenting William Duane Benton, Nominee to be Circuit 
  Judge for the Eighth Circuit...................................    38
Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting George P. Schiavelli, Nominee to be District Judge 
  for the Central District of California.........................    42
Christensen, Hon. Donna M., a Delegate in Congress from the 
  Virgin Islands presenting Curtis V. Gomez, Nominee to be 
  District Judge for the District Court of the Virgin Islands....    43
Graham, Hon. Lindsey, a U.S. Senator from the State of South 
  Carolina presenting Robert Harwell, Nominee to be District 
  Judge for the District of South Carolina.......................   189
Hollings, Hon. Ernest F., a U.S. Senator from the State of South 
  Carolina presenting Robert Bryan Harwell, Nominee to be 
  District Judge for the District of South Carolina..............    40
Talent, Hon. James M., a U.S. Senator from the State of Missouri 
  presenting William Duane Benton, Nominee to be Circuit Judge 
  for the Eighth Circuit.........................................    41

                       STATEMENTS OF THE NOMINEES

Benton, William Duane, Nominee to be Circuit Judge for the Eighth 
  Circuit........................................................    45
    Questionnaire................................................    46
Gomez, Curtis V., Nominee to be District Judge for the District 
  Court of the Virgin Islands....................................   166
    Questionnaire................................................   167
Harwell, Robert Bryan, Nominee to be District Judge for the 
  District of South Carolina.....................................    83
    Questionnaire................................................    84
Schiavelli, George P., Nominee to be District Judge for the 
  Central District of California.................................   116
    Questionnaire................................................   117

                         QUESTIONS AND ANSWERS

Responses of William Duane Benton to questions submitted by 
  Senator Leahy..................................................   194
Responses of Curtis V. Gomez to questions submitted by Senator 
  Leahy..........................................................   198
Responses of Robert Bryan Harwell to questions submitted by 
  Senator Leahy..................................................   200
Responses of George P. Schiavelli to questions submitted by 
  Senator Leahy..................................................   203

                       SUBMISSIONS FOR THE RECORD

Carty, Amos W., Jr., President, Virgin Islands Bar Association, 
  St. Crolz, Virgin Islands, letter..............................   207
Christensen, Hon. Donna M., a Delegate in Congress from the 
  Virgin Islands, letter in support of Curtis V. Gomez, Nominee 
  to be District Judge for the District Court of the Virgin 
  Islands........................................................   209
Clendinen, Monique, letter.......................................   211
Hollings, Hon. Fritz, a U.S. Senator from the State of South 
  Carolina, statement in suuport of Robert Bryan Harwell, Nominee 
  to be District Judge for the District of South Carolina........   220
                              ----------                              

                          FRIDAY, JUNE 4, 2004
                    STATEMENTS OF COMMITTEE MEMBERS

DeWine, Hon. Michael, a U.S. Senator from the State of Ohio......   225
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, 
  prepared statement.............................................

                        STATEMENT OF THE NOMINEE

Watson, Michael H., Nominee to be Circuit Judge for the Southern 
  District of Ohio...............................................   226
    Questionnaire................................................   228

                         QUESTIONS AND ANSWERS

Responses of Michael H. Watson to questions submitted by Senator 
  Leahy..........................................................   275

                       SUBMISSION FOR THE RECORD

Voinovich, Hon. George V., a U.S. Senator from the State of Ohio, 
  statement in support of Michael H. Watson, Nominee to be 
  Circuit Judge for the Southern District of Ohio................   311
                              ----------                              

                        WEDNESDAY, JUNE 16, 2004
                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   313
    prepared statement...........................................   510
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   316
    prepared statement...........................................   519

                               WITNESSES

Levin, Hon. Carl, a U.S. Senator from the State of Michigan......   320
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan.   322

                               PRESENTERS

Nelson, Hon. Bill, a U.S. Senator from the State of Florida 
  presenting Virginia Maria Hernandez Covington, Nominee to be 
  District Judge for the Middle District of Florida..............   324
Camp, Hon. Dave, a Representative in Congress from the State of 
  Michigan presenting Richard A Griffin, Nominee to be Circuit 
  Judge for the Sixth Circuit....................................   324
Rogers, Hon. Mike, a Representative in Congress from the State of 
  Michigan presenting David W. McKeague, Nominee to be Circuit 
  Judge for the Sixth Circuit....................................   326

                       STATEMENTS OF THE NOMINEES

Covington, Virginia Maria Hernandez, of Florida, Nominee to be 
  District Judge for the Middle District of Florida..............   415
    Questionnaire................................................   416
Griffin, Richard A., of Michigan, Nominee to be Circuit Judge for 
  the Sixth Circuit..............................................   378
    Questionnaire................................................   380
McKeague, David W., of Michigan, Nominee to be Circuit Judge for 
  the Sixth Circuit..............................................   327
    Questionnaire................................................   328

                         QUESTIONS AND ANSWERS

Responses of Virginia Maria Hernandez Covington to questions 
  submitted by Senator Hatch.....................................   460
Responses of Richard Allen Griffin to questions submitted by 
  Senator Hatch..................................................   463
Responses of David W. McKeague to questions submitted by Senators 
  Leahy, Kennedy, and Durbin.....................................   466

                       SUBMISSIONS FOR THE RECORD

Afendoulis, Stephen P., Chairman, Trial Department, Varnum, 
  Riddering, Schmidt, Howlett, LLP, Grand Rapids, Michigan, 
  letter.........................................................   479
Allen, John W., Board Certifed Civil Trail Advocate, Varnum, 
  Riddering, Schmidt, Howlett, LLP, Grand Rapids, Michigan, 
  letter.........................................................   481
Birkhold, Jeffrey O., Warner Norcross & Judd, LLP, Attorneys at 
  Law, Grand Rapids, Michigan, letter............................   483
Brady, James S., Attorney at Law, Miller, Johnson, Snell & 
  Cummiskey, P.L.C., Grand Rapids, Michigan, letter..............   484
Borman, Paul D., District Judge, Eastern District of Michigan, 
  Detroit, Michigan, letter......................................   486
Borrello, Stephen L., Judge, Michigan Court of Appeals, Landing, 
  Michigan, letters..............................................   487
Cohan, Leon S., Counsel, Barris, Sott, Denn & Driker, P.L.L.C., 
  Detroit, Michigan, letter......................................   490
Corrigan, Maura D., Chief Justice, Michigan Supreme Court, 
  Detroit, Michigan, letter......................................   491
Cragwall, J.A., Jr., Attorney, Warner Norcross & Judd, LLP, Grand 
  Rapids, Michigan, letter.......................................   493
Damore, Joseph F., President and CEO, Sparrow Health System, 
  Lansing, Michigan..............................................   494
Derezinski, Anthony A., Ann Arbor, Michigan, letter..............   495
Dilley, Frederick D., Attorney, Boyden, Timmons, Dilley & Haney, 
  PLC, Grand Rapids, Michigan, letters...........................   496
Eaton, A. Gregory, Legislative Consultants, Government Affairs, 
  Karoub Associates, Lansing, Michigan, letter...................   501
Fulkerson, William C., Attorney, Warner Norcross & Judd, LLP, 
  Grand Rapids, Michigan, letter.................................   502
Ford, Hon. Gerald R., former President of the United States, 
  letter.........................................................   503
Gass, David J., Attorney at Law, Attorneys and Counselors, 
  Miller, Johnson, Snell & Cummiskey, P.L.C., Grad Rapids, 
  Michigan, letter...............................................   504
Glaser, Richard A., Counsellors at Law, Dickinson Wright, PLLC, 
  Washington, D.C., letter.......................................   506
Graham, Hon. Bob, a U.S. Senator from the State of Florida, 
  statement......................................................   507
Gribbs, Roman S., Retired Judge, Michigan Court of Appeals, 
  Northville, Michigan, letter...................................   508
Gustafson, Peter L., Attorneys at Law, Warner Norcross & Judd, 
  LLP, Grand Rapids, Michigan, letter............................   509
Kay, Richard A., Attorneys at Law, Varnum, Riddering, Schmidt & 
  Howlett, LLP, Grand Rapids, Michigan, letters..................   514
Kuhnmuench, Nell K., Partner Governmental Consultant Services, 
  Inc., Lansing, Michigan, letter................................   518
Levine, Randall S., Attorneys at Law, Levine & Levine, Kalamazoo, 
  Michigan, letters..............................................   524
March, Jon G., Attorney at Law, Miller, Johnson, Snell & 
  Cummiskey, P.L.C.,Grand Rapids, Michigan, letter...............   528
McFarland, Robert E., Foster, Swift, Collins & Smith, P.C., 
  letter.........................................................   530
McInerney, Gary J., McInerney & Bowen, Grand Rapids, Michigan, 
  letter.........................................................   532
McRay, Gary J., Foster, Swift, Collins & Smith, P.C., letter.....   533
Members, Michigan's Congressional Delegation, Washington, D.C., 
  letter.........................................................   534
Nelson, Hon. Bill, a U.S. Senator from the State of Florida, 
  prepared statment..............................................   536
Phelan, Lawrence J., Attorney at Law, Haehnel & Phelan, Grand 
  Rapids, Michigan, letter.......................................   537
Pinsky, H. Rehett, Attorney at Law, Pinsky, Smith, Fayette & 
  Hulswit, LLP, Grand Rapids, Michigan, letter...................   539
Pirich, John D., Attorney at Law, Honigman Miller Schwartz and 
  Cohn, LLP, Lansing, Michigan, letters..........................   540
Puerner, Michael W., Foster, Swift, Collins & Smith, P.C., 
  Lansing, Michigan, letter......................................   542
Reynolds, Frank Harrison, Reynolds Law Firm, P.C., Grand Rapids, 
  Michigan, letters..............................................   544
Rogers, Hon. Mike, a Representative in Congress from the State of 
  Michigan, prepared statement...................................   549
Rominger, Charles S., Attorney at Law, Dilley & Rominger, PLC, 
  Grand Rapids, Michigan, letter.................................   552
Rynders, Perrin, Attorney at Law, Varnum, Riddering, Schmidt, 
  Howlett, LLP, Grand Rapids, Michigan, letter...................   553
Silsbury, Lori, M., Dykema Gossett, PLLC, Lansing Michigan, 
  letter.........................................................   555
Skaggs, Elizabeth Wells, Varnum, Riddering, Schmidy, Howlett, 
  LLP, Grand Rapids, Michigan, letter............................   557
Smith, Webb A., Foster, Swift, Collins & Smith, P.C., Michigan, 
  letters........................................................   559
Wernstrom, James L., Attorney at Law, Law Weathers & Richardson, 
  Grand Rapids, Michigan, letter.................................   563
Whitbeck, William C., Chief Judge, Michigan Court of Appeals, 
  Lansing, Michigan, letter......................................   564
Whitmer, Richard E., President and Chief Executive Officer, Blue 
  Cross Blue Shield of Michigan, Detroit, Michigan, letter.......   566
Willey, Larry C., and Charles E. Chamberlain, Jr., Willey & 
  Chamberlain, Law Office, Grand Rapids, Michigan, letters.......   567
Yates, Christopher P., Grand Rapids, Michigan, letter............   571

                              ----------                              

                     ALPHABETICAL LIST OF NOMINEES

Benton, William Duane, Nominee to be Circuit Judge for the Eighth 
  Circuit........................................................    45
Covington, Virginia Maria Hernandez., of Florida, Nominee to be 
  District Judge for the Middle District of Florida..............   415
Diamond, Paul S., of Pennsylvania, Nominee to be District Judge 
  for the Eastern District of Pennsylvania.......................     3
Gomez, Curtis V., Nominee to be District Judge for the District 
  Court of the Virgin Islands....................................   166
Griffin, Richard A., of Michigan, Nominee to be Circuit Judge for 
  the Sixth Circuit..............................................   378
Harwell, Robert Bryan, Nominee to be District Judge for the 
  District of South Carolina.....................................    83
McKeague, David W., of Michigan, Nominee to be Circuit Judge for 
  the Sixth Circuit..............................................   327
Schiavelli, George P., Nominee to be District Judge for the 
  Central District of California.................................   116
Watson, Michael H., Nominee to be Circuit Judge for the Southern 
  District of Ohio...............................................   226


NOMINATION OF PAUL S. DIAMOND, OF PENNSYLVANIA, NOMINEE TO BE DISTRICT 
             JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                              ----------                              


                       WEDNESDAY, MARCH 24, 2004

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:13 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter 
presiding.
    Present: Senator Specter.
    Senator Specter. My apologies for being late. I now have an 
appreciation for women who spend laborious hours with makeup, 
something Karen Santorum does not have to do because she is a 
natural beauty.
    On Saturday night, as I have said, I left a restaurant in 
the 200 block of Market Street. The street has been there for 
315 years and it was paved 314 years ago, and there was a major 
defect which I did not notice and the result was a crash. My 
nose was not broken, but the sidewalk was, so I consider it a 
Pyrrhic victory.

 PRESENTATION OF PAUL S. DIAMOND, NOMINEE TO BE DISTRICT JUDGE 
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN 
     SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Specter. The Committee today will have a hearing 
for Paul Diamond, a very distinguished Philadelphia lawyer. And 
at the outset, I disclose in the interest of full disclosure my 
long friendship with Mr. Diamond, going back more than two 
decades, and state that Mr. Diamond has been my lawyer, along 
with his law firm, and Thomas Leonard, who is with us today. 
Obermeyer, Rebmann, Maxwell and Hippell have represented me in 
a number of matters. So I think that ought to be on the record. 
I do not believe that this nomination will be contentious in 
any way, but it is always good to have everything on the 
record.
    Mr. Diamond went to Hunter College, graduated from Columbia 
University, magna cum laude, and the University of Pennsylvania 
Law School; served in the Philadelphia District Attorney's 
office as an assistant D.A., which is superb training; clerked 
for Justice Bruce Kauffman, of the Pennsylvania Supreme Court, 
a very eminent jurist who now sits on the United States 
District Court for the Eastern District of Pennsylvania; has 
been an adjunct law professor at Temple University; and for the 
past 14 years has been with the firm of Obermeyer, Rebmann, 
Maxwell and Hippell, one of Philadelphia's longstanding, very 
distinguished law firms, where he is now a partner. He will 
take a substantial cut in pay to come to the Federal bench, but 
he will make as much as Senator Santorum does.
    I now want to recognize my distinguished colleague from 
Pennsylvania, Senator Santorum, with whom I have established a 
non-partisan judicial nominating panel. There must be screening 
by that panel before Senator Santorum and I make 
recommendations to the President.
    We have, I think, established a process which has produced 
extraordinary judges. The United States District Court for the 
Eastern District of Pennsylvania has been heralded as one of 
the best, if not the best court in America. Senator Santorum 
and I are 15 for 15 on judicial confirmations, which is a 
pretty good record considering what happens in the United 
States Senate. We have 7 confirmations waiting in the wings and 
we may well be 22 for 22 shortly.
    Senator Santorum, my regrets for keeping you waiting. I 
know how busy you are and I know everyone wants to hear your 
comments about Mr. Diamond.

 PRESENTATION OF PAUL S. DIAMOND, NOMINEE TO BE DISTRICT JUDGE 
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK 
    SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Santorum. Thank you, Mr. Chairman, and I want to 
thank you for the tremendous work that you have done. When we 
came to the U.S. Senate, you had this procedure in place and we 
have worked hand-in-glove in making sure that, number one, we 
screened candidates both for the prior administration and for 
this administration, and we did so on a non-partisan basis.
    In fact, we continue, I guess, the idea that you came up 
with Senator Heinz, the idea that even during a Democratic 
administration, with two Republican Senators, Republicans 
should have an occasional judge appointed in Pennsylvania. And 
even when we have two Republicans and a Republican President, 
the Democrats should have some representation on the judiciary.
    Such as it is, we have a formula that for every four judges 
appointed in Pennsylvania, three are Republicans and one is a 
Democrat, even though there are no Democrats in the process on 
the Federal level, with two Republican Senators and a 
Republican President.
    I think that does add a balance to the system and it allows 
the best and the brightest from both parties to rise and have 
an opportunity to serve. This is a case where one of the best 
and brightest has risen and certainly is, I think, eminently 
qualified to serve.
    When I came into the room, I said to Paul, where is 
everybody? This is a situation where the fact that Paul, his 
wife and his partner as the only three people in the room gives 
you an understanding of how non-controversial this nominee is.
    The number of people who show up for these kinds of 
hearings is directly related to the controversy surrounding 
them. So the fact that there aren't a lot of people here 
concerned about this nominee, I think, shows the tremendous 
strength of Mr. Diamond, his tremendous legal experience, 
educational background, temperament, public service, his 
writings in the area of Federal practice and procedure, all of 
which make him eminently qualified for this position and 
someone whom I am very happy to be here to represent and to 
present to the Committee.
    I thank you, Mr. Chairman, for getting this hearing 
scheduled, and I am hopeful that if anyone can get the next 
seven nominees through the process in the Senate that you are 
just the man to do it. I will be happy to work at your side to 
make that happen.
    Senator Specter. Thank you very much, Senator Santorum, for 
your outstanding work in the Senate generally, leadership 
position number three, and for your leadership on judicial 
nominations and judicial selection.
    I have a suspicion you have other commitments, Senator.
    Mr. Diamond, I was about to say, while you are standing, 
just move to the podium, and if you would raise your right 
hand.
    Do you solemnly swear that the testimony you give before 
this panel of the Committee on the Judiciary of the United 
States Senate will be the truth, the whole truth and nothing 
but the truth?
    Mr. Diamond. I do.
    Senator Specter. You may be seated.
    May the record show that Mr. Diamond is accompanied by his 
distinguished wife, Robin Margaret Nilon Diamond, who is an 
assistant professor at the Temple Law School, and Thomas 
Leonard, who is a partner from the firm.
    Mr. Diamond, would you care to amplify the introductions?

