[Senate Hearing 109-397]
[From the U.S. Government Publishing Office]
S. Hrg. 109-397, Pt 6
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
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SEPTEMBER 6, 12, 19, AND NOVEMBER 14, 2006
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Serial No. J-109-4
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PART 6
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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
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WEDNESDAY, SEPTEMBER 6, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 1
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 178
PRESENTERS
Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware
presenting Kent A. Jordan, Nominee to be U.S. Circuit Judge for
the Third Circuit.............................................. 7
Castle, Hon. Michael, a Representative in Congress from the State
of Delaware presenting Kent A. Jordan, Nominee to be U.S.
Circuit Judge for the Third Circuit............................ 6
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio
presenting Sara Elizabeth Lioi, Nominee to be U.S. District
Judge for the Northern District of Ohio........................ 11
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa
presenting John Jarvey, Nominee to be U.S. District Judge for
the Southern District of Iowa.................................. 4
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa
presenting John Jarvey, Nominee to be U.S. District Judge for
the Southern District of Iowa.................................. 5
Martinez, Hon. Mel, a U.S. Senator from the State of Florida
presenting Marcia Howard, Nominee to be U.S. District Judge for
the Middle District of Florida................................. 10
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio
presenting Sara Elizabeth Lioi, Nominee to be U.S. District
Judge for the Northern District of Ohio........................ 8
STATEMENTS OF THE NOMINEES
Howard, Marcia Morales, Nominee to be U.S. District Judge for the
Middle District of Florida..................................... 54
Questionnaire................................................ 55
Jarvey, John Alfred, Nominee to be U.S. District Judge for the
Southern District of Iowa...................................... 88
Questionnaire................................................ 89
Jordan, Kent A., Nominee to be U.S. Circuit Judge for the Third
Circuit........................................................ 12
Questionnaire................................................ 13
Lioi, Sara Elizabeth, Nominee to be U.S. District Judge for the
Northern District of Ohio...................................... 114
Questionnaire................................................ 115
QUESTIONS AND ANSWERS
Responses of Kent A. Jordan to questions submitted by Senator
Leahy.......................................................... 160
SUBMISSIONS FOR THE RECORD
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio,
statement...................................................... 167
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
statement...................................................... 170
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa,
statement...................................................... 176
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio,
statement...................................................... 183
TUESDAY, SEPTEMBER 12, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 185
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 284
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 334
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, prepared statement............................... 341
PRESENTERS
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia
presenting Lisa Wood, Nominee to be U.S. District Judge for the
Southern District of Georgia................................... 189
Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma
presenting Gregory Frizzell, Nominee to be U.S. District Judge
for the Western District of Oklahoma........................... 186
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia
presenting Lisa Wood, Nominee to be U.S. District Judge for the
Southern District of Georgia................................... 190
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Nora Fischer, Nominee to be U.S.
District Judge for the Western District of Pennsylvania........ 188
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Nora Fischer, Nominee to be U.S.
District Judge for the Western District of Pennsylvania........ 186
STATEMENTS OF THE NOMINEES
Fischer, Nora Barry, Nominee to be U.S. District Judge for the
Western District of Pennsylvania............................... 192
Questionnaire................................................ 193
Frizzell, Gregory, Nominee to be U.S. District Judge for the
Western District of Oklahoma, prepared statement............... 223
Questionnaire................................................ 224
O'Neill, Lawrence Joseph, Nominee to be U.S. District Judge for
the Eastern District of California............................. 256
Questionnaire................................................ 257
Wood, Lisa, Nominee to be U.S. District Judge for the Southern
District of Georgia............................................ 285
Questionnaire................................................ 286
SUBMISSIONS FOR THE RECORD
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
prepared statement............................................. 328
Eagan, Claire V., Chief Judge, U.S. District Court, Northern
District of Oklahoma, Tulsa, Oklahoma, letter.................. 331
Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma,
statement...................................................... 332
Sartin, Robert B., Barrow & Grimm, P.C., Attorneys at Law, Tulsa,
Oklahoma, letter............................................... 339
Wohlgemuth, Joel L., Attorney at Law, Norman, Wohlgemuth Chandler
& Dowdell, Tulsa, Oklahoma, letter............................. 342
TUESDAY, SEPTEMBER 19, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 345
Leahy, Hon. Patrick J., a U.S. Senator fromthe State of Vermont,
prepared statement............................................. 493
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Leslie Southwick, Nominee to be District Judge for
the Southern District of Mississippi........................... 346
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Leslie Southwick, Nominee to be District Judge for
the Southern District of Mississippi........................... 347
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan
presenting Paul Lewis Maloney, Janet Neff, and Robert Jonker,
Nominees to be U.S. District Judges for the Western District of
Michigan....................................................... 348
STATEMENTS OF THE NOMINEES
Jonker, Robert James, Nominee to be District Judge for the
Western District of Michigan................................... 350
Questionnaire................................................ 351
Maloney, Paul Lewis, Nominee to be District Judge for the Western
District of Michigan........................................... 377
Questionnaire................................................ 378
Neff, Janet T., Nominee to be District Judge for the Western
District of Michigan........................................... 402
Questionnaire................................................ 403
Southwick, Leslie, Nominee to be District Judge for the Southern
District of Mississippi........................................ 441
Questionnaire................................................ 442
QUESTIONS AND ANSWERS
Responses of Robert James Jonker to questions submitted by
Senator Leahy.................................................. 483
Responses of Robert James Jonker to questions submitted by
Senator Kennedy................................................ 488
SUBMISSIONS FOR THE RECORD
Levin, Hon. Carl, a U.S. Senator from the State of Michigan,
prepared statement............................................. 492
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi,
prepared statement............................................. 498
TUESDAY, NOVEMBER 14, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick, a U.S. Senator from the State Vermont,
prepared statement............................................. 565
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 501
PRESENTER
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Thomas Hardiman, Nominee to be U.S.
Circuit Judge for the Third Circuit............................ 502
STATEMENT OF THE NOMINEE
Hardiman, Thomas Michael, Nominee to be U.S. Circuit Judge for
the Third Circuit.............................................. 503
Questionnaire................................................ 504
QUESTIONS AND ANSWERS
Responses of Thomas M. Hardiman to questions submitted by
Senators Leahy and Feingold.................................... 557
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ALPHABETICAL LIST OF NOMINEES
Fischer, Nora Barry, Nominee to be U.S. District Judge for the
Western District of Pennsylvania............................... 192
Frizzell, Gregory, Nominee to be U.S. Distrct Judge for the
Western District of Oklahoma................................... 223
Hardiman, Thomas Michael, Nominee to be U.S. Circuit Judge for
the Third Circuit.............................................. 503
Howard, Marcia Morales, Nominee to be U.S. District Judge for the
Middle District of Florida..................................... 54
Jarvey, John Alfred, Nominee to be U.S. District Judge for the
Southern District of Iowa...................................... 88
Jonker, Robert James, Nominee to be District Judge for the
Western District of Michigan................................... 350
Jordan, Kent A., Nominee to be U.S. Circuit Judge for the Third
Circuit........................................................ 12
Lioi, Sara Elizabeth, Nominee to be U.S. District Judge for the
Northern District of Ohio...................................... 114
Maloney, Paul Lewis, Nominee to be District Judge for the Western
District of Michigan........................................... 377
Neff, Janet T., Nominee to be District Judge for the Western
District of Michigan........................................... 402
O'Neill, Lawrence Joseph, Nominee to be U.S. District Judge for
the Eastern District of California............................. 256
Southwick, Leslie, Nominee to be District Judge for the Southern
District of Mississippi........................................ 441
Wood, Lisa, Nominee to be U.S. District Judge for the Southern
District of Georgia............................................ 285
NOMINATION OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD
CIRCUIT; MARCIA MORALES HOWARD, NOMINEE TO BE DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF FLORIDA; JOHN ALFRED JARVEY, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF IOWA; AND SARA ELIZABETH LIOI,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO
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WEDNESDAY, SEPTEMBER 6, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:12 p.m., in
room 226, Dirksen Senate Office Building, Hon. Mike DeWine
presiding.
Present: Senator Biden.
OPENING STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE
STATE OF OHIO
Senator DeWine. The committee will come to order.
Today we will have a confirmation hearing for four of the
President's judicial nominees, one nominee for the Court of
Appeals and three District Court nominees.
We appreciate everyone's willingness to appear before the
committee today. I am particularly glad to see Judge Lioi, a
fellow Ohioan here with us today, and we welcome her.
I believe that today's hearing will show that all of our
nominees are well qualified for their respective positions and
that we will then be able to move all of the nominations
quickly to the Judicial Committee for action.
At this point let me turn to Senator Biden for any comments
that he would like to make.
[The prepared statement of Senator DeWine appears as a
submission for the record.]
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Mr. Chairman, thank you for convening this
hearing and allowing me, first of all, to welcome all the
nominees. I think your assessment of their qualifications is
correct, and I look forward to hearing the testimony.
But I would also like to welcome to the committee my two
Delaware colleagues, Senator Carper and Congressman Castle, who
is twice as powerful as us. He is the only Representative in
the State, and so he represents all the State; Tom and I split
it up.
[Laughter].
But I am glad my colleagues are here.
I am also pleased to play a dual role today of not only
serving as the Ranking Member for this hearing--by the way,
this is the closest I have gotten to the Chairman's seat in
about 10 years, after sitting here 17 years. Thanks for letting
me have this shot.
Senator DeWine. It is nice to be in it, actually.
Senator Biden. That is right.
[Laughter].
But I have the honor of introducing a really fine
Delawarean, Judge Kent Jordan, who has been nominated by the
President to sit on the Third Circuit Court of Appeals.
But before I talk about the Judge, allow me to say a few
words about the Judge whom Judge Jordan has been nominated to
replace. This spring, Judge Jane Roth, our former colleague
Bill Roth's wife, informed the President that she would be
seeking senior status.
I would like to publicly acknowledge what a great judge
Judge Roth has been, her service to this country, her
dedication to the rule of law, and her stellar representation
on the Third Circuit Court of Appeals.
I am sure every Senator believes their circuit is the most
vaunted and honorable of them all, but we have a great, great
history in the Third Circuit and some truly nationally renowned
Judges, as other circuits do as well. Jane Roth fit the
Delaware seat marvelously.
I have known Jane for many years, as both my colleagues
have, and I look forward to her continuing her brilliant career
as a senior Justice.
By being nominated to fill Judge Roth's seat, Kent Jordan
has a very significant space to fill. I am confident, based on
his conduct at the District Court level and all those in both
political parties who have recommended him highly, that he will
do exactly that.
It is almost exactly four years to the day that I
introduced Kent Jordan to this committee to be District Court
Judge, and he has performed by every measure with flying
colors.
During his 22-year legal career, Judge Jordan has excelled
at every step of the way. He started his legal career as a law
clerk for one of the most respected Judges ever to serve on the
Federal bench in our State, again known to both my colleagues,
Judge James Latchum, who served on the very bench on which the
Judge now serves.
Kent went on to serve as Assistant U.S. Attorney in
Delaware for five years, and at the time he worked on some
highly publicized cases, bringing some very bad people to
justice, and also administering justice with an even hand.
He moved on to become a partner in one of Delaware's top
law firms, Morris, James, Hitchens & Williams, working there
for five years. Then Kent became General Counsel to a 102-year-
old corporation services company known as CSC, as it is known
nationally as one of the leading incorporation service
companies in the world.
For the past four years he has served with distinction on
the District Court. As I said, he has drawn praise from his
colleagues on the District Court, from the lawyers who have
appeared before him, and from his soon-to-be colleagues on this
Third Circuit Court of Appeals.
His colleagues describe him in many ways, but the
adjectives that always come up are ``bright'', ``hardworking'',
``deep sense of integrity'', ``intellectual honesty''. I do not
know what else you could ask for a Judge. I must tell you, I
have become convinced he is open-minded, collegial, and most of
all, fair.
He is accompanied today by his wife, Michelle. Michelle, I
did not warn you of this, and I do not want to embarrass you.
Would you please stand up and let folks see you here? This is
all the more reason why we should confirm Kent Jordan.
Kent and Michelle have six children, and I will let him do
the introductions of that, that range from ages 11 to 24. On my
mother's side--I realize Kent is LDS and I am an Irish
Catholic. But if my mother were here, Kent, she would say, ``no
purgatory for you. Straight to heaven.''
[Laughter].
Six kids, 11 to 24. Their youngest are here. Three of the
youngest are here today, and I will ask Kent, when it comes his
time, to introduce them as well.
So, Mr. Chairman, I thank you again. I am anxious to hear
from the witnesses. I know Senator Grassley has to leave very
shortly, and I know Congressman Castle as well has to manage a
bill in the House. But I want to welcome the Jordans, and I
thank you for the time.
Senator DeWine. Senator, thank you very much. I will have
to tell my wife about that purgatory issue. With eight kids, I
have to.
Senator Biden. She is in it right now and she does not know
it.
[Laughter].
Senator DeWine. I will have to think about that, Senator, a
little bit. That is good.
Senator Grassley, we will start with you. I must say,
Senator Grassley, before we let you start, I have to put a
little plug in here for Ohio about Judge Jarvey.
Although he is nominated for a position from Iowa, I would
be remiss in my obligation as Senator from Ohio to mention that
the Honorable Judge received his B.S. degree from Akron in
1978. So, I will put that little plug in there.
Senator Grassley. You do not get on the bench with a B.S.,
so remember his J.D. from Drake Law School.
Senator DeWine. I understand that.
[Laughter].
I understand that. We have got a good start, though.
You are up, Senator.
PRESENTATION OF JOHN ALFRED JARVEY, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF IOWA, BY HON. CHARLES E.
GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. You have made my speech. It is a pleasure
today to introduce to the committee a distinguished Iowan who
has been nominated to the Federal bench. Judge John Alfred
Jarvey, from Cedar Rapids, Iowa, will serve as District Judge
for the Southern District. He is an extremely qualified
individual and I am proud to be here to support this nomination
and introduce him to the committee.
Judge Jarvey was born in Minneapolis. He is married to
Mary, who is an instructor of piano. Judge Jarvey graduated, as
you said, from the University of Akron in 1978 with a degree in
Accounting, and then received his J.D. degree from Drake
University in 1981.
He clerked for two years for Judge Donald O'Brien of the
Northern District of Iowa. In 1983, he joined the Justice's
Criminal Division as a trial attorney, where he prosecuted
drug, tax evasion, money laundering, and firearms, and he
happened to specialize in prosecuting medical professionals
involved in pharmaceutical drug diversion.
Since 1987, Judge Jarvey has been Chief Magistrate Judge
for the Northern District of Iowa. In this position, Judge
Jarvey has presided over a wide range of criminal and civil
cases, such as cases involving personal injury, employment
discrimination, and other employees' rights, as well as
patents, copyrights, and commercial disputes that are complex.
In addition, since 1993, Judge Jarvey has been a trial
advocacy instructor at the University of Iowa Law School. Judge
Jarvey enjoys tremendous support from his peers. I received
many letters praising Judge Jarvey's judicial temperament,
courteousness to all litigants, respect for, and commitment to,
our judicial system, and favorable comments about Judge
Jarvey's ethics and abilities as an administrator, and
complimentary statements about Judge Jarvey's intelligence,
command of the law, and rules of evidence, fairness, and
respectful judicial demeanor in court.
I just want to quote from a couple, but I have got a longer
statement I am going to put in the record. From one attorney,
``Judge Jarvey's decisions are thoughtful and well-reasoned. He
clearly is guided by the rule of law and does not legislate
from the bench.''
Another one: ``What is clear to me from my experience with
Magistrate Jarvey is that he is, first and foremost, an
exceptional legal mind. His ability to grasp complicated and
dense fact patterns in a clear and concise manner is well known
and respected in our district. He issues decisions which are
well-reasoned and in harmony with the law of our
jurisdiction.'' That is the end of that quote, but there are
others that will be submitted.
Judge Jarvey has had a distinguished legal career and shown
tremendous dedication to public service. He will be a
tremendous asset to the District Court of the Southern District
of my State.
As I noted, so many people agree that Judge Jarvey is a
talented individual that deserves to be a Federal Judge and he
brings with him the ABA unanimously giving him the rating of
``Well Qualified''.
I am confident that Judge Jarvey possess the skill,
integrity, commitment, intellect, and temperament that we all
look for in good Judges, so it is with great respect and
admiration that I recommend this highly qualified individual to
the Judiciary Committee for favorable consideration and hope we
can get him approved before we adjourn.
Senator DeWine. Senator Grassley, thank you very much.
Senator Grassley. Thank you.
Senator DeWine. Senator Harkin?
PRESENTATION OF JOHN ALFRED JARVEY, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF IOWA, BY HON. TOM HARKIN, A
U.S. SENATOR FROM THE STATE OF IOWA
Senator Harkin. Thank you very much, Mr. Chairman. I join
with my colleague, Senator Grassley, to give my unqualified
support to John Jarvey to be a Federal District Judge for the
Southern District of Iowa.
As Senator Grassley said, John is currently a Magistrate
Judge in the Northern District, a position he has had for 18
years.
I had a chance to meet with him, not for the first time,
last month in Iowa when we were out for our August break. And
Mr. Chairman and members of the committee, I can tell you that,
after 18 years, I believe it is time for a promotion.
John Jarvey started his legal career as a clerk to Federal
Judge Donald O'Brien, as Senator Grassley said, an excellent
training ground for a future Federal Judge. In his years as a
Magistrate, he has developed an excellent reputation as a fair-
minded Judge with a devotion to the law and as a strong
believer in judicial independence.
Based on the calls and letters received by my offices
throughout Iowa, he has earned respect and admiration across
the board. In fact, the Chief Judge of the Southern District,
the Honorable Robert Pratt, and the Clerk of the Southern
District, Marjorie Krahn, are with us today to demonstrate
their support also.
