[Senate Hearing 109-397]
[From the U.S. Government Publishing Office]
S. Hrg. 109-397, Pt 5
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
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JUNE 21, JUNE 28, AND AUGUST 1, 2006
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Serial No. J-109-4
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PART 5
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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
WEDNESDAY, JUNE 21, 2006
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STATEMENTS OF COMMITTEE MEMBERS
Page
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina....................................................... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 52
PRESENTERS
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado
presenting Neil M. Gorsuch, Nominee to be Circuit Judge for the
Tenth Circuit.................................................. 1
Salazar, Hon. Ken, a U.S. Senator from the State of Colorado
presenting Neil M. Gorsuch, Nominee to be Circuit Judge for the
Tenth Circuit.................................................. 3
STATEMENT OF THE NOMINEE
Gorsuch, Neil M., Nominee to be Circuit Judge for the Tenth
Circuit........................................................ 4
Questionnaire................................................ 6
QUESTIONS AND ANSWERS
Responses of Neil M. Gorsuch to questions submitted by Senator
Leahy.......................................................... 39
Responses of Neil M. Gorsuch to questions submitted by Senator
Leahy on behalf of Senator Wyden............................... 45
SUBMISSION FOR THE RECORD
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado.... 49
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WEDNESDAY, JUNE 28, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 53
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 131
PRESENTERS
Lincoln, Hon. Blanche, a U.S. Senator from the State of Arkansas
presenting Bobby E. Shepherd, Nominee to be Circuit Judge for
the Eighth Circuit............................................. 53
Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas
presenting Bobby E. Shepherd, Nominee to be Circuit Judge for
the Eighth Circuit............................................. 54
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Kimberly Ann Moore, Nominee to be Circuit Judge for
the Federal Circuit............................................ 56
STATEMENTS OF THE NOMINEES
Moore, Kimberly Ann, Nominee to be Circuit Judge for the Federal
Circuit........................................................ 58
Questionnaire................................................ 59
Shepherd, Bobby E., Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 91
Questionnaire................................................ 93
SUBMISSIONS FOR THE RECORD
Allen, Hon. George, a U.S. Senator from the State of Virginia.... 128
Warner, Hon. John, a U.S. Senator from the State of Virginia..... 133
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TUESDAY, AUGUST 1, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 137
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 197
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 194
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 191
prepared statement........................................... 368
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 187
prepared statement........................................... 372
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 189
prepared statement and attachment............................ 382
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 201
PRESENTERS
Boxer, Hon. Barbara, a U.S. Senator from the State of California
presenting Valerie L. Baker, Nominee to be District Judge for
the Central District of California and Philip S. Gutierrez,
Nominee to be District Judge for the Central District of
California..................................................... 139
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Valerie L. Baker, Nominee to be District
Judge for the Central District of California and Philip S.
Gutierrez, Nominee to be District Judge for the Central
District of California......................................... 138
STATEMENTS OF THE NOMINEES
Baker, Valerie L., Nominee to be District Judge for the Central
District of California......................................... 202
Questionnaire................................................ 203
Besosa, Francisco Augusto, Nominee to be District Judge for the
District of Puerto Rico........................................ 245
Questionnaire................................................ 246
Gutierrez, Philip S., Nominee to be District Judge for the
Central District of California................................. 276
Questionnaire................................................ 277
Keisler, Peter D., Nominee to be Circuit Judge for the District
of Columbia Circuit............................................ 141
Questionnaire................................................ 142
QUESTIONS AND ANSWERS
Responses of Peter D. Keisler to questions submitted by Senators
Leahy, Kennedy, Biden, Durbin and Schumer...................... 313
SUBMISSIONS FOR THE RECORD
Bar of the District of Columbia, members who support the
nomination of Peter Keisler, Washington, D.C., joint letter.... 348
Berenson, Bradford A., Sidley Austin LLP, Washington, D.C. letter 350
Carpenter, David W., Sidley Austin LLP, Washington, D.C. letter.. 352
Chopra, Marie, Esq., FLEOA, Legislative Affairs, Washington,
D.C., letter and attachment.................................... 354
Coalition for a Fair and Independent Judiciary, Washington, D.C.,
joint letter................................................... 357
Comey, James B., McLean, Virginia, letter........................ 360
Fortuno, Hon. Luis G., Resident Commissioner of Puerto Rico,
statement...................................................... 361
Fraternal Order of Police, Chuck Canterbury, National President,
Washington, D.C., letter....................................... 364
Jones, George W., Jr., Sidley Austin LLP, Washington, D.C. letter 366
Kronman, Anthony, Professor of Law, Yale Law School, New Haven,
Connecticut, letter............................................ 370
Minow, Newton N., Sidley Austin LLP, Washington, D.C. letter..... 376
Phillips, Carter G., Sidley Austin LLP, Washington, D.C. letter.. 377
Sachs, Stephen H., Wilmer Cutler Pickering Hale and Dorr LLP,
Baltimore, Maryland, letter.................................... 380
Seitz, Virginia A., Sidley Austin LLP, Washington, D.C. letter... 389
ALPHABETICAL LIST OF NOMINEES
Baker, Valerie L., Nominee to be District Judge for the Central
District of California......................................... 202
Besosa, Francisco Augusto, Nominee to be District Judge for the
District of Puerto Rico........................................ 245
Gorsuch, Neil M., Nominee to be Circuit Judge for the Tenth
Circuit........................................................ 4
Gutterrez, Philip S., Nominee to be District Judge for the
Central District of Claifornia................................. 276
Keisler, Peter D., Nominee to be Circuit Judge for the District
of Columbia Circuit............................................ 141
Moore, Kimberly Ann, Nominee to be Circuit Judge for the Federal
Circuit, prepared statement.................................... 58
Shepherd, Bobby E., Nominee to be Circuit Judge for the Eight
Circuit........................................................ 91
NOMINATION OF NEIL M. GORSUCH, NOMINEE TO BE CIRCUIT JUDGE FOR THE
TENTH CIRCUIT
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WEDNESDAY, JUNE 21, 2006
United States Senate,
Washington, D.C.
The hearing was convened, pursuant to notice, at 4:05 p.m.,
in room SD-226, Dirksen Senate Office Building, Hon. Lindsey
Graham, presiding.
OPENING STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Graham. The hearing will come to order.
I apologize for being late. I would like to welcome my two
colleagues from Colorado. I appreciate you taking the time to
come before the Committee and testify.
If you are ready, Senator Allard.
PRESENTATION OF NEIL M. GORSUCH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT BY HON. WAYNE ALLARD, A U.S. SENATOR FROM
THE STATE OF COLORADO
Senator Allard. Mr. Chairman, it is good to see you here. I
am glad I yielded to you on the floor so you could be here to
preside over this hearing.
Senator Graham. For the audience, he said, ``I have to be
at a hearing at 4:00.'' I said, ``I do, too.'' No we know why.
Senator Allard. Now we realize we are both at the same
meeting. So, thank you.
Well, Chairman Graham and members of the Committee, it is
my pleasure to introduce to you Neil M. Gorsuch, President
Bush's nominee to the U.S. Court of Appeals for the Tenth
Circuit. Mr. Gorsuch is an extraordinarily well-qualified
nominee and, if confirmed, would capably serve the citizens of
Colorado, the Tenth Circuit, and indeed the United States.
I would like to begin by thanking Chairman Specter for so
promptly scheduling this hearing. I look forward to the
Committee's continuing the tone of expediency set by the
Chairman by swiftly reporting the nominee to the floor for a
timely up or down vote. It is critical to the administration of
justice that this seat, which has been vacant since last year,
be filled immediately.
I am pleased that we are joined today by Senator Salazar,
in what I hope is an early indicator of broad bipartisan
support for this nominee. I would also like to welcome Mr.
Gorsuch's wife, Louise, and her tow children, Emma and Belinda,
to the U.S. Senate.
Senator Graham. And let the record reflect, they are
beautiful children and a lovely wife.
Senator Allard. They are wonderful. All three of you no
doubt played an important role in your husband and father being
here today. Speaking from my own experience in public service,
your love and support will continue to be instrumental to his
ability to perform his public duties. You are embarking on this
journey together.
I would also like to welcome Mr. Gorsuch back to the U.S.
Senate. Some of you, including the Ranking Member, may remember
Mr. Gorsuch from his service as a Senate page in the early
1980's. It was here in the Senate that he made his foray into
public service, and developed the passion for it that he exudes
today.
As a fifth-generation Coloradan, I am pleased that
President Bush chose a nominee with deep Colorado roots. Born
in Denver, Mr. Gorsuch is a fourth-generation Coloradan who, if
confirmed, would carry on his family history of public service
in the State. His mother, Ann Gorsuch, served in the Colorado
State Legislature, and as EPA Director during the Reagan
Administration.
Moreover, his grandfather founded a successful Denver law
firm, Gorsuch Kirgis, where both he and Neil's father were
active in the community throughout the firm's 60-year history.
Neil, if confirmed, you no doubt look forward to returning
to Colorado, for family and the Rocky Mountains there await
you.
Mr. Chairman, if I were asked to succinctly characterize
Mr. Gorsuch, I would have to say well rounded: well rounded
educationally, professionally, and personally.
Mr. Gorsuch pursued a rigorous and geographically diverse
course of academic study. He earned his undergraduate degree
from Columbia University, including a summer at the University
of Colorado, his law degree from Harvard, and a doctorate in
legal philosophy from Oxford University.
Mr. Gorsuch began his distinguished professional career as
a law clerk to Judge David Sentelle on the U.S. Court of
Appeals for the D.C. Circuit. He then went on to clerk for two
Supreme Court justices, Justice Kennedy and Colorado's own
Byron White.
Following his prestigious clerkship, Mr. Gorsuch entered
private practice and became a partner in the law firm of
Kellogg, Huber, Hanson, Todd, Evans & Figel. While in private
practice, Mr. Gorsuch litigated matters of clients large and
small, ranging from individuals, to non profits, to
corporations.
Moreover, he litigated cases on a range of issues, from
simple contract disputes to complex antitrust and securities
fraud matters.
He left private practice in 2005 to return to public
service, this time at the U.S. Department of Justice, where he
currently serves as the principal deputy to the Associate
Attorney General.
Looking collectively at his career, the picture of an
appellate judge-in-training emerges. Mr. Gorsuch has served in
all three branches of the government, including the highest
levels of the judicial and executive branches: he has
represented both plaintiffs and defendants; he has represented
both individuals and corporations; he has litigated civil cases
and criminal cases; and he has litigated in both Federal and
State courts.
In sum, the breadth and depth of Mr. Gorsuch's experience
makes him ideally suited to serve on the Federal appellate
bench.
While Mr. Gorsuch is highly qualified, I also promised the
people of Colorado I would support judicial nominees who I
believe would rule on the law and the facts before then, not
judges who would legislate from the bench. My support of Mr.
Gorsuch here today is consistent with that promise.
Mr. Chairman, I see my time has expired. May I have
permission to finish my comments, which is just about a minute
and a half?
Senator Graham. Take all the time you need.
Senator Allard. Thank you.
From my conversation with Mr. Gorsuch, I am certain that he
recognizes the proper role of the judiciary. The role of the
judiciary is to interpret the law, not make the law.
I believe that Mr. Gorsuch is temperamentally and
intellectually inclined to stick to the facts and the law in
cases that would come before him and he would refrain from
legislating from the bench.
Moreover, Mr. Gorsuch's personal views would not determine
the outcome of cases that come before him. Mr. Gorsuch himself
says, ``Personal politics or policy preferences have no useful
role in judging; regular and healthy doses of self-skepticism
and humility about one's own abilities and conclusions always
do.''
I believe this statement also speaks to Mr. Gorsuch as a
person. He is humble, unassuming, polite, and respectful. This
sentiment is reflected in the numerous letters pouring into my
office from people that have worked with him over the years.
Mr. Gorsuch possesses the temperament befitting an appellate
judge.
In conclusion, Mr. Gorsuch is a top-flight nominee who I am
proud to introduce to the distinguished members of the
Committee. I look forward to a fair and dignified confirmation
process, the outcome of which I am confident will reveal a
highly qualified nominee, deserving of confirmation.
Congratulations, Neil. On behalf of the citizens of
Colorado, I thank you, Mr. Chairman, for allowing me the extra
time to finish the introduction of an exceptional individual.
Senator Graham. Thank you, Senator Allard. That was well
done. We appreciate you testimony.
Senator Salazar?
PRESENTATION OF NEIL M. GORSUCH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT BY HON. KEN SALAZAR, A U.S. SENATOR FROM
THE STATE OF COLORADO
Senator Salazar. Thank you, Chairman Graham. To the
chairman of this Committee, Senator Specter and Senator Leahy,
I thank them for their leadership, and I thank you for the work
that you do on this Committee.
Unfortunately, it often seems that bipartisanship is a lost
art here in Washington, D.C., so when I was asked to join my
friend Senator Allard in introducing Neil Gorsuch to the
Judiciary Committee, I was very pleased to accept that
invitation.
