[Senate Hearing 110-131]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-131
 
  CONFIRMATION HEARING ON THE NOMINATIONS OF LESLIE SOUTHWICK, TO BE 
  CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; JANET T. NEFF, TO BE DISTRICT 
  JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN; AND LIAM O'GRADY, TO BE 
          DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 10, 2007

                               __________

                          Serial No. J-110-52

                               __________

         Printed for the use of the Committee on the Judiciary



                                 ______

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   174
Whitehouse, Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................     1

                               PRESENTERS

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi 
  presenting Leslie Southwick, Nominee to be Circuit Judge for 
  the Fifth Circuit..............................................     3
Levin, Hon. Carl, a U.S. Senator from the State of Michigan 
  presenting Janet T. Neff, Nominee to be District Judge for the 
  Western District of Michigan...................................     7
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi 
  presenting Leslie Southwick, Nominee to be Circuit Judge for 
  the Fifth Circuit..............................................     4
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan 
  presenting Janet T. Neff, Nominee to be District Judge for the 
  Western District of Michigan...................................     8
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting Liam O'Grady, Nominee to be a U.S. District Judge 
  for the Eastern District of Virginia...........................     5

                       STATEMENTS OF THE NOMINEES

Southwick, Leslie, Nominee to be Circuit Judge for the Fifth 
  Circuit........................................................     9
    Questionnaire................................................    10
Neff, Janet T., Nominee to be District Judge for the Western 
  District of Michigan...........................................    62
    Questionnaire................................................    63
O'Grady, Liam, Nominee to be District Judge for the Eastern 
  District of Virginia...........................................   100
    Questionnaire................................................   101

                         QUESTIONS AND ANSWERS

Responses of Leslie H. Southwick to questions submitted by 
  Senators Leahy, Kennedy, Durbin, Whitehouse and Feingold.......   138

                       SUBMISSIONS FOR THE RECORD

Lambda Legal, Kevin M. Cathcart, Executive Director, New York, 
  New York, letter...............................................   170
Leadership Conference on Civil Rights, Wade Henderson, President 
  & CEO, and Nancy Zirkin, Vice President/Director of Public 
  Policy, Washington, D.C., letter...............................   172
Levin, Hon. Carl, a U.S. Senator from the State of Michigan, 
  statement......................................................   177
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, 
  statement......................................................   179
National Association for the Advancement of Colored People, 
  Mississippi State Conference, Derrick Johnson, President, 
  Jackson, Mississippi, letter...................................   182
People for the American Way and the Human Rights Campaign, Joe 
  Solmonese, President, Human Rights Campaign and Ralph G. Neas, 
  President, People for the American Way, Washington, D.C., joint 
  letter.........................................................   184
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  statement......................................................   190
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  statement......................................................   193


  NOMINATIONS OF LESLIE SOUTHWICK, TO BE CIRCUIT JUDGE FOR THE FIFTH 
 CIRCUIT; JANET T. NEFF, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT 
  OF MICHIGAN; AND LIAM O'GRADY, TO BE DISTRICT JUDGE FOR THE EASTERN 
                          DISTRICT OF VIRGINIA

                              ----------                              


                         THURSDAY, MAY 10, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, Pursuant to notice, at 10:16 a.m., in 
room 226, Dirksen Senate Office Building, Hon. Sheldon 
Whitehouse, presiding.
    Present: Senators Kennedy, Feingold, Durbin, Hatch, 
Brownback, and Coburn.

 OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 
                 FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. The Committee will come to order.
    We have, today, three nominees to the Federal bench who we 
will hear from: Judge Leslie Southwick has been nominated to 
the U.S. Court of Appeals for the Fifth Circuit; Judge Janet 
Theresa Neff has been nominated to the U.S. District Court for 
the Western District of Michigan, and Judge Liam O'Grady has 
been nominated to the U.S. District Court for the Eastern 
District of Virginia.
    The hearing will proceed as follows: I will deliver brief 
opening remarks, then turn to Senator Hatch, who is the Ranking 
Member for this hearing, to deliver brief opening remarks. Then 
the nominees will be introduced by their home State Senators in 
the order of seniority. The first two, of course, are Senators 
Cochran and Senator Warner, both of whom are here.
    I would like to welcome each of the nominees, their 
families and friends, to the U.S. Senate; of course, welcome, 
Senator Cochran and Senator Warner.
    As my colleagues know, voting to confirm an individual to 
the Federal bench is one of the most important and lasting 
decisions that a Senator can make. Not only do Federal judges 
make daily decisions about life, liberty and property, not only 
do they serve as an independent check on the executive and 
legislative branches, but they do so with a lifetime 
appointment in our Federal system. In this way, their work is 
meant to be independent of the ephemeral political disputes, 
what Alexander Hamilton called ``the ill humors of the 
political day.''
    Our system of government has had what one observer called 
``the advantage of relegating questions not only intricate and 
delicate, but peculiarly liable to excite political passions to 
the cool, dry atmosphere of judicial determination.'' 
Maintaining this ``cool, dry atmosphere'' is an enormous 
responsibility for judges.
    This hearing is an opportunity, the first and last 
opportunity, really, for Senators and the American people to 
consider whether the nominees are deserving of that 
responsibility. It is an opportunity to explore their 
qualifications, their judicial philosophy, their judicial 
temperament, and their commitment to equal justice.
    On the subject of opportunities, I would like to take a 
moment to express my appreciation to our Chairman, Pat Leahy, 
for giving me the opportunity to chair this important hearing.
    I would also like to take a moment and commend his 
leadership in confirming judicial nominations during this 
Congress. So far this year, the Senate has confirmed 17 
judicial nominations. To put that number in context, it equals 
the number of judges confirmed during the entire 1996 session 
of Congress, another time of divided government. As the 
President sends nominees to the Senate for confirmation, I am 
sure that we will consider them as carefully and as 
expeditiously as possible.
    To conclude, I look forward to the opening statements of my 
colleagues in the Senate and of the nominees, and the answers 
to our questions from each of the nominees.
    I now turn to Ranking Member Hatch.

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

    Senator Hatch. Well, thank you, Senator Whitehouse. I 
appreciate that.
    I want to welcome all of our nominees here today, and of 
course the Senators who are appearing on their behalf. I will 
be very short. I want to congratulate each of you for your 
nomination to the Federal bench.
    I also want to thank Chairman Leahy for scheduling this 
hearing. Some far-left groups have criticized Chairman Leahy 
for moving too fast, particularly on Judge Southwick's 
nomination.
    Along with Judge Neff, he appeared before this Committee 
nearly 8 months ago when he was nominated to the District 
Court. The same record is before us now for his nomination to 
the Fifth Circuit.
    As I understand it, Judge Southwick has provided the 
Committee with nearly 10,000 pages of documents, including both 
published and unpublished opinions. We have had his detailed 
answers to the Committee questionnaire for nearly 3 months, and 
those are essentially the same as what he provided almost a 
year ago. So I think the criticism of Chairman Leahy's 
scheduling of this hearing is off-base, and I want to thank 
Chairman Leahy for moving it along.
    The position to which Judge Southwick has been nominated is 
a judicial emergency. It needs to be filled. He is an excellent 
nominee who has the highest rating from the American Bar 
Association, unanimously.
    I certainly hope that we can proceed with dispatch on all 
three of these judges, if we can, today. Thanks, Senator 
Whitehouse.
    Senator Whitehouse. Thank you, Senator.
    If I may, I will now call on Senator Cochran for his 
introduction of Judge Southwick.

 PRESENTATION OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE 
 FOR THE FIFTH DISTRICT, BY HON. THAD COCHRAN, A U.S. SENATOR 
                 FROM THE STATE OF MISSISSIPPI

    Senator Cochran. Mr. Chairman, thank you very much for 
inviting me to be present today to introduce Judge Leslie 
Southwick to the committee. I am very pleased to have this 
opportunity to introduce my friend and recommend him for 
service in the Federal judiciary.
    In my opinion, he should be confirmed to serve on the U.S. 
Court of Appeals for the Fifth Circuit. I have known Leslie for 
about 30 years. In my opinion, he is exceptionally well-
qualified for this responsibility. It is a very important 
position in our Federal judiciary, but he has the background, 
the proven intellectual competence, and a sense of fairness 
that well equip him for service on this important court.
    He graduated cum laude from Rice University in 1972, and 
then went to the University of Texas School of Law, where he 
graduated 3 years later. After law school he clerked for the 
Chief Judge of the Texas Court of Criminal Appeals. He then 
came to Jackson, Mississippi, where I was practicing law, in 
1977.
    He joined the firm of Bernini, Grantham, Grauer & Hughes, a 
very well-respected and outstanding law firm in our State, one 
of our most prestigious firms, as a matter of fact. He became 
widely respected immediately as someone who had good judgment, 
who worked hard, who had good common sense. He was a very 
capable lawyer.
    He has since served as a Deputy Assistant Attorney General 
in the Civil Division of the U.S. Department of Justice. He 
supervised about 125 lawyers of the Federal Programs branch. He 
also supervised the Office of Consumer Litigation.
    In November 1994, Leslie Southwick was elected to serve on 
the newly created Mississippi Court of Appeals. From August of 
2004 to January of 2006, he served as the Staff Judge Advocate 
for the 155th Brigade Combat Team in Iraq.
    I recall communicating with him during his time when that 
unit was deployed as part of our military force in Iraq. They 
were mobilized in support of Operation Iraqi Freedom. He was 
out in the desert with the troops and providing leadership and 
advice on legal matters to the brigade.
    He is currently serving as a Professor of Law at 
Mississippi College School of Law. He teaches 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 and 
publications for the Mississippi Law Journal, the Mississippi 
College Law Review, and others. He is the author of a book, 
Presidential Also-Rans and Running Mates, which won an American 
Library Association ``Best Reference Work of the Year'' award 
in 1985.
    As you can see from his accomplishments and his experience, 
Leslie Southwick has had a distinguished career as a public 
servant and as a private lawyer in one of the best law firms in 
our State.
    He is respected for his honesty and integrity, his pleasing 
personality, and I am confident he will reflect great credit on 
the Federal judiciary if he is confirmed by the Senate to serve 
on the Fifth Circuit Court of Appeals.
    Thank you.
    Senator Whitehouse. Thank you, Senator Cochran.
    The next Senator I will call then, going by order of 
seniority, is Senator Warner of Virginia, to speak on behalf of 
Magistrate Judge O'Grady.
    Senator Warner. Thank you, Mr. Chairman. Might I suggest 
that my distinguished Leader, Mr. Lott, please go ahead.
    Senator Whitehouse. Senator Lott, please proceed.