In his years as a Magistrate, John Jarvey has devoted a
tremendous amount of time and energy to successful mediations,
including a very difficult tribal dispute in Iowa. He also
regularly teaches the trial skills he developed as a Federal
prosecutor to students at Drake University and the University
of Iowa Law Schools.
As anyone who has spoken for more than a few minutes to
John Jarvey knows, he is also a committed husband and father.
In selecting John Jarvey to be a Federal District Judge I
believe the President has made a very good choice, and I look
forward to his speedy confirmation.
Thank you very much, Mr. Chairman.
Senator DeWine. Senator, thank you very much.
Representative Castle?
PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE THIRD CIRCUIT, BY HON. MICHAEL CASTLE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF DELAWARE
Representative Castle. Thank you, Senator. I am also
pleased to be here to support Kent Jordan. I guess it is a
little bit unusual that you would have the entire delegation
from one State supporting a person when there is three of us.
It is easy when we all know the person and think so highly of
him. It is even simpler, perhaps, than that.
Delaware, of course, is a small State, but for those who
know anything about the law, it is a State which has a very
highly-developed legal community and judicial community because
of the incorporation statutes, and other reasons why Delaware
is a central place for people to come.
As a matter of fact, the Chamber of Commerce ranked
Delaware's Judges the highest in all five categories they
looked at across the entire United States of America.
Kent Jordan came to the Delaware District Court and has
just done a wonderful job there. I followed this carefully
because I was involved in the initial selection process when he
was nominated.
I can tell you, as one who practiced law in front of a lot
of these Judges, very few do it as well as Kent has done it. He
runs on time. He makes his decisions in a precise way. He has
reduced the workload of that court for the other Judges. He has
just done a great job--even a sensational job--on our District
Court, so we are pleased that he has been nominated for the
Third Circuit Court of Appeals.
He did receive the unanimous vote of the Senate when he
went before you for the District Court, and we hope it can be
the same, and obviously swiftly, if possible, for the Third
Circuit Court of Appeals.
He, as Senator Biden has already indicated, was one of the
top prosecutors and litigators in Delaware, and even has some
corporation background, which is helpful as well. He is filling
big shoes.
Again, typical of Delaware, I guess I have known Jane Roth
all my life. I guess she sort of knew me before I could know
her, because she was a friend of my older sister's, kind of
thing.
She was a wonderful Judge, too, and we are sorry to see her
move on to senior status, but we are delighted that we have
somebody of Kent's ability to do this. All the things that one
would look for in a Judge, patience, intelligence, experience,
are there. The ``Well Qualified'' rating unanimously by the Bar
Association, which we all look for is there.
In the case of Delaware, on the Third Circuit, we only have
2 of the 14 places and we have a wonderful Judge there, Judge
Tom Ambrow, on that court now. But New Jersey, Pennsylvania,
and the Virgin Islands--I have always wondered why the Virgin
Islands was lumped with that, but it is probably a nice place
to go on the circuit every now and then--serve that particular
area, and we want the best Judges we can get from Delaware.
In my judgment, we have picked one of the best Judges you
could find in the United States of America. So, we are looking
forward to supporting Kent in every way we can.
He has a large family, most of which is here, his lovely
wife and three of the kids, and many, many other supporters.
When you are in a small State like ours, Senator, you hear a
lot about people. You usually get to have a pretty good idea of
who they are.
I have never heard a disparaging or discouraging word about
Kent and the wonderful job he is doing in our District Court.
So, I recommend him heartily to all of you here in the United
States Senate.
If I may be excused at some point, I have got to manage a
bill over on the floor of the House and I have to run.
Senator DeWine. We understand.
Representative Castle. But I thank you so much for the
opportunity of being able to speak on behalf of Kent. I
appreciate it.
Senator DeWine. Thank you, Congressman. Thank you very
much.
Senator Carper?
PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE THIRD CIRCUIT, BY HON. THOMAS R. CARPER, A U.S. SENATOR
FROM THE STATE OF DELAWARE
Senator Carper. Thanks very much. I have a sense of deja vu
here. What was it, four years ago?
Senator DeWine. Another Ohio State graduate here.
Senator Carper. There we go. OH. OH. It was not that long
ago, I think four years ago, that a number of us were here for
a similar hearing when Judge Jordan was nominated to be a
District Judge.
At the time I think the children were a little bit younger,
and I know there are three of them here that look a little bit
bigger. I told them they have done a good job in raising their
dad, and they all agreed that he turned out pretty well.
As stated by my colleague Joe Biden and our colleague Mike
Castle, Delaware is a little State and you know one another. If
there are good things to say about a person, you hear those. If
there are not such good things to say about someone, you hear
those as well. In the time that I have known Kent Jordan, in
the time that he has been in public life, we only hear good
things about him.
When I appeared before this committee with our Senator and
our Congressman four years ago, I indicated when I used to be a
governor, like Governor Voinovich over here, I used to have the
opportunity to nominate people to serve on the bench.
There was a litmus test of sorts that I used in nominating
people. I always looked for people who were bright, I looked
for people who knew the law. I looked for folks who had good
judicial temperament, who treated people in the courtroom on
either side with equal respect and made them feel welcome and
listened to.
I looked for people who had good judgment, not only who had
good judgment, but were also able to make a decision. You do
not always find that in everybody who serves as a Judge.
I looked for folks who were hard workers. You never wanted
to nominate anybody to the bench who was going to get on the
bench and, frankly, not work very hard. Kent Jordan meets that
litmus test to a ``T''.
I am proud that we were able to support his nomination four
years ago. I think it speaks volumes that the entire delegation
is here on his behalf, voicing our support of him and our
approval.
I want to say to his children, half of whom are here, and
to his wife Michelle, thank you very, very much for sharing
with us a good father and a good husband to serve the people,
not just in our State, but of our country.
As we think about the Third Circuit Court of Appeals, we
lost some real good people from the Third Circuit. One has gone
on to be a Cabinet Secretary, one has gone on to be a Supreme
Court Justice, and one has just gone to the end of his life, Ed
Becker, who is one of the finest people I have ever had the
privilege of knowing and working with.
Now Judge Roth moves to senior status, and she will
obviously be active and involved. Of all the people I have ever
known on the bench, Federal or State, she was in many ways the
epitome of what a Judge should be about.
She was all the things I just mentioned. In addition to
that, she is someone who has a sparkling sense of humor and
someone with whom it is just great to spend a little bit of
time.
Speaking of her, my hope is that by the end of this year we
will have the opportunity in our State, as Senator Biden and
Congressman Castle know, of actually naming the most beautiful
bridge in our State over the Chesapeake and Delaware Canal, a
bridge built in large part because of the hard work of Bill
Roth, after Judge Roth's husband, the late Senator Bill Roth.
I am pleased to be here to support Judge Jordan's
nomination and elevation to the Third Circuit Court of Appeals,
and my hope is that he will be confirmed. Thank you so much.
Senator DeWine. Senator Voinovich?
PRESENTATION OF SARA ELIZABETH LIOI, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OHIO, BY HON. GEORGE V.
VOINOVICH, A U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. Thank you, Mr. Chairman. It is a
pleasure for me to be here today and to speak on behalf of a
very deserving person from the State of Ohio, and I am here to
express my strong support for Judge Sara Lioi.
I feel kind of good about it, because I appointed Judge
Lioi to the Court of Common Pleas back when I was governor of
Ohio in 1997, and after that she was elected to retain her
seat, then was elected to a six-year term. It is kind of
satisfying to me today to know that the President has nominated
her for a Federal Judgeship.
I welcome the committee's review of Judge Lioi. I believe
that you will come to the same conclusion that I have, that she
is well qualified to serve as a Federal District Court Judge,
and should be confirmed by the Senate.
She has a distinguished and impressive record as an
attorney in private practice, as a Ohio Court of Common Pleas
Judge, as I mentioned, a community leader, and she has deep
roots in Stark County, Ohio.
She is a native of that county and the youngest of seven
children. Judge Lioi graduated from GlenOak High School and
from Bowling Green State University, where she graduated summa
cum laude and earned the distinction of Phi Beta Kappa, she was
an outstanding student.
She went on to attend my law school and alma mater, the
Moritz College of Law at the Ohio State University, receiving
her law degree in 1987. After graduating from law school, Judge
Lioi joined the law firm of Day Kidder, the oldest law firm in
Stark County, as an associate.
She was later recognized by her colleagues when they
elected her to the firm's partnership in 1993. As an attorney,
she represented individuals, schools, and other institutions of
higher learning, cities, small business, and multinational
corporations. While in private practice, she represented
clients at both the trial and appellate levels.
Since ascending to the bench, Judge Lioi has disposed of
over 9,500 cases and conducted over 350 trials, over 335 of
which were jury trials. In sum, she has broad courtroom
experience, both on and off the bench. This extensive
experience will serve her well as a Federal trial court Judge.
She has also earned the respect of her colleagues and
fellow attorneys. During her time as a practicing attorney she
served on the Supreme Court of Ohio's Board of Commissioners on
Grievances and Discipline, and for over 10 years she has served
on the Supreme Court of Ohio's Board of Commissioners on
Character and Fitness, including the last five years as
chairman of that commission. I believe her service on these
commissions evidences the high esteem and the high character in
which members hold her in terms of her background.
Her legal credentials are not the only reasons I support
her. Today, too many people do not take the time to become
involved in their communities. However, the Judge Lioi
participates actively in a number of civic organizations.
A graduate of Leadership Stark County, she has remained
active with that program and serves on the boards of several
nonprofit community agencies, including community services of
Stark County, Stark County Humane Society, the Walsh University
Advisory Board, and the Plain Local Schools Foundation.
I believe that one's involvement in a community is
important. We need Federal judges not only that have
exceptional legal skills, but also recognize how the law
impacts individuals and communities. I believe she has this
understanding because she works in a community every day.
As a result of her fine academic and professional
achievements, I am not surprised that the American Bar
Association found her unanimously ``Well Qualified'' to serve
as a Federal District Court Judge.
In reviewing her academic and professional record, it is
clear that she is well qualified to serve as a Judge on the
U.S. District Court for the Northern District of Ohio, and
there is nobody in this room that knows more about the fact
that she is well qualified than the Chairman of this committee,
Senator DeWine, who has spent a great deal of time with the
Judge.
I am very happy to be here today to speak on her behalf and
to second the good work that our Senator from Ohio has done in
this case.
Senator DeWine. Senator, thank you very much.
Senator Martinez?
PRESENTATION OF MARCIA MORALES HOWARD, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. MEL MARTINEZ,
A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Martinez. Mr. Chairman, thank you very much,
Senator Biden. I wanted to be here today to introduce to the
committee a Floridian, a friend, Magistrate Judge Marcia
Morales Howard.
Judge Howard appears before the committee today for a
discussion of her nomination to serve on the Middle District of
Florida, and I appreciate the opportunity to be here to speak
on her behalf.
I am very proud of the fact that Judge Howard was
recommended by the Florida Judicial Nominating Commission,
which Senator Nelson and I have empaneled, which ensures that
Florida has a nonpartisan judicial nominating process and
allows us to move candidates forward in a timely manner with
nominations for important Federal Judgeships, such as this one.
I particularly take seriously an appointment to this court.
I practiced for many years before the Middle District of
Florida and always held in high esteem the members of the bench
before whom I practiced, all of whom I thought were excellent
Judges with the right judicial temperament and wisdom, as well
as integrity.
Judge Howard has a Bachelor of Science degree in Economics
from Vanderbilt University, and she graduated with Honors from
the University of Florida College of Law. She then went on to
become an accomplished litigator for 13 years in Jacksonville,
Florida, practicing insurance defense, labor, and employment
law, and commercial personal injury litigation for two very
fine law firms, Foley Lardner and McGuire Woods.
During her litigation career, Judge Howard also gave of her
time to public service, being appointed by Governor Bush to
serve on the Jacksonville Board of Transportation Authority
from 1999 to 2003, and also being appointed by the mayor of
Jacksonville to serve on Jacksonville's Human Rights
Commission.
In 2003, she was appointed to serve as a Magistrate Judge
for the Middle District of Florida. Judge Howard, therefore,
knows the Judges and the operation of the Middle District. As a
Magistrate Judge, she has been responsible for adjudicating
criminal cases, Social Security appeals, and resolving non-
dispositive matters in civil cases.
Judge Howard is an experienced Judge with a modest judicial
philosophy who understands the supreme importance of judicial
independence and the impartial role a Judge plays in our
justice system.
I believe she will be an outstanding Judge for the Middle
District of Florida, a person that I believe to be extremely
well qualified, and I am delighted to have an opportunity to be
here today and recommend her to the committee.
I know she will add very needed diversity to this Middle
District of Florida. We have in Florida a very diverse State,
and I think her appointment will only enhance the people's
confidence in the judiciary and the process by which we select
our Judges.
So, I thank you for allowing me an opportunity to present
this very outstanding candidate.
PRESENTATION OF SARA ELIZABETH LIOI, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OHIO, BY HON. MIKE DEWINE, A
U.S. SENATOR FROM THE STATE OF OHIO
Senator DeWine. Senator, thank you very much. We will thank
our panel very much.
Before I bring up our nominees, I would like, as a Senator
from Ohio, to say a few words about Judge Sara Lioi from Ohio.
I will not give my entire statement. Senator Voinovich has
covered a great deal of Judge Lioi's background, and I would
just like unanimous consent at this point to make my entire
statement a part of the record, and it will be so made a part
of the record.
Just adding a few comments, it should not surprise anyone
that those who know Judge Lioi best regard her with tremendous
respect and admiration. Senator Voinovich and I, when we were
searching for an individual to take this position to make the
recommendation to the President of the United States, spent
considerable time talking to lawyers in the Northern District.
It came back unanimous, frankly, about her, her traits. She
was described in glowing terms as bright, conscientious, fair,
impartial, ethical. She is known as a Judge who treats everyone
who appears before her courteously and with great respect. She
has the sort of judicial temperament that we hope for and
really expect from all our Judges.
Not surprisingly, the ABA has given her, as Senator
Voinovich said, a unanimous rating of ``Well Qualified'', which
of course is the highest rating that they can give.
For all these reasons, Judge Lioi is well suited to be a
Federal Judge. She has the character, she has the intelligence
you want to see in a Federal Judge.
The other attribute that anyone who knows her will
attribute to her, is how hard-working she is. She gets in
early, she stays very, very late, and she is extremely
dedicated. She understands the role of a Judge in our system of
government.
She is known by those who work with her as an excellent
Judge. And just as important, she is the kind of person whom we
can trust with the great responsibilities that come with being
a Judge.
So Senator Voinovich and I are proud to recommend her
nomination as the United States District Court Judge of the
Northern District of Ohio the President, and I am gratified
that President Bush has nominated her for that position. I
believe that she will serve very ably as a Federal Judge for
the people of the State of Ohio.
I would now ask that our nominees come forward to be sworn
at this time. If all four nominees could come forward. Please
remain standing. If you all would raise your right hand.
[Whereupon, the nominees were duly sworn.]
Senator DeWine. Please take your seat.
We welcome all of you today. Each one of you will be able
to make a statement if you wish. We would also ask you to
introduce any members of your family or friends that you have
with us.
We will start with you, Judge Jordan.
STATEMENT OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE THIRD CIRCUIT
Judge Jordan. Thank you very much, Senator DeWine. It is an
honor and privilege to be here. I appreciate having this
opportunity to speak to you. I want to thank you, Senator
DeWine, for chairing this hearing.
I express my sincere gratitude to Senator Biden, to Senator
Carper, and to Congressman Castle for taking time out of what I
know are intensely busy schedules to be here and speak so
kindly on my behalf.
I am grateful to have members of my family with me today,
my wife Michelle, and three of my sons: Clinton, who is known
by one and all as ``Bubba,'' 16 years old; 14-year-old K.C.;
and, as Jesse is quick to note, almost 12-year-old Jesse.
My three older children are out west at school or serving
in the mission field. I miss Bethany and Nate, but I know they
are pulling for me where they are, as is Bethany's husband,
Thane, and my folks.
I am very fortunate to have good friends with me here as
well: my secretary for many years, Cheryl Stein, and my co-
clerk when I was clerking at the District Court, Kevin Brady,
is here with me, as well as several of my current and former
law clerks, if I could be permitted to just mention their
names. Here today is Matt Person, Susan Coletti, Rob
Weinschenk, Jason Nance, and Bart Kirstinbluth are all here to
support me, and I appreciate that extended clerk family.
I would like to say a quick thank-you and note my
appreciation as well for the mentoring I received over the
years from Judge Roth, who people have spoken about here
already today. She is a wonderful Judge, a great friend, and it
is a real honor to be considered for the seat that she has
filled with such great dignity and so very well these many
years.
[The biographical information of Kent Jordan follows:]
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Senator DeWine. Judge, thank you very much.
Judge Howard?
STATEMENT OF MARCIA MORALES HOWARD, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Howard. Thank you, Mr. Chairman. I want to thank all
of the members of the committee for giving me the opportunity
to appear before you here today.
I am very grateful to Senator Martinez for his time and for
that most gracious introduction that he gave. I am also
grateful for the support that both he and Senator Nelson have
given me through this process.
I want to express my gratitude to the President for
nominating me and giving me the opportunity to continue, or
potentially to continue, in public service.
I do not have an opening statement, but I would be honored
to introduce my family who are here with me today, and some
friends.
My husband is here with me, Laurence Howard, and my two
children, Amanda Howard, who is nine, and Webb Howard, who is
six. I confess, when I looked back earlier, he was not awake.
[Laughter].
Senator DeWine. I am sure that was not a commentary on
Senator Biden or the Chairman.
[Laughter].
Judge Howard. I think it had to do with getting up too
early to make the flight.
Senator DeWine. I am sure.
Judge Howard. My parents, Marcia and Ricardo Morales are
here. I will not share their ages. My sister, Rosa Maria
Morales King and my sweet nephew Gray King are here. My
brother, Ricardo Morales is here.
