[Senate Hearing 109-397]
[From the U.S. Government Publishing Office]




                                                 S. Hrg. 109-397, Pt. 4

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

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               APRIL 25, MAY 2, MAY 24, AND JUNE 15, 2006

                               ----------                              

                                 PART 4

                               ----------                              

                           Serial No. J-109-4

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         Printed for the use of the Committee on the Judiciary

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS


30-256 PDF

2006

                                                 S. Hrg. 109-397, Pt. 4
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

               APRIL 25, MAY 2, MAY 24, AND JUNE 15, 2006

                               __________

                                 PART 4

                               __________

                           Serial No. J-109-4

                               __________

         Printed for the use of the Committee on the Judiciary

      
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            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
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S

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                        TUESDAY, APRIL 25, 2006

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1

                               PRESENTERS

Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Milan D. Smith, Jr., Nominee to be Circuit Judge for 
  the Ninth Circuit..............................................     2
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Milan D. Smith, Jr., Nominee to be 
  Circuit Judge for the Ninth Circuit............................     3
Lautenberg, Hon. Frank, a U.S. Senator from the State of New 
  Jersey presenting Renee Marie Bumb, Nominee to be District 
  Judge for the District of New Jersey, Noel Lawrence Hillman, 
  Nominee to be District Judge for the District of New Jersey, 
  Peter G. Sheridan, Nominee to be District Judge for the 
  District of New Jersey, and Susan Davis Wigenton, Nominee to be 
  District Judge for the District of New Jersey..................     5
Menendez, Hon. Robert, a U.S. Senator from the State of New 
  Jersey presenting Renee Marie Bumb, Nominee to be District 
  Judge for the District of New Jersey, Noel Lawrence Hillman, 
  Nominee to be District Judge for the District of New Jersey, 
  Peter G. Sheridan, Nominee to be District Judge for the 
  District of New Jersey, and Susan Davis Wigenton, Nominee to be 
  District Judge for the District of New Jersey..................     6
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon 
  presenting Milan D. Smith, Jr., Nominee to be Circuit Judge for 
  the Ninth Circuit..............................................     4

                       STATEMENTS OF THE NOMINEES

Bumb, Renee Marie, Nominee to be District Judge for the District 
  of New Jersey..................................................    51
    Questionnaire................................................    52
Hillman, Noel Lawrence, Nominee to be District Judge for the 
  District of New Jersey.........................................    78
    Questionnaire................................................    79
Sheridan, Peter G., Nominee to be District Judge for the District 
  of New Jersey..................................................   106
    Questionnaire................................................   107
Smith, Milan D., Jr., Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................     8
    Questionnaire................................................    11
Wigenton, Susan Davis, Nominee to be District Judge for the 
  District of New Jersey.........................................   138
    Questionnaire................................................   139
                              ----------                              

                          TUESDAY, MAY 2, 2006
                    STATEMENTS OF COMMITTEE MEMBERS

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....   161
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................   325

                               PRESENTERS

Camp, Hon. Dave, a Representative in Congress from the State of 
  Michigan presenting Sean F. Cox, Nominee to be District Judge 
  for the Eastern District of Michigan, and Thomas L. Ludington, 
  Nominee to be District Judge for the Eastern District of 
  Michigan.......................................................   165
Levin, Hon. Carl, a U.S. Senator from the State of Michigan 
  presenting Sean F. Cox, Nominee to be District Judge for the 
  Eastern District of Michigan, and Thomas L. Ludington, Nominee 
  to be District Judge for the Eastern District of Michigan......   162
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the 
  District of Columbia presenting Kenneth L. Wainstein, of 
  Virginia, Nominee to be Assistant Attorney General, National 
  Security Division, Department of Justice.......................   164
Stabenow, Hon. Debbie A., a U.S. Senator from the State of 
  Michigan presenting Sean F. Cox, Nominee to be District Judge 
  for the Eastern District of Michigan, and Thomas L. Ludington, 
  Nominee to be District Judge for the Eastern District of 
  Michigan.......................................................   163

                       STATEMENTS OF THE NOMINEES

Cox, Sean F., of Michigan, Nominee to be District Judge for the 
  Eastern District of Michigan...................................   203
    Questionnaire................................................   204
Ikuta, Sandra Segal, of California, Nominee to be Circuit Judge 
  for the Ninth Circuit..........................................   166
    Questionnaire................................................   167
Ludington, Thomas L., of Michigan, Nominee to be District Judge 
  for the Easter District of Michigan............................   228
    Questionnaire................................................   229
Wainstein, Kenneth L., of Virginia, Nominee to be Assistant 
  Attorney General, National Security Division, Department of 
  Justice........................................................   257
    Questionnaire................................................   258

                         QUESTIONS AND ANSWERS

Responses of Sandra Ikuta to questions submitted by Senator Boxer   330
Responses of Kenneth Wainstein to questions submitted by Senator 
  Leahy..........................................................   336

                       SUBMISSIONS FOR THE RECORD

Allen, Hon. George, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   342
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   344
                              ----------                              

                        WEDNESDAY, MAY 24, 2006

                     STATEMENT OF COMMITTEE MEMBER

Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................   347

                               PRESENTERS

Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina, presenting Frank D. Whitney, Nominee to be District 
  Judge for the Western District of North Carolina...............   349
Dole, Hon. Elizabeth, a U.S. Senator from the State of North 
  Carolina, presenting Frank D. Whitney, Nominee to be District 
  Judge for the Western District of North Carolina...............   347

                       STATEMENTS OF THE NOMINEES

Guilford, Andrew J., of California, Nominee to be District Judge 
  for the Central District of California.........................   350
    Questionnaire................................................   352
Whitney, Frank D., of North Carolina, Nominee to be District 
  Judge for the Western District of North Carolina...............   377
    Questionnaire................................................   378
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                        THURSDAY, JUNE 15, 2006

                    STATEMENTS OF COMMITTEE MEMBERS

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......   409
Leahy, Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   574

                               PRESENTERS

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi 
  presenting Daniel P. Jordan, III, Nominee to be District Judge 
  for the Southern District of Mississippi.......................   414
Fortuno, Hon. Luis G., the Resident Commissioner in Congress from 
  the Commonwealth of Puerto Rico presenting Gustavo A. Gelpi, 
  Nominee to be District Judge for the District of Puerto Rico...   412
Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma 
  presenting Jerome A. Holmes, Nominee to be CIrcuit Judge for 
  the Tenth Circuit..............................................   411
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi 
  presenting Daniel P. Jordan III, Nominee to be District Judge 
  for the Southern District of Mississippi.......................   410

                       STATEMENTS OF THE NOMINEES

Holmes, Jerome, A., of Oklahoma, Nominee to be Circuit Judge for 
  the Tenth Circuit..............................................   417
    Questionnaire................................................   418
Jordan, Daniel P., III, of Mississippi, Nominee to be District 
  Judge for the Southern District of Mississippi.................   466
    Questionnaire................................................   467
Gelpi, Gustavo A., of Puerto Rico, Nominee to be District Judge 
  for the District of Puerto Rico................................   507
    Questionnaire................................................   508

                         QUESTIONS AND ANSWERS

Responses of Jerome Holmes to questions submitted by Senators 
  Leahy, Kennedy, Feingold, and Durbin...........................   546

                       SUBMISSIONS FOR THE RECORD

Binder, Steven, Deputy Public Defender, County of San Diego, San 
  Diego, California, letter......................................   566
Crantfield, Rev. Glenn, President and Chief Executive Officer, 
  City Rescue Mission, Oklahoma City, Oklahoma, letter...........   567
Hoch, William H., Crowe & Dunlevy, Oklahoma City, Oklahoma, 
  letter.........................................................   568
Holloway, William J., Jr., Judge, Tenth Circuit, U.S. Court of 
  Appeals, Oklahoma City, Oklahoma, letter.......................   569
Holmes, Jerome, A., of Oklahoma, Nominee to be Circuit Judge for 
  the Tenth Circuit, letter......................................   570
Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma, 
  statement and attachment.......................................   571
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, 
  statement......................................................   575
McCampbell, Robert G., Crowe & Dunlevy, Oklahoma City, Oklahoma, 
  letter.........................................................   578
Murphy, Brooke S., Crowe & Dunlevy, Oklahoma City, Oklahoma, 
  letter.........................................................   580
                              ----------                              

                     ALPHABETICAL LIST OF NOMINEES

Bumb, Renee Marie, Nominee to be District Judge for the District 
  of New Jersey..................................................    51
Cox, Sean F., of Michigan to be District Judge for the Eastern 
  District of Michigan...........................................   203
Gelpi, Gustavo A., of Puerto Rico, to be District Judge for the 
  District of Puerto Rico........................................   507
Guilford, Andrew J., of California, to be District Judge for the 
  Central District of California.................................   350
Hillman, Noel Lawrence, Nominee to be District Judge for the 
  District of New Jersey.........................................    78
Holmes, Jerome, A., of Oklahoma, to be Circuit Judge for the 
  Tenth Circuit..................................................   417
Ikuta, Sandra Segal, of California, to be Circuit Judge for the 
  Ninth Circuit..................................................   166
Jordan, Daniel P., III, of Mississippi, to be District Judge for 
  the Southern District of Mississippi...........................   466
Ludington, Thomas L., of Michigan to be District Judge for the 
  Easter District of Michigan....................................   228
Sheridan, Peter G., Nominee to be District Judge for the District 
  of New Jersey..................................................   106
Smith, Milan D., Jr., Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................     8
Wainstein, Kenneth L., of Virginia, to be Assistant Attorney 
  General, National Security Division, U.S. Department of Justice   257
Whitney, Frank D., of North Carolina, to be District Judge for 
  the Western District of North Carolina.........................   377
Wigenton, Susan Davis, Nominee to be District Judge for the 
  District of New Jersey.........................................   138


NOMINATIONS OF MILAN D. SMITH, JR., OF CALIFORNIA, TO BE CIRCUIT JUDGE 
FOR THE NINTH CIRCUIT; RENEE MARIE BUMB, OF NEW JERSEY, TO BE DISTRICT 
  JUDGE FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, OF NEW 
 JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G. 
 SHERIDAN, OF NEW JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW 
 JERSEY; AND SUSAN DAVIS WIGENTON, OF NEW JERSEY, TO BE DISTRICT JUDGE 
                     FOR THE DISTRICT OF NEW JERSEY

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                        TUESDAY, APRIL 25, 2006

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:17 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, presiding.
    Present: Senators Hatch and Feinstein.

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

    Senator Hatch. I am going to get started. Senator Feinstein 
is coming, and we will interrupt whatever we are doing, 
including Senators at the table, when Senator Feinstein gets 
here because she can only be here for a short while and then 
has to leave. But why don't we start with you, Senator Smith, 
and then we will start with you, Senator Boxer.
    Senator Smith. If I may, may I have Senator Boxer go first?
    Senator Hatch. That would be great.
    Senator Smith. She is the Senator of the State.
    Senator Hatch. Oh, that is right. Excuse me. She is from 
the State of California. Sorry, Senator Boxer. We are happy to 
have you.
    Senator Boxer. It is only 37 million people.
    [Laughter.]
    Senator Hatch. That high now?
    Senator Boxer. Honestly.
    Senator Hatch. Another 3 million illegal aliens.
    Senator Boxer. No, no, no.
    [Laughter.]
    Senator Hatch. Senator Boxer, we are honored to have you 
here.

  PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT 
  JUDGE FOR THE NINTH CIRCUIT, BY HON. BARBARA BOXER, A U.S. 
              SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Mr. Chairman, I am speechless. Anyway, this 
is a wonderful day, and I so thank you for allowing me to be 
here on behalf of Milan Smith, and I am thrilled to be here. 
You know, blood is thicker than water, but I almost feel like 
part of the family in this sense: that I have wanted this for a 
long time. I think this nomination is going to be great for 
this country. And so I am here to offer my strong support for 
Milan Smith. He is very well regarded by those who know him and 
work with him, and I am supremely confident that should he be 
confirmed, he will discharge his responsibilities with dignity, 
with integrity, and with intelligence.
    We have had so many tough arguments over judges, and here 
is one where I hope we are not going to have one at all, 
because I think that this particular candidate just meets every 
standard that one could want, whether one is a Republican or a 
Democrat.
    Mr. Smith received his B.A. cum laude from Brigham Young 
University in 1966, his J.D. from the University of Chicago Law 
School in 1969, and from there he moved to California to embark 
on a very impressive legal career. He joined the prestigious 
firm of O'Melveny & Myers upon his graduation, and he later 
started his own firm, where he is the managing partner.
    Mr. Smith's career, however, has not been limited to 
private practice. He has dedicated his time and his expertise 
to public service as well.
    Mr. Chairman, in 1984, Governor Deukmejian appointed Mr. 
Smith to the Governing Board of the Los Angeles State Building 
Authority, where he served as president until 1992. Since then, 
he has asked at the Authority's general counsel.
    In 1987, Mr. Smith also was appointed as a member of 
California's Fair Employment and Housing Commission, where he 
served for 3 years. Throughout his work for the citizens of 
California, Mr. Smith has demonstrated compassion, courage, and 
understanding of the hardships faced by average citizens. He 
has shown a willingness to examine all sides of an issue and to 
develop thoughtful and balanced solutions to problems.
    Mr. Chairman, he has fought for those who have been 
discriminated against, and he has added his strong voice to 
them, and he has shown courage. And I now know why he is such a 
strong supporter of equal rights for women, because I have met 
many of the women in his family, whom you will, I am sure, meet 
when, I am sure, Gordon will introduce them.
    So, in summary, through his public and his private work, 
Mr. Smith has earned the admiration of his colleagues, and 
today Mr. Smith has come to Washington.
    [Laughter.]
    Senator Boxer. And I hope when he leaves Washington, the 
chances that he will become--that he will be elevated to this 
unbelievable position as a Ninth Circuit judge will be pretty 
much a slam-dunk, I hope. He is an individual of great 
character, an independent thinker. I have profound respect for 
him, and it is a very happy day for me. And I would love to 
stay here if I might to hear my colleague's comments and also 
that of Senator Feinstein's, if I might stay for those.
    Senator Hatch. Well, thank you. We are honored to have you 
here, Senator Boxer, and we appreciate the kind remarks that 
you have given on behalf of Mr. Smith.
    Senator Feinstein, we will turn to you.

  PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE NINTH CIRCUIT, BY HON. DIANNE FEINSTEIN, A U.S. 
              SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Well, thank you very much, Mr. Chairman. 
I am sure I could probably just do this by saying ``Ditto'' 
after what my friend and colleague said.
    [Laughter.]
    Senator Feinstein. But I would like to also put in my 2 
cents' worth, and it is a great pleasure to join with Senator 
Boxer in introducing Milan D. Smith, Jr., who is nominated for 
the Ninth Circuit Court of Appeals.
    Milan Smith has had a long and distinguished legal career 
in California. After graduating for the university of Chicago 
Law School in 1969, he moved to Los Angeles, and he has been an 
important part of the legal community there ever since.
    In 1972, he founded the law firm now known as Smith, Crane, 
Robinson & Parker, and so for the last 34 years, he has been 
associated with that law firm and engaged in a wide-ranging 
legal practice in business and real estate law.
    As an attorney, he has, I think, demonstrated a commitment 
to serving the public, from presiding over the Governing Board 
of the Los Angeles State Building Authority, to acting as Vice 
Chairman of Ettie Lee Homes for Youth. After reviewing his 
record, a majority of the ABA rated him well qualified, and as 
is obvious, he is the brother of our colleague, Oregon Senator 
Gordon Smith, who is sitting at the table. What some of you may 
not know, unless Senator Boxer mentioned it, his maternal 
grandfather, Jesse Udall, was the Chief Justice of the Arizona 
Supreme Court, so there is real precedent for familial service 
on our Nation's highest courts.
    I am very pleased to join with my colleague in supporting 
his nomination, and I urge a speedy confirmation.
    Senator Hatch. Well, thank you, Senator Feinstein. We 
appreciate you being here, and we appreciate your kind remarks.
    Senator Smith, we will turn to you, and then we are going 
to go to Senator Menendez.

  PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT 
   JUDGE FOR THE NINTH CIRCUIT, BY HON. GORDON SMITH, A U.S. 
                SENATOR FROM THE STATE OF OREGON

    Senator Smith. Thank you, Mr. Chairman. May I express to my 
colleagues from California how much their presence here means 
to me and their kind words about my big brother; also to you, 
Mr. Chairman, for your chairing this hearing, by your request; 
and also may I thank President Bush for his confidence in Milan 
and for moving this nomination.
    As you might imagine, having one's brother nominated to 
this high court, which has jurisdiction over the State of 
Oregon, is a very moving thing for me personally. I am deeply 
honored that my kinsman will be a Federal judge. As you can 
also imagine, my feelings are a little tender right now, so I 
have written out what I want to say.
    Because my emotions are somewhat close to the surface this 
morning, as I drove to work, when I got there, I turned to a 
book that I often turn to, to find wisdom. There I found in the 
Book of Kings a statement that I think is appropriate for this 
occasion: ``And God gave Solomon wisdom and understanding 
exceeding much, and largeness of heart, even as the sand that 
is on the sea shore. And Solomon's wisdom excelled the wisdom 
of all the children and of all the wisdom of Egypt. For he was 
wiser than all men, and his fame was in all nations round 
about.''
    Mr. Chairman, without equating Milan to Solomon, I can, 
without equivocation, speak to his many Solomon-like qualities. 
Milan, Jr., is the eldest of Milan and Jessica Udall Smith's 
ten children. I am the eighth in that number and Milan's 
youngest brother.
    In my 54 years of life, Milan has been an example and force 
for good in our family and, since the death of our parents, has 
been truly a family leader and friend to us all, through times 
of tears and times of cheers.
    For as far back as my memory serves, I have been witness to 
a concourse of people who have sought him out for wisdom and 
judgment, for counsel and comfort, on matters great and small. 
These have included my parents, myself, and all of my brothers 
and sisters, cousins and kinsmen from far and wide, his own six 
children, and, of course, his legions of legal clients over 
many decades.
    Without respect of persons, he has been a wise friend and a 
good shepherd to all. His academic preparations and provident 
life speak for themselves. But, in sum, what I can say is that 
he is one of the wisest men I have ever known. He has an 
understanding heart, a heart for judgment. He is possessed of 
the spirit of discernment between good and bad, right and 
wrong, the just and the unjust.
    I cannot think of a time or a court when a man of his 
quality and preparation are more sorely in need than this one 
and in our time. While I doubt that Milan's fame as a judge 
will spread Solomon-like throughout the world, I do predict 
that those who come before his court will find his judgments 
will mean the world to them.
    His judgments do mean the world to me.
    So, my Senate colleagues, I commend to you a man who has 
dusted me off many times, as a boy and as a man when I have 
fallen, and showed me the way to better paths, to life's sunny 
uplands--my brother, Milan Dale Smith, Jr. I urge his 
confirmation to the Ninth Circuit Court of Appeals.
    I thank you, Mr. Chairman.
    Senator Hatch. Well, thank you, Senator Smith. I have sat 
through literally about a thousand of these, and I have to say 
I have never heard a more eloquent presentation. However, I 
chalk it up to the fact that he is your brother.
    [Laughter.]
    Senator Hatch. Actually, it was really great, I think. Of 
course, I have known Milan for a while, too, and I have a very 
high opinion of him and of his legal abilities. So we are 
really happy you Senators could be with us. And, Senator 
Feinstein, we are glad you could be here as well.
    We are going to turn--I am sorry, Senator Menendez. I have 
to go to Senator Lautenberg first, and then I will come to you.

PRESENTATION OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, NOMINEE 
 TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G. 
SHERIDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW 
JERSEY; AND SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE DISTRICT OF NEW JERSEY, BY HON. FRANK LAUTENBERG, A 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Thanks, Mr. Chairman. Sorry I am 
rushing in kind of last minute here, but I was stuck on a train 
in here and it took just a minute more than we would like, so 
my apologies, because I am so fortunate, Senator Menendez and I 
have four wonderful candidates to present to you, Mr. Chairman, 
and to the Judiciary Committee. They are Renee Bumb, Susan 
Wigenton, Noel Hillman, and Peter Sheridan. They have all been 
nominated to serve as district court judges in New Jersey.
    Now, I know each of them has family members here today, and 
I am sure that they will want to take the opportunity to make 
introductions of them.
    Mr. Chairman, people often look at New Jersey on the map 
and think that they are looking at a small State, but they are 
wrong. While we are relatively small geographically, we have 
the tenth largest population in the country. And despite our 
large population, the entire State shares one Federal judicial 
district, and it has been at times difficult to make sure all 
of the regions of the State feel properly resented--
represented--I am sorry, they are resented--represented in the 
Federal district of New Jersey.
    [Laughter.]
    Senator Lautenberg. They call that Freudian, I guess, Mr. 
Chairman.
    Senator Hatch. Really. Go ahead.
    Senator Lautenberg. What is great about the group of 
nominees before us today is that they come from different 
regions of our State and add to the diversity of the Federal 
bench.
    Renee Bumb, right behind me on the left, is currently the 
attorney in charge of the Camden U.S. Attorney's Office. She 
has a reputation as an excellent prosecutor. She has handled 
cases ranging from drug trafficking to white-collar crime, and 
since 2000, Ms. Bumb has supervised all of the attorneys in her 
office while continuing to try cases herself, specifically 
those dealing with public corruption.
    Now, Judge Susan Wigenton has been a full-time Federal 
magistrate judge in Newark since 2000. Before that, she served 
as a part-time Federal magistrate and worked as a solo 
practitioner focusing on civil rights cases. Judge Wigenton 
also worked in a law firm and served as a public defender in 
Asbury Park, New Jersey. She has been a first-rate magistrate 
judge, and I am confident that Judge Wigenton will make an 
excellent district court judge.
    Peter Sheridan has spent the last decade as a named partner 
at Graham, Curtin & Sheridan in Trenton. Prior to that he has 
worked in private practice at other law firms and has a strong 
record of public service. He served as Director of the 
Authorities Unit for the State of New Jersey, Vice President 
and General Counsel of the Atlantic City Casino Association, 
and an attorney with the Port Authority of New York and New 
Jersey.
    Now, Mr. Noel Hillman served as the Chief of the Public 
Integrity Section at the Department of Justice, leading a team 
of 30 attorneys who investigate and prosecute public corruption 
cases nationwide. Now, Mr. Hillman has a reputation for taking 
on crimes that undermine public confidence in our political 
system no matter how political or controversial. Before he went 
to the Justice Department, Mr. Hillman served as Deputy Chief 
of the Criminal Division of the U.S. Attorney's Office in New 
Jersey.
    And so, Mr. Chairman, we have four excellent nominees who 
will represent New Jersey and the country well, and I am proud 
not only to introduce them to the Committee, but to 
enthusiastically endorse their confirmation, and I hope that 
the Judiciary Committee will do the same.
    Thank you very much.
    Senator Hatch. Thank you very much, Senator. That is high 
praise for these nominees.
    Senator Menendez, we are happy to welcome you to the 
Committee and look forward to hearing for you.

PRESENTATION OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, NOMINEE 
 TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G. 
SHERIDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW 
JERSEY; AND SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF NEW JERSEY, BY HON. ROBERT MENENDEZ, A U.S. 
              SENATOR FROM THE STATE OF NEW JERSEY

    Senator Menendez. Thank you, Mr. Chairman. I am very 
pleased to be once again before the Committee to testify along 
with my distinguished senior colleague, Senator Lautenberg, and 
the privilege of introducing to the Committee four more 
distinguished New Jerseyans that have been nominated by the 
administration to serve on the Nation's judiciary system.
    I do not have the great privilege that Senator Smith had in 
terms of a family member who is so distinguished, but I do have 
the enthusiasm that he expressed for his brother for these four 
nominees that are before the Committee. We had the privilege 
about a month ago of introducing Michael Chagares to the 
Committee as a circuit judge for the Third Circuit, which he 
received a very substantial and unanimous vote in the Senate. 
And today these nominees for the district court I think are 
also exceptional individuals.
    The confirmation of a judge to a lifetime appointment is a 
vital responsibility given to this body by the Constitution and 
one that I know I and certainly the members of this Committee 
take quite seriously. So I appreciate the chance to also join 
in in presenting to the Committee Renee Bumb, Noel Hillman, 
Peter Sheridan, and Susan Wigenton.
    It is gratifying to see, as I sat in the back for a few 
minutes, so many of the family members who are here today for 
this important day in each of their loved ones' lives, and it 
would be too many to recognize. I am sure they will at some 
point as they each come forth.
    It is an honor that we take pride in that has been bestowed 
on each of these fellow New Jerseyans, so let me very briefly 
say a few words about each of these nominees.
    Ms. Bumb graduated from Ohio State University and the 
Rutgers School of Law, both with honors. She began her career 
in private practice and has spent the past 15 years working in 
the U.S. Attorney's Office for the District of New Jersey. She 
is a two-time recipient of the Director's Award, the highest 
award given to an Assistant U.S. Attorney, and for the last 6 
years, she has served as the Attorney in Charge of the Camden 
Office.
    Mr. Hillman is a graduate of Monmouth College, Seton Hall 
University School of Law, the New York University School of 
Law, and he also has started his career in private practice 
before spending the last 15 years at the Department of Justice. 
He has received the Executive Office of the U.S. Attorneys 
Director's Award twice and in 2004 received the Attorney 
General's Award for Fraud Prevention, and he currently serves 
as the senior counsel to the Assistant AG of the Criminal 
Division where, until recently, he was the Chief of the Public 
Integrity Section, and he did so with great distinction.
    Mr. Sheridan graduated from my alma mater, St. Peter's 
College, then Seton Hall School of Law, and unlike Ms. Bumb and 
Mr. Hillman, he began his career in public service by working 
at the Office of the New Jersey Solicitor for the Port 
Authority of New York and New Jersey, an important regional bi-
State agency, and later served in the administration of former 
Governor Tom Kean. For the past 11 years, he has been a 
shareholder and director of a prestigious firm, Graham, Curtin 
& Sheridan.
    And, finally, Judge Wigenton graduated from Norfolk State 
University and the Marshall White School of Law from the 
College of William & Mary. She started her career in public 
service as a public defender and at the New Jersey Board of 
Examiners. Judge Wigenton then went on to private practice and 
in 1996 was the second of only four African-American women in 
the State of New Jersey to be named as a partner in a major law 
firm. She then went back to public service and has spent over 8 
years as a U.S. magistrate judge for the District of New 
Jersey, and she has performed exceptionally as a magistrate 
judge.
    Mr. Chairman, there is no higher calling than the calling 
of public service. That is why I know that both Senator 
Lautenberg and I are so pleased to see people of this quality 
who are willing to serve our Nation in the administration of 
justice. I am happy to join Senator Lautenberg in commending to 
the Committee each of these nominees and to very strongly be 
supportive of the Committee's endorsement of their nominations.
    Senator Hatch. Well, thank you so much. Because of both 
your recommendations, I am prepared to confirm them right now.
    [Laughter.]
    Senator Hatch. I appreciate you both coming. We really 
appreciate that.
    Mr. Smith, we will take you first, and I have very few 
questions to ask of you, but if you would, do you solemnly 
swear to tell the truth, the whole truth, and nothing but the 
truth, so help you God?
    Mr. Smith. I do.
    Senator Hatch. Thank you. I have known you for a long time, 
and I have known your family for a long time, and, of course, 
Gordon is a partner here in the Senate. I knew your Dad way 
back when, and I just have to say there isn't a better family 
on the face of the Earth, as far as I am concerned, and you 
come not only highly recommended by your brother and others, 
but also I am fully aware of your legal practice, what you have 
done in your practice, and the fact that you have worked with 
some prestigious law firms and basically have built your own 
law firm into something of real value.
    This is one of the most important positions on Earth, the 
Ninth Circuit Court of Appeals, and, frankly, I have no doubt 
in my mind that you can fulfill that position as a judge on 
that circuit. In fact, I am counting on you fulfilling it in 
every way.
    I am just going to ask you one question because I think 
everybody on this Committee is aware of you and your excellent 
reputation, and if they are not, we will make them aware. You 
have distinguished yourself as one of Southern California's 
premier attorneys in the area of complex commercial litigation, 
and obviously you have gained some insight from the 
professional experience that will influence your decisionmaking 
on the Ninth Circuit Court of Appeals.
    Now, how have all these experiences prepared you for 
service on this very prestigious Circuit Court of Appeals?

 STATEMENT OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT JUDGE 
                     FOR THE NINTH CIRCUIT

    Mr. Smith. Thank you for that question, Senator. I think 
that my brother Gordon referred to the Book of Kings and others 
of other faiths would refer to other books. Those who have no 
particular religious faith would refer to other books of 
wisdom. And from the beginning of time, I think people have 
respected experience that is gained from years of dealing with 
people, years of dealing with issues, and wisdom sometimes 
comes with a little bit of gray hair and certainly dealing with 
people and the complex issues that confront human beings.
    I believe that being the father now of seven wonderful 
children, having practiced law for 37 years and dealing with a 
wide variety of issues, will enable me, if confirmed, to bring 
a lot of what I guess my Grandmother Udall would call ``common 
sense'' to the decisions that are brought before me. People all 
have aspirations. Every human being wants what is good for his 
or her children, his or her business, his or her country. And 
if confirmed, it would be my goal, frankly, to do in the Ninth 
Circuit Court of Appeals what I believe my brother has done in 
the Senate, which is to get to know individuals personally, 
become their friend, and whether you always agree with them is 
not necessarily the point but, rather, that you can disagree 
without being disagreeable. And I think that that comity among 
your colleagues can help bring a result that is more fair, more 
balanced, more appreciated by the lower courts, by the public, 
and others who must understand and implement the policies--or 
not policies, but the rulings that the court issues.
    So I would hope that that combined experience could help to 
bring about such a result.
    Senator Hatch. Well, thank you. Why don't you take some 
time to introduce your family and friends to us who are here.
    Mr. Smith. Thank you, Senator. I'd really love to do that. 
Let me start, if I may, by introducing my wonderful, beautiful, 
talented, brilliant wife and law partner, Kathleen Crane, who 
is directly in back of me.
    Senator Hatch. That may be the best description he is ever 
going to give of you. Once he becomes a judge, they become very 
arrogant.
    [Laughter.]
    Senator Hatch. It is an honor to have you here.
    Mr. Smith. Then I will just start in order of birth: my 
daughter Tiffany of Utah--Sandy, Utah.
    Senator Hatch. She is in law school now herself, isn't she? 
And you are the mother of how many?
    Ms. Smith. Three.
    Senator Hatch. Three. And you are what year of law school?
    Ms. Smith. I am 2L, just finishing. In the middle of 
finals.
    [Laughter.]
    Senator Hatch. You shouldn't have come.
    Ms. Smith. This is more important. I will learn criminal 
procedure tomorrow.
    Mr. Smith. My daughter Courtney Smith, who is from New York 
City, is directly in back.
    Senator Hatch. Good to have you here, Courtney.
    Mr. Smith. My daughter Amanda, who is from Beverly Hills, 
California, who is a new mother, about a year ago.
    Senator Hatch. That is great.
    Mr. Smith. My daughter Elizabeth, who is from Brentwood, 
California.
    Senator Hatch. Elizabeth.
    Mr. Smith. My daughter Brittany Brown, who is presently 
from Boston College, in the city of Boston right now. And if it 
is all right, we have a number of friends who have traveled as 
well. May I introduced them, Mr. Chairman?
    Senator Hatch. Sure. We would love to have you do that.
    Mr. Smith. Please. Our friends Earl and Melanie Boyd, who 
are directly back of us there.
    Senator Hatch. Welcome. We are happy to have you here.
    Mr. Smith. Jack and Linda Cross, who are here from 
California.
    Senator Hatch. Welcome.
    Mr. Smith. Kay Tabarrah, who lives in D.C. now but used to 
live in California.
    Senator Hatch. Kay.
    Mr. Smith. And Carol Raymondo, who is from Cayucos, 
California, near Morro Bay.
    Senator Hatch. Carol.
    Mr. Smith. And who is here on some business, and I think I 
got everybody--oh, Suzette. I apologize, Suzette. My favorite 
niece, Suzette Jones, who is from Sarasota, Florida, and who 
is--we are just delighted that she is here. She's a wonderful 
member of our family as well.
    So thank you for letting me introduce them. They are the 
most precious thing in my life.
    Senator Hatch. I can tell that, and they are wonderful 
people.
    [The biographical information of Milan Smith follows.]

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    Senator Hatch. We are grateful that you are willing to 
serve because we know that you have a substantial career, we 
know that you could have a very interesting and easy life 
without doing this job. But this is an important job, and we 
are really pleased to have people of your qualifications 
willing to serve, and we will do everything in our power to get 
you through as fast as we can so you can get on that court. I 
know that you are still going to be very subservient to Mrs. 
Smith at home.
    [Laughter.]
    Mr. Smith. May I also, Mr. Chairman, thank the Committee. I 
want to thank Chairman Specter and his wonderful staff, Ranking 
Member Leahy and his staff. They have shown us many courtesies, 
as have you. I am very, very grateful for that. I realize that 
there are lots of people who pass before this Committee, but I 
must confess I feel very, very grateful of their sensitivity 
and the expeditious way in which they have handled my 
nomination and hoped-for confirmation. So thanks to all who 
have been involved in this process.
    Senator Hatch. Well, thank you so much, and I have to say 
your brother has weighed in rather heavily on your behalf.
    [Laughter.]
    Senator Hatch. He did not really have to.
    Mr. Smith. Well, that is very nice. Let me just conclude by 
saying this: Nobody ever had a better brother.
    Senator Hatch. He feels exactly the same.
    Mr. Smith. We tend to get lachrymose over the dedication of 
a drawbridge. I am sorry about that.
    [Laughter.]
    Mr. Smith. But as you probably know, Gordon and I are 
extraordinarily close, and he was gracious enough to say lots 
of nice things about me, and I cannot tell you how proud I am 
of him. He has been through a lot, as you know.
    Senator Hatch. Yes, I know.
    Mr. Smith. But I think his courage and what he has shown to 
people will help lots of other people, and I know that today 
our parents and grandparents and others were very proud of him 
and a lot of us in the family because we believe in public 
service. We understand the importance of being there to try to 
do good to people and to bring the skill sets that we have for 
the benefit of our community and others. So I thank you for 
this opportunity to be here.
    Senator Hatch. Well, thank you. I share your high opinion 
of my colleague, I will tell you. As good as it gets, and I 
think both sides of the floor think very highly of Gordon, as 
they should. But we are honored to have all of you here. We 
will push this nomination as fast as we can, and hopefully you 
will be sitting on that court within a short period of time, 
and that ought to be an interesting part of your life from this 
point on. I have no doubt you will be one of the great judges 
in this country.
    So thank you so much. It is great to see all of you. We are 
proud of all of you, and we wish you the best.
    Mr. Smith. Thank you, Senator. And if it is all right, we 
will move out of the way so that other family members in the 
New Jersey contingent can move forward and be closer to their 
families. And thank you very much.
    Senator Hatch. Good to see you.
    Well, if we can have the other nominees take their places 
at the table, we will move ahead with them.
    Let's have you all stand, and I will administer the oath. 
Please raised your right hands. Do you solemnly swear to tell 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Ms. Bumb. I do.
    Mr. Hillman. I do.
    Mr. Sheridan. I do.
    Judge Wigenton. I do.
    Senator Hatch. Thank you very much.
    I am aware of all of your reputations. They are excellent 
reputations. You had two fine Senators recommend you, plus the 
President of the United States, and I am not going to bother 
you with any questions because I know that each of you is 
qualified, more than qualified to serve on the Federal bench. 
And we are very proud to have you here today.
    If you want me to ask some questions, I will.
    [Laughter.]
    Senator Hatch. But I think sometimes these should not be 
ordeals. These ought to be really wonderful experiences to all 
of you.
    What I would like you to do, however, is take time--and we 
can start with you, Ms. Bumb--take time and introduce members 
of your family and friends who are here, and we will just go 
across the table. Okay? You are first.

