[Senate Hearing 110-138]
[From the U.S. Government Publishing Office]
S. Hrg. 110-138
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
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FEBRUARY 6, MARCH 13, APRIL 11, JUNE 20, AND JULY 19, 2007
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PART 1
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Serial No. J-110-8
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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
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February 6, 2007
STATEMENT OF COMMITTEE MEMBER
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 109
PRESENTERS
Byrd, Hon. Robert, a U.S. Senator from the State of West Virginia
presenting John Preston Bailey, Nominee to be District Judge
for the Northern District of West Virginia..................... 3
Capito, Hon. Shelly Moore, a Representative in Congress from the
State of West Virginia presenting John Preston Bailey, Nominee
to be District Judge for the Northern District of West Virginia 5
STATEMENTS OF THE NOMINEES
Bailey, John Preston, Nominee to be District Judge for the
Northern District of West Virginia............................. 7
Questionnaire................................................ 8
Wright, Otis D., II, Nominee to be District Judge for the Central
District of California......................................... 37
Questionnaire................................................ 38
Wu, George H., Nominee to be District Judge for the Central
District of California......................................... 63
Questionnaire................................................ 64
SUBMISSIONS FOR THE RECORD
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 103
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of
West Virginia, prepared statement.............................. 112
March 13, 2007
STATEMENT OF COMMITTEE MEMBER
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 113
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Halil Suleyman Ozerden, Nominee to be District Judge
for the Southern District of Mississippi....................... 114
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Halil Suleyman Ozerden, Nominee to be District Judge
for the Southern District of Mississippi....................... 115
STATEMENTS OF THE NOMINEES
Kapala, Frederick J., Nominee to be Distict Judge for the
Northern District of Illinois.................................. 184
Questionnaire................................................ 185
Ozerden, Halil Suleyman, Nominee to be District Judge for the
Southern District of Mississippi............................... 118
Questionnaire................................................ 119
Settle, Benjamin Hale, Nominee to be District Judge for the
Western District of Washington................................. 154
Questionnaire................................................ 155
SUBMISSIONS FOR THE RECORD
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi,
prepared statement............................................. 224
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi,
prepared statement............................................. 234
APRIL 11, 2007
STATEMENT OF COMMITTEE MEMBER
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 239
PRESENTER
Lugar, Hon. Richard, a U.S. Senator from the State of Indiana
presenting Joseph A. Van Bokkelen, Nominee to be District Judge
for the Northern District of Indiana........................... 237
STATEMENTS OF THE NOMINEES
Livingston, Debra Ann, Nominee to be Circuit Judge for the Second
Circuit........................................................ 241
Questionnaire................................................ 242
Mauskopf, Roslynn Renee, Nominee to be District Judge for the
Eastern District of New York................................... 276
Questionnaire................................................ 277
Sullivan, Richard Joseph, Nominee to be District Judge for the
Southern District of New York.................................. 307
Questionnaire................................................ 308
Van Bokkelen, Joseph S., Nominee to be District Judge for the
Northern District of Indiana................................... 336
Questionnaire................................................ 337
QUESTIONS AND ANSWERS
Responses of Roslynn Renee Mauskopf to questions submitted by
Senator Feingold............................................... 377
SUBMISSION FOR THE RECORD
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York, prepared statement................................... 385
JUNE 20, 2007
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 389
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 519
PRESENTERS
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina presenting William Linday Osteen, Jr., Nominee to be
District Judge for the Middle District of North Carolina, and
Martin Karl Reidiner, Nominee to be District Judge for the
Western District of North Carolina............................. 393
Dole, Hon. Elizabeth, a U.S. Senator from the State of North
Carolina presenting William Lindsay Osteen, Jr., Nominee to be
District Judge for the Middle District of North Carolina, and
Martin Karl Reidinger, Nominee to be District Judge for the
Western District of North Carolina............................. 390
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Janis Sammartino, Nominee to be District
Judge for the Southern District of California.................. 394
Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma
presenting Timothy D. DeGiusti, Nominee to be District Judge
for the Western District of Oklahoma........................... 391
STATEMENTS OF THE NOMINEES
DeGiusti, Timothy D., Nominee to be District Judge for the
Western District of Oklahoma................................... 450
Questionnaire................................................ 451
Osteen, William Lindsay, Jr., Nominee to be District Judge for
the Middle District of North Carolina.......................... 395
Questionnaire................................................ 397
Reidinger, Martin Karl, Nominee to be District Judge for the
Western District of Oklahoma................................... 421
Questionnaire................................................ 422
Sammartino, Janis Lynn, Nominee to be District Judge for the
Southern District of California................................ 479
Questionnaire................................................ 480
JULY 19, 2007
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin, a U.S. Senator from the State of Maryland. 521
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 702
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Sharion Aycock, Nominee to be District Judge for the
Northern District of Mississippi............................... 558
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Jennifer Elrod, Nominee to be Circuit Judge for the
Fifth Circuit.................................................. 525
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Jennifer Elrod, Nominee to be Circuit Judge
for the Fifth Circuit.......................................... 525
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Sharion Aycock, Nominee to be District Judge for the
Northern District of Mississippi............................... 522
Murray, Hon. Patty, a U.S. Senator from the State of Washington
presenting Richard Jones, Nominee to be District Judge for the
Western District of Washington................................. 523
STATEMENTS OF THE NOMINEES
Elrod, Jennifer Walker, Nominee to be Circuit Judge for the Fifth
Circuit........................................................ 528
Questionnaire................................................ 529
Jones, Richard, A., Nominee to be District Judge for the Western
District of Washington......................................... 565
Questionnaire................................................ 566
Aycock, Sharion, Nominee to be District for the Northern District
of Mississippi................................................. 610
Questionnaire................................................ 611
QUESTIONS AND ANSWERS
Responses of Sharion Aycock to questions submitted by Senator
Cardin......................................................... 652
Responses of Jennifer Elrod to questions submitted by Senators
Cardin, Durbin, Feinstein and Leahy............................ 655
Responses of Richard A. Jones to questions submitted by Senator
Cardin......................................................... 699
ALPHABETICAL LIST OF NOMINEES
Aycock, Sharion, Nominee to be District Judge for the Northern
District of Mississippi........................................ 610
Bailey, John Preston, Nominee to be District Judge for the
Northern District of West Virginia............................. 7
DeGiusti, Timothy D., Nominee to be District Judge for the
Western District of Oklahoma................................... 450
Elrod, Jennifer Walker, Nominee to be Circuit Judge for the Fifth
Circuit........................................................ 528
Jones, Richard, A., Nominee to be District Judge for he Western
District of Washington......................................... 565
Kapala, Frederick J., Nominee to be Distict Judge for the
Northern District of Illinois.................................. 184
Livingston, Debra Ann, Nominee to be Circuit Judge for the Second
Circuit........................................................ 241
Mauskopf, Roslynn Renee, nominee to be District Judge for the
Eastern District of New York................................... 276
Osteen, William Lindsay, Jr., Nominee to be District Judge for
the Middle District of North Carolina.......................... 395
Ozerden, Halil Suleyman, Nominee to be District Judge for the
Southern District of Mississippi............................... 118
Reidinger, Martin Karl, Nominee to be District Judge for the
Western District of Oklahoma................................... 421
Sammartino, Janis Lynn, Nominee to be District Judge for the
Southern District of California................................ 479
Settle, Benjamin Hale, Nominee to be District Judge for the
Western District of Washington................................. 154
Sullivan, Richard Joseph, Nominee to be District Judge for the
Southern District of New York.................................. 307
Van Bokkelen, Joseph S., Nominee to be District Judge for the
Northern District of Indiana................................... 336
Wright, Otis D., II, Nominee to be District Judge for the Central
District of California......................................... 37
Wu, George H., Nominee to be District Judge for the Central
District of California......................................... 63
NOMINATIONS OF JOHN PRESTON BAILEY, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA; OTIS D. WRIGHT, II, NOMINEE
TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND
GEORGE H. WU, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL
DISTRICT OF CALIFORNIA
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TUESDAY, FEBRUARY 6, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:37 p.m., in
room 226, Dirksen Senate Office Building, Hon. Patrick J. Leahy
(Chairman of the Committee) presiding.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good afternoon. I apologize for the voice.
I guess I'm just not used to cold weather, or at least not in
Washington.
We're holding our first confirmation hearing of the new
Congress for three nominations for important lifetime
appointments to Federal District Courts. The nominees before us
today, John Preston Bailey for the Northern District of West
Virginia, Otis D. Wright for the Central District of
California, and George H. Wu of the Central District of
California, each come to us with the support of their home
State Senators.
I know Senators Feinstein, Boxer, and Rockefeller would
have liked to have been here today to introduce the nominees,
but there's a closed, members-only briefing on the National
Intelligence estimate that was issued last week on the
situation in Iraq, and they were there. Rather than reschedule
this--I know all of you made plans--we wouldn't.
We made some progress. At our first executive business
meeting, the Judiciary Committee reported out five judicial
nominations about 2 weeks after they were sent to us.
Three of these were vacancies determined by the
Administrative Office of the U.S. Courts to be judicial
emergencies. All five are among those returned to the President
without Senate action at the end of last Congress.
I should note that there are no objections from the
Democratic side, but apparently when the Republican Senators
objected to going forward with one of the President's judicial
nominees, or a couple of them, in September and December, it
held it all up.
In any event, we pulled them back up. Five of them were
confirmed by the Senate, and it showed it can be done. Judge
Wood was the first one confirmed this year. Both Senators
Chambliss and Isaacson were concerned about him, and we were
able to do it.
Senators Zinhoff and Coburn were concerned about Judge
Freizell. They had hoped to get him confirmed last year and
they said they knew that the hold was on their side of the
aisle, which, for those of you who don't understand it, when
you're getting down toward the end of the session, any Senator,
either party, can basically hold things up. So, they had.
I felt that they should have gone through, and I have
assured those four Senators I would put them on the agenda
immediately this year, and they were. Senator Feinstein and
Senator Boxer worked very hard on the two from California.
Going over the numbers last night--I will brag just a tiny
bit--with the five confirmations last week, we've confirmed
more of President Bush's nominations in 18 months I have served
as Judiciary Committee Chairman, and the more than 2 years when
Senator Hatch chaired the committee with a Republican Senate
Majority, or during the last Congress when we had a Republican
Senate Majority.
I just mention that to those who think Democrats hold them
up. I do it to encourage our Republican friends to try to move
as quickly on President Bush's nominees as I am, because some
of them--not the four Senators I mentioned earlier, all of whom
went out of their way to praise what we did on this--but some
have been trying to raise a scare.
After I became Chairman, they ranted that ``the sky is
falling'' and we would not proceed on any judicial nominations.
I actually suggested to the administration, I'd give them their
choice. We could move it at the rate that we did in the 18
months we were in Majority, or the rest of the time when they
were.
I might say, Mr. Chairman, while you have been setting the
NASCAR record coming down the hall, I've been basically
filibustering up here.
[Laughter.]
But I had a good teacher.
Senator Byrd, who is, of course, the president pro tem of
the U.S. Senate, the longest-serving member for our body--years
ago, when my seniority moved up a tad, I was given my choice of
seats and I chose the role with Senator Byrd.
There's three seats there: Senator Byrd, Senator Dodd, and
myself. I used to call it the white-haired role, but I guess
it's two white-hairs and one bald guy.
[Laughter.]
But it's worked out well.
Senator Byrd, I'll put the rest of my statement in the
record. I'll yield to you and then to Congresswoman Capito, my
fellow Italian-American.
Congresswoman, in case you thought I was joking, my mother
is first-generation Italian-American. I didn't want you to
think I was just joking.
Go ahead, Senator Byrd.
Senator Byrd. Thank you, Mr. Chairman. Ms. Capito.
We know each other, Mr. Chairman, so we have to do a little
exchanging here.
Chairman Leahy. Well, as you know, I've visited your
beautiful State on a number of occasions. Much of it, with the
hills, the valleys and the mountains, it made me think of my
own State of Vermont.
But I also know that in West Virginia, it's small enough,
you tend to know each other. But of course, also in West
Virginia, Senator Byrd, everybody knows you. I know how well
the Congresswoman does in her elections, and they ought to know
her, too. So go ahead, please, sir.
PRESENTATION OF JOHN PRESTON BAILEY, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF WEST VIRGINIA BY HON. ROBERT
BYRD, A U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Byrd. Thank you. Thank you, Mr. Chairman.
Colleagues on the committee and other members of the
Judiciary Committee, I am pleased to appear before you today to
introduce you to an esteemed colleague of mine, a fine West
Virginia lawyer named John Preston Bailey.
Mr. Bailey hails from the big, beautiful city of Wheeling,
West Virginia. It used to be the old jumping-off place for
people who wanted to come over on the old road that ran from
Baltimore over to Wheeling, and then from there, I believe it
was over to Vandalia, was it?
Representative Capito. The national highway. The National
Road.
Senator Byrd. The old National Road. Yes. And I believe it
went on over to--it eventually ended up, where, down in St.
Louis?
Representative Capito. The middle part of the country.
Senator Byrd. All right. Is that St. Louis or St. Louis?
Mr. Bailey hails, as I say, from the beautiful city of
Wheeling. And Mr. Bailey has been nominated by the President
for a seat on the Federal bench in the Northern District of
West Virginia.
Mr. Bailey is a splendid choice for this judgeship.
Currently, he is senior partner at the firm of Bailey, Riley,
Buke & Harmon. Not only is Mr. Bailey well versed in
administrative law, but he is also a successful litigator,
competent in both civil and criminal litigation.
John Bailey graduated from West Virginia University's
College of Law in 1976, where he was a member of the West
Virginia Law Review. He was admitted to the State Bar of West
Virginia that same year, and clerked for 2 years thereafter
with the Honorable Charles H. Haydon, II, who at that time was
the U.S. District Judge for both the Northern and Southern
Districts of West Virginia.
Mr. Bailey is extremely well-qualified to be confirmed as a
Federal judge. He worked as an assistant prosecuting attorney
in the mid-1980's and he served as chairman of the Worker's
Compensation Appeals Board in West Virginia from 1985 to 1991.
He sat on the Executive Council of the West Virginia Bar
Association for 6 years, and was elected to be president of
that association in 1992. He was, thereafter, elected and he
served as president of the West Virginia State Bar from 2003 to
2004. Before that, he served as vice president of the State Bar
and as a member of the Bar's Board of Governors.
More recently, in fact, just last year he was also bestowed
the honor of Fellow by the West Virginia Bar Foundation. In
bestowing that honor upon Mr. Bailey, Tom Tinder, the executive
director of the West Virginia Bar Association, stated that Mr.
Bailey is a ``true leader'' of his community.
John Preston Bailey has been a member of the Order of the
Coif, the Order of the Barristers, a member of the Moot Court
Board, the Ohio County Bar Association, the West Virginia Trial
Lawyers Association, and the National Association of Criminal
Defense Attorneys.
I can attest to the fact that Mr. Bailey comes highly
recommended by West Virginians of all stripes and varying legal
viewpoints. He is a smart, independent thinker. He is
hardworking. He has had over 30 years' of experience as a
licensed attorney.
As a result, he recognizes the solemn responsibility with
which a Federal judge is charged. He must interpret impartially
and with proper contemplation of, and respect for, the three--
let me say that again, the three--separate branches of our
government, provisions that have been approved by the Congress
and signed into law by our President.
Mr. Bailey has an excellent reputation and a keen
intellect. Based on my understanding of Mr. Bailey's character
and impressive credentials, I believe that he will make--yes,
he will make--a fine Federal judge.
For all the reasons mentioned, I am pleased to introduce
him to my colleagues today, and I urge them to support his
nomination to be a U.S. District Court Judge for the Northern
District of West Virginia.
So, Mr. Chairman, I want to join our illustrious
Congresswoman here, who does a fine job in her work. She is the
lovely daughter of a former colleague of mine in the House of
Representatives, and a man for whom I have a deep appreciation,
the Honorable Arch Moore.
So, I am proud to be here with you. Man, look at her smile.
That's enough to win the whole committee's approval.
[Laughter.]
All right. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Senator Byrd, we will also put a
statement from your distinguished colleague, Senator
Rockefeller, in with yours.
Congresswoman, please feel free to go ahead.
PRESENTATION OF JOHN PRESTON BAILEY, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF WEST VIRGINIA BY HON. SHELLY
MOORE CAPITO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
WEST VIRGINIA
Representative Capito. Thank you, Mr. Chairman. I
appreciate the opportunity to testify in front of the
committee, and it certainly is always a pleasure for me to be
with our esteemed Senator, Senator Byrd.
When you mentioned that everybody in West Virginia knows
Senator Byrd, without question, and if they're not sure, if
they're on a road or by a building, they know you, too, Senator
Byrd, very, very well.
Senator Byrd. Thank you.
Representative Capito. He has a large imprint on our State.
Certainly his words of approval and appreciation for John
Bailey go a long way, I'm sure, for this committee in seeking
approval for his nomination.
But it's a wonderful opportunity for me today to come in
support of my friend John Bailey's nomination to the U.S.
District Court for the Northern District of West Virginia,
which I don't live in the Northern District, but I was born in
the Northern District so I know lots of those areas.
Mr. Chairman and members of the committee, I realize you
have been evaluating Mr. Bailey's experience, but I wanted to
talk briefly about something that I also believe is an
important aspect of John, and that is his broad understanding
of the District for which he is nominated to serve.
You mentioned in your opening statement that West Virginia
and Vermont have a lot of similarities. You sort of stole my
little statement here.
Chairman Leahy. Sorry.
Representative Capito. In that we all know one another and
we're very proud of our heritage and our West Virginia roots.
John has very strong West Virginia roots and is well-known in
his community for many reasons. So, I appreciate that, John.
I've actually known John 30 years. I know it's hard to
believe by looking at either one of us we would know anybody 30
years, but we have.
After he earned his Juris doctorate at West Virginia
University, he has spent, as Senator Byrd said, 30 years
practicing law in West Virginia, spending a great amount of
time gaining experience and earning respect in the courtroom.
In addition, I believe John has the very important
attributes of intelligence, honesty, which I believe you will
see in the answers to his questions, even-handedness, and a
sprinkling of what I think is a much-needed attribute: a great
sense of humor.
John is active outside the courtroom as well, serving, as
the Senator mentioned, a second time as president-elect of the
West Virginia State Bar Association, and he has also been on
the Association's Executive Committee and on the Board of
Governors.
As I am sure you are aware, the committee is aware, and the
President is certainly aware, the U.S. District Court for the
Northern District of West Virginia is currently short-handed
due to the untimely death of the greatly respected Judge Craig
Broadwater, and also of the senior status recently acquired by
the equally respected Frederick Stamp, Jr.
The President has made a wonderful choice in nominating
John Bailey to this position. In light of these vacancies, in
my belief, John Bailey is uniquely qualified. I ask that you
look favorably upon his nomination and see to it that John
Bailey can continue to serve the State of West Virginia.
I thank you for your time.
Chairman Leahy. Thank you. I also appreciate the bipartisan
support of him, and I appreciate both of you being here. As I
mentioned, Senator Rockefeller is chairman of the Intelligence
Committee so he has to preside over this closed meeting.
I know you both have a million other things to do, so I
thank you for coming out. I'll try not to be too rough in your
absence.
Senator Byrd. Thank you, Mr. Chairman. Thank you, members
of the committee. Thank you.
Representative Capito. Thank you. Great to see you.
Chairman Leahy. Besides, I try to be nice to former
prosecutors.
If the three nominees would step forward, please, and raise
your right hands.
[Whereupon, the nominees were duly sworn.]
Chairman Leahy. Thank you. Please sit down.
We've heard the introduction of Mr. Bailey. As I said, he
has served as a prosecutor, now an attorney, in Wheeling, West
Virginia.
I would note on Mr. Wright, he's been nominated to a seat
in the U.S. District Court for the Central District of
California, which is also a judicial emergency. I will put
statements of both Senator Feinstein and Senator Boxer in the
record. They're also at the same briefing.
But Judge Wright has been nominated after a distinguished
27-year legal career; State trial judge, lawyer in the State
government and private practice. He was born in Tuskegee,
Alabama during the era of Jim Crow segregation.
He overcame the barriers of formalized segregation and
graduated from California State University of Los Angeles,
Southwestern Law School, and ended up as a judge in the
Superior Court of California, the county of Los Angeles, and
assigned to the high-volume substance abuse court. Judge, when
I looked at those statistics, ``high volume'' is an
understatement, what goes before your court.
He served for 3 years as a U.S. Marine on active duty. As
the father of a Marine, I must note that. He served as a Los
Angeles County sheriff's deputy for 11 years before becoming a
Deputy Attorney General at the California Justice Department.