I am also very fortunate to have two dear friends with me,
Jodi Wiles, who has worked with me both when I was in private
practice and has served as my judicial assistant and courtroom
deputy, and my dear friend Mary Summerville Welch. I am
grateful to them for joining me, and I am privileged to answer
any questions that you may have.
[The biographical information of Marcia Howard follows:]
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Senator DeWine. Judge, thank you very much.
Judge Jarvey?
STATEMENT OF JOHN ALFRED JARVEY, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF IOWA
Judge Jarvey. I would also like to thank the President of
the United States for the nomination and for the trust that he
has shown in my abilities.
I would like to thank Senators Grassley and Harkin for
their support and for their kind, kind comments here today.
I would like to also thank you, Mr. Chairman, for chairing
this hearing, and to Senator Biden for also presiding at the
hearing.
I would like to thank the members of the Administrative
Office of the Courts for their longtime support of Magistrate
Judges and Judges of the United States, and for their presence
here today.
I would be pleased to introduce members of my family who
are with me today. They include my sister, Carol Hawkins, my
nephew, Edmund Hawkins, my brother, William Jarvey, Jr. I am
particularly honored that my father could attend the hearing
today.
While the President and the Senate are most immediately
responsible for my opportunity to sit in this chair, it is my
mother and my father that paved the long road, so I am very
pleased and honored that my dad could be here today. My mother
is suffering from a brief, but temporary, illness and could not
make it.
My wife and children could not make it today. My kids all
just started college and high school and were just unable to be
here on short notice.
I would like to also thank the Honorable Robert Pratt,
Chief Judge of the Southern District of Iowa, and Southern
District of Iowa Clerk of Court Marjorie Krahn for their
attendance. If confirmed, I will be honored to serve with them
in the Southern District of Iowa.
With that, I have no further comments. Thank you.
[The biographical information of John Jarvey follows:]
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Senator DeWine. Judge, thank you very much.
Judge Lioi?
STATEMENT OF SARA ELIZABETH LIOI, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF OHIO
Judge Lioi. Thank you, Mr. Chairman. I have no opening
statement. However, I would like to thank the Chair for
conducting this hearing today. I would like to thank Senator
Biden for his presence.
I would also like to thank the President for nominating me,
and you, Senator DeWine and Senator Voinovich, for your very
kind and gracious words and your support of me throughout this
process.
I do have some family members and friends here today and I
would like to introduce them at this time. My mother, Rosaria,
is here with us today. I consider that a blessing. She spent
quite a few months in the hospital earlier this year and I feel
very blessed that she was able to make the trip.
Also, two of my sisters, Carmela Lioi and Germann are with
us today, and my cousin, Helen Garofalo. I also have some very
dear friends of mine, Diana Pittman, Judge Michael Howard, and
Tim and Debby Bentivegna. I thank them for their attendance
here today as well.
[The biographical information of Sara Lioi follows:]
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Senator DeWine. Good. Well, we welcome everyone. We are
glad everyone is here. Thank you very much.
Judge Jordan, you have written ``it takes restraint to
recognize that even when you have the tools to right wrongs,
not everything that you perceive as wrong is yours to right.''
Would you say that this is an accurate expression of your
judicial philosophy, and how do you think this philosophy will
manifest itself if, in fact, you are confirmed as the appellate
judge?
Judge Jordan. That is a quick summary of an attribute I
very much admire in judges that I have known. I know it is an
attribute that I want, and I think I have, exhibited in my time
on the bench.
I feel a great responsibility whenever I walk into the
courtroom to see to it that the elected offices in our
government are given the deference and respect that they ought
to have.
I want to echo what the other judges have said here about
gratitude to the President for the nomination. This is the
second opportunity I have had to be nominated by President
Bush, and my gratitude knows no bounds.
I just feel it is really important that when we are wearing
the robe and presiding, that we keep firmly in mind that we are
to apply the law, we are not there to make public policy.
Senator DeWine. Judge, how do you feel your background as a
trial judge will help you in your new position?
Judge Jordan. Well, I certainly will have a real
appreciation for what it takes to create a trial record and to
be conscious of the work and the many opportunities that come
up for a district judge to make a close call on a point of
evidence or on a motion that is before them.
I would be very tuned in to the rules of deference that are
in place for appellate review because they make our system
function in a sensible way.
Senator DeWine. You have a great deal of background in
intellectual property, certainly a specialized area of
practice. How has that helped you in the district court, and
what impact will that have, do you think, in your appellate
work?
Judge Jordan. Well, the District of Delaware has a very
full docket of patent cases. Those cases will, on appellate
review, end up before the Federal Circuit. But the kinds of
issues that frequently accompany them, antitrust issues, for
example, and the kinds of procedural issues that come up in the
patent cases, complicated cases as they are, will, of course,
come to the Third Circuit. The trademark cases and copyright
cases I have handled will also end up in the Third Circuit.
I believe, having handled those at the district court
level, I will again have an appreciation for the challenge it
is when you have multiple parties and a lot of money on the
table, as you do in these intellectual property cases
regularly, what it has taken to get the case to appellate
review, and hopefully that will stand me in good stead as I am
considering the complicated issues that will arise on appeal.
Senator DeWine. Senator Biden?
Senator Biden. Judge, tell me your view of stare decisis. I
did, with the help of some constitutional scholars, a study
about three years ago. Since the Supreme Court is not taking
that many cases on cert these days, not hearing as many cases
as they used to by a long shot, you guys are the last stop on
the train for a significant number of constitutional issues,
more than any time that I can think of in the last 75 years.
Tell me how you, as a circuit court judge, would have a
view different, if it is different, from your view of stare
decisis as a district court judge.
Judge Jordan. Well, Senator, it would not be different in
any material respect. As an appellate court judge, I know I
would be working within the framework of decisions that the
Third Circuit had already rendered, and those are typically
only changed by an en banc ruling of the court, and certainly
would be bound by the decisions of the Supreme Court.
So as I have tried to do as a district court judge, I would
be paying very close attention to the precedents set that would
regulate and bind decision making that I would be called upon
to make as a circuit court judge.
Senator Biden. Would you look to the Third Circuit itself
and be inclined to give it deference on matters that came
before you as opposed to assuming that the question in question
had not been litigated before the Supreme Court?
Judge Jordan. If it had been a matter decided by the Third
Circuit--and I confess, I have not taken a look at the internal
operating procedures of the court in some time--I believe that
there are procedures that the court has so that panels will be
following the precedent that is established within the circuit,
unless there has been some wider review by the court sitting en
banc.
Senator Biden. One of the things I have learned as a
Senator, I have been here a while, is that everything I have
ever written has been read much after the fact. No one read it
when I wrote it when I was in law school, but they sure read it
now. You wrote an article, I believe at Georgetown, dealing
with foreign intelligence gathering.
You wrote that ``although the intelligence function is
subject to the shared powers of Congress and the President, it
is a function which constitutional theory and practice is
entrusted primarily to the President, and over which he has
significant independent power.''
You went on to claim that ``because access to information
is the very heart of the President's ability to wield these
powers, no amount of congressional action should be able to
prevent him from gathering the intelligence he deems necessary
in the exercise of these powers.''
You may very well be in the Third Circuit, and it is a very
hot topic now, as you know. The Foreign Intelligence
Surveillance Act, so called FISA, which I co-sponsored and
wrote.
Does that automatically mean that the congressional
definition of what the last stop on the train is is one that
automatically would be dismissed, that there is no ability of
Congress to in any way affect the President's gathering of
information as long as it is not inconsistent with the Fourth
Amendment?
Judge Jordan. No, sir. I really wish that I had written on
the Uniform Commercial Code when I was a law student.
[Laughter].
Senator Biden. I do not know anything about the Uniformed
Commercial Code.
Judge Jordan. But who knew, right, 22 years ago?
Senator Biden. You tend to ask only those questions you
know something about.
Judge Jordan. Yes. Yes. Senator, when I was writing that
article lo those many years ago, I was endeavoring, for myself,
to understand the framework that Justice Jackson had laid out
in the steel seizure case, and get my arms around, as best I
could, issues that were then very topical. As you have noted,
they are topical again today.
Senator Biden. You wrote that case about the time I was
writing the law. That is worrisome to me that I am that old.
[Laughter].
Judge Jordan. As I tried to put into context, this is an
area where politics and law intersect in a dramatic way, and
that these are not easy cases. I mentioned FISA specifically
and tried to address it in that article as well. If the matters
were to come before me today, I can assure you that I would be
giving it the most careful attention. And not to denigrate my
work before because, frankly, I do not know how it stacks up
now. I have not really given it as critical a read as perhaps I
should.
But hopefully with a mature viewpoint on the law and with
the recent decisions that have come out, including some very
recent pronouncements from the Supreme Court, I would be in a
position to do justice to a structural constitutional issue
like that.
Senator Biden. Thank you.
I say to the district court nominees, I do not have any
questions for you. I have read your backgrounds and I am
prepared to support you. But I am reminded of something that a
man for whom I served under in this court, James O. Eastland
from Mississippi, an old fellow who ran this committee for a
long, long time, and I sat at the very end, the most junior
member of the committee.
One day, Mr. Chairman, he asked me whether I would come
down to Mississippi and campaign for him. The reason was, they
were running the campaign about, he was getting too old.
At that time, I was 32 years old. My job was to go down and
point out, which was accurate, that even though he was 84, he
was more than twice my age, I had trouble keeping up with him,
like your nominee does keeping up with her mother. I had
trouble doing that.
I went down and there was a big event he had for all the
Judges that he had been involved in appointing in Mississippi.
The room was as full as this room. It was at a dinner. All of
them got up and said what you said, I want to thank the
President for nominating me.
Then they got all finished, and they turned to the Chairman
of the Judiciary Committee, the most powerful man in the
country at the time, and he stood up and he looked out at all
the Judges and he said, ``You all just got finished telling us
how you got appointed by Eisenhower and Kennedy and Carter.''
Carter had been President. He said, ``You all know why you are
Federal judges, don't you? '' Everybody just looked. He said,
``Because Jim Eastland said so.''
[Laughter].
You are district court judges because of the Senators who
nominated you and the President agreed. That has been the
custom here. So, the President did have to be convinced, and he
clearly was, that you are fully, fully worthy of the job.
Circuit court judges are different. Circuit court judges
are the place where Presidents have reserved the right, under
the traditions of the Senate, because there are multiple
jurisdictions, to pick whom he or she wishes to be on the court
and not feel obliged to go through any senatorial picking
process.
But I was just reminded of old Jim Eastland when you said
that. I think that Senator DeWine, as they say in the southern
part of my State, ``done good'' in picking you, Judge.
I wanted to say for the record that I have received
telephone calls and notes from folks I know in Iowa who are in
the opposite party, strongly, strongly supporting Judge Jarvey.
I think, Ms. Howard, you did not need any notes. You are
obviously qualified. So I want to thank you all for being here.
Thank you for being willing to serve, and thank your families
for being here.
As I indicated to the Chairman, I am not able to stay. I
have an appointment, that I am now a few minutes late for, at
3:00. But I wish you well, Judge Jordan. I think you will make
a fine Judge.
Mr. Chairman, thank you for convening the hearing. Thank
you all.
Judge Jordan. Thank you, Senator.
Senator DeWine. Senator Biden, thank you very much.
I do have a few questions, though. Let me turn to our
district court nominees. I am going to ask all of you some
general questions. And we will start with you, Judge Howard,
then we will go right down the line.
Let us start with your views on settlement procedures and
what the proper role of a judge is in settlement procedures.
Judge?
Judge Howard. Thank you for allowing me to comment on that,
Senator. The Middle District of Florida, as I am sure you know,
is one of the busiest districts in the Nation.
We have the seventh highest weighted caseload, so we rely a
great deal on settlement conferences. Most of our Judges, our
district judges, refer parties to the Magistrate Judges to
conduct settlement conferences. I find them to be a very
valuable tool.
It is the opportunity for the parties to once again take
control of the process. Frequently it allows them to get an
outcome that would not be possible simply through litigation.
The parties tend to be very satisfied with that. So I think
it is a very useful tool, both for allowing people their
respect for the judicial system, and also for reducing our
caseload.
Senator DeWine. Judge Jarvey?
Judge Jarvey. Thank you, Senator. Before I respond to the
question directly, I neglected to mention that I am also joined
here today by a longtime friend, Matthew Novak, and I am
honored by his presence as well.
I am a strong proponent of court-sponsored alternative
dispute resolution. As a Magistrate Judge, I have conducted
over 500 mediations, summary jury trials, and other settlement
techniques.
My anecdotal experience is that 90 percent or more of our
civil litigants do not want a full-blown trial. For those
folks, I believe that is important to offer another effective
way to resolve their disputes. So I fully support court-annexed
alternative dispute resolution.
Senator DeWine. Judge Lioi?
Judge Lioi. Yes. Thank you for the opportunity to respond,
Senator. I, as a State court trial judge, oftentimes will defer
cases to settlement negotiations. We have a wonderful mediation
program in Stark County.
If I am fortunate enough to be confirmed to the district
court level, it is my understanding that the U.S. district
court for the Northern District has a very comprehensive
alternative dispute resolution program where they offer the
parties a variety of different dispute resolution mechanisms,
from arbitration, to mediation, to early neutral evaluation of
a case, to summary jury trials.
I would make use of all of the tools to assist parties in
resolving their disputes efficiently and effectively. It has
been my experience that attorneys and parties embrace
alternative dispute programs.
Senator DeWine. Judge Howard, let me turn to another issue
that I experienced when I was a county prosecutor many, many
years ago, and I think most attorneys who practice much in
court experience, and that is the balance between a judge who
needs to control the courtroom and a judge who sometimes goes
too far, at least from the attorney's point of view, and does
not let you try your case. How do you deal with that? I want to
try my case if I am a lawyer, but obviously you have to control
what is going on in your courtroom. How do you do that?
Judge Howard. Well, Senator, I think that being a trial
judge requires a very careful balance, because you absolutely
have to control the courtroom. It is necessary for the respect
for the process. It is necessary to assure that lawyers treat
the litigants with dignity and respect at all times.
Certainly an advocate needs to be permitted to try his
case, as you say. But there are permissible bounds of advocacy
and it is the role of the judge to impose those.
Senator DeWine. Judge Jarvey?
Judge Jarvey. Thank you, Senator. I see no inconsistency
between keeping control of a courtroom and allowing lawyers to
try their case. There are two different issues. I have
steadfastly stayed out of the advocacy business as a judge. I
believe that it is the prerogative of the lawyer to be in
control of their case.
For that reason, I do not ask questions of witnesses during
jury trials for fear of the appearance in front of the jury
that I am too far into the litigation. I have had no difficulty
controlling my courtroom and I have never raised my court in
order to do it.
Senator DeWine. Judge Lioi?
Judge Lioi. Yes. I concur with the comments of my fellow
nominees, that the role of a judge is to ensure due process.
There is a careful balance that must take place, but the goal
of the proceedings must be the orderly administration of the
law.
It is very important that while you permit attorneys to try
their cases, that you also make sure that the trying of a case
is done within the proper parameters of the code of
responsibility, and also that everyone in the proceedings gets
due process.
Senator DeWine. Let me ask, starting with you, Judge Lioi,
why you want to be a Federal judge.
Judge Lioi. Thank you for the opportunity to answer that
question, Senator. I have had the privilege and honor of
serving the public as a State court judge for nearly nine years
now and I take my duties and responsibilities very seriously to
administer cases and controversies which come before me
impartially, fairly, and I consider it a very high honor to be
considered to serve on the Federal court bench.
I cannot imagine a higher honor for a sitting judge in a
State court to be considered for a Federal position. I would
welcome the opportunity to administer cases on the Federal
bench.
While I would still have the opportunity to apply case law
in diversity cases, I would also have the opportunity to decide
cases and controversies involving Federal law. And again, if I
am fortunate enough to be confirmed, I would welcome and
embrace that opportunity.
Senator DeWine. Judge Jarvey?
Judge Jarvey. Thank you, Senator. I have devoted my entire
career to public service in Federal Court. Over the last,
almost 19 years now of being a U.S. Magistrate Judge, I have
had the privilege to preside over cases and controversies
involving some of the most complex disputes in Iowa.
After this amount of time, I believe that I am well
qualified for the position. And, frankly, I am just looking for
more challenges. I look forward to the opportunity to take on
more responsibility and a steady stream of bigger challenges.
Thank you.
Senator DeWine. Judge Howard?
Judge Howard. Thank you, Senator. I am honored to serve as
a Magistrate Judge in the Middle District of Florida right now.
It is an amazing opportunity, and at the same time a very
humbling experience, and one which I love.
I recognize that the decisions that I would face, if I were
fortunate enough to be confirmed as a district judge, would be
more challenging decisions. They are more challenging
intellectually, they are more challenging just sort of on a gut
level, and I embrace that.
I was raised by parents who immigrated to this country with
nothing, basically, but their education. They never let my
brother, my sister or I forget how fortunate we were to be here
and to have the opportunities we have. They were great role
models in teaching us that we owed something back.
For me, the opportunity to serve as a district judge is the
opportunity to continue to do what I love and to serve my
country, so it makes it a very easy decision. I simply offer
myself in that service.
Senator DeWine. Judge Lioi, you chaired the Supreme Court
of Ohio Board of Commissioners on Character and Fitness. How
has this experience helped shape your views of the legal
profession? What impact, if any, might that have on your work
as a Federal Judge?
Judge Lioi. Thank you for the question, Senator. It has
been an honor for me to serve on the Board of Commissioners on
Character and Fitness for the Supreme Court. I believe that all
lawyers and Judges should engage in activities which promote
competence in the legal system and improve the legal system.
This is one small way that I have been fortunate enough to
contribute to the profession in ensuring that the individuals
who are licensed to practice law in Ohio have the requisite
character and fitness qualifications to enjoy the privilege of
being licensed.
