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


                                                  S. Hrg. 110-138, pt.3
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

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       JANUARY 22, FEBRUARY 12, FEBRUARY 21, APRIL 3, MAY 1, 2008

                               ----------                              

                                 PART 3

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                           Serial No. J-110-8

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         Printed for the use of the Committee on the Judiciary
















































             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
















































                                                 S. Hrg. 110-138, pt. 3

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

       JANUARY 22, FEBRUARY 12, FEBRUARY 21, APRIL 3, MAY 1, 2008

                               __________

                                 PART 3

                               __________

                           Serial No. J-110-8

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

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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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                            January 22, 2008

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   172
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................     4
    prepared statement...........................................   176

                               PRESENTERS

Larson, John B., a U.S. Representative from the State of 
  Connecticut presenting Kevin J. O'Connor of Connecticut, to be 
  Associate Attorney General, Department of Justice..............     1

                       STATEMENTS OF THE NOMINEES

Katsas, Gregory G., of Massachusetts, to be Assistant Attorney 
  General Civil Division, Department of Justice..................    58
    Questionnaire................................................    59
O'Connor, Kevin J., of Connecticut, to be Associate Attorney 
  General, Department of Justice.................................     5
    Questionnaire................................................     7

                         QUESTIONS AND ANSWERS

Responses of Gregory G. Katsas, to questions submitted by 
  Senators Leahy, Kennedy, and Grassley..........................   146
Responses of Kevin J. O'Connor, to questions submitted by 
  Senators Leahy, Kennedy, Feingold, and Grassley................   116

                       SUBMISSIONS FOR THE RECORD

Larson, John B., a U.S. Representative from the State of 
  Connecticut, statement.........................................   170
Lieberman, Hon. Joseph I., a U.S. Senator from the State of 
  Connecticut....................................................   175

                           February 12, 2008

                    STATEMENTS OF COMMITTEE MEMBERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   179
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   461
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   187

                               PRESENTERS

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee 
  presenting Gustavus Adolphus Puryear, IV, Nominee to be U.S. 
  District Judge for the Middle of Tennessee.....................   180
Barrasso, Hon. John, a U.S. Senator from the State of Wyoming 
  presenting Richard H. Honaker, Nominee to be U.S. District 
  Judge for the District of Wyoming..............................   183
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia 
  presenting James Randal Hall, Nominee to be U.S. District Judge 
  for the Southern District of Georgia...........................   181
Corker, Hon. Bob, a U.S. Senator from the State of Tennessee 
  presenting Gustavus Adolphus Puryear, IV, Nominee to be U.S. 
  District Judge for the Middle of Tennessee.....................   180
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming 
  presenting Richard H. Honaker, Nominee to be U.S. District 
  Judge for the District of Wyoming..............................   182
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia 
  presenting James Randal Hall, Nominee to be U.S. District Judge 
  for the Southern District of Georgia...........................   186
Lincoln, Blanche L., a U.S. Senator from the State of Arkansas 
  presenting Brian Stacy Miller, Nominee to be U.S. District 
  Judge for the Eastern District of Arkansas.....................   184
Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas 
  presenting Brian Stacy Miller, Nominee to be U.S. District 
  Judge for the Eastern District of Arkansas.....................   185

                       STATEMENTS OF THE NOMINEES

Hall, James Randal, Nominee to be U.S. District Judge for the 
  Southern District of Georgia...................................   188
    Questionnaire................................................   189
Honaker, Richard H., Nominee to be U.S. District Judge for the 
  District of Wyoming............................................   216
    Questionnaire................................................   217
Miller, Brian Stacy, Nominee to be U.S. District Judge for the 
  Eastern District of Arkansas...................................   307
    Questionnaire................................................   308
Puryear, Gustavus Adolphus, IV, Nominee to be U.S. District Judge 
  for the Middle of Tennessee....................................   251
    Questionnaire................................................   252

                         QUESTIONS AND ANSWERS

Responses of Richard Honaker, to questions submitted by Senators 
  Kennedy, Biden, Feinstein, Durbin and Cardin...................   364
Responses of Gustavus Puryear, IV, to questions submitted by 
  Senators Leahy, Kennedy and Feingold...........................   393

                       SUBMISSIONS FOR THE RECORD

Anselmi, Mark D., Rock Springs, Wyoming, letter..................   433
Barrett, Richard, Attorney at Law, Richard J. Barrett, P.C., 
  Cheyenne, Wyoming, letter......................................   434
Brimmer, Clarence A., District Judge, Cheyenne, Wyoming
    November 7, 2006, letter.....................................   435
    April 3, 2007, letter........................................   436
Brown, Jacqueline K., Attorney at Law, Family Law Center, LLC, 
  Casper, Wyoming, letter........................................   437
Bluemel, Joseph B., Attorney at Law, Kemmerer, Wyoming, letter...   438
Casper, Stacy E., Attorney, Casper Law Office, LLC, Casper, 
  Wyoming, letter................................................   439
Casper Star Tribune, March 28, 2007, letter to the editor........   440
Cotton, C. John, Esq., Attorney at Law, Gillette, Wyoming, letter   441
Chapman, Frank R., Attorneys and Counselors at Law, Chapman 
  Valdez, Casper, Wyoming, letter................................   443
Daily Rockert-Miner, April 3, 2007, letter to the editor.........   445
Enzi, Michael B., a U.S. Senator from the State of Wyoming, 
  letter.........................................................   446
Fitzgerald, James E., Attorney, Fitzgerald Law Firm, Cheyenne, 
  Wyoming, letter................................................   447
Fox, Kate M., Attorneys at Law, Davis & Cannon, Cheyenne, 
  Wyoming, letter................................................   448
Gonda, Jeffrey J., Attorney, Lonabaugh and Riggs, LLP, Sheridan, 
  Wyoming, letter................................................   449
Hickey, Paul J., Attorney, Hickey & Evans, LLP, Cheyenne, 
  Wyoming, letter................................................   451
Hursh, John R., Attorney & Counselor at Law, Central Wyoming Law 
  Associates, P.C., Riverton, Wyoming, letter....................   453
Johnson, Alan B., District Judge, District of Wyoming, Cheyenne, 
  Wyoming:
    October 26, 2006, letter.....................................   454
    October 26, 2006, letter.....................................   455
Kirven, Timothy J., Attorneys at Law, Kirven and Kirven, P.C., 
  Buffalo, Wyoming, letter.......................................   457
Kunz, Brent R., Attorney, Hathaway & Kunz, P.C., Cheyenne, 
  Wyoming:
    November 8, 2006, letter.....................................   458
    February 8, 2008, letter.....................................   460
Lewis, Rebecca A., Attorney, Pence and MacMillan, LLC, Steamboat, 
  Colorado, letter...............................................   463
Levy, Bruce P., M.D., Chief Medical Examiner, State of Tennessee, 
  Department of Health, Nashville, Tennessee, statement and 
  attachment.....................................................   465
McKellar, William M., Esq, Attorneys & Counselors at Law, 
  McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming, letter...   501
Messenger, Michael S., Attorney at Law, Messenger & Jurovich, 
  P.C., Thermopolis, Wyoming, letter.............................   503
Osborn, Mitchell E., Attorney at Law, Mitchelle E. Osborn, 
  Cheyenne, Wyoming, letter......................................   504
Rhodes, Diana, Esq., Attorney at Law, Rhodes Law Firm, P.C., 
  Cheyenne, Wyoming, letter......................................   505
Rochelle, Ann M., Attorney, Shively, Taheri & Rochelle, P.C., 
  Casper, Wyoming, letter........................................   506
Rosenthal, Michael, Hathaway & Kunz, P.C., Cheyenne, Wyoming, 
  letter.........................................................   508
Schuster, Robert P., P.C., Attorney at Law, Robert P. Schuster, 
  P.C., Jackson, Wyoming, letter.................................   509
Shively, Robert M., Attorney, Shively, Taheri & Rochelle, P.C., 
  Casper, Wyoming, letter........................................   511
Simpson, Alan K., (Retired) Wyoming State Senator, Cody, Wyoming, 
  letter.........................................................   513
Sullivan, Michael J., Attorney at Law, Rothgerber Johnson & Lyons 
  LLP, Casper, Wyoming, letter...................................   515
Woodard, Rhonda Sigrist, Woodard & White, a Professional 
  Corporation, Cheyenne, Wyoming, letter.........................   516
Woodhouse, Gay V., President Wyoming State Bar, Cheyenne, 
  Wyoming, letter................................................   518
Wyoming Legislative Service Office, Dan J. Pauli, Director, 
  Cheyenne, Wyoming, letter......................................   519

