[Senate Hearing 110-138]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-138
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 
=======================================================================
                                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

                               ----------                              

                                 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.]

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    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].
 
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 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:]

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    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.]

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  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.] 

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    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.] 

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    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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