He spent 22 years in private practice with Wilson, Elser,
Moskowitz, Adelman, & Dicker. So, I'm glad that he is here.
And Mr. Wu has been nominated to serve on the U.S. District
Court for the Central District of California. He has a 32-year
legal career as a State trial judge, Assistant U.S. Attorney,
private practitioner, and academic.
He has 10 years' experience at the bench as a judge in the
Los Angeles Superior Court and Los Angeles Municipal Court. He
served as Assistant U.S. Attorney in the Civil Division, the
U.S. Attorney's Office for the Central District of California,
Assistant Chief of-- private practice--I'm going over this
somewhat in length because Senator Feinstein and Senator Boxer
can't be here--from the law firm of Lathem, Watkins, Los
Angeles office, Lebeouf. How do you pronounce it? Lebeouf,
Lamb, Libby & McCray. Professor of law at the University of
Tennessee, and born in New York City.
I might say, I'm glad to see all of you. Mr. Bailey, please
don't take this at all the wrong way. You come here with great
credentials. In coming from a State which has probably the
lowest percentage of minorities in the country, I feel we have
to, though, as a country make more of a step toward diversity
on our courts.
If confirmed, Judge Wright will become the 90th African-
American judge currently on the Federal bench. If he is
confirmed, Judge Wu will be only the ninth Asian-Pacific
American judge of the Federal bench, and the sixth active
judge.
In the last 6 years, there's been only 18 African-American
judges nominated to the Federal bench, compared to 53 in the
first 6 years President Clinton's. Of 875 seats in the Federal
Judiciary, only five active Asian-Pacific American judges. Only
two nominated in the last 6 years, neither to a seat in the
Federal Circuit Court.
I think outstanding lawyers like Dean Harold Cole of Yale,
Professor Gudenlu of Boat Hall School of Law, attorneys Karen
Marasacki, John Yang, Debra Yang. We have a lot. I just mention
this as an area where, as a Nation, we have to do more.
Obviously, the first thing we look for is the ability to be
a judge. I have always--before I vote for anybody, and I've
been voting for judicial nominees for 33 years now--I asked
myself, if I were appearing before that judge, whether I was
plaintiff, defendant, no matter what my case, would I be
treated fairly? That's what I want. In our confirmation
hearings we hear a lot about stare decisis, and this question
is always asked.
Mr. Bailey, how do you feel about that? Is this an iron-
clad rule or does it depend upon the court?
Mr. Bailey. Mr. Chairman, I believe that stare decisis is a
very important part of the legal system because it lends
predictability to the law. And if the law is predictable, as it
should be, then that leads to the resolution of disputes and
also gives the people of this country an idea what standards
and rules they are expected to live by.
Chairman Leahy. Before we go to the other two, I've made
a--after all these years here and conducting hundreds of these,
I forgot what I think is one of the most important things.
Mr. Bailey, would you introduce any member of your family
here? Because some day in the archives of the Bailey family,
they'll see their names on this official transcript.
Mr. Bailey.
STATEMENT OF JOHN PRESTON BAILEY, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Mr. Bailey. Thank you, Senator Leahy. Yes. With me today
are my three children: my son, John P. Bailey, II, my son,
Brian J. Bailey, and my daughter, Jenna Bailey.
[The biographical information of Mr. Bailey follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Leahy. Thank you very much.
Judge Wright, do you have any family members here?
STATEMENT OF OTIS D. WRIGHT, II, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Judge Wright. No, Mr. Chairman, I do not.
[The biographical information of Judge Wright follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Leahy. And Judge Wu?
STATEMENT OF GEORGE H. WU, NOMINEE TO BE DISTRICT JUDGE FOR THE
CENTRAL DISTRICT OF CALIFORNIA
Judge Wu. No, I do not, Senator.
[The biographical information of Judge Wu follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Leahy. We had moved this so expeditiously, I think
a lot of you didn't have a chance to do anything. Mr. Bailey
can drive here. The rest of you had a little bit of a trip to
make.
Judge Wright, let me ask you the same question. If you're
going to District Court, how strongly do you feel about stare
decisis?
Judge Wright. Thank you, Mr. Chairman. Like Mr. Bailey, I
agree with his comments. I feel very strongly about it. There's
only one court that doesn't have to follow it.
As Mr. Bailey says, it gives uniformity and predictability.
It may actually keep matters out of the courts because if
people have some guidance as to how the law would resolve their
dispute, they're able to resolve those disputes without legal
recourse. But it absolutely gives all of us guidance and I
strongly believe in that doctrine.
Chairman Leahy. In your case, your controlling courts would
be either the Ninth Circuit or the Supreme Court itself?
Judge Wright. That's correct, sir.
Chairman Leahy. Thank you.
And Judge Wu, how do you feel?
Judge Wu. I feel the same way, thank you, Senator, as my
colleague, Judge Wright, and also Mr. Bailey. I really don't
think I have anything else to add.
Chairman Leahy. This may sound like a non-legal question,
but I've heard this by other chairman of this committee,
Senator Thurmond did, others did, and spoke about the fact that
if you're a District Judge, this is a lifetime appointment
unless you get appointed to some other court.
In a way, you don't have to be nice to anybody, but I would
hope that that's not the attitude you might feel. You've all
had litigation experience. You've all had people before you.
You've all heard the words within the Bar that speak about
Judge So and So, and they say, boy, he's just not very good to
the litigants before him.
I believe in a judge, of course, having control of his
court. But let me just ask you, Mr. Bailey. You've been in a
lot of courts. You've seen good judges--and I'm not asking you
for names, but you've seen good judges--and you've seen some
that you probably wish you didn't have to appear before. What
do you feel a judge should be like? What's the impression a
litigation should get?
Mr. Bailey. Mr. Chairman, I think that when a lawyer goes
to the courtroom, he or she has already a great amount of
stress as to whether he or she is going to do a good job for
the client.
That person should not also have the stress of wondering
whether he's going to be treated with respect or stress over
whether he or she is going to get chastised for something
unfairly. I think very strongly that the courts should be a
place where you are heard, here people behave in an extremely
civilized and professional manner. If confirmed, I will see
that that occurs in my courtroom.
Chairman Leahy. And Judge Wright, you've certainly had
occasion to think about this in your own life as a judge. How
do you feel on the issue of how people should be treated before
they come before the court?
Judge Wright. Yes, sir. Of course, you prefaced your
question with ``this is not a legal question'', but I think
it's an extremely appropriate question. There may be a place
for arrogance. I'm not sure what that place would be, but I am
sure that it is not on the bench.
The courts do not belong to us. We are holding a public
trust. The courts belong to the people. They need to be made to
feel welcome, that this is a place for resolution of their
disputes as opposed to any alternatives.
Our job is to administer the law fairly and impartially. It
is not our place to assume a sense of power which we do not
possess, a sense of superiority which we simply do not have. We
are administering a public service. If, as I'm sure my two
colleagues agree, you really love the institutions the way we
do, you would not discredit it.
Chairman Leahy. And Judge Wu?
Judge Wu. Thank you, Senator. It's a little hard to be
last, because everything I would like to say has usually
already been said. But the only thing I would like--
Chairman Leahy. That's never stopped Senators, you know.
[Laughter.]
I'll tell you, we have an expression: just because
everything has been said doesn't mean everybody's said it.
Judge Wu. Thank you. But at this point I'm not a Senator,
so I would just simply like to add one point. There's always a
cardinal rule, that you should treat others the way you'd like
to be treated yourself. I think that is a cardinal rule that
will stand in good stead for anyone who is a Federal District
Court judge. Other than that, I would just simply agree with my
colleague, Otis Wright, and also Mr. Bailey.
Chairman Leahy. You know, this is somewhat of an abstract
question, but back in 1938 the Supreme Court-- and I'm not
trying to see who knows most cases, and I'd forgotten myself
until somebody brought it out to me--United States v. Caroleen
Products.
That's a question of the responsibility of courts to
protect the constitutional rights of individuals, especially
the less powerful, and especially where the political system
has not policed itself.
There's a footnote in there where they said, ``Legislation
which restricts those political processes which can ordinarily
be expected to bring about repeal of undesirable legislation is
to be subjected to more exacting judicial scrutiny under the
general prohibitions of the 14th Amendment than most other
types of legislation.''
Judge Wright, do you agree with that, that the courts
have--if you're talking about constitutional rights of
individuals, especially the less powerful, where their rights
have not been maintained by the political system, does the
court have a stronger duty to look carefully at what's being
done?
Judge Wright. Yes, Senator. The conduct which you describe,
or which is described in that footnote, runs afoul of the
constitutional protections. And, yes, it would be the duty of
the court to correct that wrong.
Chairman Leahy. Judge Wu?
Judge Wu. I agree that it would be the duty of the courts
to correct that law, but obviously to overturn an enactment by
the legislative body is a decision which must be taken
reluctantly, and only if there are no other alternatives.
And so there's always a presumption of the
constitutionality of an enactment by the legislative body, so
obviously that would have to be honored before one could take
the tremendous step of overturning legislation.
Chairman Leahy. And Mr. Bailey?
Mr. Bailey. Again, I am last, or this time I am last, and I
agree with what my cohorts have said. A statute should only be
reluctantly overruled as a point of last resort. But if that
statute is abridging the constitutional rights of those who
cannot help themselves, there probably is a little lower hurdle
than there is in the typical review of a statute.
Chairman Leahy. Thank you.
You probably thought, when you filled out your
questionnaire for this, that you're going to need a lifetime
appointment just to get through all the questions and all. But
they are helpful to the members of the committee.
Perhaps the fact that we don't have members in here hitting
you with a lot of questions, that they felt pretty good about
those. It makes our job easier. So unless any one of you has
anything further to say, I'm going to recess this hearing,
leave the record open long enough for people to ask questions.
[No response.]
No?
You are wise. Thank you. We stand in recess.
[Whereupon, at 3:15 p.m. the committee was recessed.]
[Submissions for the record follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF HALIL SULEYMAN OZERDEN, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF MISSISSIPPI; BENJAMIN HALE SETTLE, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON; AND FREDERICK
J. KAPALA, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
ILLINOIS
----------
TUESDAY, MARCH 13, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 10:07 a.m., in
room 226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, presiding.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. Good morning. This meeting of the Senate
Judiciary Committee will come to order.
It is my pleasure to chair this hearing featuring three
nominees for appointments to the Federal judiciary. I am proud
that one of these nominees comes from my home State of
Illinois, Judge Frederick Kapala of Rockford. He has been
nominated to fill a seat on the U.S. District Court in the
Northern District of Illinois.
The other two nominees who are here today are Benjamin
Settle, I just met, who has been nominated for a District Court
seat in the Western District of Washington; and Halil Ozerden--
I hope I pronounced that correctly--who has been nominated for
a District Court seat in the Southern District of Mississippi.
Mr. Settle and Mr. Ozerden have been nominated to fill
vacancies that have been deemed by the U.S. courts to be
judicial emergency districts. These are districts in which the
number of cases filed per judge is very high, so it is
important to fill these vacancies quickly.
Judge Kapala has been nominated to fill a vacancy in
Rockford. It's the only judgeship in that city; it's been
vacant since January. I want to thank Chairman Leahy for giving
Judge Kapala and the other nominees swift consideration this
year.
All three of today's nominees have the support of their
home State Senators, but, due to scheduling conflicts, not all
of the home State Senators could make it to our hearing. We are
happy to have the Senators from Mississippi here to introduce
the Mississippi nominee, Mr. Ozerden.
The Senate has already confirmed 10 judges in the 110th
Congress and we have reported 15 judicial nominations out of
committee. In total, we have confirmed 268 Article 3 judges
under President Bush. It is a good track record.
I call, now, on Senators Lott and Cochran for opening
remarks. By virtue of seniority or first arrival, Senator
Cochran.
PRESENTATION OF HALIL SULEYMAN OZERDEN, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD
COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much for
convening the hearing. I am very pleased to be here this
morning with my colleague, Senator Lott, to introduce Sul
Ozerden--Halil Suleyman Ozerden, but to his acquaintances and
friends down in Mississippi he's just ``Sul''--to recommend him
for confirmation as a U.S. District Court judge for the
Southern District of Mississippi.
Sul is very well qualified because of his education and
experience to serve as a Federal judge. He is a highly
respected lawyer with a keen sense of fairness. He will reflect
great credit on the Federal judiciary, and our State.
Accompanying him today at the hearing are members of his
family: his wife, Denise; his mother, Candace; and his aunt,
Cordelia Green. Sul and Denise's children, Vivian and Harty,
ages 3 and 1, remained on the Gulf Coast to take care of things
down there.
[Laughter.]
His law partner, Cy Faneca, and his wife, Georgia Anne
Faneca, are also here today.
Sul graduated magna cum laude in 1989 from the Georgetown
University School of Foreign Service, where he was a member of
Phi Beta Kappa. After graduating from Georgetown, he attended
the U.S. Navy flight school in Pensacola, Florida and served
for 5 years as a Naval officer.
He served as a bombardier and navigator aboard the A- 6E
``Intruder'' aircraft, and was awarded the Navy commendation
medal for missions flown over Iraq during Operation Restore
Hope in 1992 and 1993.
He also completed a 6-month deployment to the Western
Pacific, and another to the Persian Gulf about the aircraft
carrier U.S. Kitty Hawk from 1992 to 1994.
After his service in the Navy, he returned to college. He
graduated from the Stanford University School of Law, where he
was an associate editor of the Stanford Law Review.
Sul then served as a law clerk in the Eastern District of
Louisiana, the Federal court there, to the Honorable Eldon E.
Fallon, U.S. District Court judge.
He then returned to the Mississippi Gulf Coast and joined
the law firm of Dukes, Dukes, Keating & Faneca, a highly
respected firm in our State. Because of the cross-jurisdiction
nature of law practice on the Mississippi Gulf Coast, Sul
became licensed not only to practice in Mississippi, but also
in Alabama, Florida, and Louisiana.
He has practiced in State and Federal courts throughout the
southeastern United States. He has routinely served as lead
counsel on a wide range of complex cases, including general
civil defense litigation, civil rights, and representation of
local government entities.
Sul is ranked by his fellow lawyers at the highest level of
professional excellence. In addition to his legal practice, Sul
has consistently given his time and donated his abilities to
the legal profession and to his community.
He is a mentor to students at Gulfport High School, where
he graduated. He serves as president and is a board member of
the Gulfport Chamber of Commerce. He has served as president of
the Harrison County Young Lawyers Association. He is a graduate
of the Leadership Gulf Coast and was recognized as one of South
Mississippi's Top 40 Business Leaders Under 40 years of age.
Mr. Chairman, I am very pleased to recommend, without
qualification, and sincerely, Sul Ozerden and recommend his
approval and confirmation as a U.S. District Court judge. Thank
you.
[The prepared statement of Senator Cochran appears as a
submission for the record.]
Senator Durbin. Thank you very much, Senator Cochran.
Senator Lott?
PRESENTATION OF HALIL SULEYMAN OZERDE, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT
LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Thank you, Senator Durbin. I ask consent that
my statement be put in the record as if delivered.
Senator Durbin. Without objection.
[The prepared statement of Senator Lott appears as a
submission for the record.]
Senator Lott. I cannot add a whole lot more to his
qualifications than what my distinguished senior Senator from
Mississippi, Senator Cochran, has already provided. But I just
want to congratulate the other nominees today. Thank you,
Senator Durbin, for being here for this hearing.
I want to say that I am really honored and quite pleased to
be here to support the nomination of Sul Ozerden to be a
Federal District judge for the Southern District of
Mississippi. I am very pleased that his mother is here, and his
wife, Denise, and his senior law partner, Cy Faneca.
Senator Cochran has already referred to Cy Faneca. He and I
were classmates at the University of Mississippi in the late
1950's and 1960's; we go back a long way. He is one of the most
respected citizens that we have on the Gulf Coast.
And partially through his pointing out to me what an
outstanding young man Sul Ozerden is, that I started watching
him several years ago to just observe his progress in the
community and in the practice of law. It is especially
poignant, too, that his mother, Candace, is here; his father
passed away last year.
I had a personal relationship with his father, too. I cast
a somewhat unpopular vote back in the mid-1970's and Dr.
Ozerden showed up at my office to advise me that, while it was
an unpopular vote, he supported it and he appreciated it.
I never will forget it, because usually you don't have that
happen, that somebody would show up in your office and say, you
cast a tough vote and I want you to know I do appreciate it. So
I always followed him in the community after that.
And then to see Sul, a second-generation American, be able
to achieve such great heights in everything he's done in his
life, it makes it particularly special that he's here today as
a nomination for the Federal judiciary.
Sul has done an outstanding job in everything he's done in
his life. He's always reached the greatest heights academically
and in the military and in his professional and his private
life. He's been exemplary, graduating, as Senator Cochran
pointed out, as salutatorian from Gulfport High School, which
is a large high school, going to Georgetown University School
of Foreign Service on a Naval ROTC scholarship.
I must admit, maybe Senator Cochran has a special feeling
for him on that basis alone, since he was a Naval ROTC scholar
himself at the University of Mississippi in the 1950's. He
graduated from Georgetown magna cum laude and Phi Beta Kappa in
1989.
He served 6 years on active duty, where he was an A-6E
``Intruder'' bombardier and navigator. He was awarded the Naval
commendation medal for missions that he flew over Iraq during
Operation Southern Watch in Somalia during Operation Restore
Hope.
He went to Stanford Law School, where, as Senator Cochran
noted, he was on the Law Review. He clerked for a Federal
judge. He is with one of the most outstanding firms on the Gulf
Coast, Dukes, Dukes, Keating and Faneca.
They have a varied practice: civil defense litigation,
local law enforcement representation, representing government
entities, commercial transactions and litigation. Cy has made
sure that Sul had a variety of experience there in that law
firm.
But, also, Sul has been involved in the community. As you
know, Senator Durbin, this is the area that got hammered by
Hurricane Katrina. We all have a heightened awareness and
appreciation now for professional men and women and business
men and women, and volunteers that have really pitched in and
helped the community, helped everybody to try to recover. It is
a long process, but Sul and his family have been right there in
the middle of it.
He has also been a very active participant in his church.
He serves on the building committee, and that is an extremely
important position because the church was devastated by
Hurricane Katrina.
I am convinced that this young man will be a credit to the
Federal judiciary, to all of us that serve in Congress when we
confirm his nomination, and it is a great honor and a pleasure
for me to be here to be here to support his nomination here
today.
Thank you.
Senator Durbin. I want to thank Senator Lott and Senator
Cochran. They both noted that the nominee has achieved the
status of Phi Beta Kappa. A friend of mine, Gene Callahan in
Illinois, said he only missed Phi Beta Kappa by two grades: A
and B.
[Laughter.]
Others have done much better. Thank you both for your
introduction of the nominee this morning.
If I could ask the nominees to please come to the witness
table for the oath. If you would all remain standing for just a
moment here. If you would please raise your right hand.
[Whereupon, the witnesses were duly sworn.]
Senator Durbin. Let the record reflect that all three
responded in the affirmative. You may be seated.
Mr. Ozerden has had a very kind introduction by his two
State Senators. I would like to, by way of introduction, say a
word or two about the other two nominees.
First, the nominee, Benjamin Settle. Thank you for being
here. The Senators from Washington are unable to attend the
hearing, but I would like to briefly introduce you on their
behalf.
Benjamin Settle is from Olympia, Washington and works at
the law firm of Settle and Johnson in Shelton, Washington. He's
had a distinguished 35-year legal career. He's done it all.
You've served as a prosecutor, criminal defense lawyer, family
law attorney, and corporate general counsel.
Mr. Settle served in active and reserve duty in the U.S.
Army from 1969 until 1982, including a stint as Captain in the
Judge Advocate General Corps. I am pleased to see that Mr.
Settle has given pro bono legal services over the years to
several nonprofit organizations committed to helping low-income
people and the developmentally disabled.
Mr. Settle is married to a teacher, and they have one child
who is a junior in college. After I introduce all three of you,
I am going to ask you to introduce your families before you say
a few words.
Our third nominee is one I have come to know, and enjoys a
great reputation in my State. Judge Frederick Kapala is
supported not only by myself, but also Senator Obama.
Judge Kapala has served with distinction as a State Court
judge in Illinois for the past quarter-century, from 1982 to
2001, a Circuit Court judge in Rockford, serving over the years
as presiding judge of the Criminal Division in the Juvenile
Court.
In 2001, he was elevated to the Illinois Appellate Court
and he has served on that court, the second-highest State court
in Illinois, for the past 6 years.
Before he donned his judicial robes in 1982, Judge Kapala
worked in private practice, served as a Special Assistant
Attorney General in the Illinois Attorney General's Office
prosecuting consumer fraud complaints. His first job out of law
school was working as a prosecutor in the Winnebago County,
Illinois State's Attorney's Office in 1976.