                           February 21, 2008

                     STATEMENT OF COMMITTEE MEMBER

Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................  1042
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................  1046
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   521
    prepared statement...........................................  1051
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania, prepared statement...............................  1053

                               WITNESSES

Warner, Hon. John, a U.S. Senator from the State of Virginia.....   524

                       STATEMENTS OF THE NOMINEES

Anderson, Stanley Thomas, Nominee to be U.S. District Judge for 
  the Western District of Tennessee..............................   527
    Questionnaire................................................   612
Haynes, Catharina, of Texas Nominee to be U.S. Circuit Court 
  Judge for the Fifth Circuit....................................   528
    Questionnaire................................................   531
Mendez, John A., Nominee to be U.S. District Judge for the 
  Eastern District of California.................................   527
    Questionnaire................................................   573

                         QUESTIONS AND ANSWERS

Responses of Catharina Haynes to questions submitted by Senators 
  Leahy, Kennedy, Feinstein and Cardin...........................   653

                       SUBMISSIONS FOR THE RECORD

Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, statement...........................................  1039
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  statement......................................................  1056

                             April 3, 2008

                     STATEMENT OF COMMITTEE MEMBER

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin......  1063
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1262
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................  1064

                               PRESENTERS

Bond, Hon. Christopher S., a U.S. Senator from the State of 
  Missouri presenting David Gregory Kays, Nominee to be U.S. 
  District Judge for the Western District of Missouri presenting 
  Stephen N. Limbaugh, Jr., Nominee to be U.S. District Judge for 
  the Eastern District of Missouri...............................  1067
McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri 
  presenting David Gregory Kays, Nominee to be U.S. District 
  Judge for the Western District of Missouri and Stephen N. 
  Limbaugh, Jr., Nominee to be U.S. District Judge for the 
  Eastern District of Missouri...................................  1068
Warner, Hon. John, a U.S. Senator from the State of Virginia: 
  Presenting Mark S. Davis, Nominee to be U.S. District Judge for 
  the Eastern District of Virginia and David J. Novak, Nominee to 
  be U.S. District Judge for the Eastern District of Virginia, 
  and Elisebeth C. Cook, Nominee to be Assistant Attorney General 
  for the Office of Legal Policy, Department of Justice..........  1064
Webb, Hon. Jim, a U.S. Senator from the State of Virginia 
  presenting Mark S. Davis, Nominee to be U.S. District Judge for 
  the Eastern District of Virginia and David J. Novak, Nominee to 
  be U.S. District Judge for the Eastern District of Virginia....  1066

                       STATEMENTS OF THE NOMINEES

Cook, Elisebeth C., Nominee to be Assistant Attorney General for 
  the Office of Legal Policy, Department of Justice..............  1069
    Questionnaire................................................  1071
Davis, Mark S., Nominee to be U.S. District Judge for the Eastern 
  District of Virginia...........................................  1097
    Questionnaire................................................  1098
Kays, David Gregory, Nominee to be U.S. District Judge for the 
  Western District of Missouri...................................  1135
    Questionnaire................................................  1136
Limbaugh, Stephen N., Jr., Nominee to be U.S. District Judge for 
  the Eastern Distrit of Missouri................................  1200
    Questionnaire................................................  1201
Novak, David J., Nominee to be U.S. District Judge for the 
  Eastern District of Virginia...................................  1170
    Questionnaire................................................  1171

                         QUESTIONS AND ANSWERS

Responses of David J. Novak to questions submitted by Senator 
  Specter........................................................  1256

                       SUBMISSIONS FOR THE RECORD

Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  prepared statements:
    Elisebeth Collins Cook.......................................  1265
    Mark S. Davis................................................  1269
    David J. Novak...............................................  1277
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................  1283

                              May 1, 2008

                    STATEMENTS OF COMMITTEE MEMBERS

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................  1290
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement and letters.................................  1425
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................  1290

                               PRESENTERS

Bayh, Hon. Evan, a U.S. Senator from the State of Indiana 
  presenting William T. Lawrence, Nominee to be U.S. District 
  Judge for the Southern District of Indiana.....................  1295
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona 
  presenting G. Murray Snow, Nominee to be U.S. District Judge 
  for the District of Arizona....................................  1289
Lugar, Hon. Richard, a U.S. Senator from the State of Indiana 
  presenting William T. Lawrence, Nominee to be U.S. District 
  Judge for the Southern District of Indiana.....................  1294
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting G. Steven Agee, Nominee to be U.S. Circuit Court 
  Judge for the Fourth Circuit...................................  1296
Webb, Hon. Jim, a U.S. Senator from the State of Virginia 
  presenting G. Steven Agee, Nominee to be U.S. Circuit Court 
  Judge for the Fourth Circuit...................................  1297

                                NOMINEES

Agee, G. Steven, Nominee to be U.S. Circuit Court Judge for the 
  Fourth Circuit.................................................  1298
    Questionnaire................................................  1300
Lawrence, William T., Nominee to be U.S. District Judge for the 
  Southern District of Indiana...................................  1336
    Questionnaire................................................  1337
Snow, G. Murray, Nominee to be U.S. District Judge for the 
  District of Arizona............................................  1376
    Questionnaire................................................  1377

                       SUBMISSIONS FOR THE RECORD

Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................  1447
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................  1452

                     ALPHABETICAL LIST OF NOMINEES

Agee, G. Steven, Nominee to be U.S. Circuit Court Judge for the 
  Fourth Circuit.................................................  1298
Anderson, Stanley Thomas, Nominee to be U.S. District Judge for 
  the Western District of Tennessee..............................   527
Cook, Elisebeth C., Nominee to be Assistant Attorney General for 
  the Office of Legal Policy, Department of Justice..............  1069
Davis, Mark S., Nominee to be U.S. District Judge for the Eastern 
  District of Virginia...........................................  1097
Hall, James Randal, Nominee to be U.S. District Judge for the 
  Southern District of Georgia...................................   188
Haynes, Catharina, of Texas Nominee to be U.S. Circuit Court 
  Judge for the Fifth Circuit....................................   528
Honaker, Richard H., Nominee to be U.S. District Judge for the 
  District of Wyoming............................................   216
Katsas, Gregory G., of Massachusetts, to be Assistant Attorney 
  General Civil Division, Department of Justice..................    58
Kays, David Gregory, Nominee to be U.S. District Judge for the 
  Western District of Missouri...................................  1135
Lawrence, William T., Nominee to be U.S. District Judge for the 
  Southern District of Indiana...................................  1336
Limbaugh, Stephen N., Jr., Nominee to be U.S. District Judge for 
  the Eastern District of Missouri...............................  1200
Mendez, John A., Nominee to be U.S. District Judge for the 
  Eastern District of California.................................   527
Miller, Brian Stacy, Nominee to be U.S. District Judge for the 
  Eastern District of Arkansas...................................   307
Novak, David J., Nominee to be U.S. District Judge for the 
  Eastern District of Virginia...................................  1170
O'Connor, Kevin J., of Connecticut, to be Associate Attorney 
  General, Department of Justice.................................     5
Puryear, Gustavus Adolphus, IV, Nominee to be U.S. District Judge 
  for the Middle of Tennessee....................................   251
Snow, G. Murray, Nominee to be U.S. District Judge for the 
  District of Arizona............................................  1376


    NOMINATIONS OF KEVIN J. O'CONNOR, OF CONNECTICUT, NOMINEE TO BE 
   ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE; AND GREGORY G. 
  KATSAS, OF MASSACHUSETTS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, 
                 CIVIL DIVISION, DEPARTMENT OF JUSTICE

                              ----------                              


                       TUESDAY, JANUARY 22, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:02 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sheldon 
Whitehouse, presiding.
    Present: Senators Cardin and Specter.
    Senator Whitehouse. The hearing will come to order.
    My name is Sheldon Whitehouse, Senator from Rhode Island. 
I'll be chairing this hearing.
    And we have with us the Honorable John Larson, who 
represents the State of Connecticut in Congress. And I will 
allow the Congressman to say a few words on behalf of one of 
the nominees, and then I will make an opening statement. Then I 
will call the two nominees forward together to be sworn, to 
give their opening statements, and then have such questions and 
answers as may transpire. So, that's what we'll do.
    Congressman Larson, the floor is yours.