I would also like to welcome Mr. Gorsuch's wife, Louise and
his young and beautiful daughters, Emma and Belinda, here
today.
While Mr. Gorsuch has spent the majority of his
professional life in Washington, D.C., his roots in Colorado
are strong, going back four generations. If confirmed he will
return back to Colorado, where I hope that he will live up to
the standards set by a long line of distinguished jurists from
our State, including the late U.S. Supreme Court Justice Byron
White.
At the young age of 38, Mr. Gorsuch has already had a very
impressive legal career. After earning degrees from Columbia
University, Harvard Law School and Oxford University, he went
on to work and clerk on the D.C. Circuit of the U.S. Supreme
Court.
Following his clerkships, he spent nearly 10 years in
private practice before becoming principal deputy to the
Associate Attorney General of the United States.
While I do not know Mr. Gorsuch well, I have had the chance
to visit with him and learn about both his personal background
and his professional experience. During our meeting, I found
him to be very intelligent, thoughtful, and appreciative of the
great honor it is to be nominated to the Federal bench. Today's
hearing will provide Mr. Gorsuch with a chance to share these
qualities with the Committee.
Of course, it takes much more than a great resume to be a
great judge. In addition to the professional excellence as a
lawyer, a judicial nominee should have a demonstrated
dedication to fairness, impartiality, precedent, and the
avoidance of judicial activism from both the left and the
right.
By exploring Mr. Gorsuch's record, judicial philosophy and
his views on a wide range of important issues, these hearings
will help Senators evaluate whether Mr. Gorsuch meets that very
high standard.
As always, I look forward to learning more from the careful
and thorough examination, which is a hallmark of this Judiciary
Committee.
Chairman Specter, Senator Leahy, Senator Graham, and all my
distinguished colleagues on this Judiciary Committee, I am very
pleased to introduce to you a person that I believe will make
an excellent judge on the Tenth Circuit Court of Appeals, Mr.
Neil Gorsuch.
Senator Graham. Thanks, Senator Salazar. It was very kind
of you to do this. Well done by both. Thank you very much. We
appreciate you coming to the Committee.
Mr. Gorsuch, if you would come forward. Raise your right
hand, please.
[Whereupon, Mr. Gorsuch was duly sworn.]
Senator Graham. Well, I would like to add my welcome to you
and your family, and all of your friends. I am glad to be able
to chair this hearing.
I will turn over the floor to you, if you would like to say
anything in an opening statement.
STATEMENT OF NEIL M. GORSUCH, NOMINEE TO BE CIRCUIT JUDGE FOR
THE TENTH CIRCUIT
Mr. Gorsuch. I would like to just say a few thank yous,
Senator, if that is all right. First and foremost, to the
President for nominating me, to Senator Specter and Ranking
Member Leahy for holding this hearing, and to you, Senator, for
agreeing to be here. I cannot tell you how much it means to me.
The kind introductions from my home-State Senators, that, too,
means a very great deal to me, both of them.
I have here with me, Senator, as well, a bit of my family
that you have already been introduced to. I know my two
daughters have what they would consider to be better things to
do with a summer afternoon, so I am grateful that they are here
with their dad.
Senator Graham. They are behaving better than most
Senators.
[Laughter].
Mr. Gorsuch. What can I say?
[Laughter].
Senator, I would also like to say, I have gratitude for my
family back home in Colorado. I feel their thoughts today
deeply, and am looking forward to being with them soon.
I would also like to thank the members of the Department of
Justice who are here, a lot of folks lending moral support,
both who are appointed and a number of the career staff at the
Department, who I have come to respect and admire greatly for
their service to the country under very difficult conditions,
often.
I also have some of my former partners and colleagues from
the law firm that have come here today, and I am grateful to
have them here.
Finally, my parents and grandparents, most of whom are
deceased, but all of whom are here, I think, in my thoughts,
and all of whom have served Colorado in many different ways
over the course of their lives.
I look forward to your questions.
The biographical information of Mr. Gorsuch follows.]
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Senator Graham. I am very impressed with your legal
abilities, but more importantly, with your disposition and
demeanor. What I think Senators Allard and Salazar said about
you is dead on. You have a humble spirit and a keen mind. But
being a judge is more than being smart.
Mr. Gorsuch. Yes, sir.
Senator Graham. That is very important, but you have got to
understand people underneath.
What is the difference, in you opinion, if you could share
with me, between being an advocate and a judge?
Mr. Gorsuch. Being an advocate is a great deal easier, in
some respects. Your client's position defines your objective,
and your obligation is to represent him or her zealously.
I have to tell you, Senator, I love being a lawyer. I love
that aspect of the profession, of being in the arena and
fighting it out within the rules of civility, decency, and
common sense.
Being a judge is however, the greatest honor that any
lawyer, practicing lawyer, could ask to have because your
client becomes not an individual, a corporation, a partnership,
it becomes the case of justice. There is no greater client than
that.
Senator Graham. That was well said.
I know this is something you have not really done yet. But
what is your philosophy about judging and how you fit into this
constitutional democracy that we have been trying to get better
and tinker with for 200 years?
Mr. Gorsuch. Well, you are right, I have not done it yet so
it is a little presumptuous.
Senator Graham. How you see yourself fitting in.
Mr. Gorsuch. But if I were to be confirmed, Senator, I
resist pigeon holes. I think those are not terribly helpful,
pigeon-holing someone as having this philosophy or that
philosophy. They often surprise you. People to unexpected
things and pigeon holes ignore gray areas in the law, of which
there are a great many.
I can tell you how I think I would like to view approaching
decisions. That is, first and foremost, with this thought in
mind: to those clients who are affected, to that lawyer in the
well, that may be the most important thing in their life and
that case deserves the attention, the care and the scrutiny of
a complete lawyer and the complete attention of the judge
without being diverted by personal politics, policy
preferences, or what you ate for breakfast. Those people
deserve your very best at all times. There are certain tools
that I think can get you there.
First, you listen to that lawyer in the well. You do not
treat them as a cat's paw. He is not some pawn in a game to be
played with and batted around. He is to be taken seriously. He
has studied this issue for, sometimes, months, years, and lived
with it.
Having litigated cases in 16 different States and Courts of
Appeals, I appreciate that, and I know the importance and
difficulty of that role and I respect it greatly.
The second tool, I think, is respecting your colleagues and
trying to reach unanimity where possible, Senator. As a
practitioner, fractured opinions are very difficult to deal
with and understand what the law is sometimes. I often find
that the process of getting to a single position with different
minds leads to a better result.
Justice White used to tell us in chambers, ``Two heads are
better than on.'' He is right. He was one of the most humble
men I ever met, and was very well aware of the limitations of
any single person, though he may have been among the brightest
people I ever met. So I think working with your colleagues and
trying to get to agreement is hugely important.
Then, finally, precedent. Precedent is to be respected and
honored. It is not something to be diminished or demeaned. It
is something you should try to uphold wherever you can, with
the objective being, follow the law as written and not replace
it with my own preferences, or anyone else's Senator.
Senator Graham. The best you can, describe what you think
an idealogue would be and why that would be bad.
Mr. Gorsuch. In terms of being a Federal judge, Senator?
Senator Graham. Yes.
Mr. Gorsuch. Someone who is not willing to do what I just
talked about. That is, someone who is not willing to listen
with an open mind to the arguments of counsel, to this
colleagues, and to precedent, someone who is willing to just,
willy-nilly, disregard those three things, to effect his own
personal views, his politics, his personal preferences. That is
unacceptable.
Senator Graham. In the area of assisted suicide and
euthanasia, I think you have been a fairly prolific writer and
you certainly have an interest in that area.
How will your past positions affect your ability to judge
in cases that may contain those questions?
Mr. Gorsuch. Senator, my personal views, as I hope I have
made clear, have nothing to do with the case before me in any
case. The litigants deserve better than that, the law demands
more than that.
That said, Senator, my writings, just to clarify, have been
largely in defense of existing law, that is, they are
consistent with the Supreme Court's decisions in this area and
existing law in most places.
So, I do not think there is actually much tension between
my writings and anything that might come before the court, but
I can pledge to this Committee, Senator, that I will reach any
question before me, should I become a judge, with an open mind
and listen tot he arguments of counsel, the views of my
colleagues and prior case law from the Supreme Court, and the
various Courts of Appeals.
Senator Graham. What concern, if any, do you have about the
future of the judiciary or the judiciary as it stands now?
Mr. Gorsuch. Senator, I think some of the things you have
touched on are the challenges. The independence of the
judiciary depends upon people in both parties being willing to
serve, good people being willing to serve who are capable and
willing to put aside their personal politics and preferences to
decide cases and to follow the law and not try and make it.
Senator Graham. Of all the jobs you have had, which job do
you think has the most relevance to what you are about to
attempt to do here?
Mr. Gorsuch. Well, I cannot help but think back to my
clerkships, and most particularly my time with Justice White. I
cannot help but go back and think there. If confirmed, I would
be serving at the Justice Byron White Courthouse and replacing
former Justice White law clerk, David E. Bell, a wonderful
judge. That is a humbling, humbling though, Senator.
Senator Graham. Well, I have the statement of Senator Leahy
I would like to submit for the record. I know he wishes he
could be here, but we will introduce his statement in the
record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Graham. Is there anything else you would like to
let the Committee know about?
Mr. Gorsuch. Just that I am very honored to be here, very
pleased to be here. Thank you very much, Senator, for chairing
this.
Senator Graham. The record will remain open until June 28
at 5:00 p.m.
I would just close the hearing with a personal observation.
I have had the pleasure of working with Mr. Gorsuch during my
time in the Senate, and not only are you intellectually gifted,
you do seem to have all of the qualities that I would be
looking for in terms of someone with the power to wear the
robe.
You have lived a very beneficial and fruitful life, and I
know your family is tremendously important to you. I know they
appreciate the honor that have been bestowed upon you.
I would just like to leave you with one thought. I am very
concerned about the future of the judiciary. I hope people in
my business, the political business, will realize that being a
judge and a politician are two different things. You can be a
conservative judge and a liberal judge, but that is totally
different than being a conservative or liberal politician.
I do hope we can get back on track--Senator Salazar's
presence here today meant a lot to me--in the confirmation
process so that we will encourage good men and women, from a
variety of backgrounds, of wanting to be judges and not make
the process so difficult that they would not want to
participate. I find every reason to believe that you will be
well received by the Committee and the Senate as a whole, and I
look forward to talking with you more. Hopefully we can get you
on the bench soon.
The hearing is adjourned.
[Whereupon, at 4:28 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF KIMBERLY ANN MOORE, NOMINEE TO BE CIRCUIT JUDGE FOR THE
FEDERAL CIRCUIT; AND BOBBY E. SHEPHERD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE EIGHTH CIRCUIT
----------
WEDNESDAY, JUNE 28, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The hearing was convened, pursuant to notice, at 2:06 p.m.,
in room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, presiding.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Senator Hatch. The Committee will come to order.
Today we will have a confirmation hearing for two of the
President's Judicial nominees. I do appreciate your willingness
to appear before the Committee today, and I hope we can quickly
move both of your nominations through the Committee and get
them voted on the floor as soon as possible.
We are privileged to have our two distinguished Senators
from Arkansas here today, and we are happy to see both of you.
We will start with Senator Lincoln, first, then Senator
Pryor.
PRESENTATION OF BOBBY E. SHEPHERD, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT BY HON. BLANCHE LINCOLN, A U.S. SENATOR
FROM THE STATE OF ARKANSAS
Senator Lincoln. Well, thank you, Mr. Chairman. We
appreciate you and the members of the Judiciary Committee and
all that you do in your thoughtful review of the nominees that
come before you.
I appreciate the opportunity to appear before you this
afternoon to introduce Judge Bobby Shepherd, who has been
nominated to be the U.S. Eighth Circuit Court of Appeals Judge.
And certainly not being an attorney, but based on my review
of the record that is available, my visits with Judge Shepherd
and feedback that I have received from members of the Arkansas
legal community who know Judge Shepherd very well, I believe he
is certainly qualified to serve in this position and I support
his nomination.
Judge Shepherd is a native of Arkadelphia, Arkansas. As a
sideline, Judge, I have just got to tell you, I dropped my
children off at camp on Sunday in Arkadelphia, so I am feeling
a little lonesome these days, Mr. Chairman.
Senator Hatch. I will bet you are.
Senator Lincoln. They are having a high time, though.
After high school, Judge Shepherd graduated magna cum laude
from Ouachita Baptist University in 1973. Not satisfied with
only a baccalaureate degree, he continued his education by
earning a law degree from the University of Arkansas,
graduating with High Honors.
It was during his time at Ouachita that Judge Shepherd had
enrolled in the Reserve Officer Training Corps. He was
commissioned as Second Lieutenant in the U.S. Army Reserve in
1973, and he served honorably until his discharge in 1981.
Judge Shepherd began his professional career as an attorney
in private practice at Spencer and Spencer law firm in El
Dorado, Arkansas, where he resides now. From 1984 to 1987, he
worked as a solo practitioner.