Service on this board has just underscored for me the
qualities and characteristics that are necessary in a candidate
for admission to the practice of law, the honesty, integrity,
trustworthiness that are required of these individuals who will
in turn serve their clients and the public.
So, it has just been a great honor to serve on this board,
to serve the bench, the bar, and the public. It has just, as I
said, underscored the need for professionalism in the
profession.
Senator DeWine. Judge Jarvey, tell us a little bit about
your experience at the Justice Department and how that may
impact on your work on the bench.
Judge Jarvey. My experience at the Department of Justice
was just a phenomenal beginning to my trial career. I tried
cases in Federal courts all across the country, appeared before
well over 50 Federal district court judges, and argued many
appeals.
The experience of practicing in front of so many different
Judges gave me an opportunity to see so many things that I
appreciated and respected, and a number of things that,
frankly, I did not.
If confirmed as a district court judge, I would employ
those practices that I have been employing that I learned from
judges across the country during my experience at the
Department of Justice.
Senator DeWine. All right.
Judge Howard, in your experience as a magistrate judge, how
has that prepared you to serve on the district court?
Judge Howard. Well, Senator, as a magistrate judge, I
perform a subset of the responsibilities of an Article 3 Judge.
I am very fortunate, as I mentioned earlier. Because the Middle
District is as busy as it is, the Middle District fully
utilizes its magistrate judges.
We enjoy the full authority that is permissible under the
statute. So over the past three years, I have faced many of the
very same decisions and the types of issues that I would face
if confirmed as a district judge.
In civil cases, on consent, I, in fact, sit as a district
judge, and also on referral from the district judges handle
many dispositive motions. So, I think it has given me a very
unique opportunity to work with our district judges, to learn
from them, and to do some of the same things that I would do if
I am confirmed.
Senator DeWine. I have one final question for each one of
you. Supreme Court precedents are, of course, binding on
Federal circuit court judges, and both Supreme Court and
Federal circuit court precedents are binding on district
courts.
Are you committed and willing to follow the precedents of
the higher courts faithfully and give them full force and
effect, even if you might personally disagree with those
precedents? Judge Jordan, your question, of course, would be in
regard to the Supreme Court.
Judge Jordan. The answer to that is, absolutely, Senator.
Senator DeWine. Judge Howard? Judge Howard. And I answer it
in the same way, absolutely.
Senator DeWine. Judge Jarvey?
Judge Jarvey. Absolutely. Yes.
Senator DeWine. Judge Lioi?
Judge Lioi. Absolutely.
Senator DeWine. The record will remain open. You may get
additional questions from members of the committee. If you do,
we would suggest that you respond to them as quickly as
possible.
For the record, I have a statement for the record from
Senator Nelson, I have a statement from Senator Leahy, and
Senator Grassley's full statement for the record as well.
[Whereupon, at 3:15 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF NORA BARRY FISCHER, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF PENNSYLVANIA; GREGORY FRIZZELL, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA; LAWRENCE JOSEPH
O'NEILL, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
CALIFORNIA; AND LISA WOOD, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF GEORGIA
----------
TUESDAY, SEPTEMBER 12, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:08 p.m., in
room 226, Dirksen Senate Office Building, Hon. Tom Coburn
presiding.
Also present: Senators Specter and Feinstein.
OPENING STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE
STATE OF OKLAHOMA
Senator Coburn. The Judiciary Committee will come to order.
Today we have a confirmation hearing for four of the
President's judicial nominees. On behalf of the committee, I
would like to welcome all four of you. Some of you have
traveled considerable distances, and I appreciate your
willingness to appear before us today.
I am particularly glad to see Judge Frizzell here, a fellow
Oklahoman. It is our hope that we can move all of your
nominations through the Committee quickly and get them voted on
the floor before Congress goes out of session at the end of
this month.
I know Judge Frizzell will be particularly glad to hear
that, because his term on the State court expires in January.
We are going to do our best to make sure you have a job this
winter, Judge.
I would now like to turn to our full Committee Chairman,
Arlen Specter, for any comments that he might have.
PRESENTATION OF NORA BARRY FISCHER, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN
SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Chairman Specter. Well, thank you very much, Mr. Chairman,
for chairing this hearing. You have accurately stated the
intention of the Committee is to move these nominations through
as promptly as possible, and I think it is realistic, unless
something unforeseen occurs, to complete them before we adjourn
at the end of this month.
I also want to take a moment or two to join my
distinguished colleague, Senator Santorum, in the introduction
of Nora Barry Fischer to be U.S. District Judge for the Western
District of Pennsylvania.
Ms. Fischer comes to this nomination with an outstanding
record, academically and professionally. She graduated from St.
Mary's College Magna Cum Laude in 1973, and has a law degree
from Notre Dame. She was editor at Callaghan and Company Legal
Publications in 1976 and 1977.
She was an associate at Meyer Darragh for 15 years, and
then became an equity partner in the Pietragallo law firm, and
she currently is the Defense Litigation Practicing Group co-
chair.
Included in her work has been administrative partner in
charge of recruitment and training. She has represented General
Electric in both toxic tort and product liability cases. She
has had significant mediation practice, having served as an
adjunct settlement judge and as an arbitrator for the Western
District of Pennsylvania, which gives her some judicial
experience before approaching the bench.
I would ask unanimous consent to put my full statement in
the record and a full resume before yielding, if I may, Mr.
Chairman, to Senator Santorum.
Senator Coburn. Without objection. It is my understanding,
because of the time pressure on Senator Inhofe of a Committee
hearing, that he would be recognized first, if the Chairman has
no objection to that.
Chairman Specter. Fine.
Senator Coburn. I want to welcome our fellow Senators here
and look forward to your statements.
Senator Inhofe, you are recognized.
PRESENTATION OF GREGORY FRIZZELL, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF OKLAHOMA, BY HON. JAMES M. INHOFE,
A U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. I am hoping also
that he will be allowed to introduce some of his family. Now,
if he had all of his family here there would not be time to do
that. But I am here today to support Judge Greg Frizzell,
nominee for the U.S. district court for the Northern District
of Oklahoma.
His family is no stranger to the legal field. I can
remember his daddy, who is here in the audience today--I saw
him when he came in--Kent Frizzell. He served as Attorney
General for the State of Kansas. That is when I first got to
know his family. Later on when they moved to Oklahoma, we
became very close friends.
He has had all kinds of experience in the past in serving
the Under Secretary of Interior, and he has taught at the
University of Tulsa Law School for, I do not know, over 18 or
20 years.
So given his father's distinguished work, it is no surprise
that Judge Frizzell felt compelled to pursue a career in public
service, and his friends and colleagues have praised his
professional qualifications and personal integrity, and all
have emphasized his ability to rule fairly from the bench.
Someone who has been around as long as this young judge has
been around, you would think you would hear negative things. I
have never heard anything negative about him. Robert Sartin,
member of the Board of Governors of the Oklahoma Bar
Association said, ``Judge Frizzell is a man of extremely good
character and high integrity, with a deep sense of personal
responsibility toward his fellow man.''
Judge Claire Eagan, who was before this Committee not too
long ago, praised him and talked about the urgency, the fact
that that court right now has three judges doing the work of
six.
One of the prominent and well-respected attorneys in
Oklahoma, Joe Wohlgemuth of Norman, Wohlgemuth, Chandler &
Dowdell in Tulsa, called Judge Frizzell ``a man of integrity
and a straight arrow''.
Before serving in the current position of district Judge of
the 14th Judicial District of Oklahoma, Greg Frizzell had a
long and distinguished legal career and ample Federal
experience.
After graduating with a law degree from the University of
Michigan, he clerked for Judge Tom Brett. Tom Brett is now in
retirement and there is no one who has a better reputation than
he, and he has praised and praised Greg Frizzell.
Also, Ralph Thompson, who is getting very close to
retirement, he is in senior status right now on the Federal
bench in Oklahoma, has praised him.
So, I just cannot think of anyone who has had a greater
background and experience for this. He has held positions other
than judicial positions. He was the General Counsel to the
Oklahoma Tax Commission for a period of time. He has not only
proven to be an effective and legal professional, but he is a
devoted husband and loving father of six children.
Getting back again to Mr. Wohlgemuth, he recalls an
incident where Judge Frizzell, Mr. Chairman, had to stay late
one night at work and he brought all six kids so he could spend
time with them into the late hours. Anyone who can handle six
kids while doing his judicial work, I think can handle this
job.
So, Judge Frizzell is a man of great moral integrity who
has proven his character in both his private and public life. I
cannot say enough about him and his qualifications to be the
next U.S. district court judge for the Northern District of
Oklahoma.
Thank you very much.
Senator Coburn. Thank you, Senator Inhofe.
Senator Santorum?
PRESENTATION OF NORA BARRY FISCHER, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. My colleague,
Senator Specter, I think adequately reviewed Nora Barry
Fischer's resume.
Just let me comment on a couple of things. First, in
general, Senator Specter and I have developed a system in
Pennsylvania where we have always tried to make sure that we
have a balance on the court, whether it is a Republican or
Democratic administration.
During a Democratic administration we have worked out
agreements to have Republicans every fourth nominee. One in
every four would have to be Republican. We do the same when
there is a Republican President. We make sure that there is a
Democrat in there. Every four district court nominees, there is
a Democrat in the mix, and we do that by district.
In the Western District, we have been very fortunate to put
some really outstanding jurists on the court. The court has a
very, very strong reputation. Hopefully soon-to-be Judge
Fischer would be an excellent addition, but she is a Democrat.
She is someone who, when we put her forward in this political
season, I have to tell you, I was not sure what the reaction
would be.
Let me assure you, the reaction has been unanimous from
both Republicans, Democrats, folks in the plaintiff's bar, the
defense bar, you name it. We have not received a single
negative word about Nora Barry Fischer.
Given, again, the intensity of the political scene in
Pennsylvania, I think it just speaks volumes for the kind of
qualities that this woman brings to her practice of law, to the
professional associations that she is involved with in the law,
and as a past president of the Allegheny County Trial Lawyers
Association, which is not necessarily an organization that is
particularly complimentary to me on occasion, but she was an
outstanding leader there and someone who has tremendous respect
in our community.
So when Senator Specter and I went through the names and we
identified her name on the list, the feedback, again, we have
gotten was extraordinary before we nominated her, and I will
tell you, has been unanimously extraordinary since.
My understanding from the Committee is that she was rated
unanimously ``Well Qualified'' by the ABA. I am not surprised
about that. She is someone who has been a trailblazer, as a
woman in Pittsburgh in the legal profession, and has, as I said
before, the utmost respect.
I just mentioned lawyers. I should also say judges who have
contacted us, including some of her future colleagues, I hope,
on the court, who are ecstatic that her name has been placed in
nomination.
So, it is truly an honor for me to be here this morning to
forward her nomination and encourage this Committee and the
full U.S. Senate to act promptly on this nomination. Again, we
have one vacancy and hope to have another one soon, so this is
a court that definitely needs to have this vacancy filled.
Thank you, Mr. Chairman.
Senator Coburn. Thank you, Senator Santorum.
Senator Chambliss?
PRESENTATION OF LISA WOOD, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF GEORGIA, BY HON. SAXBY CHAMBLISS, A U.S.
SENATOR FROM THE STATE OF GEORGIA
Senator Chambliss. Thank you, Mr. Chairman. I very much
appreciate the opportunity to appear this afternoon before the
committee, and to be back before the committee. As a former
member, I am particularly pleased to be back here.
Senator Coburn. As a matter of fact, I have my seat because
you are not here.
Senator Chambliss. I think you have my seat, Mr. Chairman.
I will always hold that against you, even though you are my
dear friend.
[Laughter.]
But I am here both to introduce and heartily endorse
President Bush's nomination of Lisa Godbey Wood to be U.S.
district Judge for the Southern District of Georgia. In
nominating Lisa Wood, the President has demonstrated his
commitment to ensuring both the integrity and the quality of
the Federal judiciary.
Lisa Wood is an extraordinarily qualified individual who
comes before this body at a time of urgency for the Southern
District of Georgia. Currently, this distinguished Federal
bench has but a single active Federal judge with the recent
election by two judges to take senior status.
This, in addition to recent health developments affecting
one such judge, highlights the need for swift action by the
Senate to ensure that the administration of justice continues
in this important Federal District.
I, and the people of Georgia, appreciate you, Chairman
Coburn, along with Chairman Specter and Senator Leahy, for
agreeing to schedule this hearing today. I urge prompt action
in reporting favorably her nomination, and prompt confirmation
by the Senate.
Lisa has served with distinction as U.S. Attorney for the
Southern District of Georgia since 2004. She was unanimously
confirmed by the Senate in November of that year, and since
that time she has effectively managed this important
prosecution office, while overseeing significant Federal
criminal prosecutions, including successful high-profile
corruption cases and racketeering prosecutions involving the
fraudulent diversion of black market pharmaceuticals.
Lisa is a Summa Cum Laude graduate of the University of
Georgia, where she was Phi Beta Kappa, and the University of
Georgia Law School, where she was selected as a member of the
Order of the Coif and served as managing editor of The Law
Review, and Chief Justice of the Honor Court, among many other
accomplishments and honors.
Following graduation from law school, Lisa served as a law
clerk to Hon. Anthony A. Alaimo of the Southern District of
Georgia before joining the Brunswick law firm of Gilbert,
Harrell, Summerford & Martin, where she actively litigated
cases involving product liability, employment law, medical
malpractice, white collar crime, and death penalty issues. She
was elevated to litigating partner after just three and a half
years, which is very significant.
Ms. Wood served as president of the Brunswick Glynn County
Bar Association in 1995 after many years of service in other
leadership positions with the Bar Association.
She served as a Magistrate Judge of the Glynn County
Magistrate Court from 1998 to 2000, and is highly respected by
members of the bench before whom she has appeared and by
members of the bar who appeared before her and who served with
her, including opposing counsel.
Lisa has been active in community and civic associations,
including the YWCA. She is active in her church. Moreover, Lisa
Wood has contributed immeasurably to her profession, community,
church, and country, while being a devoted wife to her husband
Richard, and mother to two 4-year-old twins, Lachlan and
Katherine, all of whom are with her today.
I look back over here, Mr. Chairman, and I do not know what
you did, but you put one of them to sleep over here.
[Laughter.]
These two children are obviously beautiful little 4-year-
old twins.
Her husband, Richard, has been a dear friend of mine for
many years. He is not nearly as good-looking as the twins are.
But this is a beautiful family, and I look forward to Lisa
having the opportunity to introduce them to you.
Mr. Chairman, I urge the committee's swift and enthusiastic
action to advance her nomination, and I look forward to the
prompt confirmation of Lisa Wood to the Southern District of
Georgia, and I thank you.
Senator Coburn. Thank you, Senator Chambliss.
Senator Isakson?
PRESENTATION OF LISA WOOD, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF GEORGIA, BY HON. JOHNNY ISAKSON, A U.S.
SENATOR FROM THE STATE OF GEORGIA
Senator Isakson. Thank you, Mr. Chairman. I, at the outset,
want to express my appreciation to Gregg Nunziata for his help
in facilitating this hearing today, and I appreciate very much
your chairing it.
It is really an honor to introduce Lisa Godbey Wood to the
committee, along with her husband Richard, her two children,
and her mom and dad, who sit there proudly.
I must mention, as part of the extended family, Hon. Judge
Tony Alaimo from the Southern District of Georgia who is behind
me and here today. He is a great servant of the United States
of America, a great Georgian, and his service on the court for
years is greatly appreciated.
Mr. Chairman, in November of 2004, the U.S. Senate
confirmed the appointment of Lisa Godbey Wood as U.S. Attorney
in the Southern District of Georgia. In her term since that
time she has served honorably and well the people of the United
States.
Senator Chambliss and I are in united support of her
nomination to the U.S. district court in Georgia, and urge the
Senate to facilitate its approval at a rapid rate.
As Saxby as said, at the University of Georgia she was an
Honor graduate. In fact, she earned the Meinhart Award for the
highest grade point average all 3 years. She was the first
Honor graduate at the University of Georgia.
When she left the University of Georgia she went to clerk
under this distinguished judge, Tony Alaimo, in the Southern
District itself. She went into the private practice of law in
1991, became a partner in 1995, and as I have said, because
U.S. District Attorney in 1996.
Her record of prosecution and indictments in the Southern
District has been well-noted by Senator Chambliss. She is
probably the most universally popular nominee I have ever seen
appointed to the court since I have served in the Congress of
the United States and the U.S. Senate.
For me on a personal note, it is also very easy to make
this introduction. I have known Lisa and Richard since 1996.
They are two of our State's most outstanding students. She will
be a great Judge on the court, and it is an honor for me today,
as a U.S. Senator, to give her my highest commendation to this
Committee and to the Senate.
I thank you, Mr. Chairman.
Senator Coburn. Thank you, Senator Isakson. I know that
Senator Feinstein wanted to be here and is detained, so I might
take the liberty right now of reading the resume on Lawrence
Joseph O'Neill, the U.S. district Judge for the Eastern
District of California nominee.
Magistrate Judge Lawrence O'Neill was nominated to be a
U.S. district court judge on August 2, 2006. He received his
B.A. from the University of California at Berkeley in 1973, his
M.P.A. from Golden Gate University in 1976, and his J.D. from
the University of California, Hastings College of Law in 1979.
During law school, Judge O'Neill served as a legal clerk to
Hon. Roberts F. Cain of the First Appellate District of the
California Court of Appeals. Following law school, Judge
O'Neill joined the law firm of McCormick, Barstow, Sheppard,
Wayte and Carruth as an associate. He became a partner with
that firm in 1984.
His practice focused almost exclusively on civil tort
litigation. While working for that law firm, he also taught
classes for 6 years as an Adjunct Professor at San Joaquin
College of Law. He was honored by that college for his teaching
skills and was presented with the ``Professor of the Year''
award.