 PRESENTATION OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE FIFTH DISTRICT, BY HON. TRENT LOTT, A U.S. SENATOR FROM 
                    THE STATE OF MISSISSIPPI

    Senator Lott. Well, let me just say to my two more senior 
colleagues, I appreciate this. But since we are on Judge 
Southwick, maybe it would make some good sense to have us both 
make our comments and then yield to our other colleagues. Thank 
you, Senator Warner and Senator Levin.
    Thank you very much, Senator Whitehouse, for being here and 
chairing this subcommittee. Thank you, Senator Hatch, for doing 
your diligent duty, as always. I do want to extend my 
appreciation to Chairman Leahy for going forward with this 
hearing and arranging for Senator Whitehouse to chair it, and 
to Senator Reid for his work with Senator McConnell to see that 
we move forward in a fair process with regard to these 
nominees.
    It is not an easy task. It is an important task. I think, 
obviously, quality is every bit as important--maybe more so--
than quantity.
    I will not repeat what my senior colleague has said in his 
comments here this morning in support of Judge Leslie 
Southwick. He obviously has an outstanding record. I was just 
writing down here what an outstanding life he has had. He is 
well-educated. He was an outstanding student, graduating cum 
laude from Rice University, an outstanding university in Texas, 
the Texas Law School.
    He clerked in two different, very important courts, for the 
presiding judge of the Texas Court of Criminal Appeals, and he 
moved to Mississippi and clerked for one of the most 
outstanding people I have ever known in my life, let alone the 
fact that he was the chief judge of the Fifth Circuit Court of 
Appeals, Charles Clark from Mississippi. So he has been an 
outstanding student, he has had outstanding experience as a 
clerk for very fine judges in critical positions.
    He has a distinguished military career, having taken leave 
from the Court of Appeals to go to Iraq, as Senator Cochran 
just pointed out, as a Judge Advocate for the 155th infantry 
unit out of Mississippi.
    He is an author and has been recognized for that. He is a 
law school professor. He has been affiliated with one of the 
very best law firms in the State. But I think, most importantly 
of all, he himself has served as a judge, an appellate court 
judge, in Mississippi, where he has participated in deciding 
over 7,000 cases and he authored the most opinions in 8 of his 
10 years on the appellate court.
    He received the ``Judicial Excellence'' award from the 
Mississippi State Bar Association. He has been broadly and 
widely acclaimed as an excellent choice to serve on the Federal 
judiciary, including by the local newspaper, the paper in our 
State's capital, the Clarion Legend, a Gannett newspaper, not 
known for just endorsing any Republican nominations for 
anything.
    But they had this to say about Judge Southwick: ``...is an 
outstanding nomination for the bench, with no hint of any 
reason for disqualification. The U.S. Senate should confirm the 
nomination.''
    He has one other distinction here. He probably is getting 
close to having a record for how long he has been pending 
before this Senate for a Federal judicial appointment, first 
the Southern District, but then was moved up and recommended 
for the Fifth Circuit Court of Appeals.
    I, like Senator Cochran, have known him for a long time 
personally. I have nothing but the highest admiration. He has 
everything you are looking for here in terms of education, 
history of public service, reputation for fairness, and stellar 
judicial temperament. I urge the Subcommittee to expeditiously 
move forward on this nomination of Judge Leslie Southwick.
    Thank you very much, Mr. Chairman, and my colleagues.
    Senator Whitehouse. Thank you, Senator Lott.
    We will now return to the regular order of seniority. I 
call on Senator Warner to speak on behalf of Magistrate Judge 
O'Grady.

PRESENTATION OF LIAM O'GRADY, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE EASTERN DISTRICT OF VIRGINIA, BY HON. JOHN WARNER, A U.S. 
               SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. Thank you, Mr. Chairman. May I say to you 
that we have had some connection and knowledge with each other 
for many, many years, and I am very impressed with your ability 
to take strong reigns and grasp the responsibilities of 
chairing a Committee of the U.S. Senate in such a short time 
after your election to this august body.
    Senator Whitehouse. Thank you, sir.
    Senator Warner. I wish you well.
    Senator Whitehouse. Thank you, sir.
    Senator Warner. And I thank the Chairman who sent you, 
Patrick Leahy, whose friendship and work I have shared in my 29 
years with my colleague--and indeed mentor--who is not 
listening to me, Senator Hatch. He fostered my career from the 
very beginning in the U.S. Senate. Thank you, both of you, for 
coming here today and having this hearing.
    Mr. Chairman, Senator Hatch, other members of the 
committee, I would like to read from the opening paragraph of a 
statement and endorsement by my colleague, Jim Webb, who is 
unable to be here this morning.
    He states as follows: ``Today it is my distinct pleasure to 
offer my support, along with my colleague Senator Warner, for 
the nomination of Magistrate Judge O'Grady to be a judge on the 
U.S. District Court for the Eastern District of Virginia.''
    I ask unanimous consent that his statement follow my 
statement in the record of today's proceedings.
    Senator Whitehouse. Without objection, that will be done.
    [The prepared statement of Senator Webb appears as a 
submission for the record.]
    Senator Warner. And at this time, Mr. Chairman, I would ask 
the Chair to invite Magistrate O'Grady to introduce his wife 
and children.
    Judge O'Grady. Thank you, Senator. This is my wife, Grace 
McPherson O'Grady, who is no stranger to these proceedings. She 
worked for Senator Hecklin after college, and then Senator Nunn 
on the Permanent Subcommittee on Investigations after getting a 
graduate degree. With us also are my two youngest children: 
Wynn, who is nine, and Tatum, who is five. Thank you, Senator.
    Senator Warner. Well, we welcome Wynn and Tatum to the 
proceedings. Mrs. O'Grady, it is good to have you back under 
such happy circumstances.
    Thank you, Mr. Chairman. I would ask unanimous consent that 
my full statement be made a part of the record.
    Senator Whitehouse. Without objection.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Senator Warner. I should like to draw to the attention of 
the members of the Committee certain aspects of this.
    Mr. Chairman, there is an old saying in the Senate, some 
Senators are proud to point that they came up through the 
chairs to become a U.S. Senator, meaning that they served in 
the State legislatures of their respective States, they often 
came from there either to the Governorship or, indeed, the 
House of Representatives, and finally to the U.S. Senate.
    Well, this outstanding nominee by our President has really 
come up through the chairs of the legal profession. Judge 
O'Grady, who has been nominated to fill this seat, has been a 
member of the Virginia Bar since 1978.
    He has worked as a sole practitioner, as an Assistant 
Commonwealth Attorney, as an Assistant U.S. Attorney, as a 
partner in an international law firm, and for the last 4 years 
he's worked with the Eastern District of Virginia as a 
magistrate judge.
    In his career, he has had a wide array of experience. As a 
sole practitioner, he worked as a court-appointed criminal 
defense lawyer. As an Assistant Commonwealth Attorney, he tried 
upwards of 100 jury trials. As an Assistant U.S. Attorney, he 
focused on narcotics and organized crime cases.
    As a partner in the well-known law firm that he was 
associated with, he worked extensively on patent and trademark 
cases, and for the last 4 years as a magistrate judge, of 
course, he had a full spectrum of so many of the 
responsibilities on that court.
    Equally impressive, though, despite the rigors of his 
career, he has always found time to give back to the community. 
He has helped teach law at both George Washington University 
here in the Nation's capital, and George Mason in Northern 
Virginia. While at the firm, he set up a pro bono legal clinic 
and took court-appointed cases involving those in need. Most 
recently, he has been a dedicated volunteer youth soccer and 
youth hockey coach.
    Together with his family, I think they are exemplary 
persons for continuing in public service. He has the skills and 
qualifications, in my judgment, to become a U.S. District Court 
judge. I do hope that this Committee will see fit to confirm 
him.
    I thank the Chair and the Ranking Member.
    Senator Whitehouse. Thank you, Senator Warner.
    We will now proceed to hear from Senator Levin, who is here 
to speak on behalf of Judge Janet Theresa Neff.

PRESENTATION OF JANET T. NEFF, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE WESTERN DISTRICT OF MICHIGAN, BY HON. CARL LEVIN, A U.S. 
               SENATOR FROM THE STATE OF MICHIGAN

    Senator Levin. Mr. Chairman, forgive me for that pause. 
Thank you so much, Chairman Whitehouse, members of the 
committee, for holding this hearing today on Janet Neff.
    I am here with Senator Stabenow and am pleased to support 
all three Michigan nominees that are pending before this 
Committee for the Western District of Michigan: Robert Yonker, 
Paul Maloney, and Janet Neff.
    They have been nominated by the President to the Western 
District. We worked with the White House on these nominations. 
They received a hearing last year. They were unanimously 
reported out of the Committee last year.
    Unfortunately, the nominations were held up at the last 
session of the last Congress, so they were not confirmed. I 
hope very, very fervently that the three nominees will be 
approved by this Committee and that they will be promptly 
confirmed by the Senate.
    A hearing on one of the nominees, Janet Neff, is being held 
today. I want to welcome her and her family to the hearing.
    She graduated with honors from the University of Pittsburgh 
in 1967, then from Wayne State University Law School in 1970. 
She has had a distinguished legal career. After law school, 
Judge Neff served as an estate and gift tax examiner for the 
Internal Revenue Service, and then a research attorney for the 
Michigan Court of Appeals before becoming an Assistant City 
Attorney for the city of Grand Rapids.
    Judge Neff has also worked in private practice. She served 
as a Commissioner for the Michigan Supreme Court, and then as 
an Assistant U.S. Attorney. Judge Neff currently serves on the 
Michigan Court of Appeals, and she has been granted numerous 
awards and honors, including ``Outstanding Member for 2006'' of 
the Women Lawyer's Association of Michigan.
    Her hallmarks on the Court of Appeals in Michigan have been 
integrity, decency and hard work. We are fortunate to have 
Judge Neff devoted to public service. I hope we can all work 
together to move all three of these Western District Court 
nominees promptly through the Senate.
    I will keep this statement briefer than perhaps I would 
ordinarily do because of the lengthier statement which I made 
when her first hearing occurred. But I just want to assure this 
Committee of her qualifications, both legally and of character, 
her objectivity, her fairness, her open-mindedness on the 
bench.
    She has strong support in her community, both the legal 
community and the broader community. She is extraordinarily 
well-qualified to be a District Court judge, and I commend her 
highly to this committee.
    Senator Whitehouse. Thank you, Senator Levin.
    Senator Stabenow, would you like to add your statement now?
    Senator Stabenow. I would.
    Senator Whitehouse. Please proceed.