  PRESENTATION OF KEVIN J. O'CONNOR, NOMINEE TO BE ASSOCIATE 
   ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY HON. JOHN B. 
  LARSON, A U.S. REPRESENTATIVE FROM THE STATE OF CONNECTICUT

    Representative Larson. Thank you very much, Senator. I 
would like to say, on behalf of United States Senators Dodd and 
Lieberman, and I take both great pride and honor in being here 
and getting to introduce Kevin O'Connor to this committee.
    I'm proud to introduce Kevin O'Connor. He has brought honor 
and distinction to every endeavor he's been associated with. 
This is a proud moment for him, Kathleen, their children, and 
the entire O'Connor family, several of whom are assembled here 
this afternoon. It's a proud moment for the State of 
Connecticut and, I daresay, a proud moment for these United 
States.
    Our local paper, the paper of record in the State of 
Connecticut, the Hartford Current, wrote of Mr. O'Connor's 
nomination: ``In Kevin O'Connor, the White House has someone 
whose record and integrity promise to help restore confidence 
and stability to the agency.'' I couldn't agree more.
    In his 5 years as United States Attorney for Connecticut, 
his office successfully prosecuted numerous public officials, 
both Republicans and Democrats, for corruption and bribery 
charges. Mr. O'Connor has been adamant in enforcing our civil 
rights laws. He has protected our children from predators by 
successfully implementing the Project Safe Childhood program 
that combats online sex crimes against children.
    He has won a conviction in a Federal civil rights trial 
against the former mayor of Waterbury, Connecticut for sexually 
abusing two minor children, and he sent a clear message that 
racial discrimination has no place in the State of Connecticut, 
or this country, with the prosecution of racially motivated 
crimes.
    Mr. O'Connor personally prosecuted a man who plead guilty 
to violating Federal civil rights laws by accosting a colleague 
and making racially derogatory comments. As U.S. Attorney, he 
successfully tried criminal cases, argued two cases before the 
U.S. Court of Appeals for the Second Circuit. He has appeared 
in court on behalf of the United States on numerous other 
matters.
    But he also took his job and responsibility outside of the 
courtroom and onto the streets by implementing a Project Safe 
Neighborhoods program. He worked to reduce gun crime, because 
there is no better way to lower our crime rate than to prevent 
criminal behavior before it begins.
    I know this firsthand from working with him and seeing the 
level of commitment, understanding, the passion that he brings 
to his job and the coordinated involvement he brings to problem 
solving, things that I know serve him, and this Nation, well.
    He also took on companies in our State whom he believed 
were violating the Clean Water Act. They were found guilty of 
dumping sewage into our waterways and falsifying records. In 
addition to obtaining two of the largest criminal penalties in 
New England history for their convictions, he also went further 
and secured commitments from the companies to clean up their 
acts and improve their environmental compliance efforts.
    Mr. O'Connor recently served with distinction as Chief of 
Staff for the Attorney General. He assumed this position during 
a difficult time for the Department and the U.S. Attorney 
community. He helped maintain consistency during the transition 
between Acting Attorney General and Attorney General Michael 
Mukasey. He stepped up to the job by instituting a process that 
both helped fix the Department's problems and ensured its 
continued integrity.
    His previous experience includes a stint as a partner in 
one of Connecticut's largest law firms. He also enforced our 
Nation's security laws while working for the U.S. Securities & 
Exchange Commission, and he teaches law at the University of 
Connecticut and George Washington University. He has been an 
active and involved member of our community, serving on boards 
with distinction, and most of all bringing his great energy and 
enthusiasm to all of those endeavors.
    As an Associate Attorney General, I am confident that he 
will continue to enforce the Nation's laws and continue to show 
the strong and impartial commitment to the rule of law.
    I am honored to introduce Kevin O'Connor for your 
consideration of his nomination to the position of Associate 
Attorney General, for which he is eminently qualified and, like 
everything else that he has done, will distinguish himself on 
behalf of this great Nation that he has sworn to serve.
    I thank you for affording me the honor to introduce this 
outstanding candidate.
    Senator Whitehouse. Thank you, Congressman Larson. I 
appreciate that you have made the trip--quite a long trip, it 
seems, from your side of the Capitol to ours--to speak on 
behalf of Mr. O'Connor. I appreciate it.
    Representative Larson. Let's hope we can continue to close 
that chasm that exists there. Thank you very much, Senator. I 
appreciate the opportunity.
    Senator Whitehouse. I'm very grateful to have our Ranking 
Member, the distinguished Senator from Pennsylvania, Senator 
Specter, here.
    Senator.
    Senator Specter. Well, thank you, Mr. Chairman. I wanted to 
join in welcoming Congressman Larson and thank him for his 
opening remarks. I'd welcome the nominees for key positions in 
the Department of Justice. Kevin J. O'Connor, to be Associate 
Attorney General, the number three position. I thank Senator 
Leahy, the Chairman, and you for moving ahead with these 
important nominations.
    We're trying very hard to get the Department of Justice up 
to full speed. We have lots of important work to do. The 
Department had a rugged year last year, without saying anything 
further. Attorney General Mukasey is in charge, bringing in a 
new team. We want to make an appropriate analysis here and get 
these people confirmed at the earliest possible time so that 
they can move ahead full steam.
    I am pleased to see the excellent resumes of these two 
nominees. Kevin James O'Connor, with honors from University of 
Notre Dame, high honors from Connecticut Law School, on the Law 
Review. Real qualifications. He clerked for a Federal judge and 
was U.S. Attorney. He worked in the Department of Justice as 
Associate Deputy Attorney General and Chief of Staff to the 
Attorney General. So, those are very fine credentials. He knows 
his field. A prosecuting attorney's job is something that 
Senator Whitehouse and I have some--I have modest experience, 
he has extensive experience.
    Senator Whitehouse. Also modest.
    Senator Specter. And I'm especially pleased to see Mr. 
Katsas has worked for Judge Becker. That's an education all by 
itself. Judge Becker was Chief Judge of the Circuit in the 
Federal District Court from 1970 to 1982. He served on the 
Third Circuit until his untimely death 2 years ago. He was a 
very good friend of mine, and one of the great, great jurists 
in the history of the Federal courts.
    Mr. Katsas has a great record, Princeton cum laude and 
Harvard Law School, cum laude, executive editor of the Harvard 
Law Review, and extensive experience at the Department of 
Justice. So, it's good to move ahead with these quality 
nominees. I'm reserving judgment, gentlemen, until we hear you 
testify and take a close look at your record, but it seems to 
me you're in very good shape.
    And preliminarily, let me say that I will not be here too 
long because there are several hundred Pennsylvanians waiting 
to talk to me. This is January 22nd, as you may have noted on 
your calendar, the day of Roe v. Wade, which brings a large 
group to the steps of the Supreme Court and a large group to 
most Senators' offices.
    Thank you very much, Congressman Larson, for coming over.
    Representative Larson. My pleasure. Thank you, Senator.
    Senator Whitehouse. Thank you, Congressman Larson.
    Go ahead and take your seats, gentlemen. Today the 
committee will hear from two witnesses, Kevin O'Connor, 
nominated to be the Associate Attorney General, and Gregory 
Katsas, nominated to be the Assistant Attorney General in 
charge of the Civil Division.
    Mr. O'Connor is currently the U.S. Attorney for the 
District of Connecticut. He has previously served as Chief of 
Staff to Attorney General Alberto Gonzales and as Associate 
Deputy Attorney General. Prior to joining the Department of 
Justice, he had an impressive career in both the private and 
public sectors.
    The position to which Mr. O'Connor has been nominated is a 
vital one. The Associate Attorney General is the number three 
official at the Department of Justice, responsible for 
supervising a number of important offices, including the 
Antitrust, Civil, Civil Rights, and Environment & Natural 
Resources Divisions.
    Mr. Katsas is currently both the Acting Associate Attorney 
General and the Principal Deputy Associate Attorney General. 
From 2001 to 2006, he served as the Deputy Attorney General of 
the Civil Division, where he supervised much of the division's 
appellate work, so he is well familiar with the workings of the 
very important division he has been nominated to.