In 1991, he began his career as a Jurist, serving as a
Circuit-Chancery Judge for the 13th District of Arkansas, until
his appointment as a Magistrate Judge for the Western District
of Arkansas in 1993.
Throughout this process of his nomination, numerous
Arkansas from all walks of life have contacted me, urging me to
support Judge Shepherd. Some of these people have been
advocates in Judge Shepherd's courtroom, and others just simply
consider themselves his friends, but to a person, Mr. Chairman,
they all found Judge Shepherd to be a man of honor, respected
by his peers and in his community.
So in closing, Mr. Chairman, I would like to ask, from you
and all our colleagues here on the committee, to consider this
nominee, and encourage you all to support his nomination.
We also want to thank you and the members of the Committee
for working with me and my staff in preparing for this hearing
today and giving Judge Shepherd every consideration.
So we thank you. We are pleased with the consideration of
this nominee and encourage the members to support him in his
confirmation.
Senator Hatch. Well, thank you so much. That is very, very
good testimony. Judge Shepherd, I think it is great for her to
be here.
It is also great to have Senator Pryor.
PRESENTATION OF BOBBY E. SHEPHERD, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT BY HON. MARK PRYOR, A U.S. SENATOR FROM
THE STATE OF ARKANSAS
Senator Pryor. Thank you, Mr. Chairman. You and I have
talked many times before about the Judiciary Committee and all
the great things that it does, the important work the Judiciary
Committee does for the Senate and for our country. So, thank
you, as a member of the committee, for your service.
I have also told you that I am glad I am not on the
committee, because sometimes you get into some very
controversial matters and it gets very partisan.
Senator Hatch. What do you mean, sometimes?
[Laughter.]
Senator Pryor. And that has been, as you well know,
particularly true when it comes to judicial nominations. I am
very proud to say that this nomination is not one of those.
This is a nominee that, in Arkansas, the Republicans and
the Democrats like, the Plaintiff's Bar, the Defense Bar, the
Criminal Defense Bar, the prosecutors like him, liberals and
conservatives. He really has proven to be the consensus nominee
in Arkansas.
When I look at Judicial nominations, I always have a three-
part test: first, are they qualified? Clearly, he is qualified.
Second is, do they have the proper judicial temperament? Yes,
clearly he does. Third, does he have the ability to be fair and
impartial? There is no question in anyone's mind that he does.
One thing that I like about him, is that in his time as a
Magistrate, he has, if you can call it, mediated, I guess is
the best term, hundreds--maybe thousands--of cases where
parties will come in, and as part of the process that they have
there in the Western District, he will try to resolve those
cases before they go to trial.
Of course, that is great for judicial economy, but it also
shows what kind of person he is, a consensus builder, and is
able to bring people to the point where justice can be done in
a very positive manner.
He is from a small town, he has small-town values, he has
practiced in a small town, he has been an elected judge. He is
now a Federal Magistrate. One thing that is interesting, is all
the District Court judges I have talked to in Arkansas are very
enthusiastic about him, so he is going to catapult over them
and go to the Eighth Circuit. But they are very, very, very
enthusiastic about his nomination, and so am I. So, thank you
for your time and thank you for expediting this nomination.
Senator Hatch. Thanks to both of you. I know that there are
lots of demands on your time, so we will let you go so you can
get back to what you need to get done. Of course, you are
welcome to stay if you want to.
Thanks so much. We appreciate you coming in.
Why do we not have the two nominees come forward and we
will swear you in?
[Whereupon, the nominees were duly sworn.]
Senator Hatch. Thank you. Please be seated.
Now, Senator Warner is trying to get here on behalf of
Professor Moore. If he gets here, we will interrupt whatever we
are doing right at that time and show him that deference. But I
thought we would move ahead here and see what we could do.
Our first nominee is Professor Kimberly Ann Moore,
nominated to be U.S. Circuit Court Judge for the Federal
Circuit Court of Appeals. Professor Moore received a BS from
the Massachusetts Institute of Technology in 1990, an MS from
the Massachusetts Institute of Technology in 1991, and a J.D.
cum laude from Georgetown University Law Center in 1994.
Professor Moore began her legal career as an associate at
Kirkland & Ellis, working on intellectual property matters. In
1995, Professor Moore accepted a clerkship with Judge Glenn L.
Archer, Jr. former Chief Judge of the U.S. Circuit Court of
Appeals for the Federal Circuit.
Following her 2-year clerkship, Professor Moore entered
academia, serving as an Assistant Professor of Law at Chicago-
Kent College of Law. From 1998 through 1999, she was Associate
Director of the Intellectual Property Law program at Chicago-
Kent.
In 1999, Professor Moore joined the law faculty at the
University of Maryland, before joining the faculty at George
Mason University School of Law in 2000. She is currently a full
Professor of Law at George Mason. We congratulate you for all
of the achievements you have done.
Professor Moore is considered an expert in patent law and
patent litigation. She has been retained as an expert witness
in numerous patent cases in the District Courts, and as a
consultant on many Federal Circuit appeals.
Professor Moore serves on the board of numerous
professional organizations, including the Federal Circuit Bar
Association, Intellectual Property Owners Education Foundation,
and the publication, Patent Strategy and Management.
The American Bar Association has unanimously rated
Professor Moore ``qualified'' to serve on the Federal Circuit.
We congratulate you and compliment you on the excellent record
that you have.
Our second nominee today, as has been explained by our two
Senators, is Judge Bobby E. Shepherd, who has been nominated to
be U.S. Circuit Judge for the Eighth Circuit.
John? Why do you not come here and you can testify. All
right, either way. I will tell you what. I will introduce you,
Judge Shepherd, as soon as Senator Warner finishes his
introduction.
We are honored to have you here, Senator Warner. It is a
great honor for Professor Moore to have you, as busy as you
are, to come here.
PRESENTATION OF KIMBERLY ANN MOORE, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FEDERAL CIRCUIT BY HON. JOHN WARNER, A U.S. SENATOR
FROM THE STATE OF VIRGINIA
Senator Warner. I am sorry to be a minute or two late here.
I apologize to this distinguished candidate. I will just put my
statement in the record, because I have a feeling she can make
a better statement than I can make.
But I simply say, I am trying to think how long ago. It was
over a half a century ago that I became a law clerk on the
Federal Circuit Court of Appeals in the Nation's Capital, under
one Judge Prettiman.
I have acknowledged that what little success I have had in
life, seriously, is owing to what that wonderful man taught me
and the inspiration that he gave me, so much so that one night
here about 3 years ago the Senate was in one of its all-night
sessions, and I do not know where anybody was, but I suddenly
found I had the floor, all by myself. Guess what? I named the
courthouse after him.
[Laughter.]
Thank you very much, Mr. Chairman. Maybe that will happen
to you, some day.
[Laughter.]
Senator Hatch. Thank you, Senator Warner. We appreciate
your taking time to come. That is a tribute to you, Professor
Moore. We will put his complete statement in the record.
Senator Warner. Thank you, Mr. Chairman.
Senator Hatch. You bet. Thank you, Mr. Chairman.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Senator Hatch. Let me go back. Magistrate Judge Shepherd
was nominated by the President on May 18, 2006. Judge Shepherd
has a long and distinguished legal career in Western Arkansas,
during which he has handled a wide range of legal issues, both
civil and criminal, as a judge and as an advocate.
Judge Shepherd received his BA cum laude from Ouachita
Baptist University in 1973, and his J.D. with High Honors from
the University of Arkansas School of Law in 1976.
Upon graduating from law school, he embarked on a career as
a private attorney in western Arkansas, practicing either as a
solo practitioner or in small partnerships.
Judge Shepherd was a true general practitioner. He handled
personal injury cases, collections, domestic relations,
probate, criminal defense, banking, real estate, and other
matters. During this period of his career, he tried over 150
cases to verdict, which is quite a record.
In 1991, Judge Shepherd was elected as a Circuit- Chancery
Court Judge in Arkansas' 13th Judicial District. In that
capacity, he presided in over 30 major felony jury trials,
including capital murder cases. Since 1993, Judge Shepherd has
served as the U.S. Magistrate Judge in the Western District of
Arkansas.
The American Bar Association has unanimously rated Judge
Shepherd ``well qualified'' to serve on the Eighth Circuit.
So we welcome both of you today before the committee, and
of course we would be pleased to hear any statements you would
care to make. I would just ask you to introduce your family and
friends who are here for the hearing.
We will start with you, Professor Moore.
Ms. Moore. Thank you, Mr. Chairman. It is an honor to be
here.
I would like to introduce my family: my husband, Matthew
Moore, my son, William Moore. We call him Billy. He is the
oldest of my three boys.
Senator Hatch. He looks pretty good there.
Ms. Moore. This is my mother, Linda Pace, and my in-laws,
who traveled down from Fayettville, New York, Jane and Frank
Price. Also, my brother-in-law, Mark Moore, as well.
Senator Hatch. Well, we are delighted to have all of you
here It is quite a nice family.
Ms. Moore. Thank you.
Senator Hatch. We are glad you could introduce them.
Judge Shepherd?
Judge Shepherd. Yes, sir, Mr. Chairman. I have a sizable
group that has made the trip from Arkansas. This is my wife,
Bobbi, who has just retired as a tenth grade U.S. history
teacher in our community.
Senator Hatch. Oh, great. Is that not a little tough to
have two Bobbys in the same household?
[Laughter.]
Judge Shepherd. To her right is our son, John Thomas. He is
a sophomore at Rhys University in Houston.
Senator Hatch. Right.
Judge Shepherd. Our daughter, Sarah, is a nurse at Arkansas
Children's Hospital in Little Rock. Across the aisle is our
oldest son, Matthew, who is an attorney in our community, and
his wife, Allie.
Behind my wife is my mother-in-law, Doris Faulkner; to her
right, my mother, Jeanne Shepherd. To her right is a friend of
almost 30 years who has made the trip today, Tommy May from
Pine Bluff, Arkansas.
I would also like to recognize Tom Metowski of the
Magistrate Judge Division of the Administrative Office of the
Courts who is attending the hearing this afternoon.
Senator Hatch. Well, that is great. We welcome all of you
here, especially you mothers and fathers, and your companions
and your children. It is just great to have you all here.
Well, we will begin with you, Professor Moore. If you have
a statement you would care to make, we would be happy to hear
it at this time, then we will turn to Judge Shepherd.
STATEMENT OF KIMBERLY ANN MOORE, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FEDERAL CIRCUIT
Ms. Moore. I have no statement. It is just a tremendous
honor to be here at this hearing and to be considered by the
committee. Thank you.
[The biographical information of Ms. Moore follows.]
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Senator Hatch. Judge Shepherd?
STATEMENT OF BOBBY E. SHEPHERD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE EIGHTH CIRCUIT
Judge Shepherd. Mr. Chairman, thank you. First of all, I
would like to thank the Chairman and the Committee for holding
the hearing today.
I have no formal statement, except to express my thanks to
the President for allowing me to have the honor of this
nomination, and I wish to thank Senator Lincoln and Senator
Pryor, who have attended today, for their kind words. Also, for
the support of Congressman Boseman of Arkansas, who has been
very supportive.
Senator Hatch. That is great. All right.
Well, I do not intend to ask many questions, because I have
a pretty good understanding of both of you and your careers,
and I think you both deserve high commendation for being chosen
by the President of the United States.
It is a great honor to serve in the Federal Courts, and
especially on the Circuit Courts of Appeal. Both of you have
made it here because of your excellent records and your
excellent reputations as well.
Personally, let me just ask you, Professor Moore, just one
question that might be good for you to answer. You have had an
impressive record as a scholar, as an academic. However, you do
not have any experience as a judge, and you appear to have had
limited litigation experience.
Now, how do you feel your career experiences have prepared
you to be a Federal Circuit Court Judge?
Ms. Moore. Thank you, Mr. Chairman, for that important
question, and giving me an opportunity to clarify and explain
my experience.
When I went to MIT and pursued an electrical engineering
degree, I knew I loved technology. We had a professor from a
local area law school that came down to the MIT students and
offered a class on patent law, which I took.
From that moment, I knew my course was set. I found the
perfect meld for me between two great loves, the love of the
law and the love of technology; patent law is a natural in that
regard for someone who has a technical background.
After graduating from college, I then did work as an
engineer for the Navy for a little while, where I continued to
think about law school. Went off to law school, and ever since
then I have studied the litigation process in great detail. I
participated in litigation at Kirkland & Ellis, going through
several trials.
After leaving Kirkland, I got the wonderful opportunity to
be a clerk for a very distinguished Jurist, Judge Archer. I am
honored to have worked for him, and that was a wonderful
opportunity to see the Federal Circuit behind the scenes and
learn about the process.
After clerking for the Judge, I went off into academia. But
as an academic, I do not consider myself to be an ivory tower
academic. My primary research has been entirely in litigation.
I have written a book on patent litigation and strategy
with the current Chief Judge of the Federal Circuit, Paul
Michelle, and a prominent practitioner, Ray Lupo. In addition
to that book, I have written more than 60 articles and/or given
speeches on the topic of patent law.