PRESENTATION OF JANET T. NEFF, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE WESTERN DISTRICT OF MICHIGAN, BY HON. DEBBIE STABENOW, A 
            U.S. SENATOR FROM THE STATE OF MICHIGAN

    Senator Stabenow. Thank you so much, Mr. Chairman, for 
holding this hearing, and distinguished members of the 
committee.
    This is a wonderful opportunity for us to once again speak 
of strong support for Judge Janet Neff, as well as, as Senator 
Levin said, for the other two nominees for the Western 
District. All three of the nominees are supported by both of 
us, and we are very pleased that they were reported unanimously 
last year from the committee.
    This is, in fact, as you know, the second hearing for Judge 
Neff. I wonder if I might as well, seeing Judge Neff and her 
family here, just take a moment and give her the opportunity to 
introduce her family, who I know she is very proud of as well.
    Senator Whitehouse. Please. We would be delighted for that 
to happen.
    Judge Neff. Thank you, Senator. This is my husband of 35 
years, David Neff, and our daughter, Genevieve Dorment, who has 
just finished her second year of law school at Fordham 
University in New York City.
    Senator Whitehouse. Well, congratulations, and welcome to 
the Committee on this happy occasion.
    Senator Stabenow. In addition to all of the qualifications 
that Senator Levin has spoken about and I have been pleased to 
join in speaking about at the first hearing, Mr. Chairman, I 
want to stress today that it is very important that the 
Committee move quickly to confirm Judge Neff, as well as the 
other two nominees. Currently, the Western District has only 
one full-time judge hearing cases and the Judicial Conference 
has declared it a judicial emergency.
    Even when the bench is full, this district represents 
logistical challenges because it covers communities all over 
Michigan, from the upper peninsula, if you are familiar with 
Michigan, all the way down to Benton Harbor and St. Joseph.
    So, it is a very large area and it is extremely challenging 
right now, which is the reason we have been working hard with 
the White House, together, to get these vacancies filled.
    However, I am very pleased that her confirmation process is 
continuing and I hope that she will be confirmed before the 
Memorial Day recess, again, along with the other two pending 
nominations for the U.S. District Court for the Western 
District of Michigan.
    These nominees all bring very distinguished legal careers 
to the Federal bench. Judge Neff has served as a judge on the 
Court of Appeals for the Third District of Michigan for almost 
17 years. I cannot stress enough, Mr. Chairman, how much she is 
respected, not only for her legal mind, her balance and 
objectivity, but for her personal integrity.
    In addition to her distinguished career on the bench, Judge 
Neff has been an active leader in Grand Rapids, Michigan, 
including serving as the first woman president of the Grand 
Rapids Bar Association.
    So, I commend her to you and ask that the Committee move as 
quickly as possible to allow us to fill all three vacancies in 
the Western District.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Stabenow.
    I have a statement from Chairman Leahy that I will add to 
the record. He has asked me to add it to the record of this 
proceeding.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Whitehouse. If there is no further business, we 
will proceed to the nominees. Thank you, Senator Levin and 
Senator Stabenow.
    Senator Levin. Thank you.
    Senator Whitehouse. May I call Judge Leslie Southwick 
forward to be sworn, please?
    [Whereupon, the witness was duly sworn.]
    Senator Whitehouse. Please be seated.
    Judge Southwick. Thank you.
    Senator Whitehouse. Do you have a statement or opening 
remarks you would care to present to us?
    Judge Southwick. I have a very important opening statement.
    Senator Whitehouse. Please.

STATEMENT OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE FOR 
                       THE FIFTH CIRCUIT

    Judge Southwick. Which is to introduce my wife, who has 
joined me for this hearing today, Sharon Southwick. Would you 
mind standing? Sharon and I have two children. Our son, 
Phillip, who is married, his wife, Mary, living in Austin. Our 
daughter Cathy is grown as well, living in Houston. They could 
not join us today, but I think in spirit they are here as well. 
Thank you, Mr. Chairman.
    [The biographical information of Judge Southwick follows:]

