[Senate Hearing 109-200]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-200
 
 NOMINATIONS OF COLLEEN D. KIKO, MARY M. ROSE, HON. JULIET J. McKENNA, 
                           AND JOHN R. FISHER

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

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                                 ON THE

  NOMINATIONS OF COLLEEN D. KIKO TO BE GENERAL COUNSEL, FEDERAL LABOR 
     RELATIONS AUTHORITY; MARY M. ROSE TO BE MEMBER, MERIT SYSTEMS 
    PROTECTION BOARD; HON. JULIET J. McKENNA TO BE ASSOCIATE JUDGE, 
DISTRICT OF COLUMBIA SUPERIOR COURT; AND JOHN R. FISHER TO BE ASSOCIATE 
              JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS


                               __________

                           SEPTEMBER 13, 2005

                               __________

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs



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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma                 THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island      MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah              FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico         MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia

           Michael D. Bopp, Staff Director and Chief Counsel
            Jennifer A. Hemingway, Professional Staff Member
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
         Adam R. Sedgewick, Minority Professional Staff Member
                      Trina D. Tyrer, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Voinovich............................................     1
    Senator Akaka................................................     4
    Senator Lautenberg...........................................     5
    Senator Carper...............................................     6

                               WITNESSES
                      Tuesday, September 13, 2005

Hon. F. James Sensenbrenner, Jr., a Representative in Congress 
  from the State of Wisconsin....................................     2
Colleen D. Kiko, to be General Counsel, Federal Labor Relations 
  Authority......................................................     7
Mary M. Rose, to be Member, Merit Systems Protection Board.......     9
Hon. Eleanor Holmes Norton, a Delegate in Congress from the 
  District of Columbia...........................................    19
Hon. Juliet J. McKenna, to be Associate Judge, District of 
  Columbia Superior Court........................................    21
John R. Fisher, to be Associate Judge, District of Columbia Court 
  of Appeals.....................................................    23

                     Alphabetical List of Witnesses

Fisher, John R.:
    Testimony....................................................    23
    Prepared statement...........................................    34
    Biographical and professional information....................   121
Kiko, Colleen D.:
    Testimony....................................................     7
    Prepared statement...........................................    27
    Biographical and professional information....................    39
    Responses to pre-hearing questions...........................    49
    Responses to post-hearing questions..........................    63
McKenna, Hon. Juliet J.:
    Testimony....................................................    21
    Prepared statement...........................................    33
    Biographical and professional information....................    98
Norton, Hon. Eleanor Holmes:
    Testimony....................................................    19
Rose, Mary M.:
    Testimony....................................................     9
    Prepared statement...........................................    31
    Biographical and professional information....................    66
    Responses to pre-hearing questions...........................    72
    Responses to post-hearing questions..........................    93
Sensenbrenner, Hon. F. James, Jr.:
    Testimony....................................................     2

                                APPENDIX

Hon. Paul Strauss, Shadow U.S. Senator, District of Columbia, 
  prepared statement.............................................    35


 NOMINATIONS OF COLLEEN D. KIKO, MARY M. ROSE, JULIET J. McKENNA, AND 
                             JOHN R. FISHER

                              ----------                              


                      TUESDAY, SEPTEMBER 13, 2005

                                       U.S. Senate,
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room 342, Dirksen Senate Office Building, Hon. George Voinovich 
presiding.
    Present: Senators Voinovich, Akaka, Carper, and Lautenberg.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. Good morning. Today, the Committee on 
Homeland Security and Governmental Affairs meets to consider 
four nominations: Colleen Kiko to be General Counsel of the 
Federal Labor Relations Authority (FLRA); Mary Rose to be a 
member of the Merit Systems Protection Board (MSPB); Judge 
Juliet JoAnn McKenna to be an Associate Judge for the Superior 
Court of the District of Columbia; and John Fisher to be an 
Associate Judge of the District of Columbia Court of Appeals.
    I commend all of these nominees for answering the 
President's call to serve our Nation, and I trust that you will 
fulfill your responsibilities with honor, courage, and 
character befitting the office to which you have been 
nominated.
    We will begin by considering the nominations of Ms. Kiko 
and Ms. Rose. You have been nominated during a period of 
extraordinary change in the Federal workforce. Over the past 
few years, Congress has enacted numerous pieces of legislation 
that altogether constitute the most significant reforms of the 
Federal civil service since the enactment of the Civil Service 
Reform Act of 1978.
    Senator Akaka, who I am pleased has joined us here today, 
has been a steadfast partner in working to raise awareness of 
the importance of strategic human capital management and 
finding the solutions to the government's personnel challenges. 
As Federal departments and agencies continue to understand and 
take steps to implement these reforms, whether the 
groundbreaking efforts of developing a new personnel system at 
the Department of Homeland Security or the more targeted 
reforms of implementing direct hire, the FLRA and the MSPB will 
continue to play vital roles in ensuring the success and 
integrity of the Federal civil service.
    I welcome this morning to the Committee Congressman James 
Sensenbrenner, Chairman of the House Committee on the 
Judiciary. We are very honored to have you here with us, 
Congressman Sensenbrenner, and I understand that you are going 
to introduce Ms. Kiko to us this morning, if you would proceed.
    Senator Lautenberg. Mr. Chairman, are we going to have 
opening statements?
    Senator Voinovich. Well, I think we ought to let the 
Congressman introduce Ms. Kiko.
    Senator Lautenberg. It raises the question for me. All of 
us have our individual rights and opportunities, and there is 
work that goes into laying out what we think are the parameters 
for the discussion. However, I will back down for Congressman 
Sensenbrenner, but I would hope that after his statement and 
respect for his time that we can hear from each of us, please.

STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF WISCONSIN

    Mr. Sensenbrenner. Thank you, Mr. Chairman. I appreciate 
the opportunity to come before this Committee and endorse the 
qualifications of my good friend, Colleen Duffy Kiko, for the 
position of General Counsel for the Federal Labor Relations 
Authority. She is eminently qualified for this position and let 
me tell you why.
    I have known Colleen for 24 years, since 1981. She 
graduated from George Mason University School of Law in 1986 
and was hired right out of law school by the Department of 
Justice in the Honors Program, Office of Legal Policy, and 
later the Civil Rights Division. While there, she spent her 
time investigating and prosecuting housing and credit 
discrimination complaints and was detailed to the Eastern 
District of Virginia to serve as a Special Assistant to the 
U.S. Attorney prosecuting criminal cases.
    At that time, I was the ranking minority member on the 
Civil and Constitutional Rights Subcommittee of the House 
Judiciary Committee, and a vacancy occurred on my subcommittee 
for associate counsel. I knew that there were three upcoming 
Federal judicial impeachments coming before the committee for 
which I would need someone on my staff with prosecutorial 
skills. Colleen fit the bill with her background.
    I hired Colleen, who served as my counsel for the several 
impeachments, and primarily the successful impeachment of Judge 
Walter Nixon, for which I served as one of the House managers 
during the Senate trial. During that time, she also served as 
the principal negotiator for the Judiciary Republicans on the 
Americans with Disabilities Act, which as we know just 
celebrated its 15th anniversary.
    Colleen left my employ in 1989 due to her ever-expanding 
family commitments, or at least that is what she used as an 
excuse to get away from me.
    In 1996, she hung out her shingle and opened up her own law 
practice, focusing primarily on criminal defense and domestic 
relations. Colleen has excellent legal skills, exercises 
independent judgment, and is steadfast in purpose. She is good 
with people and is a good negotiator. She has shown excellent 
capabilities of juggling both a serious legal career and her 
important family commitments.
    I would highly recommend her to serve in the position for 
which she has been nominated. First, she was doing the work of 
the FLRA for 2 years even before the agency even existed and 
worked at the FLRA from its inception for 5 more years. She 
knows the agency and its mission. FLRA whetted her appetite for 
a law degree, and she returns with not only a law degree, but 
with much legal and prosecutorial experience from which to draw 
to be the chief prosecutor for all unfair labor practices in 
the Federal labor relations area. This is a role especially 
suited to her background and experience.
    In short, I am really happy to be able to present to you a 
public servant with a distinguished background who really 
deserves early confirmation by this Committee, and I appreciate 
your courtesy.
    Senator Voinovich. Thank you, Congressman. We really 
appreciate your being here and appreciate your introduction of 
Ms. Kiko. It means a great deal to me because of the high 
respect that I have for you.
    I know you are a very busy person as chairman of the 
Judiciary Committee, and I suspect you have other things to do. 
Thanks very much.
    Mr. Sensenbrenner. We are preparing a few more bills to 
send over here. [Laughter.]
    Senator Voinovich. Thanks.
    The Federal Labor Relations Authority provides leadership 
within the Federal Government in developing and maintaining 
positive labor relations. If confirmed, Ms. Kiko's 
responsibilities as General Counsel will include processing 
unfair labor practice allegations, encouraging the use of 
alternative dispute resolution techniques, and promoting stable 
and productive labor-management relations in the Federal 
sector.
    As a former mayor and governor, I understand the importance 
of establishing a positive labor-management relationship based 
on open communication and trust. I encourage Ms. Kiko to be 
active in improving labor-management relations in the Federal 
sector during times of such dramatic reform.
    Mary Rose currently serves as the Chair of the Federal 
Prevailing Rate Advisory Committee of the Office of Personnel 
Management. Prior to this position, she served as the Deputy 
Associate Director for Presidential Personnel and was the 
Director of Personnel for President Reagan. Additionally, Ms. 
Rose was elected as the Clerk for Anne Arundel County Circuit. 
Prior to her elected office, Ms. Rose was the Deputy Under 
Secretary for Management of the Department of Education. 
Furthermore, Ms. Rose's professional career included working at 
the Office of Personnel Management, where her responsibilities 
included acting as the agency liaison to the White House on 
personnel policy.
    Her nomination is to the Merit Systems Protection Board, an 
independent agency that protects Federal employees from abuses 
by agency management, including prohibited personnel practices. 
It is an impartial arbiter and is essential to ensuring that 
agencies make employment decisions in accordance with the merit 
systems principles.
    I can say to you, Ms. Rose, that the Ranking Member of the 
Subcommittee, Senator Akaka, is someone who pays a lot of 
attention to that particular Board.
    With the changes underway at the Department of Homeland 
Security and the Department of Defense, the role of the MSPB 
continues to evolve. Ms. Rose, if confirmed, you would join the 
Board at a time when it faces new and complex challenges, and 
everyone will be watching how cases that come before the Board 
are disposed of. There is much uncertainty today with the new 
personnel systems that Congress authorized, and it is going to 
require the attention of the Board.
    Ms. Kiko and Ms. Rose, we look forward to your testimony so 
that we may learn how you plan to apply your experiences to 
your new positions and what steps you have taken to prepare for 
them.
    I will now yield to Senator Akaka for his opening statement 
and the other Members of this Committee who are interested in 
making opening statements. Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. I again 
want to say I enjoy working with you on this Committee. I also 
want to join you in welcoming our nominees and their families 
and friends who are here today. Of course, it was good to see 
Chairman Jim Sensenbrenner. We served together when I was in 
the House.
    President Bush has nominated John Fisher to be an Associate 
Judge on the D.C. Court of Appeals, and it is good to see you 
here, John, and your family, and Juliet McKenna to be an 
Associate Judge on the D.C. Superior Court. Both Mr. Fisher, 
with his background at the U.S. Attorney's Office, and Ms. 
McKenna, with her background in family law, have impressive 
resumes. I look forward to their testimony and hearing their 
thoughts on the D.C. Court System.
    The positions to which Ms. Kiko and Ms. Rose have been 
nominated are among the most important for Federal employees. 
If confirmed, I would expect them to be strong voices for 
employee rights and fair employment principles.
    Ms. Kiko has been nominated to be the General Counsel of 
the Federal Labor Relations Authority. This nomination comes at 
a critical juncture for the FLRA and the Federal workforce, 
given the shifting nature of the Federal labor relations 
system. As such, the position to which she has been nominated 
will face new challenges and take on renewed importance.
    Changes to Federal labor law at the Departments of Homeland 
Security and Defense will impact the workload of the FLRA and 
its General Counsel. I fear that employees at those agencies 
may be unable to have the benefit of an independent prosecutor 
to bring cases of unfair labor practices and will lack the 
assurance of having an impartial and independent adjudicator. 
In addition, the issues that are currently considered unfair 
labor practices may likely be reduced, further eroding employee 
rights and impacting the workload of the General Counsel.
    In addition, the administration is proposing additional 
changes to the Federal Labor Management System through the 
Working for America Act. Because some of these changes are 
similar to those proposed by DHS and DOD, the Federal labor-
management construct is facing major changes.
    Ms. Kiko, I look forward to discussing with you your 
thoughts on these proposals and how they will impact the job of 
the General Counsel.
    Ms. Rose has been nominated to be a member on the Merit 
Systems Protection Board. The MSPB is charged with protecting 
the merit principles and ensuring that Federal employees are 
free from political and other prohibited personnel practices 
and management abuses.
    I have serious concerns with the proposed changes to the 
appeals systems at DHS and DOD, which, in my opinion, undermine 
long-held merit principles. The MSPB plays a critical role in 
ensuring the right balance between civil service reform and 
protecting the rights of employees, and that is why I look to 
the members of MSPB to ensure that the rights and protections 
of Federal employees, whether in substance or through 
procedures, are not eroded.
    I am particularly interested in discussing with Ms. Rose 
whistleblower protections for Federal workers. Reporting 
government mismanagement is a basic obligation of the Federal 
workforce. To foster confidence in these protections, Federal 
employees, especially those disclosing information vital to our 
national security, should feel secure by a strong and 
functioning Whistleblower Protection Act (WPA). Unfortunately, 
the Federal Circuit Court of Appeals, with sole jurisdiction 
over the WPA, has created inconsistencies with Congressional 
intent through Court decisions. These loopholes pose challenges 
for the MSPB in interpreting the law as envisioned by Congress. 
I am pleased that the Committee, and you in particular, 
Chairman Voinovich, as well as Senators Lautenberg and Carper, 
have been strong supporters of my legislation, the Federal 
Employee Protection of Disclosures Act, which would restore 
Congressional intent to the WPA. I hope the Senate will act on 
this soon.
    Ms. Kiko, Ms. Rose, Mr. Fisher, and Ms. McKenna, I want to 
welcome you and congratulate you on your nomination.
    Mr. Chairman, I also want to mention that I had a good 
meeting with Mary Rose and want to mention that her husband, a 
doctor in North Carolina, is teaching and unable to join her. 
Her son, who is serving with the Coast Guard, and her two 
daughters, who live in Los Angeles and Pennsylvania, could not 
be here either. I know the whole family is here today with her 
in spirit.
    Thank you very much, Mr. Chairman.
    Senator Voinovich. Senator Lautenberg.

            OPENING STATEMENT OF SENATOR LAUTENBERG

    Senator Lautenberg. Thanks, Mr. Chairman. We rarely have 
any disagreement about decisions that come from your desk. 
Everyone knows very well of your public service career and has 
great respect for you and the accomplishments of that career, 
so while we differed on the process, I thank you for permitting 
the opening statements to be read, to learn more about the 
people who are nominated for these important positions.
    I am particularly interested in the Merit Systems 
Protection function. We have recently been given a vivid 
reminder of how important it is to scrutinize nominees for 
these important jobs. We have a situation at FEMA where the 
person named to the top position lacked the right experience, 
and the outcome was almost predictable, and then we learned 
that some of the claims on his resume or in his biography might 
have been exaggerated. But this underscores the need to take a 
closer look at nominees before they are allowed to assume 
positions of public trust.
    Ms. Rose, one of the individuals before us today, is 
nominated for one of the three seats on the Merit Systems 
Protection Board and that Board is responsible for enforcing 
the Federal Government's merit-based employment practices. It 
was established to protect Federal employees, including 
whistleblowers, from political and other prohibited personnel 
practices and abuses by agency management. Now, I believe that 
this Board requires members to be capable of looking at the 
facts of a case in a nonpartisan manner, and I am concerned 
with ensuring that this agency abandon any partisanship and any 
partisan leanings as they review the cases that come before 
them.
    I would like to learn more about Ms. Rose's view on the 
importance of whistleblowers that expose waste, fraud, and 
mismanagement in government bureaucracies and agencies. Many 
times, the only people aware of such wrongdoings are those who 
work inside the agency, and if we fail to protect those who 
would come forward and do the right thing, we do a disservice 
to the individual and the taxpayers in our country.
    Recently, we learned that a whistleblower who exposed 
irregularities in a billion-dollar no-bid contract between the 
Department of Defense and Halliburton has been demoted from her 
job at the Army Corps of Engineers. Now, this was only the 
latest example of people who were punished after they revealed 
information that the Administration wanted to hide from the 
American people.
    In my view, the current whistleblower protection system is 
not working. It doesn't protect those who would come forward, 
and I am working on legislation to strengthen those protections 
by making it a criminal offense for an individual to retaliate 
against whistleblowers. I am pleased to be on an amendment that 
Senator Akaka has produced to make sure that we are dealing 
fairly with these people.
    Mr. Chairman, I thank you very much for the opportunity to 
make my statement and look forward to hearing from our 
witnesses.
    Senator Voinovich. Senator Carper.