I have been an extremely active participant in the Bar
organizations, on the Board of Governors, as you recognized at
the Federal Circuit Bar Association, and I have served as the
editor-in-chief of that journal for the Federal Circuit Bar
Association for the last 8 years.
In addition to that, I have had the great fortune of being
chosen as an expert witness in many cases, which has continued
to keep me very heavily involved in the practice of patent law,
and in particular, in patent trials. As an expert witness, I
have gotten to work with many great attorneys, many great
clients, and have been very fortunate to have that experience.
So in summing up, I have had a lot of experience with
litigation, both as an expert, as a lawyer, and as a patent law
professor, in particular. So, thank you for giving me an
opportunity to address that.
Senator Hatch. I knew I should not have asked you that
question.
[The biographical information of Judge Shepherd follows.]
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[Laughter.]
You do have a lot of experience, and that is why I asked
it, because I think it is important for this record to show
that.
Now, Mr. Shepherd, you remained a generalist in private
practice. Did you choose that course rather than specializing,
and if so, why?
Judge Shepherd. Thank you, Mr. Chairman.
Senator Hatch. I might also add, how did your general
practice prepare you for your service, not only on the State
bench, but then as a Magistrate Judge? Do you see it having the
same benefit on the Eighth Circuit Court of Appeals?
Judge Shepherd. Thank you, Mr. Chairman, for that question.
I think my general nature of my practice, in 14 years of
private practice, was probably a product of the community, the
small-town environment in which my wife and I chose to live and
raise our children. By the very nature of that small-town
environment, general practice is the norm rather than the
exception.
As far as preparation, I do feel that a general practice
provides an excellent background for service in the Judiciary,
both at the State Court level and on the Federal bench, because
both at the State Court level and on the Federal bench the
judge sees, simply, a wide variety of cases: criminal, civil,
administrative.
I found that I was basically seeing the same types of
cases, the same kinds of litigation, except from a different
perspective, no longer as the advocate, but from the bench.
That has continued during my service as a Magistrate Judge, and
I believe it will continue to benefit me, should I be fortunate
enough to be confirmed to the Circuit Court bench.
Senator Hatch. Well, thank you so much.
I just want to say that I have seen a lot of nominees come
through here, and almost all of them are just excellent,
whether Democrat Presidents have chosen them or Republican
Presidents have chosen them.
I just have to say, both of you are excellent. You both
deserve the support of not only this committee, but of the
Senate as a whole, and of course of the country as a whole. So
on behalf of the Senate Judiciary Committee, I want to thank
you for your appearances today.
Now, as you can see, I am easier than most people, but I do
look at these things carefully and I take them as seriously as
anybody has ever taken them. You both are going to make
wonderful judges in your respective courts.
I believe that you will both be honest, decent, honorable
people who will do what we have asked you to do, and that is,
be fair, reasonable, and honor the attorneys who appear before
you and, of course, have a good temperament and do the very
best you can.
Now, we are going to leave the record open for 1 week,
until 5 p.m. on Wednesday, July 5, for members to submit
written questions.
Now, if you receive written questions, we would ask that
you immediately turn them around as promptly as you can because
we want to be able to move ahead on your nominations as quickly
as possible and we do not want any delays.
It is important that we get these Court positions filled,
and it is important that we do it in a nonpartisan way.
Frankly, both of you, I think, will be great nonpartisan judges
on the bench.
So I just want to compliment you and wish you the best, and
tell you that I will do everything in my power to get you
through as quickly as we can. I want to again congratulate you
and thank you for being willing to serve in the Federal Circuit
Courts of Appeal. It means a lot to me, personally.
With that, this hearing is adjourned.
[Whereupon, at 2:25 p.m. the hearing was adjourned.]
[Submissions for the record follow.]
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NOMINATIONS OF PETER D. KEISLER, NOMINEE TO BE CIRCUIT JUDGE FOR THE
DISTRICT OF COLUMBIA CIRCUIT; VALERIE L. BAKER, NOMINEE TO BE DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; PHILIP S. GUTIERREZ,
NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA;
AND FRANCISCO AUGUSTO BESOSA, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF PUERTO RICO
----------
TUESDAY, AUGUST 1, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:06 p.m., in
room 226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senators Specter, Hatch, Leahy, Kennedy,
Feinstein, Feingold, and Schumer.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. The Committee will come to order.
Today we have a confirmation hearing for four of the
President's judicial nominees. Our first panel will consist of
one of the President's Court of Appeals nominees, and the
second panel will consist of three District Court nominees.
Let me express to each one of you that we appreciate your
willingness to appear before the Committee here today. I hope
we will quickly move all your nominations through the Committee
and onto the floor as soon as possible.
We will probably be joined off and on by other members of
the Committee as the hearing proceeds. There are a lot of
different things going on this last week before the August
adjournment of the Senate, but we will go ahead and proceed.
If I may ask Peter D. Keisler to come forward and have a
seat. I know my colleague, Senator Boxer, is going to be here
at some point, and we will break for her. But if you will have
a seat, please.
Mr. Keisler, now that I have asked you to take your seat,
may I ask you to stand and raise your right hand?
[Whereupon, Mr. Keisler was duly sworn.]
Senator Cornyn. Thank you very much.
Our first nominee is Peter Douglas Keisler, nominated to be
U.S. Circuit Court Judge for the DC Circuit. Mr. Keisler comes
before this Committee with a distinguished academic and
professional record. He received a B.A. magna cum laude from
Yale University in 1981, and a J.D. from Yale Law School in
1985.
While at Yale, he served as Note Editor of the Yale Law
Journal. Following law school, Mr. Keisler clerked for Judge
Robert H. Bork of the U.S. Court of Appeals for the DC Circuit.
In 1986, Mr. Keisler joined the Office of Counsel to
President George H.W. Bush as assistant counsel; in 1987, he
was promoted to Associate Counsel to the President.
In 1988, Mr. Keisler accepted a clerkship with Justice
Anthony M. Kennedy of the U.S. Supreme Court. After his
clerkship, he joined the DC office of Sidley & Austin as an
associate, becoming a partner in 1993.
In 2002, Mr. Keisler left private practice to join the U.S.
Department of Justice as Principal Deputy Associate Attorney
General. He served as Acting Associate Attorney General before
being nominated by President Bush to serve as Assistant
Attorney General for the Civil Division. He was confirmed by
the U.S. Senate to that position in June of 2003.
During his government service, Mr. Keisler has been
involved in defending the constitutionality of statutes and the
lawfulness of government regulation, policies, and decisions.
Mr. Keisler, I welcome you to the committee. Before I ask
for your opening statement, I observe we are now joined by our
two colleagues, Senator Feinstein, a member of the committee,
and our colleague Senator Boxer.
Let us stop at this point, and we will come back, Mr.
Keisler for your opening statement. Let me, first, recognize
Senator Feinstein for any statement she would care to make.
PRESENTATION OF VALERIE L. BAKER, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA AND PHILIP S. GUTIERREZ,
NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF
CALIFORNIA BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. My
colleague and friend and I are here to make an opening
statement with respect to the two California judges that are on
the calendar. One, is Judge Valerie Baker, and the other, Judge
Philip Gutierrez.
The Central District, which is based in Los Angeles, is the
largest and busiest Federal judicial district in the Nation.
Judges Baker and Gutierrez would be welcome additions to this
court. Both currently sit on the Los Angeles Superior Court,
and both have track records of professional excellence and
commitment to public service.
Judge Baker has been a trial judge on the Superior Court
for nearly 20 years, and previously served on the Municipal
Court. In 1994, she was awarded the Alfred J. McCortney Trial
Judge of the Year Award from the Consumer Lawyers of Los
Angeles. She is a seasoned litigator, with Federal experience
in criminal and civil cases.
As an Assistant U.S. Attorney, she prosecuted bank
robberies, major drug violations, and fraudulent enterprises.
She attended the University of California at Santa Barbara,
earned a B.A. and a Master's degree in English, received a law
degree from UCLA.
Now, let me just speak for a moment about Judge Gutierrez.
Since 2000, Judge Gutierrez has been a Los Angeles County
Superior Court judge. Like Judge Baker, he also served as a
Municipal Court judge before joining the Superior Court.
Before becoming a judge, he spent more than a decade in
private practice. He was the managing partner of the law firm
of Cotkins & Collins, where he specialized in business
litigation. He is a Los Angeles native. He did his
undergraduate work at Notre Dame, before returning home for law
school at UCLA.
Since joining the bench, he has taken an active role in
judicial management. He sits on the Superior Court's Executive
Committee. I was pleased to learn that he is a former Chair of
the California Judges Association on Judicial Ethics.
Now, the American Bar Association has given both nominees a
unanimous ``Well Qualified'' rating.
I think, on behalf of both Senator Boxer and myself, we are
both really well pleased with the screening Committee that
typifies the California appointment process, where a committee,
equally divided between Republicans and Democrats, meets.
They send five potential nominees for each vacancy to the
President and the President chooses from that list. Actually,
they have been able to send their nominees with total
consensus, which has taken the element of any controversy out
of this hearing. So, I think we both believe that these two
judges are easy to confirm.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Senator Feinstein, for those
remarks.
Senator Boxer, we would be pleased to hear from you.
PRESENTATION OF VALERIE L. BAKER, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA AND PHILIP S. GUTIERREZ,
NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF
CALIFORNIA BY HON. BARBARA BOXER, A U.S. SENATOR FROM THE STATE
OF CALIFORNIA
Senator Boxer. Mr. Chairman, thank you so much for your
courtesy. I am so pleased to join my friend and colleague,
Senator Feinstein, in endorsing and supporting the two
California judges you have before you today. Both are so well
regarded by those who know them in the California legal
community.
I am confident, should Judge Gutierrez and Judge Baker be
confirmed, they will discharge their responsibilities with
dignity, integrity, intelligence, and fairness.
I also want to quickly comment on the process that we use
in California. Senator Feinstein alluded to it, and I thought
she was right on point, but it bears repeating. In a time of
such great partisanship in this institution, unfortunately, and
out in the country, I think Republicans and Democrats came
together in California and set up a process that really works
well.
We bring before you these particular nominees--and all the
others that have come out of this system--before you with total
consensus, Mr. Chairman, which means that they have been vetted
by Republicans and Democrats, and we get the best of the best.
I think you will find, today, we are giving you the best of the
best.
Quickly, just to fill in the blanks. Judge Gutierrez has
deep roots in California. Born in Los Angeles in 1959, after
finishing college at Notre Dame, he returned to attend UCLA
School of Law. Following law school, he embarked on a very
impressive legal career, beginning in private practice in 1986,
and serving on the Superior Court of California since 1997.
He has an excellent reputation as a good and fair judge.
One of Judge Gutierrez's strengths is problem solving, a skill
that has served him well. Over the past 4 years he has used his
skills on the California Judges Association Committee on
Judicial Ethics, again, at a time when we need a really hard
look at our ethics in public life.
He believes strongly that you strengthen the system by
constantly working to solve problems as they arise, before they
reach a crisis point. I agree with him strongly on that.
Judge Baker came to our great State in 1967 to attend
college at the University of California in Santa Barbara. She,
too, attended UCLA Law School. She has practiced in both the
private and public sectors, including three years as an
Assistant U.S. Attorney in Los Angeles. She has been on the
bench of the Superior Court of California for over 19 years,
serving with distinction and honor.
In closing, I want to tell you a little story about one of
the greatest honors that she received. It did not come from any
organization or government, but from the humble words of a
single person.
Judge Baker presided over a murder trial, and during the
sentencing of the defendant she spoke about the victim in very
personal terms. A woman approached Judge Baker afterwards and
said, ``Thank you, Judge. The victim was my son.'' The mother
of the victim went on to tell Judge Baker that she was able to
take some comfort and solace in the way the trial was
conducted, and that justice was served.
So I think you have before you, from California, two
exceptional people. The Central District will benefit greatly
from the exemplary service of Judges Gutierrez and Baker. I
fully support their nominations, along with Senator Feinstein,
and we both urge quick confirmation.
Thank you very much for your courtesies. And I might thank
Mr. Keisler for his pausing. I know this is the moment of your
life, and we took some time away, and we apologize. But such is
the life of a Senator.
Mr. Keisler. My pleasure, Senator.
Senator Cornyn. Senator Boxer, thank you for those remarks
on behalf of these two nominees. We certainly understand you
have other commitments, so thank you for the time you have
spent here.
Senator Boxer. Thank you, Senators.
Senator Cornyn. Resident Commissioner Luis Fortuno of
Puerto Rico is unavailable to be here today, but he has
submitted a statement on behalf of Francisco Besosa, who has
been nominated to be U.S. District Judge for the District of
Puerto Rico. The statement will be inserted into the record,
without objection.
[The prepared statement of Resident Commissioner Fortuno
appears as a submission for the record.]
Senator Cornyn. Now, Mr. Keisler, we were going to give you
a chance to make any opening remarks that you would care to
make. Perhaps if you could begin by introducing your family.
STATEMENT OF PETER D. KEISLER, NOMINEE TO BE CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Mr. Keisler. Thank you very much for that opportunity,
Senator Cornyn.