STATEMENT OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE FOR 
                   THE DISTRICT OF NEW JERSEY

    Ms. Bumb. Thank you, Senator. I want to first introduce my 
wonderful, wonderful, wonderful husband, behind me.
    [Laughter.]
    Senator Hatch. He is embarrassed.
    Ms. Bumb. Kevin Smith.
    Senator Hatch. Good to have you here.
    Ms. Bumb. And my two daughters, Katrina and Elizabeth 
Smith.
    Senator Hatch. Oh, they are beautiful. I tell you, that is 
just great.
    Ms. Bumb. And I do want to introduce, although he is not 
here, our youngest, Liam Timothy, who is waiting for us in 
Russia, and we will be picking him up next month.
    Senator Hatch. So you are adopting him then.
    Ms. Bumb. Yes.
    Senator Hatch. That is terrific.
    Ms. Bumb. He will be 1 year old next month. And my 
wonderful parents, Harold and Trudy Bumb.
    Senator Hatch. We are so happy to have you here. You have 
to be really proud of your daughter.
    Mrs. Bumb. We are.
    Ms. Bumb. Thank you, Senator, and thank you for the honor 
and privilege, to you and to the Committee, for allowing me to 
be here. It is an honor and privilege.
    Senator Hatch. We are very proud of you.
    [The biographical information of Renee Bumb follows.] 

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    Senator Hatch. Mr. Hillman?

  STATEMENT OF NOEL LAWRENCE HILLMAN, NOMINEE TO BE DISTRICT 
              JUDGE FOR THE DISTRICT OF NEW JERSEY

    Mr. Hillman. Thank you, Senator. I am here with my wife, 
Tracy Hillman, and I tell her every day how wonderful she is.
    [Laughter.]
    Mr. Hillman. So I won't repeat that.
    Senator Hatch. I think that first witness was good for all 
of us, don't you?
    Mr. Hillman. I think so. You can't tell the people you love 
you love them enough.
    Senator Hatch. That is right.
    Mr. Hillman. I am also here with my three children, and 
John is 13.
    Senator Hatch. John, you are looking good.
    Mr. Hillman. Drew is fast approaching 11.
    Senator Hatch. Drew looks good, too.
    Mr. Hillman. And our dear little Paige is 6, Senator.
    Senator Hatch. Hi, Paige. How are you? You look better than 
the boys.
    [Laughter.]
    Mr. Hillman. I appreciate the opportunity to do that.
    Senator Hatch. We are honored to have you here. We are 
surely honored to have your family here. You seem too young to 
be a judge, a Federal district judge, is all I can say, with 
all those young children. That is just terrific, though. Happy 
to have you here, and we hear really good things about all four 
of you.
    [The biographical information of Noel Hillman follows.] 

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    Senator Hatch. Mr. Sheridan?

 STATEMENT OF PETER G. SHERIDAN, NOMINEE TO BE DISTRICT JUDGE 
                 FOR THE DISTRICT OF NEW JERSEY

    Mr. Sheridan. Thank you, Senator. I'd like to say that I'm 
thankful for this Committee to have a hearing for me with my 
colleagues, as well as I'd like to thank the President for 
putting my name in nomination, and for Senators Menendez and 
Lautenberg for moving forward on our nominations.
    Senator Hatch. You bet.
    Mr. Sheridan. With me today are my family: my wife, 
Barbara; my children Katherine, Tom, and Peter; and behind them 
are my two sisters, Rose and Ann; and my co-worker, Harriet 
Tyrrell and her husband, Brian.
    Senator Hatch. That is great.
    Mr. Sheridan. Thank you, Senator.
    Senator Hatch. We are so happy to have all of you here. 
What a nice family. We are just grateful to have all of you 
here today.
    Mr. Sheridan. I appreciate the opportunity.
    [The biographical information of Peter Sheridan follows.] 

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    Senator Hatch. Judge Wigenton?

STATEMENT OF SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE 
                 FOR THE DISTRICT OF NEW JERSEY

    Judge Wigenton. Thank you, Senator Hatch. It is a pleasure 
and honor for me to be here today, and I do want to express my 
deepest gratitude to the Committee and all the members of the 
Committee for their patience in just working with us very 
diligently to arrive at this particular point.
    Also, I want to extent my gratitude to the President for 
this nomination, in addition to the Administrative Office, who 
is also here, and they have also worked with each and every one 
of us to get to this point.
    But I am happy to introduce the members of my family that I 
have brought here today, and I consider all of them to be 
members of my family.
    First and foremost, I have my wonderful husband, Kevin, and 
my son, Kevin II.
    Senator Hatch. That is great. He looks pretty good. That is 
great.
    Judge Wigenton. He is a big 3\1/2\-year-old.
    Senator Hatch. Yes.
    Judge Wigenton. In addition, I have my oldest brother, Dr. 
Henry P. Davis, and his wife, Weptanomah Davis.
    Senator Hatch. Doctor, an honor to have both of you here.
    Judge Wigenton. And my niece and nephew, their children, 
Lilybelle and Henry.
    Senator Hatch. Great to have you here. Henry, you are 
looking good, too.
    Judge Wigenton. I also have my aunt and uncle, my Aunt 
Mesie, Aunt Mesie Wright, and Clarence Wright, who are members 
or residents of Maryland, and they are here as well.
    Senator Hatch. Great to have you folks here.
    Judge Wigenton. In addition, I have members of my office 
and my chambers who I consider to be family members. I have my 
courtroom deputy, Ellen McMurray.
    Senator Hatch. Good to have you here.
    Judge Wigenton. My able law clerk, Frances Bajada.
    Senator Hatch. Great to see you, Frances.
    Judge Wigenton. And Wayne Fang, who will be leaving me this 
year, but he has been a wonderful law clerk.
    Senator Hatch. Wayne, proud of you.
    Judge Wigenton. And last, but not least, I have Attorney 
Bobby Stafford, who is a member of the bar in the State of 
Virginia and also practices in the District as well, and he is 
here.
    Senator Hatch. Great. Good to have you here.
    Judge Wigenton. And once again, thank you.
    [The biographical information of Susan Wigenton follows.] 

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    Senator Hatch. Well, thank you. Well, we are honored to 
have all of you here. The questionnaires are so extensive that 
I almost think it is an insult for us to ask you any further 
questions, and especially since we know of your reputations, 
know how really qualified you folks are. We appreciate you 
appearing, and I am going to make this easy on you. We are just 
going to congratulate you, and we will move as fast as we can 
your nominations. And just serve well on the bench and remember 
what I said. The closest thing to godhood in this life is a 
Federal judgeship, and we just don't want you to take that to 
heart that strongly. What we would like you to do is just give 
service the way Federal judges ought to do and be fair and 
honest and decent to everybody who comes before you--and, above 
all, those poor humble attorneys who have to appear. They do 
not particularly want you to try their cases for them, but when 
you see a young person who is struggling in the evidence or 
something, you can give a little help.
    [Laughter.]
    Senator Hatch. There is nothing wrong with that.
    But we are honored to have all of you here. We are honored 
to have your family members here, clearly good people, and the 
courts are going to be better off with the four of you on that 
court.
    So, with that, we are going to recess this hearing until 
further notice and congratulate all of you, and we will do our 
best to get you through as quickly as possible.
    Ms. Bumb. Thank you, Senator.
    Mr. Hillman. Thank you, Senator.
    Mr. Sheridan. Thank you, Senator.
    Judge Wigenton. Thank you, Senator.
    Senator Hatch. Thank you so much. Good to see you.
    [Whereupon, at 2:54 p.m., the Committee was adjourned.]


 NOMINATIONS OF SANDRA SEGAL IKUTA, OF CALIFORNIA, TO BE CIRCUIT JUDGE 
 FOR THE NINTH CIRCUIT; SEAN F. COX, OF MICHIGAN, TO BE DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF MICHIGAN; THOMAS L. LUDINGTON, OF MICHIGAN, 
TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; AND KENNETH 
 L. WAINSTEIN, OF VIRGINIA, TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL 
                SECURITY DIVISION, DEPARTMENT OF JUSTICE

                              ----------                              


                          TUESDAY, MAY 2, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:06 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback 
presiding.
    Present: Senators Brownback and Feingold.

 OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM 
                      THE STATE OF KANSAS

    Senator Brownback. The hearing will come to order. Thank 
you for being here and joining us today. A vote has just been 
announced. We have a hearing on four nominations--Sandra Segal 
Ikuta, Sean F. Cox, Thomas Ludington, and Kenneth Wainstein.
    What I thought I would do here is offer to Senator Levin 
and Stabenow, if you want, before we head over to vote, to make 
your introductory statements and comments. Then I will have to 
recess and go vote and then come back and we will finish.
    Delegate Norton, I hope that can work for you, but I have 
to take care of my colleagues first here. I am sorry about 
that.
    Senator Levin, do you want to go forward with your 
statement?

 PRESENTATION OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR 
  THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS L. LUDINGTON, 
   NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
MICHIGAN, BY HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF 
                            MICHIGAN

    Senator Levin. Thank you, Mr. Chairman, for your 
accommodation, as always. There is no one who is more 
accommodating in the U.S. Senate than Senator Sam Brownback and 
we really very much appreciate it. I want to thank you and the 
Committee for holding this hearing today. Both Senator Stabenow 
and I are pleased to introduce two Michigan jurists, Tom 
Ludington and Sean Cox, whom the President has nominated to the 
Federal bench in the Eastern District of Michigan.
    I will let Judge Ludington introduce his family--I think it 
is always a special privilege of the nominee to do that--
although it is tempting to do that, other than to say that his 
sons have made the ultimate sacrifice here, which is to miss a 
day in school to be with their father.
    He is indeed a well-respected jurist in Michigan. He 
currently serves as a circuit court judge. He is the chief 
judge in his circuit, in Midland County, Michigan. He has been 
in private practice a long time before that. He was elected to 
the bench in 1995.
    I also, in addition to Judge Ludington, would like to join 
Senator Stabenow in welcoming Judge Sean Cox and his family, 
whom I know he will also introduce. Judge Cox and Judge 
Ludington both got high grades from the American Bar 
Association, as well as from the screening group that Senator 
Stabenow and I set up to look at the nominations of the 
President and to review them. Both of the nominees here today 
did very well with that group and we got very positive feedback 
about both of them.
    I shouldn't introduce Sean Cox by mentioning that his 
brother is the Attorney General of the State of Michigan, but 
since I am big on brothers, and I know that he is, too, I do 
want to mention it. I know how proud the family is of both of 
them.
    I shouldn't take 30 seconds to say this, but when my mother 
was asked what about the two Levin brothers that were now 
elected to the Senate and to the House, respectively, when we 
both were here, and the press was pressing her for, well, you 
must be just so proud of your two sons, now a sibling act in 
the House and the Senate, her response was if that is what they 
want, it is OK with me.
    Their prompt confirmation is something we all look forward 
to, and again we thank you very much, Mr. Chairman, for holding 
this hearing and for dividing it the way you are to accommodate 
us.
    Senator Brownback. A ringing endorsement from mom. That is 
a great story.
    Senator Stabenow.

 PRESENTATION OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR 
  THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS L. LUDINGTON, 
   NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
 MICHIGAN, BY HON. DEBBIE A. STABENOW, A U.S. SENATOR FROM THE 
                       STATE OF MICHIGAN

    Senator Stabenow. Well, thank you, Senator Brownback. I, 
too, am here to join in strong support of the nominations of 
Judge Sean Cox and Judge Tom Ludington for the U.S. District 
Court for the Eastern District of Michigan.
    I don't have a brother or a sister serving, but I am 
someone who believes strongly in family, as does everybody 
here. And to look around at these two families, it is really 
wonderful to see, and I know that their wives and children and 
relatives are all very proud of them and are very exciting 
about being here today and about the opportunities that all of 
this presents.
    Both of these nominees bring distinguished legal careers 
and judicial experience to the Federal bench. Judge Sean Cox 
has served as a circuit court judge for the 3rd Circuit of 
Michigan since 1996. He is a graduate of the Detroit College of 
Law and the University of Michigan, and has over 12 years of 
private practice experience. So I want to welcome Judge Cox and 
his family to the Senate today.
    Judge Thomas Ludington has served on the 42nd Circuit Court 
for Midland County since 1995. He has served as chief judge of 
the court for the past 6 years. Judge Ludington is a graduate 
of the University of San Diego School of Law and Albion 
College, another great school in Michigan.
    After graduating from law school, Judge Ludington worked at 
the Currie and Kendall law firm for 14 years, and also served 
as president of the firm before he left to join the Michigan 
Circuit Court. I want to welcome Judge Ludington and his 
family, as well, today.
    We very much appreciate the timely manner in which these 
nominations have moved forward now and expect the same 
timeliness on the floor. It is my pleasure to work with you on 
these vacancies and other judicial issues coming before us that 
affect Michigan.
    Thank you, Mr. Chairman.
    Senator Brownback. Thank you very much, Senator. I 
appreciate that greatly.
    Representative Norton, I do have time if you would like to 
go ahead and put your statement in now before I have to head 
off and vote, if that would facilitate you as well.
    Senator Levin. Can we be excused?
    Senator Brownback. Yes, you will be excused. Thank you very 
much for coming by. I appreciate it greatly.

 PRESENTATION OF KENNETH L. WAINSTEIN, OF VIRGINIA, NOMINEE TO 
  BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, 
    DEPARTMENT OF JUSTICE, BY HON. ELEANOR HOLMES NORTON, A 
       DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    Delegate Norton. Let me make haste and thank you, Senator 
Brownback. I am pleased to come forward and recommend Kenneth 
Wainstein to this new and important position. He is going to be 
the maiden, or whatever it should be called in his case, person 
to hold this position of Assistant Attorney General for 
National Security. It was strongly recommended by the 
commission, bringing together the counterterrorism, counter-
espionage and similar attorneys under one new person.
    I know Ken Wainstein from his work as U.S. Attorney for the 
District of Columbia, but if you take a look at his combined 
Federal and local career and prosecutorial experience, you can 
understand, it seems to me, immediately why the President 
selected him for this new post-9/11, very important position.
    I simply want to say how much I appreciate the way Ken 
Wainstein adapted himself to the unique demands of the U.S. 
Attorney's office for the District of Columbia. It is a unique 
office and its combination of Federal and local 
responsibilities, I think, will serve him well in his new 
position, considering that that position will require him to be 
in tune with cases that are as likely to arise from local 
conditions as from the Federal itself.
    Just as he will have to make adaptations and indeed clear 
the way entirely for his new position, he adapted to the way in 
which we were trying to make the U.S. Attorney's Office for the 
District of Columbia. It handled twice as many local cases as 
Federal cases, because he is really a local D.A. for the 
District of Columbia, as well as the U.S. Attorney.
    Those who held the position before him--Eric Holder, who 
later became Deputy Attorney General, and Wilma Lewis, both the 
first African Americans to hold the position, and Wilma Lewis 
the first woman--made the position, in fact, much more like a 
D.A. position while handling all of these important Federal 
matters. And Ken Wainstein just went right to it, expanded the 
Federal involvement appropriately even as he was handling very 
important cases of the kind that I am sure brought him to the 
attention of the President for this new position. He was 
interim U.S. Attorney twice; the second time around, he made it 
to the top.
    I think you can see this a clear merit appointment, a man 
who has never been in politics. He has been in the Justice 
Department all his life. He was chief of staff for FBI Director 
Mueller, Executive Director of the Executive Office of U.S. 
Attorneys, D.C. and New York experience. He leaves with the 
homicide rate this year down 17 percent in the District of 
Columbia. I am sorry to lose him right at the time when he and 
I were working together to get a new forensic lab--I will have 
more to say to you in your other hat about that, Mr. 
Brownback--and where we are working to get for the U.S. 
Attorney for the District of Columbia investigators, instead of 
using our cops, the way every other U.S. Attorney has. It is 
your gain and our loss. I am pleased to recommend the 
President's recommendation to you.
    Thank you very much for taking me.
    Senator Brownback. Thank you very much, Delegate Norton. We 
appreciate that greatly.
    I also want to recognize Congressman Dave Camp from 
Michigan, who is here, I am sure, to support both of these 
nominees.
    If you have a statement you wanted to put forward, I am 
going to have to run in 1 minute. I apologize for that.