              OPENING STATEMENT OF SENATOR CARPER

    Senator Carper. Thanks, Mr. Chairman. I will be brief. To 
our nominees, welcome, and to those that are on, I think, our 
second panel, the judicial nominees, we welcome you, too. I am 
not going to be able to stay for that second panel, but I 
wanted to be here for at least the beginning of this one.
    Both Senator Lautenberg and Senator Akaka have spoken of 
the need for whistleblower protection. We need it. There are 
too many instances where people of good faith, good intent, are 
stepping forward and blowing the whistle, telling the truth, 
and they are being punished for it rather than rewarded for it. 
It is just unacceptable, and it is unacceptable to me, and I am 
sure it is unacceptable to our Republican colleagues, as well.
    We are reminded on the heels of Katrina that the folks 
whose names come to us for positions--we have an obligation, we 
have an oversight responsibility to make sure that we fully vet 
those nominees and better ascertain whether they are well 
qualified to do the jobs for which they have been nominated. 
With respect to FEMA, we have seen in recent weeks that 
sometimes that is not the case. That is the responsibility of 
the Executive Branch, but we bear responsibility, too.
    Again, we thank you. We welcome you and your families and 
friends today and thank you for your willingness to serve.
    Thank you, Mr. Chairman.
    Senator Voinovich. Thank you, Senator.
    Ms. Kiko and Ms. Rose, you have filed responses to a 
biographical and financial questionnaire and answered pre-
hearing questions submitted by the Committee. You have had your 
financial statements reviewed by the Office of Government 
Ethics. Without objection, this information will be made a part 
of the hearing record, with the exception of the financial 
data, which are on file and available for public inspection in 
the Committee offices.
    Our Committee rules require that witnesses before this 
Committee take an oath, and if you will stand, I will 
administer the oath.
    Do you swear that the testimony that you are about to give 
this Committee is the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Ms. Kiko. I do.
    Ms. Rose. I do.
    Senator Voinovich. Ms. Kiko, I understand you have some 
family members here with you, and I would like to give you an 
opportunity to introduce them before you make your statement to 
the Committee.
    Ms. Kiko. Thank you, Mr. Chairman. I do have my husband, 
Phil Kiko, and my daughter, who is representing my four 
children, Sarah Kiko, and my sister, Tama, is behind my 
daughter. Thank you.
    Senator Voinovich. Would you like to share your statement 
with the Committee?

TESTIMONY OF COLLEEN D. KIKO,\1\ TO BE GENERAL COUNSEL, FEDERAL 
                   LABOR RELATIONS AUTHORITY

    Ms. Kiko. Thank you, Mr. Chairman. Chairman Voinovich, 
Senator Akaka, Senator Lautenberg, Senator Carper, Members of 
the Committee, I would like to thank you and your staff for all 
the courtesies that have been shown to me as I have prepared 
for this hearing. I also deeply appreciate Chairman 
Sensenbrenner taking time away from his boat time to introduce 
me today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Kiko appears in the Appendix on 
page 27.
      Biographical and professional information appears in the Appendix 
on page 39.
      Responses to pre-hearing questions appear in the Appendix on page 
49.
      Responses to post-hearing questions appear in the Appendix on 
page 63.
---------------------------------------------------------------------------
    It is indeed a very special and honored occasion for me to 
be sitting here after being nominated by the President to serve 
as the General Counsel of the Federal Labor Relations Authority 
having started in the Federal Government in 1972 as a GS-3 
clerk-typist. The Federal civil service was considered an 
honored profession in my family. My father, Lawrence Duffy, had 
almost a half-century, 49 years, of proudly serving as a civil 
servant, first as a railway mail carrier for the U.S. Postal 
Service, and then for the U.S. Customs Service as a customs 
inspector. He believed in the opportunities the Federal 
Government offered and advised me as I was determining what 
career path to follow to look to the Federal Government as an 
honorable, rewarding, and fulfilling experience.
    My father always said that you spend almost half of your 
life at whatever job you choose--make sure you are happy in it. 
He provided a daily example of hard work, commitment, and 
impeccable character. I hope to follow in those shoes.
    I would like to point out several areas of my background 
and employment experience that I believe affirmatively qualify 
me for this position. From 1976 to 1979, I worked in the 
Department of Labor, Labor Management Services Administration. 
This same entity was transferred to the newly created Federal 
Labor Relations Authority on January 1, 1979, where I worked 
until I resigned to pursue a legal career in 1983.
    I worked in almost all of the professional roles of the 
Authority. In the regional office, I investigated unfair labor 
practice charges, chaired hearings on representational 
disputes, monitored Federal union elections, and conducted 
training for both management and unions. In the headquarters, I 
reviewed Administrative Law Judge decisions and the exceptions 
filed by the parties and prepared draft decisions for the 
Authority members. I also handled the procedural motions 
practice before the Authority.
    I left the Authority as a supervisory labor relations 
specialist. My experience working at the Authority in 
increasingly responsible positions throughout the Authority 
gives me, I believe, a great understanding of the agency as a 
whole.
    My work at the FLRA spearheaded my decision to pursue a 
legal career. My experience since then has also prepared me 
well for this position. After obtaining my law degree in 1986, 
my service with the Department of Justice in the Civil Rights 
Division and in the U.S. Attorney's Office, litigating both 
criminal and civil matters, has particularly prepared me for 
the prosecutorial role of the General Counsel position.
    Further, in my role as an Associate Counsel in the 
Judiciary Committee, I was very involved with the historic 
impeachment of a U.S. District Court judge. The House managers, 
one of whom was Chairman Sensenbrenner, prosecuted the Articles 
of Impeachment before the Senate.
    My years in the private practice of law in a small firm 
representing clients has given me perspective on advocacy and 
on the need to respond effectively to client needs.
    Finally, in my current position as an Employees' 
Compensation Appeals Judge, I have had the benefit of 
independent decisionmaking, listening to both sides 
objectively, and rendering a fair decision. Exercising such 
judicial temperament prepares me well for the neutral role that 
the Federal Labor Relations Authority plays in the Federal 
sector labor relations.
    I believe I have been well prepared for this position. 
Neither when I left North Dakota to come to Washington, D.C. in 
1972, nor when I left the FLRA to pursue a legal career, did I 
ever expect to be sitting in this chair right now. It is 
amazing how full-circle this journey has become.
    I see as the goal of the Office of the General Counsel as 
helping agencies effectively and efficiently fulfill their 
statutory mission through healthy labor-management relations. I 
hope to faithfully pursue that objective.
    I greatly appreciate the opportunity to appear before this 
Committee today and will be happy to answer any questions.
    Senator Voinovich. Thank you very much, Ms. Kiko.
    Ms. Rose, you have an opportunity to introduce your family 
to the Committee.
    Ms. Rose. Thank you, Mr. Chairman. My daughter and my son-
in-law and my grandchild are sitting over here, Kaitlyn, the 
little redhead. Thank you for giving me the opportunity to 
introduce them.
    Senator Voinovich. Would you like to share your statement 
with the Committee?