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    Judge Southwick. I will ask for clarification. You are 
chairing today. Should I refer to you in that way?
    Senator Whitehouse. You know, this is my first go at it, so 
I'm not entirely sure. But let's give it a try.
    Judge Southwick. I certainly shall.
    Senator Whitehouse. Very good. Well, you come to us with 
some impressive qualifications: as the Deputy Assistant 
Attorney General of the United States, as a member of the 
Mississippi Court of Appeals, and as an individual who has been 
unanimously ranked as ``Well Qualified'' by the American Bar 
Association. So, I congratulate you on the career that has 
brought you to this point.
    If I may proceed with a few questions. In this building we 
spend quite a lot of time thinking about the political dynamics 
of the country. As I indicated in my opening statement, I'm a 
deep believer in the phrase that James Bryce used in his 
wonderful book about our country, The American Commonwealth, in 
which he pointed out that the particularly passionate fights of 
the day are, in many cases, transferred to what he described as 
the ``cool, dry atmosphere of judicial determination.'' It is a 
vital part of our country's political structure that 
determinations, particularly where passions run high, continue 
to be made in that cool, dry atmosphere.
    We are, of course, involved in many, many discussions about 
how the separation of powers principle plays itself out, 
concerns about the unitary executive and the effects, if any, 
of signing statements on laws.
    I would like to hear your views on the role of separation 
of powers in our country's political structure, the importance 
of it, the judiciary's role in it, and how you would make 
decisions as a judge on the Circuit Court of Appeals.
    Judge Southwick. Certainly. Mr. Chairman, I am interested 
in separation of powers in the need of judges to stay within 
their ``lane''--maybe that is a military term--within their 
role. The three branches of government--I am not telling 
anything new here--each are assigned a State level. I was 
assigned, and if fortunate enough to be on the Fifth Circuit, 
would be assigned, a limited role.
    I am concerned about staying within the boundaries assigned 
to me on the State Court of Appeals. I was conscious of that, 
dealt with issues dealing with the proper role of the 
legislature--Congress, here, certainly--what is their 
obligation, what is their area of responsibility, to what 
extent do their statutes control what we are doing, to what 
extent is the independent judicial function involved?
    So, I believe separation of powers if vital. It's part of 
how this country is structured, how this country's government 
has been organized. That premise applies at the State level, 
and I've tried to apply it, and certainly will be conscious of 
it if fortunate enough to serve on the Fifth Circuit.
    Senator Whitehouse. There has been some controversy about a 
decision that you did not author, but signed onto, both in the 
main opinion and the concurring opinion, S.B. v. L.W. that 
involved a woman who was gay and who was seeking custody of her 
daughter. Because that has been a matter of some controversy, I 
looked at the decision myself.
    The thing that struck me about it, was that it used a 
particular phrase. It used the phrase: ``homosexual 
lifestyle''. For those engaged in political debate, my 
experience is that that particular phrase--it's not exactly at 
the level of fighting words, but it's a defining term in the 
political combat of the debate over the rights of gay people in 
America. It is a term that is highly associated with a 
particular point of view that is not particularly favorable to 
gay rights.
    It would be, in my estimation, a little bit like, if for 
some reason the question of the Iraq conflict came up and a 
judge were deciding a matter related to it and used the phrase 
``cut-and-run'', which has become a charged political piece of 
terminology.
    Again, I know you did not write those opinions, but in the 
context of a country in which everybody is entitled to equal 
justice before the law, how do you feel about the use of a term 
like that that is charged on one side of the debate?
    A gay person coming before a judge who uses that term on a 
regular basis to describe their sexual orientation would, I 
think, reasonably conclude that the judge had pretty strong 
opinions on that subject that were adverse to that individual, 
and it seems like it is unnecessary terminology to use, not 
really judicial terminology.
    I am interested, going forward. Again, you did not write 
that opinion, but I would ask you to react to those thoughts 
because I think it is important that we all understand that you 
are a person who will give everybody a completely fair shake 
and see things right down the middle, particularly in this 
country of ours where we encourage people of all different 
persuasions to be active in our political and civic life.
    Judge Southwick. Thank you, Senator. That is an important 
question and I appreciate your pointing out several times, I 
was not the author. Obviously, I did join the opinion.
    As you discussed, that opinion dealt with child custody. 
The trial court had decided that the father, as opposed to the 
mother, was entitled to custody. Among the factors that are 
required to be considered under Mississippi controlling 
precedent is the moral--morality--moral issues that may arise 
as to both parents.
    And at that time, 2001, I believe is the date of the 
opinion, Bowers v. Hardwick was still the law of the land. I 
think it was cited, at least in the concurrence, perhaps in the 
majority opinion. Lawrence v. Texas, 4 years ago, perhaps.
    Both the concurring opinion and the majority discussed case 
law and the concurring opinion statutes that state the policy--
public policy in Mississippi at that time regarding 
homosexuality. That was relevant to the decisionmaking on 
whether the trial judge had abused his discretion in deciding 
which parent ought to get custody of that child.
    You have asked more generally, sir, about the need to treat 
all people that come before the court with respect. I'm 
paraphrasing, but I take that to be what you've asked.
    Senator Whitehouse. A fair paraphrase.
    Judge Southwick. Thank you. And I feel that's vital. 
Senator Lott was kind enough to mention an award that I 
received 3 years ago from the State Bar as the person who 
received the ``Judicial Excellence'' award that year.
    One of the reasons that was said, of course, I was a judge, 
and things are said about judges by lawyers that maybe have to 
be taken with a grain of salt but I hope they meant this, that 
among the reasons I was commended that year was for the sense 
that I was fair to all who came before me, in oral arguments, 
in the writing of my opinions.
    And that's what I tell my clerks, that's what I tell my 
staff. Whatever we do with a case, however we write it, we 
treat each person, a criminal defendant, maybe one of the least 
appealing--not trying--it depends on the defendant--but the 
least disfavored that comes before us. Treat those people with 
respect, all the participants in the case.
    So I would not have used that phrase. I did join it. I 
thought her opinion--Judge Payne--both the concurring opinion--
it was useful that she added the legislature's view on the 
issue. The majority had just talked about what courts had said 
about the issue. But in 2001, before Lawrence v. Texas, that 
was the law of Mississippi. Where it is today would have to be 
decided today.
    Senator Whitehouse. Senator Hatch?
    Senator Hatch. Well, thank you.
    Judge, is your microphone on?
    Judge Southwick. Well, if you tell me it's not, I bet 
you're right.
    Senator Hatch. No, I think it is.
    Judge Southwick. Maybe I'm not speaking loudly enough.
    Senator Hatch. I think it is. I just wanted to double 
check.
    Well, first, let me thank you for your service to our 
country and to your community. You took a military leave of 
absence from your service on the Mississippi Court of Appeals 
to serve in Iraq as a Judge Advocate for the 155th Brigade 
combat team of the Mississippi National Guard, and you 
volunteered for Habitat for Humanity, a fine organization, 
doing the Lord's work for nearly 15 years, and I want to thank 
you for that service as well.
    Now, Judge, it's my understanding, in nearly a dozen years 
on the Mississippi Court of Appeals, that you participated in 
more than 7,000 cases. Is that correct?
    Judge Southwick. That is an estimate I made, sir. I did not 
go back to the court to see exactly.
    Senator Hatch. Approximately.
    Judge Southwick. But approximately.
    Senator Hatch. And you authored upwards of approximately 
1,000 opinions.
    Judge Southwick. Total, including my separate opinions. 
Probably for the court, an average of 80 a year, 800. I was off 
the court for a year and a half, so--I can't do the math too 
well in my head, but using 10 years, about 800, 850 opinions 
for the court.
    Senator Hatch. Well, the American Bar Association, which 
does the most exhaustive examination of judicial nominees, 
their record and their temperament, looked at everything and 
unanimously concluded that you deserved the highest rating of 
``Well Qualified'', and it was unanimous.
    The ABA says that this conclusion means that you have 
qualities such as, and I'm quoting here from their published 
criteria, ``compassion, open-mindedness, freedom from bias, and 
commitment to equal justice under law.''
    Now, no one has ever, to my knowledge, accused the ABA of 
having a conservative bias. So when the most exhaustive 
evaluation of your record shows that you are open-minded, free 
from bias, and committed to equal justice, I am baffled by some 
of the more far-left groups who look at just a few cases and 
consider only the result of those few cases, and then pronounce 
that you are controversial and your record is troubling, or 
that you favor certain interests over others.
    Now, that conclusion, in my opinion, has no credibility 
because the approach leading to that conclusion is 
illegitimate. You've had a dozen years of experience as a 
member of the Court of Appeals, as an appeals court judge.
    Did you decide cases based on the identity of the parties 
or the political interests at stake, or did you apply the law 
to the facts, no matter which side would come out the winner?
    Judge Southwick. Senator, I did my best to treat each case 
impartially without regard for the characteristics that you 
stated.
    Senator Hatch. Now, Senator Whitehouse brought up the 
particular case of S.B. v. L.W., which was a domestic relations 
case, as I recall.
    Judge Southwick. Child custody, domestic relations.
    Senator Hatch. OK. Now, your court decided that the trial 
judge was not manifestly wrong to award custody based on the 
factors outlined by the Mississippi Supreme Court, including a 
sexual relationship outside of marriage.
    Now, you joined a concurrence which further discussed the 
public policy in the area, as reflected in State legislation at 
the time. And certain political groups might not like the 
result in the case, but they suggest that judges should 
disregard the law and decide cases so that certain parties or 
certain political interests prevail or win. Now, as I 
understand it, this issue of homosexuality was only one of the 
issues in deciding this case.
    Judge Southwick. Yes, Senator. I believe there were 5 
factors, as I recall, in the trial judge's opinion, 5 out of 
the 10 that ought to be applied, that the trial judge 
determined/weighed in favor of the father getting custody. The 
moral issue was one of them, which was the rule in Mississippi 
at that time, and remains, that the morality of each party 
should be considered.
    Senator Hatch. To which you were bound.
    Judge Southwick. Say again, sir?
    Senator Hatch. To which you were bound.
    Judge Southwick. I was bound. I was bound. And I think to 
some extent what Senator Whitehouse was saying on separation of 
powers, the legislature had spoken to this as well and that was 
the policy they had announced, on adoption, on marriage, and 
the criminal statute, as was mentioned.
    Senator Hatch. Do you have any prejudice against gay 
people?
    Judge Southwick. I do not, sir.
    Senator Hatch. Some of your critics looked at just two of 
your decisions and decided that you, in their words, ``may lack 
the commitment to social justice progress to which Americans 
are entitled from those seeking a lifetime appointment to the 
Federal bench.''
    Is that how you see your role as an Appeals Court judge? 
Are you there to bring about social justice, or social justice 
progress, or are you there to decide cases based on the law?
    Judge Southwick. I am there to provide justice, as measured 
by a reasonable interpretation and depth, hardworking gathering 
of the facts on the record, applying it fairly to the law that 
applies in that particular area.
    That, I think, is the definition of justice for an 
appellate judge, is to understand the facts, work hard to 
understand the law--understanding both, work hard at that, and 
come up with your conclusion that results from that. That's--
the symbolism is sort of mixed about ``Blind Justice'' holding 
the scales with a blindfold on.
    But I think, for this purpose, that is correct, that who is 
before you, the outcome does not drive the analysis, the 
analysis of the facts and the law leads to an outcome.
    Senator Hatch. OK.
    Now, let me ask you about another case, Richmond v. 
Mississippi Department of Human Services. This is one of the 
two cases that have been used by some of the groups to say that 
all of your experience, all of your high rating by the ABA and 
high acclaim from almost everybody who knows you is irrelevant.
    In this case, a social worker was fired for using a racial 
slur at a work-related conference. Now, you joined the majority 
of the State Appeals Court, which upheld the State Employee 
Appeals Court decision that she was wrongfully terminated.
    Now, I have two questions about this case. Let me ask the 
first one. First, what was the role of your court, the Court of 
Appeals, in this case? In other words, what standard of review 
did you have to apply?
    Judge Southwick. OK. To explain that role I think I need to 
explain the role of the agency you just mentioned. The 
Department of Human Services, I believe, was her employer, 
determined that she needed to be terminated.
    Senator Hatch. Let me ask that part of the question, too, 
and that will be my second point.
    Judge Southwick. Oh.
    Senator Hatch. Even though the Mississippi Supreme Court 
reversed for another reason, didn't the court agree with you 
that this employee was wrongfully terminated?
    Judge Southwick. Correct. Both courts, applying the 
standard of review of an administrative agency, which is to 
look for substantial evidence to support the decision reached 
by that agency to see if they were arbitrary and capricious, 
there are also constitutional and statutory violation review 
standards that did not apply here.
    The Employee Appeals Board looked at this issue and they 
are to determine--to make consistent the employment decisions 
made throughout Mississippi government agencies. And they 
looked at what was determined at this particular employing 
agency and decided there was not enough to terminate the 
employee for that.
    There were factors that they looked at, evidence that they 
relied on regarding the effect of that slur, the mind-set, 
whatever. But the Employee Appeals Board had that role. Our 
role on the Appellate Court was to decide, was that within--was 
there evidence to support that--was it arbitrary and 
capricious? The court I was on, the majority said we could 
sustain that decision.
    The Supreme Court said, yes, the decision not to 
terminate--overturning the decision to terminate could be 
sustained, but we remanded it to the agency for further review 
to see if an intermediate punishment of some sort would be 
appropriate.
    They did not think they applied the standards that the 
Employee Appeals Board--statutory standards--were supposed to 
apply quite correctly and wanted further findings before they 
would sustain not giving any punishment at all, is my 
understanding now of what the Supreme Court did.
    Senator Hatch. OK.
    Now, some far-left groups have criticized you in the case 
that we just discussed because the State Supreme Court reversed 
it, and then they turn around and they attack you for another 
case, Dubard v. Biloxi, in which the State Supreme Court agreed 
with you. Once again, I think an illegitimate approach leads to 
the wrong conclusion.
    In the Dubard case, you dissented from your court's 
decision to allow an employment suit to go forward, even though 
the employment relationship is what we call ``at will''. What 
was the basis for your dissent, and is it true that the 
Mississippi Supreme Court unanimously reversed and vindicated 
your legal conclusion?
    Judge Southwick. So I don't forget, I will answer that last 
part. Yes, they did unanimously reverse. Employment at will has 
been the doctrine in Mississippi for non-contract, non-union, 
no other governing principle employment in Mississippi for over 
100 years.
    Under employment at will, there is a right to leave a job 
at any time, which is less significant for the employee, and a 
right for an employer to fire at any time. It is said to be a 
balance; whether it is or not, that is the policy behind it, as 
I understand it.
    This individual was terminated after being given a job 
offer. The job offer was withdrawn before the person started. 
The court was relatively new at the time. 1999, I believe, is 
the date of that opinion. The majority in the court, I thought, 
had taken a position totally contrary to many years of settled 
jurisprudence about how employment at will worked.
    I wrote a dissent and tried to explain it, as how 
employment at will worked. I have been wrong at times and they 
have had to explain to me. This time, the Supreme Court agreed 
with me, which was nice. I will admit here, they have not 
always agreed with me. It could be, when they reversed me, they 
were incorrect. It could also, unfortunately, be that when they 
affirmed me, they were incorrect. So, I never know what to make 
of that.
    But, nonetheless, the Supreme Court did agree that 
employment at will did not acknowledge any cause of action for 
this plaintiff, so I was applying what I thought was 
established law.