STATEMENT OF PAUL S. DIAMOND, NOMINEE TO BE DISTRICT JUDGE FOR 
              THE EASTERN DISTRICT OF PENNSYLVANIA

    Mr. Diamond. Yes. I am grateful to both my wife and to Mr. 
Leonard for coming. And I am, of course, very grateful and 
honored by the President for having nominated me and I am 
overwhelmed by the support over the years that you have shown 
you, Senator Specter, and that, of course, Senator Santorum has 
shown me.
    [The biographical information of Mr. Diamond follows:] 

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    Senator Specter. As Senator Thurmond would always say under 
these circumstances, pull the machine a little closer. That was 
his standard comment.
    What Senator Thurmond also would say might not sound 
profound on its surface, but I think is very profound. In 1982, 
we had our first nominees in from Pennsylvania and I was 
sitting on the dais and Senator Thurmond was presiding. He was 
the Chairman, and he leaned forward into the microphone and 
said to two Pennsylvania nominees, Judge Caldwell and Judge 
Mansman, if you are confirmed, do you promise to be courteous.
    Translated: If you are confirmed, do you promise to be 
courteous? And I thought to myself, what a question. What is 
anybody going to say but yes? And true to form, both nominees 
said yes. Then Senator Thurmond said, the more power a person 
has, the more courteous a person should be. The more power a 
person has, the more courteous a person should be.
    I have always relayed Senator Thurmond's admonition, and 
many jurists over the years--and I have been at this for a 
while--have come back to me and have commented about that 
statement. It is something that I don't believe you need, Mr. 
Diamond, a reminder, but I think may who do who don the black 
robes and have that kind of power, life tenure.
    You get up on the wrong side of the morning and somebody 
may be a little late or may not be directly responsive to your 
question or may not be too succinct in legal argument or many 
of the other foibles and fallibilities of people, and it is 
easy to become impatient. But remember Senator Thurmond.
    Mr. Diamond. I intend to, Mr. Chairman, and I will strive, 
if I am fortunate enough to be confirmed, to convince everybody 
who appears before me that they have been treated fairly and 
courteously.
    Senator Specter. Mr. Diamond, I am going to ask you the 
questions which are prescribed so there will be no doubt that 
the issues have been covered, notwithstanding my declaration of 
partiality.
    Under what circumstances do you believe it is appropriate 
for a Federal court to declare a statute enacted by Congress 
unconstitutional?
    Mr. Diamond. It is obviously a very, very important 
question, Senator. It seems to me that a statute comes to the 
court with an overwhelming presumption of constitutionality and 
courts should strike down acts of the legislature only in the 
rarest circumstance when something is palpably, obviously in 
violation of the Constitution, and that should be very rare 
indeed.
    Senator Specter. In general, Supreme Court precedents are 
binding on all lower Federal courts, and circuit court 
precedents are binding on the district courts within the 
particular circuit.
    Are you committed to following the precedents of higher 
courts faithfully?
    Mr. Diamond. If I am lucky or fortunate enough to be 
confirmed, of course, my job is to follow the direction from 
the Third Circuit and the U.S. Supreme Court. That is what 
district court judges do. If I am fortunate enough to be 
confirmed, that is what I will do.
    Senator Specter. And would you make that determination even 
in circumstances where you personally disagree with such 
precedents?
    Mr. Diamond. I will, Senator. I am obligated to, and I am 
not always right. Just because I think they are wrong doesn't 
mean they are wrong. If I am fortunate enough to be confirmed, 
I will do what the Third Circuit and the U.S. Supreme Court 
tell me to do. That is my job.
    Senator Specter. What would you do if you believed the 
Supreme Court or the court of appeals had seriously erred in 
rendering a decision? Would you nevertheless apply that 
decision, or your own best judgment on the merits?
    Mr. Diamond. No, no, Senator. If I am fortunate enough to 
be confirmed, I would be obligated to apply that decision as 
that decision is written.
    Senator Specter. If there were no controlling precedent 
dispositively concluding an issue with which you were presented 
in your circuit, to what sources would you turn for a 
persuasive authority?
    Mr. Diamond. If we are dealing with a statute, say, the 
statute itself. And since language is by its nature ambiguous, 
legislative history seems to me to be a rich source for the 
intent of the people that created the statute. The Senators and 
Congress people who drafted, approved, passed the statute, it 
seems to me, is the most obvious place to look.
    Senator Specter. As you know, the Federal courts are facing 
enormous pressures as their caseload mounts. If confirmed, how 
do you intend to manage your caseload?
    Mr. Diamond. If I am fortunate enough to be confirmed--I 
have always worked very, very hard all my life. I think hard 
work is no substitute for it, and paying attention to detail--I 
have to manage a client load now; I have over the last 20, 25 
years. And I think with careful attention to detail, 
thoughtfulness and responsible delegation, I believe a caseload 
can be managed.
    Senator Specter. Has your client load increased or 
decreased or stayed the same since it has become publicly known 
that you were the President's nominee for the Federal bench?
    Mr. Diamond. It has dramatically decreased, Senator.
    Senator Specter. How have your partners felt about that?
    Mr. Diamond. My partners have been very supportive, 
fortunately.
    Senator Specter. Do you believe that judges have a role in 
controlling the pace and conduct of litigation? And if 
confirmed, what specific steps would you take to control your 
docket?
    Mr. Diamond. I believe judges do have such a role, Senator, 
and if I were fortunate enough to be confirmed, I believe that 
judges should allow lawyers to try their cases and not, as I 
say, ride the brake all the time and micromanage trials. But it 
is a judge's obligation to see that a trial goes smoothly, 
swiftly and fairly, because I do believe justice delayed is 
justice denied.
    Senator Specter. Given your background and prior 
experience, could you address the subject of the role and 
significance of judicial temperate and indicate what elements 
of judicial temperament you consider to be most important?
    Mr. Diamond. I think the element of judicial temperament I 
consider to be most important is the appearance of fairness, 
the appearance of impartiality. If the parties before a judge 
don't believe they have been treated fairly, even if they have 
been treated fairly, they are not going to believe it.
    So I think that appearing to be fair and neutral and even-
tempered is the most important ingredient. And if I were 
fortunate enough to be confirmed, I would strive to do just 
that.
    Senator Specter. Mr. Diamond, I know your work ethic, how 
hard you work and how efficient you are. Judges really ought to 
focus much more than they do on prompt disposition of pending 
matters. You come from a big firm and you know the cost of 
litigation. Judges really ought to move their docket along and 
ought to go to the core issues and get them decided and move 
ahead.
    The delays in both the district and appellate courts are 
very, very costly to the system, and that is something which 
this Committee may spend more attention on in the future--very, 
very lengthy delays. The discovery process is virtually endless 
and enormously expensive, and it does not have to be so 
constructed.
    I would like to see judges take a much stronger hand in the 
early stage of the litigation, bring in the parties and find 
out what the case is really all about and see if it can be 
resolved one way or another, and if can't be, then to move to 
the core issues, have a determination of what factual discovery 
is necessary and get the matter concluded. You and I were 
involved in a matter which represented the worst in judicial 
management. So that is my first comment about it, but this is a 
privileged proceeding.
    Well, I think that covers the ingredients. You have a large 
audience here, Mr. Diamond. You have the staffs of the 
Judiciary Committee and they will be scrutinizing your record 
very carefully. They may not know you as well as I do, so they 
may not have all of the same views.
    Senator Leahy commented to me that he would not be here 
this morning. Without objection, we will enter Senator Leahy's 
statement for the record.
    I am scanning Senator Leahy's statement, Mr. Diamond. I 
believe he likes you. The statement will be made part of the 
record.
    The record will remain open for Senators to submit 
statements or questions to the nominee for one week, until 5:00 
p.m., March 31, 2004.
    It is my hope to have you confirmed and sworn in on the 
target date of April 15 at four o'clock in the afternoon, in 
the ceremonial courtroom, if all goes well.
    That concludes our hearing.
    Mr. Diamond. Thank you, Senator.
    [Whereupon, at 9:32 a.m., the Committee was adjourned.]
    [Questions and answers and a submission for the record 
follow.]

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NOMINATION OF WILLIAM DUANE BENTON, OF MISSOURI, NOMINEE TO BE CIRCUIT 
JUDGE FOR THE EIGHTH CIRCUIT; ROBERT BRYAN HARWELL, OF SOUTH CAROLINA, 
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA; GEORGE 
  P. SCHIAVELLI, OF CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE 
  CENTRAL DISTRICT OF CALIFORNIA; AND CURTIS V. GOMEZ, OF THE VIRGIN 
  ISLANDS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT COURT OF THE 
                             VIRGIN ISLANDS

                              ----------                              


                        THURSDAY, APRIL 8, 2004

                              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. Lindsey 
Graham, presiding.
    Present: Senator Graham.

  OPENING STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR 
                FROM THE STATE OF SOUTH CAROLINA

    Senator Graham. Good morning, everyone. We will call the 
Committee to order. I know this is a big day for a lot of 
people and their families, and there are a lot of distinguished 
Senators here who need to do other things. And we are glad to 
have everyone here, so I am going to call the Committee to 
order, and we are glad to have everyone, as I said.
    Our first nominee today is to the Eighth Circuit Court of 
Appeals, William D. Benton. He is well prepared to join the 
Federal bench. He presently serves as a judge on the Supreme 
Court of Missouri. With an excellent academic record, he holds 
four degrees: an LLM from the University of Virginia School of 
Law, a JD from Yale Law School, and an MBA from Memphis 
University--he has been a busy fellow--and a BA from 
Northwestern University.
    After graduating from law school, Judge Benton served in 
the United States Navy, then as an administrative assistant to 
Congressman Wendell Bailey, then moved to the private sector 
where he practiced general law with an emphasis in civil, State 
and local taxation, and appellate work.
    In 1989, Judge Benton became the first Director of Revenue 
for the Missouri Department of Revenue and was responsible for 
administering a large State agency.
    In 1991, he was appointed to the Supreme Court of Missouri 
and served as its Chief Justice from 1997 to 1999. Judge Benton 
is also an adjunct professor at Westminster College and the 
University of Missouri School of Law. He has received a 
unanimous rating of ``Well Qualified'' from the American Bar 
Association.
    Rather than reading about the other nominees at this point, 
I am going to defer to Senator Bond because I know you are a 
very busy Senator, and we will allow you to testify at this 
point in time.

  PRESENTATION OF WILLIAM DUANE BENTON, NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE EIGHTH CIRCUIT, BY HON. CHRISTOPHER S. BOND, A 
            U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator Bond. Mr. Chairman, I very much appreciate the 
opportunity to testify at the beginning. I am supposed to be 
chairing an appropriations hearing due to start at 10 o'clock, 
and I thank you very much for giving me the opportunity to 
present to you a very distinguished Missourian, as you have 
indicated, Hon. Duane Benton, who has been nominated by the 
President to serve on the United States Court of Appeals for 
the Eighth Circuit.
    Judge Benton is a very respected jurist, a committed public 
servant, and a fine person that I know quite well. I am very 
pleased that President Bush has nominated him for this 
important position.
    You have already mentioned many of his accomplishments, but 
I am confident that the Members of the Committee will find 
Judge Benton to have an impressive record of public service and 
an exemplary judicial record. And I would share my belief that 
he would be an excellent addition to the Federal judiciary.
    Judge Benton currently serves on the Supreme Court of 
Missouri, having been appointed, as you indicated, in 1991, and 
he has also served as Chief Judge. He has participated in a 
number of important decisions. Throughout his career, he has 
earned a reputation as a judge with a distinguished intellect 
who has a skill for uniting his colleagues on difficult 
questions. His work ethic, approach, and reasoning are highly 
regarded by the lawyers of Missouri.
    In addition to his service on the judiciary, he has an 
impressive breadth of experience coupled with a judicial record 
giving him a command of a wide range of legal matters. He is a 
certified public accountant, I understand the only CPA serving 
on any Supreme Court in the United States. He had, as you 
indicated, served as the top tax collector, Director of the 
Missouri Department of Revenue, where, while holding the 
otherwise unpopular position of chief tax collector, he earned 
a reputation as an effective and efficient administrator. He 
has also lent his expertise to the multi-State Tax Commission 
where his colleagues elected him Chair.
    He was, as you said, a member of the United States Navy, 
serving as a judge advocate. In addition to that, he was in 
private legal practice where he primarily represented 
associations, nonprofits, cities, localities, school districts, 
and private entities, appearing in State and Federal court.
    You have mentioned his educational background. He was 
editor of a Yale law journal and has a master's of business 
administration from Memphis State. And I am proud to say that 
he also earned his master's of law at my law school alma mater, 
the University of Virginia.
    He found the time to be active in communities. They are too 
numerous to name, but he has done everything from coach 
baseball to serve on the Board of Regents of Central State 
Missouri State University.
    He retired from the U.S. Navy as a captain after 30 years 
of active and reserve duty. He is a Vietnam veteran, a member 
of the VFW, the American Legion, the Navy League, the Vietnam 
Veterans, and the Missouri Military Advisory Commission.
    As Members of this Committee know, the U.S. Court of 
Appeals truly is the second most important court in the land. 
Nearly every Federal case ends up before the court in some 
manner, and its decisions impact every aspect of society.
    To these positions, I believe it is imperative that the 
President nominate people of distinguished intellect and 
character with a breadth of legal experience. That has been far 
surpassed with the nomination of Judge Benton. With his 
knowledge and experience, he will be an outstanding addition to 
the Federal judiciary.
    I respectfully request that my colleagues promptly review 
his accomplishments and experience. Upon doing so, no other 
conclusion could be reached than that Judge Benton is extremely 
well qualified and fit for this position.
    I ask you to move on his nomination quickly and move it to 
the floor for an up-or-down vote by the full Senate.
    I thank you, Mr. Chairman, and the Committee for your kind 
consideration.
    Senator Graham. Well, thank you, Senator. Thank you very 
much for that statement.
    At this point we will allow Senator Hollings, my senior 
Senator, to testify, and then we will go to Senators Talent and 
Boxer. But I would like to introduce Judge Harwell just a 
moment before Senator Hollings testifies.
    Robert Bryan Harwell, who has been nominated to the 
District of South Carolina, has exceptional qualifications for 
the Federal bench. Upon graduation from the University of South 
Carolina School of Law, Bryan clerked for State Circuit Judge 
Rodney Peeples and then for U.S. District Judge G. Ross 
Anderson. After his clerkships, Mr. Harwell entered private 
practice at the law firm of Harwell, Ballenger and DeBerry, 
where he currently practices. I will have more to say about Mr. 
Harwell later, but at this point in time I would like to 
recognize the senior Senator from South Carolina, Senator 
Hollings.

 PRESENTATION OF ROBERT BRYAN HARWELL, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. ERNEST F. 
   HOLLINGS, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Hollings. I thank the distinguished Chair, and if 
the Chair would permit, I would like to recognize in the 
audience not only the nominee, Bryan Harwell, and his wife, 
Debra, and two children, but we have our distinguished former 
Chief Justice of our State Supreme Court, Chief Justice David 
Harwell, and his wife in the audience. We are delighted to have 
him, and if Bryan can do as good as the Chief Justice did, we 
have got a winner.
    Let me commend you, Mr. Chairman, on your selection. I had 
the distinction some years back of driving Maximum John, Judge 
John Sirica, around while he was writing his book. He was 
visiting down there in the low country. And as we rode about, 
he said, ``Now, Senator,'' he says, ``don't ever select a judge 
unless he has been in the pits.'' He said, ``You know, I had 
difficulty getting out of law school, took the bar exam three 
times before I passed it, and by the time I did pass it,'' he 
said, ``there wasn't any law firm that was looking for me. I 
had to go down to the magistrate's court and take what cases I 
could find.''
    And he said, ``I did that, and I got pretty good at trying 
cases, and everything else like that, which caused Hogan and 
Hartson to get me to try their cases.'' And he said, ``After 
that first day of the Watergate hearings, I could tell exactly 
what was going on, having been in the pits. And I called those 
lawyers into my chambers at the end of the day and said, `Now, 
if you continue with that line, both sides, I am going to find 
you in contempt and put you in jail. There is not going to be 
any fine. You are going right straight to jail. You are not 
going to make a mockery of this court.''' And he said that 
broke the Watergate case.
    That is what I like about the distinguished Chairman's 
choice of Bryan Harwell. He has been in the pits. As the 
Chairman says, he not only was an outstanding student at the 
law school, causing both the State Judge Peeples and the 
Federal Judge Anderson to choose him as a law clerk, but he 
immediately, in both Marion and Darlington--Florence and 
Darlington, and Marion and Darlington, as you were, Florence 
and Marion Counties, get into the pits. He got into the family 
court matters, workmen's compensation, insurance, product 
liability, malpractice, negligence cases. He was both in 
general practice for individuals and small business, and at the 
end of all of that experience, he ends up with the highest 
rating from Martindale-Hubbell.
    And I think that perhaps it helped him also to be in the 
JAG section of the National Guard. I know the affinity that my 
Chairman has for that JAG section. But he not only did that and 
served with distinction, but he has been a professor over at my 
technical college, Florence-Darlington. I started that one as 
well as 15 others. And he has been a business law professor 
over there. So you cannot get a better rounded, more 
experienced young judge than Bryan Harwell. And it is my 
pleasure to commend you for your choice, and I look forward to 
his confirmation.
    Senator Graham. Thank you, Senator Hollings. Thank you very 
much. Thank you for your statement.
    At this time, Senator Talent, would you like to testify on 
behalf of Judge Benton?