   TESTIMONY OF MARY M. ROSE,\1\ TO BE MEMBER, MERIT SYSTEMS 
                        PROTECTION BOARD

    Ms. Rose. Good morning, Chairman Voinovich, Ranking Member 
Akaka, and Members of the Committee. I am Mary M. Rose, and I 
appreciate the opportunity to appear before you as you consider 
my nomination to be a member of the Merit Systems Protection 
Board. Given the seriousness of the issues that surround you 
today, I am especially appreciative of the time you have taken 
to ensure the MSPB operates at full strength.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Rose appears in the Appendix on 
page 31.
      Biographical and professional information appears in the Appendix 
on page 66.
      Responses to pre-hearing questions appear in the Appendix on page 
72.
      Responses to post-hearing questions appear in the Appendix on 
page 93.
---------------------------------------------------------------------------
    I am honored by the President's confidence in me, as 
demonstrated by his decision to nominate me to a position of 
such importance. If confirmed, I will dedicate myself to 
discharging the responsibilities of this office in accordance 
with the laws, rules, and regulations applicable to the Board 
to the best of my ability.
    In this time of change, the mission of the Merit Systems 
Protection Board is more important than ever. I will work to 
fully preserve the merit systems principles and to protect 
Federal employees from prohibited personnel practices, the core 
of the MSPB's mission. The assurance of fair adjudication of 
employment disputes and the timely issuance of decisions will 
enhance the confidence of Federal employees and managers in the 
civil service system as well as their effectiveness in 
fulfilling the missions of their respective agencies.
    The Board's role in regulatory, studies, and oversight 
functions, in addition to its adjudicatory responsibilities, 
will be part of the cutting edge of transformation in human 
resources management. If confirmed, I welcome the opportunity 
to work in cooperation with MSPB's Chairman McPhie in 
fulfilling the responsibilities and missions of the Board 
during this period of transition and beyond. I hope to use my 
past experiences in the Federal civil service as well as the 
expertise I have developed to assist the Board in fulfilling 
its missions.
    I began my tenure in Federal service during the early 
1980's when the reforms mandated by the Civil Service Reform 
Act of 1978 were first being implemented. I saw firsthand how 
difficult change can be, but witnessed the improvements in 
government-wide personnel management as a result of that 
change. During this time, a major shift in management practices 
required managers and employees to communicate on an annual 
basis regarding goals of their employing agency and the 
standards and the expected levels of performance. Should I be 
confirmed, it will be a great honor to be part of this 
historical time in the continued evolution of Federal human 
resources management.
    I wish to thank you for consideration for my nomination, 
and again, I express my appreciation for your time. I would be 
happy to answer any questions you may have.
    Senator Voinovich. Thank you, Ms. Rose.
    There are standard questions that this Committee asks all 
of the nominees. I will begin with those questions, and I would 
appreciate your answering them yes or no.
    Is there anything you are aware of in your background that 
might present a conflict of interest with the duties of the 
office to which you have been nominated?
    Ms. Kiko. No.
    Ms. Rose. No, sir.
    Senator Voinovich. Do you know of anything personal or 
otherwise that would in any way prevent you from fully and 
honorably discharging your responsibilities of the office to 
which you have been nominated?
    Ms. Kiko. No, I do not.
    Ms. Rose. No, sir.
    Senator Voinovich. Do you agree without reservation to 
respond to any reasonable summons to appear and testify before 
any duly-constituted committee of Congress if you are 
confirmed?
    Ms. Kiko. Of course, yes.
    Ms. Rose. Yes, sir.
    Senator Voinovich. I mentioned that you are both coming to 
your responsibilities at a time that is very critical, as far 
as I am concerned. We have, as I mentioned, made significant 
changes to the Civil Service Code at the Department of Homeland 
Security, Department of Defense, and also government-wide. I 
value Federal employees. For too many years they have been 
neglected, but as we have seen with Hurricane Katrina, people 
do make a difference.
    I would like each one of you to comment about your 
awareness of the situation that you are going to find yourself 
in. Ms. Kiko.
    Ms. Kiko. I will go first, Mr. Chairman. The Department of 
Homeland Security and the Department of Defense regulations 
that are currently under consideration are examples where the 
legislative process made changes allowing the agency to 
appropriately craft labor relations and employee relations 
policies that would best effectively take into account its 
mission. I certainly find that to be an appropriate situation. 
These agencies certainly are going through a difficult time 
right now trying to find out how to properly craft those 
particular regulations.
    Right now, as it is pending litigation in the D.C. Court, 
certainly the merits of the regulations are not something that 
I would want to comment on particularly. I do see the 
government is going through a process of attempting to craft 
the personnel policies in a time now that is a little different 
from years past, where homeland security is a particularly 
important area right now. It is a challenge and the government 
is going through a process right now which I think is working. 
The process is doing what it is supposed to be doing.
    That is my comment, essentially. I believe that your 
question was directed mostly to the Homeland Security 
regulations. If I have missed the point, I would be happy to 
redirect the answer.
    Senator Voinovich. I think that one of the concerns that 
our unions particularly have is this: What kind of people are 
we going to have in responsible positions and how sensitive are 
they going to be to the rights of Federal employees.
    Ms. Rose.
    Ms. Rose. Thank you, Mr. Chairman. With the new regulations 
and reforms coming our way, there are going to be major 
changes, and we will have to be ever vigilant as a member of 
the MSPB. When adjudicating cases and writing studies the MSPB 
must find an independent and open way to describe agency 
performance with respect to personnel practices. Additionally, 
preventing prohibited personnel practices against employees is 
vital. As a board we must watch the agency trends to ensure 
these laws are enacted and the intent of Congress is followed. 
The new laws may be more complicated and more cumbersome, but I 
believe we should look at this enthusiastically as a time of 
change. I look forward to helping in any way I can in the 
service of my country to protect Federal civil servants and to 
be more vigilant than ever on their behalf. As well, I hope to 
help managers through their difficult times.
    Senator Voinovich. You come to the table with individuals 
who obviously feel that they have been discriminated against 
because they have come forward. Do you believe that the parties 
come to the table and it is an even situation, or do you 
believe the emphasis should be on trying to make sure that the 
individual who claims to have been aggrieved perhaps gets more 
emphasis than the agency that fired or demoted him?
    Ms. Rose. I think every case needs to be judged on its 
merits. I can't answer, without a case in front of me, if one 
side is being favored. This is a difficult question. With the 
changes and reforms, one will have to use extra scrutiny 
reviewing employee and managers claims because--this is all 
going to be new to both sides. Everything will have to be 
looked at very carefully and weighed very openly and 
impartially. That is how I would look at each case.
    Senator Voinovich. We have spent a great deal of time on 
this issue. I would recommend that you cearly communicate that 
the individuals that come before you are going to receive fair 
consideration. I know we had testimony here about the backlog 
of cases before the Office of Special Copunsel, and it has been 
argued that maybe each case wasn't getting the attention that 
it ought to receive.
    I think there is a feeling among Federal employees that 
perhaps individuals aren't getting the kind of treatment that 
they should get, and it becomes an issue of perception. This 
will affect whether or not people are going to be willing to 
stand up and report wrongdoing. If they just see co-workers 
blow the whistle and then get shut out, the word will go around 
that, hey, you had better keep your mouth shut, or leave, or 
whatever the case may be.
    Federal employees really have to have a feeling that they 
are being treated fairly and that they are listened to and that 
this isn't just some perfunctory process where they come before 
the Board and then end up out on the street. You need to take 
that into consideration.
    Ms. Rose. I believe my management and HR experience will be 
a benefit because I have experienced situations where employees 
need help, and I know that communications between manager and 
employee is very important. I have seen this through many years 
of my professional life. I think I will be more open to 
reviewing these cases and seeing them from a different 
perspective and a dynamic than an attorney would. While I know 
I am not an attorney, I believe I add a valuable dynamic that 
will be beneficial to the Board as well as the employees who 
come before the Board.
    Senator Voinovich. Thank you. Senator Akaka.
    Senator Akaka. Thank you very much, Mr. Chairman.
    I thank you, Ms. Kiko and Ms. Rose, for your testimony. I 
appreciate your comments as both the FLRA and MSPB are very 
important agencies for protecting employee rights.
    Ms. Kiko, DHS and DOD claim that their agencies need 
flexibility in the area of labor-management relations based on 
their national security needs. In response to Chairman 
Voinovich's question, you said that employee rights and 
collective bargaining rights at DHS and DOD are being balanced 
against the missions of the agency. Could you elaborate on this 
and tell me if this applies to all agencies and all missions or 
only those pertaining to national security?
    Ms. Kiko. Thank you, Senator Akaka. Labor-management 
relations, healthy labor-management relations, is important in 
every government agency. When the statute was created in 1979, 
it was stated in one of the findings that one of the law's 
purposes was to help agencies more efficiently and effectively 
accomplish their statutory mission. Each government agency has 
been created with a particular mission. The best way that 
mission can be accomplished is through employees working well 
with management to accomplish the mission. The best way to do 
that is with good labor-management relations.
    Does it always work? No. Do I have some magic wand that can 
make it all work? No. But I certainly believe you start there; 
you want to develop and work on healthy labor-management 
relations in each agency. The mission is simply where everybody 
wants to go at the end of the day. What does the agency want to 
accomplish? It doesn't matter necessarily which mission. Good 
labor-management relations is good in every agency.
    Senator Akaka. Ms. Kiko, the FLRA has been without a 
General Counsel for almost a year, and I understand there are 
over 100 unfair labor practice charges awaiting issuance of a 
complaint. If you are confirmed, do you intend to immediately 
issue complaints on these backlogged charges?
    Ms. Kiko. Well, I would probably want to review the 
complaints first, but certainly, I expect there may be some 
things sitting on the desk waiting for my action upon my 
arrival. I do not certainly expect to jump in and start acting 
immediately. I do intend to communicate with the regional 
directors, with the staff of the agency, to find out where we 
are, where we need to go. At that time, I would evaluate each 
of the complaints waiting to be filed as an unfair labor 
practice complaint, and determine whether the qualifications 
are met or the requirements that have been established to date 
on what would make an unfair labor practice charge into an 
unfair labor practice complaint. At that point, I would make a 
determination. But certainly, I don't think I am going to walk 
in with my pen open and ready to sign.
    Senator Akaka. Ms. Kiko, the General Counsel is responsible 
for the seven regional offices at FLRA. There has been no 
hiring in the regional offices in over a year. Under General 
Counsel policy, a full staffing level of attorneys and labor 
relations specialists would be 11 agents. The Atlanta Region 
currently only has four agents and the Dallas Region only has 
five agents. Do you intend to begin hiring new employees in the 
regional offices to address these staffing shortages?
    Ms. Kiko. I certainly believe one of my first orders of 
business will be to evaluate the staffing needs of the agency 
and the staff that is existing to accomplish the mission. There 
are many factors that affect the staffing in the Federal Labor 
Relations Authority. Workload is one. Geographical location is 
another. All of those factors, I would like to study and do 
staffing reviews and management reviews to determine what the 
personnel levels should be.
    There are other situations facing our agency as to whether 
the Homeland Security regulations and the Department of Defense 
regulations will have an effect on the caseload of the agency. 
That would be certainly something that I would want to 
investigate prior to making any decisions, but certainly that 
is an area that would be getting a lot of my attention.
    Senator Akaka. Ms. Rose, a number of Federal Circuit Court 
interpretations of the Whistleblower Protection Act are 
inconsistent with Congressional intent. A primary example is 
the meaning of the term, ``any disclosure.'' In 1994 and again 
this year, this Committee reaffirmed language from the 1988 
Senate Committee report and explicitly stated that the Office 
of Special Counsel, the Board, and the courts should not erect 
barriers to disclosure of government wrongdoing, including 
limiting protection for disclosures made for certain purposes, 
limiting protection for disclosures made to certain employees, 
or limiting protection to the employee who is the first to 
raise the issue. Nonetheless, the Federal Court erected nearly 
every barrier listed in the Committee report.
    As a member of the MSPB deciding whistleblower cases, how 
would you reconcile this contradiction between Federal Circuit 
Court case law and clear Congressional intent?
    Ms. Rose. As a member of the Merit Systems Protection 
Board, I will be obligated to apply the laws that are in place 
at this time. When Congress enacts legislation that strengthens 
the Whistleblower Act, I assure you if this issue comes before 
me, I will adjudicate cases, and I will apply the applicable 
laws as fairly and as openly and as credibly as I can.
    Senator Akaka. Mr. Chairman, my time has expired. Thank you 
very much.
    Senator Voinovich. Thank you. Senator Lautenberg.
    Senator Lautenberg. Thank you, Mr. Chairman, and I thank 
the witnesses for their testimony.
    One thing I think that is quite apparent in the Senate is 
that we rely on sources of information that are not necessarily 
those that are routine, those that are brought to a committee 
hearing. So when we have an opportunity to learn from someone 
who is inside the system, I think we have an obligation to 
listen.
    I ran a pretty good-sized company before I came to this 
Senate, and I encouraged employee suggestions or even 
criticism. I didn't want a list of whiners standing at my door 
in the morning because I would make sure that if someone had a 
complaint, that they had to have some record of the incident 
that was verifiable. But I think it particularly important in 
government, when we have the system of protection in place that 
we have, that violations not be ignored.
    Ms. Rose, you worked under Republican administrations, 
including this White House, where you helped prepare nominees 
for political appointments. One of the primary systems of the 
Merit Systems Protection Board is to ensure that politics is 
not a factor in civil service personnel action. Now, what will 
you do to ensure that those individuals who put their 
consciences above orders that they think are inappropriately 
functioning, to come up with their criticism or complaint and 
to guarantee that there is no recrimination for speaking out?
    Ms. Rose. Senator, should I be confirmed, as a member of 
the Merit Systems Protection Board, I will not allow partisan 
politics to interfere with any of my decisions. I will not 