    One thing I would say about the Dubard opinion, though. As 
part of my analysis after describing the balance and 
acknowledging the balance of the right of employee and the 
right of employer may not exactly be equal, I then said that 
this was reasonable, or may have even said that this was the 
best approach for the usual non-contract, non-union kind of 
situation.
    That was stating a policy position which, in hindsight at 
years later, I probably should not have done. Policy should not 
be put into an opinion. Personal opinion should not be put into 
an opinion.
    But, nonetheless, I was vindicated, to use your word, I 
believe, sir, by the Supreme Court unanimously in a fairly 
short opinion. There really--that time I was right. There 
really wasn't much, I think, to dispute what my dissent said, 
but I may have added a sentence that I now wish I had not.
    Senator Hatch. Well, thanks, Mr. Chairman. My time is up.
    Senator Whitehouse. Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    And welcome, Judge Southwick.
    Judge Southwick. Thank you.
    Senator Feingold. What, in your view, does joining a 
concurrence or dissent written by another judge signify?
    Judge Southwick. If I may, I don't want to pull my answer, 
but if I could explain, because it will elaborate on how I 
answer. Our court is the only appeals court in the State. The 
court I was on. I'm not saying I'm still on it. I left December 
31st.
    All cases, appeals from trial courts, initially go to the 
Supreme Court, and they decide which cases to keep and which to 
send to the State Court of Appeals. The term of art is 
``deflective''. We're a 10-judge court, but we hear cases 
initially as 3-judge panels. Those are the only judges that get 
all the briefs, those are the only judges that get the record.
    Once the three-judge panel makes a decision, unanimous or 
otherwise, those opinions, or opinion, go to the full court. So 
I will say there's a distinction in answering your question 
whether I'm on the original panel or whether I'm on the full 
court, because I will have a lot more information if I was on 
the original panel.
    Senator Feingold. But you have the option of writing your 
own dissent or concurrence if you don't agree with the 
reasoning or the language used by the judge who's writing the 
opinion for the court, isn't that correct?
    Judge Southwick. If I'm one of the seven judges who was not 
on the panel, I am entitled to write a separate opinion when it 
goes to the full court, just as I would be if I were on the 
original panel and a majority of the panel, two other judges, 
didn't agree with my position.
    If I join in the opinion, it at least means I agree with 
the outcome. If I join in the opinion I may have worked with 
the writing judge to alter language, and I often do, to get 
back to Chairman Whitehouse's case he was talking about earlier 
and the language in the child custody case.
    Would language like that or language I found was 
inappropriate--would I go to a judge and talk to him about it? 
I should. Often I would. I don't recall that phrase right now 
from when it circulated in 2001 and what my initial reaction to 
it was.
    Senator Feingold. But as a general matter, obviously--
    Judge Southwick. But as a general matter--
    Senator Feingold.--you have the option to write your own 
concurring opinion if you don't agree with the language or the 
reasoning of the majority opinion. Is that correct?
    Judge Southwick. Absolutely.
    Senator Feingold. All right.
    Let me ask you a bit about this same case that Senator 
Hatch was talking about, the Richmond case. One thing I'm 
troubled by, is that your court accepted, pretty much without 
comment, the conclusion of the hearing officer in the Employee 
Appeals Board that the employee's use of the racially offense 
term was, in the court's words, ``not motivated by racial 
hatred or animosity''. But the dissent gives a much more 
complete rendition of what the hearing officer said, and it's 
very troubling.
    The hearing officer said, for example, that the offensive 
term ``is somewhat derogatory, but the term has not been used 
in recent years in the conversation that it was used in my 
youth, and at that point at that time it was a derogatory 
remark. I think that in this context, I just don't find it was 
racial discrimination.'' Now, to me, that's a pretty shocking 
bit of analysis.
    And I just wonder--and I know you were trying to address 
this a minute ago and I want to get back to it. I just wonder 
whether it crossed your mind, as an appellate judge, that the 
judgment of this particular trier of fact might not be the best 
to rely on.
    Judge Southwick. I do not--and I don't think you're asking 
me this. I cannot recall exactly what went through my mind at 
that time, but looking at it now, as you ask me about it now, 
it would seem to me that we are always looking at whether the 
analysis done by whoever the fact finder is we are entitled or 
obligated to give deference to, whether it is arbitrary or 
capricious, if it's an administrative agency.
    That particular analysis that you read does not sound 
convincing to me as the best way to explain why this would not 
have had an adverse impact on the workplace, or whatever the 
other issues were for the Employee Appeal Board.
    You started this as kind of a lead-in to it, whether--what 
would drive me to write a separate opinion? Not being satisfied 
with the analysis of the majority in a significant way, and I 
could not get the writing judge to shift enough to agree, might 
cause me to write a separate opinion. It did not in this case, 
and that particular analysis that the dissent focused more on, 
or that language, didn't cause me to write either, obviously. 
But that's part of it.
    To me, that case was about the review standard and the 
deference that is given to administrative agencies. It was a 
tough case. Let me assure you and this committee, since it's 
maybe a question, that everyone took that case very seriously. 
I think, obviously, the employing agency did because they 
terminated her. The Employee Appeal Board, at least, 
acknowledged the significant unacceptability of that phrase.
    The hearing officer may not have looked at it the way you 
and I would prefer that it had of been phrased, but I think the 
issue in that case is, was the agency that made the decision 
that she should not have been terminated for this word within 
its range of discretion in doing that?
    That is the agency that the legislature gave the authority 
to make these decisions, subject to review on the arbitrary and 
capricious substantial evidence standard. Based on that, I 
thought the majority opinion had said enough.
    Senator Feingold. Thank you for those answers.
    Now on the custody case that we're talking about, the 
concurrence that you joined in also states, ``I do recognize 
that any adult may choose any activity in which to engage, 
however, I also am aware that such person is not thereby 
relieved of the consequences of his or her choices. It is a 
basic tenet that an individual's exercise of freedom will not 
also provide an escape of the consequences flowing from the 
free exercise of such a choice.''
    Do you think that a person's sexual orientation is a 
choice?
    Judge Southwick. I think that is an issue of debate. I 
don't want to take a position as to what the best indication of 
science is. I know that is a highly controversial point, that 
it is solely a matter of choice. But I think what she said, 
Judge Payne, in her opinion, and I'm trying to recall exactly 
what you read, and I've read it recently, that it may have been 
taking--starting the relationship with this other woman was the 
choice, but I could be correct--incorrect. The woman moving in. 
But in the context of 2001, is all I want to return to.
    When that opinion was written, the law in the State of 
Mississippi that I was obligated to apply, and the rest of us 
on the court was as well, that that was a legitimate factor for 
a chancellor, who makes decisions like this, the trial judge on 
custody, to consider. It was not an abuse of his discretion, I 
decided, for him to have considered that.
    Senator Feingold. Do you believe that one of the 
consequences of having a same-sex relationship should be to 
risk losing custody of your own child?
    Judge Southwick. I think, if the law I'm supposed to apply 
says that, then my hands are tied. If you're talking to me 
generally as a policy matter, I don't think that's my realm.
    But I will say--and you know this, and I've said this 
already--the legal landscape in 2001 was Bowers v. Hardwick, 
which says there was no privacy interest, liberty interest in 
even private homosexual relations. In 2003, there became such a 
recognized right and that changes the analysis, at least, and 
may well change the outcome.
    Senator Feingold. Well, why then did you believe it was 
necessary to join the concurrence, which I think you'll admit 
takes a much harsher stand on the question of the mother's gay 
relationship than even the majority opinion does. Because you 
were explaining that you were applying the law, but, you know, 
you have a choice about what reasoning you go along with here.
    Judge Southwick. I joined the concurring opinion because it 
added something about policy from the legislature. The first 
part of her opinion, Judge Payne's opinion, is talking about 
three different statutes which showed the legislature itself 
quite recently, the Mississippi legislature, had taken the 
position consistent with what we were talking about, again, not 
recognizing the change in law that would be coming.
    All the majority talked about, if I recall correctly, were 
Supreme Court precedents. And I thought the fact that the 
policy, which really needs to be set by the legislative branch, 
had mirrored, was consistent with what the Supreme Court 
authority had meant as well.
    Senator Feingold. Do you believe that gay, lesbian, 
bisexual, and transgendered Americans are entitled to equal 
protection of the laws?
    Judge Southwick. Well, I think everyone is entitled to be 
treated fairly. If you are talking about, as a fundamental 
right, I think the law is evolving as to where the fundamental 
rights regarding gay relationship exist. And I will apply the 
law rationally, reasonably, and the fairest reasoning and 
reading that I can make of the precedents that control.
    Senator Feingold. But isn't it the case that all Americans, 
regardless of this issue, are entitled to equal protection of 
the law?
    Judge Southwick. I'm sorry. I cut you off. All people--
    Senator Feingold. Isn't it the case that all people, all 
Americans are entitled to equal protection of the law, that 
it's not just a question of fairness, but they're specifically 
entitled to equal protection?
    Judge Southwick. All people are entitled to equal 
protection. I was just trying to make the point that what the 
level of this protection is, the level of scrutiny on various 
kinds of limitations that might be imposed, has not yet been 
fully explained.
    Senator Feingold. Judge, do you stand by the majority 
opinion you joined in Richmond and the concurrence you joined 
in S.R. v. L.W.?
    Judge Southwick. Stand by them. I believe the Richmond 
opinion was correct. I didn't write it. I joined the 
concurrence. I believe, whatever the reasons were that I joined 
at the time, that it did add, at least in talking about the 
statutes, very important additional policy considerations, 
which is that the legislature has spoken. If you say I'm 
endorsing everything in an opinion that I did not write every 
word, every phrase, I do not.
    Senator Feingold. You're not disassociating yourself from 
either opinion?
    Judge Southwick. I agreed with them at the time. I agree 
with the outcome at that time as being correct. But all I'm 
saying is, I didn't write them. The precise language is not 
necessarily what I would have chosen. I would have to--I 
haven't gone through my mind of how I would have written such a 
thing.
    Senator Feingold. Well, I appreciate it.
    There's certainly nothing the judge has said that suggests 
that he's separating himself from his agreement with those 
opinions at this point. Thank you, Mr. Chairman.
    Senator Whitehouse. Senator Coburn?
    Senator Coburn. Just a short followup from Senator 
Feingold. If I'm a homosexual male and I'm in front of your 
court, will I have the same access to your court as anybody 
else?
    Judge Southwick. Absolutely.
    Senator Coburn. Will I have the same treatment as anyone 
else?
    Judge Southwick. You will.
    Senator Coburn. Will the law apply to me equally, as it 
does to anyone else?
    Judge Southwick. It will.
    Senator Coburn. Thank you. I have no other questions.
    Senator Whitehouse. Senator Kennedy?
    Senator Kennedy. Thank you. Thank you, Mr. Chairman. I 
regret I was not here earlier for the presentation.
    I congratulate you on the nomination. The Fifth Circuit, as 
you know, has played an extraordinary role in the history of 
this country. I was fortunate to be here at the times where 
some of the great giants of the judicial system were really 
awakening the conscience of the Nation with regards to issues 
on race. They had a very, very powerful impact in terms of the 
Nation itself and development of various legislation.
    We were always mindful that there's a large minority 
population that this Fifth Circuit deals with, and issues of 
fairness, protection of equal rights, and civil rights are 
obviously matters of enormous importance. They are important in 
any place, but obviously with the make-up of the particular 
population, has additional kinds of relevancy, I think, with 
regards to those who are going to serve on the court.
    And I know you responded to Senator Feingold with regard to 
the Richmond case. I listened to his questioning you about your 
view, still, which you have signed on for that opinion, and I 
listened carefully to your answer.
    I was just wondering why you would not say, well, certainly 
in retrospect, I wish I'd had a separate opinion, I wish I'd 
wrote a separate opinion on this, because even in retrospect, 
having listened to the dialog, the concerns--maybe you missed 
that in the first part, although it's very difficult to 
understand, particularly when that word is used, that people--
the degree of offensiveness and the degree that they are 
concerned, or worried, or upset, and trying to measure that is 
fairly obviously obnoxious word under any kind of set of 
circumstances.
    But I was just listening to the response to Senator 
Feingold when asked if you still would have signed on to that 
part, and you're telling us here today that you would have. Not 
that you ought to change just because you are here before the 
committee, but I think many of us would say, well, given all of 
the kinds of concern about this--all of us alter and change our 
positions, you know. When we're asked about it, to try and 
sound noble, we quote Lincoln, you know. But, you know, there 
are important changes in life and people do change their mind 
and people learn. I mean, this is a terrific process.
    But it is troublesome, when you're asked about whether now, 
given all of the kinds of considerations on this, whether you 
wouldn't have said, look, I did it at the time, but, you know, 
knowing what I know now, I wish I had written a separate 
opinion on that part.
    Judge Southwick. Well, Lincoln has too many things to 
quote, Senator. But one that strikes me right now is, ``Don't 
change horses in midstream.'' I think when I got on the 
majority opinion horse I relied that--I looked at it very hard. 
The person--the judge who wrote it was an extraordinarily able 
judge. I think the opinion is carefully written and it's 
written to give deference to the agency that's supposed to make 
the decisions about the kinds of things you're talking about, 
Senator.
    What is the proper reaction to something that's totally 
inappropriate as this in the workplace? That's certainly to 
take every step to make the employee realize that that is 
unacceptable, cannot be done. But where to go from there? You 
have an employee who made a mistake, a serious mistake. What 
does the agency need to do about it? The Employee Appeals Board 
made its decision, and we, at the appellate level, were 
applying our review standard to that.
    If you're saying, in light of all of the criticism today do 
I wish I had written a separate opinion or whatever else, I 
just can't go back on the analysis that I did there. If I had 
the same case in front of me in the future, should I be 
fortunate enough to be a judge to have a case like that, I 
would certainly evaluate.
    I mean, the important thing for all of us is constantly to 
be aware of how what we do as judges affects people. I have 
tried to do that, and every day is a learning experience, I 
hate to admit, of new things that I need to take into 
consideration.
    So in the future, in a case like that I would certainly 
consider what has happened, if I'm in a position to make 
decisions in the future.
    Senator Kennedy. Well, I appreciate it. Lincoln, of 
course--``Ralph Waldo Emerson'' said ``consistency is the 
hobgoblin of little minds'' as well, so we can go around. But 
the real issue on this thing is, that word, whether there's any 
way that anybody can understand it in any other kind of 
framework, that it was derogatory and always offensive.
    Let me go to the issues on consumer and workers' rights, 
the protecting of workers that you had on--I think you're 
familiar with the Canon MidSouth X-Ray Company. You're familiar 
with that case. You had an individual who was--some of your 
decisions--just in looking through the workers' rights case, 
some of your decisions seem to bend over backward in favor of 
the larger corporation at the expense of individual Americans.
    The dissent in the Canon case denied the claims of a 
darkroom technician who became ill, suffered severe seizures, 
headaches, nausea, being forced to handle toxic chemicals at 
work without proper safety precautions.
    The employer had ordered her supervisor not to tell her 
that the darkrooms were dangerous, not to take any safety 
precautions. After many years, she finally found a doctor who 
diagnosed her illness as caused by toxic chemicals at her job.
    Seven of your colleagues on the court ruled that she was 
entitled to a trial to hold the company accountable for the 
damage to her health, but you have denied the claim, arguing 
the statute of limitations had run out. She should have figured 