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

    Senator Whitehouse. Before proceeding with the witnesses' 
opening statements, I would like to make two observations. 
First, this hearing marks another important step in the effort 
to restore the Department's credibility after the disastrous 
tenure of Alberto Gonzales, which ended with vacancies 
throughout the Department's upper ranks.
    Indeed, the nominees before the committee today are the 
ninth and tenth, respectively, to have confirmation hearings 
before this committee since Mr. Gonzales stepped down, a list 
which includes nominees to be Attorney General, Deputy Attorney 
General, Associate Attorney General, and three Assistant 
Attorneys General.
    I commend Chairman Leahy for his determination to help fill 
these vacancies so that Attorney General Mukasey can have a 
leadership team intact so the Department's credibility can be 
restored.
    Chairman Leahy has provided a statement, which I ask to 
have put in the record. Without objection, the Chairman's 
statement will be part of the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Whitehouse. Whether the Department's credibility 
can be restored depends in large part on whether these nominees 
are committed to operating in a manner different from the 
approach of the Gonzales Justice Department in which they both 
served. Second, this hearing is a reminder of the vital role of 
congressional oversight of the Department of Justice.
    It was thanks to this committee's hard work last year that 
the American people learned of U.S. Attorneys fired for 
political reasons, of a hiring process corrupted by politics, 
and a policy that allowed hundreds of people at the White House 
to have case-specific conversations with dozens of DOJ lawyers.
    Attorney General Mukasey has taken preliminary steps to 
right the ship, but as we all know, there is much more to be 
done. Congress will play an instrumental role in ensuring that 
progress continues to be made, which brings us to today's 
hearing. We look forward to the testimony of both Mr. O'Connor 
and Mr. Katsas.
    We need independent voices in the leadership of the 
Department of Justice, people who will make decisions based on 
the law, not on politics, people who will stand up to political 
pressure from the White House, and people who understand and 
value the time-honored traditions of the Department of Justice 
that have helped guide it for many decades and made it great. 
These are the measures by which we will judge your nominations. 
I look forward to your testimony, and would call on you for 
your opening remarks.
    Senator Specter, would you like to make further opening 
remarks?
    Senator Specter. No thank you, Mr. Chairman.
    Senator Whitehouse. Would the witnesses please stand and be 
sworn?
    [Whereupon, the witnesses were duly sworn.]
    Senator Whitehouse. Please be seated.
    Mr. O'Connor, will you proceed first?

 STATEMENT OF KEVIN J. O'CONNOR, OF CONNECTICUT, NOMINEE TO BE 
       ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

    Mr. O'Connor. Good afternoon, and thank you, Mr. Chairman, 
for, No. 1, agreeing to chair this hearing, and Senator 
Specter, for being here as well. I want to thank the President 
and the Attorney General for having the confidence in me to 
nominate me for this very important position at a very 
important time.
    I also want to thank Congressman Larson for his kind words 
and efforts to be here today. I had the good fortune of having 
been an opponent of his in a prior election. You can probably 
see, from his remarks, why I lost and he won. He is an 
outstanding public servant and it means a lot to me and my 
family that he took the time to be here. So, I want to thank 
him as well.
    I'd also like to thank my family, many of whom join me here 
today.
    Senator Whitehouse. Why don't you take a few minutes and 
introduce them if you would? We'd be delighted to see who they 
are and have you have the opportunity to introduce them to the 
committee.
    Mr. O'Connor. Thank you, Senator, for that.
    I'd introduce my wife, Kathleen, and my son James, who is 
for now is acting very well on her lap. My three daughters are 
color-coordinated so we don't lose them in the room, Erin, Anne 
and Mary. Behind them are my in-laws, Bill and Caryl Plunkett, 
and behind my wife are my parents, Mary and Dennis O'Connor. I 
also have two of my brothers here today, Michael and John 
O'Connor, and Michael brought his sons, Brandon and Michael, as 
well. I have numerous other friends and family from West 
Hartford, but also from my U.S. Attorney Office and the 
Department who are here as well.
    I will not indulge upon your time and your patience by 
going through all of them, but I want to thank them as well.
    Senator Whitehouse. Well, you are all very welcome here. I 
appreciate that you've taken time out of your schedules to 
come, and I appreciate how well the young O'Connor children are 
behaving. You are setting a very good example.
    Please proceed.
    Mr. O'Connor. Thank you.
    I want to be very brief in my opening statement and just 
simply say that it's an honor to serve. I feel privileged to 
have served this country and the people of Connecticut for the 
last five-plus years as United States Attorney. And should I be 
confirmed by the Senate, I would view it as the highest honor 
of my professional career to continue in service of the 
Department of Justice.
    I have come, over the past 5 years, to admire and respect 
so greatly all of the men and women of the Department of 
Justice, all--more than 100,000 of them, and I feel privileged 
every day I get to come to work and work alongside them. So it 
is a deep honor to me and to my family to be here today.
    Again, I thank this committee for moving as quickly as it 
has with my nomination, and I thank you for your time this 
afternoon.
    [The biograhical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Whitehouse. Mr. Katsas?

STATEMENT OF GREGORY G. KATSAS, OF MASSACHUSETTS, NOMINEE TO BE 
   ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF 
                            JUSTICE