allow partisan politics to exist.
    Yes, I worked in the White House, but I also have worked in 
other jobs. I have worn hats in many fields. My background is 
varied. I have been a nurse. I did not allow the background of 
the patients I treated to interfere with my decisions regarding 
their care. As a manager, employee backgrounds were never part 
of a decision. I made strong and sound decisions.
    I know your concern about looking at candidates very 
carefully because I, too, have had that responsibility as a 
Deputy Assistant at the White House. I had to interview people. 
I had to look them in the eye and see if they were actually 
telling the truth, if their backgrounds were correct and 
verifiable. So it is an awesome responsibility to put the right 
person in the right job.
    Senator Lautenberg. Ms. Rose, I am sure that you employ 
your best instincts, but don't we have to look to something 
beyond one's instincts or one's feeling about the individual to 
get to the substance of the issue? Are there not systems 
applications that can be used to say, OK, here is what we do if 
someone comes up with a complaint? Where do we go? Do we then 
call in the supervisor? Do we call in fellow employees, rather 
than rely on some good feeling or bad feeling about an 
individual? I think that gets us into a problem that we ought 
not to be trying to employ in making important decisions like 
this.
    We have, for instance--are you familiar with the Bunny 
Greenhouse situation? Bunny Greenhouse was an employee of the 
Corps of Engineers, and she was the top civilian contracting 
official with the Army Corps since 1997. She was demoted, and 
it appears to be retaliation for her June 27--just this past 
year--testimony before a Senate Committee, albeit it was a 
Democratic Committee because we couldn't get her on the agenda 
of the standard Committee structure. She talked about 
inappropriate actions taken by the Army Corps in granting a no-
bid contract to Halliburton.
    Now, how do you take an action like this and listen to 
someone carefully who feels that the government is acting 
improperly in this action and how do you say to that person, 
well, understand if you tell us, you may be putting your head 
on the chopping block. What would you do to ensure that these 
complaints are valid, that they are heard? Would you take the 
responsibility solely on yourself for making this decision 
about whether or not this person has fabricated this idea or 
whether or not punishment is in order?
    Ms. Rose. I think it is the role of the member to seek the 
truth in whatever way is possible and make decisions based on 
what you believe is the truth and the facts that are laid out 
in the case.
    Senator Lautenberg. Ms. Rose, in 2001, you had a 
responsibility for recruiting, interviewing, and preparing 
candidates for appointment at executive levels in the 
Administration. In 2001, a man named Mike Brown was nominated 
to be Deputy Director of FEMA. Do you recall working on his 
nomination?
    Ms. Rose. No, sir.
    Senator Lautenberg. Well----
    Ms. Rose. I did not have FEMA in my portfolio.
    Senator Lautenberg. But weren't you responsible for vetting 
people who were being appointed to high-ranking positions in 
the government?
    Ms. Rose. Yes, sir. I did domestic agencies, but not FEMA.
    Senator Lautenberg. So did you not look at Mr. Brown's 
background? You know what happened there. He had a fabricated 
biography, as exposed by Time magazine and other sources. But 
that should have been an important look at a candidate for such 
an important job, and you don't recall having----
    Ms. Rose. No, sir. I had nothing to do with his 
appointment.
    Senator Lautenberg. With the vetting? You weren't 
responsible for the vetting?
    Ms. Rose. No, sir.
    Senator Lautenberg. Thank you. Thanks, Mr. Chairman. I am 
done, Mr. Chairman. Thank you.
    Senator Voinovich. Thank you. Senator Akaka indicated that 
he would like a second round of questioning, and I will start 
it off.
    Ms. Kiko, how would you approach your responsibility to 
work with the unions and Federal managers to foster effective 
labor relations in the Federal Government? I will never forget 
when I was mayor of Cleveland I had my directors come to me, 
and they were complaining that it just was impossible to fire a 
bad employee. I talked to the woman that headed up our Civil 
Service Board, and she said, ``Mayor, the bottom line is they 
don't know what they are doing.'' In other words, there are 
certain procedures that you follow, and they are not following 
them. At that time, we began a very aggressive effort to 
educate them about how the system worked, and it is amazing how 
the situation improved.
    Have you thought about how you might communicate to the 
various agencies on human capital management? If you conclude 
that there are agencies that don't know what they are doing or 
the people in human resources don't have the training they 
should have, do you feel it is your responsibility to call 
someone and maybe encourage training sessions?
    Ms. Kiko. Thank you for that question. I think it is a very 
important one in the labor-management area. I think you hit it 
on the head because of your background. Education is very 
important in attempting to help parties get along. I think you 
can certainly understand that managers deal with their 
employees. Some employees are good workers and some have 
challenges. There are problems of communication between 
parties. Sometimes management feels it absolutely can't stand 
working with the union, and sometimes the union feels it cannot 
possibly stand to work with management. Then there are other 
agencies kind of on middle ground.
    Hopefully, in the role as the General Counsel of the 
Federal Labor Relations Authority, you have an opportunity to 
do two things. Certainly, we have the opportunity to prosecute 
cases against management or against the union if there are 
violations of the law. But prior to that, and I think it is 
probably the most important role, is attempting to get parties 
to work together, and the most important way to do that is to 
help them understand their parameters: What are the management 
rights? What are the union rights? What are the employee 
rights? And help the agencies understand that.
    Certainly, if there are areas where it appears that unfair 
labor practice charges are coming from the same area over and 
over and over again, that should suggest a problem. It would be 
my role to attempt to educate them as to the role of the 
Federal Labor Relations statute as to the roles of the parties, 
whether it means picking up the phone and calling someone or 
whether I set up training classes and offer such opportunities 
to various agencies that may need assistance.
    Senator Voinovich. You probably haven't had a chance, but 
do you intend, if confirmed, to examine the performance of 
various agencies to get a feel for----
    Ms. Kiko. Absolutely. I mean, this is what we are trying to 
do, is to promote healthy labor relations. If there are 
unhealthy labor relations going on, is there an opportunity to 
educate in the ways of the Authority decisions to help them 
understand? If they understand their parameters, they may be 
fighting over less. If we can help them understand their 
particular rights, this is what you need to work within.
    I think the Authority in recent years has done an 
incredibly wonderful job of attempting to do just that, to set 
out in their decisions, more predictability, more 
understandable decisions on how do I take this and then follow 
a roadmap. Oftentimes, legal opinions can be good for this 
particular case, but not particularly good for the next one 
because no one really understands what it is all about.
    But I think the decisions are starting to become much 
clearer and helping to educate the parties in what direction 
people need to go. The FLRA is now telling you: This is what we 
are finding to be right; this is what we are finding to be 
wrong. Now go out and play with those rules. And that helps 
healthy labor-management relations. Certainly, that is one area 
that I feel that is very important in educating the parties in 
what their roles are.
    Senator Voinovich. Do you know Colleen Kelley?
    Ms. Kiko. I do not know Colleen Kelley. I certainly know 
who she is, but I have not met her yet.
    Senator Voinovich. Do you know John Gage?
    Ms. Kiko. Not yet. I do intend to meet with them.
    Senator Voinovich. That is good. It would be wise for you 
to spend some time with them and let them share their feelings. 
I think it is important you all get to know each other so that 
they understand that you take your job very seriously and that 
you understand that there has been some misunderstanding 
between this administration and the unions. I am glad to hear 
that you are going to do that.
    Ms. Kiko. Thank you.
    Senator Voinovich. Senator Akaka.
    Senator Akaka. Thank you very much, Mr. Chairman.
    Ms. Rose, at a November 2004 forum hosted by GAO and the 
National Commission on Public Service, participants questioned 
whether the merit systems principles should be updated in light 
of the new personnel flexibilities granted to Federal agencies 
as well as an increased focus on missions, goals, and results 
as envisioned by the Government Performance and Results Act. Do 
you believe that any changes should be made to the Federal 
merit systems principles, and if so, what changes and why?
    Ms. Rose. That is a very interesting theory. I think it is 
very important that we constantly improve, and give 
introspective thought and consideration to all the laws because 
when laws are enacted, government changes. These laws should be 
changed based on policy changes that take place in government.
    I know of the Congress's intent to look at these merit 
principles, and I welcome that. As I said, we can always look 
to improve ourselves in any way possible. In doing so, when the 
Congress enacts those changes, I will apply those laws to my 
cases as I see them should I be confirmed.
    Did you want a specific--any specific changes? At this 
time, I am not ready to answer that. As I see cases and 
identify the need for these changes I will say so in my reports 
and studies.
    Senator Akaka. Thank you for that. Ms. Kiko, you were a 
labor relations specialist at the FLRA for 7 years. What 
problems, if any, did you see with the system at the time you 
worked there, and in your opinion, do these same problems 
persist today?
    Ms. Kiko. Well, it has been 23 years ago, so I have to go 
back into the mind a little bit further than I am used to. When 
I worked in the Federal Labor Relations Authority, it was a 
brand new agency. I think everyone was excited about the 
process. It is exciting to have your role taken out of an 
agency and put into an independent agency, and it gave a much 
heightened awareness to what we were doing at the time in the 
Department of Labor. It was a very exciting time. I recall a 
birthday cake for it on its first year in 1980.
    So at the time, it seemed a process that was working very 
well. We were attempting to train people. We were attempting to 
help understand the new law, where it was going, how it was 
going to be interpreted, that sort of thing. It was a new and 
exciting time.
    Were there problems with the system? I suspect there might 
have been. Certainly, whenever you are dealing with people 
trying to get along, you are always going to run into some 
problems.
    As for how the agency works now, that is one of the things 
that I would like to look at in depth, is how is the agency 
working, and I don't intend to go in there with a preordained 
slate of what I remember from 23 years ago. I want to go in 
there with an open slate, and I want to go in and say, what is 
wrong with this agency and how does it work well? What is good? 
What is bad? Let us talk about it, and in my role of the Office 
of the General Counsel, should I be confirmed, what can I do to 
make it better?
    So I really am looking forward to listening and finding out 
where those issues are from the unions, from management, from 
my own staff in the agency, should I be confirmed, and from 
there determine where the problems are and find ways to correct 
them if it is possible within my authority.
    Senator Akaka. Thank you.
    Ms. Rose, DHS and DOD have been granted flexibility to 
waive Chapter 77 of Title 5 relating to Federal employee 
appeals. As you know, the Federal Aviation Administration was 
granted similar authority in 1996. However, after finding that 
the internal process was unfair and biased, Congress reinstated 
MSPB appeal rights for FAA employees in the year 2000. What do 
you believe are some best practices that should be included in 
any appeals system?
    Ms. Rose. Best practices would be making it as easy as 
possible for employees to appeal. By whatever means. For 
example, printing brochures or assisting them by making sure 
their phone calls are answered when they have questions. These 
simple administrative procedures can make it easier for an 
employee to appeal. Administratively, there are a lot of things 
I will do to help make the appeal process easier for the 
employee. It should be approachable and understandable. If they 
can't understand the language, it doesn't do them much good, 
and not all of them can afford attorneys or have the access to 
the help some other employees may have. Plain language is 
important. Communication and openess to employees who wish to 
make appeals are imperative.
    As far as the DHS and DOD regulations, I will just have to 
wait and see how they play out. I will carefully look at how 
difficult or easy it is for these employees to make appeals. 
The appeals process to the agencies and the Board must also be 
closely watched for difficulties or barriers that might 
interfere.
    Senator Akaka. What about the independence of the appeals 
boards?
    Ms. Rose. Independence is primary. I mean, there can be no 
interference or no obstruction to that independence. We talk 
about the issue of timeliness and the quality of the decisions 
of those appeals. I said in my question and answers that 
timeliness is important because people are suffering and you 
need to address their case as soon as possible and give them 
relief as soon as possible. At the same time, I do not believe 
that the independence or the integrity of the decision process 
should be endangered.
    Senator Akaka. I thank you both for your responses. Thank 
you, Mr. Chairman.
    Senator Voinovich. I have one other question. Ms. Kiko, who 
do you go to for your budget?
    Ms. Kiko. The Chairman of the Authority manages the budget 
for the Authority.
    Senator Voinovich. OK. One of the things that I have 
observed around here is that we often ask people to do a job 
and then we don't give them the resources to do it. I would 
hope that you would do an initial evaluation of the capacity of 
the Board to do its job and make sure that is communicated to 
OMB.
    I think that as we go back and examine preparation for 
Hurricane Katrina we are going to learn that some agencies 
should have had more resources. They have been asking for more 
resources but were ignored by the Administration and Congress. 
So I would urge you to do that. I know it is not easy, but you 
have to have the resources to get the job done.
    You may also need to hire more people. You are going to 
have people recommended to you, I am sure. I hope that you have 
the wherewithal to be able to reject bad candidates. One of the 
things that I did when I was governor and as mayor, I asked 
somebody to do a job and I said, you are the one that hires and 
fires and you are responsible. If you get someone that is 
recommended and you don't think they have got it, you need to 
have the courage to say, they are not qualified or I don't want 
them. Those two things are tough, but standing up for your 
budget and making sure that you get the people that you need to 
get the job done are important.
    Thank you both for being here today. We are going to leave 
the record open in the event that some of my colleagues have 
questions for the record. It will be open for 48 hours. Thank 
you.
    Ms. Kiko. Thank you very much, Mr. Chairman.
    Ms. Rose. Thank you, Mr. Chairman.
    Senator Voinovich. You are more than welcome.
    Now, I ask Judge Juliet McKenna and John Fisher to come 
forward.
    Eleanor, I don't know how long you have been in the wings, 
but if we kept you there a long time, I apologize.
    Ms. Norton. It is all right. I was watching the hearing.
    Senator Voinovich. I welcome Eleanor Holmes Norton of the 
District of Columbia, who is here to introduce Mr. Fisher and 
Judge McKenna. I would like to thank Delegate Norton for her 
conscientiousness. She does a good job of making sure that she 
familiarizes herself with the individuals being nominated and 
makes it her business to come and appear before the Committee.
    Thank you for being here.