  PRESENTATION OF WILLIAM DUANE BENTON, NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE EIGHTH CIRCUIT, BY HON. JAMES M. TALENT, A U.S. 
               SENATOR FROM THE STATE OF MISSOURI

    Senator Talent. I sure would, Mr. Chairman. I would love to 
say a few words, and I will keep this brief because Senator 
Bond covered the waterfront so well. But Duane Benton has been 
a friend of mine for a long time and an outstanding public 
servant, and I wanted to just add my endorsement to Senator 
Bond's views.
    I hope the Committee will expeditiously consider and 
recommend him to the Senate, and I will just say three things 
about Duane.
    One of them is he is just one of the smartest people I have 
ever met. And if you look at his record, you will see what I am 
talking about. He is just a brilliant guy. And if you check 
around Missouri lawyers of all different kinds, they will all 
say that. And I think that is helpful on the bench.
    He has a great sense of humor and a good sense of humble, 
too, which is very important. It is one of the reasons, as 
Senator Bond mentioned, he is very good at the collegial 
aspects of serving on an appellate court. He knows how to get 
people together, and that is, sadly, lacking very often in the 
system today. And a lot of it is that he has a good sense of 
humor. He doesn't take himself too seriously.
    Then the third thing with that I think is so important, he 
has the right temperament to be a judge. You know, Mr. 
Chairman, you practiced law and so did I, and I always used to 
be frustrated by judges who were rude to people because, you 
know, when you are in that position, it is kind of cowardly, 
really, to be rude to somebody when they are not in a position 
to be rude back to you. And I think judges ought to show 
especial restraint. To be firm, that is very important, to run 
the courtroom, but to be at least civil to the attorneys and, 
of course, to the litigants who come before them. And Judge 
Benton has just been unfailingly of the right temperament as a 
judge, and I know he will do the same thing on the Court of 
Appeals.
    So I really want to recommend him highly to the Committee 
for expeditious consideration and, I hope, approval.
    Senator Graham. Thank you very much, Senator Talent, for 
that statement.
    One of our panel members will be George P. Schiavelli--I 
apologize to the family there--our nominee to the Central 
District of California. He has an admirable record and is a 
great choice for the Federal bench. After graduating from UCLA 
Law School in 1974, Mr. Schiavelli spent the next 20 years in 
private practice with distinguished law firms in the Los 
Angeles area. From 1994 until 2000, Mr. Schiavelli served as a 
Log Angeles Superior Court judge. Since 2000, Mr. Schiavelli 
has practiced principally in the area of alternative dispute 
resolution and has been of counsel to the appellate group of 
Reed and Smith.
    We are delighted to have him at today's hearing, and it is 
my understanding that Senator Boxer is here to testify on his 
behalf.

  PRESENTATION OF GEORGE P. SCHIAVELLI, NOMINE TO BE DISTRICT 
 JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. BARBARA 
       BOXER, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. I am, Mr. Chairman. Thank you so much. I am 
very pleased to offer my support for this nominee for the 
Central District Court of California, George P. Schiavelli, 
Judge Schiavelli. And with your permission, Mr. Chairman, I 
would like him to stand, as well as his wife, Holli, his son, 
Peter, and his daughter, Olivia.
    I just want to say what a great day I know it is for the 
family, and I am very happy to be supporting you, Judge.
    Judge Schiavelli is very well regarded by those who know 
him and know his work. He has a reputation which is just 
terrific. He has a reputation as a very tolerant and a very 
kind person as well as very skilled.
    I am confident that, should he be confirmed, which I very 
much hope he will be, he will discharge his responsibilities 
with dignity, integrity, and intelligence.
    I would like to briefly comment on the process that brought 
this accomplished individual before you today, Mr. Chairman. In 
a truly bipartisan fashion, something that we seek more and 
more around here, we, Senator Feinstein and I, worked together 
with the White House Counsel to create four judicial advisory 
committees for our State, one in each Federal judicial district 
in the State, so that when we come up here with nominees for 
the district court, you will see always that the Democrats and 
Republicans support the nominee, because each Committee has a 
membership of six individuals, three appointed by the White 
House and three appointed by Senator Feinstein and me. Each 
member's vote counts equally, so a majority is necessary for 
recommendation of a candidate. The nominee before you today was 
reviewed very carefully by the Central District Committee and 
strongly recommended. I continue to support this excellent 
bipartisan process and the high-quality nominees it has 
produced, including the one before you today.
    Judge Schiavelli has deep roots in my State. He is a 
graduate of Stanford University and UCLA Law School, where he 
graduated first in his class. UCLA, first in his class--I think 
that says a lot. It is a tough school. From there, he has 
embarked on a very impressive legal career and served the 
people of our State with distinction.
    Before returning to private practice, he served on the L.A. 
Superior Court. In both private practice and on the bench, the 
judge developed an equally respected reputation due to his 
character, his decency, and his legal expertise.
    So, in sum, the Central District will benefit greatly from 
the exemplary service of Judge Schiavelli, and I fully support 
his nomination and his quick confirmation.
    I thank you, Mr. Chairman, for your courtesy.
    Senator Graham. Thank you very much, Senator Boxer, for 
that statement. Thank you.
    Our final nominee, Curtis V. Gomez, has been nominated to 
be judge for the District Court for the Virgin Islands. This 
position is for a term of 10 years. A native of St. Croix, Mr. 
Gomez graduated from George Washington University and Harvard 
University Law School. He has practiced law in both the private 
and public sector. He presently served as an Assistant United 
States Attorney in the United States Attorney's Office for the 
District of the Virgin Islands and previously served as an 
Assistant U.S. Attorney in the Eastern District of Virginia.
    We welcome Mr. Gomez and note that he will be introduced by 
his supporter, Hon. Donna M. Christensen, Delegate of the 
United States Virgin Islands, to whom we also extend a special 
welcome. Thank you very much, Delegate Christensen, and if you 
would like to make a statement at this time, you may do so.

 PRESENTATION OF CURTIS V. GOMEZ, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT COURT OF THE VIRGIN ISLANDS, BY HON. DONNA M. 
  CHRISTENSEN, A DELEGATE IN CONGRESS FROM THE VIRGIN ISLANDS

    Delegate Christensen. Thank you and good morning, Mr. 
Chairman. And I thank you for the honor to appear before the 
Committee this morning and for the extraordinary honor and 
pleasure to be able to present Attorney Curtis V. Gomez, the 
nominee to the U.S. District Court of the Virgin Islands. This 
is not only a proud day for his wife, Simone, who is with him 
in the audience, other family and friends, but for our entire 
Territory. Curtis is widely respected and loved, and we are all 
proud to have such an outstanding son of the soil being 
nominated to this position of high respect, authority, and 
influence. I assume you, colleagues, that despite his relative 
youth, the gentleman whom you will hear from later this 
morning, educated, as you have said, in some of the best 
schools in our Nation, including my alma mater, the George 
Washington University, and then Harvard University School of 
Law, is fully equal to the task.
    Not born to privilege, Curtis is from a hardworking family 
of public servants, including his dad, Victor Gomez, and 
sister, Judy, a former Virgin Islands Senator.
    Having served in both the private and public practice of 
law as an Assistant U.S. Attorney, Curtis does bring a broad 
array of experience to the post, and that experience includes 
private practice here in D.C. with the well-known firm of 
Patton, Boggs and Blow, and as an Assistant U.S. Attorney for 
the Commonwealth of Virginia.
    His former V.I. firm of Dudley, Topper and Feuerzeig as 
well as his colleagues from the U.S. Attorney's Office in the 
Virgin Islands are among those beaming with pride today.
    There has also been greater diversity in the cases he has 
successfully handled, from contract to other civil litigation, 
including criminal cases involving crimes of violence, illegal 
alien smuggling, and drug trafficking. His courtroom demeanor, 
diligence, and effective practice of the law have earned him 
the respect of other counsel, of his opponents before the 
bench, of the Federal and local judiciary, and of the general 
public. He comes to you with a highly qualified recommendation 
of the V.I. Bar, and I would ask permission to submit the 
written letter of support from its current president, Attorney 
Amos Carty, who holds Curtis in the highest regard.
    Senator Graham. Without objection, the statement will be 
introduced.
    Delegate Christensen. Thank you.
    Others, such as retired Territorial Court Judge Ishmael 
Meyers, whose opinion reflects those of his colleagues on the 
territorial bench, spoke to me of his competence and exemplary 
temperament, well suited to the bench.
    Retired Senator Eric Dawson, whose testimony I also request 
unanimous consent to introduce into the record, speaks of his 
steadfast determination, love of the practice of law, 
excellence in understanding of it, and his commitment to his 
home, the U.S. Virgin Islands, and to this Nation.
    The U.S. Attorney, David Nissman, under whom he now serves, 
is quoted as saying, ``He has a keen intellect, a good work 
ethic, and he cares deeply about the community.''
    One of his peers whose counsel I often seek, my brother, 
Attorney Adam Christian, echoed all of these sentiments and 
spoke fondly of his calm and imperturbable manner, his generous 
spirit, and his humility.
    While our community is more often divided than united on 
some issues, and the issue of Federal appointments has 
frequently been a matter of controversy and conflict, on the 
nomination of Curtis Gomez we speak with one voice of solid 
support, a voice that crosses party lines and expands across 
the breadth and depth of our community.
    Members of the Committee, I began my political life 
fighting for the opportunity for our local attorneys to have 
their fine qualities, their talents and skills, their years of 
exemplary service, their demonstrated knowledge of the law and 
commitment to upholding it to be recognized and rewarded with 
the opportunity to serve on the Federal judiciary. Beyond the 
recognition of the individual lawyer, it says so much about 
respect for us, your fellow Americans. Such appointments 
further highlight those who, like Curtis, are role models for 
our children, thus inspiring them to strive just that little 
bit harder and to give them hope.
    Finally, let me say that the first native Virgin Islander 
to serve as a judge of the U.S. District Court in the Virgin 
Islands, my father, Judge Almeric Christian, who led the way so 
that fine young men and women like Curtis Gomez could be here 
today seeking confirmation before this august body, if he were 
alive today, would be pleased with this nomination and would be 
among Curtis' strongest supporters.
    Chairman and Members of the Committee, on behalf of the 
people of the U.S. Virgin Islands whom I am privileged to 
represent in the Congress, I thank President George W. Bush for 
nominating this excellent lawyer, great human being, and 
dedicated public servant, and I am proud to present Attorney 
Curtis Vincent Gomez to you with our highest recommendation and 
unqualified support for confirmation to the U.S. Court, the 
District of the Virgin Islands. And we know that after hearing 
from Attorney Gomez, you will concur with us.
    Thank you.
    [The prepared statement of Delegate Christensen appears as 
a submission for the record.]
    Senator Graham. Thank you for that outstanding statement. 
Thank you very, very much.
    Also for the record, I will introduce statements from our 
ranking member, Senator Leahy, and from Senator Feinstein, to 
make their statements part of the record.
    At this time I guess we will start with Judge Benton, if 
you would please come forward.
    Please raise your right hand.
    Do you solemnly swear that the testimony you are about to 
give before this Committee is the truth, the whole truth, and 
nothing but the truth, so help you God?
    Judge Benton. I do.
    Senator Graham. Welcome to the Committee, Judge. You have a 
distinguished background and we're honored to have you here. If 
you would like to make a statement at this time, you may do so.

STATEMENT OF WILLIAM DUANE BENTON, NOMINEE TO BE CIRCUIT JUDGE 
                     FOR THE EIGHTH CIRCUIT

    Judge Benton. I have no opening statement, but I would, if 
the Chair would permit, introduce to you, of course, my loyal 
spouse of many years, an educationally mentally handicapped 
nurse educator, Sandra Benton, Grant Benton, my son, Megan 
Benton, listening somewhere in college, hopefully doing 
homework. Bryan Tramont is at the FCC, a former clerk of mine, 
and Linda Coffen, who has been with a couple of law firms here 
in D.C., another former clerk of mine.
    Senator Graham. Welcome to you all.
    Judge Benton. That would conclude my opening remarks.
    [The biographical information of Judge Benton follows:] 

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    Senator Graham. Judge, you do have a very distinguished 
background, and Senators Talent and Bond spoke glowingly of 
you. I think you will make an outstanding circuit court judge.
    Tell me a little bit about being the only Certified Public 
Accountant. How has that influenced you as a lawyer, good or 
bad.
    Judge Benton. When the tax cases come to our court, they 
all look to me. Some attorneys are allergic to numbers. I'm 
not.
    Senator Graham. I'm one of those, yes.
    Judge Benton. My first few years of practice, Mr. Chairman, 
I was able to help support my family, because in several 
complicated cases I was hired where there were a lot of 
numbers. So it's been very good. It makes you understand that 
there are a lot of statistics.
    Of course, statistics can be used in a lot of different 
ways, as Mark Twain, a native Missourian, said more colorfully. 
But I like numbers.
    Senator Graham. Outstanding.
    Being Chief Justice, that has a certain requirement beyond 
just serving. Could you enlighten the Committee a bit about how 
that job requires you to bring people together and how you 
think judges should interact? What experience does that bring 
to your job?
    Judge Benton. In our court, the Chief Justice leads the 
discussion and tries to forge a consensus. I have been 
fortunate, in that all the chief justices I have worked with on 
our court have done that, and I tried very hard to do that.
    In addition, the Chief Justice presents a face to the 
public. It was during my 2 years as Chief Justice that I really 
learned what supports the judiciary is public faith and 
confidence in the judiciary. I have never turned down going to 
speak to a chamber of commerce, a civic club, a service 
organization, and I think that's important, too.
    Being chief does make you feel more and more that you do 
need to speak with one voice. I am very proud that in my 13 
years we've only had one case on our court where we did not 
muster a majority, a clear four, five, six or seven vote 
majority. I might add that sometimes I've been in the dissent. 
But only in one case in that time. That is collegiality, so we 
can speak to the Bar in Missouri with one voice.
    Senator Graham. Outstanding.
    You have been on the edge of legal reform. How do you see 
the development of the law in terms of how can we make the 
process more user friendly and more professional?
    Judge Benton. Thank you for the question, because I am very 
committed to computerizing our courts. When I came to our court 
system in Missouri, there were no computers, or almost no 
computers, in two-thirds or three-fourths of Missouri's courts. 
Now almost all our courts have computers.
    Not only do we have computers, but we have an 
infrastructure to support the computers. We have procedures, 
standards, and we would like to think we're a leader in court 
automation.
    Senator Graham. Outstanding.
    Now, this is a part of your legal experience that is near 
and dear to me. I was a Judge Advocate in the Air Force, 
serving on active duty, the Guard and Reserves. I am still part 
of that body.
    As a military lawyer, can you tell me how that experience 
has helped you develop as a lawyer and how does it play in your 
current role that you're seeking?
    Judge Benton. Well, the great thing about being a military 
lawyer is, as you may know, I finished Justice School and went 
to do legal aid. The military calls it legal assistance, but 
it's truthfully legal aid. It is the servicemember who has been 
ripped off by the car dealer, it is the then door-to-door 
sales--I date myself there, Senator, sorry. It was the door-to-
door sales rip off, and several other rip offs of that kind. 
That's what I did the first year.
    Then in the second year, a typical military career 
progression, as you well know, I was a defense lawyer. I 
defended people accused of crimes, a few very serious crimes, 
mostly serious misdemeanors, to be frank. Most of them, the 
maximum they could get was 6 months to a year in jail. So that 
was the next stage.
    Then next I was prosecuting a little bit, and then after 
that I advised commands. In the last 20, 25 years, being in the 
Navy, I advised commands of various size, sort of like small 
businesses. Of course, some were pretty big businesses. I was a 
JAG as a reserve for the Sea Bees up and down the Atlantic 
Coast and Europe, which was a very big job. So I really 
appreciated the breadth of experience that it does give you.
    Senator Graham. Thank you. I totally concur. It is a great 
way to be introduced to the law and a good value system.
    One final question. When I use the word or term ``strict 
constructionist'', what does it mean to you and how does it 
apply in your philosophy?
    Judge Benton. Well, in think in terms of statutory 
construction, it means finding the legislative intent, and the 
legislative intent is most clearly expressed in plain language 
is where we start, and the plain meaning of words. So that's 
where I start with it, Senator.
    Senator Graham. Thank you.
    The fact that no one else is here is good news. Because we 
have found a consensus apparently in you. People are very busy 
in this job, just like everyone out in the audience, having a 
thousand things to juggle every day. The Senate schedule from 
the time you get off the plane until the gavel bangs and you go 
back home is running from one event to the other. But you come 
highly recommended by the two Senators from your State, and 
colleagues who have served with you have a high regard for you. 
You are obviously a well-qualified person.
    To you and your family, I wish you the best because you're 
embarking on a great journey where our Nation needs well-
qualified and reasonable judges now more than ever. So God 
bless and the best of luck to you.
    Judge Benton. Thank you, Mr. Chairman, for your charity.
    Senator Graham. The next panel, please, if the other judges 
will come forward. I would like to have each of you sworn in. 
Would you please raise your right hands.
    Do you, Robert Harwell, George Schiavelli, and Curtis 
Gomez, each swear that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Harwell. I do.
    Judge Schiavelli. I do.
    Mr. Gomez. I do.
    Senator Graham. Please be seated. Welcome to you all, and 
we'll give you a chance to introduce your families properly 
here and make any statements you would like before the 
Committee.
    We will start with Mr. Harwell.

STATEMENT OF ROBERT BRYAN HARWELL, NOMINEE TO BE DISTRICT JUDGE 
               FOR THE DISTRICT OF SOUTH CAROLINA

    Mr. Harwell. Thank you, Mr. Chairman.
    I don't have an opening statement, but I would like to 
introduce my wife, Debbie, my two children, Carson and Sarah 
Nell, if they would stand. They're a little shy.
    Senator Graham. It's a handsome group there.
    Mr. Harwell. Thank you. And, of course, my father, David 
Harwell, a retired Chief Justice from South Carolina--
    Senator Graham. We're not going to hold that against you.
    Mr. Harwell. --and his wife, Debbie.
    [The biographical information of Mr. Harwell follows:] 

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    Senator Graham. Welcome to you all.
    To our former Chief Justice, I know this is a huge day in 
your family's life, and I have great admiration for you, sir. 
Justice Harwell was the Chief Justice of our Supreme Court and 
I have an intimate working knowledge of his legal background. 
Bryan, you have a wonderful family and I'm glad to have you 
here today. I will speak about you in just a moment.
    Judge Schiavelli.

STATEMENT OF GEORGE P. SCHIAVELLI, NOMINEE TO BE DISTRICT JUDGE 
             FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Judge Schiavelli. Thank you. I have no official opening 
statement at this point. I do want to again thank the 
President, and I want to thank Senator Boxer for her very kind 
introductory remarks, and for Senator Feinstein's statement. I 
thank the Committee for having this hearing.
    I would also again like to introduce my family here. My 
wife, Holli, my daughter Olivia, my son Peter, and a very close 
friend of 30 years, Roy Wuchitech from the firm of Sheppard, 
Muller, Richter and Hampton in Los Angeles.
    [The biographical information of Mr. Schiavelli follows:] 

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    Senator Graham. Welcome. Welcome to you all. Thank you.
    Mr. Gomez.