In 1990, Judge O'Neill was appointed to the Fresno County
Superior Court. He served on that court until 1999, when he was
appointed as U.S. Magistrate Judge in the U.S. district court
for the Eastern District of California.
Judge O'Neill has received numerous awards for his
community service, including the annual Judicial Award
presented by the Rape Counseling Service of Fresno County, and
the ``20 Years of Service'' award presented by the Fresno
County Mock Trial competition program.
While serving as a presiding judge of the Juvenile Courts
of Fresno County, Judge O'Neill was recognized for his
outstanding efforts to prevent child abuse with the Judy
Andreen-Nilson Award. The Fresno County Juvenile Justice
Commission also presented him with the ``Award for Achievement
in Juvenile Justice.''
Let me ask, if I might, first, unanimous consent to enter
into the record Ranking Member Senator Leahy's statement, and
that will be done by unanimous consent, as well as the further
statement of my own.
Senator Coburn. I would ask our nominees to come forward. I
would also note that Senator Feinstein is on her way, and we
will give her the opportunity from the dais to present her
recommendations for her nominee.
If you all would come forward, please.
If you would each raise your right hand.
[Whereupon, the nominees were duly sworn.]
Senator Coburn. By tradition, we will ask each of you to
make an opening statement, and then we will have some questions
for you. Hopefully this will be as painless as possible. We
will interrupt your statement, as one of you finishes, when
Senator Feinstein arrives.
Ms. Fischer, please start.
STATEMENT OF NORA BARRY FISCHER, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Ms. Fischer. Thank you, Mr. Chairman. I have no prepared
statement here today, but what I would like to do is, first,
thank you, Mr. Chairman. I would certainly like to thank the
Senators of my home State, Pennsylvania, Senators Santorum and
Specter, for their kind words.
In addition, I thank President Bush for considering me, and
also nominating me to the potential judgeship on the Western
District of Pennsylvania.
Not having a statement, with your permission I would like
to introduce my husband of 30-plus years.
Senator Coburn. Absolutely.
Ms. Fischer. Dr. Donald Fischer, who is with me here today.
Unfortunately, our three children, Erin, Lauren and Adam, could
not join us.
I would also like to tip my hat to my parents, Michael and
Olga Barry, who, because of health reasons, could not join us
here today.
I would also like to acknowledge my partners and friends at
Pietragallo, Bosick & Gordon. My managing partner, Bill
Pietragallo, has been particularly helpful in this quest.
I would also like to thank all of the associates who are
back on the ranch doing the work that needs to be done today,
and my legal assistants and secretaries who worked hard on the
applications.
I would also like to say a word in thanks to my six
sisters, who I will not all name, and my brother, who have
supported me along the way and e-mailed and cheered me on
today. A special salute to my godchild and niece, U.S. Army
Captain Meghan Cumpston, who is serving in Afghanistan.
[The biographical information of Nora Barry Fischer
follows.]
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Thank you.
Senator Coburn. Thank you.
Judge Frizzell?
STATEMENT OF GREGORY FRIZZELL, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF OKLAHOMA
Judge Frizzell. Thank you, Mr. Chairman.
Like Ms. Fischer, I have no prepared statement, but would
first like to thank the President for the honor of his
nomination. I would also thank you for your kind words, and
thank Senator Inhofe for his kind words.
I want to thank the Committee for having scheduled this
hearing today, and if I might, introduce my family who is here
today.
Senator Coburn. Absolutely. Please do.
Judge Frizzell. First of all my wife of 15-plus years,
Kelly Nash Frizzell, my mother, Shirley Frizzell, my father,
Kent Frizzell, and my sister, Angela Frizzell.
Senator Coburn. Great. And where are the six kids?
Judge Frizzell. With notice on Friday afternoon, we could
not load them all up on the bus and get them here in time.
Senator Coburn. Right.
Any other comments?
Judge Frizzell. No, sir. Thank you.
[The biographical information of Gregory Frizzell follows.]
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Senator Coburn. Thank you.
Judge O'Neill?
STATEMENT OF LAWRENCE J. O'NEILL, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF CALIFORNIA
Judge O'Neill. Good afternoon. I would first like to thank,
also, the President for the nomination. I would like to thank
you for your words and for convening this Committee meeting so
that we could move forward. I would like to--and I will hold
off just a second if you would like.
[The biographical information of Lawrence J. O'Neill
follows.]
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Senator Coburn. Senator Feinstein?
Senator Feinstein. Can I get settled?
Senator Coburn. You bet. You bet. We will wait and allow
you to settle.
PRESENTATION OF LAWRENCE O'NEILL, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF CALIFORNIA, BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
apologize. We were in our caucus and I was the last one up to
talk about FISA. So, I appreciate this opportunity.
I would like to, first of all, thank Chairman Specter for
the accommodation of my request for expedited consideration of
Judge Lawrence O'Neill's nomination to the Eastern District of
California, and it is my great pleasure to introduce him here
today.
His appointment is really critical because there is a major
judicial emergency in the Eastern District of California. The
Fresno Division to which Judge O'Neill is nominated is
suffering from a particularly acute overload of cases.
Judge Oliver Wanger and Senior Judge Anthony Ischi are
currently the only judges in this division. They share a
caseload of 2,928 active cases. Now, this is an average
caseload of 1,464 active cases per judge. It is the highest
caseload by far in the Nation. By contrast, the average
weighted caseload nationally for a Federal district court judge
is 524 cases, so this is three times that.
The people of Fresno and the Eastern District truly need
the help that Judge O'Neill can provide. Fortunately, he is
uniquely qualified to step in and offer some immediate relief
because he has been a Magistrate Judge in the District since
1999, or for 7 years.
In addition, for the last 17 years he has been a judge in
California, spending 10 years as a Superior Court Judge in
Fresno before becoming a Magistrate. He is a home-grown
Californian. He was born in Oakland.
He attended school in our State. He received a Bachelor's
Degree in Criminology from the University of California at
Berkeley, a Master's degree in Public Education from Golden
Gate University, and a law degree from Hastings College of Law,
which is where my daughter, now a judge, received her law
degree as well.
So before attending law school, he was a police officer for
the City of San Leandro, and I think that additional
perspective is actually an asset on the bench because I assume
he then has street smarts as well as academic smarts. The ABA
has unanimously declared him to be ``Well Qualified'', their
highest rating.
Now, as you know, in California we have a bipartisan
process. Anyone that would like to be considered to be a judge
can apply. They are screened, they are interviewed, and this
commission, chaired by Mr. Parsky, contains three Democrats,
three Republicans, and Judge O'Neill's nomination was the
product of this commission.
He was one of five nominees submitted to the President for
his consideration. Although Senator Boxer could not be here
today, she asked me to relay her support for his nomination.
She will be entering a separate statement into the record.
So, Judge O'Neill, I congratulate you on this nomination.
Mr. Chairman, I thank you, and hope we can move this through
speedily so that this emergency can be alleviated.
Thank you.
Senator Coburn. Thank you, Senator Feinstein. And Judge
O'Neill, I do not know if you introduced family or not, but you
are more than welcome to do so.
Judge O'Neill. Not yet. Senator Feinstein's entrance was
very timely because I was about ready to thank her as well.
I do thank you, Senator, for your words, and also the help
that your office and Senator Boxer's office has been to move us
forward so that we can take care of the emergency that you have
amply discussed.
I would like to introduce my family, if I could. My wife,
Kathleen, and my son, William. William flew all night to be
here. He is in his last year of Hastings Law School as well. My
daughter Erin sends her best, as she is starting her last year
at Northwestern University in Evanston, Illinois. After hearing
for 10 minutes why it was just impossible to be here, I
understood. I accepted it.
Lastly, my mother sends her best. She is also a lawyer. She
started University of California, Bolt Hall, back in 1940. She
is 87, and her health does not permit her to be here, but she
is certainly here in spirit.
Senator Coburn. I understand. Well, you certainly have the
background and academics to handle 1,500 active cases a year.
Judge Wood?
STATEMENT OF LISA WOOD, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF GEORGIA
Judge Wood. Thank you. I want to first begin by thanking
the Committee for giving us the opportunity to have this
hearing, and to thank my home State Senators, Senator Chambliss
and Senator Isakson, for supporting me, and the President as
well for nominating me.
I would also like to introduce my friends and family who
have made the journey from Georgia. I have with me my husband,
Richard Wood. The first of our twins, Katherine Wood, and my
son, Lachlan Wood, fell asleep earlier. But he is in my
mother's arms. That is my mother, Sue Godbey, my father, Dr.
Edsel Godbey.
Also here with me is Judge Anthony Alaimo, who, as an 86-
year-old, got up at 4:00 this morning to fly to be here with us
today. I was privileged to clerk with him and he is my mentor,
and I am honored by his presence.
Also with him is his courtroom deputy, Loyal Buford Rowe.
My two best friends have come to be with us as well, Rita
Spalding and Ginger Adams.
Finally, I would like to thank the staff of the U.S.
Attorney's Office for making me look good. Thank you.
[The biographical information of Lisa Wood follows.]
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Senator Coburn. Thank you.
Well, we will proceed with some questions now. I have a
limited number of questions for each of you. There will be no
time contingency in terms of how you answer them. They are
fairly general questions, but it will give me a feel and an
opportunity to get to know you a little bit better.
I am going to begin with Ms. Fischer, if I might. Your
legal career has really encompassed a broad mix of civil and
legal work, particularly focusing on trial work.
Would you share with us how your experiences have prepared
you to serve as a U.S. judge?
Ms. Fischer. Thank you, Mr. Chairman, for that question. As
you know from your review of my resume, I have been practicing
law in Western Pennsylvania, and also in West Virginia, I might
add, the last 30 years. I have covered a broad range of cases
in both State and Federal work. Early on I handled a number of
civil rights and employment cases, for example, in the Federal
district court.
I think that the mix of skills that I have learned, the
ability to look at cases, analyze the facts and then apply the
law, I think I can carry that into the judiciary, if I should
be so fortunate. Further, as it has been indicated, I have some
training in mediation, arbitration, and alternate dispute
resolution. It would be my hope to bring those skills to the
table as well.
Senator Coburn. You just answered my next question. I
actually consider that to be a tremendous asset, because what
that means, as you recognize in mediation and alternate dispute
resolution, is you are a trusted advocate for fairness. I think
that is a tremendous compliment to you.
When we see 1,500 cases per judge, if they go to trial,
that is an impossibility in our judicial system today. So
mediation, and actually the concept of reconciliation,
reconciling two people apart or two parties to a common
denominator, is a key factor.
In your mind, of all the judges you have been in front of,
what are the qualities that you are most impressed with that
makes a good judge?
Ms. Fischer. First, Mr. Chairman, I would say that the
judges who I admire are fair-minded and open, listening to both
sides of the case, sometimes more than two sides of the case.
Certainly hardworking, people who spend the time, the energy to
learn the facts of the case and the parties to do justice.
In addition to that, I think that the people that I most
admire are those who welcome the citizens into their courtroom
and provide an atmosphere, a fairness, even- handedness, and
integrity as they address cases.
Senator Coburn. Thank you.
I am going to ask each of you this question. You do not
have the advantage of having it heard it prior to coming up. I
am not a lawyer. I am a physician/businessman. As all of you
know, judges have become a political issue, which I think is
much to the detriment of our country.
There is a difference between political ideology and
judicial philosophy. I do not think anybody ought to have to
explain their political ideology, but would you care to explain
what you see as a proper judicial philosophy?
Ms. Fischer. Thank you, Mr. Chairman, for that question. I
know that it is an important question. As a Federal district
court judge, if I should be so fortunate to become one, I would
have to address the facts of the case and apply the law.
As any sitting judge in the Western District, or in any
other district court, I would first have to look to precedent.
In that vein, I would look to the Third Circuit, and certainly
to the Supreme Court, as precedent. From that, then I would
proceed to make the rulings that would be required in a case on
a case-by-case basis.
Senator Coburn. All right. And you recognize, your
authority comes from the Constitution, the statutes, and the
treaties of this country, as well as stare decis?
Ms. Fischer. Certainly.
Senator Coburn. And nothing else.
Ms. Fischer. That is the basis.
Senator Coburn. As far as the authority for the basis of
your opinions.
Ms. Fischer. That would be correct.
Senator Coburn. All right. Thank you.
Judge Frizzell, you have served in the State of Oklahoma as
a judge for 9 years. First of all, let me thank you for doing
that. Given your service on the bench, you have some insight
about the roles that judges play. Can you kind of share with us
your thoughts on the role of the judiciary in our tri-part
government?
Judge Frizzell. Yes, sir. Having tried some 185 or so
cases, I have found that the judiciary, the judge, playing a
central role in the trial of cases, first of all, has to be
extremely courteous. The judge sets the tone in the courtroom.
So, courtesy, humility, and I think restraint, first and
foremost.
Obviously, restraint in following stare decis, restraint in
recognizing that addressing a case in controversy, one must
limit one's self to the case before the judge and utilize those
tools that are applicable and can resolve the case and not
going beyond.
Senator Coburn. How do we promote more cases into
reconciliation rather than trial?
Judge Frizzell. Clearly, alternative dispute resolution--
fortunately, in Tulsa, as you know, Mr. Chairman, we have on
the State level an actively-used municipal early settlement
procedure that we use quite a bit. I personally referred a lot
of cases there a lot of times, because parties simply want to
be heard.
They want to make their case, and many times by presenting
their case to a mediator they have that catharsis and are able
to get an impartial evaluation regarding the strength of their
case. So, mediation is absolutely essential, as you have
previously mentioned.
In addition, the Northern District of Oklahoma has an
active process. The Magistrate Judge who is in charge of that
was my co-clerk for Judge Brett, Magistrate Judge Paul Cleary,
and he is doing an excellent job.
Senator Coburn. All right. Thank you.
Judge Frizzell, for 9 years you have been involved with the
local chapter of the American Ends of Court, which, as you
know, is an organization dedicated to improving the skills,
professionalism, and ethics of the bench and bar.
Can you tell me how your experience has shaped your skills
as a judge and how you will apply those skills during your
service, should you so be confirmed to the district court?
Judge Frizzell. I think in three ways, Mr. Chairman. First
of all, as you know, the American Ends of Court is designed to
promote civility amongst the bench and amongst the bar. They do
so by dining together, breaking bread together once a month,
which fosters relationships.
Second, through education. Each month we have a
presentation made by one of the people groups, and one that
always, if you keep your ears open, you can pick up tips on how
to address a lawsuit and how the administration of justice
ought to be performed.
I think, third, I have dived head-first into the idea of
mentoring. I think we have lost in the American legal system
because recently you see many people from law school going into
solo practice and not going into law firms.
It is essential that they have mentors. Just last week I
started up with a new mentee, who is a private practitioner who
has just a few years of experience and is a solo practitioner
in the criminal area.
Senator Coburn. You have done a lot of pro bono work for
both the Tulsa Speech and Hearing Association, as well as for
indigent Tulsans through the Rotary Club. If it is appropriate,
or would it be appropriate for you, and if so, how would you
use your experience in pro bono work to increase the amount of
pro bono work that is done by the bar that sits before you?
Judge Frizzell. I know that on the State bench we have
attempted to increase the amount of pro bono work done for
individuals participating or who otherwise would be pro se
before the courts.
I, frankly, do not know whether the Northern District of
Oklahoma promotes--excuse me. I do. But in the area of criminal
practice, because I was a member of the board at one point in
private practice, we had an adjunct board where we represented
criminal defendants. So, we do promote that in the Northern
District of Oklahoma.
Senator Coburn. Thank you.
Then to my final question: judicial philosophy.
Judge Frizzell. Yes, sir. I think, first of all, the
linchpin is that of judicial restraint, as I previously
alluded. One must not use the totality of powers that a judge
is given. It is much like being a parent; you do not want to go
beyond that which is necessary to resolve a particular case. I
think, obviously, firm adherence to the doctrine of stare decis
and unfailing courtesy.
Senator Coburn. All right. Thank you.
Judge O'Neill. A really interesting career. You should be
proud. You have had a varied career. You worked as an advocate,
then on the State bench, and now recently as a Federal
magistrate judge for the same court. Probably a lot of this
work has been falling on you anyway, I would imagine. How about
all of those experiences, and how does that fit with making you
a great Federal judge?
Judge O'Neill. I think starting out as an advocate, that
being a lawyer, makes you understand that there are judges you
like to come before and judges you would prefer never to be
before again. I think that it is important for a judge to
remember those experiences so you are the type of judge that
people want to appear before again and again.
With regard to the State court, I handled more than 2,000
criminal cases. You mentioned earlier the part about mediation.
That is a good part of what occurs every day in the criminal
field, as well as the civil field. I ran that calendar for
several years at the end of my State years on the Superior
Court.
Moving then into the Federal court, I handled, and have
continued to handle, settlement conferences on a weekly basis.
Sometimes it is the traditional settlement conference,
sometimes it is mediation, sometimes it is a hybrid. But all of
those things, coupled with more than 500 trials that I have
handled, I believe, make me ready for this position.
Finally, when you mention that perhaps I am handling some
of the cases now that I will be handling, that is a true
statement. As you know, in the Federal court a magistrate judge
can handle a case sitting as a district court judge with the
consent of all parties. The consent rate for me is in excess of
90 percent. So for the past, almost 8 years, on the civil side
of it, I have been acting as a district court judge.
Senator Coburn. That is great.
You have been recognized also as well for your pro bono and
community service activities, including your service for the
Fresno County Mock Trial competition, and other teaching
activities.
Can you describe these activities for the committee, what
you have done?
Judge O'Neill. Yes. Generally it is junior high school and
high school, and it is almost not ever grammar school level. I
am invited back to the junior high school level to teach six to
eight classes per year, either on the first day that they are
going to be handling the Constitution, or the last day that
they are handling the Constitution.