I have here with me my wife, Sue Keisler, my oldest
daughter Sydelle, who is 11 and entering sixth grade, my son
Alex, who is 9 and entering fourth grade, and my son, Philip,
who is 6 and is entering first grade.
Senator Cornyn. I think I see them there, behind you.
Mr. Keisler. All I would like to say, Senator, is I would
like to thank you very much for that very kind introduction. I
would like to thank both you, Senator Cornyn, and Senator
Kennedy for the opportunity to appear before the committee.
Of course, I would like to thank the President for the
confidence he expressed by nominating me for this position.
[The biographical information of Mr. Keisler follows.]
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Senator Cornyn. Well, thank you very much for that
introduction. Congratulations to you and your family for being
here today.
Having a name like Cornyn, it is frequently mispronounced.
I want to make sure I give you an opportunity to tell us how to
pronounce your name correctly.
Mr. Keisler. I have always pronounced it ``Keisler.''
Senator Cornyn. Keisler. All right. We will try to do that
today as well.
I would maybe start, Mr. Keisler, by asking you a question
that almost every employer asks a prospective employee, and
that is, why do you want the job?
Mr. Keisler. Senator, I have worked as a litigator in the
legal system for about 20 years and I have seen it from a lot
of different angles. I think anybody who has worked in the
legal system as a litigator can certainly wax eloquently about
flaws they might perceive, or ways in which the system could be
made better.
But for me, at bottom, what stands out about it is that it
is a system which values and aspires to, and achieves,
principles of fairness and neutrality. It is a system which is
accessible.
Anybody can file a case, make an argument, be heard
directly by the decisionmaker. The decisionmaker, the judge,
does not only have to make a decision, the judge has to give
reasons for what he or she does.
We have in this country what I think of as a distinctly
American value, which is, people say they are entitled to their
day in court. I think that is a very revealing formulation.
People do not say they are entitled to win.
They understand that they are not always going to be
entitled to win. But they say they are entitled to their day in
court because they value the process, because it does stand for
those values of fairness and neutrality.
I have felt it a great honor and privilege to work in the
system as a lawyer, and I would consider it a special honor and
privilege to work in the system as a judge, if I am confirmed,
to help sustain and promote those values of fairness,
neutrality, balance, and independence. I cannot think of
anything else I would rather dedicate my professional life to.
Senator Cornyn. I take it that, in working for both Judge
Bork and Justice Kennedy, you have gotten some ideas about how
you would comport yourself as a judge from those experiences.
Could you share that with the committee, please?
Mr. Keisler. Certainly, Senator. One thing that strikes me
from both of those experiences that I learned from the first
day on the job, was how important it is to keep an open mind
throughout the process and to always be open to the possibility
that you might be wrong.
I remember, the first week I was clerking at the Court of
Appeals I received a Petition for Re-hearing to review in a
case that Judge Bork had decided and written the opinion about
before I had even come on board.
I just naturally assumed, at age 25, that he had made his
decision, he had written the opinion. This was a Petition for
Re-hearing. It was arguing something against what he had
decided. The position of the chambers was set.
Judge Bork asked me, what was in the Petition for Re-
hearing. I think I must have said something that was unduly
dismissive. He said to me very gently, these are complicated
cases. We often get them wrong. We need to be conscious of the
fact that we can often get them wrong. I never forgot that. In
that clerkship, and for Justice Kennedy, the rule of the
chambers was that nothing was ever closed and settled.
The judge could have voted, the justice could have written
an opinion, but when someone pointed out or thought of
something new, he went back to the beginning and we were as
open to the idea--and most importantly, they were as open to
the idea--of rethinking things as they would have been the
first day they confronted the case. Taking that today, I find
frequently, when I first confront a problem, my initial
reaction is often so different than what I find after study.
The one thing I have learned, the red flag is when you
think one side is 100 percent right and the other side is 100
percent wrong. Then you have got to do more studying, because
it is always more complicated than that.
Senator Cornyn. You have a very impressive record of pro
bono representation. For the general public, that means free,
right?
Mr. Keisler. Yes.
Senator Cornyn. You have donated your services, of course,
to help people in the legal system who could not otherwise
afford your services.
Could you describe some of your pro bono representation?
Mr. Keisler. Thank you, Senator Cornyn, for giving me that
opportunity. Absolutely the most rewarding and personally
satisfying case that I ever had the opportunity to work on was
a pro bono case.
It was a case I worked on for an indigent, heroic refugee
from Sudan, a young doctor in his 20's, Dr. al-Hadi Omar Abdul-
Halim, who had been a doctor at the biggest prison in Sudan,
the Cober Prison.
Dr. al-Hadi was there when they imprisoned pro-democracy
activists and trade union activists, and he served covertly as
a go-between between the people inside the prison and their
supporters outside. He documented some of the abuses that they
had experienced in the prison, and his documentation was
smuggled out. An Egyptian newspaper published it from a human
rights group.
At that point, the Sudanese government began to suspect
him, and he fled here. That was a case that was referred to me
by the Washington Lawyers Committee for Civil Rights when I
asked for the opportunity to do an immigration case for them.
I was honored that Senator Kennedy, Senator Kassebaum, and
Senator Lugar all sent in letters to the INS supporting the
application, and I was proud of my country, that it provided
shelter to this heroic individual, and very, very grateful for
the opportunity to have assisted in that process, because they
did grant him asylum, they did grant him permanent residency,
and it was a privilege to do it.
Senator Cornyn. We have been joined by three other members
of the committee, as I told you we would, since the Senate's
schedule is pretty hectic this time of year.
Let me now turn the floor over to our distinguished Ranking
Member, Senator Leahy, for any comments or questions he would
care to make.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. Knowing that my
other colleagues are here, why do I not just put my statement
in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Leahy. Mr. Keisler, I wanted to be here especially
for your hearing today. One of the reasons, is the Federal law
enforcement officers. I began my career in law enforcement. I
keep close ties with them.
They have written to me to express concerns about your
nomination based on your involvement in the case of Adams v.
United States in the Court of Federal Claims. For others who do
not know what that is, that was a case brought by thousands of
Federal law enforcement officers seeking substantial back pay.
It has been stuck in the court since at least 1990.
Over the years, the government settled with some groups;
others remain in limbo. The plaintiff's attorneys attempted to
reach a settlement for additional class of Federal officers
following a December of 2004 court ruling. Those officers were
entitled to back pay.
According to plaintiff's attorneys, after months of
negotiations they reached a tentative agreement with the career
attorney handling that case. The proposed settlement was
approved by five Federal law enforcement agencies.
In July, you wrote a letter to Representative Clay Shaw,
responding to inquiry about the settlement. You set out some
arguments against it. Just days later, the DOJ rejected the
settlement.
Your staff also, twice, refused to meet with plaintiff's
attorneys in the case just before DOJ rejected the proposed
settlement. You are still overseeing the component of the
Department of Justice handling this case.
So, you have several thousand senior Federal law
enforcement officers who see no end in sight to their case. Why
did you reject this after it was apparently accepted by the
career attorneys handling the case, and the five law
enforcement agencies?
Mr. Keisler. Senator Leahy, thank you for giving me the
opportunity to address that letter. I saw there was a letter
sent to the Attorney General by this organization Friday
morning.
I was very surprised to see it, because it said that I had
personally rejected a settlement that I had never passed upon.
It said that I had refused to meet with them, when I had never
received a request to meet with them, and certainly never
declined to meet with them.
When I saw that letter, I asked the Deputy Assistant
Attorney General who oversees the Commercial Branch of the
Civil Division, which is where that case is being handled, what
the story was.
He told me that this particular group had made a proposal
for a $300 million settlement, that the trial attorney had
recommended it, but that the trial attorney's career
supervisor, and this deputy, who was also a career attorney,
had rejected it. I think they had told the plaintiffs that a
meeting with them would not be productive.
Senator Leahy. Were you involved in any way with the
decision not to accept it?
Mr. Keisler. Only in the sense that, at one point, my
deputy told me that there was a settlement, he thought it was
too high, and he was going to reject it. I did not go further
than that because it is always open to plaintiffs in a position
like this--
Senator Leahy. It was not more than just a casual
conversation like that?
Mr. Keisler. That is right. Senator, they were absolutely
free--and they still are--to request a meeting with me to
review the full matter, fresh. I have never turned anyone down
for a meeting like that.
In fact, a few weeks ago I was speaking to a group of
summer associates at a law firm. They asked me, what is the
difference between the government practice and private
practice?
I said, one difference is, you meet with anybody who wants
to meet with you, because you are part of the government and
they have a right to talk to their government, whether they are
the opposing counsel or they are on your side in a particular
case. So, absolutely, I would meet with them. I would be happy
to hear their--
Senator Leahy. I will followup with them. My time is going
to run out.
But in Hamdan, the court held the administration system for
prosecuting detainees at Guantanamo Bay is illegal, and ruled
that Common Article 3 at Geneva is a law, and on. Do you
accept, now, the Supreme Court position in Hamdan is right?
Mr. Keisler. Yes, Senator.
Senator Leahy. And that the administration's position which
you argued was wrong?
Mr. Keisler. I argued that in the Court of Appeals. That is
correct, Senator Leahy. I do think that the Supreme Court has
now established--
Senator Leahy. Is that unusual for an Assistant Attorney
General for the Civil Division to be arguing the Hamdan case in
the DC Circuit?
Mr. Keisler. No. I have argued several cases personally in
the Court of Appeals, and one case in the District Court.
Senator Leahy. No. But of this nature. You are the
Assistant Attorney General for the Civil Division. Did it seem
at all unusual for you to be handling this one?
Mr. Keisler. You mean, because it is the Civil Division as
opposed to some other?
Senator Leahy. Yes.
Mr. Keisler. Hamdan had no obvious home within the
different litigating divisions. It was a habeas action. It was
civil in nature, but it was not really like any of the other
cases that any of the divisions normally handle.
I think it was a constitutional and statutory challenge to
a President's program in a civil proceeding, so I think people
thought it was most natural that the appeal would be handled
within the Civil Division.
Senator Leahy. Thank you.
Thank you, Mr. Chairman. My time is up. I will have a
series of further questions that I will submit for the record.
Senator Schumer. Mr. Chairman? I have an opening statement
that I would like to read and forego questions. I would ask
Senator Kennedy if I might go now, because I have to be on the
floor at the same time. Thank you.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. I want to thank you, Mr. Chairman, Senator
Leahy, and particularly Senator Kennedy for, as always, his
graciousness.
I certainly want to welcome the nominee here today.
Ordinarily, I would begin by thanking the Chairman for holding
this hearing.
But with respect to this nomination, I believe the hearing
is premature. Mr. Keisler is, by all accounts, a smart,
accomplished lawyer. He has impeccable academic and
professional credentials. But I must say, we may be putting the
cart before the horse.
It appears we are trying to break the land speed record for
confirming a nominee to the second-highest court in the land
for a seat that may not even need filling, when there are other
identified judicial emergencies that deserve our more immediate
attention.
To that effect, all eight Democrats sent a letter to
Chairman Specter last Thursday, urging that we first address
some critical threshold issues before holding a hearing on the
Keisler nomination. First things first, in other words. To my
knowledge, that letter has not received a response.
So let me reiterate some of the concerns we expressed about
proceeding so hastily on this nomination. First, we have barely
had time to consider the nominee's record. Mr. Keisler was
named to this seat 33 days ago. So, we are having this hearing
with astonishing and inexplicable speed. The average time from
nomination to hearing for the last seven nominees to that court
is several times that long.
Second--and this is the point I think most important--we
have been hearing from our friends across the aisle in strident
and emphatic tones, we simply do not need to fill the seat to
which Mr. Keisler has been nominated, the eleventh seat on the
DC Circuit. We have been told repeatedly that to fill this seat
would be a waste of taxpayer money and a shameful triumph for
big government. Why, then, are we speeding toward confirmation
here?
Here are just some of the statements made by those who, in
the past when there was a different President, same
circumstances, decried the need to fill the eleventh seat.
Senator Sessions: ``The eleventh judgeship, more than any
other judgeship in America, is not needed.'' Senator Grassley:
``I can confidently conclude that the DC Circuit does not need
12, or even 11, judges.''
Senator Kyl: ``If another vacancy occurs, thereby opening
the eleventh seat again, I plan to vote against filling this
seat, and of course the twelfth seat, unless there is a
significant increase in the caseload or some other
extraordinary circumstance.''
More recently at a hearing on the DC Circuit, Senator
Sessions, citing the Chief Judge of the DC Circuit, reaffirmed
his view. ``I thought 10 was too many,'' he said. ``I will
oppose going above 10, unless the caseload is up.'' That was in
2002.
In making their case, Senators expressed alarm at the
thought of spending an estimated $1 million a year in taxpayer
funds to finance an unneeded judgeship. Indeed, my friend from
Alabama suggested that filling the eleventh seat would be ``an
unjust burden on the taxpayers of America.'' At that time in
1997, Senators Lott, Ashcroft, Thurmond, Hatch, and Faircloth
made similar declarations.