 STATEMENT OF CURTIS V. GOMEZ, A NOMINEE TO BE DISTRICT JUDGE 
          FOR THE DISTRICT COURT OF THE VIRGIN ISLANDS

    Mr. Gomez. Good morning, and thank you, Mr. Chairman.
    I also do not have an opening statement, but I would like 
to introduce some family and friends who are here.
    I would like to start with my wife, Simone Francis, who has 
traveled from St. Thomas; her aunt, my aunt-in-law, Betty 
Dawson and her husband, Eric Dawson, who live in the Virginia 
area; my friends who I practiced with in the Eastern District 
of Virginia, Morris Parker and Rebecca Bellows, who are still 
at the Eastern District of Virginia, U.S. Attorneys Office. I 
see my friends from many years ago who are also in the D.C. 
metro area, Maria Wallace and Dean Wallace. I hope I didn't 
miss anyone.
    Also, Mr. Chairman, I would like to thank my Delegate, who 
I understand was in the middle of conducting a health forum in 
the Virgin Islands and came up just for this. I truly 
appreciate her doing that. I appreciate the opportunity to be 
here.
    [The biographical information of Mr. Gomez follows:] 

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    Senator Graham. Welcome to you all. She made a very good 
statement on your behalf.
    Before we start--and we'll try to make this as short as 
possible--I would like to make a statement on behalf of Mr. 
Harwell.

 PRESENTATION OF ROBERT HARWELL, 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. Senator Hollings and I have had two 
opportunities to recommend people to President Bush for opening 
since I've been in the Senate in the last year-plus. Senator 
Hollings is the senior Senator from South Carolina, a member of 
the Democratic party.
    I would just like to state for the record that he has been 
a joy to work with on such matters. He is a larger than life 
figure, as you can understand from his testimony. We have 
worked well together, and in a fashion that I think most South 
Carolinians would appreciate. He will be retiring at the end of 
this term and he has served his State and Nation with great 
distinction. I want to publicly acknowledge all the help he has 
been to me and the great service he has given to our State.
    When it came time to find a suitable nominee for the 
Florence region, one of the reasons that we recommended 
together Bryan Harwell is that I have known Bryan for many 
years. His association as a judge advocate in the National 
Guard led us together. I was a judge advocate in the Air Force, 
the Air National Guard, and had an opportunity to work with 
Bryan on numerous occasions regarding National Guard issues and 
attended many forums with him.
    When it comes time to pick a judge and make a 
recommendation to the President, you want someone who, number 
one, won't embarrass you, two, that will serve your citizens 
well, and three, wear the robe humbly. I am totally convinced 
that Bryan Harwell has all those qualifications.
    He will wear the robe humbly. He's a lawyer's lawyer. He's 
been in the courtroom representing many interests, big and 
small. He is a well-grounded person who has contributed to his 
community. Once you put the robe on, service to the community 
doesn't stop. There are many ways that you can serve your 
community, and I would expect that to continue.
    I know his family very well. They are extremely decent 
people. I know, Bryan, you will serve the citizens of South 
Carolina well. You have an awesome challenge ahead of you, and 
all the experiences that you've had in life will come together, 
from being a good lawyer, a good member of the military, a good 
husband, and a good father, and will serve our State well.
    I am so pleased that President Bush agreed to this request 
and has nominated you, and I want to publicly thank President 
Bush and his team for allowing this to happen.
    [The prepared statement of Senator Graham appears as a 
submission for the record.]
    Senator Graham. At this point in time I will ask a few 
questions of our panelists. I do appreciate you all being here. 
This is a big day for you and your families and we join you and 
relish the opportunity to be part of it with you.
    As I mentioned to Judge Benton, when I mentioned the term 
``strict constructionist'', could you tell the Committee what 
that means to you? We'll start with Mr. Harwell.
    Mr. Harwell. Thank you, Mr. Chairman. Yes, sir.
    I believe my interpretation is to give something its plain 
meaning, its plain ordinary meaning, not to torture its 
meaning.
    Senator Graham. Well said.
    Judge Schiavelli?
    Judge Schiavelli. Yes, thank you, Mr. Chairman. It's a 
matter of concern, of course, for everyone on the judiciary.
    I view the role of the District Judge as one of learning a 
law and applying the law and not of making the law, and in 
doing that, I think the first place you look is to the plain 
meaning or the words of the statute that you are construing. 
The legislature is well capable of saying what it means, and I 
think the starting place is to assume the legislature has said 
what it means, that you all know how to say what you want us to 
apply, our job to apply it, and to look first to the terms of 
the statute.
    Senator Graham. Thank you.
    Mr. Gomez?
    Mr. Gomez. Thank you, Mr. Chairman. I believe the term 
refers to a statutory construction principle and looking to the 
four corners of the document for the plain meaning of the 
statute.
    Senator Graham. Mr. Harwell, you spent most of your time as 
a private attorney. You have done some arbitration mediation. 
How do you see the challenge of ascending to the bench without 
any prior judicial experience? How do you think your time as a 
lawyer has prepared you for the role that lies ahead?
    Mr. Harwell. Mr. Chairman, I think my practice over the 
past 20 years has been varied. I've had a lot of different 
legal issues thrown at me, and I think, as a judge, you will 
have a variety, a broad spectrum of issues thrown at you. So I 
think my practice, in and of itself, has very well prepared me 
for the challenge that lies ahead.
    I have also, as you know, Mr. Chairman, served as an 
arbitrator in a number of cases. I would expect that that 
experience would be of some help to me as well.
    Senator Graham. Judge Schiavelli, as a member of the Los 
Angeles Superior Court, could you maybe share with us one of 
your more challenging cases and tell us how you think that will 
prepare you for the next step in terms of the Federal 
judiciary?
    Judge Schiavelli. I think one of the more challenging 
cases--and I believe its in the materials we have submitted--
was a seven week trial involving an eminent domain situation 
between Southern California Edison and CALTRANS, regarding the 
taking of a freeway back in 1969.
    In that case, the question was whether or not compensation 
was going to be paid and from what point. It was an area that I 
had never had experience with, and that's one of the things 
that I think that you learn very quickly on the bench, when 
you're suddenly down the road but you don't have any more 
knowledge than you did before. You really do have to look to 
the lawyers to educate you. In that complicated eminent domain 
case, I was very much looking and, luckily, had very able 
lawyers on both sides in litigating that case.
    I think that experience, plus the other experience on the 
Superior Court, is educational, in teaching that you do really 
have to take the time and to spend the time once you go on the 
bench to learn the law. You don't stop reading the advance 
sheets, learning what the developing law is, working with the 
attorneys and recognizing that you do need their assistance, 
that they are there to help educate you and you have to be 
willing to accept that education. I think that's a critical 
criteria to take to the bench, and I think the experience on 
the Superior Court has been a big help in that regard.
    Senator Graham. Thank you.
    Mr. Gomez, tell us about the Street Law class and what that 
whole program is about.
    Mr. Gomez. Thank you, Mr. Chairman. Certainly.
    I was born and raised in the Virgin Islands. It's a small 
community. One of the things that I think is important in any 
community, especially a small one, is community service.
    One of the things that the U.S. Attorneys Office in the 
Virgin Islands does is teach a street law class. What we do is 
we staff a class with lawyers, who teach various principles of 
the law to high school students. It's a program that we've been 
running for several years, and it's an adjunct to our other 
program which we have, which is to coach high school students 
in moot court competitions.
    Senator Graham. You have been an Assistant U.S. Attorney in 
a variety of capacities. Could you tell us how you think that 
experience will help you in your new job?
    Mr. Gomez. Certainly, Mr. Chairman. If I'm fortunate to be 
confirmed, I would hope that the breadth and depth of my 
various experiences in my career would help me.
    In the U.S. Attorneys Office in the Virgin Islands, I was 
responsible for the financial litigation unit. That was 
responsible for getting all collections for the United States 
on judgments. I was also responsible for criminal prosecutions, 
a wide variety of criminal cases, violent crime, white collar, 
public corruption.
    In addition to that, though, Mr. Chairman, there has been 
considerable experience where I worked in the private sector, 
starting in the Washington, D.C. area with Patton Boggs, and 
then in the Virgin Islands as well. I think that breadth and 
depth of that experience will certainly help, should I be 
confirmed.
    Senator Graham. To each of the nominees, we have two more 
questions.
    As you know, the Federal courts are facing enormous 
pressure as their caseload mounts. If confirmed, how do you 
intend to manage your caseload? Let's start with Mr. Harwell.
    Mr. Harwell. Mr. Chairman, I think alternative dispute 
resolution is always helpful, and that is being pushed in our 
particular district right now. I would continue to encourage 
mediation by the parties, or ADR. I think that has to be 
continued.
    Senator Graham. As a judge, what role do you believe you 
would serve beyond mediation arbitration in terms of making 
people move the process along? What's going to be your 
philosophy there?
    Mr. Harwell. Well, I think judges can certainly encourage 
mediation. Some judges issue standing orders in our district 
for mediation. So I think the judges, as a rule, can certainly 
encourage the parties to use other processes.
    Senator Graham. Judge Schiavelli?
    Judge Schiavelli. Thank you, Mr. Chairman.
    The problem of court management is a big one in the Los 
Angeles Superior Court, that being the court, the largest 
general jurisdiction court in the world actually. At one time, 
many of our judges had up to 500 cases in their inventories at 
a given time on the civil side, so we were very concerned about 
that.
    There are a number of things that I think can be helpful. 
First, there's an old saying, and that is that nothing settles 
as case faster than an open courtroom. By that I mean, if trial 
dates are certain, that people know they're going to trial and 
not going to be continued, absent reasonable circumstances--I'm 
not saying never continued--but as long as they know, when they 
get a trial date, that's going to be a trial date, that moves 
cases along.
    I think the judge has to take an active role. We changed 
from a master calendar to a direct calendaring system, and it 
cut the caseload tremendously. The judge has to be involved in 
the case, keeping abreast of what's going on, moving the case 
towards settlement at every chance, using, as has been 
mentioned, the ADR techniques, which are mandatory in many 
cases in Los Angeles now, depending on the size of the case. 
That is very helpful, both mediation and arbitration.
    Finally, enforcing the rules, ensuring that the lawyers are 
observing the rules and are following those rules, because 
that's what moves cases along.
    Senator Graham. Thank you.
    Mr. Gomez.
    Mr. Gomez. Thank you, Mr. Chairman.
    I would adopt the comments made by the other nominees, but 
I would also add this. I think it's important that the District 
judge have a good working relationship with the magistrates who 
serve with the District judge. I think that's one way, where 
you can set a clear objective and a clear goal to moving your 
calendar.
    Senator Graham. A final question. Given your background and 
prior experience, could each of you speak for a moment about 
the role and significance of judicial temperament and indicate 
what elements of judicial temperament you consider to be the 
most important..
    Mr. Harwell. I think, Mr. Chairman, that judicial 
temperament is very important. I think judges should be 
respectful of the litigants, the lawyers, and the jurors. You 
know, jurors are giving up a lot of their time and it's 
inconvenient to a lot of them. We have to be ever mindful of 
that fact and we cannot forget that.
    In South Carolina, I have appeared in front of some judges 
who have suffered from the disease of ``robitis'', that we 
call. I think judges, when they step into the courtroom, or 
whether they're in chambers, or whether out in public, I think 
they've got to have a good disposition and a good temperament.
    Judge Schiavelli. Thank you, Mr. Chairman. I think that is 
an issue of great importance. I think that the atmosphere of 
the courtroom flows from the bench outward. I think that's from 
the appellate bench or from the trial bench. I think there is 
no excuse for a judge to lose his or her temper, to refuse to 
be courteous, and I think the lawyers and the participants take 
their cue from that.
    I think the judge must remain in control of the courtroom 
at all times, to be sure, but also can do that while remaining 
courteous and fair to the people before him or her. I believe 
that when a judge loses his or her temper, the judge has, in 
fact, lost the control of the courtroom and is now being 
reactive instead of proactive. So I think judges have a duty to 
be courteous to the litigants and also among themselves. I 
think it sends a bad message.
    I have seen situations where courts on appeal, for example, 
where judges have gone after each other personally in various 
opinions. I think that sends a bad message as well to the 
litigants and to the bar. Thank you.
    Mr. Gomez. Mr. Chairman, thank you.
    In addition to what the other nominees have said, I would 
add this. That it's important that any trial court judge be 
mindful of everyone to whom they speak in their courtroom, not 
just the litigants and the jurors, who are integral parts of 
the process of any ongoing trial, but also the people in the 
audience. As a prosecutor, there are so many times when I have 
seen parents crying at sentencing hearings, and a loose word by 
a judge has such a profound effect on those people and the 
other people who may be watching. So I think it's important not 
just to be mindful of the things you do and say to those who 
appear before you as parties and jurors who are involved in the 
process, but also those who may be witness to your actions.
    Senator Graham. Thank you all very much. You have given 
outstanding testimony to the Committee and you all have unique 
and very solid backgrounds to be an integral part of a 
democracy, where the rule of law is our foundation. As we look 
throughout the world, there are many places who would love to 
have a courthouse to go to, where you had no fear, you could be 
heard and listened to, regardless of your station in life, 
where your fellow citizens have a chance to evaluate the merits 
of your claim, where someone would preside with dignity and 
with a humble hand. That is missing in many places on Earth, 
but it thrives here in the United States. I think all of you 
will be a great addition to that concept.
    The record will remain open for one week, on 5:00 o'clock, 
April 15th, for further statements or questions for the record.
    If there is no further business, the Committee is 
adjourned.
    [Whereupon, at 10:50 a.m., the Committee adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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NOMINATION OF MICHAEL H. WATSON, OF OHIO, NOMINEE TO BE DISTRICT JUDGE 
                   FOR THE SOUTHERN DISTRICT OF OHIO

                              ----------                              


                          FRIDAY, JUNE 4, 2004

                              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. Michael 
DeWine, presiding.
    Present: Senator DeWine.

 OPENING STATEMENT OF HON. MICHAEL DEWINE, A U.S. SENATOR FROM 
                       THE STATE OF OHIO

    Senator DeWine. The Committee will come to order.
    It is my pleasure and honor today to introduce Judge 
Michael Watson, who currently serves on the Tenth District 
Court of Appeals in Franklin County, Ohio. President Bush has 
nominated Judge Watson to serve as a Federal judge in the 
Southern District of Ohio.
    Before I speak about Judge Watson, I would like to welcome 
to the Committee several people who are here today to support 
him. Judge Watson's wife, Lori Watson, is here. We would like 
to welcome her. His two staff attorneys, Dorci Gass and Carrie 
Wambaugh, and his administrative assistant, Karen Waldrop, we 
would welcome all of them here. We thank you all for coming.
    I am sorry that none of Judge Watson's three sons could 
make it today. Grant and Tommy are both at Ohio State and 
Harrison is at Thomas Worthington High School. All are either 
taking or preparing for final exams this week.
    Judge Watson has had a long and distinguished career as a 
public servant. He has been a judge on the Tenth District Court 
of Appeals in Franklin County since Governor Bob Taft appointed 
him in May of 2003.
    From 1996 to 2003, Judge Watson served on the Franklin 
County Common Pleas Court, a position he was appointed to by 
then Governor George Voinovich, and to which he was re-elected 
twice.
    In Ohio, the Common Pleas Court is the highest trial bench. 
It is a court that tries all the major civil and criminal 
cases. During his last 3 years on the trial court, Judge Watson 
served as administrative judge with responsibility for the 
administrative management of the 16-member court and its staff. 
He dealt with literally thousands of cases during his time as a 
State trial court judge.
    Before serving on the bench, Judge Watson worked for the 
office of then Governor George Voinovich, first as Deputy Chief 
Legal Counsel and then, from 1994 to 1995, as Chief Legal 
Counsel. Prior to that, he was Chief Legal Counsel to the 
Director of the Ohio Department of Commerce.
    Judge Watson also spent several years in private practice, 
focusing primarily on personal injury litigation, employment 
disputes, workers compensation, and criminal defense.
    Without question, Judge Watson has had an impressive legal 
career. What really impresses me about him is how hard he has 
worked throughout his entire life. Judge Watson has genuinely 
lived the American dream. He has lived that dream by working 
hard and overcoming odds. He came from a working class family, 
where he was the first in his family to graduate from college. 
Now he is here before us as a nominee of the President of the 
United States, to be a Federal District Court Judge.
    When we get to questioning, I will ask Judge Watson about 
his beginnings, his humble beginnings. I would like for him to 
fill in the gaps about his life for us. But for now, I just 
want to say to Judge Watson that he should be very, very proud 
of his achievements.
    Judge Watson, I believe, will be a fine addition to the 
District Court. In his time on the Ohio Court of Common Pleas 
and on the Ohio Court of Appeals, Judge Watson has 
distinguished himself through his thoughtful legal reasoning 
and his great integrity. This experience and his temperament 
make Judge Watson highly qualified for the Federal District 
Court.
    Let me at this point ask Judge Watson to come forward. 
Judge, if you will remain standing, and raise your hand and 
take the oath.
    Judge 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 Watson. I do.
    Senator DeWine. Judge, if you will please be seated, you 
can make any opening statement you would like to make, or 
introduce anyone else that you would like to introduce at this 
point, and then I will get to our questions.

  STATEMENT OF HON. MICHAEL H. WATSON, NOMINEE TO BE DISTRICT 
            JUDGE FOR THE SOUTHERN DISTRICT OF OHIO

    Judge Watson. Thank you, Mr. Chairman.
    First of all, I want to thank you personally for holding 
this hearing today, and the other members of the staff of the 
Committee for being present today. It is a distinct privilege 
to be in the United States Senate this morning, having the 
opportunity to talk about my beginnings and where I have come 
from. So I very much appreciate that. I also want to extend my 
thanks to President Bush for nominating me for this position.
    In addition to the individuals you previously identified, 
Mr. Chairman, I have with me today two law school classmates of 
mine, Hon. John M. Peterson, who is sporting the ``ZZ Top'' 
beard in the back, and along with him is Mr. David Ahrendt.
    Senator DeWine. We welcome them.
    Judge Watson. Thank you. They have always been great 
supporters of mine and it really touches me that they are here 
this morning. So thank you very much for the opportunity.
    [The biographical information of Judge Watson follows.] 