At that time, the Winnebago County State's Attorney was
Philip Reinhard, who went on to become a Federal judge. Judge
Kapala is following in the same footsteps 30 years later; it is
Judge Reinhard's judgeship that Judge Kapala has been nominated
to fill.
Judge Kapala served in the U.S. Army, both on active and
reserve duty, from 1970 to 1980, attaining the rank of captain.
He graduated from the University of Illinois Law School, and
undergrad at Marquette University.
He and his wife have two daughters. Judge Kapala will have
a chance to introduce his family in a few minutes. He has been
an outstanding citizen in the Rockford, Illinois community, an
active member of two dozen different community groups and legal
organizations, and is a community leader in many organizations
that help at-risk children, the mentally ill, and people
dealing with alcoholism.
He recently received a unanimous rating of ``Well
Qualified'' by the American Bar Association, the highest rating
a Federal judicial nominee can receive. In a 2006 poll taken by
the Winnebago County Bar Association, 99 percent of those
lawyers surveyed gave Judge Kapala a positive recommendation.
That is nothing short of a miracle, that 99 percent of lawyers
could agree on anything.
[Laughter.]
These are all qualities crucial for a judge to have, and
Judge Kapala's near-perfect score suggests he has what it takes
to be fair and impartial. I had a chance to sit down and meet
with him recently.
Judge James Holderman, Chief Judge of the Northern
District, called our office last week and said Judge Kapala is
``a great judge and an excellent choice for the U.S. District
Court vacancy.'' That is high praise from a top Federal
District Court judge in our State.
I commend Congressman Dennis Hastert, our leading senior
Republican in the House of Representatives, for recommending
his nomination. It is the latest example of a successful
bipartisan approach that we have encouraged in Illinois.
Finally, I want to note again that Judge Kapala has been
nominated to fill the sole Federal judgeship in Rockford. This
judgeship has been vacant since January, when Judge Reinhard
took senior status. It is important to fill this seat as
quickly as possible.
Let me call on the nominees at this point, each one, to say
a few words of opening remarks and introduce their families.
Mr. Ozerden, if you would kick off.
STATEMENT OF HALIL SULEYMAN OZERDEN, NOMINEE TO BE DISTRICT
JUDGE OR THE SOUTHERN DISTRICT OF MISSISSIPPI
Mr. Ozerden. Thank you, Senator. I would simply like to
thank the President for the nomination, thank the Chairman and
the Committee for holding this hearing, thank Senator Cochran
and Senator Lott for their support, and also thank my family
for their support.
Here today I have my wife, Denise Dunaway Ozerden of
Gulfport; my mother, Candace Ozerden of Gulfport; my aunt,
Cordelia Green of Richmond, Virginia; and my law partner, Cy
Faneca, and his wife Georgia Anne Faneca.
Senator Durbin. Great. Glad to have you all here today. If
you would like to go ahead and make an opening remark, then we
will go to the other nominees for the same opportunity.
Mr. Ozerden. I have no other statement at this time. Thank
you, Senator.
[The biographical information of Mr. Ozerden follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. All right.
Mr. Settle?
STATEMENT OF BENJAMIN HALE SETTLE, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WASHINGTON
Mr. Settle. Thank you, Mr. Chairman. Thank you for holding
this hearing. I, too, thank my two Senators from my State for
supporting me. Of course, I thank President Bush for his
confidence shown in me by nominating me to this position.
I would like to introduce my wife, Lynn. And perhaps--
they're back there--they can raise their hand so, Mr. Chairman,
you can see who they are. My wife, Lynn; my brother-in-law,
Colonel Chuck Allen. He came down from Carlisle. He is a
teacher at the War College.
Gary Burleson is here. He is the Mason County prosecutor.
He's known me since he was six, and I told him that I was glad
that I was up here speaking about me and not himself, since he
knows many stories that I would just as soon not have on the
record.
[Laughter.]
Then we also have here other friends from Mason County that
have come out here: Kenan Butler is here, a long-time friend of
the family; Wyla Wood and Joel Meyer, from a public utility.
There is the American Public Power Association meeting this
week, so fortunately they could attend, as well as Commissioner
Jack Janda, for coming from the public utility district there
in Mason County. So, I am grateful that they were all able to
attend today.
Senator Durbin. Mason County is well represented.
Mr. Settle. Yes. Thank you.
[The biographical information of Mr. Settle follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Judge Kapala?
STATEMENT OF FREDERICK J. KAPALA, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge Kapala. Thank you, Mr. Chairman. I appreciate those
kind words. I will do my utmost to live up to them. I thank you
for chairing this hearing. I thank you for your support, and
that of Senator Obama. I certainly thank Senators Lott and
Cochran for appearing here this morning, and certainly to the
President for nominating me.
With your permission, I'd like to acknowledge the people
that are with me here today.
Senator Durbin. Yes.
Judge Kapala. I have my wife, Jill; my daughters, Candy and
Katie; Katie's friend, Dylan Whitcher; and my very dear friend,
Mike Dunn, and his son Peter. I'm thankful that they're here
with me today to support me, and I waive any further opening
statement.
[The biographical information of Judge Kapala follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Thank you.
I'm going to ask a few general questions and address them
to all three, and you can each respond.
Judge Kapala, let me start with you because this is a
lifetime appointment and there is a fear on this side of the
table, and a fear among lawyers, that once receiving a lifetime
appointment, it will go to the head of a judge and they will
become imperial in their courtrooms and lose the humility which
we like to think is part of life, and part of good service.
Tell me about your experience as a lawyer, practicing
lawyer, with judges--you do not have to name names--and your
views about this concern of the judiciary.
Judge Kapala. Mr. Chairman, many times I hear judges talk
about the courtroom to which they're assigned as ``my
courtroom''. I've done it from time to time. But I think that's
a misnomer. No judge owns a courtroom. The courtroom is owned
by the people in the well of the court, and it's there to
resolve their legal controversies.
I like to think of the courtroom as a place where I have
the privilege to work. I know in the past, one other nominee
who sat in this room mentioned that a person will remember
being mistreated long after that person will remember who won
or lost the case. I think that is a very important comment to
take to heart, and I subscribe to it.
Senator Durbin. Mr. Settle?
Mr. Settle. Thank you, Mr. Chairman.
I think that's a very important quality for a judge to
have, is a proper measure of humility. The courtroom setting
can be a very tense environment. I think that the litigants
particularly -the lawyers are more accustomed to it, but even
the lawyers deserve courtesy for the court--this is a foreign
environment for them.
I think that a good judge will work hard to put those
litigants and witnesses at ease when they're in that courtroom.
I think that that's a quality that should never change in a
Federal court judge.
Senator Durbin. Mr. Ozerden?
Mr. Ozerden. Thank you, Mr. Chairman. The service of a
judge is something I look at as a public service, as a judge as
a public servant. My belief is that it's critical that judges
treat all lawyers and litigants with courtesy and respect,
because for the vast majority of lawyers and litigants, the
only contact they will have with the Federal judicial system is
at the District Court level. If they're not treated fairly, it
undermines confidence in the system overall.
Senator Durbin. The other general question I'd like to ask
before a few specifics, we like to believe, those of us who
have practiced law, or lawyers, that this system of justice is
balanced and fair. Yet, we know that many times in the
courtroom there are Davids and Goliaths.
Many times there will be parties before you in civil and
criminal cases who don't have the resources that others have.
In that circumstance, it is a real test for the court to view
both fairly and honestly and to treat them that way.
I'd like to know what, in your life's experience, would
give a person standing before you who is poor, has modest
representation, what they believe is a good claim or a good
defense, and wants to know if that judge sitting up on that
bench could even identify with their life, what would you say,
Mr. Ozerden?
Mr. Ozerden. Mr. Chairman, first of all, I would say that
being impartial and fair to all parties is critical. It goes
back again to the question of the public having confidence in
the judicial system. I people don't feel that judges and courts
are fair and impartial, it undermines our entire system.
From my own perspective, my father was an immigrant. He
came to this country with one suitcase and $100 in his pocket.
When we were a young family growing up, we struggled
financially a great deal. I remember what that's like.
Also, I think my service in the Navy is very important
also, because the Navy is an extremely diverse environment. You
have people of all ethnic backgrounds, all economic
backgrounds.
So, I've had a lot of experience in the Navy dealing with
people who were very, very different from me, and I think
that's going to really help me learn to understand where
they're coming from.
Senator Durbin. Mr. Settle, you've been a criminal
prosecutor and a defense lawyer. You've probably seen some of
the people I've just described in the courtroom. Tell me about
your experience and what kind of confidence it may give to that
defendant who may feel that this judge is totally removed from
my life experience.
Mr. Settle. Mr. Chairman, I did serve as a criminal defense
lawyer in the Army Judge Advocate General's Corps, and I served
many soldiers from various socioeconomic backgrounds. That
taught me much about life generally and the circumstances in
which they grew up. It definitely required paying attention to
those things.
When we say the Pledge of Allegiance, we say ``justice for
all''. I think it's one of the real challenges of our court
system to recognize that ``justice for all'' is a difficult
goal to meet, understanding that different individuals who will
come before a court have different resources.
That is something I think that a Federal judge very much
must keep in mind, is that though it is equal justice for all,
it is not equal resources for all, and that that's part of the
court's responsibility.
Senator Durbin. Judge Kapala?
Judge Kapala. Mr. Chairman, I know what it's like to live
economically disadvantaged. When I was born, my parents lived
in a garage that had been converted into an apartment. From
there, we moved to a four-room house--not four bedrooms, four
rooms--and five of us lived there; my mom, my dad, myself, my
brother, my sister, and my dad's father, who had some health
problems, and we cared for him to make sure that he would be
all right. My brother and I shared a bed.
I know what it's like to buy clothes a couple sizes too
large so you can grow into them. I know what it's like to go to
a penny candy store and not have a penny in your pocket. Our
house had a flat tin roof, no garage, no basement. I expect
that the people in my neighborhood would receive the same
treatment before the law that anyone would receive.
Canon 63 of the Illinois Code of Judicial Ethics requires
judges to not manifest, by word or deed, any bias or prejudice
based upon socioeconomic status, and I will scrupulously adhere
to that canon.
Senator Durbin. I'd like to ask some specific questions, if
I could. Judge Kapala, I'll stay with you for a moment. First,
let me preface these remarks by saying I know that, in the
course of a political campaign, all of us have said things
which may go to an extreme and, as we reflect on them later,
have a different view.
I'd like to refer to one of your campaign statements in
1994, where your slogan was ``A Tough Judge for Tough Times''.
And you said in an interview that year that you had been given
the nickname ``Maximum Fred'' because you were a local
prosecutor early in your career who often sought maximum
sentences for criminal defendants.
Can you tell me now, from the perspective of time and as
you reflect on it and in your new role, whether that is
something that you would like to be known as when it comes to
your Federal judicial post?
Judge Kapala. Thank you, Mr. Chairman, for that question.
When I made that statement, I was a prosecutor. Every job I've
ever had in my life has received my full commitment, my full
devotion. Sometimes as a prosecutor you have cases before you
that require the maximum sentence.
It's a sad fact of our world that there are some people who
are heartless people, who receive enjoyment from inflicting
pain and suffering on others. And to those people, I think the
law should treat harshly.
But I understand that we shouldn't view everyone through
the same lens. There are people who are not heartless. There
are people who are good, decent people that have made a
mistake. There are people who are afflicted with different
challenges in their life and they need to be treated
differently.
As a Federal District judge, if I am fortunate enough to be
confirmed, I have the benefit of sentencing guidelines. I know
that the Supreme Court has said they are advisory now instead
of mandatory, but I will pay strict deference to those
guidelines. You can be assured, sir, that I will tailor my
sentences and my approach to the law based upon the
characteristics of the cases that come before me.
Senator Durbin. You've been a judge for 25 years. What's
the toughest decision you've ever had to make as a judge?
Judge Kapala. For three of those years I was the presiding
judge of our Juvenile Court. One of the toughest rulings that
I've had to make was to terminate a person's parental rights.
To that person, it's just as if that child had died because
they'll never see that child again, they'll never watch them
grow up, watch them go to school, see them get married, have
grandchildren. That is a heart-wrenching decision.
But the other side of that coin is, sometimes, even after
you've taken a parent or a child out of the home, through
counseling, hard work, and education you can restore a parent
to fitness.
And although it's been one of the hardest decisions in my
career to terminate a parent's parental rights, there are few
decisions that are more gratifying than to be able to give a
child his or her parent back to them. So, I've gone to both
extremes as a presiding justice of the Juvenile Court.
Senator Durbin. Mr. Settle, in your questionnaire submitted
to the Judiciary Committee you said that 98 percent of your
practice has been in the State court and a small percentage, 2
percent, before the Federal court. Tell me about the learning
curve as you seek a spot here on the Federal judiciary.
Mr. Settle. There will be a learning curve, Mr. Chairman,
there is no question about that. But I don't come without
understanding and knowing the Federal rules of evidence and the
Federal rules of procedure.
Those were the rules that we were to follow, and did
follow, when I was in the Army in the Judge Advocate General's
Corps. The State of Washington has adopted both those two
uniform Federal rules of both evidence and procedure.
And, of course, I spent about two-thirds of my career as a
litigator in State court, spending lots of time in litigation,
working with those rules. So, I think that though it's going to
be a new environment for me, and I surely intend to work hard
to get up to speed with the uniqueness of the Federal court as
opposed to State court, I believe that all of that background
and experience will serve me well, if I am confirmed.
Senator Durbin. I would like to ask you about a question
which haunts us all, and it's not directed to you personally.
But I think when we talk about justice in our country, we have
to be sensitive to the fact that race is an issue and that many
people of color believe that the system is stacked against
them.
They see disproportionate numbers of their brothers and
sisters who were arrested, prosecuted, and incarcerated. I
think they feel that the system just is not fair when it comes
to the question of race. What has been your life experience in
dealing with racial issues before the courts?
Mr. Settle. Mr. Chairman, I alluded earlier to my
experience in the Judge Advocate General's Corps, and I think
that that was the first opportunity that I really got to be in
a position to understand someone who came from a different
background and a different circumstance than I did. It was an
education.
I don't know how to explain, other than to say that in any
courtroom, if I were to be confirmed as judge, I would think it
extremely important to treat every litigant, regardless of
their race, with a great deal of respect and be able to convey
that to everyone in that situation.
When I was a criminal defense lawyer, I worked hard to get
to know my client. I might spend the first session finding out
about the facts underlying the alleged charge and I would go
back to the stockade, or if my client was not incarcerated
pending trial I would have that person come in, and get to know
them.
Will Rogers said, ``I never met a man I didn't like'', and
I found that that was the case also with criminal defendants.
They are people just like you and me. Sometimes, especially on
a first offense, it's very important that that experience of
that individual, that they go away believing in their system
and in the whole criminal justice process.
Senator Durbin. Mr. Ozerden, in your questionnaire you
indicated that 99 percent of your legal practice has been
civil, a very small percentage criminal. In the Federal
judiciary, about 1 out of 4 cases that you will face will be
criminal in nature. How are you going to deal with that
learning curve?
Mr. Ozerden. Thank you, Mr. Chairman. Throughout my career,
although my civil practice has been the vast majority of my
practice, I have had some criminal exposure so I think that
that will help me. I also had some experience as a Federal
judicial law clerk at the District court level, where I saw
criminal cases and assisted with the judge trying those cases.
So, I have had some exposure with the criminal system. I
think that that's going to be a foundation I can build from.
The docket in the Southern District of Mississippi, where I
will be working, is predominantly civil.
But I think, with the experience I have had throughout my
practice and the resources I'll have through the Administrative
Office of Courts and other judges, if I'm confirmed, will
assist me in making that transition.
Senator Durbin. Mr. Ozerden, I'm a little older than you
are. In my lifetime, I can recall, while attending Georgetown
School of Foreign Service, the civil rights era. It was a
painful era for our country, and particularly painful for your
home State of Mississippi as we look back on it.
I asked a question earlier of Mr. Settle. I'd like to ask
the same of you. As I understand it, the largest percentage of
African-American population of any State is Mississippi, and
race is part of your justice system that you are now asking to
be part of as well.
I'd like your reflections on the issues of race and justice
from a Mississippi perspective, from a perspective as a Federal
judge.
Mr. Ozerden. Thank you, Mr. Chairman. If I'm confirmed for
this position, from my perspective, the most important thing in
my charge will be to be fair and impartial to all parties,
regardless of their ethnic background and economic background.
I have had the opportunity, because I've practiced in a
smaller community, that when I've been involved in cases I have
seen people of different backgrounds and I've had that exposure
to them in the courtroom.
In a larger community, sometimes you may only deal with
large companies and that sort of thing when you're in court,
but I have had the exposure to, in a smaller community, people
of different backgrounds. I think that will enable me to
understand where they're coming from. Again, the main thing is
for me to be fair and impartial, and I will do that.
Senator Durbin. Thank you.
I have no further questions. Perhaps some of my colleagues
will submit questions to you before your nominations come
before the full Judiciary Committee.
I want to thank all the nominees for being here today, and
thank your families and friends for joining you. I'm sure it's
a memorable day in your lives to take this step forward. We are
anxious to give you a fair hearing before the full committee,
and hope to move these nominations in an expeditious manner.
Again, thank you all for being here today.
This meeting of the Senate Judiciary Committee stands
adjourned.
[Whereupon, at 10:45 a.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow].
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF DEBRA ANN LIVINGSTON, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SECOND CIRCUIT; ROSLYNN RENEE MAUSKOPF, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK; RICHARD JOSEPH SULLIVAN,
NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; AND
JOSEPH S. VAN BOKKELEN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF INDIANA
----------
WEDNESDAY, APRIL 11, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:16 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer, presiding.
Present: Senator Schumer.
Senator Schumer. The hearing will come to order, and I
apologize for being late.
Our first witness is Senator Richard Lugar, one of our fine
leaders in the Senate, who has waited patiently. So without
further ado, Senator Lugar.
PRESENTATION OF JOSEPH S. VAN BOKKELEN, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF INDIANA, BY HON. RICHARD
LUGAR, A U.S. SENATOR FROM THE STATE OF INDIANA
Senator Lugar. Well, thank you very, very much, Mr.
Chairman. It is a great pleasure and honor to be here today to
introduce an outstanding district court nominee for the
Northern District of Indiana, Joseph Van Bokkelen.
I would first of all like to thank you, Mr. Chairman, and
the Chairman of the Judiciary Committee, Chairman Pat Leahy,
and the Ranking Member, Senator Arlen Specter, for holding this
hearing today and for moving so quickly on this nomination. I
am pleased that Joe is joined here today by his wife, Sally;
his daughter, Kate; Dr. Paul and Betsy Hauser; and Bud and
Cathy Huey.
In July of last year, Judge Rudy Lozano informed me of his
decision to assume senior status after a distinguished career
of public service. He was a remarkable leader on the Federal
bench, and I applaud his leadership to Indiana and to the legal
community.
Given this upcoming vacancy and the need for strong
leadership, I was pleased to commend to President Bush Joe Van
Bokkelen to serve on the Federal court in the Northern District
of Indiana. I have known Joe for many years, have been
impressed with his high energy, resolute integrity, and
remarkable dedication to public service.
Joe Van Bokkelen attended Indiana University where he
received both his undergraduate and law degrees. He then served
in the Indiana Attorney General's office, followed by his first
experience in the United States Attorney's Office in the
Northern District.
After many years of private practice, Joe assumed his
current position of United States Attorney for the Northern
District of Indiana on September 21, 2001. His performance in
this position has been nothing short of remarkable. He has
undertaken the most aggressive public corruption initiative in
the history of the office. Since 2002, over 30 public officials
have been indicted and convicted.
Joe has also used his office to target the use and
possession of illegal firearms, combat gang activity, implement
drug-demand reduction programs, and cultivate community
partnerships. Likewise, Joe has demonstrated leadership in the
Justice Department, where he serves on several of the Attorney
General's Advisory Committees, including Violent and Organized
Crime, White Collar Crime, Sentencing Guidelines, and the
Region Information Sharing Working Group.
Newspapers across northern Indiana contain articles and
editorials applauding his determination to bring about
effective law enforcement. The Northwest Indiana Times recently
commented that Joe Van Bokkelen ``has an excellent track record
for the 5 years he has led the U.S. Attorney's Office in
Northern Indiana.'' He has received a number of high
performance ratings, including the AV Rating from Martindale-
Hubbell and the highest judicial rating from the American Bar
Association. Outside of his public service, Joe is involved in
a number of community activities and civic organizations.