STATEMENT OF HON. ELEANOR HOLMES NORTON, A DELAGATE IN CONGRESS 
                 FROM THE DISTRICT OF COLUMBIA

    Ms. Norton. Thank you very much, Mr. Chairman, and may I 
thank you once again for your very exceptional work for the 
residents of the District of Columbia on the authorizing 
Committee here, and may I thank you for arranging this hearing 
for two exceptionally well-prepared and well-qualified 
nominees.
    I think if you look at their qualifications, and I will 
only briefly summarize them, it would appear that they have 
spent their entire professional lives preparing for the 
nominations they have received.
    John Fisher, as Associate Judge for the D.C. Court of 
Appeals, our highest appellate court in the District of 
Columbia, who now serves as the Chief of the Appellate Division 
for the United States for the District of Columbia, began his 
career as a law clerk for a Federal judge in the Southern 
District of Ohio. He was an Assistant Attorney General in Ohio 
for the United States for 3 years and then an Assistant 
Attorney General in the District of Columbia for 16 years until 
he became the Chief of our Appellate Division.
    He has received many awards for his professionalism, 
including the Attorney General's John Marshall Award for 
outstanding legal achievement in handling appeals. He has been 
elected to the American Academy of Appellate Lawyers. He is a 
Vietnam veteran, a graduate, magna cum laude, of Harvard 
College and cum laude, Harvard Law School.
    For our Superior Court, Juliet McKenna, who now serves in 
the Family Court as a magistrate. This is a court that this 
Committee was instrumental in forming as a part of our Superior 
Court, one of the great reforms, the first reform of that court 
in its history.
    Ms. McKenna has spent her life in legal services for 
children and for families. She began in a Washington law firm, 
but quickly moved into what has been her life's work. She 
became Director of Lawyers for Children of America, which is a 
nonprofit organization that seeks to provide quality legal 
representation for children in the welfare system. She became 
an Assistant Corporation Counsel in the Abused and Neglected 
Children's Section, and then she has gone to the Family Court 
as a magistrate and now wishes to be a full judge in the 
Superior Court and has committed herself to serving in the 
Family Court Section of that court, where we are especially 
looking for judges who have background and special dedication.
    So it is with great pleasure that I ask you to confirm 
these two exceptionally well-qualified nominees, in my opinion.
    Senator Voinovich. Thank you very much for being with us 
this morning. While you are welcome to stay for the remainder 
of the hearing, I understand you have other commitments. Thank 
you very much.
    I have reviewed the biographical questionnaires and believe 
you are both well qualified for the positions to which you have 
been nominated.
    Senator Akaka, would you like to make an opening statement?
    Senator Akaka. Mr. Chairman, I just want to add my welcome 
to the nominees, and I look forward to their statements this 
morning.
    Senator Voinovich. It is the custom in the Committee, as 
you know, to swear in the witnesses. If you will stand, I will 
administer the oath.
    Do you swear that the testimony you are about to give this 
Committee is the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Mr. Fisher. I do.
    Judge McKenna. I do.
    Senator Voinovich. Judge McKenna, I understand that you 
have some family members here today, as well as supportive 
colleagues. I would welcome you to introduce them to us.
    Judge McKenna. Thank you very much, Senator. I am joined 
today by my parents, Sherri and Jon McKenna, as well as my 
husband and my 6-year-old daughter, Miracle, who is sitting 
immediately behind me.
    I am also honored today that Judge Emmet Sullivan of the 
U.S. District Court for the District of Columbia is here today, 
as well as Judge Eric Washington, Chief Judge of the Court of 
Appeals, and my Chief, Chief Judge Rufus King of the Superior 
Court.
    I also wanted to take this opportunity to recognize several 
colleagues of mine from the Family Court who, as you can 
imagine, have served as sources of inspiration and support for 
me, including Magistrate Judge Pamela Gray, Magistrate Judge 
Karen Howze, and Magistrate Judge Carol Dalton, along with her 
courtroom clerk. I am also fortunate in that my courtroom 
clerk, Cynthia Milner, is here, as well as my former clerk, 
Rhonda Young. Thank you.
    Senator Voinovich. Thank you. It is a pleasure to have 
members of your family and colleagues represented here today.
    Please proceed with your statement.