    Mr. Katsas. Thank you, Senator. I would just like to 
acknowledge a few people, and thank a few others.
    First, if I may, I'd like to introduce my girlfriend, 
Simone Mele, who's here. She came down from New York to be with 
us, and we're glad that she's here. I'd like to say hello to my 
mother, who is watching these proceedings on television. She's 
elderly and couldn't be here in person, but she is watching 
from Jamaica Plain, Massachusetts. Also, to my sister in 
Newbury-Port, Massachusetts. She is busy raising two small 
children with her husband.
    I'd like to thank a few of the very many people who have 
helped me and supported me in various stages of my legal 
career: Justice Clarence Thomas gave me the incomparable 
privilege of clerking for him twice, first at the DC Circuit 
and then at the Supreme Court; Timothy Dyke and Glen Baker were 
my bosses for many years at Jones, Day, and great teachers and 
mentors; Robert McKeown, Peter Keisler, and William Mercer each 
gave me the high honor of serving at the Justice Department for 
the last six and a half years, both in the Civil Division and 
the Office of the Associate Attorney General.
    I'd like to thank Robert Kaugh and every member of the 
appellate staff of the Civil Division. I've worked with them 
side to side for more than 5-years. They are a team of 
fabulous, dedicated public servants and lawyers. Robert managed 
that staff flawlessly and I ended up getting much of the credit 
for his great work. Last, but not least, I'd like to thank the 
President for nominating me, and I'd like to thank this 
committee for giving me this hearing.
    Finally, I'd like to recognize two people who are no longer 
with us. The first, is Judge Edward Becker, who gave me my 
first job out of law school as a clerk in Philadelphia on the 
Third Circuit. Judge Becker was a giant in the law, but 
nonetheless a humble man and, as Senator Specter knows, one 
also who was loved by everyone who had the chance to know him. 
He taught me so many good lessons, including that good 
decision-making requires hard work and a painstaking attention 
to detail. He died much too young, but his memory continues to 
inspire me and dozens of other former clerks every day of our 
professional lives.
    Finally, my father. He came to this country and lived the 
American dream for more than 40 years as a distinguished 
forensic pathologist in Greater Boston. In his obituary, the 
Boston Globe described his unparaleled reputation for honesty, 
integrity, for the testimony that he gave in court as a part of 
his job. I've tried to do my best to live up to those standards 
of honesty and integrity in my own career so far, and I will do 
my best to continue to live up to those standards as an 
Assistant Attorney General, if I should be fortunate enough to 
be so confirmed.
    Thank you very much.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Whitehouse. Thank you, Mr. Katsas.
    Mr. O'Connor, you, in addition to being the nominee for 
Associate Attorney General, also continue in your position as 
U.S. Attorney for the District of Connecticut.
    Mr. O'Connor. That's correct. I currently serve as U.S. 
Attorney for Connecticut.
    Senator Whitehouse. Do you intend to relinquish that 
position?
    Mr. O'Connor. I believe I would have to, if I was 
confirmed. I don't think it's a choice by law. I would 
certainly intend to step down, if confirmed.
    Senator Whitehouse. Good.
    I think across America, people who have served in the 
Department of Justice are looking at this institution with real 
consternation, but also real hope. I think as we all know, this 
is a really vital, proud, and important institution in the 
architecture of American government and the enforcement of 
American liberties and laws. I hope it is now emerging from 
what probably number among its darkest days.
    I think it is very important to every member of this 
committee, as well as to so many thousands of colleagues who 
work for the Department of Justice and to those who have gone 
before you who look back with real pride and affection on their 
time at the Department of Justice, to see things put right.
    I would like to hear from you why, now, you want to be 
Associate Attorney General and how, to borrow the phrase from 
the Hartford Current, you will promise to help restore 
consonance to the Department of Justice and stability to the 
Department of Justice.
    Mr. O'Connor. Senator, I think the short answer to that is, 
because I subscribe to the same views of the Department that 
you just articulated, I believe that all of us in the 
Department, particularly those of us who serve at the pleasure 
of the President and who are here for a finite period of time, 
we have an obligation to keep the reservoir of credibility as 
high as we found it. These have, rightfully, been difficult 
times for the Department. I agree with that wholeheartedly.
    I had the pleasure of serving with some of the best U.S. 
Attorneys in the country, colleagues and friends, and I think 
we all share the commitment to making sure that we do all that 
we can to make sure that we leave this Department as good as we 
found it.
    I think the opportunity to serve as Associate Attorney 
General is an opportunity for me to do all I can in a different 
capacity, albeit one that would require me to be away from my 
family for a period of time. But when the Attorney General asks 
you to serve at challenging times, I think for those of us who 
are committed to public service, it's a very difficult question 
to say no to.
    I was asked to serve, am honored to have served. I am 
fortunate to have a family that has supported me in these 
endeavors, though it hasn't been easy. I can commit to you 
that, if I am confirmed, I will work every day, not just with 
those of us who served in this administration, but the men and 
women who will be there long beyond us, to do all we can to 
give people the confidence that this Department of Justice has 
to have to be effective.
    Senator Whitehouse. There will be those awkward 
circumstances with the political desires and purposes with the 
administration that you serve that may come into conflict with 
the laws and liberties that it is the Department's obligation 
to defend. In those circumstances, how will you evaluate that 
conflict?
    Mr. O'Connor. Well, I would follow the law. The law is 
supreme. No job--no job--is more important than its credibility 
and integrity. If I ever came to such a situation--and I truly 
hope and trust that I won't, but if I do--I will not hesitate 
to walk away, to resign, if I ever felt that I was being asked 
to do anything other than what's right for the Department, 
what's right for this country.
    Senator Whitehouse. You served as Chief of Staff to 
Attorney General Gonzales at the time when he gave testimony 
before this committee, that many of the members felt was less 
than candid, less than truthful. Were you involved in the 
preparation of his testimony before this committee as Chief of 
Staff?
    Mr. O'Connor. I was involved. I'm not sure what particular 
testimony you're referring to, but I was involved, generally 
preparing him and enlisting others, one at the Office of 
Legislative Affairs, in the various oversight hearings that 
occurred during the time period I served as Chief of Staff.
    Senator Whitehouse. The two statements that come to mind, 
one was on July 24 when Mr. Gonzales stated, in reference to 
his visit to Attorney General Ashcroft's hospital room, ``The 
disagreement that occurred and the reason for the visit to the 
hospital was about other intelligence activities. It was not 
about the Terrorist Surveillance Program that the President 
announced to the American people.''
    Since then, numerous officials, including members of the 
so-called Gang of Eight, the top intelligence committees on the 
House and Senate side, and FBI Director Robert Mueller, have 
confirmed that the disputes did, in fact, concern the Terrorist 
Surveillance Program.
    What was your reaction when he gave that testimony? Were 
you familiar with the underlying situation or were you out of 
the classification bubble necessary to understand the 
testimony?
    Mr. O'Connor. The latter. I, frankly, have no 
understanding. I'm not read into the Terrorist Surveillance 
Program, never have been. With respect to that portion of his 
testimony, he did testify a few times at the Intel Committee. I 
was not involved in the preparation for that because I had not 
been read into that program. So, I could not tell you whether 
or not anyone's testimony in that regard is accurate or not.
    Senator Whitehouse. OK.
    The other piece of testimony was on April 19. Mr. Gonzales 
testified, ``I haven't talked to witnesses because of the fact 
that I haven't wanted to interfere with the investigation'', 
the investigation being the investigation into the dismissal of 
U.S. Attorneys. Subsequently, White House liaison Monica 
Goodling testified that the Attorney General had indeed had a 
discussion with her, one that she found uncomfortable, in which 
he set out his version of events regarding the process of 
hiring U.S. Attorneys, and asked her for her reaction.
    Were you involved with that testimony? What is your 
reaction to what the Attorney General said when he testified as 
he did?
    Mr. O'Connor. Well, I don't think I had any reaction at the 
time. I don't even know if I was serving as Chief of Staff at 
that point. I believe I became Chief of Staff, like, April 
26th. But I was, Senator, I know, part of the folks involved in 
preparing for that hearing, I believe. At the time he answered 
that question I had no reason to question him. When Ms. 
Goodling subsequently testified, there was obviously a 
difference of opinion there.
    I think Judge Gonzales could probably speak better than I 
can as to explaining that inconsistency. I don't believe that 
Judge Gonzales, when he subsequently denied having that 
conversation with this group, I'm not privy, as I said, to 