    PRESENTATION OF SEAN F. COX, OF MICHIGAN, NOMINEE TO BE 
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS 
L. LUDINGTON, OF MICHIGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE 
      EASTERN DISTRICT OF MICHIGAN, BY HON. DAVE CAMP, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

    Representative Camp. Well, thank you very much, Senator 
Brownback. I just want to endorse the remarks of Senator Levin 
and Senator Stabenow to these two exceptionally well-qualified 
judges from Michigan.
    Judge Ludington and I grew up together. We live in the same 
hometown and when I am home and run into lawyers from every 
political stripe and perspective, they all say what an 
excellent job he does as a judge. And I know they both will 
serve this country well as district court judges.
    Thank you.
    Senator Brownback. Thank you very much.
    We will put the hearing in recess while I go vote and I 
will be right back. I want to apologize to the nominees and the 
families. I just can't avoid it. I have to run over and vote 
and I will be back as quickly as I can.
    We are in recess.
    [The Committee stood in recess from 3:17 p.m. to 3:36 p.m.]
    Senator Brownback. The hearing will come back to order. 
Thank you all for joining me and I am sorry about the delay.
    I want to call the panel up of our judicial nominees and we 
will do the executive branch nominee on a second panel. So if 
you would all care to come on forward, I will do an 
introduction here at this time.
    Our first nominee who will be making a presentation will be 
Sandra Segal Ikuta, who has been nominated to serve on the 
Ninth Circuit Court of Appeals. She graduated Phi Beta Kappa 
from the University of California-Berkeley, received her 
master's degree at Columbia University Graduate School of 
Journalism, and received her J.D. from UCLA Law School.
    After law school, she clerked for Judge Alex Kozinski. I am 
sure I butchered that. I apologize.
    How do I say that?
    Ms. Ikuta. Kozinski.
    Senator Brownback. Kozinski. That ought to be much simpler. 
It is the German in me that just doesn't get those names right.
    She clerked for Judge Kozinski on the Ninth Circuit Court 
of Appeals and then for Justice Sandra Day O'Connor on the U.S. 
Supreme Court. She then entered private practice where she 
worked for 14 years in the law firm of O'Melveny and Myers. Ms. 
Ikuta specialized in environmental issues, including 
litigation, compliance and other pre-litigation matters, 
including assisting clients with environmental audits and 
property contamination issues. In 1997, she was promoted to 
partner at the law firm and she became co-chairman of the 
environmental law practice group.
    Ms. Ikuta left the law firm in 2004 to become Deputy 
Secretary and General Counsel for the California Resources 
Agency, where she currently serves. She is responsible for 
general legal matters for the agency. She received a unanimous 
well qualified rating from the ABA.
    Sean F. Cox is our next nominee. Judge Cox has been 
nominated to the Federal District Court for the Eastern 
District of Michigan. He is a graduate of the University of 
Michigan and Detroit College of Law. Judge Cox has an extensive 
record of legal experience. He was in private practice with 
three law firms between 1984 and 1996, where he had a diverse 
practice representing governmental entities, insurance 
companies and individual litigants in complex litigation. Since 
1996, he has served with distinction on the 3rd Circuit Court 
for the State of Michigan and he, as well, has received a 
unanimous well qualified rating by the ABA.
    Judge Thomas L. Ludington has been nominated to the Federal 
District for the Eastern District of Michigan. He is a graduate 
of Albion College and the University of San Diego School of 
Law. He spent 14 years in private practice. During that time, 
Judge Ludington dedicated much of his work in the area of 
banking and securities law, as well as bankruptcy and 
employment law. He also served as president of the firm for 6 
years.
    In 1995, he began his judicial service by taking a seat on 
the State of Michigan's 42nd Circuit Court. Since 1999, he has 
served as chief judge of that court, where he has become a 
widely respected trial judge. Like our other nominees, Judge 
Ludington was rated unanimously well qualified by the American 
Bar Association.
    This is an outstanding group of nominees. We have had 
testimony already entered by two members of the Senate, a 
Representative from the House, and the Delegate from the 
District of Columbia on our executive nomination.
    I would like to also enter into the record at this point in 
time a statement from Senator George Allen and a statement from 
Senator John Warner in support of the nomination of Kenneth L. 
Wainstein for Assistant Attorney General for National Security. 
Welcome, all of you nominees. I want to welcome your families, 
as well, to this hearing about your nominations for the bench.
    Ms. Ikuta, I look forward to your testimony. If you would 
like to introduce family, you are welcome to do so now and we 
will hear your testimony.

 STATEMENT OF SANDRA SEGAL IKUTA, NOMINEE TO BE CIRCUIT JUDGE 
                     FOR THE NINTH CIRCUIT

    Ms. Ikuta. Thank you, Senator. I would like to introduce my 
husband, Ed Ikuta, and my daughter, Lillian Ikuta.
    Senator Brownback. Welcome. We are delighted to have you 
here.
    Ms. Ikuta. They have been such a wonderful support to me.
    [The biographical information of Ms. Ikuta follows:] 

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    Senator Brownback. Judge Cox.

STATEMENT OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR THE 
                  EASTERN DISTRICT OF MICHIGAN

    Judge Cox. Thank you, Senator. I would like to introduce my 
wife, Janine; my son, Patrick; my daughter, Clare; my brother-
in-law, Doug Cutcher, and Kyra and Alissa Cutcher.
    [The biographical information of Judge Cox follows:] 

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    Senator Brownback. Welcome. We are delighted to have you 
here.
    Judge Ludington.

STATEMENT OF THOMAS L. LUDINGTON, NOMINEE TO BE DISTRICT JUDGE 
              FOR THE EASTERN DISTRICT OF MICHIGAN

    Judge Ludington. Good afternoon, Senator. It is kind of a 
pleasure. We have had a chance to introduce you here informally 
a minute ago, but I am joined this afternoon by my wife, Tina, 
who is present. Adjacent to her is Christopher Warren, and John 
Thomas on your right. Also with us this afternoon are my 
mother-in-law, Ms. Jane McGuire, and brother-in-law, Tim, and 
last but not least, my father, Jack Ludington.
    [The biographical information of Judge Ludington follows:] 

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    Senator Brownback. Welcome, all. We are delighted to have 
your families here. Being a person on the bench, being a judge, 
is a high responsibility and it involves the whole family. So I 
am delighted that all of you could join in this affair.
    Ms. Ikuta, we would be happy to receive your statement if 
you have a statement--excuse me; I am jumping ahead of things. 
We normally swear in our witnesses for the bench, so if you 
would all rise and raise your right hands?
    I promise to tell the truth, the whole truth and nothing 
but the truth, so help me God.
    Ms. Ikuta. I do.
    Judge Cox. I do.
    Judge Ludington. I do.
    Senator Brownback. Thank you. You may be seated.
    Ms. Ikuta, do you have a statement that you would like to 
enter into the record or to state here?
    Ms. Ikuta. I don't have an opening statement other than to 
thank the President for nominating me and the Committee for 
having these hearings.
    Thank you.
    Senator Brownback. We will have a few questions.
    Judge Cox, do you have a statement?
    Judge Cox. Senator, I would like to thank the Committee 
very much for having this hearing today. It is a great honor to 
be before you. I would like to thank President Bush for the 
honor that he has given to me and my family of nominating me 
for the Eastern District of Michigan, and I would also like to 
thank Senator Levin and Senator Stabenow for taking time from 
their busy schedules to come in here before this Committee and 
introduce me, as well as Judge Ludington.
    Thank you very much.
    Senator Brownback. Thank you.
    Judge Ludington.
    Judge Ludington. Senator, I would echo my colleagues. We 
are all very appreciative of the President's nomination, as 
well as the fact of all the cordiality you have extended to us 
this afternoon.
    Senator Brownback. We are delighted to have you here.
    Ms. Ikuta, let me start with you on this, and I am sure you 
have had this question in a number of the screenings that you 
have gone through thus far. There have been a lot of questions 
in the political debate about the role of the judiciary in the 
country and in the government today, and it has been the 
subject of a lot of political debate and it has been a subject 
of a lot of personal debate.
    Could you outline for me and for this Committee your view 
of the role of the judiciary in the government and in this 
society?
    Ms. Ikuta. Thank you very much, Senator, for that question. 
I see the role of the judge in our system as interpreting the 
law, the precedents of the Supreme Court and the judge's 
circuit, and applying those laws impartially and fairly to the 
legal issue before the court.
    Senator Brownback. Judge Cox.
    Judge Cox. Senator, the role of the judiciary is to follow 
the law, not to make the law. As a judge, it is incumbent upon 
a judge to follow and respect precedent and it is incumbent 
upon a judge to follow statutory law. The statutes are presumed 
to be valid. Again, the role of a judge is not to make the law. 
The judge follows the law.
    Senator Brownback. Judge Ludington.
    Judge Ludington. Again, in many respects I would echo a lot 
of the things that my colleagues have added. I think what is 
important, and I would add perhaps uniquely true with trial 
judges, is the fact that there has to be a certain reservation 
in understanding the role of the judge in terms of 
constitutional process and understanding the limits, the 
appropriate limits of the types of decisions that we can make. 
We can't solve every problem. It is very important that we 
understand in a principled way what our role in the system is 
and be sure that we limit ourselves within that context.
    Senator Brownback. Why do you think we have gotten even to 
this debate today? I mean, why is this such a big political 
issue about the role of the judiciary in this society today? 
You have been around courts and judges all your life. You have 
watched the political system, each of you. We didn't used to 
debate this point or even raise it. Why are we where we are 
today?
    Ms. Ikuta. Senator, that is a very thoughtful question and 
it is an important issue. I know there is a lot of concern and 
controversy about what constitutes judicial activism, and it 
highlights the importance of judges following the rule of law 
and applying that law in a neutral and impartial way.
    Senator Brownback. But why did we get so fired up about it? 
Are we taking everything to the courts instead of the 
legislatures now, or why is it so big as an issue?
    Judge Cox, do you have a thought, or Judge Ludington?
    Judge Cox. Well, Senator, again, the role of the judge in 
society, in our jurisprudence, is to follow law, to respect 
precedent. It is not the role of the judge to legislate. Maybe 
if the judge is legislating, we have the issue. If the judge is 
respecting precedent, following precedent and following the 
law, we don't have the issue; we don't have the debate.
    Senator Brownback. Judge Ludington, you have watched the 
system. Why are we debating this now?
    Judge Ludington. Well, I think part of it, in my view, is 
the fact that we have an increasing number of societal problems 
that are being brought to courts. And in many cases, there are 
instances where people have been injured, where there is at 
least some merit to the concerns that bring them to court. And 
I can make the personal observation that there are a lot of 
circumstances, particularly with trial courts, where you are 
trying to apply the law in a way in which you simply have to 
draw some limits according to the law in reaching conclusions.
    But the change, I think, reflects an increasing demand 
being placed on courts to address ever wider ranges of issues, 
and so it becomes particularly important, in my judgment, for 
the trial court to have a good understanding of the law and its 
limits, and it isn't always necessarily easy to apply that.
    Senator Brownback. Now, you will go from a State court, 
both of you, to a Federal court. So you go from a court of 
general jurisdiction to a court of limited jurisdiction. Is 
that going to be difficult for you to show judicial restraint, 
coming from where you come from to where you are going to, from 
State court to the Federal court?
    Judge Ludington. I guess my own observation would be 
probably somewhat to the contrary. We work with, in many 
respects, a really wide range of human issues, certainly, in a 
court of general jurisdiction in the State. So we have been 
tested in terms of our ability to fairly, but nevertheless 
impartially apply the law, and I think we will look back on it 
as good training for the Federal bench, as well.
    Senator Brownback. When we had the Alito and the Roberts 
hearings, which I thought were outstanding hearings and a 
couple of outstanding nominees, one of the things that was 
really striking to me is that you look at our system and there 
are limits on the Congressional power. The President can veto 
the bill. The courts can declare it unconstitutional. There are 
limits on Presidential power. Congress can not appropriate the 
money. The court can say that what the President is doing is 
unconstitutional.
    Then I asked both Judge Roberts and Judge Alito what is the 
restraint on the court's power. And they didn't want to say, 
well, the Congress could not appropriate the money, which they 
would look at, or that there were constitutional restraints. 
They said, well, the restraint on the court is the court 
itself; it is judicial restraint.
    To me, it wasn't a very satisfying answer, frankly, because 
everybody else has constraints within the system, and then to 
say, well, the court has to restrain itself--and maybe I look 
at it saying, well, that is like asking Congress to restrain 
itself. You know, there are a lot of people that say, well, 
that is pretty tough for a body to do. Yet, in many respects 
that is the first-line answer, and if we don't have a court 
that can adequately look at itself as with limited jurisdiction 
and restrain itself, then you find the other two branches of 
Government being pushed by the populace to do what they can to 
restrain the court.
    Then you get in these big kind of global-proportion shoving 
matches of who has what authority to be able to do what. It 
seems like to me that is the era we are in now where you have 
got the legislative, in particular, pushing back against the 
judicial. And there has always been a traditional competition 
between the legislative and the executive branch, all of which 
I think is healthy in a system that tries to have checks and 
balances and has limited authority and the people have the 
broad authority.
    But I just say it to you because I think it really is up to 
the court to restrain the court, by and large, and if the court 
does that, these aren't issues. If the court doesn't do that, 
then they get thrown into the political process and it becomes 
a much more difficult field.
    Ms. Ikuta, let me ask you about the environmental law area. 
Apparently, that has been an area of expertise and special 
interest for you.
    Ms. Ikuta. Yes, sir.
    Senator Brownback. What particular area in the 
environmental field, or is it just broadly that you have been 
very active in the environmental field?
    Ms. Ikuta. At present, as the General Counsel and Deputy 
Secretary in Governor Schwarzenegger's administration, we have 
been active in implementing the Governor's policy in trying to 
protect natural resources and open space and preserve 
agricultural land. That has been an area of great interest for 
me.
    Senator Brownback. What drew you into the field? Is it a 
personal interest of yours, environmental law?
    Ms. Ikuta. There were a range of factors that drew me into 
that field. I was interested in stewardship of the land, air 
and water, but also I really enjoyed the interrelation of 
Federal, State and local laws. It was a very challenging area 
and interesting for me.
    Senator Brownback. Is that going to be one that will be 
hard for you to set aside some of your past work and background 
in serving on the Ninth Circuit Court or is it one you feel 
like you are going to be able to resolve these cases fairly, 
because I guess you are going to receive a fair number of 
environmental cases and litigation coming up at the circuit 
court level?
    Ms. Ikuta. Thank you, Senator, for giving me the 
opportunity to address that question. In fact, throughout my 
career my function has been to analyze case law and statutory 
law and advise clients very neutrally as to what the law 
requires. So I think my training and background actually would 
stand me in good stead if I am so fortunate to be confirmed.
    Senator Brownback. And you don't believe you will have any 
difficulty adhering to a fair decision and not your own 
personal opinions or cases that you have been involved in move 
you on those?
    Ms. Ikuta. No, I would have no trouble putting aside any 
knowledge or background that I have on issues and applying the 
law and the precedent fairly and impartially.
    Senator Brownback. I am delighted to have your expertise 
coming forward, frankly. I mean, that is good to have that kind 
of expertise. It is also one, though, that people always want 
to make sure they get a fair hearing in front of the courts and 
an unbiased set of minds to review a case. I know you are well 
aware of all of that.
    I want to thank all of you for coming forward. You have 
been through extensive background checks. You have been through 
extensive political vetting, I guess, in the process. I 
apologize if the process has been too intrusive for you, but 
this is kind of the one juncture where the policymakers get the 
shot that they can at the bench. So everybody then wants their 
shot at this and to see that the person has a good judicial 
temperament, has a first-class mind, and will hear things 
fairly.
    Everybody has their different interpretation of what fair, 
I guess, is in the system, but at the end of the day we want 
good judges that people can respect and look up to and believe 
that they are getting a fair case from, and I know each of you 
will do that.
    To your families, I want to thank you for allowing them 
into public service. We know you don't do it for the money. 
That is not part of it, but being a judge is a vaulted position 
in this society. Particularly at the district level, for most 
cases you are the final arbiter on people having major disputes 
that have changed and impacted their lives, their companies, 
their group, whatever the case might be. You are it. A lot of 
cases do get appealed, but as you know, most don't, and so you 
are the final arbiter.
    So they have to look to you and say, OK, this person I 
trust to be fair. I don't want him to be on my side and I don't 
want him to be--well, I probably do want him to be on my side, 
but I know that is not fair completely. I just want somebody 
that will be fair in this system, good temperament, good mind, 
that I can trust. It is based on that trust that the system 
even works.
    So I really do commend you for coming forward to do that, 
for going through the process, as difficult as it can be. God 
bless you for serving. I want to wish you all the best. I don't 
anticipate any problems with this moving forward, but we have 
had difficulties moving judges forward the past several things. 
So things could stall, but I wouldn't anticipate any in this.
    Thank you all very much for coming. Thank you for your 
families. If you have additional statements to put forward, the 
record will remain open the requisite number of days so that 
you could put those forward if you would choose to.
    Judge Cox. Thank you, Senator.
    Ms. Ikuta. Thank you, Senator.
    Judge Ludington. Thank you.
    Senator Brownback. Thanks for being here.
    Next, I want to call up Kenneth Wainstein, nominated to be 
Assistant Attorney General for the National Security Division. 
The USA PATRIOT Improvement and Reauthorization Act of 2005 
created a new National Security Division within the Department 
of Justice, to be headed by a Senate-confirmed Assistant 
Attorney General for National Security to head the division.
    The key functions assigned to the new division and to its 
assistant attorney general include working with the Director of 
National Intelligence, unifying all intelligence operations 
within the Department under one common chain of authority, and 
handling Foreign Intelligence Surveillance Act responsibilities 
on behalf of the Attorney General.
    These reforms were aimed at implementing some of the 
important recommendations of the 9/11 Commission and the 
Commission of the Intelligence Capabilities of the United 
States Regarding Weapons of Mass Destruction, commonly known as 
the WMD Commission.
    Kenneth Wainstein has been nominated to be the first 
assistant attorney general for the newly created National 
security Division at the Department of Justice. Mr. Wainstein 
has excellent academic credentials and a lengthy background of 
public service, each of which makes him particularly well 
qualified for his position. He is a graduate of the University 
of Virginia and the law school of the University of California, 
Berkeley. Following law school, Mr. Wainstein clerked for Judge 
Thomas Penfield Jackson on the Federal district court in 
Washington, D.C.
    From 1989 to 2001, he served as Assistant U.S. Attorney 
first in the Southern District of New York and later in the 
District of Columbia. In 2001, he became the Director of the 
Executive Office for U.S. Attorneys, which serves as a bridge 
between the U.S. Attorneys' offices around the country and the 
Department of Justice. From 2002 to 2004, he became very 
familiar with difficult criminal and terrorism issues through 
his service at the FBI first as general counsel, then as chief 
of staff. Mr. Wainstein currently serves as U.S. Attorney for 
the District of Columbia, a position he has held since 2005.
    He has a long and thorough resume that demonstrates his 
commitment to his country and the well-being of its citizens, 
and I am confident he will render excellent service as the 
first assistant attorney general for the National Security 
Division.
    Mr. Wainstein, we are delighted to have you here. If you 
have family members you would like to introduce, you may do so 
at this time.