As far as the high school level is concerned, I teach the
Advanced Placement review course for the Government class,
specifically the courts and the Constitution arena, and in
between all of that, a lot of speeches.
I think that judges, from time to time, as best we can,
need to get out of our chambers and out of our courtrooms and
into the public to explain what we do, because so many people
do not know.
Senator Coburn. Right. Right.
Do you plan on continuing that work, should you be
confirmed?
Judge O'Neill. I absolutely do.
Senator Coburn. Yes. The key to that is making sure the
public has confidence in our judiciary, and I think you are
right on.
Judge O'Neill. And if they do not know what we do, there is
no way they can have that confidence.
Senator Coburn. Right.
And how about the answer to my question on judicial
philosophy?
Judge O'Neill. There are several things that I think a
judge must do. First, is to be prepared, to have read not just
the briefs, but the law, to be ready to proceed with that case
before you come out on the bench.
Second, to be efficient with your time. If you waste time
or have people waste time in your courtroom, you do not have
time to give the people at the end of the calendar the same
type of listening that you need to do in every case.
Civility is absolute. It is an absolute requirement for a
judge. I think that ultimately people need to come into your
courtroom knowing that you are going to apply the law as it is.
Not how you might think it should be, not just on the things
that you agree with, but apply the law as it is.
The only way you are ever going to do that as a judge is to
recognize that there are three branches of government, and that
means something. That is not just a convenience, it is the law
itself.
Senator Coburn. Thank you.
Ms. Wood, a similar question. You have had broad
experience, both in terms of civil and criminal work, and
prosecutorial work. How has that prepared you to be a Federal
judge?
Judge Wood. Well, Senator, I think it puts me in a unique
position of having been able to see the Federal district court
from just about every angle possible, beginning with behind the
scenes as a law clerk, and to see the decisional process and
how that goes on, then next as a private practitioner
representing civil plaintiffs and defendants, and also
defending accused people who have been brought to the court,
then as a county magistrate court, to pass on issues regarding
search and seizure and arrest warrants, and so forth, then,
finally, as the U.S. Attorney, to represent the United States
in civil and criminal matters.
So, I get to see from all those vantage points how crucial
it is for the members of the Federal judiciary to be honest,
fair, hardworking, patient, and humble.
Senator Coburn. Thank you.
Speaking of your role as a U.S. Attorney in the Southern
District of Georgia, what would you outline or lay out for us
that are your major accomplishments as a U.S. Attorney there?
Judge Wood. Senator, I have been U.S. Attorney for
approximately 2 years. I was confirmed in 2004. During that
time our office has increased its productivity, and last year
we had the most productive year that we have ever had in terms
of pursuing criminal defendants resulting in convictions, and
complex cases that we have been able to pursue. This year, as
well, we are track to best that. I also think that the morale
in our office is good, and that affects everyone's work ethic.
I guess, lastly, I would say, touching on something that
Judge O'Neill mentioned, and that is the public face of the
office. I agree with him that, as public servants, we need to
let the public know what we are doing. Our buildings of justice
stand only so much as we have public confidence and that they
trust us.
So I spend a lot of time going to schools, elementary
schools up to colleges and law schools, going to civic clubs
and groups, and telling them about what the Federal law
enforcement initiatives are and what we are doing in our part
of the world to accomplish those.
Senator Coburn. Great.
Then to my last question about judicial philosophy? Judge
Wood. My judicial philosophy is fairly simple. I think it is
important to understand the role that a Federal district Judge
plays within the larger system within the three branches of
government and within the appellate system itself.
As a district court judge, I am bound to apply the
precedent of the 11th Circuit Court of Appeals in my State, and
the U.S. Supreme Court. My task will be to discern the facts as
fairly as I can and to research and discover the law as
diligently as I can. If I were to be fortunate enough to be
confirmed, that is what I would do every day of my career.
Senator Coburn. All right. Thank you.
I have just one final question for each of you. It is
something that you see reflected here in the U.S. Congress. The
difference is, we are not appointed for life, although we might
act like it.
[Laughter.]
What will each of you do in your personal life to have a
check or balance so that the position of a lifetime appointment
and the power that comes with that will be moderated,
influenced, or a Governor put on so that our normal human
nature of being approached to ourselves of significance, will
never get in the way of your decisions as a U.S. district court
judge.
Ms. Fischer?
Ms. Fischer. Thank you.
Senator Coburn. And by the way, I will give you an out. My
balance is my wife. She cuts me down all the time and puts me
right back where I belong.
Ms. Fischer. Thank you, Mr. Chairman, for that question. I
could echo the same. I would say that my husband Don certainly
adds balance to my life, as do my children. In fact, my
husband, who happens to be a physician, such as the Chairman,
makes sure that I get exercise. I was 25 years old when he
started to teach me how to swim, and I am still learning. I am
getting there.
But in addition to that, I think in approaching my every
day, I would expect to approach the matters at hand, if you
will, with the same kind of evenness, if you will, that I
currently have in my law firm practice where I work with a team
of younger associates and partners, paralegals and staff.
We know when to crack a joke. We know when to celebrate
somebody's success. We support each other. I think I would take
those same kinds of attributes, if you will, to the bench if I
would be so fortunate to be appointed and committed to the
bench.
Senator Coburn. Judge Frizzell?
Judge Frizzell. Thank you, Mr. Chairman. Obviously that is
a critical question with this particular job. I would echo Ms.
Fischer's statement, substituting my wife for her husband, and
the children. Obviously that keeps one humble.
In addition, I have tried to operate on the ``bathroom
mirror'' philosophy. I want to be able to look myself in the
mirror the next day without any second thoughts. That has kind
of helped me through nearly 10 years of service on the State
bench. I think, as Ms. Fischer says, you have got to keep
active, you have got to keep exercising. With the YMCA right
across the street, I use that often.
Senator Coburn. Judge O'Neill?
Judge O'Neill. One of the finest judges I have met, who is
now deceased, his name was Hollis G. Best, and he was the
presiding Justice of the Fifth district court of Appeals in
California.
When I first got appointed by the Governor of the State of
California to the Superior Court, before I was sworn in he took
me to lunch and he said, ``The best judges focus in on
responsibility and not on power.'' That is a philosophy that I
have followed since the first day some 17 years ago.
Second, I, too, have a spouse who, in one word, can put me
back where I need to be from time to time. That one word is:
overruled.
[Laughter.]
Senator Coburn. Great answer.
Ms. Wood?
Judge Wood. Thank you, Senator. I, too, have a spouse that
keeps me in check. We serve that role for each other. My
parents taught me that you shine brightest when you are
polishing others, and I would take Judge Alaimo's cue and speak
softly and listen hard.
Senator Coburn. Well, thank you each very much. The
Chairman will make a determination of when you will come on the
business calendar. I appreciate you responding on short notice
to this hearing. We are trying to accomplish your nominations
through.
I must say, each of you are impressive in your own right.
It is a reflection on the legal profession in this country, as
well as our system of government, that we see such quality
individuals before us.
The record will remain open for one week should you want to
amend or add anything to what you might have said.
With that, the hearing is adjourned.
[Whereupon, at 3:00 p.m. the hearing was adjourned.]
[Submissions for the record follow.]
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NOMINATIONS OF ROBERT JAMES JONKER, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF MICHIGAN; PAUL LEWIS MALONEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN; JANET T. NEFF,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN; AND
LESLIE SOUTHWICK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI
----------
TUESDAY, SEPTEMBER 19, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 3:07 p.m., in
room 226, Dirksen Senate Office Building, Hon. Sam Brownback,
presiding.
OPENING STATEMENT HON. SAM BROWNBACK, A U.S. SENATOR FROM THE
STATE OF KANSAS
Senator Brownback. The hearing will come to order.
Thank you all for joining us today. We have a confirmation
hearing for several highly qualified individuals nominated by
President Bush to serve on district courts in Michigan and
Mississippi.
The nominees include the following four individuals: Robert
James Jonker, who has been nominated to be U.S. district Judge
for the Western District of Michigan; Judge Paul Lewis Maloney,
who has also been nominated to be U.S. district Judge for the
Western District of Michigan; Judge Janet Neff, similarly
nominated to be U.S. district Judge for the Western District of
Michigan; and, finally, Judge Leslie Southwick, nominated to be
U.S. district Judge for the Southern District of Mississippi.
On behalf of the Committee I want to welcome all of the
nominees, you and your families. You have traveled a great
distance to be here today. I appreciate your willingness to
appear before us. It is quite a day. This is as big deal, as
they would put it, to go through a nomination hearing, and
hopefully a confirmation process, to be confirmed to be a
Federal judge.
We have in attendance today several Senators from the home
States of these fine attorneys. I will leave it to my
colleagues to discuss their superb qualifications and to vouch
for their fitness to serve on the bench. I am delighted that
you are here.
Since my Ranking Member is not present, I will go to the
individual Senators to speak for their nominees.
We have in panel one Hon. Thad Cochran, my Chairman on the
Appropriations Committee who I have been delighted to serve
with; from Mississippi, Hon. Trent Lott, a dear friend, the
Senator from Mississippi. I understand that Senator Levin may
be coming later, but is not here yet; and Hon. Debbie Stabenow,
a U.S. Senator from Michigan.
We will go in the order of seniority, as that is the way
this place operates. So, Senator Cochran, I will go with you
first. I am delighted that you are here to discuss your
nominee.
PRESENTATION OF LESLIE H. SOUTHWICK, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD
COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much.
I am pleased to introduce to you and the Committee Leslie
H. Southwick, and to recommend to the Committee his
confirmation as a U.S. district court judge for the Southern
District of Mississippi.
I have known Leslie for about 30 years. He is well
qualified by his temperament, his intelligence, his education,
and experience to serve as a U.S. district court judge.
During his distinguished career he has demonstrated a keen
knowledge of the law as a lawyer and a judge. He will reflect
credit, in my opinion, on the Federal judiciary. I am glad to
notice that his daughter Cathy is representing his family and
is here today to be with him on this special occasion.
Leslie was born and educated in Texas, but he has deep
roots in Mississippi. He came to the State in 1976 to serve as
a law clerk to U.S. Court of Appeals Judge Charles Clark, who
served at that time on the Fifth Circuit Court of Appeals.
Leslie had graduated Cum Laude from Rice University in
1972. He then entered the University of Texas School of Law,
graduating in 1975. Following law school graduation, he clerked
for Chief Judge John Runyan, Jr. on the Texas Court of Criminal
Appeals in Austin, and then he came to practice law in Jackson,
Mississippi with the firm of Bernini, Grantham, Grauer &
Hughes.
I was practicing law in Jackson at the time and I came to
know him very soon as a keen intellectual, thoughtful,
personable member of our Bar. He became a respected member of
the Bar on a wide range of legal issues.
He served as Deputy Assistant Attorney General in the Civil
Division of the U.S. Department of Justice. He supervised there
125 lawyers of the Federal Programs Branch. He also supervised
the Office of Consumer Litigation, a 25-lawyer division charged
with civil and criminal enforcement of Federal consumer laws.
In November 1994, Leslie was elected to serve on the
Mississippi Court of Appeals. He served there with distinction.
I read some of his opinions and followed his career there on
the appellate bench. He has been one of the most respected
judges in that court.
Then he was called to serve as a Staff Judge Advocate for
the 155th Armored Combat Brigade of the Mississippi National
Guard. He was deployed to Iraq. He served there with
distinction. He has become the citizen soldier, and he has
distinguished himself by answering the call to duty and for
this mobilization in support of Operation Iraqi Freedom.
He has been an Adjunct Professor at the Mississippi College
School of Law, where he taught courses in administrative law,
consumer law, evidence, statutory interpretation, and judicial
history. He has also served as an instructor at the U.S.
Military Academy at West Point.
He has written several legal and historical articles, been
published in the Mississippi Law Journal, the Mississippi
College of Law Review, the Wall Street Journal, and other
journals and magazines.
He is the author of Presidential Also-Rans and Running
Mates, a historical discussion of the American candidates for
presidents and vice presidents. It won the American Library
Association's Best Reference Book of the Year Award in 1985.
He has enjoyed politics. He has been active in the
political life of our State and we are very proud of him. Few
decisions made by a U.S. Senator have a farther-reaching effect
than the recommendation to a president of an individual to
serve on the Federal bench.
I am confident that Senator Lott and I have made a good
decision in recommending Leslie Southwick to President George
W. Bush to serve on the Federal bench. I am pleased the
President submitted his name to the Senate for consideration,
and he deserves to be confirmed by the Senate.
Senator Brownback. Thank you very much, Senator Cochran.
Senator Lott, welcome.
PRESENTATION OF LESLIE H. SOUTHWICK, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT
LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Thank you, Senator Brownback, for having this
timely hearing. I would like to ask that my statement be
submitted for the record in its entirety.
Senator Brownback. Without objection.
[The prepared statement of Senator Lott appears as a
submission for the record.]
Senator Lott. A lot of it is discussion about the resume
and the history of this very fine nominee. I am quite pleased
to be here and to recommend his nomination to the President. I
just wanted to come and vouch for the character of the man. I
think that is important, too.
While his resume is obviously extremely impressive, his
reputation goes way beyond his legal qualifications, his
educational background, his involvement in public service, his
writing ability, his military career. He has an outstanding
record, but he also has a reputation of just being a fine man
of very good temperament.
I believe that people, the Senate, looks for that in a
nominee. I doubt that we have had many nominees for the
Southern District of Mississippi, or anywhere in Mississippi
for that matter, that exceeded the qualifications of this
nominee.
I focused on two things in particular, his experience there
on the Mississippi Court of Appeals where he served as a
presiding judge for several years, 1999 to 2004, and he amassed
a very outstanding record in that position.
Also, the fact that he chose, at a particular point in his
life, to go into the U.S. Reserves and then transfer to the
Mississippi National Guard and serve as lieutenant colonel and
Staff Judge Advocate of the 155th Brigade. He served in Iraq,
where, when I asked him, ``How did it go?'' he said, ``Well, it
was character building.'' I suspect that was the most
diplomatic way he could describe his experience there.
So this really is a unique nominee. He has shown great
wisdom, Mr. Chairman, beyond that, having been born in Texas.
He graduated Cum Laude from Rice University and attended the
University of Texas School of Law, and clerked there for the
Texas Court of Criminal Appeals.
He had the wisdom for to then become a law clerk for one of
the finest judges I have ever known in my life, Fifth Circuit
Court of Appeals Chief Judge Charles Clark, in Jackson.
After that experience, having lived in Jackson,
Mississippi, he then went to one of the finest law firms in the
State and has chosen to live in Mississippi from that day till
this, showing the great wisdom of this nominee in choosing the
place where he lives, Mississippi. We are proud of him. We
believe he will make an excellent Federal judge. I am delighted
to be here and vouch for his candidacy for this position.
Senator Brownback. Thank you very much. I thank my
colleagues for their statements in support of the nominee from
Mississippi, an outstanding nominee and fantastic statements in
support.
If my colleagues need to excuse themselves, that is
certainly understandable. If you would like to stay, we would
love to have your presence. But we will proceed now to Senator
Stabenow and the discussion of the Michigan nominees that we
have on the panel.
PRESENTATION OF PAUL MALONEY, JANET NEFF, AND ROBERT JONKER,
NOMINEES TO BE DISTRICT JUDGES FOR THE WESTERN DISTRICT OF
MICHIGAN, BY HON. DEBBIE STABENOW, A U.S. SENATOR FROM THE
STATE OF MICHIGAN
Senator Stabenow. Well, thank you, Senator Brownback. It is
my great pleasure today to be here. I thank you for holding
this hearing on the nominations of Judge Paul Maloney, Judge
Janet Neff, and Robert Jonker to the U.S. district court for
the Western District of Michigan.
Let me start by indicating that Senator Levin had fully
intended to be here. He is speaking on the floor at this moment
and asked me to submit his written testimony for the record. He
is in full support of all three nominees. If it is possible, he
will be here. If not, certainly it is not because of lack of
support for the nominees. So, I would submit that.
Senator Brownback. His full statement will be submitted to
the record.
Senator Stabenow. Thank you.
[The prepared statement of Senator Levin appears as a
submission for the record.]
Senator Stabenow. And in addition to introducing them, I
want to indicate that all three of them bring distinguished
legal careers to the Federal bench, and their resumes are
impressive.
In the interest of time, because I want you to have an
opportunity to hear from them directly, I will not go into
extensive discussion of each of their resumes, except to say
that we are very proud of them in Michigan.
Judge Paul Maloney has served as a Circuit judge on the
Berrien County Trial Court for almost 10 years. Judge Maloney
also brings a wealth of public service experience to the bench,
including working as a Berrien County prosecutor, a Deputy
Assistant Attorney General in the Department of Justice, and as
Chairman of the Michigan Sentencing Commission. I want,
personally, to welcome Judge Paul Maloney to the Senate hearing
today.
Judge Janet Neff has served as a judge on the Court of
Appeals for the Third District of Michigan for almost 17 years.
In addition to her very distinguished career on the bench,
Judge Neff has been an active leader in Grand Rapids, including
serving as the first woman president of the Grand Rapids Bar
Association. I would like, also, to welcome her, along with her
husband Dave and daughter Meredith, and congratulate her on her
nomination as well.
Robert Jonker has been a partner at Warner, Norcross & Judd
in Grand Rapids for almost 12 years. A lifelong Michiganian,
Robert Jonker is a graduate of Calvin College and the
University of Michigan Law School, and has served as a law
clerk for U.S. district court judge John Feikens in the Eastern
District. I would welcome Robert Jonker to the Senate today.
Again, Mr. Chairman, these are brief overviews of what are
three distinguished careers. We are very proud to come together
and have worked with the White House on these nominations.
Senator Levin and I are bringing our full support,
enthusiastic support, for the nominees. I would also indicate
that it would be my hope that we would move expeditiously on
the floor on these nominations. Thank you, Mr. Chairman.