I would like to thank you again, Mr. Chairman, for this
opportunity to present Joe Van Bokkelen to the Committee. I
believe that he will demonstrate remarkable leadership to
northern Indiana and will appropriately uphold and defend our
laws under the Constitution.
Thank you, sir.
Senator Schumer. Thank you, Senator Lugar, and your strong
recommendation of Mr. Van Bokkelen will go a long way with this
Committee, so we thank you for being here.
Senator Lugar. Thank you very much.
Senator Schumer. I would now ask our four nominees to come
forward. Would they please take their seats? Debra Livingston,
Roslynn Mauskopf, Richard Sullivan and Joseph Van Bokkelen.
I have an opening statement. I did not give that so that
Senator Lugar could get on his way, but I think before I give
my opening statement, why don't you all stand, raise your right
hand. Do you affirm that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth?
Ms. Livingston. I do.
Ms. Mauskopf. I do.
Mr. Sullivan. I do.
Mr. Van Bokkelen. I do.
Senator Schumer. Please be seated.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. Well, good morning, everybody, and I thank
you all for being here. I want to observe that our nominees
this morning are Federal prosecutors or former Federal
prosecutors, which is very timely given our Committee's
investigation into whether the Department of Justice has
impinged on prosecutorial independence. We have two sitting
U.S. Attorneys: Ms. Mauskopf from my home Eastern District of
New York, Brooklyn and four other great counties; and Mr. Van
Bokkelen for the Northern District of Indiana. We also have two
former Assistant U.S. Attorneys, both Mr. Sullivan and Ms.
Livingston having served in the Southern District of New York.
And as if that were not enough, I understand we have at least
one other Assistant U.S. Attorney among the family members
today. So that is all very good news.
I also want to point out, take the liberty sitting in the
chair here as the Chairman of the Subcommittee that oversees
the courts, and being a New Yorker, having three of the four
nominees come from New York, I want to point out that the
record we in New York have for a system of nominating Federal
nominees works. It has worked very well for the 6 or 7 years--
everyone has heard about the rancor that goes on in the
nomination of judges, but in New York it has worked quite well
in the past. There is often rancor in other parts of the
country, but very little in the quiet, bashful State of New
York. So I am glad to see that that happens.
But, seriously, it is because in New York we have an
effective and bipartisan way to select qualified and moderate
candidates--not too far right, not too far left--for the bench.
And apropos of that point, let me note that Senator Clinton,
whom I work with very closely in these areas, will be
submitting a statement of support for all three of the nominees
from New York, which I am sure the Judiciary Committee will
appreciate.
Now, let me introduce our nominees here today. First, Debra
Livingston for the Second Circuit, which is an appellate court,
as you all know.
Ms. Livingston's career so far has spanned private
practice, criminal prosecution, and academia. She is currently
Vice Dean and the Paul J. Kellner Professor of Law at the
Columbia University Law School, one of the finest in the
country, where she teaches criminal procedure and evidence, in
addition to a seminar on national security and terrorism. She
has written extensively on law enforcement accountability and
other criminal law issues, and she is co-author of a criminal
procedure casebook.
Ms. Livingston is a graduate of Princeton University and
received her J.D. from Harvard Law School, my alma mater, where
she served as an editor of the Harvard Law Review. I was not so
fortunate to be on the Law Review.
After completing her J.D., Ms. Livingston began her legal
career by clerking for Judge J. Edward Lumbard on the U.S.
Court of Appeals for the Second Circuit. So, if confirmed, this
would really be her second time serving the Second Circuit
Court.
From 1986 to 1991, Ms. Livingston, as was mentioned, was an
Assistant U.S. Attorney in the Southern District of New York,
where she prosecuted public corruption cases and served as the
Deputy Chief of Appeals in the Criminal Division. Before and
after her time as prosecutor, Ms. Livingston was an associate
at the major New York law firm of Paul, Weiss, Rifkind, Wharton
& Garrison--again, where I served for one summer. That was all
I lasted there.
She entered academia in 1992 at the University of Michigan
Law School and then returned to New York in 1994 to join the
faculty of Columbia Law School. She also served as Commissioner
on the New York City Civilian Complaint Review Board for many
years, from 1994 until 2003.
Ms. Mauskopf has served since 2002 as the U.S. Attorney for
the Eastern District of New York, where she oversees all
Federal criminal and civil cases in Brooklyn, Queens, Staten
Island, Nassau, and Suffolk counties. She is originally from
Washington, D.C., earned her undergraduate degree from Brandeis
University, and her J.D. from the Georgetown University Law
Center.
Ms. Mauskopf is a veteran public servant, having served as
the New York State Inspector General from 1995 to 2002. That
office is responsible for investigating misconduct in all
executive branch agencies for the State. While serving in that
capacity, Governor Pataki also appointed her as Chair of the
Governor's Moreland Act Commission on New York City Schools.
Prior to her appointment as Inspector General, Ms. Mauskopf
served as an assistant district attorney in Manhattan, where
she prosecuted violent crimes and white-collar cases, among
other matters. In the district attorney's office, Ms. Mauskopf
rose to become the Deputy of the Special Prosecutions Bureau in
1992 and Chief of the Frauds Bureau in 1993 to 1995.
Richard Sullivan--or it says ``Rich'' Sullivan.
Mr. Sullivan. Either one is fine.
Senator Schumer. OK. Well, the card says ``Richard'' and my
notes say ``Rich.'' Last but not least, let me introduce Rich
Sullivan. This is a nice friendly hearing, so you can call me
``Chuck'' and I will call you ``Rich.''
[Laughter.]
Senator Schumer. Mr. Sullivan is the General Counsel of
Marsh & McLennan Companies, Inc. That is a global professional
services firm. He is a native of Long Island and attended
William & Mary College. Mr. Sullivan earned his J.D. from Yale
Law School, began his legal career as a clerk to Judge David
Ebel in the U.S. Court of Appeals for the Tenth Circuit in
Colorado.
Like most native New Yorkers, he did not leave for too long
and returned after his clerkship to practice law for several
years with the firm of Wachtell, Lipton, Rosen & Katz. In 1994,
Mr. Sullivan left private practice to become a Federal
prosecutor, serving as Assistant U.S. Attorney in the Southern
District of New York from 1994 to 2005. He became a supervisor
of the General Crimes Unit, then chief of the Narcotics Unit.
Later, then-U.S. Attorney Jim Comey named Mr. Sullivan the
founding chief of the newly created International Narcotics
Trafficking Unit, dedicated to investigating and prosecuting
the world's largest narcotic-trafficking and money-laundering
organizations.
During his last 3 years in the office, from 2002 to 2005,
Mr. Sullivan was also Director of the New York-New Jersey
Organized Crime Drug Enforcement Task Force, where he managed
the activities of law enforcement officers conducting
investigations and prosecutions for a major Federal task force.
I should note that while Mr. Sullivan was with the Southern
District of New York, he supervised my chief counsel, Preet
Bharara, right here. You probably read his glowing article in
Time Magazine. His mother enjoyed it very much, he informed me.
But Preet has only had wonderful things to say about Rich
Sullivan. I guess that is why it says ``Rich.''
Anyway, I thank these three nominees for being here, and my
colleague, Senator Lugar, has introduced Mr. Van Bokkelen. I am
introducing these three nominees not as Chairman so much but as
the Senator from New York.
So before I move on, I would like to give each of the
nominees a chance to introduce families or friends who they
might have with them today, because I know this a proud day,
not only for the nominees but for their families. You know, we
all know how our families are being us every step of the way,
and we would not be there, I am sure you all agree with me,
without the support our families have given us.
So why don't we first go to Professor Livingston. Do you
have any people you might like to introduce?
STATEMENT OF DEBRA ANN LIVINGSTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SECOND CIRCUIT
Ms. Livingston. Yes, Senator. I have with me today my
husband, John McEnany, and my father, Robert Livingston. I was
lucky enough to receive notice of this hearing when my parents
were in New York. My mother, Sara Livingston, would have liked
to be here, but she is home helping to take care of our--
Senator Schumer. Would they wave or like to stand up so we
can see them both? Thank you. Congratulations to both of you.
[The biographical information of Ms. Livingston follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. How about Ms. Mauskopf?
STATEMENT OF ROSLYNN RENEE MAUSKOPF, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Ms. Mauskopf. Thank you, Senator Schumer. Today I have with
me my mother, Regina Mauskopf, who is very, very proud to be
here and I think would not be embarrassed to note in the
Congressional Record that she is about to turn 90.
Senator Schumer. God bless. And a Holocaust survivor.
Ms. Mauskopf. A Holocaust survivor, along with my father,
Barry Mauskopf, who passed away a few years ago and who is with
us in spirit. I am happy to have both of them here.
Senator Schumer. Amen.
Ms. Mauskopf. I am also very happy to have my home-State
Senator chairing this hearing.
Senator Schumer. Thank you. And would you just like to
wave, Mrs. Mauskopf? Thank you. And many more years to you. May
God give you many more years.
[The biographical information of Ms. Mauskopf follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Rich Sullivan, you can introduce your
family by their nicknames, too.
[Laughter.]
STATEMENT OF RICHARD JOSEPH SULLIVAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK
Mr. Sullivan. I actually will. My father is here today,
John ``Jack'' Sullivan.
Senator Schumer. Jack.
Mr. Sullivan. He is a Flushing-born, now Long Island
resident for many years. My wife, Anne, and our twin daughters
could not be here today. My father-in-law is in the hospital,
so she is caring for him.
Senator Schumer. We wish him a speedy recovery.
Mr. Sullivan. Thank you, Senator.
[The biographical information of Mr. Sullivan follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. And Mr. Van Bokkelen.
STATEMENT OF JOSEPH S. VAN BOKKELEN, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF INDIANA
Mr. Van Bokkelen. In my case, Senator Lugar introduced all
my family members. I am excited that they are here, in
particular, Dr. Paul and Betsy Hauser who are my wife's
stepmother and husband.
[The biographical information of Mr. Van Bokkelen follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Great. Well, thank you very much, and
welcome to all the families, and now I have a few questions for
each of the nominees.
First, this one is for Debra Livingston. First, could you
please identify two judges or Justices whom you admire and
explain the reason why.
Ms. Livingston. I am a believer in judicial restraint,
Senator, and so as a result of that, I very much admire the
work of judges that have embodied that philosophy in their
work. Justice Jackson comes immediately to mind. People love
him for his writing and for the beauty of that writing. But he
was a firm believer that part of the judicial task is to
confine yourself to the appropriate role.
I could also mention Justice Harlan, who also embodied this
in his judicial philosophy.
I should also say I cannot subscribe to all the opinions of
both of those Justices, but their general overall philosophy I
am very much sympathetic with.
Senator Schumer. And one from New York, one from New
Jersey. That is very nice, too. OK.
You spent 15 years as a law professor, first at the
University of Michigan and since 1994 at Columbia. Prior to
entering academia, you practiced law for 8 years. What can you
tell the Committee to assure us your past courtroom experience
provides a sufficient background for you to assess the district
court records that you would review as an appellate judge?
Ms. Livingston. Well, I did have a significant court
experience as a prosecutor and as a Second Circuit clerk where
I was able to observe firsthand how Second Circuit judges go
about assessing the work of the district court.
As a law professor, I have written and thought and taught
in the fields of procedure, so I have remained immerse in
thinking about procedural law and how judges implement the rule
of law. And so I think am very sensitive to the role of the
appellate court in supervising district courts.
Senator Schumer. OK. Now, in 1998, you participated in a
roundtable discussion about Terry v. Ohio. That was the
landmark Supreme Court case that established police may stop
and frisk a person for weapons based on reasonable suspicion.
You praised the Terry decision because, ``The Court in Terry
did not foster the illusion of judicial control'' over the day-
to-day encounters between police and citizens.
In your view, what is the proper role of the courts in
regulating how police and other actors exercise the discretion
granted to them by the criminal law?
Ms. Livingston. Well, Senator, judges have a profound
responsibility to decide the cases and controversies that come
before them, and in that context there will be Fourth, Fifth,
other Bill of Rights provisions raised that implicate police
behavior. And courts articulate standards that then come to
influence the operation of police departments.
In that particular roundtable, I was speaking to the
wisdom, I thought, of the Terry v. Ohio opinion in recognizing
that that is a very important role, but that the judiciary
cannot be the only part of Government that plays a role in
promoting and fostering police accountability. So legislatures
and the Executive have also historically played an important
role and have helped foster reform in police departments, along
with the Judiciary.
Senator Schumer. Thank you. OK. Now for the district court
nominees. First I have some questions that I will ask all of
you, and we will go with them seriatim. The same question I
first asked Professor Livingston, it is one of my favorites,
and that is, please identify two judges or Justices whom you
admire and explain the reason for your selection. Ms. Mauskopf?
Ms. Mauskopf. I also admire Justice Jackson, not only for
his body of work as a Supreme Court Justice, but he served as
an Attorney General of the United States; he was also the chief
prosecutor at the Nuremberg trials. He also gave, as Attorney
General, one of the seminal speeches about the Federal
prosecutor. And in that speech, which I quote to every
Assistant United States Attorney that I swear in, he talks
about the awesome power that a Federal prosecutor holds. A
prosecutor has more control over life and liberty than any
other person in America. And it is something that has always
been in the forefront of my mind as a prosecutor from my days
in the D.A.'s office to my days at U.S. Attorney, and it is
something that will be in the forefront of my mind, should I be
confirmed as a Federal district court judge.
Senator Schumer. OK. Do you have another one?
Ms. Mauskopf. Supreme Court Justice?
Senator Schumer. Anybody. It could be two judges or
Justices, either one.
Ms. Mauskopf. I think one of my favorite district court
judges whom I admire greatly, who serves on the Eastern
District bench, is Judge Nicholas Garaufis, who comes at his
work obviously as a great lawyer, with great legal skill, but
with great common sense and practical experience. And to me, as
a district court judge, the combination of those two attributes
make for a great district court judge.
Senator Schumer. I think you have summed up Judge Garaufis.
He is a new judge. Somehow the wheel has given him a whole lot
of controversial cases right away, but he has done a great job
and I agree with you. I agree with you about all of these. You
picked very well, both of you.
Mr. Sullivan?
Mr. Sullivan. Well, the first judge who would come to mind
would be Michael Mukasey, whose seat I would be taking if I
were fortunate enough to be confirmed. I thought Judge Mukasey
always exhibited tremendous intelligence, independence, and
treated all litigants and lawyers with great respect. And I
thought that was exactly what a district judge should be, and I
think he was recognized as a model district judge.
Another judge would be Denny Chin, also in the Southern
District, who I think I had four trials before, and I was
always struck by how he made defendants and defense lawyers and
prosecutors feel that they had a fair shake at the trial. And I
remember on one occasion a defendant, who had been convicted,
nevertheless thanked the Court for conducting a fair trial. I
thought that speaks volumes about the man.
Senator Schumer. Thank you. I will let the record show that
I recommended Judge Mukasey to become Attorney General. Not
that I want to throw any politics into this hearing. So I think
highly of him as well.
Mr. Van Bokkelen?
Mr. Van Bokkelen. Mine, likewise, would be district court--
Senator Schumer. You do not have to pick New York judges,
Mr. Van Bokkelen.
[Laughter.]
Mr. Van Bokkelen. I was trying to write down some names of
New York judges I could remember. I came up with zero. But
there would be district court judges, because that is where I
spent my whole life, prosecuting cases and defending cases in
district court. And three of them would be:
Judge Michael Kanne, who sits on the Seventh Circuit now,
but, however, was in the Northern District of Indiana; as a
matter of fact was a fraternity brother of mine; Judge Phil
McNagny, who is deceased; and Judge George Beamer, who was a
judge when I became an Assistant U.S. Attorney, at a much
younger age than I am right now, and who guided me through a
lot of things, particularly the role of a prosecutor, the
limits of prosecutorial authority, and how to conduct yourself.
Senator Schumer. Good. OK. And let me now ask some specific
questions of each of our nominees based on their experience.
For U.S. Attorney Mauskopf, you have spent essentially all
of your career, legal career, as a prosecutor in the State and
Federal systems, but you have spent little or no time
representing the other side in the criminal justice system.
What can you tell the Committee to assure us that, if
confirmed, you will be able to fairly consider the claims and
rights of criminal defendants who come into your courtroom?
Ms. Mauskopf. I think the first order of a prosecutor in
considering any case that comes before a prosecutor is to think
about the other side. In fact, I was taught that from my first
days in the Manhattan D.A.'s office, and I have done that in
assessing each case, each issue that has come before me as a
prosecutor, and as a result of doing that throughout my entire
career, I have earned a reputation from being a fair and honest
prosecutor, one with integrity, one that considers both sides
fairly.
It is equally important, it has been equally important
throughout my career as a prosecutor, as the IG, to determine
not to bring charges as well as to bring charges. So seeking
justice is the primary role of a prosecutor, and that ensures
that both sides are considered.
Senator Schumer. Thank you.
And for Mr. Sullivan, you served for over a decade as a
prosecutor in the Southern District, the same district that you
have now been nominated to serve as a judge. You left the U.S.
Attorney's Office relatively recently. What can you tell the
Committee to assure us you will be able to fairly consider the
cases brought by Federal prosecutors who worked with you or
under your supervision in the U.S. Attorney's Office?
Mr. Sullivan. Well, I agree with much of what Ms. Mauskopf
just said. I think a prosecutor's first role is to do justice
and to make sure that in making charging decisions, which are
monumental decisions in an individual's life, that they have
great--they have certainty, to a moral certainty, about the
guilt of the individual being charged and would hold
prosecutors to an extremely high standard. I think I had a
reputation for doing that when I was supervising assistants,
that we should never lightly indict anyone. And I would expect
prosecutors to adhere to that norm when they appeared in front
of me.
I would also expect them to treat defendants and defense
lawyers with great respect. You know, our system of justice is,
I think, the envy of the world, and much of it turns on the
respect with which we treat accused individuals who are
innocent until proven guilty.
Senator Schumer. Thank you, Mr. Sullivan.
And for Mr. Van Bokkelen, you are currently serving as the
U.S. Attorney for the Northern District. That is the same
district where you have been nominated, just like Mr. Sullivan.
So what can you tell the Committee to assure us you will be
able to fairly consider cases brought by Federal prosecutors
who worked for you in the U.S. Attorney's Office?
Mr. Van Bokkelen. Well, one difference I have is the better
part of my career has been spent defending people, those
charged by the Government with crimes. And when I was in
private practice, I did a lot of pro bono defense work. I was
one of the founding members of the Federal Community Defender
Program, which now operates in our district. So I have been on
both sides of representational matters.
The fact is, as I move from one position over to the other
position--I think I did that without a problem--I make sure I
instituted in my district a very detailed prosecution
memorandum to make sure the cases we were bringing were worthy
of Federal prosecution and reminded my prosecutors at all times
that one of the most difficult decisions to be made when an
agency is pushing very hard is the decision not to prosecute.
And if a case is prosecuted, it should be prosecuted because it
is worthy of a prosecution, not simply because someone thinks a
crime may or may not have been committed.
Senator Schumer. OK. And one other question for all of our
district court nominees. You know one of the things this
Committee is talking about now is the firing of the U.S.
Attorneys. So just, in general--I do not want to ask you about
any of the specifics, but in your view, what is the proper
balance between the need for prosecutorial independence and the
President's prerogative to appoint U.S. Attorneys? We will
start with Ms. Mauskopf and move our way over.
Ms. Mauskopf. I think the President's prerogative and the
Attorney General's prerogative to set the criminal justice
priorities for an administration is entirely appropriate, and
it is part of the role of a U.S. Attorney to carry out those
priorities and to particularize those priorities within a
particular district. It is also the role of the U.S. Attorney
to address whether or not the national priorities are as much
of a priority within that particular district and to assess
what other priorities need to be addressed within a judicial
district.
The balance is a delicate one, and it is one that both the
executives, the Attorney General and the President, as well as
the U.S. Attorney, have to--there has to be a dialog. There has
to be a discussion. And there has to be a complete
understanding on both sides as to how those priorities and
prerogatives are going to be carried out.
Mr. Sullivan. Well, I would agree with much of that answer.
I would add, I think, that I think it is vitally important for
individuals in a district to believe that their United States
Attorney is above politics.
In New York, I will say that the three United States
Attorneys whom I served--Mary Jo White, Jim Comey, and David
Kelley--were perceived that way, and there is a tremendous
importance attached to that perception. I do not think anyone I
ever dealt with ever felt for a moment that decisions made by
the office were in any way tainted by petty political
considerations or that indictments were brought because of
pressure brought to bear. I think that is a tremendously
important thing, that kind of independence and presumption of
good faith on the part of U.S. Attorneys.