  STATEMENT OF KENNETH L. WAINSTEIN, NOMINEE TO BE ASSISTANT 
  ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF 
                            JUSTICE

    Mr. Wainstein. Thank you very much, Mr. Chairman. Yes, I 
do. I would like to introduce my family, if I may. To my left 
is my wife, Elizabeth Wainstein.
    Senator Brownback. Welcome.
    Mr. Wainstein. And two of my three girls--do you want to 
stand up? Mackie is this one right here, and this is Ellie. And 
we have a third, Cicely, who is 13 months old, and she opted to 
stay home and take a nap.
    Senator Brownback. Opted to stay home.
    Mr. Wainstein. I also am very happy to have my parents 
here--my mother, Eleanor Wainstein, and my father, Leonard 
Wainstein.
    Senator Brownback. We are delighted to have you here.
    Mr. Wainstein, we would be happy to receive any statement 
you would like to give.
    Mr. Wainstein. Thank you. I would like to give a very brief 
statement, if I may, Mr. Chairman. First, I would like to thank 
Senators Allen and Warner for their very kind statements they 
put in the record, and I also want to thank Congresswoman 
Norton for kindly appearing today and the kind words that she 
had, and also for her partnership with the U.S. Attorney's 
office in D.C. and law enforcement in the District.
    I would also like to thank my family for their love and 
support and for being here with me today. I also want to thank 
a number of my colleagues and friends who are here in the 
hearing room, a number of whom are colleagues from the U.S. 
Attorney's office whom I have had the honor and pleasure to 
work with over the last two years, and prior to that as a line 
prosecutor. They represent a group of people who are truly 
wonderful public servants and who do great work on behalf of 
the residents of D.C.
    I want to thank the President for the honor of nominating 
me for this position and the trust that he and the Attorney 
General have placed in me by nominating me for this job. And I 
can assure this Committee that if I receive this job, I will 
give it my full--give it everything I have and I will do 
everything I can to pursue the mission of protecting national 
security and defending civil liberties and the freedoms that we 
hold so dear.
    With that, I would be very happy to take any questions.
    [The biographical information of Mr. Wainstein follows:] 

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    Senator Brownback. Thank you, and thank you for your great 
service, and I want to thank your family. You have impressive 
resume and an impressive work you have done so far, and this is 
a key position.
    On the FISA court and the FISA issue, what are you willing 
to say at this point in time about what we should be doing of 
our National intelligence being reviewed by the FISA court?
    Mr. Wainstein. Of our National intelligence being reviewed 
by the FISA court?
    Senator Brownback. Yes. As you know, we have got a big 
debate about some of the intelligence-gathering information 
that we are getting and the process by which we are getting it. 
A number of people are saying we need to take more of this 
process and have it approved by declaratory judgment by the 
FISA court and having them review what we are doing, not all 
the information, but what we are doing, and render an opinion 
whether or not this is within the authority and purview of the 
President.
    We are in a big debate. As a matter of fact, we will take 
it back up this Thursday in this Judiciary Committee about 
whether we should give more authority to the Attorney General 
to pursue this through the FISA court, more authority to 
Congress, or to private individuals to bring FISA actions.
    Do you have any thoughts you are willing to share on that?
    Mr. Wainstein. Yes, sir. I know that there have been a 
number of proposals and pieces of legislation that have been 
proposed to address the intersection of the terrorist 
surveillance program and the FISA court work. Those proposals 
and your question points up, I think, a very important issue 
for this Committee and for the Government and for the country 
that raises separation of powers issues, raises practical 
issues of our ability to defend ourselves against international 
terrorists, to have an early warning system that can protect us 
from terrorists, but also have a scheme by which the FISA 
courts approves warrants in appropriate circumstances. All of 
these issues are raised by that debate and I think it is a 
healthy debate to have.
    I have to admit that I am not well-versed on the 
particulars of each of the proposals, and not being over at the 
Department yet working on those matters, I think it would be 
premature to weigh in with an opinion as to one proposal or 
another.
    I will say, however, that I think this is--if I am 
fortunate enough to be confirmed, this is an area that I will 
be looking at closely. I will be soliciting the input of the 
professionals over at the Department of Justice and throughout 
the intelligence community as to what is practical and what is 
best going to protect civil liberties, but at the same time 
help us defend against terrorists. And I will be open to 
working and soliciting input and providing input to the 
Committee. So I look forward to that if I am confirmed.
    Senator Brownback. Let me build on this a little bit. I 
have been in some of these hearings and I have been in on a 
fair amount of the discussion. Intelligence is, if not our lead 
tool, one of our most important tools in this war on terrorism. 
There is just no question about it. A lot of people are 
complaining about our borders being too porous, our southern 
border. Yet, the number of legal entries we have a year into 
the country is over 250,000. The 9/11 terrorists all entered 
legally into the United States.
    It is an intelligence operation that we have got to have 
that can catch people. So, to me, intelligence is just a 
paramount issue. At the same time, we have got to convince 
people that in this decades-long war on terrorism that we are 
going to be in for some period of time that the way we are 
doing this is right and is approved by an independent court, by 
an independent body.
    That is why I have been supportive of having more of these 
programs be reviewed by an outside set of eyes so that we can 
maintain public support for the desperately needed intelligence 
information we have to have. We have got to have this 
information if we are going to protect people. Yet, we are 
democracy and we have to have people's support to do this.
    That is why I like the example that one of my colleagues 
put forward when he was saying we need to have these 
intelligence programs be reviewed by an independent set of 
eyes, but it needs to be a sieve that the water can pass 
through. And it is checked, but it is not stopped, so that we 
can get the information; we can move the programs on through.
    I don't expect you to answer that. You are not at the 
Department yet. It is a big policy issue, but as somebody that 
represents a State that is concerned about maintaining public 
support for the war on terrorism, and particularly 
intelligence-gathering in the war on terrorism, I think this is 
important that we get this one right and that we build 
bipartisan public support for intelligence-gathering as much as 
we can. You are going to be right at the intersection of 
determining what to do in that particular area.
    Mr. Wainstein. Yes, Mr. Chairman, and I appreciate your 
comments and I appreciate your sentiments. And I appreciate 
that I will, if I am fortunate enough to be confirmed, be in a 
position where I will be working with these issues 
substantively, but I will also be sensitive to the public 
acceptance of what it is we are doing.
    I can tell you as a prosecutor for many years--most of my 
17 years in the Department of Justice has been as a criminal 
prosecutor--the credibility that we have is that we are doing 
justice and we are doing things right, and that witnessed, 
jurors, even suspects or defendants, believe that when we take 
action, we take action that is appropriate, the end result of 
which is to do justice and do right.
    That is a very important credibility to have, and that 
applies across the board in both the law enforcement world and 
in the intelligence world. And that is an issue that I do know 
is something that the Department is sensitive to and is 
sensitive to in this context. And I expect that if I am 
involved in the ongoing discussions about these programs, 
whatever programs might be ongoing which you might be referring 
to, that that is something I will be looking at very closely.
    Senator Brownback. Good, because I just think it is 
important for us in our maintenance of public support for the 
war on terrorism which we have to have.
    Mr. Wainstein, thank you very much for coming here and for 
being willing to assume this position. I am hopeful that we can 
move that through the process and get it approved. We need you 
on board now because we have got to get these programs 
reviewed. It was considered important by the Congress that this 
position be established so that we could have somebody that is 
at that juncture of intelligence-gathering and national 
security that is at DOJ and working with the Attorney General. 
So I am hopeful we can approve you on a rapid basis.
    Mr. Wainstein. Thank you very much, Mr. Chairman.
    Senator Brownback. Senator Feingold, I didn't see you over 
there so quiet. I am done. Do you have some questions to ask?

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

    Senator Feingold. I do. Thank you, Mr. Chairman. First, let 
me praise you and the nominee for the comments you have just 
made about the need to raise these kinds of issues and to be 
sensitive to these kinds of issues, not only because it is our 
system of Government and has to do with people's rights, but 
also if we want to be successful in the fight against 
terrorism.
    It is my belief that although we have done many things 
right since 9/11, one of the things we haven't done right is 
showing sufficient public sensitivity to this aspect, which 
this experienced prosecutor just indicated was so important in 
his work as a prosecutor. So I think your comments are 
absolutely right in terms of the efficacy in the fight against 
terrorism and the need to keep public confidence that we are 
doing the right thing.
    Mr. Wainstein, you have an important responsibility as the 
first nominee to the position of assistant attorney general for 
the newly created National Security Division. In a very real 
sense, as you know, you owe your job, should you be confirmed, 
to the Congress. This new division and your position to lead it 
were created in the recently passed PATRIOT Act reauthorization 
bill.
    While I voted against that bill, I certainly support the 
goals of the new division, and I very much hope that it will 
serve the purpose for which it was created, to bring the 
disparate parts of the Department that deal with intelligence 
and national security together under a single chain of command, 
thereby minimizing turf battles and allowing the Department to 
more efficiently carry out its work to fight and prevent 
terrorism and espionage. As the first assistant attorney 
general for this new division, you will shape the procedures 
and guidelines for your successors, and will therefore have a 
big influence on whether the new division succeeds.
    I think you also have an important role in repairing the 
rift that has developed during this administration between the 
Department and the Congress. The Attorney General hardly ever 
appears before this Committee or its counterpart in the House. 
When he does, he won't answer our questions. When we ask him 
followup written questions, he takes a very long time to answer 
them or provides non-responsive answers.
    The administration has pursued a confrontational and highly 
political approach to reauthorizing the PATRIOT Act, refusing 
to agree to even the modest and reasonable changes to the Act 
that Chairman Specter proposed and this Committee adopted by 
unanimous vote.
    Then we have the NSA spying scandal which I think has 
presented a constitutional crisis the likes of which this 
country has not seen for a generation. With the full support of 
the Department of Justice, the administration takes the 
position that the President has the inherent power to violate 
any law that touches on national security or terrorism. That 
theory raises the question of whether much of what we do in 
this Committee or in the Senate is an elaborate charade with no 
real effect, because in the end the administration has claimed 
for itself the power of this branch of Government to write the 
laws and the power of the third branch of Government to 
interpret them.
    So obviously, because of that history, you have the 
opportunity and need to, I think, do some fence-mending, not 
personally, but with regard to this record of the 
administration, and I hope you are eager to do that. Protecting 
Americans from terrorism is our No. 1 priority in Congress, as 
it is in the Department, and this Committee does want to be 
helpful in your work.
    I would like to ask you first whether you agree that the 
fight against terrorism, with all its complexities and dangers, 
can be better carried out with the legislative and executive 
branches of Government working together than if they are at 
loggerheads.
    Mr. Wainstein. Thank you very much for your words, Senator. 
As to the question about how we can best pursue the war against 
terrorism, absolutely no question, the best way that we can 
pursue that war and the best way we can protect our country men 
and country women against crime or terrorism, any kind of 
threat, is working jointly, both Congress and the executive 
branch.
    I have seen examples of that over the years in the law 
enforcement context where Congress has provided the tools that 
we need to protect our citizens. I have seen it in the PATRIOT 
Act where, thanks to, I think, some very sound legislation by 
Congress, we now have a balanced PATRIOT Act which has provided 
us the tools we need to fight the war against terror, but also 
has provided a number of new safeguards that weren't in place 
prior to the reauthorization act.
    So I see that as an example of the benefit of working 
jointly between--having the executive branch work closely with 
the legislative branch. And I would see that it would be my 
duty to work very closely, to seek your input, and to provide 
you input where it would assist you in satisfying your duties.
    Senator Feingold. I am a member of the Intelligence 
Committee, as well as the Judiciary Committee. So I, of course, 
agree with the Chairman's comments about the need for 
intelligence and I understand very well the need for secrecy in 
intelligence matters. But I also believe that in many cases 
this administration has pursued policies of secrecy for 
political reasons rather than for national security reasons.
    Can we count on you to be a voice in internal DOJ 
deliberations for more cooperation and consultations with 
Congress and more openness with the public?
    Mr. Wainstein. Thank you, Senator. You have gotten to, I 
think, a point that relates to a point raised by the Chairman 
about the importance of instilling confidence in the public and 
in the Congress in our programs and our activities. And I think 
the only way to do that is to have contact and to talk about 
the issues we have in common, to have open channels of 
communication, and I will endeavor to do that.
    I think it will be particularly critical as we stand up 
this new division to seek the assistance and the input of 
Congress and to let you know what we are doing because you will 
be very interested in seeing how our organization reflects the 
best ideals of defense of our national security as well as 
protecting civil liberties.
    Senator Feingold. Just to be clear in the record, it is my 
hope that you will be an advocate for what you just said in the 
internal DOJ deliberations.
    Mr. Wainstein. Yes, Senator, I will be an advocate for that 
to anybody.
    Senator Feingold. From July 2002 until May 2004, you worked 
at the FBI, first as general counsel to the FBI and then as 
Director Mueller's chief of staff. Were you read into the NSA 
program during that time?
    Mr. Wainstein. I was aware of the program, yes, sir.
    Senator Feingold. And did you ever express concern about 
the legality in constitutional and internal deliberations 
within the FBI or the Department of Justice?
    Mr. Wainstein. No. When I got there to the FBI, Senator--I 
got there in, I think, the summer of 2002, and the program had 
been ongoing for, I think, eight or 9 months at that time and I 
was never asked to render any opinion on the program. I never 
was asked to be involved in any operational matters relating to 
the program. I was familiar with the program and that is about 
the extent of it.
    Senator Feingold. So you never did render any kind of 
opinion as to your view as to the legality of the program?
    Mr. Wainstein. No, I didn't, sir.
    Senator Feingold. If confirmed to your new position, you 
will head the section of the Department that is responsible for 
submitting applications under FISA to the Foreign Intelligence 
Surveillance Court. That statute and that court, of course, 
were bypassed by the President authorizing the NSA warrantless 
spying program.
    Both Representative Jane Harman of the House and Senator 
Dianne Feinstein, a member of this Committee and the Senate 
Intelligence Committee, have received as much information about 
the NSA program as any Member of Congress. They both have said 
they believe that this program could be carried out consistent 
with the current FISA statute.
    Are you comfortable with undertaking this new position with 
overall responsibility for complying with the FISA statute 
knowing that the administration is undertaking a significant 
surveillance program outside of that law?
    Mr. Wainstein. Yes, Senator, and you have obviously touched 
on a very important debate that is ongoing right now about the 
parameters of the FISA statute and the constitutionality of the 
terrorist surveillance program. I have read the publicly 
available documents both supporting the program and those 
saying that the program is not constitutional.
    I have found the 42-page white paper that was submitted by 
the administration to provide a fairly compelling justification 
for the program. If I am fortunate enough to take this job, one 
of the first things I would do is I would look at the 
intersection of those two programs, the FISA operations and 
this program, to make sure that in practical terms they are 
working in tandem and they are working appropriately. And I 
imagine I would also take a look at the law and if I have an 
opinion about the law and the legal justification for the 
program, I will voice that opinion.
    Senator Feingold. Obviously, I respect your view and would 
not have expected you to say something different. All I can say 
is I have been involved with the law for decades myself and I 
have reviewed all these materials and I have rarely seen a 
weaker case for any legal argument in my life.
    You indicated that you believe that the white paper is 
compelling?
    Mr. Wainstein. Well, Senator, I have read that and I have 
to admit that I have not gone beyond to look at the back-up 
materials, to look at the case law, read the cases cited. And I 
haven't looked at the variety of position papers that are at 
odds with that, but I have----
    Senator Feingold. Fair enough, but with regard to the 
authorization of military force for Afghanistan as being a 
justification for this, which is included in the White House 
paper, do you find that compelling as a justification for the 
NSA surveillance program outside of FISA? Do you find that 
compelling?
    Mr. Wainstein. Once again, I haven't gone back and really 
noodled through it as I would before I felt comfortable as a 
responsible lawyer rendering an opinion on something. But I 
looked at the analogy of the Hamdi case, where the Supreme 
Court found that detentions were authorized by the 
authorization of the use of military force, and that seemed to 
be an analogous situation and it seemed to apply here.
    Senator Feingold. Well, we have been back and forth on this 
with Senator Graham and others on the Committee. Fair enough. I 
know that is not your purpose in being here, but I ask these 
questions to highlight obviously the significance of this vis-
a-vis your position; that you have an opportunity, and you are 
obviously highly qualified to do it, to try to help us improve 
this relationship between the executive and the Congress in 
this area. And at the core of it is our ability to believe that 
the President and the executive is not overreaching with regard 
to the law.
    So that is a concern I have, but I certainly want to work 
with you in a cooperative way to resolve our differences. I 
wish you well.
    Thank you.
    Mr. Wainstein. Thank you, Senator. I appreciate those kind 
words, and I assure you that I will work with you with the same 
desire to serve each other's purposes and provide each other 
communication and information that we need.
    Senator Feingold. Thank you, Mr. Chairman.
    Senator Brownback. Thank you, Senator Feingold, and I 
appreciate the thoughts. And I can guarantee you, Mr. 
Wainstein, they come from a deep-felt heart on the part of 
Senator Feingold to try to protect the rights of the 
individual. It is that sort of bipartisan approach on 
intelligence-gathering that I am hopeful we can move forward 
with, and that you can really be at the vortex of making that 
happen. It is needed if we are going to maintain the support 
that we need for the war on terrorism for the decades that it 
is going to take to prosecute this war. We have got to get 
everybody's support in it and keep it there. So I hope you 
continue to work with us on this Committee, Senator Feingold 
and myself and many others, to do that.
    Mr. Wainstein. Thank you, Mr. Chairman. I appreciate your 
support.
    Senator Brownback. Thank you.
    We will maintain the record open for the requisite number 
of days. We appreciate your attendance. The hearing is 
adjourned.
    Mr. Wainstein. Thank you, sir.
    [Whereupon, at 4:19 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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NOMINATIONS OF ANDREW J. GUILFORD, OF CALIFORNIA, TO BE DISTRICT JUDGE 
FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND FRANK D. WHITNEY, OF NORTH 
   CAROLINA, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH 
                                CAROLINA