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    Senator DeWine. Well, Judge, let me start by asking a 
question about your background, first of all, how you came to 
be an attorney in the first place. You don't come from a long 
line of attorneys, but let me ask you how you were raised and 
describe the environment that you grew up in.
    Judge Watson. Thank you, Mr. Chairman.
    My father left his family when we were young. I was raised 
by my mother and my stepfather. My stepfather managed auto 
parts stores, and my mother was a middle manager at Riverside 
Hospital in Columbus. They brought together two families, five 
kids, and we knew that we would not have the opportunity to got 
to college unless we saw to it ourselves somehow. Our parents 
could not afford it.
    So the opportunity presented itself for me to enlist in the 
Air Force and I enlisted in the Air Force approximately 8 
months after I graduated from college and went away to basic 
training, about 13 months after I graduated from high school, 
at Whetstone High School in Columbus, OH.
    I served in the United States Air Force for 3 years and 
several months. I had the opportunity to go to Germany and 
spent 2 years in Germany. When I left the Air Force, I had the 
opportunity to have the GI bill assist me in paying for 
college. In addition, I joined a program with the Ohio National 
Guard at that time, known as--I received what was, I suppose, a 
discharge from the active duty Air Force, and I what they 
called ``palace chased'' into the Ohio Air National Guard, 
where I spent another roughly 6 years.
    I ultimately got out of the Air Force and the Air National 
Guard in 1984. During that period of time, Mr. Chairman, I was 
married in 1979 to the wife of my youth, who sits behind me, 
and we had three children. I had my first son, Grant, when I 
was a junior in college, at Ohio State University. I was 
working full time during my undergrad years at the Franklin 
County prosecuting attorney's office, and then when I received 
my degree from Ohio State, I went to the only law school in 
town that offered a night program for a young man that was 
working full time and raising a family. That was Capital 
University Law School.
    Senator DeWine. What was your job at the prosecutor's 
office? You said you had a job at the prosecutor's office?
    Judge Watson. Yes. Several things initially, Mr. Chairman. 
I started on the administrative staff, but eventually developed 
into the management of law clerks who were doing discovery, 
providing discovery to criminal defense counsel for the cases 
that were being prepared. I worked there under the tutelage of 
Bill Curlis, was hired by now Senior United States District 
Judge George C. Smith when he was the Franklin County 
Prosecutor, and I worked for him for a period of time, and then 
his successor, Michael Miller. That was my tenure at the 
prosecuting attorney's office.
    Senator DeWine. So you went to Capital University that had 
a night law school?
    Judge Watson. That is correct. It was a 4-year program. I 
was fortunate to go to school with a number of second career 
professionals and other adults who were working their way 
through law school. I met a number of wonderful people who 
remain friends to this day.
    Senator DeWine. During that period of time, you continued 
to work for the prosecutor's office?
    Judge Watson. I worked at the prosecutor's office until I 
graduated from undergrad. I began working for Judge Thompson as 
his bailiff and eventually developed into a bailiff/law clerk 
position for the entirety of my 4 years at Capital.
    Senator DeWine. What impact did this experience have on 
your ability to be a judge, do you think, both your experience 
as a bailiff and your experience in going to night law school?
    Judge Watson. Thank you for the opportunity to explain, Mr. 
Chairman.
    I was fortunate enough to meet the lion's share of the 
practicing bar in Franklin County as a bailiff. I worked for 
the administrative judge of the court, who was very well 
regarded, who provided me a phenomenal example of how to be a 
judge. He was patient. His listened to people. He didn't force 
people to accept guilty pleas. He had empathy for the folks who 
appeared before him. He had a work ethic that was one that I 
chose to emulate. So I had the opportunity to observe, as 
opposed to reading about the practice of law. I had the 
opportunity to participate in it, without violating any of 
the--Well, I had the opportunity to participate and watch other 
lawyers practice, saw trials conducted, watched experts in 
their craft performing voir dire. I listened to some fantastic 
closing arguments. It was a tremendous opportunity and one that 
other members, other peers, did not enjoy.
    Senator DeWine. After you finished law school, what did you 
do then?
    Judge Watson. I had the opportunity to go to work for 
several law firms, and eventually selected the Lane, Alton & 
Horst firm. Actually, they selected me. Lane, Alton & Horst is 
primarily an insurance defense firm--it was at that time--
although the practice of law has changed, and so, too, has some 
of their practice.
    In any event, I learned how to be a lawyer there. I did the 
things that a first and second year associate would do. I did 
not have the opportunity to choose who my clients would be. I 
simply worked on the cases that the partners assigned to me. I 
prepared interrogatories; I did deposition summaries; sometimes 
I conducted depositions; sometimes I interviewed expert 
witnesses; sometimes I carried partners' suitcases to court; 
sometimes I sat in the second chair at trial. I learned how to 
write there, you know, motion drafting and so forth. So that is 
the type of experience that I had at Lane, Alton & Horst.
    Senator DeWine. What kind of cases were those, Judge?
    Judge Watson. Well, they were primarily personal injury 
cases. It would be the defense of personal injury cases. But it 
was the defense of whatever case an insured had. If it was a 
property dispute of some sort, we dealt with that. I also did 
some medical negligence defense, because several of the 
partners focused on medical negligence.
    We did some employment law work, where I had the 
opportunity to participate to some degree in those cases. I 
also did workers' compensation representation before staff 
hearing officers and district hearing officers of the Bureau of 
Workers Compensation. I also did some felony criminal 
appointments as they were offered to me by certain members of 
the Common Pleas Court.
    Senator DeWine. How long then were you with that firm?
    Judge Watson. A year-and-a-half, 15 months, something along 
those lines, Senator.
    Senator DeWine. After that, where did you go, Judge?
    Judge Watson. I changed sides, so to speak, and went to 
work for a firm that focused primarily on personal injury 
representation of plaintiffs.
    Senator DeWine. What firm was that?
    Judge Watson. It would have been Delligatti, Hollenbaugh, 
Briscoe & Milless at that point.
    Senator DeWine. What did they do?
    Judge Watson. They did primarily personal injury work. They 
did some small business representation. They did some 
employment representation.
    Senator DeWine. What was your role there?
    Judge Watson. More of the same, really, in terms of case 
preparation. I had more client contact there. But primarily it 
was the working up of a case and trying to get it ready for 
trial, motion practice and so forth. I also continued with my 
criminal defense work there as well.
    Senator DeWine. And were you in court then during a part of 
that period of time?
    Judge Watson. Yes, I had the opportunity to attend--I sat 
second chair in cases at Lane, Alton and I believe we were 
prepared to go to trial in a personal injury case in Franklin 
County that settled. I'm sorry, but the names escape me at this 
point. But it would have been with Mr. Delligatti and Mr. 
Hollenbaugh on a particular case.
    I was in court regularly when I was handling the criminal 
cases. I had the opportunity to attend a number of status or 
pretrial conferences in some of the outlying counties around 
Franklin County, as well as status conferences in Franklin 
County.
    Senator DeWine. And where did you go from there, then, 
Judge? What was your next--
    Judge Watson. In early 1991, I had the opportunity to go to 
work for the Voinovich administration. I was offered a position 
working for the Ohio Department of Commerce, as the Chief 
Counsel, and I held that position until some time in 1992.
    Senator DeWine. What does a chief counsel do?
    Judge Watson. Well, the Chief Legal Counsel had 
responsibility to the Department Director and dotted line 
responsibility to the Governor's legal staff for all of the 
legal issues that arose within out of the regulatory work that 
took place in Ohio.
    Senator DeWine. Did you give legal advice to people inside 
that department?
    Judge Watson. I regularly gave legal advice on labor 
relations matters to the Director. I served as a go between and 
assisted the Division Chiefs when they had legal issues that 
they wanted to present to the Director, and I assisted them in 
the presentation of their issues to the Director.
    Senator DeWine. Within that department, then, you would be 
basically that department's lawyer?
    Judge Watson. Correct.
    Senator DeWine. You're the chief lawyer of that department?
    Judge Watson. Among a number of lawyers, keeping in mind 
that the division chiefs, the Commissioner of Securities, was 
at that time a lawyer, and he employed an enforcement staff. 
They were lawyers as well, but I was the chief lawyer in the 
department, yes.
    Senator DeWine. So your work was the work of a lawyer?I 
mean, you were doing legal work. You weren't just a person who 
happened to be a lawyer who was in a particular position. You 
were doing legal work every day, is what you were doing?
    Judge Watson. That is correct. That is correct. I did have 
administrative responsibilities, but I also had regular legal 
work that I was involved in.
    Senator DeWine. And your next position was what, then?
    Judge Watson. Judge Lisa Sadler was appointed by Governor 
Voinovich to the Municipal Court bench, and I succeeded her as 
the deputy chief legal counsel in the Governor's office in 
1992. I held that position until I succeeded Kurt Tunnell as 
the chief legal counsel to then Governor Voinovich.
    Senator DeWine. Tell us a little bit about those two 
positions.
    Judge Watson. As the deputy chief counsel, I was 
responsible primarily to the chief counsel to coordinate 
information. We had oversight responsibilities in the 
Governor's office for clemency matters, all legislative matters 
that were presented to the Governor for his signature. We also 
served as liaison between each of the cabinet directors and 
their legal staffs. So whatever the ``crisis de jure'' would 
be, we would need to become intimately familiar with the issues 
so that we could relay those issues cogently to the chief 
counsel and on to the Governor at that time.
    Senator DeWine. But when you were the chief legal counsel, 
you were the Governor's, as the term indicates, chief legal 
counsel?
    Judge Watson. I was, correct. Yes. I succeeded Mr. Tunnell 
when he went back to Bricker & Eckler, and I became the chief 
legal counsel. I had others working on my staff who--
    Senator DeWine. Other lawyers?
    Judge Watson. Other lawyers. They assisted me and I was the 
primary conduit of information to the Governor.
    Senator DeWine. The lawyers for the other departments, you 
had some coordinating authority in regard to them as well?
    Judge Watson. At the beginning of the Voinovich 
administration, we asserted a role in the hiring of those 
individuals and the screening of those individuals, and where 
expertise existed, we left that expertise in place. They 
reported through us--they weekly reported to us, and then, of 
course, if there was a particular issue that rose to the level 
of the Governor's attention, then they were daily on the phone 
with us or meeting in our offices, or we were in their offices 
dealing with those issues.
    Senator DeWine. You became a Common Pleas judge in 1996?
    Judge Watson. Thank you for the opportunity to address 
that, Senator.
    I had the privilege of replacing the judge who I worked for 
during law school upon his retirement. Judge Tommy Thompson 
served for 24 years on the Common Pleas bench, and I was 
fortunate enough to be appointed by now Senator but then 
Governor Voinovich to replace him, yes.
    Senator DeWine. And you served as Common Pleas judge for 
how long?
    Judge Watson. Approximately 7 years, 5 months.
    Senator DeWine. Judge, tell us about that experience. In 
Ohio, the Common Pleas court is the top trial court in the 
State.
    Judge Watson. That is correct.
    Senator DeWine. And you hear what kind of cases?
    Judge Watson. We hear criminal cases, from garden variety 
thefts to capital murder cases, and we hear all manner of civil 
cases, exclusive of--I had no family law jurisdiction, and I 
had no probate jurisdiction. But there were 16 members on the 
court. Each of us carried dockets in excess of 700 cases on a 
constant basis, both civil and criminal. We faced dockets--In a 
typical criminal week, we would have anywhere between 10 and 16 
cases set per day. Our civil dockets typically had five to ten 
cases set per day. It was the busiest trial court in the State.
    What I learned there was--I had had the opportunity to 
observe Judge Thompson on a daily basis, and so I knew what 
kind of judge I wanted to be. I wanted to be a fair-minded 
individual who would listen to litigants, who had empathy for 
litigants, but who also knew how to move a docket along.
    One of the alternative dispute resolution techniques, it is 
my understanding, that has swept the country, settlement week, 
started in our court. It then spread to the U.S. District Court 
in Columbus, and then from there out to the hinterlands, I 
suppose.
    Senator DeWine. Judge, how do you think that seven-plus 
years experience would prepare you to serve on the Federal 
District Court?
    Judge Watson. I believe, Senator, that it would serve me 
very well. I know how to handle a busy docket. I know how to 
manage a docket and move it along. I know how to deal with busy 
lawyers, and I know how to deal with litigants, whose most 
important case on my docket that day is their case. I think it 
would serve me well.
    The Rules of Civil Procedure in Ohio are not dissimilar to 
the Federal Rules. The sentencing structure is similar and yet 
distinct, in that we don't have the type of sentencing matrix 
that exists at the Federal level, but I don't believe it would 
cause me any difficulty in following the sentencing guidelines, 
however.
    Senator DeWine. Judge, last year you were appointed to 
Ohio's Tenth District Court of Appeals. Has this experience 
given you a perspective that would help you as a Federal 
District Court Judge?
    Judge Watson. I believe it has. I have worked with six 
other wonderful individuals who have served as mentors on that 
court, and I believe it has given me deep insight into how to 
be a better trial judge.
    Senator DeWine. Judge, let me ask you about your reversal 
rate. In your Judiciary Committee questionnaire, you list, I 
believe, 37 cases on which you have been reversed.
    Put this in a little context for us. For example, how many 
cases do you think you have dealt with on the Common Pleas 
Court bench? These 37 cases were Common Pleas cases where 
you've been reversed?
    Judge Watson. That's correct.
    Senator DeWine. What kind of reversal rate is this that 
you've had?
    Judge Watson. Thank you. First and foremost, I think it 
would compare very favorably with the other members of the 
court. Secondarily, I believe it is statistically not that 
significant. If you assume a constant 700 case docket and you 
assume that you take in approximately 100 new cases each month, 
while getting rid of, on average, 105, 115 cases a month, 
you're dealing with 1200 cases a year that are moving through 
the docket, times seven-and-a-half years. Thirty-seven out of 
9600 cases is where I come out on that.
    No one really keeps those statistics, but--
    Senator DeWine. So that's just an approximation?
    Judge Watson. It's an approximation, and that's all it is. 
But that 700 number is constant, and as administrative judge 
for the last 3 years, I had a three-quarter docket. So 
everybody else on the court probably had a quarter more cases 
than I did even. I mean, they're facing dockets at 750 and some 
of them 800 cases now.
    Senator DeWine. Of course, the numbers you gave us, to keep 
it in perspective, that would not include all cases that had 
been appealed. So if you took just the cases that had been 
appealed, how do you think your statistics come out?
    Judge Watson. Very well. I don't have a number, Senator, 
but I am very well--
    Senator DeWine. Do you think you're in the average range?
    Judge Watson. I think I'm probably above average, in a good 
way. That's the best way that I can say that. I thumb through 
some of the advance sheets--For instance, one of the members of 
the court--you know, at one point I was looking at five cases a 
year. If you take the 37 and divide it by seven-and-a-half, I 
was looking at five cases a year and one individual had three 
cases reversed in 1 day. So I think I would show favorably in 
those statistics.
    Senator DeWine. Since you have been on the Court of 
Appeals, have you had any cases reversed?
    Judge Watson. Not to my knowledge, Senator.
    If I might amplify that, there are seven judges on the 
Tenth District Court of Appeals. We sit approximately 17 times 
a year. Each time we sit, we sit for 3 days out of the week and 
we hear approximately 21 cases and, therefore, author a third 
of those cases. I don't know what that totals up to, but that's 
a pretty good approximation of what that workload has been 
like.
    Senator DeWine. When we look at your answers to the 
reversal questions in the Judiciary Committee questionnaire, 
some of these case summaries do look very similar. Does this 
mean you were reversed on the same issues repeatedly? I'm a 
little confused by that.
    Judge Watson. No, it should not, Senator. Those cases are 
all factually distinct. In fact, the only thing that would bear 
any resemblance might be--I think there are four sentencing 
cases of the 37. That whole sentencing law changed in July of 
1996. It changed in July of 1996 and the Tenth District was 
somewhat lenient until the Supreme Court determined that we 
were to find case-specific facts to support our sentencing 
decisions. So then things tended to clear up in terms of the 
sentencing issues. But there are only four of those cases, and 
everything else was factually distinct.
    Senator DeWine. There is another matter, Judge, that I 
would like to ask you about, and that is your ABA evaluation. 
Frankly, to my surprise, given what I believe are your 
excellent qualifications to be a Federal District Court judge, 
the ABA gave you a substantial majority of qualified, but a 
minority not qualified rating. This rating is not secret and, 
frankly, none of my colleagues have told me they are 
particularly concerned about this rating. But I do want to ask 
you about it for the record and get this out.
    Do you know why the ABA gave you this rating--why a 
minority gave you this rating is what I should say. Let me 
state for the record--and I think everyone knows this--that 
there are 14 voting members on the ABA committee. We don't know 
how the vote broke down, but at least 10 must have voted 
qualified for you. We don't know what the rest could have been. 
It may have only been one who voted not qualified, or it could 
have been up to four. We don't know.
    Judge Watson. Thank you for the opportunity to address 
that, Senator.
    I don't know what the reason is is the fairest answer. I'm 
not privy to the committee's vote. I don't wish to speculate on 
why that might have taken place. I'm as surprised, I suppose, 
as anyone.
    Senator DeWine. Did they give you any reason?
    Judge Watson. No, there was no reason given at all. I was 
told to expect the opportunity, if something had come up--I was 
told that when I had my personal interview. I had a wonderful 
interview with a very nice gentleman, and I was led to believe 
that everything was fine and there were no problems.
    Senator DeWine. No issue was raised with you--
    Judge Watson. No issue was raised with me.
    Senator DeWine. --in that exit interview, whatever it's 
called?
    Judge Watson. Absolutely not.
    Senator DeWine. Now, Judge, you testified that you were an 
administrative judge--is that the term?
    Judge Watson. Correct.
    Senator DeWine. You were an administrative judge for how 
long?
    Judge Watson. The last 3 years that I was on the trial 
court, so it was 2001, 1902 and 1903.
    Senator DeWine. How is that person selected?
    Judge Watson. By a vote of his peers.
    Senator DeWine. What does that person do?
    Judge Watson. You serve as the manager of the court, of the 
court's business and the court's employees.
    Senator DeWine. So you were selected by the other--how many 
judges?
    Judge Watson. The other 15 judges.
    Senator DeWine. The other 15 judges.
    Judge Watson. I voted for myself as well.
    [Laughter.]
    Senator DeWine. So you were selected by the other judges to 
be the administrative judge, then?
    Judge Watson. That's correct.
    Senator DeWine. Tell me a little bit about your approach to 
docket management a little bit more. You talked about this, but 
I wonder if you could expand on how you see your role with this 
on the Federal District Court. Because it's a problem with any 
court, and it certainly is a problem, as you pointed out, in 
Franklin County Common Pleas Court. But it is a problem at the 
Federal District Court as well.
    Tell us as little bit about your attitude on that, and tell 
us a little bit about the alternative dispute resolution, too.
    Judge Watson. In the nearly 20 years that I have been 
around courts and around the law, I have had the opportunity to 
see a number of techniques, alternative dispute resolution and 
docket management techniques tested, some successfully, others 
not so successfully.
    Franklin County employed what was known as a ``rocket 
docket'', where you got a trial date and all of the attendant 
hearing dates the day you file your lawsuit, and then 
everything works towards the trial date. If managed correctly, 
which means regular contact with the lawyers, you can fairly 
efficiently move a case through to resolution.
    Along the way there are a number of opportunities through 
mediation, through this settlement week concept, through 
arbitration, both private and then arbitration with court 
magistrates and so forth to resolve cases.
    As the case nears trial, oftentimes the judge would sit 
down with counsel and see if there wasn't any last minute 
ability to settle a case. Many cases have a tendency to settle 
on the morning of trial on the courthouse steps, as I'm sure 
you're aware. Judge Thompson was a very effective negotiator, 
but he did it without twisting people's arms very hard. So I 
learned how to do it in a manner that left open the opportunity 
for people to try the case, if that's the route they wanted to 
continue to pursue.
    Senator DeWine. Judge, we often hear lawyers complain about 
judges who won't allow lawyers to try their own case. On the 
other hand, a judge clearly has to keep control of the 
courtroom.
    How do you balance the two?
    Judge Watson. Senator, I think you have identified perhaps 
a key distinction between conducting a trial at the State level 
and conducting a trial at the Federal Court. My understanding 
of the practice in the Southern District is that a number of 
the judges conduct voir dire for the lawyers, where in the 
State court the practice is much more left to the lawyers 
themselves.
    Unless I am bound by some rule that I'm currently 
unfamiliar with, my intention would be to allow the lawyers to 
choose their own jury, because I think it's a key aspect of the 
case. I believe that lawyers should be allowed, once they get 
to trial, they should be allowed, within the bounds of the 
rules of evidence and the rules of procedure and proper 
decorum, to present their case without my interference, only 
ruling on the objections that come before me and properly 
administering the case.
    Senator DeWine. What about the rest of the trial itself, 
besides the selection of the jury? What about the general 
running of the case? How would you describe yourself, as to 
what kind of judge are you?
    Judge Watson. My tendency as a trial judge has been not to 
allow questions from witnesses--I'm sorry, is that what I mean? 
I mean questions of witnesses to a jury. I am willing to be 
edified on that. I know that it has been tried by a number of 
my peers and I know there are folks who experiment with those 
things from time to time.
    But in the conduct of the case itself, I have on rare 
occasions interjected a question when I had a question, but I 
think the trial judge, in doing so, has to be very careful not 
to evidence-bias in the question that you ask. You have to be 
very careful about how you put your question.
    Senator DeWine. Judge, you have been on the Common Pleas 
Court. You have now been on the Court of Appeals, and you have 
had the experience of watching trials from a great seat, and 
that's the seat of a bailiff. You have had all those 
experiences.
    Why do you want to be on the Federal Court?
    Judge Watson. Senator, thank you for the opportunity to 
answer that question.
    I sit here today because this is a highly sought after 
position in our profession. I view this as the crowning 
achievement of a career, a capstone of a career, if you will. I 
have dedicated my life to public service. This is an 
opportunity that I simply could not ignore. I believe that my 
skills and my temperament qualify me, that my experience 
qualifies me for this position. I think that most lawyers, at 
some point in their career, would say that this is a coveted 
position. I respect that and that is why I am seeking this 
position.
    Senator DeWine. Judge, in general, Supreme Court precedents 
are binding on all lower Federal Courts and Circuit Court 
precedents are binding on the District Courts within the 
particular circuit.
    Are you committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even 
if you personally disagree with such precedents?
    Judge Watson. Absolutely, Senator.
    Senator DeWine. Judge, I thank you very much.
    Let me just say that the record will remain open for one 
week for additional statements or questions. We would ask, if 
members of the Judiciary Committee do submit questions for you, 
that you respond to these promptly. The record will close at 
5:00 p.m., on June 11th.
    I do have a written statement for the record to be 
submitted by Senator Voinovich, who regrets that he could not 
be here today. That will become a part of the record.
    Judge Watson. Thank you very much, Mr. Chairman. I 
appreciate all you have done and I thank you for having this 
hearing today.
    Senator DeWine. If there is no other business to come 
before the Committee today, the Committee will stand adjourned.
    [Whereupon, at 10:50 a.m., the Committee adjourned.]
    [Questions and answers and a submission for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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 NOMINATION OF RICHARD A. GRIFFIN, OF MICHIGAN, NOMINEE TO BE CIRCUIT 
JUDGE FOR THE SIXTH CIRCUIT; DAVID W. MCKEAGUE, OF MICHIGAN, NOMINEE TO 
 BE CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; AND VIRGINIA MARIA HERNANDEZ 
  COVINGTON, OF FLORIDA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE 
                          DISTRICT OF FLORIDA