Mr. Van Bokkelen. I agree with the answer of my colleagues,
and one other thing I think supports that is the fact that
Senator Bayh, in fact, is supporting my nomination, which I
failed to acknowledge. I think that speaks pages to what is
perceived by both sides as to the function I have served, and
it has been very much down the line and I have called them as
they needed to be called.
Senator Schumer. Do any of the four of you want to add
anything else?
[No response.]
Senator Schumer. Thank you all for coming, and the hearing
is adjourned.
[Whereupon, at 10:46 a.m., the Committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF WILLIAM LINDSAY OSTEEN, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA; MARTIN KARL REIDINGER,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH
CAROLINA; TIMOTHY D. DEGIUSTI, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF OKLAHOMA; AND JANIS LYNN SAMMARTINO, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA
----------
WEDNESDAY, JUNE 20, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:35 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein, presiding.
Present: Senator Feinstein.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. I apologize to my colleagues and to
those who are interested in our nominees for being late. I do
not like to be late. Everything is coming down at one time, and
I think probably the other Senators understand what I mean. In
any event, I am very pleased to welcome Senators Inhofe, Dole,
and Burr to this judicial nominations hearing. We have four
distinguished judicial nominees on the agenda today, and we
welcome them as well. We look forward to hearing from them
after the introductions.
One of our most important constitutional duties is to
consider the President's judicial and executive branch
nominations, and today's hearing continues the progress that we
have made in the 5\1/2\ months since this Congress began.
The Senate has confirmed 18 nominees so far this year. As
Chairman Leahy recently pointed out, that is more judges than
were confirmed in the entire 1996 session of Congress when
President Clinton was in office, and we are only at the
midpoint of this session. Chairman Leahy is also justifiably
proud of the fact that during the Bush Presidency, the Senate
Judiciary Committee under Democratic control has confirmed more
circuit judges, more district judges, and more total judges
than under either of the Republican Chairmen who worked with
Republican majorities in the Senate.
The reason I go into this is it is often mentioned back and
forth in the Judiciary Committee, and so every chance on this
side of the aisle we get to straighten the record, I like to do
it.
In any event, we still do not rubber stamp each judicial
nominee, of course, and we try to act as quickly as possible to
confirm nominees. So I would like to hear from the three
Senators who are here. I would like to indicate that Senator
Coburn would be present to support his nominee, but as I think
most know, he has had surgery and is recovering. As soon as he
comes back, he will put comments in the record.
Who was the first Senator on the spot? Does anyone have a
time issue?
[No response.]
Senator Feinstein. Well, then, I will go to the woman
automatically. Senator Dole, would you proceed?
PRESENTATION OF WILLIAM LINDSAY OSTEEN, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, AND
MARTIN KARL REIDINGER, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF NORTH CAROLINA, BY HON. ELIZABETH DOLE, A
U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Dole. Thank you very much, Chairman Feinstein, for
holding today's hearing. It is my great privilege to be here
and to introduce two outstanding North Carolinians who are
nominees for district judgeships in my home State: William
Osteen, Jr., for the Middle District, and Martin Reidinger for
the Western District. Both Bill and Martin have amassed
impressive records of accomplishment in their legal careers. I
am proud to have recommended them to President Bush, even
though they both went to the University of North Carolina for
their undergraduate and law degrees, a fact this Duke alumni
just had to overlook. And let me add that Bill's mother,
Joanne, has been a treasured friend of mine since our Duke days
together.
Bill Osteen has deep roots in North Carolina, receiving his
education in our State, as I have mentioned, and practicing law
there for the past two decades. In 2004 and 2005, Business
North Carolina included him in its Legal Elite, the cream of
the crop, selected not by the editors of the magazine but by
State bar colleagues. Bill has broad experience in both
criminal and civil litigation. As we all know, criminal cases
make up a substantial and increasingly large portion of a
Federal district judge's docket, and Bill is well equipped to
handle this important aspect of the job. He estimates that he
has served as the counsel of record in more than 100 Federal
criminal cases. Bill also knows his way around a courtroom. In
an age when most cases are resolved through settlement or plea
agreement, Bill has taken over 30 cases to trial. On the
strength of this experience, I have no doubt that Bill will be
able to make the transition to district judge without missing a
beat.
In addition to a distinguished professional life, Bill also
has a very full personal life. He is a dedicated family man to
his wife, Elizabeth, and their two children--Anne Bennett and
Bill--and he is a man of faith, actively involved in the First
Presbyterian Church of Greensboro.
It is also notable that Bill has been nominated to succeed
his father to this seat. Bill's father, William Osteen, Sr.,
has served the Middle District with great distinction, and I
know that he must be proud indeed of his son's many
accomplishments. It is a rare and remarkable feat that a son
has the opportunity to serve in his father's one-time place on
the bench, and I am honored to tout Bill's many qualifications
here today.
And I am also honored to introduce Martin Reidinger, the
President's nominee for the Western District of North Carolina.
Martin, too, is a man of significant professional achievement.
For the past 23 years, he has practiced law in Asheville with
Adams, Henson, Carson, Crow & Saenger. Martin, I understand
that you drove all the way from the beautiful and probably a
lot cooler mountains of Asheville to muggy Washington to be
with us today, and, folks, that is nearly 500 miles. And we are
glad to see some of your strongest supporters--your wife,
Patti, and family here with you today.
Martin has vast civil litigation experience handling
matters running the gamut from employment law to land disputes.
He frequently appears in Federal courts and has litigated to a
verdict or judgment nearly 200 cases over the past two decades.
In addition, Martin has served as the President and Secretary
Treasurer of the Buckham County Bar Association, and he
currently sits on the Board of Directors for Pisgah Legal
Services, which provides free civil legal services to low-
income people who are unable to afford an attorney. In fact, in
2004, Martin accepted the North Carolina State Bar's
Outstanding Pro Bono Services Award for his law firm's
commitment to giving back to their community.
Martin and Bill come to this Committee with impeccable
credentials, and I am confident that they both would serve with
great distinction as members of the Federal judiciary. Both
have earned the respect of their colleagues and peers, many of
whom have contacted me to voice support for their nominations.
It is my great privilege to give them my strongest endorsement.
Thank you again for holding this hearing for two of North
Carolina's most talented and capable legal minds. Currently,
our State has four district court vacancies, so I urge this
Committee to act with due speed on these nominations, and I
thank you very much, Madam Chairman.
Senator Feinstein. Thank you, Senator Dole.
Senator Inhofe?
PRESENTATION OF TIMOTHY D. DEGIUSTI, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA, BY HON. JAMES M.
INHOFE, A U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Well, thank you, Madam Chairwoman. I am
proud to lend my support to the nominee here behind me, Timothy
DeGiusti, for the United States District Court for the Western
District of Oklahoma.
He was born in Oklahoma City, where he continues to live
with his wife, Elaine, and they have four children. He has led
a life of excellence and is no stranger to public service.
He enlisted in the Army National Guard as well as the Army
ROTC Program at the University of Oklahoma in 1981. In 1985, he
received his B.A. with distinction in ethics and religion at
the University of Oklahoma and officially joined the Army
Reserves.
After graduating from the University of Oklahoma College of
Law in 1988, Tim became an associate at Andrews Davis, an
Oklahoma City firm where he ultimately became a partner. Since
2000, he has been as a partner in the Oklahoma City firm
Holladay, Chilton & DeGiusti. He is a member of the Order of
Barristers and was named by Oklahoma Governor Brad Henry to be
a member of the Oklahoma Uniform Laws Commission, where he
serves as a delegate to the National Conference of
Commissioners of Uniform State Laws.
I would comment also that he has been strongly recommended
by Governor Henry who is a Democrat, so he has broad
professional, personal and bipartisan support.
From 1990 to 1993, Tim DeGiusti served on active duty as
trial counsel for the United States Army's Judge Advocate
Generals Corps, trying 57 courts martial cases. He continued to
work as a military lawyer in the Army Reserves until 1999 and
in the Army National Guard until 2003.
He has taught courses in military law and trial techniques
at the University of Oklahoma College of Law as an adjunct
professor and has authored articles such as ``Unlawful Command
Influence: Raising and Litigating the Issue,'' which appeared
in The Army Lawyer in 1993.
Tim was named among the 2006 Oklahoma Super Lawyers and has
received the Martindale and Hubbell ``peer review rating'',
which is the most prestigious of ratings. He is also listed
among Best Lawyers in America in 2007 and has received the
American Bar Association's highest rating of ``well-
qualified.'' His public service also extends to pro bono legal
services and long involvement in the Knights of Columbus.
I have to pause here and say that he happens to be the son-
in-law of someone who is a very close friend of mine, Judge
Ralph Thompson, with whom I served many years ago in the State
legislature. And so I know that Judge Thompson and his wife,
Tim's father-in-law and mother-in-law are very proud to be here
today to watch this process take place.
Timothy DeGiusti receives my full recommendation to serve
as district judge for the Western District of Oklahoma, and I
ask you to quickly approve his nomination.
Thank you, Madam Chairman.
Senator Feinstein. Thank you, Senator Inhofe.
Senator Burr?
PRESENTATION OF WILLIAM LINDSAY OSTEEN, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, AND
MARTIN KARL REIDINGER, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF NORTH CAROLINA, BY HON. RICHARD BURR, A
U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Burr. Madam Chairwoman, thank you, and I think it
is safe to say that Senator Dole and I are here in support of
two incredible candidates today. It is a privilege to be here
to introduce the Committee to two honorable North Carolinians
who are here in hopes of becoming United States district court
judges in our home State. Both Bill Osteen, Jr., and Martin
Reidinger have the qualifications, the experience, and the
temperament to be outstanding judges.
Bill Osteen--it is not the first time, as Senator Dole
said, that a Bill Osteen has been in front of this Committee
for this position. Over 15 years ago, his dad was considered by
this Committee, and he has served with unbelievable distinction
for his career on the bench. But make no mistake about it. Bill
Osteen, Jr., is not here today because his father was an
outstanding judge. Bill is here today because he is qualified
in his own right to serve on the Federal bench, and he is the
best person to keep this strong judicial legacy alive.
Born in Greensboro, North Carolina, Bill attended the
University of North Carolina at Chapel Hill for graduate and
undergraduate school. Like Senator Dole, being a Wake Forest
graduate, it is difficult for both of us to bring so many Tar
Heel graduates to the Hill. But, clearly, the experience and
the education they have is not a disqualifier.
Bill's professional legal experience is diverse. He has
litigated a wide range of cases, handling both civil and
criminal cases, and he is familiar, very familiar, with the
Federal procedure. But perhaps most importantly, in addition to
his impressive professional qualifications, Bill is a good man.
I had the pleasure of meeting Bill's family today before this
hearing. I can tell you that he is a good person. He is a good
son. He is a good dad to his two children, Anne Bennett and
Bill, and he is a good husband to his wife, Elizabeth. I urge
the members of this Committee to support Bill's nomination and
to confirm him to serve on the North Carolina Federal bench.
Martin--
Senator Feinstein. Thank you--excuse me.
Senator Burr. I have got one more, if I could.
Senator Feinstein. Please, go ahead.
Senator Burr. Thank you, Madam Chairwoman. Martin
Reidinger, as Senator Dole said, is from Asheville, North
Carolina. Traditionally, in North Carolina, it seems like the
Western District is always served by somebody out of Charlotte,
North Carolina. However, the Western District of North Carolina
spans western 200 more miles past Charlotte. Martin resides in
Asheville. It is located in that beautiful western region in
the Blue Ridge Mountains.
Like Bill Osteen, a Carolina graduate, undergrad and
graduate school, Martin has a well-established Federal practice
in western North Carolina. Throughout his career, he has
handled all types of cases, presented a wide range of clients
and has appeared in all levels of State and Federal court. He
truly represents western North Carolina.
So often nominees for this judicial district, as I said,
reside in Charlotte. We are proud of the fact that we have got
the people with the experience and the education and the
temperament, that are homegrown, that can serve on the bench. I
am pleased that the strong legal minds of western North
Carolina were not overlooked during this nomination process and
one of their own is here today. He is also here because his
qualifications of a good person, a great dad, a great person
put him at the top of the list of candidates that should be
considered.
Madam Chairwoman, you have before you today two qualified
nominees with a wealth of legal experience who maintain the
requisite judicial temperament to make an excellent Federal
judge. I hope that you will give these nominations prompt and
favorable consideration, and I urge my colleagues to expedite
these nominations.
I thank the Committee for their time.
Senator Feinstein. Thank you very much, Senator Burr, and I
would like to thank all three Senators. You know, your
testimony really is meaningful. It becomes part of the official
record. I know the candidates appreciate it, and I want you to
know the Committee appreciates it as well.
PRESENTATION JANIS LYNN SAMMARTINO, NOMINEE TO DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF CALIFORNIA BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. I am going to say a few words on behalf
of Judge Sammartino from San Diego, but if you wish to be
excused, please feel free. And I would like to put in the
record at this time a statement of the Chairman, Senator
Patrick Leahy. Thank you again so much.
I am very pleased to say a few words on behalf of the
nominee for the District Court of the Southern District of
California, Judge Janis Lynn Sammartino. She is a graduate of
Occidental College at the University of Notre Dame Law School.
After earning her law degree, she served as a law clerk in the
Superior Court of South Bend, Indiana. Since then, she has
devoted herself to service to her city and her State, and, of
course, that State is the best State in the Union--California.
Judge Sammartino worked for 18 years as a Deputy City
Attorney in San Diego. In her first 2 years as a deputy in the
Criminal Division, she prosecuted more than 50 criminal cases
in front of juries and an equal number of bench trials. She was
then promoted to the Municipal Law Section of the Civil
Division. She has played a key role in the design and
implementation of the city's Facilities Benefit Assessment
Program, a funding mechanism designed to finance public
improvements in the city. When the program was challenged in
court, she was part of the litigation team that defended it
successfully.
She later served as principal legal advisor to the city of
San Diego on redevelopment issues, played a major role in the
construction of the Horton Plaza Retail Center, which has been
really responsible to a great extent for the refurbishment of
the downtown of San Diego. And she rose to the rank of Senior
Chief Deputy City Attorney.
But if that is not enough, she was appointed to the
municipal court in 1994 and to the superior court in 1995. As a
testament to her skills as both a judge and a leader, her
fellow judges elected her to be assistant presiding judge from
2004 to 2005 and then presiding judge as of January of 2006.
She now oversees the second largest trial court in California,
which is also the third largest trial court in the Nation.
Clearly, her judicial career has given her experience in a wide
range of areas, and I am very pleased to recommend her.
I should say that she is a product of the screening
committee in which we have three Republicans and three
Democratic appointments who sit and screen judges. And we have
had a very good track record. All of our judges have been
confirmed.
So I would like to ask the four potential judges to come
forward, and I will administer the oath. If you would stand and
raise your right hand and affirm the oath when I complete its
reading. Do you affirm that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Osteen. I do.
Mr. Reidinger. I do.
Mr. DeGiusti. I do.
Judge Sammartino. I do.
Senator Feinstein. Thank you, and you may be seated. Now,
let me begin by saying that this is not a controversial group
of potential judges, so to that extent, at least you can relax.
I would like to invite each of you to say a few words and to
introduce your family. Then I will ask a few questions and that
will be it. So if we can go right down the line. Mr. Osteen, if
you would like to begin.
STATEMENT OF WILLIAM LINDSAY OSTEEN, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Mr. Osteen. Senator, thank you for your words in your
opening statement. All of us here I believe greatly appreciate
the concern that the Senate shows in discharging its duties in
reviewing these nominations. I would like to thank the
President for trusting me sufficiently to nominate me for
consideration to this position. I would also like to thank
Senators Burr and Dole for their kind comments here today as
well as their support throughout this process.
Most of all, I would like to thank the people that I am
getting ready to introduce to this Committee. They have shown
tremendous support of me throughout every endeavor that I have
undertaken, and I would like to start with my wife, Elizabeth
Osteen; my daughter, Anne Bennett Osteen; my son, Bill Osteen;
and then I would like to turn to my father, Judge William L.
Osteen, or Bill Osteen; my mother, Joanne Osteen; my brother,
Bob Osteen, and his fiancee, Jennifer Justice. I have one other
brother who now resides in the great State of California,
outside of Long Beach, California, and he unfortunately was
unable to be here today. But had he not been tied up with work,
he would certainly have been here by my side.
Thank you.
[The biographical information of Mr. Osteen follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Thank you very much.
Mr. Reidinger?
STATEMENT OF MARTIN KARL REIDINGER, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Mr. Reidinger. Thank you, Senator. First of all, I would
like to very much thank this Committee for having this hearing
today and giving me this opportunity to be here, and I would
like to thank you, Senator, for being here to chair this
hearing.
I want to express my thanks to Senator Dole and Senator
Burr for those very flattering introductions that they gave and
also for their support in this process as they have recommended
to the President that I be nominated.
I would also like to express my thanks to President Bush
for nominating me, to give me this opportunity, and to show
that confidence that he has in me in order to advance that
nomination.
I would also like to introduce my family. They are very
much responsible for very much of who I am. Behind me a couple
rows back is my wife, Patti; our oldest daughter Heather
McCrory, our daughter Sarah, our daughter Alex, and our son,
Max.
Thank you very much, Senator.
[The biographical information of Mr. Reidinger follows.]
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Senator Feinstein. Thank you very much.
Mr. DeGiusti, please proceed.
STATEMENT OF TIMOTHY D. DEGIUSTI, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF OKLAHOMA
Mr. DeGiusti. Thank you, Senator Feinstein, for holding
this hearing, and thanks to the other Committee members as
well. I would like to thank President Bush for nominating me
and thank Senators Inhofe and Coburn for their support and
thank Senator Inhofe for his introduction.
My family members who are here with me are my wife, Elaine;
my father-in-law, Judge Ralph Thompson; his wife, my mother-in-
law, Barbara Thompson; my brother-in-law, Frank Campbell;
sister-in-law, Lisa Campbell; and my sister, Cynthia Kadish. I
also have a friend who has made the trip to be here today, my
old boss from active duty Army days, Colonel (Retired) Bill
Condron.
Thank you.
[The biographical information of Mr. DeGiusti follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Thank you very much.
Judge Sammartino, welcome.
STATEMENT OF JANIS LYNN SAMMARTINO, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Sammartino. Thank you, Senator Feinstein, for holding
this hearing and for chairing these proceedings today on behalf
of the Committee on the Judiciary. Additionally, thank you is
extended for your support in getting to this process and for
your participation in the bipartisan commission that brings
forward the nominees, and myself in particular, from
California. It is very much appreciated.
I would like to thank President Bush for the trust and
confidence that he has placed in me by bringing my nomination
forward to this Committee.
Also, the other home-State Senator from the State of
California, I would like to thank Barbara Boxer for her
support, both in the bipartisan commission process and in
bringing my name forward also to this Committee.
I have numerous people here with me today from the State of
California, and I would like to introduce them quickly.
My mother and father, Marion and Angelo Sammartino are here
from Oceanside, California. My two sons, Joseph Gardner and
Jonathan Gardner. Joseph is from San Diego. Jonathan is from
Berkeley, California. My sister, Stephanie McPherson, is
currently residing in Richmond, Virginia. Joseph's wife,
Christine, now from San Diego, California, and her mother,
Maria Strzelczyk, from Glen Rock, New Jersey. My dear friend,
Superior Court Judge Herbert Hoffman, retired from the Superior
Court, from Delmar, California. And two very good friends who
came from La Jolla, California, for the proceedings today:
Connie and Don Goertz.
Again, I would like to thank the Committee for these
proceedings today, Senator Feinstein.
[The biographical information of Judge Sammartino follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Feinstein. Thank you very much. Now a few
questions, and I will ask each one of you to respond to the
same question.
Over the past decade, the Supreme Court has struck down an
unprecedented number of Federal statutes, most notably several
designed to protect the civil rights of Americans, as beyond
Congress's power under Section 5 of the 14th Amendment, for
example, Flores v. City of Boerne, Kimmel v. Florida Board of
Regents, Board of Trustees v. Garrett. The Supreme Court has
also recently struck down Federal statutes as being outside the
authority granted to Congress by the Commerce Clause, such as
in cases of U.S. v. Lopez and U.S. v. Morrison.
What is your understanding of the scope of congressional
power under Article I of the Constitution, in particular the
Commerce Clause, and under Section 5 of the 14th Amendment? Who
would like to start?
That is the first test. Who would like to start?
Mr. Osteen. Senator--
Senator Feinstein. Judge Osteen? I mean, excuse me, Mr.
Osteen.
Mr. Osteen. Thank you very much. Senator, my experience in
the practice of Federal criminal law has been primarily in
the--or in the Federal law has been primarily in the criminal
and general business litigation. To a certain extent, the
Commerce Clause principles that the Court has described flow
into certain criminal cases through, for example, school zone
doctrines and those types of things, various criminal statutes.