Senator Brownback. Thank you very much, Senator Stabenow. I
appreciate your thoughts, comments, and recommendations of
these highly qualified nominees. I appreciate your attendance
here today.
Senator Stabenow. Thank you.
Senator Brownback. We will call the second panel, the
nominees, forward, if you would join us up front. I do have an
oath that I would like for you to take.
Calling forward Robert James Jonker, to be U.S. district
Judge for the Western District of Michigan; Judge Paul Lewis
Maloney, to be U.S. district Judge for the Western District of
Michigan; Judge Janet T. Neff, to be U.S. district Judge for
the Western District of Michigan; and Judge Leslie Southwick,
to be U.S. district Judge for the Southern District of
Mississippi.
I would ask, if you would, to repeat after me. Hold your
right hand up, please.
[Whereupon, the nominees were duly sworn.]
Senator Brownback. Thank you all. Please take your seats.
Again, as I said at the outset, I thank you all for
attending and being here today. This is one of the key jobs of
the Senate, is putting people on the Federal bench. It is a
lifetime appointment and it is an important appointment to be
put in such a position of authority and trust.
What I would like for each of you to do, is to give me a
brief opening statement if you have one prepared. As you do
that, because I recognize that families are involved in this as
well, I would like for you to introduce your family to me and
to the Committee as well so we can meet them and thank them
because, while it is a lifetime commitment of you, it is also a
lifetime commitment of theirs.
We do not come into this world by ourselves and we do not
stay here by ourselves, either. There are a lot of people that
are around us that are very key and important.
So, Mr. Jonker, I would like for you to start off. If you
would present your testimony, but please start by introducing
any family members you have here present with you today.
STATEMENT OF ROBERT JAMES JONKER, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF MICHIGAN
Mr. Jonker. Well, thank you, Mr. Chairman. I appreciate
that. I do have a great cloud of witnesses and supporters back
in Michigan cheering me on today that were not able to be with
me other than in spirit, and they are here that way today.
I want to thank you, Mr. Chairman, and the entire Committee
for convening this hearing and giving me an opportunity to
appear before you and respond to your questions.
I certainly want to thank, in particular, Senator Stabenow
for personally coming today to deliver that introduction.
Thanks to both Senator Stabenow and Senator Levin for their
courtesies and support throughout this process.
Of course, I do need to thank President Bush for honoring
me in the first place with this nomination. I aim to do credit
to that nomination, and also to the Senate's confirmation, if I
am fortunate enough to receive that.
[The biographical information of Robert Jonker follows:]
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Senator Brownback. Thank you very much.
Judge Maloney?
STATEMENT OF PAUL LEWIS MALONEY, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF MICHIGAN
Judge Maloney. Thank you, Mr. Chairman. Thank you for
conducting this hearing today on our nominations to be District
judges for the Western District of Michigan. I am honored by
the President's nomination to be a Federal judge, and look
forward to answering your questions during the course of this
hearing.
I want to personally thank Senator Stabenow for her
appearance this afternoon in support of our nominations. I look
forward to your questions. Unfortunately, my family was not
able to make it today. They are with me in spirit back in
Michigan and assorted other places across the country, Texas
and Pennsylvania, to be more specific.
Thank you, Senator.
[The biographical information of Paul Maloney follows:]
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Senator Brownback. Thank you. It is a delight to have you
here.
Judge Neff?
STATEMENT OF JANET T. NEFF, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF MICHIGAN
Jude Neff. Thank you, Senator. Thank you particularly for
your comments with regard to the support of family, which is
very important, as you know as someone in public life.
I would like to introduce to you my husband of almost 35
years, David Neff, and the younger of my two daughters,
Meredith Neff, who is with us here from Wisconsin, where she
lives and works. My older daughter, Genevieve, unfortunately
could not be here. She is in law school in New York City.
Senator Brownback. Welcome. Delighted to have you all here.
Jude Neff. I also am appreciative of the opportunity to
have this hearing. I am extremely grateful to Senators Levin
and Stabenow for forwarding my name to President Bush for
consideration and for his nomination.
I also think it appropriate to thank the staff at the
Department of Justice, particularly David Best and the people
who have worked with him who have helped us so very much
through this process, which can be a little daunting at times,
as well as the staff of Harriet Meyers in the White House.
They were extremely helpful to me and I am very, very
grateful for all of the courtesies and assistance that have
been shown me. So I am more than pleased to be here and more
than honored to be nominated to this position. Thank you.
[The biographical information of Janet Neff follows:]
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Senator Brownback. Thank you. Welcome here.
Judge Southwick?
STATEMENT OF LESLIE SOUTHWICK, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF MISSISSIPPI
Judge Southwick. Senator, I appreciate your chairing this
hearing today. I think you opened with the phrase, and if you
do not mind my borrowing it, that this is a very big deal today
to have this hearing and to have the opportunity to discuss
whatever comes to the committee's and your mind regarding our
background.
I am honored beyond, I think, her understanding, that my
daughter Cathy has joined us today. She flew up from Houston
early this morning. It required her getting up at 3:30 in the
morning to catch a 5:30 flight, and that is doing it for the
team. Thank you, Cathy.
Senator Brownback. Cathy, thank you. And we have extra
coffee if you need it.
[Laughter.]
Welcome. Delighted you are here.
Judge Southwick. Her mother is back in our hometown,
Jackson. My wife's mother has been ill and she is helping out
with her. We have one more child, Philip, who is an architect
in Austin who is doing his client's business today. I respect
all of their decisions, and I am glad Cathy is here.
Also with me today, coincidentally--he told me he flew up
just for the occasion and I will accept that--is Andy Taggert,
who is out in the audience. He is a supervisor from a county
just north of Jackson and is one of the outstanding leaders in
Mississippi political life today, and an outstanding lawyer as
well.
I want to thank the committee, but I want to thank two
Senators in particular who have addressed you already, Senators
Cochran and Lott. They have been stalwarts in my support
through this process and I am extraordinarily pleased to have
their support. President Bush's nomination of me is an honor
that almost goes beyond description. So with my personal
comments, I am ready for whatever questions you might have.
[The biographical information of Leslie Southwick follows:]
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Senator Brownback. Thank you. And congratulations on each
of you being moved thus far.
I have got some questions I would like to ask, and we can
go down the row if you would like. But one I would like to ask
you about is just a thought or your opinion on this topic.
Three of you are judges. Mr. Jonker, I believe you have clerked
for a judge.
Just this notion of judicial restraint has been one where
we are seeing a lot more conflict. I call it at times
``tectonic plates'' moving back against each other as far as
the legislative and executive pushing against the judicial.
I asked John Roberts, during his confirmation hearing, what
is the check and balance on the judiciary? His answer was,
judicial restraint. An appropriate answer. But it needs, then,
further definition. How do you determine whether or not this is
a topic that the judiciary should not be involved in, that the
judiciary should show restraint on?
I would just appreciate a thought, as you look at the topic
of judicial restraint and you have a case coming in front of
you, that this is a questionable area whether or not the
judiciary should cover it or not, what goes on in your mental
processes as your determination of whether this is something
subject to a Federal court to review or not? Mr. Jonker?
Mr. Jonker. Thank you, Senator. I think the first place
that I begin when I think about judicial restraint is with the
text of Article 3 of the Constitution itself, which plainly
limits the judicial power to cases and controversies that come
before it.
And out of that language, as I know the Senate Committee
understands and realizes, a great variety of justifiability
doctrines have evolved which I think require the judge to
carefully examine whether the particular issue that has come
before him or her is properly conceived for judicial
determination.
I think after you go through those justifiability tests,
you also have the statutory jurisdiction gateways that this
body puts in place which further limit and restrain what the
judiciary does.
Of course, any policy choices that the Congress makes and
embodies in legislative enactment must always constrain the
judge in his or her role, because it is certainly not the
judge's role to impose personal predilections of his or her
own. Then, finally, you have the great body of case law that I
think constrains every judge who is rendering a decision.
Senator Brownback. Why is this an issue now? Why is this
coming up more and more at this point in time in history than,
say, over the past 50 years? Or perhaps it has been coming up
that much and I have just not been as aware of it. But do you
have a thought on that?
Mr. Jonker. Well, I do think there has been, probably since
the founding of the Republic, inherent tension between the
different branches of government, because I think the Founders
did wisely build that into the structure of things.
I think at times when we are all cognizant of public policy
issues that are coming before the country, where there are
strong feelings on either side, that it is only natural that
the various bodies of government would push and pull next to
each other. I think that will always be a part of the process
and I think it would be incumbent on whoever has the honor of
being a judge.
If the Senate so confirms that on me, to always remember
that in the midst of that tension, it is the legislature that
makes the policy choices and it is the judge who applies them,
regardless of whether the judge agrees with them. I do pledge
to you that that is what I would do, if I am fortunate enough
to be confirmed.
Senator Brownback. Judge Maloney?
Jude Maloney. Thank you, Senator. To answer your second
question first, I think the discussion and the public debate on
this particular issue is part of a healthy debate about the
relationship between the three branches of government, the
executive, the legislative, and the judicial branch of
government.
I think in terms of cases that come before the trial court,
as Mr. Jonker has already indicated, the doctrines of
justiciability are very important to first examine whether this
is a case in controversy that requires the judicial branch of
government to get involved.
Once having determined that, then the issue is, in my
judgment, applying the law as it is given to us by the
legislative branches of government, the executive branch of
government, and the policymaking branches of the government,
apply the law as written based on the law as it is given to us,
both in statute and in case law, and apply the precedent and
follow the dictates of the precedent to render a decision in
the case. If I am confirmed by the Senate, that would be the
approach I would take.
Senator Brownback. Judge Neff?
Jude Neff. Thank you, Senator. I think probably the watch
word for judicial restraint, and indeed for most of judicial
work, is intellectual honesty. If we have to look at the
narrowness of the question in front of us, if we look to
legislative guidelines, if we look to precedent honestly, and
intellectually honestly view what is in front of us, that is
ultimately, in my view, the restraint on the judge. The judge
has got a role to play in our system.
The fact that there is, as Mr. Jonker has indicated,
longstanding tension built into our system, and it is healthy,
I think, and it is something that we struggle with all the time
as a country, and it has, I think, made us healthier. It has
helped to establish our judicial independence, but within the
framework of the guidelines that are set by the Congress and by
the executive.
Again, as the others, if I am fortunate enough to be
confirmed by the U.S. Senate to sit on the Western District of
Michigan, I will do my very best to remain within those
confines.
Senator Brownback. Judge Southwick?
Judge Southwick. Senator, it is hard for me to come up with
something fresh after such comprehensive review of the issue by
my three colleagues today. I would say, from my perspective as
an appellate judge over the last nearly 12 years, where courts
go astray is in failing to decide the case in front of them,
trying to use it as vehicles to go elsewhere, maybe further
than they need to go, not to decide the case purely on the
facts as honestly understood, and interpretation of the law as
written in the precedents; like cases are supposed to be
decided alike.
I think an honest interpretation of facts and law is one of
the primary restraints. To use Judge Neff's term, the
intellectual honesty of the exercise is absolutely critical for
judges to keep within the bounds that they are supposed to stay
in any particular case.
Senator Brownback. Three of you have served as State
judges, a court with general jurisdiction, and now you go to a
court of limited jurisdiction. Have you, at any time, wondered
when you have watched Federal judges rule, saying, I do not
think that one belongs to you guys?
Jude Neff. Well, if you will let me speak to that, Senator.
Senator Brownback. I would be happy to. I have got to think
you sat there in your chamber at some time and said, now, I do
not think you guys ought to be chewing on that one.
Jude Neff. One of the watch words in my chambers, and one
of the first things I talked to my new law clerks about, is we
are not ever going to decide anything other than what is
directly in front of us. I think that is even more important on
the Federal bench.
You have to make sure, first of all, that the parties in
front of you have standing, second, that the court has
jurisdiction, and that it is a proper topic to be justified to
be there.
The narrower you can be as a judge, the more constrained
you can keep your decisionmaking, in my view, the better off
you are in the long run. It gets you in a lot less trouble
eventually.
Senator Brownback. Judge Maloney?
Jude Maloney. Senator, I would concur with Judge Neff's
comments. I cannot say that I have speculated about why a
particular Federal court was handling a case as opposed to a
State court, but I think the jurisdiction of the Federal court
is fairly well delineated.
As Judge Neff has indicated, if I am confirmed, I will make
sure that the appropriate jurisdictional bases are there before
the case is decided. The parties need to have standing. Case in
controversy requirements need to be met as well. So, I will be
very careful on that subject matter if I am confirmed by the
Senate.
Senator Brownback. It strikes me, in the last campaign, I
was up for reelection in 2004. One of the big issues were the
courts and people feeling like things were being decided by the
courts that the people ought to decide through their
legislative bodies. Now, I happen to have a preference for
legislative bodies deciding things, and I recognize there are
pressure back and forth.
Although, through a lot of our history there has always
been the push for authority that has been through the executive
and legislative branch. That is usually what historians
chronicle, is, well, the President was more powerful in this
period of time and less powerful in that. Now I think
historians would have to look at this period of time and ask
about the power of the court. At least, that is what the people
are feeling.
That is why judges, it seems like, become a lot more of a
hot political topic, because people look at it and say there
are things being decided there that I think ought to be decided
by the people, and the court moves in and says it is a
constitutional issue, and therefore you cannot deal with it
unless you amend the Constitution.
That has really stirred a big movement across the country.
I just point it out to you because I think each of you could
well serve on a Federal bench for a number of years, and I hope
you do. I think each of you will do an outstanding job. It does
strike me that this is going on.
I appreciate, Judge Neff, your comments that this is a
healthy thing. I begin to wonder after a while when it becomes
so much, that then you get legislative bodies saying, how do we
limit the jurisdiction of the Federal court? Let us remove this
jurisdiction under the authority that we have in the Congress.
I personally do not like that tool. That, to me, is a blunt
instrument approach tool. It would be much better if there were
judicial restraint, that you could just say, no, I trust the
judges, that they will decide the issues that they should
rather than us removing appellate court review in the
Congressional bodies.
I hope this is one that we can all, through a lengthy
dialog and discussion, each looking at our own roles, be one
that we work through over a period of time in a healthy fashion
for the good of the Republic. I think it is a very important
one, and certainly a key one for our times now.
I have got to ask you, Judge Southwick, this Presidential
Also-Rans, for anybody in the U.S. Senate, that is always
considered a great topic. What is the key to being an also-ran?
Is it just that you had this interest in people that also ran,
but did not win?
Judge Southwick. Well, I have never had anybody, to my
face, psychoanalyze what it means to have written a book about
Presidential losers, and I do not know if anybody is reflecting
on what that might mean in here right now. There seemed to be a
niche there. I was interested.
Perhaps the idea of looking at what might have been
intrigued my fancy. So it is a book on the losing major party
nominees for 200-plus years. What makes an also- ran is also
what makes a President, just not quite as much, I suppose. They
have risen to the penultimate level of American politics, but
could not quite get across the finish line ahead of somebody
else. So, I consider it an honorable category of individuals.
Senator Brownback. So is it a book of ideas or is it a book
of failed campaigns?
Judge Southwick. It is biographies of the losing major
party nominees. There may be some ideas in there, but I do not
particularly analyze why they lost. I just try to suggest who
they were in biographical form.
Senator Brownback. That is an interesting topic.
Judge Southwick. Well, I did have my concern when Senator
Cochran mentioned that in here, about what that might engender.
[Laughter.]
Senator Brownback. Well, there is a caucus in the U.S.
Senate of people who swear that they never want to run for
President. I understand there are only two members.
[Laughter.]
So, there are a lot of others that say, well, all right,
maybe this year.
We are pleased to have you all here. In the process,
hopefully we will move your nominations going forward. I
appreciate your attendance and appreciate your willingness to
answer questions. There may be written questions submitted to
the record, and if so, those will be sent to you directly as
well.
I wish you all godspeed in moving forward. This is an
important position. To be a judge is a key position, and three
of you are currently serving in that. This is something that
society looks up to. People can be mad at a judge or concerned,
but this is a position of honor and authority, so we want to
make sure that we have people who have the highest intellectual
capacity and good hearts, too, so that they can process and
analyze the case, but also that they have that heart that looks
at it and has wisdom along with the knowledge to be able to
apply that. And it is key. It is a key spot. So, I wish you all
the best.
I do have a statement to put into the record for Senator
Leahy, who unfortunately could not be here.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Brownback. As I said, the record will remain open
for the requisite number of days. You may have written
questions submitted to you.
With that, thank you all for coming.
[Whereupon, at 3:42 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATION OF THOMAS MICHAEL HARDIMAN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE THIRD CIRCUIT
----------
TUESDAY, NOVEMBER 14, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:01 p.m., in
room 226, Dirksen Senate Office Building, Hon. Arlen Specter
(chairman of the committee) presiding.
Also present: Senator Coburn, Santorum.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good afternoon, ladies and gentlemen. It
is 2, and we have made it a practice on the Judiciary Committee
to start our hearings precisely on time.
Our nominee today is Thomas Michael Hardiman, a U.S.
district Judge for the Western District of Pennsylvania, whose
name has been submitted by the President to be on the Court of
Appeals for the Third Circuit.
Mr. Hardiman comes to this position with an outstanding
record, a very young man, at 41, to have already been a Federal
judge. He is a graduate of Notre Dame in 1987, was a Notre Dame
Scholar.
He went to Georgetown University Law Center in 1990, and
was associate editor and Note and Comment editor of the
Georgetown Law Journal, which is a mark of academic distinction
in law school.
He was an associate at Skadden, Arps for 2 years. His
leaving that firm was a sign of real dedication to something
other than making money, because that is a firm which has long
hours and large compensation.
Then he was an associate at Titus & McConomy, a partner in
Reed Smith, and, since 2003, a judge on the U.S. district court
for the Western District of Pennsylvania.