TESTIMONY OF HON. JULIET J. McKENNA,\1\ TO BE ASSOCIATE JUDGE, 
              DISTRICT OF COLUMBIA SUPERIOR COURT

    Judge McKenna. Thank you. Senator, I am honored to testify 
today before the Committee, and I would like to thank 
Congresswoman Norton for her kind introduction this morning. I 
also would just like to take this opportunity to thank the 
members of the nominations commission for recommending me and 
the President of the United States for nominating me.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge McKenna appears in the Appendix 
on page 33.
      Biographical and professional information appears in the Appendix 
on page 98.
---------------------------------------------------------------------------
    I would, of course, like to express my appreciation to this 
Committee for convening today's hearing and to your dedicated 
and hard-working Committee staff, as well as the staff of the 
White House Counsel's Office, who assisted me throughout this 
process.
    I have been privileged to serve as a magistrate judge 
within the Family Court for the past 3 years, and I have taken 
this responsibility very seriously. I am committed to treating 
all people who come before the court with fairness, patience, 
and respect, and if confirmed, I would be honored to continue 
to serve the citizens of the District of Columbia as an 
Associate Judge.
    I look forward to answering any questions that you or 
Senator Akaka may have for me this morning.
    Senator Voinovich. Thank you very much.
    Mr. Fisher, would you please take the opportunity to 
introduce your family and friends who are here today.
    Mr. Fisher. I would, indeed. Thank you, Mr. Chairman. I 
would first like to introduce my wife, Margaret. Margaret and I 
have been married for 39 years, and I know very well that 
without her constant support and sacrifice, I wouldn't be here 
today. Our son, Clark, who lives and works near San Francisco, 
and our daughter, Mandana, who is a junior at East Carolina 
University.
    I would like to note for the record, Mr. Chairman, that 
Margaret, Mandy, and I were all born in the great State of 
Ohio---- [Laughter.]
    Senator Voinovich. I was familiar with the fact that you 
had worked with a distinguished law firm in the State of Ohio, 
but I wasn't aware that you were both born in the State.
    Mr. Fisher. Clark was not born in Ohio, but that is not his 
fault. [Laughter.]
    He did live with us in Columbus for several years, and he 
is a graduate of Denison University in Granville, Ohio.
    Mr. Chairman, many friends are here. I won't take time to 
introduce them. I very much want to thank each and every one of 
them for being here today.
    There are a few other individuals I would like to take time 
to introduce, if I may. I would like to introduce Ken 
Wainstein, who is the U.S. Attorney for the District of 
Columbia. Mr. Wainstein is a very experienced prosecutor. He is 
a very effective leader of our office, and his nomination to be 
the presidentially appointed U.S. Attorney is now pending 
before the full Senate for possible confirmation.
    I would also like to introduce my friend and special 
advisor, Sam Kleinman. I hope Sam is here today. Sam, thank you 
very much.
    I am also very honored that several judges are here today, 
Chief Judge Eric Washington, who is the new Chief Judge of the 
District of Columbia Court of Appeals. I very much look forward 
to serving under his leadership.
    I would also like to recognize Judge Annice Wagner, who was 
Chief Judge of the Court of Appeals until about a month ago. 
Judge Wagner has been a judge, a trial judge on the Superior 
Court. She has been an associate judge of the Court of Appeals. 
And she has been Chief Judge of the Court of Appeals, and 
through all those assignments, she has been a remarkable leader 
and a true servant of justice. I have been nominated to take 
her seat, Mr. Chairman, but I have no illusions that I can ever 
take her place.
    I also believe that Judge Emmet Sullivan is here. I think I 
saw him earlier. He is a U.S. District Judge for the District 
of Columbia. He formerly served on the District of Columbia 
Court of Appeals, and before that, he served on the Superior 
Court of the District of Columbia. I believe the reason he is 
here today is because he is the current Chair of the D.C. 
Judicial Nomination Commission.
    Senator Voinovich. Would you stand up so we can see you? 
Thank you for being here. One thing that makes our job a little 
easier is the nominations committee vets everyone that we 
receive. I think Senator Akaka will agree with me that we 
really get outstanding nominees who come before us.
    Mr. Fisher.
    Mr. Fisher. And Judge McKenna had also introduced Chief 
Judge Rufus King of the Superior Court of the District of 
Columbia. Thank you for the opportunity to introduce these 
people.
    Senator Voinovich. We would welcome your statement.