                              ----------                              


                        WEDNESDAY, JUNE 16, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:07 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Cornyn, and Leahy.

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

    Chairman Hatch. Today, the Committee will conduct a hearing 
on the nominations of three outstanding lawyers to be Federal 
judges. I commend President Bush for nominating each of them 
and I look forward to their testimony. I welcome the nominees, 
their family members and guests, and, of course, our 
distinguished colleagues who will be here, I believe, to 
testify today, as well as Members of the House who will 
introduce two of our nominees.
    On our agenda today are two nominees for the United States 
Court of Appeals for the Sixth Circuit: Mr. Richard A. Griffin 
and Mr. David W. McKeague. In addition, we will consider the 
nomination of Virginia Maria Hernandez Covington, to be United 
States District Judge for the Middle District of Florida. We 
are happy to have you all here today.
    I might add that it was over two-and-a-half years ago, on 
November 8, 2001, that President Bush nominated Judge McKeague 
for a seat on the Sixth Circuit. Judge Griffin was first 
nominated to this position by President George W. Bush on June 
26, 2002. Both of these nominees have been rated Well Qualified 
by the American Bar Association.
    Let me be frank. I am aware that many people have strong 
feelings about the status of the Sixth Circuit Court nominees. 
For more than 2 years, I have been working with many, including 
the Senators from Michigan, to bring an acceptable resolution 
to these issues. I believe the best way to continue at this 
point and to progress toward a resolution is to move forward 
with this hearing, report the nominees from the Committee and 
place them on the executive calendar.
    I am mindful that Senators Levin and Stabenow have concerns 
about the Sixth Circuit nominees. The Michigan Senators' 
negative blue slips have been and will continue to be accorded 
substantial weight. Indeed, the timing of this hearing is due, 
in part, to the views of the Michigan Senators. While negative 
blue slips are not dispositive under the Committee's Kennedy-
Biden-Hatch blue slip policy, they certainly are a significant 
factor.
    Since I first became Chairman of the 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 6, 1989, quote, ``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,'' 
unquote.
    Chairman Biden continued to explain the blue slip policy 
that the Committee would follow under his chairmanship as 
follows, quote, ``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,'' unquote.
    In the case of Judge McKeague, Judge Griffin and other 
Michigan nominees, there is a clear record of consultation by 
the Bush White House with the Michigan Senators. Over 3 years 
ago, on April 10, 2001, White House Counsel Alberto Gonzales 
began discussions with the offices of the Michigan Senators 
regarding the vacancies on the Sixth Circuit and in the Eastern 
District of Michigan.
    I understand that on May 17, 2001, Judge Gonzales 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 President Bush 
ultimately did not nominate those individuals, one can only 
conclude the consultation requirement was meaningfully 
fulfilled in the cases of Judge McKeague, Judge Griffin and 
other Michigan nominees.
    I will continue to work with my friends and colleagues from 
Michigan--Senators Levin and Stabenow--the White House, Members 
of the House of Representatives, Senator Leahy and others on 
the Committee to reach an acceptable resolution for the 
vacancies in Michigan and the Sixth Circuit. I view resolution 
of the Sixth Circuit situation as important as any other 
judicial nominations matter pending before the Committee. I 
remain hopeful that we can reach an acceptable outcome.
    Toward that end, this morning we welcome to the Committee 
Richard Allen Griffin, whom President Bush has nominated for a 
seat on the Sixth Circuit Court of Appeals. Judge Griffin has 
exceptional qualifications for the Federal appellate bench.
    After graduating from the University of Michigan Law School 
in 1977, Judge Griffin spent 11 years in the private practice 
of law. In 1985, Judge Griffin founded the firm Read and 
Griffin, in Traverse City, Michigan. During his private 
practice, Judge Griffin specialized automobile negligence, 
premises liability, products liability and employment law. 
Additionally, he provided pro bono legal services as a 
volunteer counselor and attorney with the Third Level Crisis 
Center. In 1988, Judge Griffin was elected to the Michigan 
Court of Appeals. He was elected to retain his seat in 1996, 
and again in 2002. We are pleased to have him before us and 
look forward to hearing from him.
    Of course, we note that his father is here with us, the 
former Senator from Michigan, a man whom I have always had a 
great deal of respect for, Senator Griffin.
    We welcome you here to the Committee today.
    I would be remiss if I hadn't mentioned that because Judge 
Griffin's father was a very distinguished member of the United 
States Senate.
    I know how proud you must be, Senator Griffin, of your son 
today.
    Our second nominee to the Sixth Circuit is David W. 
McKeague, who presently serves as a Federal district court 
judge for the Western District of Michigan. This is Judge 
McKeague's second appearance before this Committee, his first 
having occurred when he was nominated to his current position 
more than a decade ago.
    In 1992, this Committee voted him to the floor with several 
other district court nominees en bloc, without any objection, 
and the full Senate confirmed him to the Federal bench by 
unanimous consent. Since 1992, he has served with distinction 
in the Western District of Michigan, and since 1994 has 
regularly been designated to sit on panels and draft appellate 
opinions for the Sixth Circuit Court of Appeals.
    Judge McKeague graduated from the University of Michigan in 
1968 and then attended the University of Michigan Law School. 
Upon graduation, in 1971, he joined the law firm of Foster, 
Swift, Collins and Smith, P.C., in Lansing, Michigan. He also 
served 6 years in the United States Army Reserve.
    Since 1998, Judge McKeague has also served as an adjunct 
professor of law at Michigan State University's Detroit College 
of Law. Judge McKeague is a distinguished and well-respected 
Federal judge who, in the words of one of his current 
colleagues on the Federal district court, quote, ``let's the 
law and the facts take him where they take him,'' unquote. He 
will make an outstanding addition to the Sixth Circuit and I 
look forward to hearing from him this morning.
    I will submit letters of support into the record for all 
nominees.
    Judge Virginia Maria Hernandez Covington is our nominee for 
the Middle District of Florida. Judge Covington has had a 
distinguished career on both sides of the docket and is a 
pioneer of sorts. She became the first Cuban-American woman 
ever appointed to Florida's appellate courts. She is the 
highest-ranking Hispanic woman serving in Florida's judiciary, 
presently serving as a judge on the Second District Court of 
Appeal.
    Prior to her appointment to the bench, Judge Covington 
served in various legal positions. After graduation from 
Georgetown University Law School, where she was the editor of 
the Tax Lawyer Law Review, Judge Covington worked for the 
Federal Trade Commission as a trial attorney, where she was 
responsible for ensuring that compliance agreements were 
enforced.
    In 1982, she became an Assistant State Attorney for 
Hillsborough County, Florida, where she prosecuted traffic and 
misdemeanor cases. In 1983, Judge Covington became an Assistant 
United States Attorney for the Middle District of Florida, 
where she rose to the position of chief of the Asset Forfeiture 
Division.
    In addition to her prosecutorial and managerial duties, 
Judge Covington has lectured extensively on asset forfeiture, 
money laundering and complex prosecutions to prosecutors and 
law enforcement personnel throughout the United States and 
abroad. Throughout her career, Judge Covington has received 
more than 70 accolades and commendations for her professional 
and civic work. She is well deserving of the ABA's unanimous 
Well Qualified rating.
    Again, I am pleased to welcome these distinguished nominees 
to the Committee and I look forward to hearing her testimony.
    We will now turn to the Democrat leader on the Committee, 
Senator Leahy, before we turn to our witnesses.

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

    Senator Leahy. Well, thank you, Mr. Chairman. I welcome our 
two Senators from Michigan and the others. It is good to see my 
former colleague, Senator Griffin. We served together back a 
long, long time ago, and I remember his calm demeanor, his 
courtesy, especially to this, the junior-most member of the 
Senate when I arrived.
    I recall that you were as kind and as forthcoming to me as 
you were to the far more senior members, and I appreciate that. 
My good friend, the senior Senator at that time, Bob Stafford 
told me you would be that way, and he was right, as always.
    Seeing Senator Levin and Senator Stabenow here, I can't 
help but mention that the basketball fans in Detroit and 
throughout Michigan are probably still celebrating that 
extraordinary triumph of the Pistons last night, the NBA 
championship. The Pistons' win was an example of great 
teamwork. It was hard work. Actually, I can't help but say I 
wish the White House would work with the same kind of teamwork 
and we would be a lot further along.
    In some ways, these hearings--and I hate to mention this, 
but having listened to the statement of my good friend from 
Utah, Senator Hatch, I worry that we are just one more time 
breaking longstanding precedent and Senate tradition. In the 
past year-and-a-half, with the Senate and the White House under 
control of the same political party, we have witnessed rule 
after rule broken or misinterpreted.
    The list is long. Whether it is from the way home State 
Senators are treated, to the way hearings are scheduled, to the 
way the Committee questionnaire has been altered, to the way 
our Committee's historic protection of the minority by 
Committee Rule IV has been violated--something that the 
Democrats, when they were in the majority, followed assiduously 
to protect the rights of the Republicans--in every one of these 
cases, the Republicans on the Committee have destroyed 
virtually every custom, and I must say every courtesy that used 
to help create and enforce cooperation and civility in the 
confirmation process.
    Some are even now beginning to talk openly about ignoring 
another longstanding practice, one that was followed very 
carefully, the Strom Thurmond rule. Every time it came up, we 
were told, out of respect, this is what we all agree to. And 
now they think that maybe they might not follow the Thurmond 
rule for the first time in this particular presidential 
election year.
    It has been a strange time, these 3 years, during which 
Republican staff stole Democratic files off the Judiciary 
computers during what has been a ``by any means necessary'' 
approach. Their approach to the rules and precedents seems to 
follow a new kind of golden rule; that is that he with the gold 
rules. That has not been helpful to the process or the Senate 
or the country.
    In the past several weeks, we have begun to see how the 
administration, at the Department of Defense, at the Department 
of Justice and at the White House, reinterpreted our laws and 
our treaties that govern our Nation's policies and practices 
for the detention and interrogation of prisoners, and how that 
led to torture and abuse. That has severely undercut and 
endangered our brave men and women serving in Iraq and around 
the world.
    I can't remember a time when the United States has faced 
more criticism abroad. As Secretary Ridge stated in his own 
testimony at our hearing last week, these kinds of abuses have 
had the effect not of making us safer, but instead they have 
increased recruiting by anti-American and terrorist 
organizations.
    It is as if those in power believe that they are above our 
constitutional checks and balances, and they can reinterpret 
any treaty, any law, rule, custom or practice that they do not 
like or find inconvenient, today's hearing being an example of 
that.
    Nearly a year ago, the Chairman crossed a line that he had 
never before crossed when he held a hearing for Henry Saad, a 
nominee to the U.S. Court of Appeals for the Sixth Circuit. He 
was opposed by both of his home State Senators. I said at that 
time I thought it may not only have been the first time this 
Chairman held a hearing for a nominee without two positive blue 
slips indicating support from home State Senators, but it may 
have been the first time any Chairman on any Senate Judiciary 
Committee, Republican or Democrat, proceeded with a hearing on 
a judicial nominee over the objection of both home State 
Senators. It was certainly the only time we could find in the 
last 50 years. I know it is the only time during my 30 years in 
the Senate.
    Today, having broken a longstanding practice of this 
Committee founded on a respect for the wishes of a home State 
Senator, whether in the case of a district or circuit court 
nominee, we are doing it again, but we are doubling the ante 
this time because both judicial nominees are opposed by their 
home State Senators.
    The Michigan Senators, highly respected, have come to this 
Committee. They have stated their very real grievances with the 
White House and their honest desire--and I know because I have 
sat in on some of these meetings--to work toward a bipartisan 
solution to the problem of filling vacancies in the Sixth 
Circuit.
    I think we should respect their views, just as we have 
respected the views of Republican and Democratic Senators for 
decades. I have urged the White House to work with them. I have 
proposed solutions that might work. Even the Republican 
Governor of their State has said that he thought those 
solutions were extremely workable. For one thing, they have 
proposed reasonable solutions, including a bipartisan 
commission used in many other States, and the White House 
rejects that.
    I mention this because it is telling that another nominee 
today is the result of a bipartisan commission. Judge Virginia 
Maria Hernandez Covington, who has been nominated to a Federal 
district court in Florida, has the full support of both of her 
home State Senators, both Democrats. I congratulate the 
Senators from Florida for their efforts to maintain this 
important mechanism for promoting experienced and consensus 
candidates to the bench.
    The President promised--and I found this a hopeful 
promise--on the campaign trail to be a uniter, not a divider. 
That promise apparently stopped after the campaign, because his 
practice in office with respect to judicial nominees has been 
often most divisive.
    Citing the remarks of a White House official, the Lansing 
State Journal reported that President Bush is simply not 
interested in compromise on the existing vacancies in the State 
of Michigan. It is unfortunate that there is no effort to unite 
and not divide.
    I have talked about this before, but given the continued 
flaunting of precedent, it bears repeating. When Republicans 
chaired this Committee and we were considering the nominations 
of a Democratic President, if there was just one negative blue 
slip from just one home State Senator, that doomed the 
nomination and there wasn't even a hearing. This included all 
nominations, including those to the circuit court.
    There is no other way to explain the failure to schedule 
hearings for such qualified and non-controversial as James 
Beaty and James Wynn, African-American nominees from North 
Carolina. There had been a failure to return one blue slip. 
There was an objection from one Senator, so we didn't have 
hearings.
    What other reason could plausibly be found for what 
happened to the nominations of Enrique Moreno and Jorge Rangel, 
both Latino, both Harvard graduates, both highly rated by the 
ABA? A Senator from Texas objected, so we didn't having 
hearings in the Judiciary Committee.
    Now, that was the rule during the time of the Clinton 
administration. Apparently, now that there is a Republican in 
the White House, the Republicans in the Senate have changed the 
rule. They used the rule against more than 60 of President 
Clinton's judicial nominees. They never had a hearing, never 
had a vote. More than 200 of his executive branch nominees 
never had a hearing, never had a vote, through the enforcement 
of rules and precedents which the Republican majority said at 
that time were sacred. But now they find it is only 
inconvenient because the White House has changed.
    The Republican Senate majority refused for over 4 years to 
consider President Clinton's well-qualified nominee Helene 
White to the Sixth Circuit because a Republican Senator from 
Michigan objected. Judge White has served on the Michigan Court 
of Appeals with Judge Griffin since 1993. Prior to her 
successful election to that seat, she served for nearly 10 
years as a trial judge, handling a wide range of civil and 
criminal cases. She was first nominated by President Clinton in 
January 1997, but the Republican-led Senate refused to act on 
her nomination. She waited in vain for 1,454 days for a 
hearing, before President Bush withdrew her nomination.
    President Clinton had also nominated Kathleen McCree Lewis. 
She is the daughter of a former well-respected African-American 
Solicitor General of the United States and a former Sixth 
Circuit judge. She was also passed over for a hearing for 
years. No effort was made to accord her consideration for 18 
months. Now, we have a double standard at work.
    Under our Constitution, the Senate has an important role in 
the selection of our judiciary. The brilliant design of our 
Founders established that the first two branches of Government 
would work together to equip the third branch to serve as an 
independent arbiter of justice. That is why the U.S. Senate 
rejected some of George Washington's judges--the most popular 
President this country ever had. When there was a huge 
Democratic majority in the Senate, they rejected the judicial 
plans of Franklin Roosevelt at the height of his popularity.
    As columnist George Will wrote, ``A proper constitution 
distributes power among legislative, executive and judicial 
institutions so that the will of the majority can be measured, 
expressed in policy and, for the protection of minorities, 
somewhat limited.''
    The structure of our Constitution and our own Senate rules 
of self-governance are designed to protect minority rights and 
to encourage consensus. 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 are the hallmark of the Senate. It has acted to ignore 
precedents and reinterpret longstanding rules to its advantage. 
This practice of might makes right is wrong.
    Thank you, Mr. Chairman. I do look forward very much to 
Judge Covington. That was followed through in a bipartisan 
effort to get her nomination here, and I suspect that she will 
probably get a unanimous vote.
    Chairman Hatch. Thank you, Senator. I will put my responses 
to your comments in the record.
    Senator Levin, we will turn to you.