Since these emphatic objections were raised in 1997, the
caseload for the DC Circuit is down even further. The caseload
has not gone up, it has gone down. Here are some statistics on
that from the Administrative Office of the U.S. Courts.
As measured by written decisions per active judge, the
workload has declined by 17 percent since 1997. As measured by
number of appeals resolved on the merits per active judge, it
has declined by 21 percent.
As measured by total number of appeals filed, it has
declined by 10 percent. As measured by the total number of
appeals resolved, the caseload has declined by a whopping 37
percent.
So, Mr. Chairman, given the strident statements from some
of my colleagues and the undeniable data from the
administrative office, I am surprised we are rushing so fast
here.
I am especially surprised we are pushing forward, given
that Mr. Keisler is now leap-frogging ahead of several nominees
for seats that the nonpartisan Judicial Conference has
identified as ``bona fide judicial emergencies.''
Indeed, every other Circuit nominee awaiting a hearing in
committee, save one, has been selected for a vacancy that has
been deemed a judicial emergency. Should they not come first?
Furthermore, just one other point here, which, again,
causes some doubt. Again, we have not had a chance to review
Mr. Keisler's judicial philosophy, but at least Bob Novak
reported that Mr. Keisler's nomination became possible because
conservatives blocked the more moderate lawyer, Debra
Livingston from New York, my State, from becoming the nominee
for this seat.
So I will ask unanimous consent that the rest of my
statement be read into the record.
Here are the questions that just loom out there: 1) why are
we proceeding so fast here? 2) is there a genuine need to fill
this seat? 3) has the workload of the DC Circuit not gone down?
4) should taxpayers be burdened with the cost of filling that
seat? 5) does it not make sense, given the passion with which
arguments were made only a few years ago, to examine these
issues before we proceed?
I ask unanimous consent that my entire statement be read in
the record.
Again, I thank you and Senator Kennedy.
Senator Cornyn. Without objection, it will be made part of
the record.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
Senator Cornyn. Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Well, welcome, Mr. Keisler. There are
obviously issues on process and procedure. That is not your
particular issue here. You have been nominated by the President
and deserve congratulations on that. I am concerned about just
the general kind of timeframe as a matter of issue.
In preparation, I have had a number of people that have
worked with you that I have high regard for that have
represented about your basic fairness and good common sense and
judgment. But it has been a very fast-moving process.
I think the points that Senator Schumer has made are issues
which I am familiar with. We have Ellen Kagan, and the nominee
never even got a hearing at the time. Now she is the Dean of
the Harvard Law School, and a distinguished one, and doing very
well there.
So there is a past history, which you have not been a part
of, and there is no reason that you ought to be part of that.
But that is the background of where we are considering this
nomination, and that is the context, which I am sure you are
very much aware of.
I was interested in a number of different areas that you
have been involved in, going back to when you were counsel
during that period of time. There were at least some
suggestions that you were involved in issues during that period
of time involving arms sales, Contra aid, as well as signing
statements.
Can you tell us what you did in the Reagan White House, and
have materials been made available to us in this Committee that
have dealt with that period of time?
Mr. Keisler. Thank you, Senator Kennedy. In terms of what I
was involved with, with respect to Iran Contra, I only became
aware of the Iran Contra issues when there was that press
conference in September 1986, when it was first announced that
it had been discovered that there was the relationship with the
Iran, the Contras, and arms. I had never heard anything about
it before then.
Once that was announced, the entire White House Counsel's
Office became involved in responding to the Congressional
inquiries and dealing with the independent counsel, so I was
involved as a lawyer with those events, but not in the
formulation of any policies or any legal analysis of the
policies when they were being considered, but just as part of
the general work in the office once the thing became a scandal.
With respect to signing statements, it was generally one of
the things that was shared among all the lawyers in the office,
that whenever the President signed a bill and a signing
statement accompanied it, it would be assigned to one of us to
review, and we did. But I had no special responsibility for
signing statements beyond that.
Senator Kennedy. Have you expressed the view about signing
statements, about whether you support, or do you agree with
Judge Aleto? For example, OLC's interpretation of the signing
statements.
Mr. Keisler. I have not expressed a view or had an occasion
in the Justice Department to work on that issue. I will say
this, just based on what I have read in the newspapers about
the issue.
I know that, at least at some point--and I do not know
whether this was something that Justice Aleto was saying or was
just part of the discussion at the time--there was a suggestion
that signing statements by he President could be used as some
sort of counter legislative history or supplement to
legislative history, that courts would look to it the way they
look to legislative history to guide their interpretation of a
statute. I do not think that is right. Courts do look to
legislative history. They do not, to my knowledge, look to
signing statements.
I think the statement that the President makes in the
signing statement is entitled to no more or less consideration
by a court than a statement the President makes in a brief. It
is an argument to be considered, but I do not see it as part of
the process that is binding in a strong or a weak way on a
court in interpreting the statute.
Senator Kennedy. Just quickly, because there is one area I
want to come to and I am running out of time. With regards to
any of the arms sales, were you, while you were in the White
House, involved in any negotiations or any advice with regards
to arms sales?
Mr. Keisler. No. As I said, the only involvement that I
recollect--and it was a long time ago, so maybe I was asked. I
do not want to rule out the possibility that there was some
memo somewhere that I do not remember, because it was 20 years
ago. But the only recollection I have of being involved with
Iran Contra was in the post-revelation defense of what had
happened.
Senator Kennedy. Let me, if I can--my time is running out
here--you were, as I understand it, the political appointee
directly responsible for the government's tobacco lawsuit. In
that litigation, the career attorneys recommended damage
requests of $130 billion, but political appointees cut that to
$10 billion.
We found afterwards that the lead career attorney for the
government resigned shortly after the episode. So did you
support the reduction of damages, and can you describe your
dealings with the career attorneys in this case?
Mr. Keisler. Certainly, Senator. I agreed with the decision
by the Associate Attorney General as to what the damage
remedies we should seek, and that involved a reduction from a
number that had previously been put forward.
Let me say at the outset that I do not think there is any
more important part of my job as head of the Civil Division
than maintaining the professionalism of the Department's work.
That is what I sought to do throughout, and that is what I
sought to do here.
The Associate Attorney General's decision was based on the
recommendations by the career prosecutors in the Criminal
Division who supervised RICOH litigation, and the tobacco case
is a case under the RICOH statute.
He accepted their recommendation. He declined to adopt a
contrary recommendation by the director of the tobacco team.
But it was not a question of career versus political. There
were competing recommendations from two different sets of
career attorneys.
I did agree that his decision was correct, and I was very
distressed after it was made to see allegations in the
newspaper that maybe this decision was in some way politically
motivated. So I was very grateful that the Office of
Professional Responsibility conducted a full investigation of
those charges.
Of course, the do not report to me, they do not report to
the associate. They are an independent group of career
investigators who do nothing but investigate allegations of
possible misconduct at the Department. They found,
unequivocally, there was no impropriety, no political
influence.
What the Associate Attorney General was doing, and what I
was agreeing with, was a decision to seek a remedy that would
be the strongest possible remedy that could be sustained on
appeal.
Senator Kennedy. Thank you. My time is up. I have some
additional questions. I thank the Chair.
Senator Cornyn. Senator Kennedy, we would be glad to give
you time to ask those now if you wish, or you can reserve them,
at your pleasure.
Senator Kennedy. Well, just some. Mr. Keisler, you stated
August 1, 1987--this goes back to Judge Bork, and it goes back
a long way--that you thought Bork was in the mainstream.
I would be interested, specifically, if you think it was in
the mainstream to contend that the Constitution did not contain
a right to privacy. Do you accept now the fact that the
Constitution does protect privacy?
Mr. Keisler. Oh, yes, Senator. I do. When I said that Judge
Bork was in the mainstream, that was not to indicate that I
would adopt every single one of his positions, or that of
anyone else who might be in the mainstream.
Senator Kennedy. Well, maybe you could just elaborate. You
do recognize, then, the right to privacy that is in the
Constitution. Do you accept that concept?
Mr. Keisler. I do, Senator.
Senator Kennedy. I guess you do not want to expand.
Mr. Keisler. I would be happy to expand, Senator.
Senator Kennedy. Yes.
Mr. Keisler. I did not mean to be abrupt. I think it has
been settled for decades, that the protection of liberty in the
Due Process Clause of the Fourteenth Amendment includes the
protection of personal privacy, in addition to the many other
parts of the Constitution that protect other aspects of
privacy.
When the Fourteenth Amendment talks about liberty, it is
not simply saying a freedom from restraint, and it is not
simply saying that you have to give people due process in terms
of procedural protections.
It is saying, as the Supreme Court has repeatedly held,
that there are aspects of personal privacy that are fundamental
and that are constitutionally protected, and that goes back
even before Griswold to the Myron Pierce cases at the beginning
of the 20th century. So, I think that is an absolutely settled
and established part of our law.
Senator Kennedy. Could we talk about the executive power?
Specifically, do you accept the framework described by Justice
Jackson in the Steel Seizure cases? Then do you believe that
Hamdan was correctly decided?
Mr. Keisler. I think the Supreme Court has decided what the
law is in that area. I think what Hamdan underscores, my view
of executive power is that there are very few absolutes that
make sense in the area of separation of powers.
There are very few powers that are exclusive to one branch
or another. I mean, only the President can pardon, only the
Senate can confirm nominees. But most powers are shared. That
is absolutely the case with respect to matters of national
security and military affairs.
What Hamdan underscored in saying that the President had
exceeded the powers granted him by Congress in the Uniform Code
of Military Justice when he established military commissions in
the way that they were established, is that this is an area
where Congress has both specific and general powers to
legislate, powers to make rules for capture, to make
regulations for the Army and Navy, to define and punish
offenses against the laws of nations. Those are all parts of
the Constitution and Article 1, and they have the powers to
make all laws necessary and proper for executing those powers.
That is why the administration and Congress, as I
understand it, are now under way in a process of trying to
determine what rules Congress will write for military
commissions. So, I think that is certainly an area of shared
power, not an area of exclusive power to any branch, and
certainly not the President.
Senator Kennedy. Very good.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Senator Kennedy.
Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
Welcome to the committee. We are happy to have you here,
Mr. Keisler. I have known you for a long, long time. I know
what a brilliant young lawyer you are, and what a straight
shooter you are. Those are important aspects, to me.
I just wanted to ask a few questions. First of all, Mr.
Chairman, I will put into the record the letter dated August 1,
2006 by Chuck Canterbury, who is National President of the
Grand Lodge of the Fraternal Order of Police.
Senator Cornyn. Without objection.
[The letter appears as a submission for the record.]
Senator Hatch. He says in that letter to the Chairman and
Senator Leahy: ``I am writing on behalf of the membership of
the Fraternal Order of Police to advise you of our strong
support for the nomination of Peter Keisler to serve on the
U.S. Court of Appeals for the DC Circuit.
Peter has served for the past 4 years as Assistant Attorney
General for the Civil Division of the Department of Justice. In
this capacity, Peter handled many cases that were of great
concern to the law enforcement community. His service has been
marked by a strong desire to advance the interests and protect
the rights of law enforcement officers,'' et cetera. I will put
the whole letter in.
Let me just read one last sentence: ``On behalf of the more
than 324,000 members of the Fraternal Order of Police, I have
every confidence that Peter Keisler's experience, will,
temperament, and leadership will prove him to be an
extraordinary judge on the U.S. Court of Appeals.'' I think
that is a pretty high accolade for you in that particular area.
But in addition to objective qualifications, the kind that
might be listed on a resume, one of the most important criteria
for evaluating a judicial nominee, is the kind of judge that
nominee is likely to be, or you would likely be.
There are some who would agree with that statement, but the
only thing that some are interested in is how a nominee would
rule on certain issues, or which side would win in certain
kinds of cases.
Now, I do not think anybody with brains would say that is
the right standard. That is the wrong standard. Politics may be
the results, but judging is about the process of arriving at
results.
Now, in your Judiciary Committee questionnaire, you
addressed some questions about the role of judges in our system
of government. I would like you to expand on one aspect of your
answer.
In your words, you said that for a Circuit Judge ``there
are substantial constraints imposed by both higher and lower
courts.'' Now, please elaborate on that, because it goes to the
heart of what we might call your judicial philosophy.
Mr. Keisler. Thank you very much, Senator. I think there
are two very different, but equally important, sets of
constraints that operate on a Circuit Judge, one from the
Supreme Court and one from District Courts. The constraints
from the Supreme Court are, of course, that the Supreme Court
establishes what the law is when it issues decisions.
Those are binding precedents. The judge is no more free to
depart from them than he or she is to depart from statutes or
constitutional provisions themselves. The system could not
possibly function if Circuit Judges were lone rangers that went
off on their own rather than following binding precedent.
And not only binding precedent, but I do think that every
judge writing a decision writes on a mosaic, a mosaic which
includes all the decisions which came before, both binding and
controlling decisions, and other decisions that may not be
binding because they may be from another court, but which need
to be taken into account because they are the result of careful
consideration by intelligent men and women who focused on the
kinds of problems the judge is focusing on. So I think all of
those are very important constraints.