TESTIMONY OF JOHN R. FISHER,\1\ TO BE ASSOCIATE JUDGE, DISTRICT 
                  OF COLUMBIA COURT OF APPEALS

    Mr. Fisher. Mr. Chairman and Senator Akaka, it is a great 
honor for me to be here today, and I am very grateful for the 
opportunity. I know how very busy this Committee is at this 
particular time, and I really do appreciate that both of you 
have taken time to consider our nominations.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Fisher appears in the Appendix on 
page 34.
      Biographical and professional information appears in the Appendix 
on page 121.
---------------------------------------------------------------------------
    I want to express my sincere thanks to the staff of your 
Committee. They have been very courteous and they have been 
very helpful. This may be a familiar process to you folks, but 
it is a once-in-a-lifetime experience for me. I very much 
appreciate your courtesy and guidance and especially the 
courtesy of Ms. Jennifer Hemingway.
    As you know, Mr. Chairman, I have devoted most of my 
professional life to public service, and it has been one of the 
greatest opportunities of my career to be able to litigate so 
frequently before the District of Columbia Court of Appeals. I 
really do wish that more people understood how very talented 
and how very dedicated the judges of that court are. Our 
community is very well served by its Court of Appeals, and so 
it is a special honor for me to be nominated to join that 
court.
    Senator Akaka, Senator Voinovich, you both know about my 
background and my experience. I just want to assure you that if 
the Senate chooses to confirm me, I will work as hard as I can 
to justify your confidence in me, and I do welcome your 
questions.
    Senator Voinovich. Thank you. There are three questions 
that we ask all nominees. First, is there anything that you are 
aware of in your background that might present a conflict of 
interest with the duties of the office to which you have been 
nominated? If you will respond yes or no.
    Judge McKenna. No, Mr. Chairman.
    Mr. Fisher. No, Mr. Chairman.
    Senator Voinovich. Do you know of any reason, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated?
    Judge McKenna. No, sir.
    Mr. Fisher. No, Mr. Chairman.
    Senator Voinovich. Do you know of any reason, personal or 
otherwise, that would in any way prevent you from serving the 
full term for the office to which you have been nominated?
    Judge McKenna. No, sir.
    Mr. Fisher. I have an explanation, Mr. Chairman. I intend 
to serve as long as they will let me. I have been nominated to 
a 15-year term. I celebrated my 59th birthday late last month, 
and I would be required to retire at the age of 74, so I would 
fall a couple months short of the full 15-year term.
    Senator Voinovich. Thank you. Senator Akaka, would you like 
to start the questions?
    Senator Akaka. Yes. Thank you very much, Mr. Chairman. As 
you pointed out, we have individuals who are well qualified for 
the positions to which they have been nominated. I want to 
congratulate you both and also add my welcome to your families 
and friends who are here today to join you at this hearing.
    I would like to ask each of you what you believe are the 
biggest challenges facing the D.C. Court of Appeals and the 
D.C. Superior Court and what role each of you believe you could 
play in addressing these challenges. Mr. Fisher, let us start 
with you.
    Mr. Fisher. Thank you, Senator. Let me begin by saying that 
both courts, the Superior Court and the District of Columbia 
Court of Appeals, are very good courts. This community is very 
lucky to have such well run courts and talented judges serving 
there.
    A constant problem for both courts is the volume of 
litigation with which they have to contend. Because of my 
experience practicing so frequently before the courts, I hope 
to be able to hit the ground running. I think as a baby judge, 
I will not be able to make any significant changes in the 
beginning, but I do think being fair-minded and hard-working is 
the best contribution I can make to trying to address fairly 
and as expeditiously as possible the cases that come before us.
    Senator Akaka. Thank you. Ms. McKenna.
    Judge McKenna. Thank you, Senator Akaka. I would just like 
to first echo some of the comments of Congresswoman Norton and 
just recognize the hard work of this Committee with respect to 
the Family Court, which has relieved so much of the stress and 
the burden under which the Family Court used to operate. Now, I 
am very much pleased to have served on that court as a 
magistrate judge. I believe that the children and the families 
of the District of Columbia are much better served, in large 
part due to the additional resources that this Committee 
dedicated to the court.
    However, I think one of the challenges that the court as a 
whole continues to face, and the District of Columbia as a 
community, is the pervasive problem of substance abuse 
addiction, and I think we see the impacts of that in every 
division of the court, whether that be family, criminal, or 
civil in the landlord-tenant arena. Certainly, substance 
addiction is something that plagues many members of the D.C. 
community and can unfortunately lead to increased violence, 
increased poverty, and mental health issues, which too often 
then bring people before the court.
    I would hope that if I am confirmed and have the honor of 
sitting as an associate judge, I would be able to continue much 
of the work that has already begun through the community courts 
in the Criminal Division and the Family Treatment Court that is 
a part of the Family Court to try to collaborate with service 
providers in the community to be sure that those needs of those 
litigants are met in order to hopefully reduce recidivism and 
reunite children with their families as quickly as possible.
    Senator Akaka. Thank you. I am interested in knowing, and 
this question is to both of you again, what challenges you will 
face in transitioning from your current positions to your 
respective positions on the D.C. Court, and how you will 
address these challenges? Let me switch and ask Ms. McKenna 
first.
    Judge McKenna. Thank you, Senator. As you know from my 
background, I am currently serving as a magistrate judge on the 
court and have been honored to be in that position for the last 
3\1/2\ years. I would welcome the opportunity to preside over a 
greater variety of cases if I am confirmed as an associate 
judge, but I have no illusions. I know that my workload will 
only increase if I am fortunate enough to be confirmed as an 
associate judge. But I feel that the last 3\1/2\ years have 
prepared me well for that challenge, and I certainly look 
forward to hopefully assuming greater responsibility and being 
able to perform greater service on behalf of the court and the 
people of the District of Columbia.
    Senator Akaka. Mr. Fisher.
    Mr. Fisher. Senator, as you know, for most of my career, I 
have been a prosecutor, an advocate, and although I am very 
familiar with appellate litigation, I hope to soon assume a new 
role, and it would not be a role as an advocate but a role as a 
fair and impartial judge.
    I believe I can make that transition. I certainly am 
determined to be fair and impartial if I am allowed to sit upon 
the bench. I think I have earned a reputation as being a fair-
minded person, and so I look forward to making that transition 
in my role from being an advocate to being a judge.
    I think there is also a substantial management component to 
being a good and efficient judge. One of the things I will have 
to learn how to do is how to staff and manage a chambers. As 
Chief of the Appellate Division for the last 16 years, I have 
essentially been the manager of a small law firm. We have about 
35 lawyers and about 10 support people in our Appellate 
Division, and I am hopeful that experience will help me be able 
to manage a chambers efficiently. I have always tried very hard 
to be a very collegial person, a very friendly person. The 
court to which I have been nominated is known for its 
collegiality, and I really do look forward to the opportunity 
to work with the judges there.
    Senator Akaka. I thank you both very much for your 
excellent responses.
    Mr. Chairman, I just want to tell you that I would join you 
in expediting their confirmation. Thank you.
    Senator Voinovich. Thank you.
    Judge McKenna, if you are confirmed for this judgeship, you 
will preside over civil, criminal, and family cases. I have 
looked at your background and noticed your strong background in 
family law, which will be a vital asset to the family courts. 
What I didn't see was a strong background in criminal law. How 
are you going to deal with some of these areas that maybe you 
are not as familiar with as you would like to be? Are you going 
to go to school? Do you see this as a problem?
    Judge McKenna. I appreciate the question. I feel very 
fortunate in that the Superior Court has, over the course of 
the time that I have been there, a long history of providing 
extensive training opportunities for judicial officers as they 
embark upon new assignments.
    As you know in your role of the Chairman, the Superior 
Court is a very diverse bench with people with very diverse 
backgrounds, including family, civil, and criminal backgrounds, 
who are called upon at one time or another to serve in 
divisions with which they may have had little previous 
familiarity.
    I feel that I am fortunate in having an extensive 
litigation background prior to coming to the court during the 
time that I served as a civil prosecutor for the Office of 
Corporation Counsel, and since being on the bench, while the 
substance of the cases I have handled have focused on family, I 
certainly have had the opportunity to preside over numerous 
evidentiary hearings and believe that I have learned skills in 
that capacity that will translate to any division of the court.
    But while I won't have the luxury of going back to school, 
I certainly would avail myself of any and all training 
opportunities that could be made available in the civil or the 
criminal arena if the needs of the court would best be served 
by having me serve in one of those divisions.
    Senator Voinovich. The Chief Judge will decide what kind of 
cases you will be assigned to? You could end up handling a lot 
of the same cases?
    Judge McKenna. That is correct. Those decisions are made by 
the Chief Judge of the court, who I believe weighs the 
preferences that are expressed by the judges, assesses the 
backgrounds of the various judges, and then makes a 
determination about how the needs of the court would best be 
served, and I do feel that I am certainly prepared and able to 
serve in any division of the court as is needed by the Chief.
    Senator Voinovich. I have no further questions, Senator 
Akaka. If there are any other additional questions, they will 
be submitted to you within 48 hours, and if you don't hear from 
anybody, it is fine. [Laughter.]
    I would like to give a special note to your respective 
families for the sacrifice that they have made so that you can 
serve in the positions that you have held. So often, our 
families don't get the credit they deserve for their 
sacrifices. I am sure they are going to continue to make 
sacrifices so you can continue the job that you have to do. I 
know in my case, I have burned the midnight oil many times. My 
grandchildren complain about me taking home the weekly reports 
and reviewing them. So, I want to say thank you to your 
families for the sacrifice they have made over the years and 
for the one they will continue to make.
    I know you are both anxious to be confirmed. The next step 
in the process will be consideration of your nomination at a 
Committee business meeting, and reporting your nomination to 
the Senate for final action.
    Thank you for being here today. The hearing is adjourned.
    [Whereupon, at 11:45 a.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              

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                  PREPARED STATEMENT OF JOHN R. FISHER
    THANK YOU, MR. CHAIRMAN.

    IT IS A GREAT HONOR FOR ME TO BE HERE THIS MORNING, AND I AM 
GRATEFUL FOR THE OPPORTUNITY. I KNOW HOW BUSY THE COMMITTEE IS AT THIS 
TIME, AND I THANK YOU AND SENATOR AKAKA FOR TAKING TIME TO CONSIDER MY 
NOMINATION.

    I AM HUMBLED AND VERY GRATEFUL THAT PRESIDENT BUSH HAS NOMINATED ME 
TO BE AN ASSOCIATE JUDGE OF THE DISTRICT OF COLUMBIA COURT OF APPEALS.

    I WANT TO RECOGNIZE AND THANK NEOMI RAO, ASSOCIATE COUNSEL TO THE 
PRESIDENT, WHO IS HERE THIS MORNING.

    I ALSO WANT TO EXPRESS MY SINCERE THANKS TO THE STAFF OF THIS 
COMMITTEE, AND ESPECIALLY MS. JENNIFER HEMINGWAY, FOR THEIR COURTESY 
AND GUIDANCE. THIS MAY BE A FAMILIAR PROCESS TO YOU FOLKS, BUT IT IS A 
ONCE-IN-A-LIFETIME EXPERIENCE FOR ME, AND IT HAS BEEN VERY COMFORTING 
TO HAVE THEIR GUIDANCE.

    AS YOU KNOW, MR. CHAIRMAN, I HAVE DEVOTED MOST OF MY PROFESSIONAL 
LIFE TO PUBLIC SERVICE. ONE OF THE GREAT PRIVILEGES OF MY CAREER HAS 
BEEN THE OPPORTUNITY TO LITIGATE SO OFTEN IN THE DISTRICT OF COLUMBIA 
COURT OF APPEALS.

    I WISH MORE PEOPLE UNDERSTOOD HOW TALENTED AND DEDICATED THE JUDGES 
OF THAT COURT ARE. THIS COMMUNITY IS VERY WELL SERVED BY ITS COURT OF 
APPEALS, AND IT IS A SPECIAL HONOR FOR ME TO BE NOMINATED TO JOIN THAT 
COURT.

    MR. CHAIRMAN, YOU KNOW ABOUT MY BACKGROUND AND EXPERIENCE.

    I ASSURE THIS COMMITTEE THAT, IF YOU CHOOSE TO CONFIRM MY 
NOMINATION, I WILL WORK VERY HARD TO JUSTIFY YOUR CONFIDENCE IN ME.

    I WELCOME YOUR QUESTIONS.

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