exactly what the explanation was. It may have been the fact 
that he had just not recalled it, or he didn't recall the 
conversation occurring then.
    Senator Whitehouse. Do you know when you first became aware 
of a conversation that took place between Attorney General 
Gonzales and Ms. Goodling?
    Mr. O'Connor. Yes, I do.
    Senator Whitehouse. When was that?
    Mr. O'Connor. It was the day she testified.
    Senator Whitehouse. OK. Well, that clarifies what your 
action would have been to his testimony.
    The last point I'd like to ask you about is a more specific 
version of my earlier question focusing in on the Civil Rights 
Division, which is a division that has suffered particularly in 
the past months and years with embarrassing evidence of 
politically motivated hirings, a decrease in the division's 
enforcement of Section 2 of the Voting Rights Act, the DOJ 
amicus brief defending Indiana's Voter Identification law, 
which, based on all the evidence I have seen, is an effort to 
make it more difficult to vote, not less difficult.
    If confirmed, what would you do to ensure that the Civil 
Rights Division is apolitical and vigorously protects the right 
to vote? In particular, what do you think about these State 
voter ID laws, which strike me as both erecting an obstacle to 
the right to vote, and doing so in a way that particularly 
makes it difficult for the elderly, for authorities, and for 
people who are at the lowest economic levels?
    Mr. O'Connor. Well, let me try to answer that in two 
phases. I think with respect to what I would do, should I be 
confirmed and oversee Civil Rights, would be to communicate 
very clearly that we do not make any decisions on any cases for 
anything other than what the law and the facts dictate, and 
political considerations play absolutely no role in whether we 
bring or don't bring cases. Only the evidence should matter, 
number one.
    Secondly, I think as a management philosophy of the Civil 
Rights Division, I'd like to see them get on the front pages 
for the cases they do, not for anything else. I think, 
unfortunately, in the past year or two they've made news, but 
not for the right reasons. I think my goal would be to see the 
Civil Rights being talked about in the press because of its 
work, not because of its management, or any of the other issues 
that have nothing to do with the mission of doing the right 
thing for the American people and aggressively enforcing civil 
rights.
    With respect to the second question of voter ID, I must 
say, I have limited experience with the issue. I don't recall, 
as U.S. Attorney of Connecticut, there being any issues with 
any voter ID statutes passed by the State legislature that we 
have had to enforce. Obviously, HAVA does apply in Connecticut.
    There have been a few issues with the Secretary of State's 
ability to certify compliance, but they haven't really involved 
our office. I can say that obviously the right to vote is 
probably one of the most fundamental rights that we have, and 
guarding it zealously is part of what the Department does in 
the Civil Rights Division. We have an obligation to make sure 
that people who should vote can vote, and aren't intimidated. 
That's probably one of the most important issues that we have.
    There is, I believe, a concern in some parts of the 
country, although I'm not privy to the facts there, where there 
are people voting who perhaps should not be voting. I think 
it's safe to say that in those respects there's an interest as 
well in making sure that people who shouldn't vote don't dilute 
the votes of those who should.
    The question I think in each particular case depends on the 
facts and circumstances as to whether the remedy, be it a 
Federal statute, HAVA, or a State statute, is written in a 
manner that accomplishes that and doesn't have an adverse 
impact. I know, with respect to the case of Indiana, I know 
that's pending before the Supreme Court and has been argued. 
I'm hesitant, not only because I'm not that familiar with it, 
but also because of the pending nature of that litigation, to 
make any additional comments specific to that.
    Senator Whitehouse. Would you agree with me with the 
proposition that if there are a handful of people who may vote 
for whom it is not appropriate that they be voting, it is not 
legal that they be voting, and the measure that the Department 
pursues in order to protect against the risk of their voting 
discourages hundreds of people who are legally entitled to 
vote, enfranchised properly in this country, to vote for its 
elected officials. The Department has taken a big step 
backward.
    Mr. O'Connor. Well, I would say under those circumstances I 
would like to think the Department would look long and hard. 
Ultimately it would be the State legislature that passed the 
bill that had that impact. The Department would have to 
ascertain, under those circumstances, what, if any, role to 
play. Clearly, I think under those circumstances the Department 
would have to be very reticent to try to defend the statute if 
that was the impact that the statute was having.
    Again, it's hard for me to speculate on the circumstances, 
but if the goal of the statute is not being accomplished and 
there's a negative impact on people that the statute did not 
intend to cover, that's a real problem, I think, from a 
constitutional perspective. But I think, should an issue like 
that land in the lap of the Civil Rights Division, we would 
obviously have to give great weight to that.
    Senator Whitehouse. It may be more than just the statute 
that's involved. It may be enforcement policies at the Civil 
Rights Division.
    Mr. O'Connor. I agree. That's possible, yes.
    Senator Whitehouse. OK.
    Mr. Katsas, welcome.
    Mr. Katsas. Thank you.
    Senator Whitehouse. If you don't mind, I would ask you to 
embellish a little further on the remarks that you made in your 
opening statement--you alluded to your pride in your father's 
accomplishments--and bring them to bear, if you would, on the 
present situation of the Department of Justice, particularly in 
terms of its credibility and reputation for integrity and how 
you see your role in the management position at the Department 
that you are seeking, and restoring that credibility and that 
reputation.
    Mr. Katsas. As a forensic pathologist, my father's job was 
to ascertain the cause of death and, on many occasions, to 
testify in court about that. He was typically a witness called 
by the government in the course of a murder or other 
prosecution, but he never viewed himself as a government 
witness in the sense of someone whose job it was to secure a 
conviction.
    He viewed his job as telling the facts as he determined 
them, regardless of where the chips may fall in any particular 
case. I think that kind of fairness earned him the terrific 
reputation over time among both prosecutors and defense lawyers 
who were involved in criminal prosecutions in the Commonwealth 
of Massachusetts, and served him well professionally and served 
him well as a human being.
    As I said, I share that sense that my job as a lawyer, 
involved in a different aspect of court proceedings, is to call 
things as best I can and make the best legal judgments I can, 
whether as a litigator called upon to defend the government's 
position or as an advisor called upon to counsel as to what the 
law might require in a particular case.
    One can't work in a litigating division for five years, as 
I have, without getting the sense that an appreciation of that 
kind of ethic that runs throughout the staff, throughout the 
appellate staff that I supervised and the other parts of the 
Civil Division, there is a wonderful honor that I have felt 
many times in being able to go into court and say, ``May it 
please the Court, I represent the United States of America.''
    Deputy Attorney General Comey used to say that that 
statement always gives one immediate credibility and makes a 
court inclined to believe whatever follows that statement. But 
that's only true if all of us continue to do our part to 
preserve the traditions of fair-mindedness and integrity about 
which you have spoken so eloquently. I did my best for more 
than 5 years in the Civil Division to uphold that sort of 
tradition and, if confirmed, I would do my best to continue in 
the same vein.
    Senator Whitehouse. You've mentioned this already, but how 
do you see the role of career attorneys with the Department of 
Justice?
    Mr. Katsas. When I was the Appellate Deputy for the Civil 
Division, there was one of me, a political appointee, and 60 
career attorneys working for me and with me. That office 
couldn't possibly function unless there were a sense of trust 
and rapport and cooperation between me as the nominal leader 
and the staff who actually did the overwhelming bulk of the 
work, and made the overwhelming majority of the 
recommendations, and made sure that the work got done.
    I think I earned their respect and developed a good 
relationship with them. It is indispensable. In the Civil 
Division in its entirety, there are probably something like 
half a dozen political appointees and 800 career lawyers. No 
political appointee at the top of that pyramid could possibly 
function without the confidence of all of the career lawyers 
working toward the common mission of justice.
    Senator Whitehouse. I've recently had the chance to review 
a number of classified opinions from the Office of Legal 
Counsel. I've arranged that they are now--sections of them, at 
least, that I have selected are now declassified so that we can 
talk about them publicly, and I've spoken about them.
    They concern me very much, particularly since an OLC 
opinion has a precedential effect and one could build on 
another, and one could, in a chain of self-created precedent, 
walk the Department pretty far outside of the bounds of 
traditional legal theory, particularly when opinions are 
classified and there's very little public opportunity for 
scrutiny and reaction to it.