                              ----------                              


                        WEDNESDAY, MAY 24, 2006

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:03 p.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. The hearing will now come to order, a few 
minutes late, and the Chair recognizes my two friends, 
colleagues, distinguished Senators from North Carolina, and 
ladies first.

PRESENTATION OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. ELIZABETH 
     DOLE, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

    Senator Dole. Thank you, Mr. Chairman, and I want to thank 
you for holding today's hearing. It is my great honor to 
introduce Frank DeArmon Whitney, the President's nominee to 
serve as a U.S. district judge in the Western District of North 
Carolina. Mr. Whitney brings an impressive record of 
accomplishment and achievement before this committee, and he is 
an outstanding choice for this important post.
    Frank Whitney has deep roots in North Carolina and in 
public service. He attended Wake Forest University and the 
business and law schools at the University of North Carolina at 
Chapel Hill. After receiving his law degree with honors, Frank 
clerked on the prestigious U.S. Court of Appeals for the 
District of Columbia Circuit for Hon. David Sentelle, a 
favorite son of North Carolina, and it is a privilege to have 
Judge Sentelle with us today.
    Upon completing his clerkship and a year in private law 
practice, Frank returned to North Carolina and dedicated 
himself to public service. For nearly 11 years, he served as an 
Assistant U.S. Attorney for the Western District of North 
Carolina. While in the Western District, he acquired 
substantial trial experience, both criminal and civil, and 
earned the respect of his colleagues and peers.
    In 2002, Frank was elevated to the post of U.S. Attorney 
for the Eastern District of North Carolina. As a result of his 
leadership, energy, and enthusiasm, the Eastern District has 
experienced a period of robust and resounding success. Among 
his many accomplishments, Frank Whitney has supervised what 
some have called ``the most successful public corruption 
prosecution in North Carolina history.'' He also has helped 
prepared Iraqis for the process of drafting a constitution and 
establishing a judicial system.
    He has even recovered North Carolina's original copy of the 
U.S. Bill of Rights, which was stolen from the State Capitol in 
1865.
    Senator Graham. Stolen?
    Senator Dole. His performance as U.S. Attorney has elicited 
high praise. The Raleigh News and Observer credited Frank 
Whitney for awaking elected officials to the importance of 
ethics in Government, and the newspaper attributed his 
incredible success to his restless mental and physical energy 
and Boy Scout idealism.
    Others who have had the opportunity to observe Frank's work 
have described him as aggressive yet fair. Those who know Frank 
best, including those who have worked for him in the U.S. 
Attorney's Office, are effusive in their support for his 
nomination.
    One of Frank's colleagues made the following assessment: 
``Frank is personable and gracious, yet knows the law and seeks 
justice. He has an abiding love for our country and is deeply 
committed to the principles that have made it great. He 
appreciates the historic separation of powers and understands 
judicial self-restraint. Frank possesses vast legal knowledge 
and demonstrates admirable judicial temperament.''
    Mr. Chairman, this description is consistent with 
everything that I know about Frank Whitney, and I submit that 
this is precisely the type of person we need on our Federal 
courts.
    I have spoken mainly of Frank's service for this country as 
its representative in court. But there is another component of 
his career that I must commend. That is his impressive record 
of military service, which began during his collegiate days at 
Wake Forest where he participated in ROTC. Frank is present a 
Lieutenant Colonel in the U.S. Army Reserves, and he has worked 
as an intelligence officer and as a judge advocate. He has been 
awarded numerous military honors, including a parachutist badge 
and three meritorious service medals.
    Mr. Chairman, Frank Whitney truly has dedicated his life to 
serving his country as a civilian and as a soldier. Frank comes 
to this Committee with impeccable credentials, and I am 
confident that he would serve with great distinction as a 
member of the Federal judiciary. It is my privilege to give him 
my strongest endorsement.
    Thank you again for holding a hearing for this 
distinguished North Carolinian and public servant. I hope that 
this Committee will act with due speed on his nomination and 
that I soon will have the opportunity to cast a vote for his 
confirmation on the Senate floor.
    Thank you very much.
    Senator Graham. Thank you, Senator Dole. You can preach my 
funeral. That was pretty good.
    Senator Dole. All right.
    [Laughter.]
    Senator Graham. You have got a lot to live up to, Frank, 
when you come up here. Well done.
    Senator Burr?

PRESENTATION OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. RICHARD 
     BURR, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

    Senator Burr. Mr. Chairman, Senator Dole makes it very 
difficult to go second, and I forgot to say that it is an honor 
to be asked to speak on behalf of Frank Whitney to be a United 
States District Court Judge in the Western District of North 
Carolina.
    I saw the Chairman's eyes light up as Senator Dole talked 
about his military service, and I think in many ways it mirrors 
that of the Chairman. I am not sure who ranks higher, but I am 
sure we will find out before this hearing is over.
    [Laughter.]
    Senator Burr. Clearly, Frank's academic and professional 
credentials are quite impressive. He is currently U.S. Attorney 
in my home State. He has practiced in two very distinguished 
law firms. He was an Assistant U.S. Attorney. He has clerked in 
the D.C. District Court of Appeals. He graduated with honors 
from law school at UNC-Chapel Hill. And he was Phi Beta Kappa 
from my alma mater, Wake Forest. That should be enough right 
there just to put him on the bench.
    But I think Senator Dole put it best, that this is an 
incredibly impressive resume, and now you have to add to it 
that his most honorable characteristic is that he continued to 
do this while he served his country. He continues to serve in 
the Army Reserve, both as an intelligence officer and a judge 
advocate. He is a former paratrooper and received three 
meritorious service medals and recently was selected for 
promotion to Lieutenant Colonel, so I have a feeling you 
probably do outrank him.
    I could continue with the list of qualifications, but I 
think it is clear that this is a man that is well qualified to 
join the other fine Federal judges who currently preside in our 
State of North Carolina.
    But, Mr. Chairman, I think the most important qualification 
that I would like to note about Frank Whitney is he is a good 
man. I had the pleasure of meeting Frank and his family this 
morning when they visited my office--his wife Catherine, his 
daughter Hunter, and other family members. And I think that you 
will have the opportunity to meet them as well.
    Personally, as a husband and a father, I want to feel 
confident that the individuals that we extend a lifetime 
appointment to represent the things that I as a husband and a 
father think are important. Frank Whitney meets that goal.
    I feel confident that Frank does understand the importance 
of being a Federal judge. I know that Frank is qualified to 
serve on the bench. I am confident that Frank will continue to 
serve his Nation with honor and dignity. I believe Frank will 
continue to make his family proud, and I am 100-percent 
confident today that North Carolina will have one of the best 
Federal judges in the country in Frank Whitney.
    Mr. Chairman, I urge you and your colleagues to move his 
nomination as quickly to the floor out of Committee as we 
possibly can so that a State that has a number of vacancies 
today can begin tomorrow to fill those vacancies. And I thank 
the Chair.
    Senator Graham. Well, I want to thank both of my colleagues 
from North Carolina for, one, picking someone like this. This 
is what makes the law so well respected in our society. The law 
is well respected because we have good judges, good 
prosecutors, good defense attorneys, and you have hit a home 
run here. I appreciate both of you for not only picking someone 
that represents your State well but would represent our whole 
Nation well wearing the robe. And I promise you we will get 
this done very quickly.
    Thank you both.
    Senator Graham. All right. If you both would please raise 
your right hand. Do you solemnly swear the testimony you are 
about to give before this hearing is the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Guilford. I do.
    Mr. Whitney. I do.
    Senator Graham. Maybe a good way to start is for each of 
you just to introduce your families, if you don't mind.

 STATEMENT OF ANDREW J. GUILFORD, NOMINEE TO BE DISTRICT JUDGE 
             FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Mr. Guilford. Thank you, Mr. Chairman. I am honored to be 
here. I appreciate the opportunity to introduce my family. Is 
that better? Thank you. I'm glad I got that on before I had 
this unique opportunity.
    Obviously, I am honored to receive the nomination. I'd like 
to thank you, Mr. Chairman, for having this hearing and for the 
good work that you and this Committee does. I would like to 
thank the President, of course, for nominating me and in the 
State of California, Senators Boxer and Dorr--Senators Boxer 
and Feinstein have an advisory committee. I'm pleased with the 
advice that they've given that has brought me here.
    Someone who is not here are my mother and father, Howard 
and Elsie Guilford, who have been married now for over 60 
years. They were unable to come, but I did--I am blessed with a 
lot of people who were able to come.
    Let me first start with the Brusseau family, neighbors from 
the area: Judith Brusseau, please stand up. Charlotte Brusseau, 
Catherine Brusseau, and Rebecca Brusseau. Thank you all for 
coming.
    Next is my brother, who has been a JAG officer, a career 
JAG officer, which seems to be a popular career here today: 
Jeff Guilford. Thank you for coming, Jeff.
    Then my family over here, first my daughter, Amanda Murray, 
who is in a Ph.D. program at the University of Iowa. Her 
husband could not come because he is working on his Ph.D. 
program from Iowa. My daughter, Colleen Guilford, who in a few 
weeks will graduate from Harvard Law School. We are very proud 
of her. And last, but not least, my friend and wife for 32 
years, Loreen Guilford.
    Senator Graham. We welcome you all.
    Mr. Guilford. Thank you, Mr. Chairman.
    [The biographical information of Andrew J. Guilford 
follows.] 

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    Senator Graham. Thank you.
    Mr. Whitney?

STATEMENT OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE FOR 
             THE WESTERN DISTRICT OF NORTH CAROLINA

    Mr. Whitney. Thank you, Mr. Chairman. It is my honor also 
to introduce my family, if I may. To my far right is my mother-
in-law, Judy Ghoneim; my wife, Catherine; my daughter, Hunter. 
She's our 8-year-old. Our 10-year-old, Amy, is very 
disappointed because she's at home sick, and she wanted to be 
here today.
    The next row is my colleague and close friend, Bobby Higdon 
from the Justice Department, who is joining us today. An old 
friend of mine and my wife's, Kim O'Brien. My legal mentor, 
Judge David B. Sentelle of the U.S. Court of Appeals for the 
D.C. Circuit. My cousin and close friend, David Whitney, who's 
former chief counsel for Senator Helms and is currently counsel 
on the House Judiciary Committee. And behind him, my nephew, 
Will Austin.
    [The biographical information of Frank D. Whitney follows.] 

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    Senator Graham. Well, thank you. Welcome to you all, and 
particularly, Judge Sentelle, welcome to you. We really 
appreciate you coming and taking time from your duties to be 
here to support Frank.
    We will make this short and to the point, but we will start 
with you, Mr. Whitney. One of the great debates we have been 
having in the Senate is who should be a judge and why and how 
much does philosophy matter and what is the role of a judge, 
and is a conservative politician and a conservative judge the 
same thing, or a liberal politician and a liberal judge, are 
they the same thing? I don't think so, but if you could give me 
just a real brief explanation of what you believe your judicial 
philosophy is and how you see your job as a district court 
judge in terms of that philosophy.
    Mr. Whitney. Thank you, Senator. That's a very thoughtful 
question.
    This morning, my wife, daughter, and mother-in-law decided 
to do a little tour of Capitol Hill, and we walked down the 
street to the Library of Congress. On the way we stopped in 
front of the Supreme Court building, and I looked up over the 
colonnade and I saw the phrase, ``Equal Justice Under the 
Law.'' And I don't think anything more summarizes the 
importance of what district judges do. They ensure that all men 
and women are treated equally under the law. And I pledge to 
follow the law, adhere to the law, if confirmed, and apply 
equal justice under the law.
    Senator Graham. How do you think your military service has 
helped you, if at all, for this job?
    Mr. Whitney. Thank you for allowing me to share my thoughts 
on that. My military service is more beneficial to me than any 
other legal service because, as a judge advocate--and you know 
this, and I believe you do outrank me. I believe you are an 06 
Colonel.
    Senator Graham. Only in rank, not in----
    [Laughter.]
    Mr. Whitney. Thank you.
    Senator Graham. Thank God the two don't go together.
    [Laughter.]
    Senator Graham. I would have been in trouble a long time 
ago.
    Mr. Whitney. As you know, judge advocates deal with 
soldiers and dependents, with people. And my experience in 
private practice or in public practice, civilian public 
practice, has either been with businesses or representing the 
people of the United States. As a judge advocate, though, I 
represented soldiers' and dependents' personal needs, 
individual needs, and it really touched me how important it is 
that we are dealing with people. And as a judicial officer, I 
think I will be able to perform with an understanding that it 
is individuals that their lives we're dealing with as we make 
rulings on the law.
    Senator Graham. Thank you.
    Mr. Guilford, how would you describe your judicial 
philosophy? And how will it be applied to the job that awaits 
you?
    Mr. Guilford. Well, thank you for that interesting 
question, Mr. Chairman. I would agree with what Mr. Whitney has 
said. I would view the role of the judicial branch as being the 
branch that interprets the law and does not make the law, does 
not execute the law. It's the branch that interprets the law. 
And I would hope to do that as the law is written. And I would 
hope to do it with humility. I think if we bring to the bench 
judges with humility, we will get the right kind of rulings.
    Senator Graham. Well, I just want to again thank you both 
for being willing to serve in this important job. I know you 
are not doing it for the money. I hope we can pay our judiciary 
a more appropriate rate because you do leave private practice 
on many occasions. The ability to make money is left behind for 
public service, and I want to make sure our judiciary is not 
only independent but that people with families, like you, who 
are not independently wealthy, can still serve. If you have a 
kid in Harvard, you probably know what I am talking about.
    So it is very important to me that our judiciary be 
adequately compensated because people who are not independently 
wealthy with families can still financially be able to help our 
country. I look forward to supporting both of you, and 
congratulations to you and to your families, because there may 
be self-made men and women, I am just not one of them. If it 
weren't for people around me, my mentors, my family, and my 
friends, I would not be here. And I am sure it is the same for 
each of you. So congratulations. I hope you enjoy your time in 
Washington, and all of you should be rightfully proud of this 
moment because it was a team effort to get here. God bless.
    Mr. Guilford. Thank you, Senator.
    Mr. Whitney. Thank you, Senator.
    Senator Graham. The record will be left open for 1 week, 
and without any further input, the hearing is adjourned. Thank 
you.
    [Whereupon, at 2:20 p.m., the Committee was adjourned.]