it out on her own, even before the doctor made the diagnosis 
that her illness was related to her work.
    The majority opinion stated that she lacked any specialized 
training and was, just by all accounts, a darkroom technician 
who cannot reasonably be expected to diagnose a disease on 
which the scientific community has yet to reach an agreement. 
Why did you think it was reasonable to require her to figure 
out that her illness was work-related?
    Judge Southwick. Senator, I don't think I was deciding 
that. It was my interpretation, from controlling case law and 
the general statute of limitations in Mississippi that we were 
applying, that that had already been decided.
    There were two statutes of limitation that were being 
discussed, and we all agreed on which one applied. This was not 
medical malpractice. It was not in any of the other specific 
areas of claims where different statute of limitations would 
apply, so it was the general 3-year statute of limitations, 6-
year at one point. I don't remember now where in the change of 
that statute this particular case arose.
    And the statute simply said that, within 6 years--or 3 
years--of the injury the claim had to be brought, and there was 
case law as to what that meant. I talked about a medical 
malpractice statute of limitation as a comparison.
    Under that statute, the cause of the injury--I don't think 
that's the phrase of the statute, but the causation--must be 
known, or reasonably known, before the statute of limitations 
begin.
    When this came up--when this issue came up in the last few 
days, a colleague of mine looked at the developments of the law 
since this case. In 2005, when I was gone, the State Court of 
Appeals, the best I can tell, agreed with my interpretation 
without signing it, that that is the way the statute of 
limitations is to be interpreted, and the Supreme Court, in 
February, just a few months ago, agreed on the basic point that 
it's the knowledge of the injury and not the knowledge of the 
causation.
    Now, sir, I agree with you 100 percent that that is a very 
harsh case for a lot of plaintiffs, and what they need to do 
and how all that works is a difficult matter for them to figure 
out.
    But my duty as a Court of Appeals judge is to apply the 
statutes passed by the legislative bodies, to apply them and to 
apply the interpretations that controlling legal authority 
does--has come up with. And that will lead to harsh results. 
And I--it's not my purpose in being an appellate judge to lead 
to harsh results, but if that's where the legal analysis takes 
me, I feel obligated to go there.
    Senator Kennedy. Well, it seems that your view would give 
the company a free ride on this, even though it tried to hide 
the truth from the victim. You had concerns that we have--in 
private practice, you had a large portion of your work 
involving defending oil and gas companies, so we've got to try 
and find out whether that's your practice on it. Let me ask you 
about--oh. Is my time up?
    Senator Whitehouse. We'll probably have a second round.
    Senator Kennedy. OK. All right. Fine. I thank you. I 
apologize.
    Senator Whitehouse. Senator Durbin?
    Senator Durbin. Judge Southwick, thank you for joining us 
today.
    I think it is very clear that the context of your 
nomination is a big part of our deliberation, and I think you 
must understand that from some of the questions that have been 
asked of you. It is my understanding that President Bush has 
submitted 10 nominees for the Federal bench in Mississippi, 7 
at the District level, 3 at the Fifth Circuit, and not one has 
been an African-American.
    Mississippi being a State with more than a third of the 
population African-American, you can understand why the 
African-American population feels that this is a recurring 
pattern which does not indicate an effort to find balance on 
the court when it comes to racial composition, or even to give 
African-Americans a chance in this situation.
    But having said that, I believe you have the right to be 
judged on your own merits in terms of your own nomination, and 
I'd like to ask you a couple of questions, if I can.
    Now that we're going through this whole inquiry about the 
dismissal of U.S. Attorneys, we are finding that there's been 
an involvement of the White House in a lot of decisionmaking at 
the Department of Justice. One of the things that seems to be 
recurring is this theme that membership in the Federalist 
Society is a good box to check if you want to be viewed 
favorably by the Bush administration.
    You were a member of the Federalist Society and wrote 
articles for the Federalist Society. Could you describe to me 
why you joined the organization and what you think it 
represents?
    Judge Southwick. I may be forgetting, Senator. I think I 
wrote one article. But you're absolutely right, I did write 
something for one of their newsletters on judicial elections 
and the First Amendment.
    I joined when I was here in the Department of Justice in 
1989 to 1993. I don't remember when, exactly. The meetings were 
convenient. The Assistant Attorney General, who was in charge 
of the division I was in--I was a Deputy Assistant--a Deputy 
Assistant--went to them.
    I found them intellectually challenging. Some very 
impressive intellects were there, talking about issues that, in 
my practice in Mississippi, had not been particularly front 
burner.
    And I saw it as a--not to be too obvious--a conservative 
legal organization trying to provide its members, similar-
thinking individuals, an opportunity to work on ideas and work 
on different policy, and different ways to implement that 
policy.
    Senator Durbin. Was this considered a good professional 
move for a young Republican attorney to be part of the 
Federalist Society, to have that on the resume?
    Judge Southwick. It probably was. I'm not saying that that 
would have been one of the factors that I would have 
considered, but I'm not saying that that's--that I didn't have 
some interest in finding out what it was about. And so it 
wasn't just to be pleasant and supportive to my friend, Stewart 
Gerson, who was Assistant Attorney General. He invited me. It 
was interesting, and I went to it.
    Senator Durbin. About 8 years you were a member, is that 
correct?
    Judge Southwick. I really have not checked. I guess I could 
ask the Federalist Society when I got out. But I stayed. There 
really was an organization for a while in Mississippi. I 
remember going to a talk occasionally. I wasn't nearly as 
active, with all due respect for those who were running it, in 
Mississippi as I was up here.
    Senator Durbin. I do not want to paint a sinister picture 
of the Federalist Society, but it is an amazing coincidence 
that so many nominees have that in their background.
    In the history of civil rights in the South, which I'm sure 
you're more aware of than I am, there have been some 
interesting heroes, and one of them was Judge Frank Johnson in 
Alabama.
    Congressman John Lewis credits Judge Johnson and his 
courage with allowing the Selma march to take place and really 
giving an opportunity for that movement to evolve. Had he not 
shown that courage, at great personal and professional expense, 
John Lewis and others think it might have taken many more years 
to reach the achievements that they reached.
    So when you look back at your career in public service, can 
you point to an example of something that you have done, on the 
bench or otherwise, where you really stepped out and subjected 
yourself to criticism for taking an unpopular view on behalf of 
the dispossessed, or minorities, or poor people where it may 
have subjected you to criticism for showing courage in trying 
to side with a position that you thought was right and might 
not have been popular?
    Judge Southwick. I wish those came readily to mind. Perhaps 
I just didn't keep enough of a catalog of experiences. You 
mentioned Frank Johnson, a conservative Republican, but 
probably never a member of the Federalist Society.
    Senator Durbin. An Eisenhower Republican. Yes.
    Judge Southwick. Alabama Republican. And I--not because of 
this hearing, or not because of anything else, but judges, and 
Federal judges, and Fifth Circuit judges fascinate me.
    I read Taming the Storm by Jack Bass on Judge Johnson just 
a few months ago. His career is an inspiration to anyone who 
wants, no matter their political background, no matter what 
they have done before arriving at the bench, to apply the law 
even-handedly and imaginatively to the issues that come before 
him. I don't want to get into analogies of former colleagues of 
yours, U.S. Senators. I'm no Frank Johnson, I know that.
    Senator Durbin. None of us are. But can you think of a time 
in your life or career where you did bend in that direction, to 
take an unpopular point of view on behalf of those who were 
voiceless or powerless and needed someone to stand up for their 
rights when it wasn't a popular position?
    Judge Southwick. I hope that a careful look--and the answer 
is, no, I cannot think of something now. But if I can give you 
this answer. I cannot recall my opinions, and I don't think of 
them in those terms.
    I think of them in terms of not considering the reaction, 
not looking at the result and working backward, but following 
through and, no matter how popular or unpopular the decision 
may be, to come to the conclusion that I think is compelled by 
controlling authority.
    Senator Durbin. I hear that often and it's certainly a 
reasonable answer. But I find many times, when it comes to 
legislation, and I think when it comes to ruling on court 
cases, you really have a chance to make a judgment. It isn't so 
clearly one way or the other, it's a matter of deciding what 
the compelling situation or values are that are at stake. I 
think that's what I was looking for in that question.
    May I ask you about this Richmond case just for a moment? 
The Supreme Court, even the most conservative members of our 
U.S. Supreme Court, when they considered a case not long ago 
involving cross burning, said, really, this is a symbol that 
everyone understands. It goes way beyond an expression, way 
beyond free speech, and clearly is so inherently evil in the 
minds of so many Americans, that it has to be treated 
differently.
    As you reflect now on the Richmond case and the use of the 
``N'' word, can you draw any conclusions from our reaction to 
it and the fact that your participation in that case leads 
people to conclude that you were insensitive?
    Judge Southwick. I certainly see that. I certainly see that 
as being the reaction from some quarters. There was press 
coverage of the case when it was handed down. And that's part, 
I think--that's part of what judges need to do, though, is to 
look at cases and decide them fairly, honestly, and not worry 
about public reaction.
    Now, you're raising a slightly different point, and I will 
accept that. You're saying the public reaction, in itself, is a 
sign of the error, that this is a more fatal word than we gave 
it credit.
    And I will say that there is no worst word. I think the 
majority opinion for the Supreme Court of Mississippi used some 
words they could come up with which would be the worst for 
other races and then compare to using that word that was the 
subject of that case. And it is unique, I suppose. I hope it's 
unique. I can't think of anything else right now. Cross 
burning, maybe.
    What the factual issue, to some extent, in that case was, 
the Employee Appeals Board that we were reviewing, who has the 
authority by State law to make these decisions, was clearly in 
error to say that it was not so damaging that this woman needed 
to be fired, that she had no further employment life after 
that, that she couldn't in some way survive having used that 
word, no matter the context and whatever else.
    And it could be that that word is so serious that every 
workplace is permanently damaged insofar as that worker is 
concerned. I didn't see that evidence in the record. You're 
saying, should I have been more aware of it myself? I have 
certainly seen this again.
    But I do want to emphasize that everyone in this case took 
it extraordinarily seriously, including the writing judge for 
the Mississippi Court of Appeals, who I think treated the issue 
well.
    Senator Durbin. Thank you very much, Judge.
    Thank you, Mr. Chairman.
    Senator Whitehouse. I would like to ask you to do me one 
favor, and then if Senator Hatch would like to close before we 
excuse this witness. I assume you have access to Google?
    Judge Southwick. Oh, yes. I think I have heard of that.
    Senator Whitehouse. Do me a favor and Google the phrase 
``homosexual lifestyle'' and take a look at the context in 
which the top, I don't know, 50 or 60 hits come back to it. And 
the record will be open for a week. I'd love you to get back to 
me with your thoughts about that, and in particular whether, 
having seen the context in which that phrase is used, having 
seen the loaded nature of it, I'd love to urge you to never use 
that phrase in an opinion written on behalf of the Fifth 
Circuit Court of Appeals of the United States of America.
    Judge Southwick. Senator, I thank you for that suggestion 
as a more loaded phrase than I must have given it weight 6 
years ago.
    Senator Whitehouse. I appreciate that.
    Senator Hatch, would you like to say something in 
conclusion?
    Senator Hatch. Well, the only thing I would add is, you're 
clearly highly qualified. You're clearly a very good person. 
You're clearly a person who applies the law, regardless of 
public opinion, which is what an appellate judge should do. 
You're clearly a person who's learned in the law and you have 
the backing of the whole American Bar Association.
    Now, I hope that, around here, being a member of the 
Federalist Society is not a disqualification because it is not 
a political organization. It basically stays out of politics.
    The prime function of the Federalist Society, as I view 
it--as a member of the board of advisors, by the way--is to 
hold conferences where they bring people from all points of 
view, from the left to the right, to discuss majors issues in 
the law. And they've done a pretty good job throughout the 
country.
    Naturally, since it's considered more of a conservative 
society than a liberal society, then naturally, I suppose, the 
Republican administrations have always looked to the Federalist 
Society for some of their leading lights in law, most all of 
whom are Law Review graduates from major law schools or from 
law schools around the country.
    So I hope that, by implication, some of these comments 
don't denigrate the Federalist Society, which I think does a 
very, very good job of helping to discuss the various 
ramifications of some of the most important decisions and laws 
today.
    Now, you've made it very clear that you're not here to 
defend the Federalist Society and that you had a limited 
relationship there. I think the important thing here is that 
you've demonstrated here today an adherence to the law, even 
sometimes when it's difficult to adhere to.
    And should you ever get on the Supreme Court of the United 
States of America, maybe you can make some of those ultimate 
fine decisions that have to be made. But until then, you pretty 
well have to abide by the law, even if you would like to change 
the law, unless there is some give and take where you can 
change it.
    So this is important. I think you've handled yourself very 
well here today.
    Judge Southwick. Thank you, Senator.
    Senator Hatch. You have the backing of two great Senators 
and, I would suggest, a whole lot of other very fine Senators 
who would love to see you serve in the judicial branch of this 
Government from a Federal standpoint.
    I want to commend you for the life you've lived, the work 
you've done, the background you have, the intelligence that 
you've displayed, and the willingness to serve in these 
positions.
    One of the things we've got to do, Mr. Chairman, is we've 
got to elevate judicial salaries so that we can keep the best 
and the brightest coming to the court. And you're clearly one 
of the best and the brightest.
    But we're seeing a shift right now, where some of the best 
and brightest are not willing to serve in the Federal courts 
any more because Law Review graduates make more than they do 
right out of law school. And when you have a Law Review 
graduate starting at $200,000 a year, plus a signing bonus of 
another $200,000, you can see why that's kind of not the way to 
treat the Supreme Court Justices, and certainly the Chief 
Justice, of the United States of America.
    So I'm counting on you, Senator, to help us to change that 
salary structure, even though it may mean placing the Federal 
judiciary above ourselves.
    Senator Whitehouse. Point taken, Senator Hatch.
    Senator Hatch. All right. I'm counting on you. From here on 
in I'm going to hold you to that.
    Senator Whitehouse. Just point taken.
    [Laughter.]
    Senator Hatch. That's great. That's great. Well, I just 
want to personally thank you for being willing to serve. As you 
know, we're all concerned about justice, equality, and equal 
treatment under the law, just to mention three very important 
aspects. And I have every knowledge of your background, that 
you're as committed to doing right in those areas as anybody 
we've ever seen here. So, I'm grateful that you're willing to 
serve.
    Thank you.
    Judge Southwick. Thank you for your comments, sir.
    Senator Whitehouse. Judge Southwick, thank you for your 
testimony today. You are excused. But the record of this 
proceeding will remain open for a week for anyone who wishes to 
fill in with further information.
    Senator Hatch. Mr. Chairman, I have to leave, but I want to 
say that I certainly support the other two nominees. I will do 
everything in my power to make sure that we get all three of 
you through as quickly as possible. I am, again, expressing my 
gratitude to Senator Leahy for being willing to go ahead with 
these hearings and to push these nominees. That means a lot and 
I appreciate that.
    Senator Whitehouse. I appreciate that, Senator Hatch. And 
as everybody knows, he is a very distinguished former Chairman 
of this committee, so his words to that effect are very 
significant and carry great weight.
    Would Judge Neff and Magistrate Judge O'Grady come forward 
to be sworn, please?
    [Whereupon, the witnesses were duly sworn.]
    Senator Whitehouse. Please be seated. Welcome.
    Do either of you have a statement of any kind you would 
like to make?