Judge Hardiman has very, very extensive professional and
community activities. He was a delegate to the American Bar
Association House of Delegates, a Fellow of the Academy of
Trial Lawyers of Allegheny County, a Hearing Officer for the
Disciplinary Board of the Pennsylvania Supreme Court, a member
of the Federalist Society. They are having their annual dinner
on Thursday. He has a very, very fine record.
Judge Hardiman, if you would step forward. We have been
joined by Senator Santorum, a distinguished Senator from
Pennsylvania, who is completing is second term, was in the
House of Representatives for 4 years, and has a phenomenal
record. He is a little older than you, Judge Hardiman, but not
much. Senator Santorum is 48. You two young men have
accomplished a great deal before the big 5-0.
Senator Santorum, it is a pleasure to have you before the
Judiciary Committee.
Senator Santorum. Thank you, Mr. Chairman.
Chairman Specter. You are recognized.
PRESENTATION OF THOMAS MICHAEL HARDIMAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE THIRD CIRCUIT, BY HON. RICK SANTORUM, A U.S.
SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. I got here just in the nick of time. I
should know better that you start your meetings on time. I
apologize.
It is an honor to be here to appear again before my
colleague, Senator Specter, the great Chairman of this
committee, and in particular to be here to introduce to the
Committee someone who I have known for many, many years,
someone who I have tremendous respect for, for his wife, for
his family, his extended family. It is a great family in
western Pennsylvania. He has provided tremendous service to the
people of western Pennsylvania, as has his family.
It is great to be here with them to testify here in this
hearing before the committee. Judge Hardiman is someone who I
had the pleasure of introducing when he was up for the district
court.
I said at that time that he was a young man with tremendous
potential, and someone who had tremendous respect from the Bar
in western Pennsylvania, and that he would be an outstanding
judge in spite of his youth.
I took that as someone who got involved in loftier offices
at a young age that Judge Hardiman had a better temperament
than I did when I was at his age to prepare himself for this
job, and in fact, he has shown that. He truly has been an
outstanding judge. I can tell you that I get--as I know,
Senator Specter, you do--compliments for the people that we
have nominated to the bench.
I cannot think of any judge that I have gotten more
compliments about, from not just litigants, but from fellow
jurists, fellow judges, than I have from Judge Hardiman. So I
am ecstatic to be here today to recommend him to the committee.
He is someone who has earned the respect of his peers,
earned the respect of the entire bar in western Pennsylvania,
and I know that, at least from the correspondence that we have
received, he is someone who is universally supported for this
position. So it is an honor for me to be here to put his name
forward and to introduce him.
I assume, Senator Specter, even though I am sorry I missed
your introduction, you usually go through all of the academic
record, so I will not go through that again.
But Tom and Lori are great citizens. Lori's parents, who I
know are here, and the Zappala family, which is a great western
Pennsylvania family, is here also. They represent, really, the
best that western Pennsylvania has to offer. So, it is a
pleasure to be here to recommend him to the committee.
Chairman Specter. Well, thank you very much, Senator
Santorum, for those words of support and for all you have done
in the nominating process. You and I have a Commission which
screens for the district court, and you and I have had a voice
in the submission of Judge Hardiman's name to the President,
and the President has agreed with us on this occasion, which is
a great tribute to Judge Hardiman. Thank you very much.
While you are standing, Judge Hardiman, if you would raise
your right hand to take the oath before the committee.
[Whereupon, Judge Hardiman was duly sworn.]
Chairman Specter. You may be seated. Let us begin by having
you introduce your family formally for the record.
STATEMENT OF THOMAS MICHAEL HARDIMAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE THIRD CIRCUIT
Judge Hardiman. Thank you, Senator Specter. With me today
is my wife, Lori, our children, Kate Josephine, Matthew Robert,
Ann Marissa Frances.
I am also privileged to have my parents, Robert and Judith
Hardiman, and also my in-laws, Richard and Nancy Zappala, and
my sister-in-law, Jordan, who is a resident of Washington.
In addition, friends from Bethesda, Maryland, Dr. Frank and
Carol Bergin, originally from my hometown of Waltham,
Massachusetts, and my dear friend from Skadden, Arps, Alan
Swirski and his wife are with us today.
[The biographical information of Judge Hardiman follows:]
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Chairman Specter. Judge Hardiman, I begin by repeating a
statement that I first heard 24 years ago from Senator
Thurmond. The occasion was the hearing for Judge Manisman, who
was up for district court, and in the Middle District, Judge
Caldwell.
Senator Thurmond asked them in his inimitable Southern
drawl, ``If you are confirmed, do you promise to be
cuhrteous?'' Translated into English, that is, ``If you are
confirmed, do you promise to be courteous?''
Not surprisingly, Judge Manisman said yes, and Judge
Caldwell said yes. Then Senator Thurmond said, ``Because the
more pohwer a person has, the more cuhrteous a person should
be.'' ``The more power a person has, the more courteous a
person should be.''
While I had initially thought that it was a question which
had no significance because the nominee was bound to say that
he/she promised to be courteous, but I have since come to think
that it is a very profound question and a very significant
answer.
Many nominees over the years--and when Senator Thurmond is
not here--and he is not here. Senator Thurmond was 100 on
December 2, 2002, and he served until January 3 of 2003, and
was over 100 years old when he left the U.S. Senate and passed
about 6 months thereafter. But whenever he is not here, I bring
Thurmond's views to mind.
Many nominees have told me years after the fact that they
thought about what Senator Thurmond had said. Because when you
put on a black robe, especially a Federal black robe and you
have life tenure, sometimes even a judge gets up on the wrong
side of the bed and sometimes might not be as considerate or as
thoughtful, and might find people not as well prepared as he or
she thought, or not as direct. But that is a very wise thing to
recall, so I take a few moments here today to repeat it to you.
Judge Hardiman, the basic question which is addressed to
all nominees is a commitment to interpret the law and not to
make the law. Tell me what you think about that general
proposition.
Judge Hardiman. Thank you for that question, Senator. It is
very important to tell you that, as a district judge, I view my
role quite differently than the role of legislators, whether
they be Representatives or Senators.
In the legislative branch, you make the laws. They are
placed into the U.S. Code, as you know, and our role as judges
is to interpret the law, not to inject our own policy
preferences. So, our task is to give an honest construction to
what laws are passed by the legislature.
Chairman Specter. Can you illustrate the application of
this principle in any cases which have come before you on the
district court?
Judge Hardiman. Well, yes, I can, Senator. In some cases it
is a rather straightforward application. It may be something as
basic as applying Section 1988 in the Civil Rights arena when a
prevailing party in a Section 1983 action, after the case it
over and they have prevailed, then it is the judge's duty to
award attorneys' fees to that prevailing plaintiff, pursuant to
Section 1988 of the Act.
In other instances, the statute may not be as direct or
clear, but it is our role to read the statute as passed by
Congress, signed into law by the President, and to interpret
that law honestly and fairly.
Chairman Specter. Do you find any problem, Judge Hardiman,
in applying a principle of law, even though you may have very
profound differences with the rule that has been articulated by
the higher courts?
Judge Hardiman. Thank you, Senator, for asking about that.
Not at all. I have no hesitation in applying a law, regardless
of what I might think about it. I think any good judge
recognizes his or her place in our constitutional government,
and that place is not to upset the will of the people as
expressed through their elected representatives. So, I do not
have any compunction about following the law as written by
Congress.
Chairman Specter. Can you think of any issue which has come
before you where you had an intuitive reaction that was adverse
to the ruling that you felt you were required to make?
Judge Hardiman. I cannot say that I have, Senator. Quite
honestly, we get one new civil case every business day of the
year. We spend so much of our time reading the law and
interpreting the law, that that does not leave much time for
consideration of whether the law is prudent or might be written
in a better way.
I spend all of my time, with the assistance of my law
clerks, trying to read the law and interpret it and apply it to
the facts presented in any particular case. So I cannot say
that I have spent much time at all considering the propriety of
the laws that I have had occasion to interpret.
Chairman Specter. Judge Hardiman, you have ethical issues
which come before you. Did your service on the Disciplinary
Board of the Pennsylvania Supreme Court give you any special
insights into those issues?
Judge Hardiman. Thank you for asking about my service on
the Disciplinary Board, Senator. I viewed that as a very
valuable exercise. We adjudicated cases of lawyers who had done
terrible things, or at least had been accused of doing terrible
things, by their clients.
It was a real eye-opener because, in a very real sense,
those of us who worked on the Disciplinary Board Hearing
Committee saw the under-belly of the legal system that was very
difficult. It has helped me keep in mind all times that not all
lawyers always work in the best interests of their clients. It
is a very delicate situation.
If a lawyer does not appear to the judge to be working in
the best interest of the clients, I think the way to deal with
that is to have hearings on the record and hope that the
parties might appear.
Sometimes from the bench, or sometimes in a conference on
the record, the court is in a position to give guidance that
not only is for the ears of the attorney, but may also be for
the ears of the litigant, him or herself.
Chairman Specter. With respect to case management, I have
seen matters which are dragged out in a very protracted way in
a court where the judge who is assigned to the case simply lets
events occur, with voluminous discovery, without focusing on
the issue, without narrowing what has to be done, at enormous
cost to both parties.
Now, if there is a contested issue of fact, or if
depositions are necessary, or if discovery has to take place,
that is what the judge should permit. But I believe it is
really an oversight in many, many cases of the judges not
spending the time on case management to see to it that the
matter is focused and resolved at an early stage, either one
way or another.
Have you had experience on the application of case
management principles to economize on the time of the
litigants, the time of the court, and the expense of the
litigants in maneuvering and pushing through a case?
Judge Hardiman. Yes, I have, Senator. Thank you for the
opportunity to talk about case management. It is very, very
important, in my view, that judges are proactive in managing
their caseloads. I agree with you wholeheartedly that the
litigants should not have to waste time and money to have their
day in court. We try very hard in our district, and I
personally, along with my colleagues, try to get cases to trial
within 12 months.
Certainly you have to be considerate of the particular
case. Some complex litigation in the intellectual property
field or other cases involving voluminous documents might take
longer. I am certainly willing, and have granted extensions of
time when good cause is shown, but I think it is important to
move the case along.
We have also instituted a pilot alternative dispute
resolution program in our court specifically to deal with that
issue. I don't know if you want me to go into that program, but
that's an important initiative that Chief Judge Ambrose has
started, and I am co-chairing that initiative, to address the
concern that you have raised.
Chairman Specter. Are you sure you want to be an appellate
judge? On the trial court, you have lots of action, see lots of
lawyers, see lots of witnesses, see lots of people.
On the appellate court, you will be cloistered. You will
have all those lengthy, scintillating, exciting briefs to read
for not only decisionmaking, but entertainment.
Are you not a little young to be an appellate judge? I
asked you this question when you wanted to be a district court
judge, if you were not young to be a district court judge so I
know you would have been disappointed not to have this
question.
Judge Hardiman. Thank you for that question, Senator.
First, let me state that I thoroughly enjoy my work on the
district court. I enjoy my colleagues. Chief Judge Ambrose has
been an extraordinary colleague and leader on our court. The
other colleagues have been wonderful. So I am grateful for the
opportunity that this Committee gave me, and the full Senate
gave me, to serve as a district judge.
I do, however, wish to become a circuit judge. I think it
would be an extraordinary opportunity to not only have
colleagues and the collegiality that I share on the district
court, but deciding cases with colleagues is an enterprise that
appeals to me tremendously.
I have had an opportunity to meet many of the judges on the
Court of Appeals. They are extraordinarily bright, talented
people. I would learn a great deal from them and I would hope
to contribute a great deal to the decisions of that court as a
colleague that they would like to work with. So, that would be
my goal.
You served on the Governors' Judicial Advisory Commission,
in which capacity you evaluated and recommended potential
judicial candidates to the Governor. Did that not whet your
appetite to be an appointor, like the Governor, or perhaps an
appointor, like the President, or perhaps recommender like
Senator Santorum or Arlen Specter?
Judge Hardiman. Senator, thank you for asking about that.
Chairman Specter. Stated differently, are you going to stay
on the bench or are you going to run for political office,
Judge Hardiman?
Judge Hardiman. Well, with all due respect, Senator, I hold
you and your colleagues in the legislative branch and the
executive branch in the highest esteem. I recognize the--
Chairman Specter. No plan to run against me in 2008?
[Laughter.]
How about for Governor in 2010? Or how about for President
in 2008, something more immediate?
Judge Hardiman. I feel that I have found my home in the
judiciary, with all candor, Senator.
Chairman Specter. You have been actively engaged in the Big
Brothers Big Sisters program for many years. What would you say
to people to try to encourage more to join those organizations,
to try to mentor the so-called at-risk young people?
Judge Hardiman. I would tell them, Senator, to give it a
try. I think the hardest challenge we face in recruiting Bigs
is to get them to take the first step, to come into the agency
and to fill out the application.
Once the prospective Bigs meet the Littles, then there is
tremendous desire on the part of the Bigs to serve. In my
personal case, I had worked in the corporate capacity on the
Board of Directors and had served as president, but I wanted to
get involved with a Little.
But as a husband and a father of three children, I wasn't
convinced that I had the time to do that. So we started a
school-based mentoring program, and that is where I met my
little brother, Saddiq. It was a 1-hour commitment a week, and
I knew I could give 1 hour a week to a fourth grader. What I
did not think I could do, was give more of my time.
As it turned out, Saddiq and I became such great friends
that we converted our match out of the school-based program and
now we are part of the traditional program so we can spend
entire days together, or entire afternoons together. So, my
hope would be that other busy people might take that first step
and they would see what kind of experience they might have.
Chairman Specter. Is it possible for you to maintain any of
those activities while serving on the Federal bench?
Judge Hardiman. Yes, certainly it is, Senator. My
relationship with Saddiq has continued to grow. He is now a
freshman.
Chairman Specter. So you are still working with Big
Brothers Big Sisters?
Judge Hardiman. Yes. I cannot raise money. I used to do a
lot of fundraising for that organization. I am not able to
raise money.
Chairman Specter. I am sure you are sorry not to be able to
do that, are you not?
[Laughter.]
Judge Hardiman. I have redirected my efforts in ways more
important than the financial, I would like to think, Senator.
Chairman Specter. When I talked to you about running for
office, Judge Manisman was on the State Supreme Court and ran
for the U.S. Senate in 1964. That was the last time that has
been done. He lost in the primary to Genevieve Blad, and he was
able to stay on the bench. You could not do that as a Federal
judge.
Judge Hardiman. No.
Chairman Specter. I do not even know that you could do that
as a State Supreme Court justice any more.
When Chief Justice Roberts was up for his confirmation, I
asked him how he thought, at the age of 50, he would be able to
handle Justice Stevens, who was 85, 35 years his senior, or
Justice Scalia, who was 68 and having some very strongly held
views.
He responded by saying that he had appeared 39 times before
the Supreme Court of the United States, and when he appeared in
court to present his case it was a ``dialog among equals''.
So I asked Ken Starr, who had been Solicitor General, what
he thought of Roberts' answer about a ``dialog among equals''.
He said he thought it was exactly wrong. I asked Ken Olson what
he thought about the dialog among equals. He agreed with Ken
Starr. Olson had been Solicitor General as well.
I appeared three times before the Supreme Court. At the
podium with the justices, it did not seem to me it was a dialog
among equals either. But I reflect upon how Judge Edward Becker
handled his courtroom, really one of the greatest jurists of
all time, a recipient of the Davit Award; among some 900
Federal judges, he was the Outstanding Federal Judge.
Judge Becker conducted his courtroom almost as a dialog
among equals. He had a really excellent way of dealing with his
clerks when he would say that in their association he wanted no
deference. No defence. He wanted the clerks to tell him exactly
what they thought. That is the way he thought he would get the
best work done.
An argument to encourage that kind of total openness has
great merit, so I am not going to ask you whether you agree
with Chief Justice Roberts. He may know whatever your answer
would be and he may have some occasion to review some of your
work some day, but I would commend to you his approach to oral
argument, his approach to involvement of the advocates and
lawyers who appear before him, as did Judge Becker.
Judge Becker's stopwatch did not work. When he was in the
middle of an argument, he went on and on if he thought he was
moving in a direction of greater understanding of the case.
Chief Justice Rehnquist was the opposite. When I argued the
Navy Yard case in 1994, the first sitting Senator to do that
since the 1920s, he cut me off in mid-sentence. I was later
told that he was rather lenient because he had been looking for
an opportunity to interrupt a lawyer in the middle of the word
``if''.
When he presided on the impeachment proceeding of President
Clinton--and I apologize not only to you, but all the judges in
the impeachment proceedings--he did not cut me off. We had 15
minutes for closing arguments. It was curious. It was a session
not open to the public. All the rest of it was televised.
When we got to the important part where the Senators spoke
about how they were going to decide the matter, there was a
closed session. But I give you that little insight into Judge
Becker, who I think would be a good model.
Without objection, I am going to introduce the statement of
Senator Leahy, our distinguished Ranking Member, and in
conclusion ask if you have anything you would like to add.
Judge Hardiman. Only to thank you, Senators, for scheduling
this hearing. I want to thank the President for the nomination,
and thank you for those words of advice regarding Judge Becker.
I, like Judge Becker, have scheduled many arguments on
motions for 15 minutes a side, and an hour and 10 minutes later
we are still hearing argument. So, I take to heart your advice
in that regard. The late, great Judge Becker is certainly a
role model for all of us coming behind him.
Chairman Specter. Well, you are being considered for a
court of the highest caliber, some great judges. I think Judge
Biggs was a judge on the Third Circuit even younger than you. I
think he was 37. Judge Hasty, the first African-American judge
to serve on the Federal Court of Appeals. Judge Maris. I do not
mean to leave anybody out, but there are really some
extraordinary jurists.
That concludes our hearing.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
[Questions and answers and a submission for the record
follow.]
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