    I'd like to ask for each of you to react to two points that 
I extracted from those opinions, and then I'll turn to my 
learned, distinguished colleague from the State of Maryland, 
Senator Cardin, who has joined us.
    Here are the two propositions that I'd like to ask your 
comment on. The first proposition is this. An executive order 
cannot limit a President. There is no constitutional 
requirement for a President to issue a new executive order 
whenever he wishes to depart from the terms of a previous 
executive order. Rather than violate an executive order, the 
President has instead modified or waived it.
    My concern on that one, rather briefly, is that it allows 
the published executive orders of the executive branch of the 
government to become a foil and a screen for the real 
activities of the government if there is never a disclosure of 
the President's, to use the phrase, modification or waiver of 
the executive order. I understand perfectly well that the 
President is free to modify one. He can act outside of one and 
modify it nunc pro tunc. There is enormous and widespread 
executive authority.
    But the idea that you must never--you're free never to come 
into compliance or change an executive order and simply run a 
classified program in violation of your own disclosed executive 
orders, which in many situations have the force of law, strikes 
me as being a trespass beyond the bounds of legal propriety.
    The second one is very simple. The Department of Justice is 
bound by the President's legal determinations. It strikes me 
that that is a particularly difficult proposition where the 
Department of Justice is called upon to do its duty, that the 
President, for reasons that may have nothing to do with the 
enforcement of the laws of the United States of America, may 
choose to have a different view, maybe as a result of his 
personal interests or his political self-interests, and 
unfortunately has to have seen such circumstances. President 
Nixon was rather famous for saying if the President says so, 
then it can't be illegal.
    So if you could react to those two propositions for me, I'd 
appreciate it.
    Mr. O'Connor.
    Mr. O'Connor. Thank you, Senator. I would say that, with 
respect to the first one, I think that perhaps the most 
appropriate way to respond is that transparency is crucial, 
that it seems to me always to be the best situation to act in a 
transparent manner and that, regardless of whether the 
President can or cannot deviate from an executive order, it 
seems to me the most prudent course is, when doing so, to make 
sure that he's consulting with leaderships of the intel 
committees or the appropriate committees that have jurisdiction 
or oversight responsibilities.
    So I think, with respect to--it's less important to me 
whether he can or cannot do that. It's really more important 
whether he should or should not do it. If he does, it seems to 
me the best course of action would be to make sure he was 
consulting with the appropriate folks in Congress so that they 
were aware of it, so it did not look, I think as you said, as a 
cloak-and-shield type situation. I think that with respect to 
the second statement about the Department, I am frankly 
confused by it. It doesn't make sense to me. Obviously I don't 
have the same context, but the--
    Senator Whitehouse. I'm so glad you have the same reaction 
I had.
    Mr. O'Connor. Yes. Maybe there's a context to the 
classified opinion. Obviously I haven't seen that. But the 
statement, in and of itself, I'm trying to figure out how that 
could make sense. Perhaps there is a way that I'm just not 
sophisticated enough and knowledgeable enough to figure out, 
but it seems to be that the Department has an obligation to 
call them as we see them.
    Senator Whitehouse. Mr. Katsas?
    Mr. Katsas. It's hard to have too definitive a view, not 
seeing all the context, but let me give you some thoughts based 
on what you've shared with us.
    With respect to--
    Senator Whitehouse. And just for the record, I'd be 
delighted to tell you more about those opinions. Those are the 
only segments that they've allowed me to talk about, the only 
segments that are unclassified.
    Mr. Katsas. Understood. With respect to the first statement 
on how a President can or can't change executive orders, it 
seems to me literally true in a sense because the Constitution 
doesn't specify procedures for making or sending executive 
orders in a way that, say, it specifies the procedures for 
making and rescinding statutes. To that extent, it's true.
    But as your comments suggest, it does seem to create 
concern about notice and forthrightness. To the extent that an 
executive order is a published public document intended to 
convey things to the Congress and to the public about what the 
executive is doing, there would obviously be concerns if, then, 
the executive does something completely differently in secret 
without being clear about what it's doing.
    I can obviously understand your concern with respect to 
Congress' oversight interests, and a more general concern that 
people like to know what their government is up to. There may 
be occasions when there are national security or other needs 
for secrecy in particular cases, but I just can't evaluate 
whether such arguments would be compelling in the context of--
whatever context that statement was made.
    Senator Whitehouse. And the second?
    Mr. Katsas. The second. I think the important question for 
me as a Justice Department lawyer is, what are my obligations 
to my superiors up the chain of command, to and including the 
President. I understand my obligations, both as a 
constitutional matter within the Article 2 hierarchy and as an 
ethical matter as an attorney charged with practicing 
ethically, I understand my obligations as advising and 
litigating cases and advising superiors consistent with my own 
assessment of what the law requires.
    It is quite easy to imagine circumstances in which I, as a 
lawyer, think that there is only one legally defensible view to 
take litigating a case as a member of the Civil Division and 
someone above me in the chain of command instructs me to do the 
opposite. That would put me in a terrible position. I think it 
would compel me to resign. I am happy to say that, in more than 
5 years of litigating cases within the Civil Division, I was 
never put in that uncomfortable and unfortunate position.
    Senator Whitehouse. Senator Cardin?
    Senator Cardin. Mr. Chairman, thank you very much.
    First, let me thank both of our nominees for their 
commitment to public service. We very much appreciate that. We 
know it's a tremendous sacrifice to your family and we thank 
the family for being willing to share you with public service. 
So, we thank both of you for that.
    I want to followup somewhat with Senator Whitehouse's 
comments about following the law and the power between the 
executive branch and the legislative branch. So, Mr. O'Connor, 
let me, if I might, start by talking a little bit about the 
U.S. PATRIOT Act and how far the administration can go, 
contrary to what Congress may do.
    One of the issues that's currently being debated is the 
exclusivity of the U.S. PATRIOT Act on obtaining information 
from U.S. citizens. There is a balancing that we're trying to 
do, giving the government the ability to get information it 
needs in a timely way versus protecting the civil liberties of 
the people of our own country. We are considering a statute 
that would be exclusive. As Senator Whitehouse mentioned in 
some of his statements from legal counsel opinions, there's a 
question, at least, raised as to whether Congress can do that 
or not.
    You've been involved in some of this litigation. If 
Congress indeed requires the administration to follow a certain 
action on obtaining information under the Foreign Surveillance 
Act, can the President go beyond that, and if he can, what does 
he have to do in order to notify Congress?
    Mr. O'Connor. Senator, yes. I think, to be clear, that's 
the Protect America Act, I believe, and the FISA modernization 
debate that's going on right now that expires. I must tell you, 
my knowledge of the PATRIOT Act doesn't really include FISA. 
That being said, I have a general knowledge. I'm happy to 
answer the question. I haven't litigated FISA.
    Senator Cardin. You're correct. The legislation we're 
currently considering.
    Mr. O'Connor. That's right. I would say this. I'm generally 
aware. I don't--I've never really delved in this FISA world as 
a U.S. Attorney, but my general understanding is--
    Senator Cardin. You're in for a treat.
    [Laughter.]
    Mr. O'Connor. My general understanding is that there are 
really conflicting views on whether or not Congress can 
regulate and make FISA the exclusive means of the President's 
authority to engage in warrantless surveillance. There's an 
opinion I've seen from Attorney General Griffin Bell where he 
indicates that FISA does not go to the limits, that there's 
some inherent authority, recognizing, of course, that you get 
into the Justice Jackson analogy of Youngstown, where, when 
you're in that realm, the President's power is probably at its 
lowest ebb. But I also recognize that there are distinguished 
legal scholars, including the dean of Yale Law School in my 
district, who feel otherwise, that the President does not have 
inherent authority above and beyond what Congress gives them 
under FISA. I must say, I haven't read these varying points of 
views. I recognize they exist. They obviously come from people 
with far more formidable legal minds than mine. I think the 
solution is, rather than necessarily--one could probably delve 
into the issue and give a definitive issue--answer on this, but 
I think it would be in everybody's best interests to avoid the 
constitutional question in the first place and try to work in 
the spirit that Attorney General Levy did with Congress, 
collaboratively, to avoid a constitutional question on who has 
what authority.
    It seems to me the best course of action is always to work 