My views on this matter as a district judge nominee are
very simply that the Supreme Court and the Congress set the
rules and the precedent that I as a district court nominee am
to follow, regardless of any personal feelings that I may have
on the issue itself.
So in responding to the Senator's question, it is my belief
that, regardless of any personal view that I may have on the
Commerce Clause itself, it is my duty to apply the law as
determined by the Supreme Court under the Constitution and
apply those laws as passed by Congress.
Thank you.
Senator Feinstein. Mr. Reidinger?
Mr. Reidinger. Thank you, Senator. My feeling on this point
is that the Supreme Court has given the lower courts a road map
to follow with regard to federalism issues and with regard to
Commerce Clause issues. And it would be the role of a district
court judge and, if the Senate sees fit to confirm me, it would
be my role to try to follow that road map to the best of my
ability, to try to apply those statutes and apply that case law
to those statutes to the best that I can.
Enactments of Congress have a presumption of
constitutionality. It is not for a lower court to willy nilly
find enactments of Congress to be unconstitutional, whether on
federalism grounds or others. And, therefore, it is to be
within that narrow scope that the Supreme Court has given us to
apply that case law as it exists, but only to that extent.
Senator Feinstein. Well, let me, because you are not really
responsive to the question. The Commerce Clause is the basis
for which we legislate in many areas, and that is particularly
true in the area of civil rights. So if you do not believe the
Commerce Clause can cover this, the Congress has limited
authority to legislate to correct major grievances of our
society. And the purpose of the question is to try to ascertain
what view you would have on the Commerce Clause as the basis
for the legislation that the Congress might 1 day have before
you.
Mr. Reidinger. If I may followup in answer to that.
Senator Feinstein. Please.
Mr. Reidinger. I believe that the Supreme Court has also
found the Commerce Clause to be a proper basis for a good deal
of legislation.
Senator Feinstein. Correct.
Mr. Reidinger. And within those boundaries, I think that
there are probably thousands of statutes based upon the
Commerce Clause that are perfectly constitutional and would be
found so, would be held so, and have been held so by the
Supreme Court.
It is, first of all, the enactment of Congress with that
presumption of constitutionality only to the extent that it has
been tailored by the Supreme Court. That is the lodestar for
the lower courts.
Senator Feinstein. Mr. DeGiusti?
Mr. DeGiusti. Thank you, Senator. I concur with my
colleague's comments, and the presumption of constitutionality
at the district court level I believe cannot be overstated.
That is the point of departure in considering a provision of
legislation, and from there the courts should tread carefully
in considering those matters and, of course, always follow the
guidance, binding guidance from the courts of your circuit and
that established by the Supreme Court.
Senator Feinstein. Judge Sammartino?
Judge Sammartino. Thank you, Senator Feinstein. I agree
with the comments of the other nominees this afternoon. The
Supreme Court has found a basis for the Commerce Clause to be a
foundation for much of the legislation that is referenced. And,
of course, as a district court judge, if I am fortunate enough
to be confirmed by the Senate, I would follow the law and the
guidance of the Supreme Court, of course, in handling those
matters.
Senator Feinstein. Thank you. I threw a hardball question
at you. It was a question that you could go at very expansively
or not at all. So let me do an easy one now.
How can you assure us that if politically sensitive cases
come before you and in any case before you you will be able to
disregard your own personal views and allegiances and decide
the case only on the law and the facts before you? Judge
Sammartino?
Judge Sammartino. Thank you, Senator Feinstein. I would
assure this Committee that any politically sensitive matter
that would come before me would be decided solely on the merits
of that and not on the basis of anything else. I would follow
the law strictly as it is written and presented to me.
I think my background as a superior court judge has trained
me well to make that transition to the Federal bench. It is
what I have tried to do for the last 13 years, and I think that
is what judges do first and foremost. They set aside their
personal views and follow the law to the fullest extent
possible.
Senator Feinstein. Thank you.
Mr. DeGiusti?
Mr. DeGiusti. Senator, if I were to be confirmed as a
district court judge, I would always endeavor first to
faithfully apply the law as written, not as one might wish or
think it should have been written, and apply that law to the
facts at hand, impartially and fairly. And by doing so, I think
one removes any political nature of the issues that are
presented.
Senator Feinstein. Thank you.
Mr. Reidinger?
Mr. Reidinger. Thank you, Senator. I believe that in order
to provide equal justice, our judicial system must rely on
judges to be able to apply the law, to have the intellectual
rigor and the intellectual honesty to apply the law as it is,
not as it would otherwise benefit those whom the judge may know
or not as the judge may otherwise wish the law to be, but to
apply the law as it is. Only then can justice be administered
equally across the board.
I would assure this Committee that I believe I bring to
this position, if I am confirmed, that sort of intellectual
honesty that is necessary, and I believe that I can do that in
the administration of justice in this position, if I am
confirmed.
Senator Feinstein. Thank you, Mr. Reidinger.
Mr. Osteen?
Mr. Osteen. Senator, thank you for your interest in that. I
have had the good fortune to practice law in the Federal
district courts in the State of North Carolina. My experience
has been that the judges that have held court in that State
have done it with the utmost of integrity, without any sense of
politics in the courtroom, and that is a tradition that I would
strongly endeavor to continue.
It is my hope, if I am confirmed as a district judge by
this Committee, that at the conclusion of my career people
would not say that I was a conservative or a liberal judge, but
instead would simply say that, ``He followed the law and
applied it as appropriate, without regard to any extraneous or
irrelevant considerations.''
Thank you.
Senator Feinstein. Thank you very much.
Now, there has been a lot of discussion on the Committee
from time to time about judicial activism and activist judges
and exactly what that means. I would like to ask each of you to
define ``judicial activism'' this afternoon. Mr. Reidinger, why
don't you go first?
Mr. Reidinger. Thank you, Senator. The way I would define
``judicial activism'' is a judge or a court going beyond
applying the law as it is and in essence acting in a
legislative or a quasi-legislative capacity, not just applying
the law but creating the law in order to apply it. And with
that definition, with that sort of understanding of what
judicial activism is, I believe that it undermines our judicial
system because then the litigants who are before any court do
not have the confidence that that court is going to apply the
law as it has been adopted by this Congress or as it has been
adopted by State legislators or as it has been promulgated by
the higher courts. They only have the confidence that that
judge before whom they appear will be ``fair.'' And I believe
that undermines the equality of that justice.
Therefore, having that sort of activist approach, that sort
of legislative or quasi-legislative approach on the bench is
something to be steered clear from.
Senator Feinstein. Thank you.
Anybody else who would like to comment? I thought he gave a
pretty good definition. Are there any additions to that?
[No response.]
Senator Feinstein. All right. A quick question and an easy
one. What role does temper have for a judge? Judge Sammartino?
Judge Sammartino. Temperament is a very important
characteristic for a judge, and I think fundamentally, if I
were confirmed as a district court judge--and any judge for
that matter should have patience and an ability to deal with
any litigant who walks into their courtroom in a completely
fair and impartial basis. And that would include whether the
litigant is self-representing or has a lawyer representing
them. So it is an expansive view of it from my perspective
because fundamentally, when somebody leaves your courtroom, I
would like them to always leave with the feeling that the
process was fair, it was complete, that they were heard in the
totality, and whether they agree or disagree with my rulings,
that they at least had that type of hearing.
Senator Feinstein. You gave a very good description of
``temperament.'' My question was ``temper.'' What role would
temper play, that of a judge? I was hoping it would be just a
one-word answer.
Judge Sammartino. It has no place in my courtroom. That is
why maybe I misheard your question, Senator Feinstein. It has
no place in the courtroom.
Senator Feinstein. Anybody differ with that?
[No response.]
Let's talk about judicial ethics for a moment because the
authority of the Federal judiciary rests, to a large extent, on
its integrity and each judge is a holder of a collective trust
because the unethical conduct of a single judge can tarnish the
reputation of the entire judiciary. So a critical aspect of
fitness for a Federal judgeship is the ability to meet the
highest ethical standards.
What are the most important lessons you have learned,
either in your law practice or in your judicial career, in your
government service, that you will bring to the bench if
confirmed as a district court judge? Mr. DeGiusti, let us start
with you.
Mr. DeGiusti. Thank you, Senator. Senator, respect for the
court, respect for the judicial process equates to respect for
the rule of law. It is imperative in this country that our
citizens have respect for the rule of law and they believe in
the rule of law. And if district judges--or any judge, for that
matter, does not uphold the highest level of integrity in the
performance of their duties, then that respect for the rule of
law can erode. And, of course, that would be the most
unfortunate of things, and so for that reason, if confirmed, I
will always endeavor to uphold the highest standards of
integrity.
Thank you.
Senator Feinstein. All right. Mr. Osteen, judicial ethics.
Mr. Osteen. Senator, I agree with what Mr. DeGiusti just
said. I think as I understood the question, what are the most
important things or experiences you have had, or something
along those lines, I would suggest to the court that when I
started practicing law 20 years ago, I did not have a keen
understanding or handle on all the ethical rules that we had to
follow as attorneys. However, I have endeavored to follow those
ethical rules throughout my career, and my experience has
taught me that when an organization such as a bar association
or a judiciary under the Code of Conduct sets forth certain
rules, those rules are certainly to be followed whether or not
they are clearly understood in every instance because they are
important to the dignity and integrity of the profession.
My experience has been, even though I may have had
questions about some things as we went along, my experience was
that in following the rules, that was exactly the right path
and the best course to take.
Thank you.
Senator Feinstein. Mr. Reidinger?
Mr. Reidinger. There is one thing I would add, and that is
what I have learned about this topic in the practice of law.
Throughout my career, I have had wonderful mentors, and if
there is one thing I have learned from them, when it comes to
issues of ethics, it is not a question of when you step over
the line or when you get your toes near line. It is that you
never get your toes near the line. If there is a question about
whether something is ethical, that is probably a pretty good
indication that is something you need to shy away from what
even might be unethical. And it is not just a question of
following the rules. It is a question of avoiding the
appearance of impropriety. I think that not only goes for
lawyers, it goes doubly for judges.
Senator Feinstein. Thank you.
Judge Sammartino?
Judge Sammartino. I agree with all the comments of the
nominees this afternoon because I believe that the appearance
of any question of an ethical concern is as important as an
actual conflict, and I believe that for the reason that the
trust and confidence in the system of justice that we have in
America is critical to our collective well-being.
So when the question is raised, when a concern comes to
mind or is asked, I think that is the time to take action and
act accordingly.
Senator Feinstein. One final question on the subject of
recusal. Generally, Federal judges have great discretion when
possible conflicts of interest are raised to make their own
decisions about whether to recuse themselves from particular
cases. So I think it is important that judicial nominees have a
well-thought-out view of when recusal is appropriate.
Former Chief Justice Rehnquist made clear that he
understood that the standard for recusal was not subjective;
rather, it was objective. The standard was whether there might
be any appearance of impropriety.
How would you interpret the recusal standard for Federal
judges? Anybody?
Mr. Reidinger. I will start with that one because I believe
my answer to the last question really goes to the heart of
this. Whenever there is even a question to be there, even if it
does not raise an actual ethical question, it may raise a
question of the appearance of impropriety. And, therefore, just
like Chief Justice Rehnquist said, when there is even a
question, that is probably a good objective standard as to when
a judge ought to recuse.
Senator Feinstein. Judge Sammartino?
Judge Sammartino. I agree with that also. Our greatest
goal, should we all be confirmed as Federal district court
judges, is to preserve public confidence in the system that we
would become a part of. Once the question has been raised, I
think we need to act accordingly to diminish that concern on
the part of the litigants, so the appearance is as important as
the actuality. And I would be very sensitive to that, as we are
in the State of California on the State side.
Senator Feinstein. Mr. DeGiusti?
Mr. DeGiusti. I agree with those comments, Senator.
Clearly, the appearance of impropriety is as harmful as the
existence of impropriety. So both have to be guarded against,
and if the question is close at all, then a judge should
recuse.
Senator Feinstein. Thank you.
Mr. Osteen?
Mr. Osteen. Senator, I agree with what my colleagues have
said. I do agree there is both a subjective and objective
component to the recusal statutes. Recusal is not a matter to
be taken lightly because I also believe a district judge has an
obligation to hear all those cases that he can fairly hear, but
certainly subject to the rules, both the subjective and
objective components of those rules.
Senator Feinstein. Thank you.
Thank you all very much. I am going to let you off easy.
This will conclude the hearing. I would just like to say that
the record will be held open for 1 week for written questions.
I thank the nominees, and I adjourn the hearing.
[Whereupon, at 3:21 p.m., the Committee was adjourned.]
[A submission for the record follows.]
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NOMINATIONS OF JENNIFER WALKER ELROD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT; RICHARD A. JONES, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF WASHINGTON; AND SHARION AYCOCK, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI
----------
THURSDAY, JULY 19, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:45 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senator Cornyn.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Cardin. The hearing will come to order. And let me
thank you all for your attendance.
I want to thank Senator Leahy--Chairman Leahy--for giving
me the opportunity to chair this hearing.
This will be the first hearing that I've chaired for the
confirmation of judges. And I consider that to be a great
honor.
I think one of the highest responsibilities of a United
States Senator of this Judiciary Committee is the consideration
of appointments to the Federal bench. And I want to thank our
three nominees for their commitment to public service and their
willingness to serve. I welcome all three, along with your
families, here today.
During my campaign for the U.S. Senate, I outlined to the
people of Maryland what I would use in considering appointments
to the Federal bench. I think it's extremely important to look
at the qualifications of the nominees, as well as their
judicial temperament, as well as their passion for the
Constitution and its protections of the civil liberties of the
people of our Nation. So I take this responsibility--this
committee takes this responsibility--very, very seriously and I
look forward to this hearing.
My father was a Circuit Court judge and I know the
importance of being a judge. We rely upon our Judiciary
Committee as an independent branch of government, as a check
and balance on the legislature, and on the executive branch of
government.
Serving as a judge is a public service and a sacrifice, and
I once again thank those who are willing to put themselves
forward in that capacity. I particularly want to express my
appreciation to your families for putting up with the
sacrifices of serving as a judge.
We will hear from three panels today. The first will be our
colleagues in the U.S. Senate who've requested an opportunity
to be here. We will then hear from the nominee for the Circuit
Court of Appeals, and then the two nominees for the District
Court.
I would, next, normally recognize Senator Cornyn as a
member of this committee, but I will start with Senator Lott.
PRESENTATION OF SHARION AYCOCK, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. TRENT LOTT, A
U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Well, thank you very much, Mr. Chairman.
Thank you, Senator Cornyn and Senator Murray, for letting me go
forward. Like you, too, I am involved in a hearing down on the
second floor, and I'll run right back.
But I'm really particularly pleased to be here today. It's
the first opportunity I've ever had of this nature. I'm here to
endorse the nomination of Judge Sharion Aycock to be a Federal
District judge in the Northern District of Mississippi.
She would be the first Federal District woman judge in the
history of the State of Mississippi. I apologize that we have
come to this point so late, but we have found an excellent
nominee to be a good Federal judge--an excellent Federal
judge--and to be the first woman in our Federal judiciary in
Mississippi.
Her husband Randy is here with her today. We're delighted
to see him. I told him to say good bye and wish her well as she
ascends that place in the heavens known as the Federal bench.
I should note right at the beginning, she has received an
ABA rating as ``Unanimously Well Qualified''. She currently
sits on the Circuit Court bench in the First Circuit District
of Mississippi. I first met her, I think, some 18, 19 years ago
in a small town in north Mississippi. In fact, she was born in
Tremont, Mississippi. It probably has a population of not
1,000, I don't guess, but not many people.
She graduated with honors there from high school. She
attended Mississippi State University, where she graduated with
a degree in political science. She received her law degree from
Mississippi College School of Law. She served as co-editor-in-
chief of the Law Review there, and finished second in her
class.
After law school, she was employed by the C.T. Cleveland
law firm in Fullton, Mississippi and she had an extensive
private practice. She represented the Itawamba County Board of
Supervisors, the Board of Education, the town of Tremont, the
city of Fullton, and Northeast Mississippi Natural Gas
District. She also served as the Itawamba County prosecuting
attorney from 1984 to 1999.
She's been very active in her community. She's past
president of the Itawamba County Development Council, which has
done an excellent job, I know to my own knowledge. She served
on the hospital foundation. She worked with the health services
in the region. She served as chairman of the Prairie Girl
Scouts Capital Fund. She has received the Itawamba County Good
Citizen Award in 2000, and on and on and on. I mean, she's just
been involved in everything in this community. She's been real
active.
But she has primarily been recognized by Senator Cochran
and me as an outstanding jurist in North Mississippi. She
served as the First Judicial District President and Secretary,
the first female President of the Mississippi Bar Foundation,
and was honored as a Fellow of the Mississippi Bar.
So I think you get the drift here. I've watched her for
many years. I must say that when we recommended her for
consideration to the White House, there was an inquiry: is she
a Democrat? And I said, you know, I don't know. It doesn't
really matter. She's got the personal integrity, the character,
the experience, the education, the demeanor to be a good
Federal judge.
When you become a good, fair-minded Federal District judge,
partisan politics or philosophy don't matter. This is an
excellent nominee, and I fully, wholeheartedly recommend her to
the committee and urge her expeditious approval by the
committee so that she'll be sent to the floor so that she can
assume her position on the Northern District District Court.
Thank you.
Senator Cardin. Senator Lott, thank you very much for your
testimony. We know your schedule, so if you need to leave, we
certainly understand.
Senator Lott. Thank you. Thank you.
Senator Cardin. The senior Senator from Washington, Senator
Murray.
PRESENTATION OF RICHARD JONES, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF WASHINGTON, BY HON. PATTY MURRAY, A
U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Thank you very much, Mr. Chairman.
Congratulations on chairing your first Judiciary hearing. To
all of the members of your committee--I know they'll be coming
in--I want to thank you for this opportunity.
I am very honored to be here today to introduce to the U.S.
Senate a very distinguished lawyer. He is a King County
Superior Court judge from my home State, Richard Jones. He is a
man who enjoys broad bipartisan support and he deserves a seat
on the Federal bench.
President Bush nominated Judge Jones to be a District Court
Judge for the Western District of Washington State. Judge Jones
is an excellent choice and I am very proud to be here to
support him and to welcome him before the Judiciary Committee.
On this special day, Judge Jones is joined by a number of
members of his family, and I want to take a minute to introduce
them, if you want to stand up. His wife, Leslie is here with
him; his sister, Theresa Frank; his niece, Dana Frank-Looney;
his sister, Mardra Jay; and his brother-in-law, Christopher
Jay. I want to thank all of them for being here today as well.
Mr. Chairman, if you were to ask lawyers and judges in my
home State about Judge Jones, here are some of the descriptions
that you would hear: ``He is admired by everyone in the justice
system.'' ``He gives respect and he gets respect.'' ``The test
of one's performance is the way they handle the smaller cases.
Richard displays precisely that same degree of sensitivity to
all that appear before him.''
One newspaper said, ``In his courtroom, Jones is known for
making eloquent statements that express just the sort of values
needed in a judge.'' The Seattle Times went on to say, ``This
is a lifetime appointment with no room for mistakes, and we
believe there is no mistake here.''
Mr. Chairman, I couldn't agree more. Judge Jones has
handled some of the most difficult cases in Western Washington
in the past decade and he's won the respect of everyone who has
come before him. He, in fact, heard the murder charges against
Gary Ridgeway, also known as the Green River Killer.
Ridgeway pleaded guilty to 48 counts of aggravated first-
degree murder in 2003, and is one of the most prolific serial
killers in American history. It would be a tough case for any
judge, but Judge Jones earned praise for the sensitivity and
dignity he showed for the victims of the Green River Killer.
As a result of that case and in recognition of his long
service to Washington State, in 2004 Judge Jones received the
Judge of the Year Award from the Asian Bar Association of
Washington, the King County Bar Association, the Washington
State Bar Association, and the Washington State Trial Lawyers
Association.
Both Senator Cantwell and I assisted the President in
choosing Judge Jones from a list of very qualified candidates.
When I met him, I was impressed with his sensitivity, with his
professionalism, and his overall sense of fairness.
Throughout his career, Judge Jones has won high praise for
his judicial demeanor and for the respect he shows all parties.
He clearly meets the standards of fairness, evenhandedness, and
adherence to the law that we except of our Federal judges.
In terms of his personal background, he graduated from
Seattle University and the University of Washington School of
Law. In private practice, Richard Jones successfully
represented both plaintiffs and defendants in a variety of
civil cases.