 STATEMENT OF JANET T. NEFF, NOMINEE TO BE DISTRICT JUDGE FOR 
                THE WESTERN DISTRICT OF MICHIGAN

    Judge Neff. I just would like to thank you, Senator 
Whitehouse, for your chairing of this committee, and for the 
Committee itself, for holding this hearing. Special thanks to 
Senators Levin and Stabenow for their kind remarks in 
introducing me, and in forwarding my name to President Bush. 
And thank you to President Bush for his nomination to serve on 
the Western District of Michigan. It's a great honor to be here 
and to be a nominee.
    Thank you.
    [The biographical information of Judge Neff follows.]

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    Senator Whitehouse. Thank you.
    Judge O'Grady? Before you say anything, I want you to know 
that I've done a little bit of homework on you.
    Judge O'Grady. You have?
    Senator Whitehouse. You were an Assistant U.S. Attorney in 
the Eastern District of Virginia.
    Judge O'Grady. I was.
    Senator Whitehouse. And you served at the time that I 
served as U.S. Attorney for Rhode Island.
    Judge O'Grady. And I knew that about you, Mr. Chairman.
    Senator Whitehouse. So I know your former boss, Helen 
Feahy.
    Judge O'Grady. All right.
    Senator Whitehouse. And as part of my due diligence as the 
Chairman of this committee, this panel, I gave her a call 
yesterday to check you out. Her reaction was quite impressive. 
She essentially burst out, saying, ``Oh, he'd be a wonderful 
judge.'' And then she went on to say how conscientious you had 
been as Assistant U.S. Attorney, how hardworking you had been, 
what an asset you had been to the office, how valuable you were 
as a member of her staff.
    And in addition, she also said that you were one of the 
nicest people she'd had the occasion to work with in a position 
where being nice isn't always part of the job description, and 
that you were viewed with great affection by your colleagues as 
a very kind and thoughtful person. So, it was a wonderful 
series of accolades and I thought I should pass those on to you 
now where they can be a part of the record of this proceeding.
    Judge O'Grady. Well, I'm very thankful that you made that 
call.
    Senator Whitehouse. Glad it worked out that way.