But I also think a Circuit Judge faces constraints from the
other direction as well, which is, District Judges are managing
their cases. They are entitled to a substantial amount of
discretion in case management, in factual finding, in other
areas.
A Circuit Judge can exceed his or her role not simply by
disregarding finding Supreme Court precedent, but by
overstepping that role with respect to review of District Court
decisions as well.
Senator Hatch. Some, in evaluating your nomination, want to
use your nomination as an excuse to attack the Bush
administration. Some will raise the Hamdan v. Rumsfeld case.
Critics are quick to point out that the court ruled against the
administration regarding procedures for military commissions.
I did not find the case that offensive, personally. But you
argued that case before the U.S. Court of Appeals for the DC
Circuit. Do I recall that you won the case there with a
unanimous ruling from the three-judge panel?
Mr. Keisler. That is correct, Senator.
Senator Hatch. All right. And is it not true that the three
justices on the Supreme Court also agreed with your position?
Mr. Keisler. Yes, sir.
Senator Hatch. It seems to me that you did an exemplary job
in advancing the position of your client, the government, at
this point. By my count, a majority of the appellate judges in
this case, between the Court of Appeals and the Supreme Court,
agreed with you.
But I hardly think that justifies the charge that the
position that you advanced was extreme, unusual or out of the
mainstream. This was a difficult case. It changed laws that, in
my opinion, have been on the books since the time of George
Washington, at least in that one respect of military
commissions.
I have gone over my time. I had one other question. Let me
just ask this one. As you know, I was co-sponsor of the
Religious Land Use and Institutionalized Persons Act. This is a
Federal statute protecting the right to freely exercise
religion.
You were involved in a case challenging this statute,
Westchester Day School v. Village of Mamaroneck. Could you
please tell the Committee about that case, your role in it, and
why was it important for protecting individual rights?
Mr. Keisler. Sure. The Religious Land Use and
Institutionalized Persons Act protects two categories of
religious liberty, the religious liberty of prisoners and other
incarcerated persons with respect to how they are treated in an
institution, and the religious rights of religious institutions
that are engaged in land use and zoning disputes with State and
local governments.
It has faced persistent constitutional challenges by State
and local governments who claimed that it exceeds Congress'
remedial power under Section 5 of the Fourteenth Amendment,
that it is a violation of federalism under the Commerce Clause
and Tenth Amendment, and in some cases that it violates the
Establishment Clause.
It has fallen to the Civil Division, in many cases, to
defend the constitutionality of that act. I was honored to have
the opportunity to argue the issue before the Second Circuit.
In the end, the Second Circuit did not need to reach that issue
in the case that I argued, because it resolved the case on
other grounds.
But other courts, including the Supreme Court, have upheld
that statute against a variety of challenges. So, I am proud to
say that we were successful in defending Congress' judgment
that religious liberties should be protected in those areas.
Senator Hatch. Well, thank you so much. I have other
questions, but I will submit them in writing.
Senator Cornyn. Thank you, Senator Hatch.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Like my colleagues, I am not pleased that the Committee is
holding this hearing today. As we wrote to you last week, Mr.
Keisler was nominated only a month ago. The question of whether
another judge should be named to the DC Circuit is an issue
that needs further study and discussion in this committee.
Many members of our Committee strongly opposed confirming
an eleventh Circuit Judge to this important Circuit when the
nominations are made by President Clinton. The caseload for
this Circuit is, I am told, even smaller now than it was then.
In addition, I understand that there are likely quite a few
documents that concern Mr. Keisler at the Reagan Library that
have not been made available to the committee. These documents
will almost certainly be of assistance to the Committee in
evaluating Mr. Keisler's suitability for this important
judicial position.
This is the second nomination the Committee has considered
this year of an administration official directly to the DC
Circuit. I am troubled by this. Administration officials say we
cannot judge them by the positions they have taken as
government lawyers because they are representing a client.
Attorneys in private practice, which is where Mr. Keisler spent
about a decade prior to joining the Justice Department, say the
same thing.
I think when we are talking about the second-highest court
in the land, we should, at the very least, be willing to take
another month to gather all of the relevant evidence to help
Senators make a decision. Otherwise, all we have to go on are
testimonials from nominees' friends and colleagues, of whom Mr.
Keisler, and like Judge Cavenaugh before him, has many.
So, Mr. Chairman, I hope we will have the opportunity to
bring Mr. Keisler back after we have had a chance to review
those documents.
In the time I have left, I will just ask him a few
questions.
I understand you have been involved in civil litigation
concerning the NSA wire tapping program.
Mr. Keisler. That is correct, Senator.
Senator Feingold. I assume, then, that you have been read
into the program. Is that right?
Mr. Keisler. That is correct, Senator.
Senator Feingold. When were you read into the program?
Mr. Keisler. I think it was mid-to late December, 2005.
Senator Feingold. Were you involved in putting together the
Department's legal justification for the program after it was
disclosed in December of 2005, and prior to the litigation that
you are working on now?
Mr. Keisler. I think at one point someone sent me, and many
other people, a draft of the OLC white paper, but I did not, a
the time, review it or provide comments.
Senator Feingold. You did not review it?
Mr. Keisler. I did not. My involvement in the case has been
on the litigation side, that when cases were filed, it falls to
the Civil Division to defend the position in court.
Senator Feingold. As I mentioned, you are the second high-
level administration official who are being asked to confirm to
the DC Circuit this year. The administration has undertaken
some very controversial actions and policies already, and I
expect will end up in court.
I do not think it will help public confidence and decisions
that the courts reach if the judges in these cases used to work
for the administration. There are, of course, recusal statutes
that are intended to deal with this problem.
One part of those statutes, 28 USC Section 455(b) requires
judges to recuse themselves in a variety of specific
circumstances, including where they participated in, or have
direct knowledge of, the case.
But Section 455(a) also requires recusal when the
impartiality of the judge might reasonably be questioned. So,
that is a judgment call that you would have to make as a judge.
I assume you agree that 455(a) is an independent test to be
applied even if none of the specific circumstances in 455(b)
are applicable.
Mr. Keisler. I think any occasion in which a judge believes
that his or her impartiality could reasonably be questioned,
they should not participate in the case.
Senator Feingold. And that is, in fact, not only a general
principle, but one that is derived from 455(a). Correct?
Mr. Keisler. I wold have to go back over the statute to be
sure, and I would have to have the subsections in front of me,
but I have always understood it to be a requirement.
Senator Feingold. How will you go about analyzing and
deciding the question of whether your impartiality can
reasonably be questioned?
Mr. Keisler. I think there are at least some easy cases,
Senator. I think, certainly, any case in which I served as
litigation counsel, is an easy call. You cannot represent a
party in a case, then turn around and sit on the case as a
judge.
Certainly, any case in which I have financial interests, or
there are family relationships that come within some of the
specific prohibitions, those would apply as well.
Obviously, there is a gray area beyond that in which it is
a question not of rigid rules, but of perception. It is hard to
answer those questions in the hypothetical sense, except to say
that I think one should give a wide berth to the need to ensure
a high degree of public confidence. That is an area where I
would not want to even get close to the line.
Senator Feingold. Would the fact that you were an
administration official, and the fact that some of these are
particularly controversial decisions, be something that you
would consider as a factor in the question of impartiality?
Mr. Keisler. I would certainly consider everything in that,
although I think I would be inclined to focus most specifically
on whether there was any actual involvement that I or the Civil
Division had had in the matter.
If, for example, the U.S. Attorney's Office is bringing a
criminal prosecution and I had nothing to do with it. I would
not tend to think that merely by the fact that I had served
with members of that office in this capacity, would likely
warrant recusal. But there can be closer questions. As I said,
that is not a line I would want to get close to.
Senator Feingold. Well, then would you recuse yourself in
any case involving the NSA wire tapping program in any way?
Mr. Keisler. Yes, Senator. I have engaged in confidential
attorney-client discussions on that issue. Even if it was a new
case that had not been filed, I think that would be required.
If I might just amend or supplement one answer I gave you
earlier. You had asked me whether I had reviewed or commented
on the white paper. I think I said I did not review or comment
on it. My best recollection is that I did not comment on it,
but I may have seen it and read it before it was published.
Senator Feingold. Yes. Because I asked you specifically
whether you had reviewed it, and you said no.
Mr. Keisler. Right. That was why I was going over it in my
mind.
Senator Feingold. So now you are changing your answer.
Mr. Keisler. I do not remember whether I read it before it
was published or not.
Senator Feingold. All right.
Mr. Keisler. But I do not want to foreclose the possibility
that I did.
Senator Feingold. Well, I am glad you did because I was
assuming that you had not reviewed it. Apparently you are not
certain when you reviewed it, but you did review it.
Mr. Keisler. That is right.
Senator Feingold. All right. I thank you for your answer.
Thank you, Mr. Chairman.
Senator Cornyn. Mr. Keisler, I am advised that yesterday
the American Bar Association Committee on Judicial Nominations
has given your nomination a designation as unanimously ``Well
Qualified.'' Is that your understanding?
Mr. Keisler. That is what I was told, Senator.
Senator Cornyn. Do you know what they look at when they
assess the qualifications of nominees to Federal courts?
Mr. Keisler. They sent me a booklet in advance of the
process, Senator, which said they look at, I think, legal
ability, integrity, and temperament.
Senator Cornyn. Senator Hatch referred to a letter dated
August 1, 2006 from the Grand Lodge of the Fraternal Order of
Police, which is now part of the record.
But I was interested in part of the body of that letter,
and particularly a case that it refers to. That is the United
States Exrel Westric v. Second Chance Body Armor, Inc., et al.
Then there is apparently maybe a related case--it is hard for
me to tell from this letter--involving bullet-proof vests.
Could you explain your involvement in that case or those
cases, please?
Mr. Keisler. Certainly, Senator. Those are cases against
two companies, Second Chance Body Armor and Toyobo, which
manufactured bullet-proof vests made with Zylon. At some point,
those companies became aware, but did not disclose, that Zylon
degrades rapidly under certain conditions of temperature and
humidity.
Obviously, that is a subject of the gravest possible
concern when you are talking about bullet-proof vests. There
have been law enforcement individuals who were wearing those
vests and who were wounded when bullets passed through and
injured them.
We brought a fraud case against the manufacturers, Second
Chance and Toyobo, for not being straight with the government
when they sold these vests to Federal, State, and local law
enforcement.
For me, one thing that case and others like it captures, is
people think of these government fraud cases are about money.
And many of them are about money, and sometimes a lot of money.
That is, itself, of course, very important.
But there are a lot of ways, sometimes, when people cheat
the Federal Government, when it turns out to be something a lot
more than money. In this case, men and women in law
enforcement's lives were placed at risk by the callous conduct
of these companies, and we are pursuing the matter in
litigation.
Senator Cornyn. Thank you very much for that. Thank you for
your presence here today. I can tell you from experience that
there will probably be more questions that will be coming in
writing.
We appreciate your willingness to serve in this important
position, and your family's willingness to support you in that
endeavor. So, thank you very much.
Mr. Keisler. Thank you, Senator. I am very grateful to you.
Senator Cornyn. I would now ask our District Court nominees
to come forward and be sworn, please. Raise your right hand,
please.
[Whereupon, Judge Baker, Judge Gutierrez, and Mr. Besosa
were duly sworn.]
Senator Cornyn. Please have a seat.
Mr. Besosa? Did I pronounce that correctly?
Mr. Besosa. Yes, Senator.
Senator Cornyn. Again, I am very sensitive to
mispronunciation of names, given a name like mine.
But we have had introductions of two of the nominees, and
Representative Fortuno has submitted a statement in writing.
But let me review the qualifications of the three nominees that
we have before us today.
The first, is Francisco Besosa, nominated to be U.S.
District Judge for the District of Puerto Rico. Mr. Besosa
received an A.B. from Brown University in 1971, and a J.D. from
Georgetown University Law Center in 1979.
Before attending law school, Mr. Besosa served as an
intelligence officer in the U.S. Army, and was awarded the
Meritorious Service Medal. Following law school, Mr. Besosa
served as an associate attorney at O'Neill & Borges.
In 1980, Mr. Besosa became a partner at Bobonis, Besosa &
Rodriguez Poventud before entering the public sector in 1983 as
an Assistant U.S. Attorney for the District of Puerto Rico.
In 1986, he returned to private practice and was associated
with several Puerto Rico law firms, until 1994 when he joined
his current firm as a partner. The American Bar Association has
rated Mr. Besosa unanimously ``Well Qualified.''
Judge Valerie Baker has been nominated to be District Judge
for the Central District of California. Judge Baker received
her Bachelor of Arts summa cum laude from the University of
California, Santa Barbara in 1971, as well as her Master's
degree cum laude from the same institution a year later.
In 1975, she received her J.D. from the UCLA School of Law,
and soon thereafter became working as an associate for the firm
of Overton, Lymon & Prince in Los Angeles. During her 2 years
at Overton, Judge Baker focused on business litigation,
representing such clients at Getty Oil Company in antitrust
litigation, and automobile manufacturers in breach of warranty
actions.