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

    Senator Levin. Mr. Chairman, thank you for inviting us to 
testify here today. Thanks to both you and to Senator Leahy for 
your efforts on this Committee. We know how difficult they are 
and we all appreciate them.
    As we have expressed to you, Mr. Chairman, and expressed to 
the Committee in a lengthy statement last July 30, and 
reflected by our negative blue slips on these nominations, we 
believe that moving forward on these nominations without 
addressing the existing impasse in a bipartisan manner could 
deepen partisan differences and make future efforts to resolve 
this matter more difficult.
    The number of Michigan vacancies provides an unusual 
opportunity for bipartisan compromise. Efforts to forge 
compromise so far have not been successful. We hope these 
efforts will continue. The Pistons' victory last night as 
underdogs only reinforces my optimistic streak. If they can do 
it, we all can do it.
    Chairman Hatch. Let's hope we can.
    Senator Levin. Two of President Clinton's nominees--
Michigan Court of Appeals Judge Helene White and Kathleen 
McCree Lewis--stood without a hearing before this Committee for 
more than 4 years, in one case, and one-and-a-half in the 
other. No questions or concerns were raised about either 
nominee's qualifications. In the case of Judge White, her 
nomination went without a hearing longer than any other in the 
history of the United States Senate.
    The Senate's failure to consider these nominations in the 
first instance was a direct result of Senator Abraham's refusal 
to return his blue slips on the nominations of Judge White and 
Ms. Lewis. Senator Abraham's refusal did not relate to either 
woman's qualifications. Rather, it stemmed from his repeated 
efforts to persuade the Clinton White House to nominate Jerry 
Rosen, a district court judge in the Eastern District of 
Michigan, to the Sixth Circuit. The record shows that this 
Committee honored Senator Abraham's refusal to return the blue 
slips. The Clinton administration gave serious consideration to 
Senator Abraham's recommendation, but ultimately decided to 
nominate someone else--Kathleen McCree Lewis.
    During the years in which Judge White's and Ms. Lewis' 
nominations were pending, Senator Leahy as Ranking Member of 
this Committee delivered at least 16 statements on the Senate 
floor regarding the Sixth Circuit nominations. During the same 
period, I frequently asked Senator Abraham to return his blue 
slip and Chairman Hatch to hold Committee hearings for the 
nominees. Those efforts were futile.
    Also troubling was that after Senator Abraham finally 
returned his blue slips on the two nominations, the two women 
were still not given hearings. To that point, I had understood 
that Senator Abraham's decision not to return blue slips on the 
two nominees prevented them from being granted a Judiciary 
Committee hearing.
    So the day that Senator Abraham returned the blue slips, I 
wrote Senator Hatch, reminding the Chairman that both slips had 
now been returned on the two nominations and urging that they 
be placed on the agenda of the next Judiciary Committee 
confirmation hearing. That effort and the many that followed 
were unsuccessful.
    Over the next several months, Senator Leahy went to the 
floor ten times to urge action on the Michigan nominees. More 
than once, I also raised the issue on the Senate floor. None of 
our statements prompted the Judiciary Committee to act.
    On at least one version of Judge White's and Ms. Lewis' 
blue slips read the following, quote, ``No further proceedings 
on this nominee will be scheduled until both blue slips have 
been returned by the nominees' home State Senators.'' That was 
right on this Committee's blue slip, and 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, 
as there are here.
    So the unreturned blue slips of one Republican Senator 
precluded Judiciary Committee consideration of two nominees of 
a Democratic President. Surely, two negative Democratic blue 
slips should not be ignored by this Committee simply because we 
have a Republican President making the nominations.
    Inconsistencies in the Committee's blue slip policy are 
deeply troubling, but equally troubling, Mr. Chairman, is that 
even after the blue slips were returned by Senator Abraham, 
Judge White and Ms. Lewis were still denied hearings. Why?
    Please listen to the testimony of Kent Marcus, of Ohio, 
about President Clinton's Sixth Circuit nominees. Professor 
Marcus was nominated by President Clinton to fill an Ohio 
vacancy on the Sixth Circuit. Both home State Senators 
indicated their approval of that nomination. Nevertheless, he 
was not granted a Judiciary Committee hearing. His troubling 
account of his experience--and it was an account in his 
testimony before the Senate--sheds added light on this Michigan 
situation.
    Here is what his testimony was before this Committee, 
quote, ``To their credit,'' Professor Marcus said, ``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 confirmation 
hearings to the Sixth Circuit during the Clinton 
administration. 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.''
    He went on, ``On one occasion, Senator DeWine told me this 
is bigger than you and it is 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,'' close quote.
    Senator Stabenow are not alone in our view that what 
occurred with respect to Judge White's and Lewis' nominations 
were fundamentally unfair. Even Judge Gonzales, the current 
White House Counsel, 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, quote, 
``inexcusable.''
    Senator Stabenow and I are determined to do what we can to 
see to it that the tactic used against the two nominees from 
Michigan does not succeed. But we are also determined to seek a 
bipartisan solution, and we have proposed a bipartisan 
commission to recommend nominees to the President. Similar 
commissions have been used in other States. That commission 
would not guarantee that the recommendation, much less the 
nomination of any particular individual would occur, but it has 
thus far been rejected.
    I also want to thank you, Mr. Chairman, because you have 
made some real efforts to seek a bipartisan solution to this 
problem. It has not yet succeeded, but again I think it is 
incumbent on all of us--and I know the Chairman agrees with 
this--to keep on trying.
    Again, with this number of Michigan vacancies, we have an 
unusual opportunity to find a better path for the 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 judicial disputes as 
well.
    I again thank you, Mr. Chairman, for inviting us to speak 
this morning. A much lengthier statement was given by me on 
July 30 with many more details, and I would refer the Committee 
to that statement for those details.
    Chairman Hatch. We will incorporate that statement in the 
record.
    Senator Stabenow.

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

    Senator Stabenow. Well, thank you, Mr. Chairman, and I too 
want to thank you for allowing Senator Levin and I to once 
again speak before the Committee.
    We have had some references to the Pistons and I wanted to 
say as someone who has watched them very closely and is very 
excited about the win last evening that they did show us what 
you can do when you can work together.
    Chairman Hatch. Well, they really did. Sorry to interrupt 
you, but I have been a big fan of Larry Brown for years.
    Senator Stabenow. Terrific.
    Chairman Hatch. He is one of the great coaches in the game. 
We have one of the greatest coaches in Utah, in Jerry Sloan. In 
fact, I think probably the two of them are the two greatest 
coaches in the game.
    That was a truly remarkable win. I felt badly for my dear 
friend, Karl Malone. You guys were really nasty to him, is all 
I can say, in not getting his ring finally, because he has been 
the greatest power forward who ever lived. But I congratulate 
Detroit. What a team. Did they play well together? Like you 
say, it was pure teamwork.
    You know, if we could do that around here, if we just had a 
little teamwork around here--
    Senator Stabenow. I agree.
    Chairman Hatch. --I think we could be champions, too.
    Senator Levin. Even when the odds are against us.
    Chairman Hatch. Even when the odds are against us.
    Senator Stabenow. It shows what we can do when we work 
together, no question about it.
    Mr. Chairman, once again I completely agree with Senator 
Levin's testimony, and I want to thank Senator Levin for his 
leadership in trying to bring fairness in the nomination 
process for the Sixth Circuit Court of Appeals. I personally 
deeply regret that after many hours of meetings and 
discussions--and I thank the Chairman for all of your efforts--
there is not yet a solution or a willingness from the 
administration to work with us to create a solution, which I 
believe that there is and I believe that people of good faith 
can find a solution.
    Mr. Chairman, I still believe the best way to end the 
impasse is to have a bipartisan compromise. I fear that without 
a fair compromise, this struggle between the two branches of 
Government will continue for some time. As you know, Senator 
Levin and I have proposed to settle this conflict by appointing 
a bipartisan commission to make recommendations to the White 
House on judicial nominations, similar to the commission that 
is up and working just across the lake in Wisconsin. 
Unfortunately, the White House has rejected this proposal, 
despite having agreed to similar commissions in other States 
with other Senators.
    I went into detail at the July 30, 2003, Committee hearing 
about how this type of commission could break this impasse. I 
won't repeat my earlier testimony, but I simply would ask that 
my statement from the July hearing be included in today's 
record.
    Chairman Hatch. Without objection, we will put it in the 
record.
    Senator Stabenow. Mr. Chairman, I want to thank you again 
for allowing us to testify. I really do believe that if we 
continue to work together in good faith, we can find an 
acceptable bipartisan compromise, and I am hopeful that the 
Chairman will continue to pursue that course.
    Thank you.
    Chairman Hatch. Well, thank you, Senator. I appreciate 
that. As you know, I have tried to resolve this. I tried to 
resolve it before, and the problem before was that Senator 
Abraham said there was zero consultation. And under those 
circumstances, it was very difficult to break through.
    I want to personally express my regard for both of you in 
trying to work with me to resolve it. We just haven't been able 
to find the right combination to do it, but I will keep working 
on it because these are well-qualified people and should have 
the right to confirmation. I promise I will do my very best.
    Senator Levin. Thank you so much.
    Chairman Hatch. Thank you so much.
    I don't know which one of you two is more senior. Well, I 
have got to go to Senator Nelson first, and then I will go to 
Representative Camp and then Representative Rogers. I thought 
maybe I would just continue with Michigan, but we will let you 
go, Senator Nelson, and then you can leave.
    Senator Nelson. I don't mind waiting, Mr. Chairman, if you 
want to continue with--
    Chairman Hatch. No. We will go with you and then we will 
finish with them.

PRESENTATION OF VIRGINIA MARIA HERNANDEZ COVINGTON, NOMINEE TO 
 BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. 
     BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Nelson. Well, thank you, Mr. Chairman. I am here on 
behalf of a nominee for judge that is an American success 
story, for Judge Covington's family left Cuba in 1953, not 
speaking a word of English, and it is a story, as you would 
expect, to be nominated to this high court.
    She comes with extraordinary recommendations that are 
bipartisan in nature. She has a master's in business 
administration, a law degree from Georgetown, and then she 
worked as a trial attorney for the Federal Trade Commission and 
as an Assistant State Attorney back in our State of Florida. 
For 12 of those 20 years, she was at the U.S. Attorney's 
office, so an enormous amount of Federal experience there. In 
addition to Judge Covington's experience as a prosecutor, she 
has lectured extensively; numerous honors.
    I would like to introduce her two children who have 
accompanied Judge Covington, Laura and Stephen. Where are they?
    Thank you for being here.
    Chairman Hatch. We are happy to have you young folks with 
us.
    Senator Nelson. So I could keep going on in. I know Judge 
Covington. She is from Tampa. She is close friends with many of 
my close friends there. She has Senator Graham's--both of our 
unqualified support.
    Chairman Hatch. Well, thank you so much.
    Judge Covington, that is high praise. We have a lot of 
respect for Nelson, and we appreciate you taking time from what 
we know is a busy schedule to be here today and to give this 
testimony. It is very favorable and helpful here.
    Senator Nelson. Thank you, Mr. Chairman.
    Chairman Hatch. We will turn to Representative Camp, and 
then we will go to Representative Rogers.

PRESENTATION OF RICHARD A. GRIFFIN, NOMINEE TO BE CIRCUIT JUDGE 
 FOR THE SIXTH CIRCUIT, BY HON. DAVE CAMP, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Representative Camp. Thank you very much, Mr. Chairman.
    Senator Bob Griffin and ladies and gentlemen, it is an 
honor to introduce circuit court nominee Judge Richard Allen 
Griffin. Judge Griffin is a life-long resident of Traverse 
City, Michigan, which is in my 4th Congressional district. I 
have known Rick and his family for a number of years and I am 
pleased to recommend him to the Committee.
    Judge Griffin is already an experienced court of appeals 
judge. He is currently serving his 16th year on the Michigan 
Court of Appeals. In support of his nomination for the Sixth 
Circuit, Judge Griffin has received the very highest 
recommendation of the American Bar Association of Well 
Qualified.
    In addition to the ABA, his supporters are many and from 
both sides of the aisle. They include President Gerald R. Ford, 
who wrote the following to the Chairman of this Committee. ``I 
write to strongly support the nomination of Richard Allen 
Griffin to the United States Court of Appeals for the Sixth 
Circuit. He is a highly qualified nominee and I can say with 
conviction that Judge Griffin is a person of highest-quality 
character. As the record shows, he has been a very excellent 
judge with unquestioned integrity.''
    Also, the Chief Justice of the Michigan Supreme Court, 
Maura Corrigan, who served with Judge Griffin for 7 years on 
the court of appeals, has said, ``Judge Griffin is 
intellectually gifted. He is a spirited questioner who cuts to 
the chase. Judge Griffin brings a depth of practical experience 
and a grasp of real-life problems to the decision of cases. His 
thinking assists his colleagues in their deliberations. Richard 
Allen Griffin is a man of integrity and probity who is fully 
capable of discharging the duty of protecting our Constitution 
and laws. He is deserving of the public trust. I have every 
confidence that he will serve our country with honor and 
distinction.''
    Finally, the former Democrat mayor of the city of Detroit 
and former court of appeals judge Roman Gribbs has written the 
following in support of Rick. ``I have known Judge Griffin for 
many years and have worked with him as a colleague on the 
Michigan Court of Appeals for 14 years. Working together on 
hundreds of opinions has given me the opportunity to observe 
and know Rick very well. He is in many respects a judge's 
judge--integrity personified, intelligent, hard-working, fair, 
sensitive with level temperament and good judge, plus the 
uncanny ability to decide and write in a clear and 
understandable manner that resolves complex and obscure issues. 
He is a dedicated public servant.''
    Senator as a Congressman, as a citizen and as a lawyer, I 
cannot urge more strongly the immediate confirmation of Judge 
Richard Griffin to the Sixth Circuit. The Federal Court of 
Appeals for the Sixth Circuit is in desperate need of 
additional judges. Twenty-five percent of the seats on the 
bench are currently vacant. The Sixth Circuit is the slowest 
circuit in the Nation in deciding cases. Justice delayed is 
justice denied is now the rule, not the exception for the Sixth 
Circuit.
    Judge Griffin is an exceptional, well-qualified individual 
who is ready, willing and able to serve all the people as judge 
of the Sixth Circuit. Judge Griffin's nomination has already 
been pending for 2 years. Without further delay, I urge this 
Committee to act promptly to confirm this well-qualified 
nominee.
    Mr. Chairman, I want to thank you for your leadership on 
this and many other issues. Thank you for the time today.
    Chairman Hatch. Well, thank you, Representative Camp. We 
appreciate you taking time to come over here. Your praise of 
the judge is very meaningful here today and I appreciate your 
appearance.
    Representative Camp. Thank you.
    Chairman Hatch. Representative Rogers, we will turn to you.