STATEMENT OF LIAM O'GRADY, NOMINEE TO BE DISTRICT JUDGE FOR THE 
                  EASTERN DISTRICT OF VIRGINIA

    Judge O'Grady. I happen to feel the same way about Ms. 
Feahy. She was a wonderful U.S. Attorney. We were Assistant 
Commonwealth Attorneys together in Arlington County, and then 
followed and supported each other during our careers. I very 
much believe the way that she practiced law was an appropriate 
way to practice law. So, we are both in each other's camps, and 
have been for many, many years.
    I'd like to thank you, sir, and other members of the 
committee, Senator Brownback, for graciously granting me the 
opportunity to come here today. I know that your staffers have 
worked very hard as well. As Judge Neff has said, it's a 
wonderful honor to get this far and to be here today. It's a 
privilege.
    I realize that you take your jobs very seriously, and it's 
extremely important to you and to the entire Senate that you 
choose the right people for these very important positions. 
Again, I thank you for the opportunity to appear here today.
    [The biographical information of Judge O'Grady follows.]
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    Senator Whitehouse. Well, you are both very welcome here. 
The fact that you are here today speaks very highly of the 
accomplishments that you have achieved in your professional 
lives, it also speaks very highly of the way you have served 
your communities and the standing that you have in your 
communities, that you've risen to the point where you have 
become a nominee for these positions.
    And certainly the extremely kind words that Senator Levin 
and Senator Stabenow had to say about Judge Neff, and that 
Senator Warner had to say about you, and the kind words that I 
know Senator Webb put into the record because he could not be 
here today about you, Judge O'Grady, are a testament to lives 
well lived, and we appreciate that you are here.
    Senator Brownback?
    Senator Brownback. Thank you very much, Mr. Chairman.
    Welcome, both. Congratulations on being here at this 
nomination. Judge Neff, I think I chaired the hearing last year 
with you being here.
    Judge Neff. You did.
    Senator Brownback. There's been a series of things that 
have happened since that time period, and I want to go just a 
little bit into those. Then I want to ask some factual setting 
questions, and I want to ask some legal opinion questions, if I 
could, of you.
    As you know, I chaired the hearing with several people from 
the Western District of Michigan that were up. I then was 
traveling in Michigan, and a number of people raised an issue 
with me that I did not know about prior to the hearing taking 
place. Then we were past the hearing phase and it was going to 
the floor and there wasn't a chance to get your comments on the 
record, and I wanted to get those on the record. We weren't 
able to do it last year.
    I'm very pleased you're willing to come up this year to 
answer these questions. These are a series of factual 
questions, a series of legal questions I would like to ask you 
about.
    I reviewed your resume at length and wanted to go through 
this set of questions because of its bearing on a current set 
of legal controversies that are pending in front of the court. 
That's the issue. These are active legal matters.
    We need to be sure that, when judges go on the bench, that 
they are able to hear cases fairly and in an unbiased fashion. 
There are things sometimes that show up in the background that 
you ask questions, can they be fair and unbiased on a series of 
cases that would come up? So, that's what I want to ask you 
about.
    This surrounds something that was reported in the New York 
Times. And what I'd like to do is give you a chance to explain, 
factually, the setting that took place. It was reported in the 
New York Times that you, to use their terms ``led the ceremony 
of a same-sex commitment ceremony in Massachusetts in 2002.'' 
I'd like to get your statement. Is that accurate of what the 
New York Times reported, and what is it, factually, that took 
place there in Massachusetts in 2002?
    Judge Neff. Well, let me say, first, Senator, that I 
appreciate the opportunity to appear and to clear the air for 
whatever concerns you may have. As you probably are aware, I 
did not author the announcement that appeared in the New York 
Times and had nothing to do with the language that was used 
there.
    I did not, in fact, lead the ceremony. I was there, really, 
in two capacities. My family and I were there as guests, and I 
also participated as the homilist in the formal ceremony 
itself. And to give you a little factual context for our 
attendance at the ceremony, the Neff and Curtain families lived 
side by side, sharing a common driveway, for 26 years. We were, 
and are, a part of each other's extended families. The Curtains 
have two daughters, who were about 8 and 10 years older than 
the Neff daughters. They were baby-sitters for us.
    They were, in practicality and in spirit, older sisters for 
the Neff girls. Our families grew to be close friends. We 
still, to this day--even though the Curtains have moved to a 
condominium nearby, we still celebrate Christmas Eve together 
as families, and whatever kids are home for the holidays are 
part of that.
    Whenever our parents were still alive and came to visit on 
Christmas or other holidays, they were part of that whole 
extended family, and it's still true. Colleen Curtain's mom is 
still alive and we still see her for holidays.
    When my daughter Jenny, who's here today, was married last 
fall, Colleen hosted a bridal shower for her. Colleen's mom 
came over from Flint, Michigan to be part of that bridal 
shower. So we were there as a family, celebrating with another 
family, a very important event in Mary Curtain's life.
    Mary is someone who is important to us and whom we love. 
And when--it was a foregone conclusion that we would be invited 
and that we would attend. And when she and Karen, her partner, 
invited me to deliver the homily, I was pleased to do that. So 
that's the factual context of our appearance and participation 
on September 21, 2002.
    Senator Brownback. What was the event?
    Judge Neff. Well, it was really a two-part event. The first 
part of it was a commitment ceremony, for want of a better 
description, that was, in fact, led by a minister of the United 
Church of Christ, I believe. It was very brief, I think 
probably not more than 20 minutes in total.
    But preceding it was--the night before there was a 
rehearsal party for every--for all of the guests, because 
everybody was from someplace else. The Curtains hosted a lovely 
dinner at a hotel there in western Massachusetts.
    On the day of the ceremony, before the ceremony itself, 
there was a cocktail party. And after the brief ceremony, there 
was a dinner and a band and dancing, and it was a wonderful 
party.
    Senator Brownback. But the ceremony itself you classify as 
what you would call a ``commitment ceremony''?
    Judge Neff. It was--that is, I think, what it was called at 
the time. Yes.
    Senator Brownback. Was it a marriage ceremony?
    Judge Neff. It was not.
    Senator Brownback. OK.
    And your part was as a homilist?
    Judge Neff. That's correct.
    Senator Brownback. Did anybody else give a homily at the 
ceremony?
    Judge Neff. I really don't remember for certain. There were 
other people who spoke and the minister who led the ceremony 
spoke. Whether what she said could be described as a homily, I 
really don't recall.
    Senator Brownback. The reason I want to ask this is because 
of the legal issues surrounding the question, by the court's 
interpretation, of what the Constitution requires in 
guaranteeing whether or not the country must give same-sex 
unions equal force and authority as marriage has been given 
between a man and a woman. This is an active legal issue, as 
I'm sure you're familiar with, at the present time.
    Senator Whitehouse. May I ask the Senator a question? Would 
you yield just a second?
    Senator Brownback. Sure.
    Senator Whitehouse. The court that you're referring to, 
just so the record is clear and so that I can follow the 
discussion, is which court?
    Senator Brownback. Both Federal and State courts. This is 
an active issue in the Federal courts and I believe Nebraska 
has ruled on this. It's gone up to the circuit courts there, 
and it's been an active issue in States.
    Senator Whitehouse. OK. Not a specific court or a specific 
court proceeding at this point.
    Senator Brownback. It's an active legal issue around the 
country.
    Senator Whitehouse. OK. Thank you. I'm sorry to interrupt.
    Senator Brownback. No problem.
    If I could ask you a series of legal questions. Do you 
believe the Constitution creates a right to same-sex marriage 
for the citizens of Michigan?
    Judge Neff. I think that that is a question of, as you 
indicate, Senator, continuing legal controversy. It is a 
question which may very well come before me as a Court of 
Appeals judge in the State of Michigan, because I think, as you 
are aware, in Michigan we have both statutory rulings on that 
and we have a constitutional amendment that was passed in 2004 
dealing with that.
    And because of that, I think that it is improper for me, 
unethical for me, to speak to whether I believe or don't 
believe the legal effect of that, because that is, as you say 
in your terms, an active legal issue, both in the Federal and 
the State courts and one to which I simply cannot offer an 
opinion that would indicate any prejudgment on my part should 
that issue come before me, and it may very well.
    Senator Brownback. What is your understanding of the 
current state of the law in this regard in Michigan?
    Judge Neff. Well, it's not entirely settled. There are at 
least two cases of which I am aware that are currently pending 
in the Court of Appeals dealing with the amendment that was 
passed in 2004, and I do not know whether either of them has 
reached decision. I don't believe that they have. So, again, 
the issue is, it's one that is not settled yet. We have--we 
obviously have a constitutional amendment and that has not yet 
been--made its way through the courts.
    Senator Brownback. A constitutional amendment passed by the 
people of Michigan?
    Judge Neff. That's correct. Reached the bell via 
referendum, I believe.
    Senator Brownback. And the text of which reads--are you 
roughly familiar with the text of that?
    Judge Neff. Very roughly.
    Senator Brownback. Could you describe what that is?
    Judge Neff. It has to do with language that indicates that 
marriage is between a man and a woman. And if I am not 
mistaken, it also deals with the benefits of marriage, the 
kinds of mutual benefits, such as health insurance and so 
forth. Those are the kinds of issues that are currently pending 
in the courts.
    Senator Brownback. And Michigan also has a statutory 
defense of marriage law. Is that correct?
    Judge Neff. Yes, that's correct.
    Senator Brownback. What's your understanding of what that 
law provides?
    Judge Neff. I really don't have an understanding of it. I 
have never had the occasion to review it and have no opinion 
with regard to it.
    Senator Brownback. With the understanding, though, of the 
constitutional amendment in Michigan, if a family member or 
close friend asked you today to participate in a same-sex 
marriage ceremony in Michigan, would you do so?
    Judge Neff. My understanding of the law in Michigan is that 
there is no such thing permissible as same-sex marriage. It 
does not exist as a legal entity. And so to participate--my 
answer is, no, I wouldn't participate. I don't see how I could.
    Senator Whitehouse. Senator, your time has considerably 
expired and I'm just wondering what your plans are.
    Senator Brownback. I'd like to ask two more questions, if I 
could. If you want to bounce back to me for another round, I'd 
be happy to do that.
    Senator Whitehouse. If you'd do two more questions, then 
conclude. I know that Judge O'Grady's children are here, very 
patiently, and I'm sure they're eager to move on.
    Senator Brownback. I wouldn't take the committee's time on 
this, but this has been an issue that there's been a series of 
real questions about what factually took place, and what's the 
judge's view, potential Federal judge's view, of the law and 
whether the judge could fairly interpret that. This is--
    Senator Whitehouse. Well, since it's just the two of us, 
why don't we go ahead and proceed to the two remaining 
questions, with due regard for the well-tried patience of the 
O'Grady children.
    Senator Brownback. And I apologize to you for that. I wish 
this were not the case. It's just, this has been something 
that's bounced around for some period of time, and this is the 
chance, really, for all parties to put forward what it is that 
we ought to know, the judge's view of the law, and factually. 
So that's why I was taking that, and I apologize to the family 
for this.
    Would you acknowledge that neither the U.S. Supreme Court, 
nor the Sixth Circuit Court of Appeals has recognized a right 
to same-sex marriage?
    Judge Neff. I believe that's correct.
    Senator Brownback. Judge Neff, do you believe you can apply 
the law of the State of Michigan, which does not allow unions 
of same-sex couples, without regard to your personal views on 
the subject?
    Judge Neff. Senator, unequivocally, I do. I have spent the 
last 18 and a half years of my life demonstrating that I can 
apply the law fairly and impartially in each and every 
individual case that comes before me. My job as a judge is to 
level the playing field, not to play in the game, and to 
enforce the rules, not to make them. I am reminded of that 
regularly.
    Whatever the issue, I recognize that I have to park my 
personal views, whatever they are, at the door of the 
courthouse before I walk in. And I think that 18 and a half 
years of deciding cases, from 174 Michigan appeals reports, to 
274 Michigan appeals reports, demonstrate that.
    Senator Brownback. Thank you.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Good. Well, we certainly thank the 
witnesses for attending. We wish you well as the nomination 
process goes to its conclusion.
    The record of these proceedings will remain open for a week 
in case anybody wishes to supplement the record, but other than 
that, both nominees are excused and the Committee will stand in 
recess.
    Thank you.
    [Whereupon, at 12:01 p.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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