 NOMINATIONS OF JEROME A. HOLMES, OF OKLAHOMA, TO BE CIRCUIT JUDGE FOR 
THE TENTH CIRCUIT; DANIEL P. JORDAN III, OF MISSISSIPPI, TO BE DISTRICT 
 JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI; AND GUSTAVO A. GELPI, 
  OF PUERTO RICO, TO BE DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO

                              ----------                              


                        THURSDAY, JUNE 15, 2006

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:03 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Tom Coburn, 
presiding.
    Present: Senator Coburn.

 OPENING STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE 
                       STATE OF OKLAHOMA

    Senator Coburn. The Committee will come to order. Today, we 
will have a confirmation hearing for three of the President's 
judicial nominees. I appreciate your willingness to appear 
before the Committee today. Our nominees have traveled some 
distance, and we appreciate that.
    I am particularly glad to see my friend, Mr. Holmes, a 
fellow Oklahoman here with us today. I hope we can quickly move 
all of your nominations through the Committee and get them 
voted on the floor as soon as possible.
    Senator Leahy will not be able to attend. He does have a 
statement, which I will put into the record under unanimous 
consent agreement, as well as a statement from Senator Kennedy.
    We have distinguished Members of Congress with us. Is 
Senator Cochran coming, Senator Lott?
    Senator Lott. I believe he is.
    Senator Coburn. And Senator Inhofe will be here.
    We will turn to our distinguished Members of Congress and 
allow them to introduce their nominees. First, we will start 
with Senator Lott.

 PRESENTATION OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT 
       LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI

    Senator Lott. Well, thank you very much, Mr. Chairman. It 
is a pleasure to call you Chairman, and it is such a delight 
also to realize that the Chairman of this Subcommittee chairing 
this hearing on the Judiciary Committee is not a lawyer.
    Senator Coburn. I think four of us on the Committee are not 
lawyers.
    Senator Lott. That is a very positive development. But 
don't get carried away. We are not going to allow you on the 
Supreme Court.
    Senator Coburn. I will not.
    Senator Lott. But thank you for having this hearing and 
allowing me to go forward. I know my senior colleague from 
Mississippi, Senator Cochran, will be here because he, like I, 
has known this family for at least 40 years, probably, and the 
young nominee that we are introducing today. So it is my great 
pleasure to introduce Daniel Jordan to the Committee. He is 
accompanied here by his wife, Teri--I want to recognize her--
and, more importantly, his daughter, Anna; and his mother and 
father. Dan Jr. was president of the student body and the 
brigade commander of the Army ROTC unit when I was a freshman 
at the University of Mississippi in 1959, and he was one of 
those leaders on campus we all looked up to, and his wife, 
Lou--she was Smeltzer then--was Miss Ole Miss, which is the 
greatest honor you could possibly achieve in Mississippi, other 
than being Miss America. But this is a great, great family, and 
the senior Dan Jordan--I do not know the exact title, but for 
lack of a better--is it curator?
    Mr. Jordan Jr. President of the Thomas Jefferson 
Foundation, which owns and operates Monticello.
    Senator Lott. Okay. He said it very well himself.
    You will notice how young Lou looks, and, of course, the 
husband there is not quite that young looking, but he has done 
an outstanding job at Monticello. And if you have not ever 
been, go and let him take you on the night tour, where you can 
actually feel the spirit and almost blow out the candle of the 
tour from Thomas Jefferson. I think you would really enjoy it. 
He recently was selected as the Outstanding Citizen of the 
State of Virginia, and I think that is a great acknowledgment 
by Virginia that it would pick a Mississippian.
    So we know the pedigree; we know the DNA of Dan Jordan. And 
we are very delighted that the President has seen fit to 
nominate him to the United States District Court for the 
Southern District of Mississippi.
    In Mississippi, his nomination has received bipartisan and 
broad support and praise, and that is really significant 
because that has not always been the reaction of our nominees 
in Mississippi. But Dan has become a very respected litigator, 
and even those who oppose him in the courtroom--and maybe those 
who oppose him have the most respect for him because they 
appreciate his demeanor and the type of attorney he has become 
and the kind of individual he is. He is a graduate of the 
University of Mississippi cum laude and the University of 
Virginia Law School, where he was on the Editorial Board of the 
Journal of Law and Politics. He is currently a partner with 
Butler, Snow, O'Mara, Stevens & Canada, the largest law firm 
based in Mississippi. In his practice, he has demonstrated the 
knowledge, professionalism, fairness, temperament, and skill 
that make him, I believe, ideally suited for the Federal bench.
    He has a history of work in public service. Before 
attending law school, he gained experience working in the 
Department of Interior and later as a legislative aide for the 
then-freshman Senator from Mississippi, yours truly. And since 
returning to Mississippi, he has continued to serve the public 
through numerous philanthropic outlets.
    He has served as the coordinator for the Jackson, 
Mississippi-based Stewpot Legal Clinic, an organization 
providing legal assistance to the homeless. His tireless 
efforts prompted the executive director of the Mississippi 
Volunteer Lawyers Project to recently proclaim of Dan in these 
words: ``Words cannot express how he has given his time. He 
takes time out of his busy schedule to give back...He is just 
great.''
    He has been named one of Mississippi's ``Top 40 under 40,'' 
although I believe he is over 40 now, by the Mississippi 
Business Journal and honored as ``Jackson's Finest'' by the 
Mississippi Multiple Sclerosis Foundation. He is an active 
member of the Christ United Methodist Church in Jackson and is 
the father of two.
    He has the education, the experience, the reputation, and I 
think most importantly, the temperament to be an outstanding 
and fair judge. He is young, but he is wise and mature beyond 
his years. He is a perfect example of the kind of person that 
we need in the Federal judiciary, and so it is my great honor 
to be here to endorse the nomination and ask for the speedy 
confirmation of Dan Jordan of Mississippi to the Southern 
District of the Federal court.
    Senator Coburn. Thank you, Senator Lott.
    Next is my senior Senator, Senator Inhofe from Oklahoma. 
Senator Inhofe?

 PRESENTATION OF JEROME A. HOLMES, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE TENTH CIRCUIT, BY HON. JAMES M. INHOFE, A U.S. SENATOR 
                   FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Mr. Chairman. I apologize for 
being late. As you know, we have the Armed Services bill on the 
floor right now.
    Well, I am here to endorse very heartily Jerome Holmes from 
Oklahoma. I cannot say enough good things about this guy. I 
have known him now for quite a number of years, and I have 
followed him. And, you know, it is not very often--and I think 
probably the two of us would fit in the category. It is hard to 
find someone that everybody likes. But everybody likes this 
guy. He has the temperament, he has the background, and the 
family background, to really appreciate what life in America is 
all about and what he should be doing in his public service.
    His family is no stranger to serving the public. His 
father, Ryland Holmes, was in the Foreign Service, which took 
the family to places such as Ethiopia and Korea. Since I have 
an Ethiopian granddaughter, we have had some conversations 
about that. His mother, Hattie Holmes, was a public school 
teacher when they lived overseas, and she was an administrator 
at the University of the District of Columbia when they 
returned to the United States.
    He earned his law degree from Georgetown University in 1988 
and his master's in public administration from Harvard 
University in 2000. He practiced law privately from 1991 to 
1994 and was an Assistant U.S. Attorney for the Western 
District of Oklahoma. I believe that this distinguished service 
as Assistant U.S. Attorney helped him secure an impeccable 
reputation in the legal field. He was recently sworn in as the 
Vice President of the Oklahoma Bar Association and is currently 
director at one of Oklahoma's premier law firms, Crowe & 
Dunlevy.
    He goes above and beyond the call of duty and is an active 
member of the Oklahoma Bar Association's Rules of Professional 
Conduct Committee and the Commission on the Homeless and 
Poverty of the American Bar Association. He also co-chairs the 
Crowe & Dunlevy Diversity Committee. He was a member of the 
Oklahoma City bombing prosecution team.
    Not only has Jerome Holmes enjoyed a stellar professional 
career, but he has received numerous award for his service, 
including the Director's Award from the Executive Office of the 
U.S. Attorneys for superior service and many, many others that 
I will submit for the record.
    I would like, though, to say that in addition to my 
recommendation, I have comments in letters from an abundance of 
people, but I would like to only mention one, Mr. Chairman, and 
that is a statement by the Tenth Circuit Judge William 
Holloway. He said, ``I am pleased to recommend highly my former 
clerk, Jerome Holmes...He is dedicated to the highest standards 
of intellectual service and performed his work for our court as 
my clerk with complete impartiality and compassion for the 
people whose cases were before the court.''
    So I would say the same thing as Senator Lott said. I 
recommend his confirmation as soon as possible, and I can 
assure you that our judicial system will be better off with 
Jerome Holmes.
    Thank you.
    Senator Coburn. Thank you, Senator.
    Next we have Representative Luis Fortuno of Puerto Rico. If 
you would, you are recognized for 5 minutes.

PRESENTATION OF GUSTAVO A. GELPI, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE DISTRICT OF PUERTO RICO, BY HON. LUIS G. FORTUNO, THE 
  RESIDENT COMMISSIONER IN CONGRESS FROM THE COMMONWEALTH OF 
                          PUERTO RICO

    Resident Commissioner Fortuno. Thank you, Mr. Chairman. As 
the sole Representative in Puerto Rico of the 4 million U.S. 
citizens residing in Puerto Rico, it gives me great pleasure to 
introduce U.S. Magistrate Judge Gustavo Gelpi to the Senate 
Judiciary Committee. On April 24, 2006, our President, George 
W. Bush, nominated him to fill a vacancy in the U.S. District 
Court for the District of Puerto Rico.
    Mr. Chairman, I am honored to appear before you today in 
enthusiastic support of his nomination. Mr. Gelpi was born in 
San Juan, Puerto Rico, and educated at the Suffolk University 
Law School and Brandeis University, both in Massachusetts. 
Early in his legal training, he worked as a student law clerk 
to U.S. Magistrate Judge Joyce L. Alexander and as a law clerk 
to U.S. District Judge Juan Perez-Gimenez. From 1993 to 1996, 
he worked in the office of the Federal Public Defender for the 
District of Puerto Rico as assistant Federal public defender. 
In 1996, Mr. Gelpi became Special Counsel for the United States 
Sentencing Commission in Washington, D.C. In 1997, he started 
working in the Puerto Rico Department of Justice, first as a 
special aide to the Attorney General and subsequently as 
Assistant Attorney General. In 1999, he continued his 
distinguished public service career by becoming the Solicitor 
General of Puerto Rico.
    Since 2001, Magistrate Judge Gelpi has served with 
distinction as a U.S. Magistrate in the U.S. District Court for 
the District of Puerto Rico.
    Magistrate Judge Gelpi has been actively involved in groups 
and committees dedicated to educating and improving the legal 
profession. He is a member of the Criminal Justice Act 
Committee, U.S. District Court for the District of Puerto Rico; 
the Federal Bar Examination Committee, District Court for the 
District of Puerto Rico as well; Fellow, Federal Bar 
Association; and the Vice President for the First Circuit, 
Federal Bar Association, among others. He has published several 
law review articles on maritime law, criminal law, and ethics.
    His impeccable record in public service and in the field of 
law has earned him a place among the most distinguished jurists 
and attorneys in Puerto Rico. On May 2, 2006, Gelpi was awarded 
an Honorary Doctor of Laws Degree by his alma mater, Suffolk 
University Law School.
    This nominee has received widespread support from those who 
have worked with him. Those who encounter him in the courtroom 
speak with respect and admiration. The Federal Bar Association, 
Puerto Rico Chapter, expressed its unconditional satisfaction 
with his qualifications and recognized him, and I quote, as an 
``exceptional, competent, and qualified Federal legal 
professional.'' The Hispanic National Bar Association likewise 
expressed unconditional satisfaction with his qualifications, 
noting, and I quote again, ``seldom have we witnessed such an 
accomplished career and steadfastness of service in a candidate 
for the United States District Court of Puerto Rico.''
    On May 30, 2006, the American Bar Association issued a 
unanimous vote rating Mr. Gelpi as ``Qualified'' for 
appointment as judge of the United States District Court for 
the District of Puerto Rico. Mr. Chairman, Mr. Gelpi without 
any doubt is at the top of the legal profession in his 
community. I believe that Mr. Gelpi possesses the intellectual 
capacity and dedication to faithfully and impartially perform 
the duties of his new position. It is my pleasure to introduce 
to you and to recommend with enthusiasm Mr. Gustavo Gelpi, a 
nominee that fully understands the responsibility that a 
position on the Federal bench entails and will excel, I am 
sure, in his new position.
    Thank you again, Mr. Chairman. I thank you all for being 
here today.
    Senator Coburn. Thank you, Congressman Fortuno.
    Next we have one of my favorite people in the Senate, the 
Chairman of the Appropriations Committee, Hon. Thad Cochran. 
Senator?

 PRESENTATION OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT 
 JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD 
     COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI

    Senator Cochran. Mr. Chairman, thank you for the 
opportunity of being here today to recommend to the Senate 
Judiciary Committee Daniel Jordan III for service as a judge on 
the United States District Court for the Southern District of 
Mississippi. I have been here a good many years now, and we 
have had several distinguished candidates for the Federal 
judiciary before the Committee for review and for confirmation. 
But I frankly do not recall anyone who has ever been better 
qualified to serve in the position to which he has been 
nominated than Dan Jordan III. He is a very intelligent, hard-
working, conscientious lawyer in the largest city in our 
State--Jackson, Mississippi. He is affiliated as a partner with 
one of the leading law firms in our State, the largest, really, 
of homegrown law firms practicing in our State of Mississippi. 
And he has an unblemished record in terms of good character, 
good judgment, professional competence, and just generally 
being a good citizen.
    I do not know of any other more compelling evidence of that 
than the amount of time and effort he has volunteered to help 
the victims of the Katrina disaster. He went to the Gulf Coast 
and helped establish a pro bono legal assistance operation 
there, providing advice, counsel, and assistance to those who 
were victims of that devastating hurricane in our State. It was 
not fun even just being on the coast during the last several 
months because of the widespread and complete destruction that 
occurred in that part of our State. And so leaving your family 
and your law practice and other responsibilities and spending 
the time and effort that he has personally spent to that cause 
I think is very impressive and it illustrates the kind of 
person he is.
    But beyond that, I have known his parents. I happened to be 
in college with them. As a matter of fact, his father and I 
were good friends. His father was a varsity basketball player 
at the University of Mississippi, and incidentally, Dan Jordan 
was captain of his high school basketball team in Richmond, 
Virginia, where he was when he was in high school. Dan and Lou 
Jordan, his parents, are some of the best respected and finest 
people that we have from Mississippi. They live In 
Charlottesville because Dan Jr. is the President of the Thomas 
Jefferson Foundation, which has the responsibility of managing 
and seeing to the operations, overseeing Monticello, the Thomas 
Jefferson home there. He serves as a visiting scholar at the 
University of Virginia as well because he was a distinguished 
history professor before he assumed this responsibility. But 
they live there now, and that is where Dan spent some of his 
growing-up days. But they are Mississippians. They go way back 
in our State. And Dan III returned to Mississippi after he 
graduated from law school at the University of Virginia where 
he had done very well as a student. He immediately went to work 
in the law firm there in Jackson. He is involved in litigation. 
He has been honored for his good work in the legal circles. He 
has been President of the Young Lawyers Section of the 
Mississippi State Bar, a job I used to have. I thought that was 
about the highest honor I could ever hope to have. It was a big 
deal. But it is an indication in his case of the respect that 
other lawyers have for him who are his age and beyond.
    He is an ideal person for this job, and I am really glad 
that I had a chance to come by today to congratulate him and to 
indicate to the Committee the high opinion I have of him and 
the high hopes I have of his service on the Federal judiciary.
    I predict he will serve with great distinction and reflect 
credit on his family and on our State and on this Committee for 
recommending his confirmation by the Senate.
    Thank you.
    Senator Coburn. Senator Cochran, thank you so much.
    I would now ask for our nominees to come forward and rise 
and lift your right hand. Do you swear that the testimony you 
are about to give before this Committee is the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Holmes. I do.
    Mr. Jordan. I do.
    Judge Gelpi. I do.
    Senator Coburn. Please be seated.
    Our first nominee is Jerome Holmes. He is nominated to be a 
circuit court judge on the United States Court of Appeals for 
the Tenth Circuit. If confirmed, Mr. Holmes will be the first 
American of African descent to serve on that court. Mr. Holmes 
comes before this Committee with stellar academic and legal 
credentials. He graduated from Wake Forest University cum laude 
in 1983, Georgetown University Law Center in 1988. While at 
Georgetown, he served as editor-in-chief of the Georgetown 
Immigration Law Journal. Recently, in 2000, he earned his 
master's of public administration from Harvard's Kennedy School 
of Government.
    Between college and law school, he worked briefly as a 
social services assistant with the D.C. Department of 
Corrections. While in law school, he clerked for Hon. Wayne E. 
Alley of the U.S. District Court for the Western District of 
Oklahoma and Hon. William J. Holloway of the U.S. Court of 
Appeals for the Tenth Circuit.
    Following his clerkships, he spent 3 years in private 
practice as an associate with the well-regarded law firm of 
Steptoe & Johnson. In 1994, he began a distinguished career as 
a Federal prosecutor, serving as an Assistant U.S. Attorney in 
the Western District of Oklahoma. Among other duties, he 
prosecuted public corruption, Federal criminal civil rights 
violations, and was the office's first antiterrorism 
coordinator. He also worked on the prosecution team that built 
the case against the perpetrators of the Oklahoma City bombing.
    Since 2005, he has been a director of the prominent law 
firm of Crowe & Dunlevy, where he has focused on white- collar 
criminal defense and complex litigation. He also chairs the 
firm's Diversity Committee.
    Mr. Holmes has given back to the people of Oklahoma by 
taking leadership roles in a wide variety of civic 
organizations. These include services as director of the 
Oklahoma Medical Research Foundation, a trustee of the Oklahoma 
City National Memorial Foundation, director of the Oklahoma 
Academy of State Goals, Chairman of the City Rescue Mission, 
and Vice President of the Oklahoma Bar Association. the 
American Bar Association has unanimously found Mr. Holmes to be 
qualified to serve on the Tenth Circuit.
    Our second nominee today is Gustavo Antonio Gelpi, 
nominated to be a district court judge for the District of 
Puerto Rico. As magistrate, he was nominated by President Bush 
to be a judge on the U.S. District Court for the District of 
Puerto Rico on April 24, 2006. He graduated from Brandeis 
University in 1987, received his J.D. from the Suffolk 
University Law School in 1991. He began his legal career 
clerking for Hon. Juan Perez-Gimenez on the U.S. District Court 
for the District of Puerto Rico.
    Following his clerkship, he joined the Office of the 
Federal Public Defender for the District of Puerto Rico as an 
assistant Federal public defender. In that capacity, he 
provided legal assistance to the indigent defendants in 
criminal cases. During his time in the public defender's 
office, he served as special counsel to the U.S. Sentence 
Commission, where he worked on revisions to Sentencing 
Guidelines.
    In 1997, he joined the Puerto Rico Department of Justice as 
an Assistant to the Attorney General. Later that year, he 
joined the Department's Office of Legal Counsel. In 1999, he 
began serving as Puerto Rico's Solicitor General. Following the 
year as Solicitor General, he entered private practice with the 
San Juan firm of McConnell Valdes, where he has worked on 
commercial litigation. In 2001, he was appointed to serve as 
U.S. magistrate judge for the District of Puerto Rico. In that 
capacity, his recommendations have consistently been adopted by 
the district court. The American Bar Association unanimously 
rated Judge Gelpi as qualified.
    Finally, Daniel Porter Jordan III, our third nominee, was 
nominated to be a district court judge for the Southern 
District of Mississippi. He received his BBA from the 
University of Mississippi in 1987, his J.D. from the University 
of Virginia Law School in 1993. Between college and law school, 
he was a legislative assistant, as we heard earlier, for 
Senator Trent Lott. That had to have been fun. Following law 
school, he joined Butler, Snow, O'Mara, Stevens & Canada as an 
associate, and since 2000, he has been an equity member of the 
firm, practicing chiefly in the area of product liability. He 
has also gained significant experience in mediating cases. He 
has been very involved with the Mississippi Bar Association, 
including serving as a member of the Board of Directors, and 
both Secretary and Treasurer of the Litigation Section. He has 
been active in pro bono activities and was awarded the Hinds 
County Bar Association Pro Bono Award in 2005. He has received 
a unanimous qualified rating by the American Bar Association.
    Gentlemen, we welcome you to the Committee today. We would 
be pleased to hear any statement that you care to make, and I 
would ask that you introduce your family and friends who are 
here for your hearing. Please try to limit your statements to 5 
minutes. We will not enforce that, however, if you feel that 
there is more that we should have. We will begin with Mr. 
Holmes. Welcome.

STATEMENT OF JEROME A. HOLMES, NOMINEE TO BE CIRCUIT JUDGE FOR 
                       THE TENTH CIRCUIT

    Mr. Holmes. Thank you, Dr. Coburn. I don't believe I will 
need to go over 5 minutes.
    I do not have a formal statement to make, but I would like 
to thank President Bush for the confidence and trust that he 
has placed in me in nominating me for this important position 
on the Federal bench. I would like to thank you, Dr. Coburn, 
for all of your support, as I have gone through this nomination 
process. I would also like to extend warm thanks to Senator 
Inhofe both for his kind remarks today and for his kind remarks 
through this process that have been very encouraging to me and 
supportive.
    With me today are my sister, Jean W. Holmes, who is a 
resident of the District of Columbia and who works at the 
Environmental Protection Agency; and my law partner and good 
friend, William H. Hoch III. Will on very short notice arranged 
to come to Washington to be here for this proceeding, and I am 
very grateful for that.
    With that, I would welcome any questions from the Senator 
at the appropriate time.
    [The biographical information of Mr. Holmes follows:] 

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    Senator Coburn. Thank you.
    Mr. Jordan?

STATEMENT OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT JUDGE 
            FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

    Mr. Jordan. Thank you, Senator. I, too, would like to thank 
the President for this tremendous opportunity. I am humbled by 
it and excited for it.
    I also want to thank Senators Lott and Cochran. They have 
meant a lot to me and my family for years, and it was a real 
pleasure working here in the Senate for Senator Lott.
    I feel like you know my family well at this point, but I 
will introduce them anyway. This is my wife, Teri; my daughter, 
Anna, who is 8; my mother, Lou Ellen; and my father, Dr. Daniel 
Jordan. My son, Robert, is 5 and he is not with us today. I 
thought this would go more smoothly if he stayed at home.
    [Laughter.]
    Mr. Jordan. But I, too, appreciate this opportunity and 
look forward to answering your questions. And I am sorry, I do 
want to also thank two friends, former colleagues, Shelly 
McCain and Jennifer Hawks Bland, who surprised me by showing up 
today. I am very pleased to see them.
    Thank you.
    [The biographical information of Mr. Jordan follows:] 

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    Senator Coburn. Judge Gelpi?

STATEMENT OF GUSTAVO A. GELPI, NOMINEE TO BE DISTRICT JUDGE FOR 
                  THE DISTRICT OF PUERTO RICO

    Judge Gelpi. Thank you, Senator. I join my colleagues. I 
would also like to thank the President for nominating me, as 
well as you and the members of this Committee for having me 
here today. I would also like to thank Congressman Fortuno for 
being here with me today.
    Today with me is my father, who gave me his same name. He 
is sitting right behind me.
    Senator Coburn. Welcome.
    Judge Gelpi. I also have some friends from Puerto Rico and 
from the Mainland who are here today and former colleagues of 
mine from the Sentencing Commission. They are here as well. My 
wife and children, 5 and 2 years, respectively, are not here 
today. Like Mr. Jordan, I felt the hearing could go smoother. 
They are not here, but they are here in spirit. They thank you 
also for having me here today.
    [The biographical information of Judge Gelpi follows:] 

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    Senator Coburn. Thank you. All right. Well, we will start 
out with some questions. The record will be left open for 
questions by other members of the Committee for one week, and 
staff should advise members of such.
    Mr. Holmes, you have considerable experience in the area of 
counterterrorism. As an Assistant U.S. Attorney, you served on 
the prosecution team for the Oklahoma City bombings and then 
after September 11, 2001, you served as coordinator for your 
office's counterterrorism efforts.
    What did you learn from those experiences?
    Mr. Holmes. They were valuable experiences to me, Dr. 
Coburn, in terms of understanding the importance of the threat 
that faces our Nation from terrorism and the importance of 
taking vigorous steps to address that threat.
    Senator Coburn. Do you feel that you have the ability to 
separate your ideology from your judicial philosophy?
    Mr. Holmes. Thank you, Dr. Coburn, for that question, 
because the answer is affirmatively and strongly yes. I very 
much understand the role of a judge, and the role of a judge is 
to be fair and impartial and to follow the law. Of all the 
things I can commit to, I can commit to following the law and 
following precedent. And my personal views and ideology, to the 
extent that I have an ideology, would be put aside and is not 
relevant for that role.
    Senator Coburn. All right. Thank you.
    Most of your experience has been in trial courts. How has 
that prepared you to be a circuit court judge?
    Mr. Holmes. Thank you, Dr. Coburn. As it relates to that 
question, I believe it has given me tremendous preparation for 
the role of an appellate judge. An appellate judge has an 
opportunity to only review the record, and to understand the 
context of the record, it often takes experience in the 
courtroom. The dynamic of the courtroom is very useful to the 
understanding of the cold record and what is going on and what 
the lawyers are trying to do and the constraints that the judge 
has to operate under in making decisions. And so I believe that 
that trial experience has given me ample preparation for the 
role of an appellate judge.
    Senator Coburn. You also in your career have found time to 
write and speak on a variety of issues. Some of those that you 
have written about are matters of public controversy. If you 
are confirmed, will you be able to put aside the import of 
these writings and judge each case that comes before you with 
an open mind bearing on stare decisis?
    Mr. Holmes. I very much appreciate that question, Dr. 
Coburn, because, again, the answer is absolutely yes. I 
recognize very clearly the distinction between the role of a 
writer on social policy issues in their personal capacity and 
the role of a judge in adjudicating the rights and liberties of 
individual litigants. And in that second, that latter role, it 
is inappropriate for me to import my personal views on policy 
issues into the decisionmaking process. My job in that role is 
to follow the law, to follow the precedent that I am bound by, 
the Supreme Court precedent, and I plan to do that, if 
confirmed.
    Senator Coburn. So on questions of affirmative action, 
there is no doubt in your mind you would follow stare decisis 
as set by the Supreme Court on cases that would come before you 
with regard to that?
    Mr. Holmes. If confirmed, Dr. Coburn, there is absolutely 
no doubt in my mind that I would follow the law and I would 
follow the binding precedents and adhere to stare decisis.
    Senator Coburn. Thank you, Mr. Holmes. Judge Gelpi, you 
have already had a distinguished career as both an advocate, as 
a public defender, and the Solicitor General for Puerto Rico. 
More recently, you have served on the other side of the bench 
as United States magistrate judge. Having seen judicial 
proceedings from both sides, would you speak briefly about the 
role and significance of judicial temperament?
    Judge Gelpi. Well, yes, thank you, Senator.
    Senator Coburn. Could you pull the mike a little closer to 
you?
    Judge Gelpi. Yes, sir.
    Senator Coburn. Thank you.
    Judge Gelpi. Thank you, Senator. Judicial temperament, 
particularly, I believe, at the district court level, is very 
important. We come face to face every day with attorneys, 
litigants. We have law enforcement agents, witnesses, and we 
have to deal with the public on a day-to-day basis in the 
courtroom and then in chambers, many times with attorneys. I 
believe it is very important for a judge to have temperament. 
You have to be able to listen to counsel, listen to both 
parties, never be predisposed before you listen to your case, 
because in my experience I have cases where you sort of have a 
gut feeling at the beginning, but you listen carefully to the 
parties, and then when you weigh the evidence or you listen to 
the final arguments, you realize you may have been wrong or you 
can change your mind. And it is very important to have that 
open-mindedness at all times.
    It is very important also to be courteous to all the 
parties, the litigants. They are human beings, just like the 
court, like the judge. It is also equally important to expect 
that same conduct and that same treatment from the parties and 
from counsel towards the court. And I think the court has to 
set an example, and if the court sets the example, the bar and 
counsel and litigants and everybody who appears before the 
court would follow.
    Thank you.
    Senator Coburn. Do you have a judicial philosophy that you 
could give in your testimony before this Committee?
    Judge Gelpi. I do not have a particular judicial 
philosophy. My own philosophy is to work as hard as I can and 
to apply the laws and Constitution of the United States at the 
trial level. That is what we do. We are not there to make new 
laws, to enlarge the Constitution or abridge the Constitution. 
That is the Supreme Court's role. We have to follow precedent 
from not only the Supreme Court but also from the First 
Circuit. So in that respect, that is my position.
    Senator Coburn. That sounds like a judicial philosophy to 
me.
    [Laughter.]
    Senator Coburn. You must know the district court and its 
caseload well. What are the unique challenges of that court?
    Judge Gelpi. Well, in Puerto Rico, I would say that the 
most unique challenge is the volume of criminal cases. We are 
one of the districts with the most multi-defendant cases, so 
what is most challenging is you have to be able to manage the 
criminal docket effectively. I have been a magistrate judge now 
for 5 years. I truly believe that in a big district like ours, 
with such a criminal docket, you have to rely on magistrate 
judges. So I hopefully will have, if confirmed, a successor who 
will assist me, as I have assisted the district court judges. 
Scheduling is extremely important and also just moving the 
cases along. And if you do that with the criminal docket, then 
the civil docket will also fall into place. And that is also 
very important because the civil litigants are also entitled to 
their day in court.
    Senator Coburn. All right. Thank you.
    Mr. Jordan, how have your private experiences as a private 
trial attorney prepared you to sit in the position as a judge?
    Mr. Jordan. Thank you, Senator. As a private attorney, 
primarily involved in civil litigation, I have been a part of 
that process my entire career. I frequently practice in the 
Federal courts within our State. I know the procedures. I know 
how the trials work. I have seen it. I have been there, I have 
done that on a firsthand basis. I think that it gives me a 
perspective as a litigator that I think will be helpful as a 
judge. If I am lucky enough to get confirmed and I have 
litigants before me, I will know what they are thinking. I will 
know what their hopes are. And I think that they will allow me, 
if I am confirmed, to help move the cases along and reach the 
correct result.
    Senator Coburn. You have been active in the Mississippi 
State Bar Association. You have also volunteered your legal 
services on a pro bono basis. We talked about the award that 
you got for pro bono. Will you tell us about your work with the 
Bar Association and your experience with pro bono work 
generally?
    Mr. Jordan. Certainly. Thank you, Senator. I became 
involved with the Mississippi Bar and also with the Young 
Lawyers Division in Hinds County, Jackson, really from the very 
beginning of my career. It is something that my law firm was 
very much supportive of. They encouraged us to get involved, 
and many of us did. One of the first leadership positions I had 
was as the President of the Jackson Young Lawyers Association, 
which is made up of roughly 300 attorneys. I thought that that 
was a great honor, and I thoroughly enjoyed my time there.
    I have also served on the Board of Directors for the Hinds 
County Bar Association on numerous committees, which I have 
enjoyed tremendously, and also on the State bar level.
    In terms of pro bono, I believe that it is a responsibility 
of all attorneys to dedicate a portion of their time to service 
for the disadvantaged. One of the first times I was ever in 
Federal court was pro bono representation on behalf of a 
hospice that could not afford to pay legal fees. Throughout my 
career, I think I have been fairly consistent about donating my 
time. Roughly 2 years ago, I recognized that there was a 
problem at the Stewpot Legal Clinic. This is an inner-city 
shelter for the homeless, and every Tuesday there is an 
attorney there giving free legal advice. But the problem was 
that they were having a hard time finding attorneys willing to 
show up to donate their time. So I asked if I could run the 
program. I am pleased that they allowed me to do it. It has 
been very rewarding for me to go down there.
    The type of law I practice typically deals with companies, 
and there is a lot of money involved. But when you sit down in 
a small room with somebody who has a very serious personal 
problem and you can help them with that problem, it is a 
tremendously rewarding experience.
    I have also worked down on the Gulf Coast some, which was--
you know, those people are in serious distress, and they needed 
the assistance of counsel. So I view that as a great 
opportunity, and I have really enjoyed that part of my 
practice.
    Senator Coburn. What do you see as your role as a judge in 
the Southern District of Mississippi?
    Mr. Jordan. Well, I believe the role of a trial judge is a 
limited role. If I am fortunate enough to be confirmed, there 
are precedents that the trial judges must follow. So many of 
the substantive areas of law have been addressed, whether it is 
Fourth Amendment rights, the scope of the Commerce Clause. You 
know, in my view it is not a discretionary issue for the trial 
judge.
    I really view the trial judge more as being on the front 
line of litigation and helping the cases get through the legal 
process.
    Senator Coburn. All right. Thank you.
    Would any of you like to add anything else for the record 
or make additional statements?
    Mr. Holmes. No, sir.
    Mr. Jordan. No, sir.
    Judge Gelpi. No, sir.
    Senator Coburn. Well, on behalf of the Judiciary Committee, 
I want to thank you for appearing today. We will leave the 
record open for one week until 5:00 p.m. on Thursday, June 
22nd, for members to submit written questions. If you do 
receive written questions, we would ask you to return them as 
promptly as you can. I can also tell you from my experience on 
the Judiciary Committee, delay in returning written questions 
is something that is not dealt with in a very kind way and not 
favorably toward your nomination. So I would advise you to be 
very prompt in your response to any questions that you do 
submit.
    With that, this hearing is adjourned.
    [Whereupon, at 2:42 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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