PRESENTATION OF DAVID W. MCKEAGUE, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE SIXTH CIRCUIT, BY HON. MIKE ROGERS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Representative Rogers. Thank you, Mr. Chairman.
    Chairman Hatch. If you need to leave, feel free.
    Representative Rogers. Before I begin--
    Chairman Hatch. Maybe I could just say one thing before you 
do leave. There is a lot of misunderstanding about this 
situation. You know, the one rule we have on this Committee--
and everybody in Michigan needs to know this--is that the 
President, whoever that President may be, has to consult with 
both home State Senators.
    In the case of the two Democrat nominees, there was 
absolutely zero consultation, and they had made an agreement 
with Senator Abraham and they just completely blew it away and 
didn't pay any attention at all. There was no choice in what 
happened there. It was, some thought, an arrogant approach 
toward the judiciary, and I, as Chairman, had no choice.
    Now, some think that the withholding of blue slips by two 
Senators from the home State in the case of a circuit court of 
appeals judge, or in this case four of them, should 
automatically end the matter. Well, it doesn't because 
Presidents reserve their right to demand that circuit court of 
appeals judges be voted upon, regardless of withholding of blue 
slips.
    We have had two Democrats set the rules on this Committee--
Senators Kennedy and Biden--that those negative blue slips 
should be given great consideration and heavy weight, but they 
are not dispositive in and of themselves; that the nominees do 
deserve to be heard and have an opportunity for a vote up and 
down. Now, suddenly, the approach here has become, in the eyes 
of some, a breach of the rules. Well, it isn't a breach of the 
rules.
    I don't know what else to do, other than to proceed and 
hopefully work with everybody to try and resolve this matter. I 
am going to work with the two Senators from Michigan to see if 
I can resolve it, and they have expressed a desire here to work 
with me to resolve it. If I can, I certainly am going to do 
that, and resolve it so that they can be happy as well.
    But we shouldn't hold up people who are well-qualified by 
the American Bar Association, the gold standard that the 
Democrats have set, and that is what these people are who are 
nominated, and certainly the two here today, Judges Griffin and 
McKeague.
    In fact, Judge Covington, I will tell you I don't see any 
reason for you to have to sit here any further, because I am 
not going to ask you any questions. I know your background, I 
know you are qualified. Senator Leahy has basically said that 
he will support you and that you are qualified, and I believe 
every member of this Committee will support you.
    So if you would like, you can relax, take it easy and 
leave, if you want to. Otherwise, you can stay and listen to 
this. But, frankly, I don't see any reason to ask you any 
questions because I understand your background and I am very 
proud of you and proud of your background. This may take a 
little bit of time here today and I just want you to know that 
we are very proud of you and we will support your nomination 
and try to get you through before the end of this year, 
although that is going to be difficult, I have got to tell you, 
with the way things are breaking down right now. But I will do 
my best.
    I am sorry to interrupt you, Representative Rogers. We will 
turn to you.
    Representative Rogers. Thank you, Mr. Chairman. It has been 
a privilege to work with you during this process. I want to 
just say I am proud of you and I hope America is proud of you. 
You recognize that clinging to the past serves no purpose to 
the lives of the people today, and I appreciate that.
    I have watched you look under every rock for a solution and 
I have watched you reject the bitterness of partisan 
negotiation to seek consensus, and I want to applaud you for 
that. Thank you very much, sir, for digging your heels in and 
working so hard to find that solution.
    Chairman Hatch. Thanks for your kindness.
    Representative Rogers. It is my distinct privilege and 
honor today, Mr. Chairman, to introduce David McKeague to this 
distinguished panel. David is not only a constituent of 
Michigan's 8th Congressional District, he is a good friend and 
a widely respected member of Michigan's legal community and a 
distinguished jurist over the last decade with experience on 
the Federal bench.
    At this time, Mr. Chairman, I would ask David to introduce 
himself to you, if I may.
    Chairman Hatch. Sure, and your family, as well, if you 
wish.

STATEMENT OF DAVID W. MCKEAGUE, NOMINEE TO BE CIRCUIT JUDGE FOR 
                       THE SIXTH CIRCUIT

    Judge McKeague. Thank you, Representative.
    Unfortunately, my family was unable to be here. They are 
all working.
    Chairman Hatch. Well, that is fine, or any friends or 
anybody else.
    Judge McKeague. I am very pleased to introduce Ted Lidds, 
who you may know as head of the Defender Services Division.
    Chairman Hatch. We are happy to have you here, Ted.
    Judge McKeague. I have been privileged to be on that 
Committee now for 4 years and work closely with Ted to provide 
assistance to those who can't afford a lawyer.
    [The biographical information of Judge McKeague follows.] 

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    Chairman Hatch. We are happy to have both of you here.
    Representative Rogers. Mr. Chairman, I would be remiss if I 
did not thank and applaud you for your principled decision to 
continue hearings for President Bush's nominees from Michigan 
to the Sixth Circuit Federal Court of Appeals. This hearing is 
evidence of progress toward filling vacancies that have been 
deemed judicial emergencies by the Administrative Office of 
United States Courts.
    An independent Federal judiciary is the hallmark of 
America's tripartite system of Government. A judiciary free of 
partisan political wrangling stands as a counter-weight to the 
political passions of the Congress and the executive branch.
    Appearing before the Committee today is a nominee to the 
Federal appellate bench who embodies the temperament, 
compassion and intelligence implicit in Article III's creation 
of an independent judiciary. Judge David McKeague is a 
distinguished Federal district court judge with over a decade 
of experience on the bench.
    In 1992, Judge McKeague was unanimously confirmed by the 
United States Senate to serve on the U.S. District Court for 
the Western District of Michigan. Additionally, the American 
Bar Association has rated Judge McKeague Well Qualified to sit 
on the Sixth Circuit.
    Prior to his service on the bench, Judge McKeague practiced 
law first as an associate and later as a partner with the 
respected Lansing, Michigan, law firm of Foster, Swift, Collins 
and Smith. He had a diverse practice, handling a variety of 
matters involving financial transactions, mergers, regulations 
of public utilities, commercial litigation and bankruptcy. 
David earned both his undergraduate and law degrees from the 
University of Michigan.
    Before offering my opinion, however, Mr. Chairman, on why 
Judge McKeague is an ideal nominee for the Federal appellate 
bench, I believe it is best to hear from those in Michigan's 
legal community who have observed or worked with David during 
his time in the Federal district court. Here are what a number 
of David's colleagues have said regarding his fitness for the 
Sixth Circuit.
    I quote, ``Judge David McKeague possesses the character, 
intellect, experience and judicial demeanor to serve with 
distinction on the Sixth Circuit.'' I quote again, ``Although 
we had very different political beliefs and associations, the 
law was always Dave's guide and he studied it carefully and 
interpreted it fairly,'' unquote.
    I quote again, Mr. Chairman, ``Despite the fact that Judge 
McKeague and I do not share party affiliation, he will bring 
experience and boundless wisdom to the United States Court of 
Appeals.''
    It must be noted that the preceding testimonials are all 
from prominent Democrats in Michigan's legal community. In 
addition, here is what one Detroit news columnist said 
regarding Judge McKeague's nomination, and I quote again, 
``David McKeague is an uncontroversial and respected district 
judge from western Michigan. He deserves a prompt hearing and, 
if approved by the Judiciary Committee, an up-or-down vote in 
the Senate.''
    Well, cognizant of the significant restraints Federal 
judges face on non-judicial activities, David has given much 
back to his profession, Mr. Chairman, and the legal community. 
He has been at the forefront in mentoring tomorrow's legal 
leaders, while training and educating his peers.
    In mentoring and developing the legal minds of tomorrow's 
leaders, David is a longtime adjunct professor at the Michigan 
State University School of Law. Additionally, David is a 
founding master and president of the American Inns of Court at 
the Michigan State University School of Law.
    Leaders within the Federal judiciary have also recognized 
Judge McKeague's intellect and leadership abilities. United 
States Supreme Court Judge Rehnquist has appointed Judge 
McKeague to two positions of prominence. He currently serves on 
the Defender Services Committee, which is responsible for 
ensuring adequate representation to all persons accused in 
Federal court of having committed a crime. He is the Chairman 
of the budget Subcommittee of this important committee. He also 
just completed 6 years of service on the District Judge 
Education Committee of the Federal Judicial Center, the last 
five of which he served as chairman.
    Judge McKeague has proven an excellent steward of the 
court's resources, as he has led his district to a national 
reputation for innovation in technology and as leader in 
modernization of dispute resolution. As Chairman of the 
Automation Committee of the Western District of Michigan, Judge 
McKeague instituted a pilot civil electronic filing program 
which allows attorneys in civil cases in the district to file 
case documents electronically. It is the first such program in 
Michigan and only the seventh nationwide.
    David also serves as Chairman of the Alternative Dispute 
Resolution Committee of the Western District of Michigan, where 
he is recognized as a leader in reforming the system, 
encouraging parties to settle disputes short of trial. The cost 
of litigation and trial can be immense, as you know, Mr. 
Chairman, both economically and psychologically for the 
involved parties.
    In terms of both tax dollars and case backlog, settling a 
case before trial can improve the administration of justice in 
the Federal district court system. Through a facilitative 
mediation program advocated by Judge McKeague, countless 
parties in the Western District have been able to resolve their 
disputes before reaching trial. In fact, facilitative mediation 
has resulted in the settlement of over two-thirds of the cases 
referred, resulting in a savings of approximately $25 million 
for the Western District of Michigan since 1996--no small 
accomplishment, as you know, Senator. In fact, the Bar 
Association of Michigan has began instituting facilitative 
mediation in the Michigan courts, following suit.
    Mr. Chairman, in addition to filling a declared judicial 
emergency in the Sixth Circuit, it is clear that Judge McKeague 
is a highly respected and eminently qualified jurist who would 
be an excellent addition to the Federal appellate bench.
    Again, I applaud your decision to continue hearings for 
Michigan's nominees to the Sixth Circuit, and steadfastly urge 
without delay the swift confirmation of Judge David W. McKeague 
to the U.S. Court of Appeals for the Sixth Circuit.
    One personal anecdote, Senator. In the busy lives of 
Representatives and elected officials and our distinguished 
jurists, I happened to attend an event with Mr. McKeague where 
he swore in new citizens to this country. I watched his 
compassion and his general caring as he individually welcomed 
each new citizen to America, took the time to talk to their 
families and take photos and welcome them in a way that I think 
will have a lasting impact on each and every one of those 
citizens. That certainly spoke to the character and heart of 
someone who is a great, fair jurist.
    I again applaud all of your efforts and will look forward 
to the opportunity of working with you further as you determine 
to find a consensus solution to this problem. Thank you, Mr. 
Chairman.
    Chairman Hatch. Well, thank you. I have appreciated both of 
you Congress people, and, in fact, your whole Republican 
Congressional delegation who have tried to work with us to 
achieve a compromise. We may still be able to do that. I hope 
so. Both Senators from Michigan have indicated that they would 
still like me to try and work one out. I will try my best. I 
just you will support whatever I can get done, if I can get it 
done. From my experience with you, I think you will, if I can 
do this.
    So I just want to thank you both for being here. It means a 
lot to me that you would take time to come over from your 
respective positions on Capitol Hill. Both of your testimonies 
have been great. These are two individuals who have the highest 
ratings from the American Bar Association, as, of course, does 
Judge Covington. I am just grateful you would take the time. So 
thanks so much.
    If I could have the two nominees take their seats, I am 
going to swear you in. In fact, let's swear you in also, Judge 
Covington. Why don't you raise your hand, too? I don't plan on 
asking you any questions, but we will swear you in so that you 
have that privilege.
    Do all three of you solemnly swear to tell the truth, the 
whole truth and nothing but the truth, so help you God?
    Judge McKeague. I do.
    Judge Griffin. I do.
    Judge Covington. I do.
    Chairman Hatch. Thank you.
    As stated, I am not going to ask Judge Covington any 
questions. I have tremendous respect for you, for what you have 
come through, for how you have made such a success out of your 
life, for the work that you have done on the bench. I am going 
to support you with everything I have got, so just know that. I 
know you very well and know your background very well, and I 
know that you are very well-qualified, as the American Bar 
Association has said as well.
    Judge McKeague, you did introduce your friend, and I would 
like you to introduce your wife and anybody else you would care 
to, including your father, Judge Griffin.

 STATEMENT OF RICHARD A. GRIFFIN, NOMINEE TO BE CIRCUIT JUDGE 
                     FOR THE SIXTH CIRCUIT

    Judge Griffin. Thank you, Chairman Hatch. I would like to 
introduce my wife, Chris.
    Chairman Hatch. Chris, we are glad to have you here, 
finally.
    And your father?
    Judge Griffin. And my father, Senator Griffin.
    Chairman Hatch. We are honored to have you here, Bob.
    He is one of the reasons I went on the Labor Committee when 
I got here, because he is the author of the Landrum-Griffin 
bill, one of the most important and significant pieces of 
legislation in the history of this country, and has kept us 
safe and secure in many ways ever since. So we just want to 
acknowledge the greatness of your father.
    [The biographical information of Judge Griffin follows.]

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    Chairman Hatch. Judge Covington, I would appreciate it if 
you would introduce your family, as well.

STATEMENT OF VIRGINIA MARIA HERNANDEZ COVINGTON, NOMINEE TO BE 
       DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Covington. Thank you very much, Senator. I have my 
two children with me--my son, Stephen, who is going into his 
senior year at Jesuit High School in Tampa, Florida, and my 
daughter, Laura, who is going into her sophomore year at 
Florida State University. And I have an older son who has just 
begun law school at Stetson. My husband, Doug, is at home with 
my mother, who was too ill to travel.
    Chairman Hatch. Well, we are grateful to have your kids 
with you, and wish your mom well. And we are very proud of you.
    Judge Covington. Thank you very much. I appreciate that.
    [The biographical information of Judge Covington follows.]

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    Chairman Hatch. Now, let me just say this. I don't know of 
anybody who has any objections to any of the three of you on 
this Committee. I don't know anybody who has a substantive 
objection. All three of you are rated Well Qualified by the 
American Bar Association, the highest rating that the Bar 
Association gives. All three of you are people of immense 
experience.
    Judge Covington we have covered. The two of you are both 
judges who are highly respected in the State of Michigan. It is 
almost a crime that this has been held up this long. Again, I 
will mention that the reason that the two Democrat judges were 
held up was clearly a matter of failure to consult with the 
existing Senator, and he felt, and I felt, they breached an 
agreement--that is, the then-White House breached an agreement 
with Senator Abraham that should not have been breached. And 
they certainly should have consulted.
    Now, there has been plenty of consultation with both 
Michigan Senators, and so that is not an issue here. As you 
will notice, they did not raise that as an issue. I have not 
heard one ounce of comment from either Michigan Senator against 
either of you. And, frankly, I think it is pathetic that we are 
at this position where we are having such a difficult time 
getting both of you and Judge Saad confirmed.
    We are going to proceed with Judge Saad's nomination this 
week in Judiciary, and hopefully we will pass him out of 
Judiciary on Thursday, tomorrow. I will move as rapidly ahead 
as I can with your two nominations. In fact, I expect all three 
of you to be on the Judiciary Committee docket next Thursday, 
not tomorrow, but next Thursday. It is too early to do it for 
tomorrow. Hopefully, we will have votes out of the Committee at 
that particular time.
    You will probably be put over for a week, which is standard 
practice--it is not standard practice, but it has become common 
practice since this administration has taken over and it was 
used by Republicans at times in the past. So you will be put on 
next week's agenda, and undoubtedly you will be put over 
another week after that. But then we should vote on you.
    Now, that gives me a couple of weeks to see what I can do 
to resolve this impasse, and hopefully I can do that. If not, 
we intend to report you from Committee and bring you up on the 
floor. I don't see how anybody really can vote against either 
of you. But without resolving the impasse, I think we would 
find probably further filibusters.
    Now, that is one thing that hasn't been mentioned. I 
listened carefully to Senator Leahy's comments, but never in 
the history of the Judiciary Committee, in the history of this 
country or in the history of the Senate have we had substantive 
filibusters on the floor against Federal judges--never, not 
once.
    We have had people who wanted to do that in the Clinton 
administration and in prior administrations, but I personally 
stopped that with the few who did. And to their credit, my 
colleagues on the Republican side said we are not going to 
filibuster anybody, certainly not Federal judges, because 
Article II, Section 2, of the Constitution basically calls for 
a vote up and down under the Advise and Consent Clause.
    The Founding Fathers knew what a super-majority vote was 
because just a line or two above the Advise and Consent Clause 
was the requisite two-thirds vote for the ratification of 
treaties. So it was quite apparent that advise and consent 
means a vote up and down.
    Now, I know both of you well. I know both of your 
reputations. I have studied and read a lot about you. I don't 
see any reason to even ask you any questions today, and I don't 
think anybody on the other side has wanted to either. I don't 
think anybody doubts your qualifications, and it would be an 
absolute crime if you are not confirmed. But I will do my very 
best to get you confirmed and I will do my very best to work 
with the two Michigan Senators and hopefully break through this 
impasse that has occurred.
    I know it is a long way here and that you would probably 
love to answer a lot of questions, but what I am going to do is 
hold the record open for one week so anybody can send you 
written questions who might have any questions of you both. And 
I would suggest to you that you get those answers in as quickly 
as possible, if you do get written questions. It is very 
important that you get those answers back immediately because I 
don't want anything to stand in the way of our best attempts to 
get you both confirmed.
    I know that both of you would serve beautifully and well on 
the Sixth Circuit Court of Appeals, which is in dire need of 
judges. It is 25-percent lacking in judges right now, so it is 
critical that you get you through and I am going to do the best 
I can to do that.
    So I will keep the record open for one week, until 5:00 
p.m. on June 23, for additional statements or questions by 
members of the Committee. I may have some written questions 
myself, but I doubt it because I am very personally aware of 
both of you.
    Judge Covington, we are proud of you, as well.
    With that, we are going to recess until further notice.
    [Whereupon, at 11:08 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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