As a county and Federal prosecutor, he had extensive
experience prosecuting criminal cases. And most recently as a
full-time King County Superior Court judge, Richard Jones has
distinguished himself and won broad support. Since he was first
appointed in 1994, the voters of King County have reelected him
three times.
I know that I speak on behalf of a large number of the
people in my State's legal and law enforcement community in
saying our Federal bench will be stronger when Richard Jones is
confirmed.
So it is my pleasure to be here today to introduce this
great lawyer and judge to the committee, to support his
nomination fully, and to help make him our newest Federal
judge. I urge this committee to approve this nomination
promptly, and I hope we can confirm Judge Jones before the full
Senate quickly.
Thank you very much, Mr. Chairman.
Senator Cardin. Senator Murray, thank you for your
testimony. We appreciate it very much.
We are now pleased to have the entire Senate delegation
here. Starting with the senior Senator, Senator Hutchison.
PRESENTATION OF JENNIFER ELROD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT, BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR
FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Senator Cardin. We certainly
appreciate your chairing this hearing and having a hearing on
our nominee for the Fifth Circuit Court of Appeals. There are
three vacancies on that court, and we hope that we can have a
confirmation of Jennifer Elrod.
She is an outstanding, accomplished judicial nominee. She
has a distinguished State court judge record, and as a
practicing attorney. Judge Elrod showed her judicial capability
in the 190th District Court in Houston, Texas, where she
currently presides. At present, she manages a docket of over
1,000 cases and leads all Harris County Civil District judges
in the number of jury cases tried to verdict since 2005.
Prior to serving on the bench, she practiced at Baker
Botts, where she worked for 8 years on litigation matters,
including antitrust, employment law, commercial litigation, and
general civil litigation. She also served as a law clerk to the
Honorable Sim Lake in the Southern District of Texas.
Judge Elrod's outstanding intellect is evidenced by her
exceptional academic credentials. She graduated magna cum laude
from Baylor University in Texas, and cum laude from Harvard Law
School.
She has long been dedicated to pro bono service and
charitable causes, and she is the former chair of the Gulf
Coast Legal Foundation, the largest provider of pro bono legal
assistance to indigent people in the Texas Gulf Coast region.
She was recently commended by the Texas Access to Justice
Commission for her service in facilitating the advocacy skills
of lawyers who represent poor and low- income Texans.
Judge Elrod has also been an active member in the Texas Bar
and the Houston Bar, and she is a two-time recipient of the
President's Award for Outstanding Service to the Houston Bar
Association. And she was named Outstanding Young Lawyer of
Houston in 2004 by the Houston Young Lawyers' Association.
I am honored to introduce her. She meets the high standards
that we hold for all of our judicial nominees. She has an
impressive record of public service, work ethic, integrity, and
will bring honor to our Federal bench. She is married, with two
children, living in Houston, Texas, and I commend her to the
committee.
Senator Cardin. Thank you, Senator Hutchison.
Senator Cornyn?
PRESENTATION OF JENNIFER ELROD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT, BY HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman. I'll try not to
duplicate too much of what Senator Hutchison said about Judge
Elrod, but I take a special interest, as you noted, in judicial
nominations, considering it a very important part of our
responsibilities. But, this is also because I was a member of
the Texas State judiciary for 13 years before I became a
recovering judge, and moved on into other work as Attorney
General of our State, and then to the U.S. Senate.
It is perhaps evidence of my advancing years and Judge
Elrod's relative youth that I did not know her until she was
selected by the White House for this job. But I have to tell
you, I've been overwhelmingly impressed by your qualifications
for this job.
Senator Hutchison noted that this is a judicial emergency
on the Fifth Circuit, one of our busiest Circuit Courts in the
Nation, and we have two vacancies. Just recently, the second
nominee has been sent over by the White House. So it's my hope
that both of these nominees will be given prompt consideration,
and that's why I'm especially grateful to you and to Chairman
Leahy for having this prompt hearing on this seat.
As Senator Hutchison noted, Judge Elrod graduated from
Harvard Law School. It's interesting, as just sort of a
footnote, that when she began her legal education at Harvard
Law School, she participated in what was known as a James Barr
Ames Moot Court Appellate Advocacy Competition.
Though her team lost in the final round by a vote of 2:1,
it did win the vote of one of the panelists, a certain judge
from the U.S. Court of Appeals for the Fifth Circuit by the
name of Patrick Higgenbotham. It is perhaps ironic that Judge
Elrod now stands before the Senate Judiciary Committee,
nominated by the President, to fill the vacancy created by
Judge Higgenbotham's transition to senior status.
After Judge Elrod served as a law clerk to Judge Sim Lake,
a well-respected Federal District judge in the Southern
District of Texas, she served in private practice and then was
appointed by the Governor of Texas in 2002 to her current seat
in Harris County.
As you probably know, in Texas we have a long heritage of
elections for judges. It is an artifact, perhaps, of our
history. But she has been reelected twice to that position and
has presided over more than 200 trials, gaining a reputation as
a fair, hardworking, and thoughtful judge, recognized for her
low reversal rate.
Senator Hutchison has noted her community service, which is
highly significant considering the fact that she's married and
has two young children. Judge Elrod commendably balances her
career as a lawyer and a judge with her desire to further serve
the community. For example, she serves as chairwoman of the
Gulf Coast Legal Foundation, now known as Lone Star Legal Aid,
which serves more than one million low-income persons, making
it the fourth largest legal aid program in the Nation.
She was first general counsel to Communities and Schools in
the Houston area, and co-chair of the Houston Volunteer
Association's legal hot line, for which she has received an
award for her outstanding pro bono work. She's taught at the
University of Houston Law Center as an adjunct professor.
I think one of the basic questions we all want to know
about on judicial nominees, is what's their judicial
temperament like? And, of course, Judge Elrod has a
demonstrated record of excellent judicial temperament.
She understands the difference between being a judge and
being an advocate. And it's this fairness and respect for all
is why Judge Elrod's nomination is supported across the Houston
legal community. She has the personal endorsement of past and
current presidents of the Houston Bar Association, the Hispanic
Bar Association, and the Mexican-American Bar Association, and
those are just a sample.
So, Mr. Chairman, I could go on and on, but I won't so we
can get on with the witnesses. Let me just say thank you for
allowing me to join Senator Hutchison in commending this
outstanding lawyer, judge, and Texan to you. We hope the
committee will act promptly on this nomination.
Senator Cardin. Well, we thank both of you for your
testimony. Senator Cornyn, I have the pleasure of hearing from
you regularly on our committee, but it's always nice to see you
on the other side of the dais here.
Senator Cornyn. You are nice to say it's a pleasure. I
appreciate it.
Senator Cardin. It truly is. Always is.
Without objection, the statement from Chairman Leahy will
be made a part of our record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Cardin. I've been advised that Senator Cochran is
on the floor. He wanted to be here to introduce and support
Sharion Aycock for the U.S. District Court for the Northern
District of Mississippi. If Senator Cochran is able to be here,
we will interrupt in order to give him a chance to be heard.
We will now proceed to the second panel which consists of
one witness, Judge Jennifer Walker Elrod, who has been
nominated to the United States Circuit Court for the Fifth
Circuit.
Judge Elrod currently sits on the 190th District for Harris
County, Houston, Texas, a position she'd held since 2002.
Before joining the State bench, Judge Elrod spent 8 years in
private practice as an associate of Baker Botts, and served as
a law clerk for Judge Sim Lake in the United States District
Court for the Southern District of Texas.
She is married to Hal Connor Elrod, director of Information
Systems at Direct Energy, and has two children.
Judge Elrod, it is the tradition of our committee we swear
in our witnesses. If you would, you are standing.
[Whereupon, the witness was duly sworn.]
Senator Cardin. Thank you.
Judge Elrod, the way that we proceed, first, if members of
your family are here, we would welcome your introduction of the
members of your family. You are free to proceed as you wish as
far as an opening statement is concerned. The committee will
then be asking you some questions and it will be supplemented
by written questions. We keep the record open after the
hearings for your reply to written questions.
But you may proceed as you wish.
STATEMENT OF JENNIFER WALKER ELROD, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FIFTH CIRCUIT
Judge Elrod. Mr. Chairman, thank you for having me here
before your committee today. I do not have an opening
statement, but I would take this opportunity to introduce my
family to you.
As you've mentioned, my husband, Hal Elrod, is here, as
well as our daughters: Catharine Leigh Elrod and Elizabeth
Connor Elrod.
Senator Cardin. We see them. They're waving. That's good.
[Laughter.]
Judge Elrod. In addition, my parents, Johnny and Jeannie
Walker are here. My brother, Lieutenant John David Walker and
his wife Melissa; my sister, Jennise Stubbs, and her son,
Jackson Stubbs, are here; and my uncle, Van Walker. I think
that's all of my family members. And if I've forgotten someone,
I apologize. I hope I haven't.
And in addition, I also am privileged to have three of my
colleagues from the Harris County judiciary here: Judge Ken
Wise, Judge Jeff Brown, and Judge Grant Dorfman who have made
the trip, and I am honored that they would make a trip like
this to come and be part of this, and also my other friends who
are here. So, thank you very much.
[The biographical information of Judge Elrod follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Well, we appreciate your family and your
associates and friends being here. We know this is a
particularly important day. As I said in my opening comments, I
really want to thank the family particularly because I know
it's not easy to serve as a judge and it takes time away from
the family, and we very much appreciate the sacrifices that are
made by your family.
So I can explain to your family, this is a traditional type
of a hearing where we'll ask questions. Some of them could get
rather direct at times, but it's a requirement that we try to
find out as much information as possible because you're being
appointed to a life term position and this is the one
opportunity that the public gets to have a full record of your
qualifications and your views, and we try to take advantage of
this the best that we can..
If I understand correctly, you choose not to make an
opening statement. Am I correct?
Judge Elrod. Yes, Mr. Chairman. That's correct.
Senator Cardin. Let me start off by asking you a few
questions, if I might. I believe that you served on a judicial
screening committee of the Association of Women Attorneys. So
I'm going to start by asking you, what questions did you ask or
did you want to know in screening applicants to become a judge?
Judge Elrod. Well, it's been a while, but as I recall I was
interested in knowing about the judicial temperament of the
candidates. It's very important that people who serve on the
bench don't have that ``black robe fever'' or ``robitis'' or
whatever they call it these days, and that people who are going
to serve have an even temperament and are listeners.
Also, I looked at their experience because it's important
to have people who have demonstrated experience in the field.
And do they have a reputation for integrity in their practice
of the law. Those were some of the categories that I looked at
when I screened candidates.
Senator Cardin. First of all, as I told you yesterday when
we had a chance to meet, I really do applaud your leadership on
legal services and pro bono. I think that's an extremely
important responsibility that lawyers have, and you've taken
that responsibility very seriously with your leadership in
Texas. I congratulate you for that.
Some of the most significant cases that you've been
involved with has been on a pro bono basis, and I find that
impressive and just really want you to know that I, for one,
appreciate that type of commitment to equality within our
judicial system.
I do want to talk, though, about one of the criteria which
is of concern to the committee, and that is experience. You are
nominated to serve on the Appellate Court, a lifetime position.
You have no judicial experience on the Federal bench,
although you certainly do at the State level. This is a
position that will require a considerable amount of attention
to the constitutional details and precedent for affecting a lot
of trials in this country.
What can you tell me that can give this committee some
comfort that you are qualified and experienced to serve on the
Federal Appellate Court?
Judge Elrod. Well, I can go through my specific experiences
in the Federal system, and I'm happy to do that, Mr. Chairman,
if you'd like me to do that. But I think the most important
thing I can tell you is that I take very seriously something
that my mentor, Judge Sim Lake, said to me.
He said the people that come to court and have a problem,
that day their problem is the most important thing. That's the
most important case that you consider, because it's most
important to them.
And, indeed, sometimes it's the very most important things
in their very lives and I've tried to treat each of the cases
that have come before me in that way and treat them with
diligence and careful attention, and I would bring that
diligence, careful attention, and work ethic and respect for
the Constitution to the Fifth Circuit Court of Appeals, if you
were to confirm me.
Senator Cardin. I know your background. I know your career.
We have that information in the record. You have a background
on the bench and in private practice which is impressive. We
are talking about an appellate Federal position. It's going to
take a great deal of commitment on your part to be adequately
prepared for the type of cases that are going to come to the
Federal bench. Is there any path that you intend to take in
order to be properly prepared to meet the challenges of the
Appellate Court?
Judge Elrod. The path that I would take would be to listen,
to read the briefs, to listen carefully to the arguments, to
listen to the positions and discussions of my colleagues, and
to work diligently, to read every single record thoroughly and
to treat the--to treat that responsibility with the highest
regard, as would be called for on the Fifth Circuit Court of
Appeals.
Senator Cardin. I want to move to the issue that has been
of concern to this committee on diversity on the bench. You are
nominated for a seat on the Fifth Circuit that includes
Mississippi, Louisiana, and Texas and presides over the largest
percentage of minority residents, 44 percent, of any regional
Circuit Court of Appeals in the country outside of Washington,
DC.
Mississippi has the highest African American population, 36
percent of any State in the country. Louisiana has the second-
largest African American population, 32 percent of any State in
the country.
Given these percentages, of the 19 Federal judges that now
sit on the Fifth Circuit, only one is African American. So I
want to know your views as to how important you believe
diversity is for the public to have confidence that the courts
are going to be responsive to their needs.
Judge Elrod. Well, I have treated the issue of diversity
very importantly in my career. As a matter of fact, on Monday
when I get back to Texas, I'll try a case--unless it's
settled--but I will also host a program of high school students
from disadvantaged backgrounds who come to the Harris County
courts every year, and have for the past 5 years that I've sat
as a judge, designed especially to tell them about careers in
the law. I have taken the personal responsibility to make sure
that there are educational opportunities available and that
people can learn that people can be successful in careers in
the law.
Senator Cardin. Now, obviously you're just one of the
appointments. There's a whole series. You cannot create
diversity by one appointment, but it does have an impact on the
diversity within the court. I want to come back to the issue of
the balance within that Circuit. It does trouble me about the
lack of diversity on the Fifth Circuit.
I just really want to know whether it's of concern to you,
whether you believe there should be efforts to have greater
diversity on the institutions of government that the people of
this Nation are concerned about, giving them a fair shake.
Judge Elrod. With regard to the constitution of the Fifth
Circuit, that is, of course, a matter for the President, with
the advice and consent of the Senate. So, I can't speak to the
Fifth Circuit specifically, or any other court.
However, again, I can turn to you, to my commitment that I
have tried to display--that I have displayed, in my public
service in the efforts that I've chosen, both in helping not
only these high school students, but small children get their
dental services so that they can go to school and be educated
and not have to be embarrassed in school.
My efforts--for example, I had the privilege of helping a
young woman who was graduating from high school, and she was
graduating salutatorian of her class, and her parents could not
come to the United States to see her high school graduation.
They were--they lived in Mexico and they could not get the
visas that they needed to come to her high school graduation. I
was able to help her get her parents here to see her graduate,
and her parents sat in my office and thanked me and said that
that was the proudest day of their lives. That was an important
day in my legal career.
Senator Cardin. Thank you. You've been saved for a few
minutes, because the senior Senator from Mississippi, Senator
Cochran, has arrived. You can continue to sit there if you
will, but I want to call on Senator Cochran and give him a
chance to address our committee.
It's always a pleasure to have you before our committee,
Senator.
PRESENTATION OF SHARION AYCOCK, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD COCHRAN,
A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much. I
appreciate your courtesy, and I apologize for being late. We
had an Appropriations Committee session on a bill that we are
reporting to the full Senate that went a good bit later than we
expected.
But I'm very pleased to have the opportunity to introduce
today Judge Sharion Aycock and recommend her confirmation as a
United States District Judge for the Northern District of
Mississippi.
Judge Aycock's husband, Randy, is with her here today. I
had an opportunity to visit with him earlier today.
I'm pleased to let you know that Judge Aycock is
exceptionally well qualified by reason of her education, her
experience, and her temperament to serve as a Federal judge. I
am sure she will reflect great credit on the Federal judiciary.
During her distinguished career as a lawyer and as a State
court judge in my State, she has earned the respect and
admiration of the lawyers and judges who have worked with her
and who know her well. She's been selected to serve in many
professional and community positions of trust and
responsibility. The American Bar Association's Standing
Committee on the Federal Judiciary unanimously concluded that
she is ``Well Qualified'' to serve as a Federal District Court
judge.
She was born and raised in Northeast Mississippi in the
town of Tremont, Itawamba County, where she graduated from high
school with honors and was elected president of the student
body. She graduated with honors from Mississippi State
University in 1977, where she studied economics and political
science.
She was a member of Phi Kappa Phi, the Nation's oldest and
largest honor society. She was inducted into the Mississippi
State University Hall of Fame. She also served as president of
her social sorority, Delta Delta Delta.
She received her law degree from the Mississippi College
School of Law, where she served as co-editor-in- chief of the
Law Review and as treasurer of the student body. She graduated
second out of a class of 146, and was admitted to the
Mississippi State Bar.
After graduation, she returned to her home county and
started her law practice. She practiced as an individual
practitioner in her own office since 1984 until she was elected
to serve on the District Court State trial court bench.
But during those years she represented her County Board of
Supervisors, the Board of Education, the town of Tremont, the
city of Fullton, and the Northeast Mississippi Natural Gas
District.
She served as the Itawamba County prosecuting attorney for
8 years. She was recognized as the State's ``Most Distinguished
Juvenile Justice Professional.'' She was elected Circuit Court
judge for the first Circuit Court district in Mississippi in
November of 2002 and she was unopposed when she sought
reelection in November of 2006.
State court judges, as you know, are elected in
Mississippi. Voters have the opportunity to get to know
candidates personally and to learn more about their background
and their ability. And based on a consensus of the people in
her part of the State, she has truly been an outstanding trial
judge.
The fact that she was unopposed in 2006 in an area of the
State which takes politics seriously, somebody said up there
it's a contact sport. Well, it may not be that, but people have
recognized, across a broad range of the community, the
tremendous job she does and the enthusiasm that she brings to
the office and the courtroom every day.
The First Circuit Court District's docket is one of the
busiest in the State of Mississippi. It had one of the largest
backlogs, too, of any judicial district in the State, and she
cleaned it up. Everything is up to date, and not just
Cincinnati, or wherever, but everything. Kansas City. Sorry.
Kansas City.
During her tenure she's had the opportunity to hear
criminal cases and civil cases covering a broad range of
subject areas, and she has done it all with a calm, cool,
judicial temperament, a sensitivity for the interests of
jurors, of litigants, of judges.
She is a very popular choice for this position that has
come open in the Federal court system of our State, and I'm
looking forward to hearing all the compliments and the words of
praise of her as she begins her tenure as a United States
District Court judge. I recommend her highly and wish her well,
and congratulate her on this nomination.
Senator Cardin. Thank you very much for your comments
before the committee. Without objection, we'll put the
resolution of the Mississippi Chapter of the American Board of
Trial Advocates in support of the nomination of Sharion Aycock
into the record.
Senator Cornyn?
Senator Cornyn. Well, thank you, Mr. Chairman. I was
thinking a little bit about your questions about diversity on
the bench, and certainly I share your interests in seeing that
everyone in our society is represented in all branches of
government, including the judiciary.
I was thinking about the fact that Judge Elrod, if
confirmed, will replace somebody that looks more like you and
me. I understand Judge Aycock will be the first United States
Federal District judge who happens to be a woman in
Mississippi, Senator Lott said earlier. So, I think maybe we're
not making enough progress, but I think we have to note the
progress that is being made and I'm grateful for that.
Judge, I'm going to throw you a little bit of a curve ball
here, but I know you can take it. I have a daughter in law
school, so I happen to note these things. One of the major law
firms in the Nation just increased its starting salary to
$160,000 a year, which is a little shocking for first-year law
students.
How do you feel about judicial salaries and our ability to
attract the best and the brightest to the Federal judiciary?
Because I know we all are concerned that it not be seen as a
job that some people can take if they can afford it, but that
others may be prohibited, or perhaps discouraged by much higher
salaries in the private sector to what they can earn as a
Federal judge.
Judge Elrod. Well, Senator Cornyn, judicial salaries are in
the province of Congress. I trust your wise judgment--Congress'
wise judgment--on judicial salaries. I personally--as you know,
I did not take this job that I have now in order to increase my
financial benefit, although I have seen in the State court a
situation where some very good judges have left the State court
bench in order to provide for their families. But I didn't take
the job I have now for the salary, and if I were to confirm--be
confirmed to the Fifth Circuit, I would be happy to serve.
Senator Cornyn. Well, when I was Attorney General of our
State I used to tell the people that worked at the Attorney
General's office that I knew they weren't in it for the money
or the glory, and I trust that would also apply to you.