In 1977, Judge Baker joined the U.S. Attorney's Office in
Los Angeles, where she served in the Criminal Division. In
1980, Judge Baker joined the law firm of Lillick, McHose &
Charles (now Pillsbury, Winthrop, Shaw & Pittman) as an
associate, and was admitted into the partnership 2 years later.
In 1986, Judge Baker was appointed to serve on the Los
Angeles Municipal Court, where she presided over civil matters
and criminal misdemeanors. In 1987, she was elevated to the Los
Angeles County Superior Court, where she currently serves.
The American Bar Association has rated Judge Baker
unanimously ``Well Qualified.''
Our third nominee to the District bench is Judge Philip
Gutierrez, nominated to be District Judge for the Central
District of California as well. Judge Gutierrez received his
B.A. from the University of Notre Dame in 1981, and a J.D. from
the UCLA School of Law in 1984.
He began his legal career as an associate at the Los
Angeles firm of Wolf, Pocrass & Reyes, where he worked until
1986, when he joined Kern & Wooley. At both firms, Judge
Gutierrez worked on civil tort liability litigation.
In 1988, Judge Gutierrez joined the firm of Cotkin &
Collins in Santa Ana as managing partner. At Cotkin, he focused
his practice on business litigation, with an emphasis on
professional liability and insurance coverage.
In 1997, Judge Gutierrez was appointed to serve on the
Whittier Municipal Court, where he presided over misdemeanors,
felony arraignments, and civil matters.
In the year 2000, he was elevated to the Los Angeles County
Superior Court, where he currently sits in the Pomona division,
and presides over felony trials, preliminary hearings,
probation violations, and pre-trial motions.
The American Bar Association has rated Judge Gutierrez
unanimously ``Well Qualified.''
Welcome to each one of you.
We are honored to have the Chairman of the Judiciary
Committee join us. I would be happy to recognize him or turn
the gavel over to him, as the case may be, whatever he wishes
at this time.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Chairman Specter. Thank you very much, Mr. Chairman. That
should answer the question about the gavel.
Senator Cornyn. I like the sound of that. Thank you.
Chairman Specter. Well, in due course. I sat here for many
years with Chairman Thurmond with the gavel, and it was a great
learning experience to just sit and listen.
Mentioning Senator Thurmond, I might tell you one short
story which has, I think, an important moral. I had been here a
very short period of time when two nominees came up from
Pennsylvania for the Federal Court, Judge Mansman in the
Western District, Judge Caldwell in the Central District.
When Senator Thurmond started the proceedings, he said,
``If you are confurhmed, do you promise to be cuhrteous?''
Which is translated, ``If you are confirmed, do you promise to
be courteous?''
I thought to myself, what a question. What are they going
to say, but yes? Both of them said yes. Then Senator Thurmond
said, ``Because the more pohwer a puhson has, the more
cuhrteous he should be,'' translated, the more power a person
has, the more courteous he or she should be. That is a very
important thing for a judge to realize, especially a Federal
judge with life tenure.
Once you put on those black robes, if and when confirmed,
there is enormous power. Sometimes there is an inclination on a
bad day, or lawyers who are not well prepared, witnesses who
are not responsive, a lot of reasons to get mad at people and
exert your power. Nominees have heard that.
When I appear and preside, I frequently will tell that
story. Years after the nomination proceedings, nominees have
said, ``That story you told about Senator Thurmond, I have
really remembered that and I have tried to follow it.'' So,
thank you very much, Mr. Chairman.
Senator Cornyn. Thank you, Chairman Specter.
Let me proceed, now, with some questions. Well, first of
all, before I start, it is likely that you have brought some
family members or people close to you here today, and I want to
give each one of you a chance to introduce those, if you would
like, so they can sort of bask in your reflected glory as a
result of this nomination.
Judge Baker, do you have any family or friends you would
like to introduce to the committee?
STATEMENT OF VALERIE L. BAKER, NOMINEE TO BE JUDGE FOR THE
CENTRAL DISTRICT OF CALIFORNIA
Judge Baker. Yes. First, I would like to thank the
Committee and thank Senators Boxer and Feinstein for
introducing me, and, of course, thank the President for his
nomination. It is an honor and privilege to appear before you
today.
I am here with my husband, Robert Fairbank, and his
brother, Richard Fairbank, his wife, Chris Fairbank, and her
son, Brian Fairbank, who is now in college at University of
Virginia, and their daughter, Ashley-Ann Fairbank, who will be
in the sixth grade next year.
[The biographical information of Judge Baker follows.]
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Senator Cornyn. Thank you very much.
Mr. Besosa?
STATEMENT OF FRANCISCO AUGUSTO BESOSA, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF PUERTO RICO
Mr. Besosa. Thank you, Mr. Chairman. I am here with my
wife, Enid Martinez, who is a Superior Court Judge in Puerto
Rico; my son, Francisco, who is following in my footsteps and
will be a senior at Brown University next month; and also, my
cousins from Pennsylvania, Lita Feather, her brother Edwin, and
Edwin's wife, Mayleen.
I also want to thank the President and the committee, and
Representative Fortuno for submitting my name to the White
House for this important post.
Present also are some very close friends of mine: Wanda
Rubianes, who worked with me at the U.S. Attorney's Office in
Puerto Rico, who now works here in Washington; Flavio Cumpiano,
who clerked at one of the law firms that I worked with and who
works with the Puerto Rico Affairs Office in Puerto Rico. And I
do not know if he is still here, but Mr. Eduardo Batia, who is
head of the Puerto Rico Federal Affairs Office. I surely thank
them for being here with me.
[The biographical information of Mr. Besosa follows.]
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Senator Cornyn. Thank you, Mr. Besosa.
Judge Gutierrez?
STATEMENT OF PHILIP S. GUTIERREZ, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Judge Gutierrez. First, I would like to thank the President
for the nomination. I would like to thank the Chairman for the
opportunity at this hearing. I would also like to thank
Senators Boxer and Feinstein for the kind introduction.
Unfortunately, I was not able to bring my family, my lovely
wife Anna, and my son Connor, who is 12, and my daughter Erin,
who is 9. They are back in California. Thank you.
[The biographical information of Judge Gutierrez follows.]
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Senator Cornyn. Well, thanks to each of you for that. I
know your family members appreciate their recognition, since
they have contributed mightily to your sitting here today
before the committee.
Each of you have had distinguished careers in your own
right. I might start with the same question that I asked of Mr.
Keisler, a question that every prospective employer asks, at
least in my experience. That is, why do you want the job? Judge
Baker?
Judge Baker. Like you and others in this room, I have been
dedicated to public service much of my career. It has always
been a dream to be a Federal judge since I started law
practice, as a U.S. Attorney, and as an attorney in private
practice, appearing in Federal Court.
I have served as a judge on the State Court for over 20
years now, and I have found that each day and in each case, it
is an honor to preside over the trials, to decide cases in
accordance with the law, and to ensure that the process, as
well as the result, is fair and just to all individuals
appearing in the court. I very much appreciate your
consideration.
Senator Cornyn. Thank you.
Mr. Besosa?
Mr. Besosa. Well, I have high regard for people like Judge
Baker, who have been in public service for so long. I have not,
but I am a firm believer that one has to give some sort of
public service. This would be the third time that I have served
the Nation.
First, in the Army, as you mentioned; second, as an
Assistant U.S. Attorney; now in this job, which is the epitome
of every litigator, I think, in the Nation, to become a Federal
judge. The opportunity came to me. I did not seek it. I am very
grateful to those who approached me and asked me if I were
interested in this position. I, of course, was.
Senator Cornyn. Thank you.
Judge Gutierrez?
Judge Gutierrez. As Judge Baker started in saying, this is
about public service. I have served the people of the State of
California for 9 years. I would like to serve the people of the
Nation for the rest of my life, if confirmed. As Judge Baker
said, being a judge is about providing a fair process, a
process that is not only fair, but perceived to be fair by the
litigants. Thank you.
Senator Cornyn. Well, I know each one of you have been
through an extensive evaluation process before you even got
here today. I mentioned that each of you have been reviewed--
your credentials, experience, and your record in terms of your
professional ethics--by the American Bar Association.
Each of you has had an extensive background investigation
by the Federal Bureau of Investigation, so you come here today
having been investigated, probed, and prodded in a lot of
different ways.
So there is not a whole lot more than we could ask or that
I will ask today, and I hope you are not too disappointed that
we do not have a full array of members in the Judiciary
Committee hearing room today. I assure you, that is good news,
not bad news.
[Laughter.]
When everyone is here and ready to go, it can be a rocky
ride. But I assure you that that will not be the case with you.
Let me just ask, like Judge Baker and Judge Gutierrez, I
served on the State courts in my State of Texas for 13 years,
and this was always an issue that lawyers used to talk about in
reference to judges.
That is, judges who forget the fact that they started out
as a lawyer and that they get, quite honestly, well, a disease
that is sometimes called robeitis, otherwise known as ``the big
head,'' unapproachable, arrogant, and difficult to deal with.
Of course, the difficulty is, when you have lifetime
tenure, when your tenure is not determined by anyone's
approval, that you can become detached and perhaps suffer from
some of those conditions, more or less.
But let me just ask Judge Baker, Mr. Besosa, and Judge
Gutierrez, how do you keep your perspective and how do you keep
your humility, given this exalted position that you will soon
be confirmed to?
Judge Baker. I have found, as a State Court judge, and I
will find, if considered for the Federal Court and approved,
that the responsibilities are very important and very humbling.
Every day that I take the bench now as a State Court judge, I
am grateful for the opportunity and I feel the responsibility
to the litigants.
If confirmed and approved, I would continue with that. I
very much appreciated the marks of Chairman Specter. I agree
wholeheartedly that courtesy and respect to everyone appearing
in the courtroom is paramount.
Senator Cornyn. Mr. Besosa?
Mr. Besosa. Well, I talked about this with my wife, who is
a judge. The way she says it, you just have to be yourself. If
you have been a fair-minded and respectful person and you have
been brought up like that, there is no reason why putting on a
robe will change that. I have come across judges with robe-
itis, as you say. I have come across judges with big heads.
Fortunately, they are few and far between. If I continue to
be the way I have been for all my life, then it is just a
question of being yourself and continuing that respect for both
sides, being fair-minded and listening to both sides. But when
it comes time to decide, you have to take a position.
Senator Cornyn. Judge Gutierrez? Judge Gutierrez. I think
this goes to the heart of what Senator Specter said, and
treating people with courtesy. What I have strived to do as a
judge for the last 9 years, is to treat each litigant with
dignity and respect.
Judge Gutierrez. That is what I will continue to do, if
confirmed to the Federal bench, and that is, in each
proceeding, make sure that each lawyer, each litigant, has been
heard in a respectful, dignified, courteous way.
Senator Cornyn. It has been observed many times over many
years that cost and delay are as effective an impediment to
access to justice as a door with a lock on the front door of
the courthouse. I would like to know from each of you, starting
with Judge Backer, how you intend to approach your new
responsibilities in terms of reducing cost and improving access
to justice in your new role.
Judge Baker. Thank you, Senator. The concerns you raised
are extremely important. Fortunately, I have had experience
with voluminous criminal and civil calendars on the State Court
bench, and managing calendars, motions, hearings and trials in
the most efficient way possible. I try to review all papers
before the hearing so I can focus on the attorney's arguments.
Before trials, I prepare and work with the attorneys to
make sure trials are prepared efficiently. I believe that the
litigants are also entitled to prompt resolution of their
dispute, so I work to decide cases promptly.
Senator Cornyn. Mr. Besosa?
Mr. Besosa. I agree with Judge Baker, Senator, that
preparation is the key. If litigants come before you prepared
and you as a judge are prepared for that particular case, then
justice will flow, the case will flow very quickly and reach a
very prompt solution.
I know the court in Puerto Rico is very heavy in a criminal
docket, especially multiple defendant cases. It will be my job,
if confirmed, to make sure that both criminal and civil cases
proceed accordingly and not one case be given any type of short
shrift.
Senator Cornyn. Judge Gutierrez?
Judge Gutierrez. I do not think there is any more important
issue than access to justice and the cost that litigants face
in gaining that access. Like my colleagues, I think the things
that are important are, again, preparation, that matters are
decided promptly, and that delays are minimized.
Senator Cornyn. Well, as I said, each one of your
backgrounds has been examined very closely. I know a lot of
people have been questioned in terms of your qualifications,
your ethics, and your experience, so I will not belabor that
here for now.
Let me just say that, on behalf of the Judiciary, thanks to
each of you for being here today, and thanks to your family for
supporting you.
We will leave the record open for 1 week, until 5 p.m. on
Tuesday, August 8 for members to submit any additional written
questions. If you do receive written questions, please respond
to those as promptly as you can so we can complete our work.
That will help in expediting your chances of getting through
the Committee and then on the floor, and then in your new
positions. But congratulations, again, to each of you.
This hearing is now adjourned.
[Whereupon, at 3:27 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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