One of the things that I am very profoundly concerned about
is the extent to which the cost and the time involved in modern
litigation prohibits many people from seeking and obtaining
access to justice in our State and Nation. You know, it's got
to be an extraordinary case that perhaps a lawyer might take on
a contingency fee basis that would justify the kind of
investment they would make in the case, and certainly just the
delay and the pain that goes along with being involved in
perhaps a multi-year legal process dissuades some who might
otherwise deserve access to justice from obtaining it.
So can you tell us a little bit about your thoughts with
regard to what can be done, and what has been done, and most
particularly what you have done, to address those concerns
about delay and costs associated with justice that would
prohibit some from seeking it.
Judge Elrod. Well, one thing that I have done, is I tried--
I asked the lawyers that come in my courtroom, would they like
an expedited trial. And I'll give anybody a trial in 45 days on
the merits, if they'll agree to it.
Otherwise, I have a very prompt trial scheduling order that
I get into, because I've found if you give months and months
and months and years and years for discovery, lawyers will try
to find things that they need to discover.
So you need to give adequate time to complex cases,
obviously, but if you move things along and give everyone a
fair playing field, but don't delay, you save the litigants
costs. Other things you can do, is you can allow the use of
technology in the courtroom to be of--to be helpful.
I allow anyone to appear on the telephone, for example, if
they choose to do so as long as it's not an evidentiary
hearing, and other types of things like that. There are always
innovations that can be made in order to streamline and to cut
costs because litigants, the people whose cases the lawyers are
bringing, don't want to wait 12 years to go to trial and spend
millions of dollars. They want to get their disputes resolved
in a prompt, efficient manner.
Senator Cornyn. And, of course, Senator Cardin has already
noticed your service to the Legal Services to folks who are of
modest means who might not otherwise have access to justice, so
I commend you for that.
You've been a practicing lawyer, and now a District judge,
and you are aspiring to enter the, I guess, the hermitage or
whatever that is sometimes known as the Federal appellate
judiciary.
But it obviously takes a little bit of a different
temperament, a little different attitude based upon your role
in the legal system, whether as an advocate on behalf of a
client, as you were at Baker Botts, or as a trial judge working
with juries and establishing the facts so that the law may be
applied to enter a judgment.
But can you tell us a little bit about what sort of
adjustment you think you'll have to make going from a trial
bench to an appellate bench in terms of how you approach your
job or whether there's not much change at all.
Judge Elrod. In general, I think the job is very much--it's
a similar job in that you apply the law to the facts, you
follow the law, you follow the Constitution. And that's your
job whether you're sitting hearing a red light swearing match
or the most complex patent dispute.
You use the same skill set, however, you may take some more
analytical reasoning, some careful study, careful review of
precedent. But it's the same basic skill: a commitment to the
facts and the law of the case that you're considering that you
have at the trial level and at the Court of Appeals.
Senator Cornyn. Well, you are quite accomplished as a
lawyer, obviously did very well in law school and have a great
record of success. I suspect that you might in many cases be
the most accomplished lawyer in the courtroom, including the
advocates. Are you going to be tempted to re-try the case,
particularly on appeal, for the lawyers who tried it down below
or before you in the appellate argument?
Judge Elrod. It's not a judge's role to act as an advocate,
as you know, having sat on the Supreme Court of Texas. My job
would be to decide and rule on the law based upon the facts
that were brought to me. We don't step in and play in the game.
And I don't mean to belittle it and call it a ``game'', but we
call the balls and the strikes, and I would be faithful to that
role on the Fifth Circuit Court of Appeals, if I was confirmed.
Senator Cornyn. Thank you very much. I'm confident you
will.
Thank you, Mr. Chairman. I see my time has expired.
Senator Cardin. Thank you, Senator.
Let me talk about one of the cases that you were involved
with on a pro bono basis that I found as a very interesting
case. I think it's Shell Fox, the one dealing with the wearing
of the rosary in which the--I think you were a co-counsel in
that, if I'm correct, in which there was concern that gang-
related activities, that you wear certain apparel and students
wanted to wear some religious articles, that you took the
position that this is their freedom, their personal right do
that, and it was unreasonable to restrict what students could
do as far as a rosary, I believe it was.
Which is an interesting type of a conflict that is now
occurring throughout not just the United States, but other
countries. France, for example, has passed laws restricting
what students can wear because of their concern of violent
activity against students in schools. And, of course, we have a
major concern about gang activity.
So I just wanted to give you a chance to perhaps expand on
that a little bit, tell us a little bit about your philosophy
and your concerns about protecting the rights under the
Constitution, when sometimes there are conflicts under the
Constitution where we're trying to protect the peace and safety
of a community, but we're also trying to protect individual
rights to express their religious beliefs as they see fit. Do
you care to try to help me out on that one?
Judge Elrod. Mr. Chairman, as you noted, I was an advocate
on behalf of a client in that lawsuit. I think you put very
well the conflicts that we have in our society. Public school
safety is obviously of paramount concern in our society, as are
First Amendment rights.
Courts have to very carefully balance those issues based
upon the law and the facts that are presented to them. In the
case that I was an advocate on behalf of a client, the judge in
that court found that, in fact, my clients had been
discriminated against.
Senator Cardin. Well, perhaps you could give me a little
bit more view--your views--as to the constitutional protections
for civil liberties, for the right for one to express his or
her religious beliefs, the rights under the Constitution for
consumers against the arbitrary practices of business, those
types of issues that I think the framers of our Constitution
envisioned the judicial branch being effective in protecting
individual rights against arbitrary governmental actions or
private sector actions. Do you care to help me on that, your
views?
Judge Elrod. My views on--can you rephrase, Mr. Chairman? I
apologize. I'm--
Senator Cardin. How you would look at the Constitution, and
interpreting the Constitution to protect individuals, as you
did in this particular case, against a law that you felt was
wrong? But how do you look at judging the rights of an
individual, whether it's a right to religious freedom, freedom
of speech, the constitutional protections we have. How do you
view--how do you weigh that in your making decisions?
Judge Elrod. Well, when a judge is considering these
important rights in the Constitution, you basically take the
facts of the case as it comes in and you look at the precedent.
Right now I sit on a trial court in Houston, Texas, as you
know, and I look to see, what has the first Court of Appeals
said? What has the 14th Court of Appeals said? What has the
Texas Supreme Court said about this? Has the Supreme Court of
the United States opined on this? If none of these courts have
opined, have other courts opined that could be helpful and give
helpful, persuasive authority rather than precedential
authority?
And I would carefully consider that, recognizing that these
are important rights that need to be adjudicated based upon the
facts presented in the case.
Senator Cardin. Let me put it this way. As a pro bono
attorney in Legal Aid, you used your talents to help people who
otherwise would not have gotten the opportunity to get their
points brought out in our judicial system. That is what I find
admirable about pro bono and about the legal aid work that you
did.
As an appellate court judge, how do you see your role in
helping someone who is disadvantaged, or someone who has been
oppressed, or someone who has not gotten a fair shake in our
legal system?
Judge Elrod. Well, my role as a role is obviously different
than my role as an advocate. As a judge, my job is just to
decide the case based upon the law, and the arguments, and the
briefs that are presented. There are things that judges can do
that help legal services for the poor.
For example, judges can teach practitioners who serve legal
services for the poor, advocacy skills. As was mentioned
earlier, I did that this year. Judges can make sure that if
people come in and needing legal services, that they have ready
access and know of the legal services that are in their
communities. The Houston Bar and the Houston Young Lawyers, for
example, work hard to provide those types of lists and things,
and judges can give out that information.
But judges cannot become advocates for the parties in a
case before them. That's--the judge steps out of his or her
role if he chooses to say, I'm going to try to advance this
party and not that party. That's not a proper role for the
judge.
Senator Cardin. In the confirmation hearings of Chief
Justice Roberts and Justice Aleto, there was extensive
discussions about the amount of which judges and justices are
bound by previous court decisions, stare decisis. What is your
opinion as to how strongly judges should be guided by the
doctrine of stare decisis is very, very important.
Stare decisis gives us uniformity in the law. It promotes
party-settled expectations. It's a very important legal
principle. We would not have a stable system of justice of
judges were, every day, changing their minds. And they
shouldn't be changing their minds, ever, based upon their
personal will or personal whims, or even personal public policy
views.
Senator Cardin. Thank you.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman. I don't have any
further questions of this witness.
Senator Cardin. Judge, just bear with me for a few more
moments. I'm going to make a request from you, and that is, as
I think I told you when we were together, you have not been the
author of that many published opinions, which is something that
our committee normally looks at very carefully on appellate
nominations.
What I would request, is that copies of speeches that you
gave in public forums, be made available to our committee. If
you have copies, we will request that that be made to
supplement our record just so that we have an opportunity to
hear your thoughts. This will be taken in the right context,
but I think it's useful if we can see some more of your
writing. So if you could comply with that, I certainly would
appreciate it.
There will be other questions that we're going to be
submitting for the record and give you a chance to reply to our
committee on it, but I don't have any additional questions at
this time and I thank you very much.
Again, I thank your family for being here. They're great
supporters, I can see that.
Judge Elrod. Thank you, Mr. Chairman. Thank you, Senator
Cornyn.
Senator Cardin. The third panel will consist of two
nominees for the District Court. Richard Anthony Jones, who's
been a judge on the King County Superior Court since 1994.
Previously, Judge Jones served as an Assistant U.S. Attorney in
the Western District of Washington and an associate of Bogle &
Gates, staff attorney for the Port of Seattle, and Deputy
Prosecuting Attorney for King County.
We will also have on this panel Judge Sharion Richardson
Aycock. Judge Aycock is a State trial judge on the Fifth
Circuit Court District of Tupelo, Mississippi, a position she
has served in since 2003. Previously, Judge Aycock worked in
private practice as a sole practitioner, a partner in Soper,
Russell, Richardson & Dent, an associate of A.T. Cleveland Law
Office. She also serves as a county prosecuting attorney.
If you will please stand to be sworn.
[Whereupon, the witnesses were duly sworn.]
Senator Cardin. Please be seated.
The way that I would request that we begin, each of you
will have an opportunity, if you choose, to make an opening
statement to the committee. I believe, Judge Jones, your family
has already been introduced, but I don't mind you introducing
them again. They deserve as much attention as you can give them
for putting up with your public life. The same thing with Judge
Aycock.
So, Judge Jones, you may begin.
STATEMENT OF RICHARD A. JONES, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF WASHINGTON
Judge Jones. Thank you, Senator. I will not be giving a
formal statement, but I would like to begin by thanking you for
taking time out of your busy schedule and for being here today.
I'm very thankful also to the President of the United
States, George Bush, for his confidence in nominating me to
serve as the next Federal judge, if confirmed, in the State of
Washington.
I'm also very much appreciative for the fact that our
Senator Murray was able to take time from her busy schedule to
be present as well.
At the sake of being redundant, Senator, I would take
advantage of being able to introduce my family, because I'm
very proud of the fact that they are here today.
Please trust me in knowing that I have a very large family.
This is a very small representation of my family. I would like
to, once again, introduce my wife, Leslie Jones; my sister,
Theresa Frank; her daughter, Dana Frank-Looney; my sister,
Mardra Jay; and my brother-in-law, Christopher Jay.
Senator Cardin. Thank you.
Judge Jones. Thank you, Senator.
[The biographical information of Judge Jones follows.]
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Senator Cardin. Judge Aycock?
STATEMENT OF SHARION AYCOCK, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF MISSISSIPPI
Judge Aycock. Thank you. I will decline making an opening
statement today in the interest of your time, and others' there
are here, but I do want to take this opportunity to thank
President Bush for the nomination that I received for the
District judge for the Northern District of Mississippi.
I am very appreciative, Chairman Cardin, for you convening
and conducting this meeting. This is something that we have
been waiting for for some time, and very anxious to have the
opportunity to be questioned regarding this position.
I also want to express how pleased I was that my home State
Senators, Senator Cochran and Senator Lott, took time out of
their very busy schedules to come here today and introduce me.
I do have my husband here with me today. And Chairman
Cardin, I have a large family in Mississippi, but it was our
choice to travel and to make this hearing accompanied by my
husband. I have a loving family at home in support of me. Thank
you.
[The biographical information of Judge Aycock follows.]
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Senator Cardin. Well, again, we appreciate both your public
service, plus also the commitment of your families. It's not
easy at times, and we certainly appreciate that very much.
I want to thank both of you for the information that you've
made available to the committee. That information has been
reviewed. I must tell you, I was impressed by both of your
backgrounds, your commitment to the judicial branch, and your
knowledge and your backgrounds. So, I applaud both of you for a
very distinguished career.
Your appointments are to the District Court, so let me, if
I might, just tell you some of the advice my father gave me a
long time ago when I used to go to his court and watch him. He
was a Circuit Court judge, trial judge in Baltimore City.
He was not reversed very often, but he felt a real
obligation to try to make people feel comfortable in the court
and to try to have a commitment to help particularly those
people who were disadvantaged. Our system is tough enough. But
at the Circuit Court level, you can apply some practical
solutions sometimes to problems.
I'm just really trying to get, if I might, your thoughts
about your responsibility as a District Court judge as it
relates to the Constitution, as it relates to the protections
that are in the Constitution, as it relates to individuals who
have been put at a disadvantage in our society, and sometimes
the only way that they can get relief is through the courts.
How do you view your position--the potential position--as a
Federal District Court judge in carrying out I think what the
framers of our Constitution intended, the judicial branch to
protect the rights of individuals against abuses of either the
private sector or government?
Judge Jones, you can start if you'd like.
Judge Jones. Thank you, Senator. Senator, I think, first,
I'd ask you to look at my history and my background in terms of
things that I have done. My father taught me as a young boy,
it's not so much in what you say as opposed to the things that
you do. I have been very actively involved in different
programs to assist others in their access to justice.
As you can see from the materials I've submitted to this
committee, I serve as the advisor to the Access to Justice
program in our local jurisdiction. I work with lawyers and law
students to encourage them to assist individuals who can't
obtain assistance by any other means; but for their assistance,
there would be no representation.
In addition to that, Senator, the commitment that I have as
a judge and as a public servant for many years has been one
geared to fairness and to ensure that the Constitution applies
to all persons equally at all times in every respect,
regardless of background or personal circumstances.
Senator Cardin. Thank you.
Judge Aycock?
Judge Aycock. Chairman Cardin, I think it's important. As
you have noted, you know something about our background and our
history, but that's very important to me, where I came from.
The fact that I have had the privilege of practicing 22 years
in a very rural community where I had the privilege of
representing all kinds of people, I think that has prepared me
for going on the bench, where I respect every single person
that walks in that courtroom. It is the most important day of
their lives when they have something before the court,
oftentimes having waited months, perhaps years, to get there.
So once they're there, that litigant deserves my attention.
They deserve all the listening power I can put behind listening
to the testimony, hearing what they have to say, knowing what
the law is, because I need to get it right at that stage, and
just being fair to that litigant, making them feel that they
are welcomed in that courtroom, that I have not pre-judged
their case, that I am there to listen and to make a fair
decision based upon the law.
Senator Cardin. We had a little conversation with the last
panel on stare decisis, and I expect I'll hear in your response
how important that is for consistency on the courts, and that
of course you are bound by stare decisis. If you would like to
comment on that, fine.
But what do you do when you have litigants before you where
it is clear that, following what appears to be the legal
precedent, the decision is not going to be one that is in the
interest of justice? What do you do then? Do you follow stare
decisis or are there other courses that you can take? Judge
Jones? Let's reverse it. We'll go to Judge Aycock this time.
Judge Aycock. Thank you. Certainly there are times that I
have made unpopular decisions in the courtroom, and perhaps
that best speaks to just the acknowledgement that you don't
always know the perfect answer. You can't always fix the
situation. But people expect fairness and they expect
evenhandedness, and they expect a level playing field.
If they get those things, then when they walk out of the
courtroom and they know they've been treated fairly, even
though the decision may be something different that they had
hoped for, then they can't be critical of the system itself.
And that's my job, is to make sure that that happens in my
courtroom.
I know that there are times that making that decision
following that rule of law that is there that has been
established, sometimes you look at that and question it,
perhaps. But my job as a trial judge is to know what the law
is, and then to apply that law, but understanding that my
judicial temperament requires me to remind myself of the
components of compassion and understanding, and to be fair,
above all.
Senator Cardin. Thank you.
Judge Jones?
Judge Jones. Senator, I can't tell you how many times
lawyers have approached me in the courtroom, prefacing their
remarks with, this is a novel approach to the law, your Honor,
and respecting that, indeed, it is a novel approach to the law.
If confirmed, I would fully expect to take an oath upholding
the Constitution of the United States, and with that comes the
very serious commitment and responsibility to uphold the
Constitution and to follow the law as it has been applied and
interpreted by justices before me, and past precedent.
Senator Cardin. I remember with fondness my trial days. I
remember appearing before different types of judges. I remember
appearing before a judge who had a really wonderful reputation,
but he always tried my case for me. I wanted to make sure he
didn't lose it when he tried it for me.
I've also been in the courtroom where I could have easily
won a case because of the way the other attorney was conducting
the case, but then the judge interceded and corrected the
record and a different outcome occurred.
My point to you is, how aggressive should a judge be in
making sure that the case is presented in a way that the record
is balanced or the record is clear to make a decision? I think
we'll have Judge Jones to go first this time.
Judge Jones. Senator, one of the adages that I've heard
from reading in the past, and specifically Judge Leonard Hand,
is he made a statement at one point in time that justice does
not depend so much upon legal dialectics as upon the atmosphere
created in the courtroom.
In the end, that depends primarily upon the judge, and I
believe the judge has the responsibility of setting the proper
tone and atmosphere at all times in the proceedings before the
judge. And if confirmed, you have my solemn commitment that I
would ensure that justice would be done. It's not my
responsibility to be an advocate or to try a case, in any
regard. I certainly wouldn't take a case from a lawyer and give
them the opportunity to try the case, as they believe it
appropriate.
Judge Aycock. Mr. Chairman, as Judge Jones has indicated,
it is totally inappropriate to become an advocate, even when we
want to retreat into that position of having practiced law for
those 22 years. And you think about what you might do in that
situation, but that's inappropriate and that's not my job.
My job is to be there to rule on the objections, rule on
the motions, to keep the trial proceeding in an orderly manner,
and to remember my role. There are times that I am of the
opinion that you can be available, whether it is during the
trial or after the trial where young attorneys can seek you out
and ask, given the situation, you heard me try the case, do you
have any suggestions. And I think they can learn from those of
us that have practiced for years, and in that capacity, help.
But in that courtroom, you're there to try the case. To hear
the case. Excuse me.
Senator Cardin. I'm sure you've heard, and your Senator was
very complimentary of your judicial temperament, about really
nice people who become judges, and then you start to wonder.
What do you think is the right balance between maintaining the
discipline and dignity of a court and not forgetting that this
is a place that people should feel comfortable that they're
getting judgment by someone who is mindful of what it is to
live in a community.
Judge Aycock. Chairman, we're all human. We all make
mistakes. I have to remind myself that I'm going to make my
share of mistakes, but to just go in every day and do the very
best job that day under those circumstances that I can do. And
I think I will always have a place in my community. I will do
those things under the Code of Ethics that permit me to remain
active where I can.
But I do understand that I have isolated myself, by choice,
by asking the voters of North Mississippi to put me in this
elected position, and asking you, Senator, and your committee
to confirm me in this new position, that I am asking for some
sense of isolation because I realize that I have to maintain
the role of a judge.
Judge Jones. Senator, I have held my position as a Superior
Court judge for 13 years and I've been able to demonstrate
during that time period to the members of our community, and to
the bar, and to the bench of my capacity to maintain the proper
demeanor and decorum in the courtroom.
I place great emphasis on the pride of the position I
presently hold as a Superior Court judge to ensure that every
person coming into that courtroom walks out of the door feeling
that justice has been done. They may not prevail, but they know
that they had the opportunity to be heard and that justice has
been served.
Senator Cardin. One moment, please.
Let me again point out that the record will be open for
written questions. That's what they're telling me, that the
record will be open for 1 week for written questions--I guess I
was going to say the right thing after all--that the committee
may very well want to propound.
But I just want to make a personal observation. I was very
impressed when I read your backgrounds and your material before
today's hearing. It's only been reinforced by your appearance
here today. I again thank you all for your willingness to serve
in what I think is one of the most important positions in our
country, and that is as a judge, as a Circuit Court judge,
where I think justice really is the front lines for carrying
out justice in our community. It is not easy. There are
tremendous sacrifices, and I thank you very much for being
willing to put yourself forward.
With that, this committee will stand adjourned. Thank you.
[Whereupon, at 3:55 p.m. the committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
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