collaboratively with Congress on this issue and not put 
ourselves in that third basket that Justice Jackson required, 
but to put us in the first basket where the President is acting 
consistent with Congress' authority.
    And should I be confirmed--and I don't know if, as 
Associate Attorney General, this would even be in my domain. 
But were I to be asked to participate, I would certainly 
approach it with the philosophy that collaboration is always 
better here and staying in that first basket that Justice 
Jackson so articulately described, rather than having a 
situation where one branch of government is not seeing eye-to-
eye with the other.
    Senator Cardin. Well, I agree with you, it's always best if 
we can work together. Unfortunately, that has not always been 
the case. Mr. Katsas said quite clearly that if he--on a 
fundamental issue there was direction given that he disagreed 
was following the law, he would consider resigning. It seems to 
me that in the number-three position at Justice, you'll have an 
opportunity to exercise a good deal of impact here.
    What Congress is trying to do, working with the 
administration, is develop the manner in which information can 
be obtained under the Foreign Intelligence Surveillance Act. I 
guess what I would like to know, is the respect for the 
different branches of government and that the Judicial 
Committee must exercise independent judgment here--it can't 
just be the cheerleader for the President--and would welcome 
your thoughts as to how you see your role in that regard.
    Mr. O'Connor. Well, should I be asked by the Attorney 
General--I realize there's a February 1 deadline, I believe, 
under the Protect America Act. But should I be asked to 
participate, I can assure you that my view here would be 
focused on one thing and one thing only, and that's the law. 
But I would say that in cases where there's disagreement over 
how far Congress can go, the solution is not to ignore Congress 
and proceed anyway.
    If you're going to go to that third bucket, you ought to be 
doing it in close consultation with Congress and you ought to 
at least let Congress know that you have this difference of 
opinion. I hope and I trust, and anything I would do, sir, as 
Associate Attorney General, were I to be confirmed, would be to 
keep us out of that situation. I don't think it's in the best 
interests of our country, or the Department, or this branch, or 
the executive branch to have those kind of constitutional 
showdowns. So I'm optimistic, by February 1st, that those 
people involved in these negotiations will come to some sort of 
resolution that everybody can live with.
    Senator Cardin. Thank you.
    Mr. Katsas, let me, if I might, turn to Guantanamo Bay for 
a moment.
    Mr. Katsas. Sure.
    Senator Cardin. I understand you've been involved in some 
of the litigations concerning Guantanamo Bay. Where are we 
going on Guantanamo Bay? Can we maintain the legal position for 
an indefinite period of time of detaining individuals under 
unlawful combatant status without rights under the normal 
criminal justice system, or even the military justice system?
    Mr. Katsas. I think there are two aspects to your question: 
what does the Constitution require vis-a-vis the Guantanamo 
detainees, and what is sound policy vis-a-vis the detainees?
    On the first, the first question is pending before the 
Supreme Court in the Iloda and Boomadine cases, and we should 
have a lot more clarity, I would assume, in June when the 
court, in all likelihood, will render a decision on that 
question.
    Under current law, under current DC Circuit precedent, 
there is no constitutional impediment to the existing regime at 
Guantanamo of military tribunals followed by Court of Appeals 
review, but that's all before the Supreme Court to be decided.
    On the broader question of what is sound policy, that is 
not so much a call for a civil litigator to make. But I can 
tell you, the President has expressed his desire to close 
Guantanamo as soon as that can be done responsibly, consistent 
with that desire. Most of the detainees who have ever been 
brought to Guantanamo have been released from Guantanamo. About 
750 have been brought in, and something on the order of 200 or 
fewer remain. So, I think the Defense Department is doing its 
best to wind down as much as it can.
    The judgments about whether the detainees can safely be 
brought to this country, whether they can safely be released or 
whether they can safely be transferred to other countries under 
appropriate security conditions and appropriate assurances of 
humane treatment, frankly, are a bit above my pay grade.
    Senator Cardin. Let me ask your advice on one other area. 
There are many things that have concerned me about Guantanamo 
Bay. I've been there. I've had a chance to meet with our 
soldiers that have been in Guantanamo Bay. One thing I've never 
understood is why the United States didn't seek the guidance of 
the international community on the handling of unlawful 
combatants. The 9/11 Commission talked a little bit about this.
    I would just like to get--you're seeking confirmation to a 
top policy position within Justice--as to your views as to the 
advisability of the United States seeking international 
standards for a problem that's going to be with us, I'm afraid, 
for the indefinite future. We're not going to be able to end 
the war on terror in the next year or two, so it's likely that 
we're going to have another round of individuals who are going 
to be picked up, suspected to be a terrorist, have information 
that's important for us to obtain for the security of America.
    Wouldn't it be--I don't want to lead the witness, but tell 
me your view as to whether we should be doing this alone, 
knowing full well that other countries might very well be in a 
similar position that we're in and do things that we would 
normally object to. Would it be advisable for us to seek some 
international standards rather than just try to create our own 
standards for what we think is right?
    Mr. Katsas. Other things equal, of course it would be 
advisable to consult with, particularly, our allies and other 
nations. It seems to me that is part of what the Defense 
Department has done in the past in the following sense. The 
detainees at Guantanamo have been given tribunals, have had the 
opportunity to have a military tribunal determine whether or 
not the detainee is, in fact, an enemy combatant or an innocent 
person swept up in the--
    Senator Cardin. I believe that occurred after the courts 
interviewed.
    Mr. Katsas. After the Rasoul decision in 2004. With respect 
to your point about consulting international standards, my 
understanding is that the thinking at the time was to do 
precisely that and to use as a model for the detention system 
in 2004 going forward the kind of standards that have grown out 
of Article 5 of the Geneva Convention which addresses the 
question of figuring out who is, in fact, a combatant and who 
is not a combatant and who is entitled to P.O.W. status.
    Obviously, as we move forward and it looks like detainees 
might otherwise be staying for the indefinite future, it may 
well be appropriate to consider further process and further 
protections and, as part of that dialogue, I would think that 
the input of our international partners would be a significant 
consideration going forward.
    Senator Cardin. Just to clarify the record, I think it 
would be advisable to do more than consultation. I think it 
would be important for us, with our allies, to develop 
international standards for this new type of international 
problem we're confronting, the unlawful combatant issue, so 
that there's general recognized international standards for how 
these detainees should be treated. We did this originally under 
the authority of the President without really the Congress or 
the court's concurrence, and then finally the court has 
developed certain rights.
    Absent the court decisions, it's likely that these 
individuals never would have had a formal process for 
determining their status. But I would just hope that we would 
open this up more. We did a lot of things that were very 
defensible, but we didn't engage the international community. 
There's a lot of rumors, and some of which were totally false, 
because of the manner in which we handled it. Ultimately we 
just didn't know what to do with them.
    After a long detention, they had very little value for 
intelligence, but from a safety point of view we didn't know 
whether we should try them, or return them, or do what. We're 
sort of stuck now. Everyone agrees--at least most people 
agree--that Guantanamo, as it was originally constituted, is no 
longer desirable for us to maintain. Now we don't know what to 
do with the people that are there.
    So I just would urge us to try to gain international 
support for these types of activities before just saying, 
because we're America, we can go ahead and do it because we 
know what we're doing right.
    Mr. Chairman, you've been very patient with time. I want to 
ask Mr. O'Connor just one more question, or at least comment.
    I know that the Chairman's already questioned you on one of 
the areas that's under your jurisdiction, which is the Civil 
Rights Division. I don't want this hearing to go without 
mentioning the Civil Rights Division because I am deeply 
troubled by the record of the Civil Rights Division over the 
last couple of years.
    To me, the Civil Rights Division has had a proud history in 
America in advancing the civil liberties/civil rights of all 
Americans, particularly those who have been denied fully 
participation in our society. I just would caution you as to 
what could be done within the Civil Rights Division to really 
advance the rights of all Americans.
    I know the Chairman talked a little bit about election 
issues, which I've been working with Senator Obama on 
legislation that I hope will move forward to give you 
additional tools. But I just believe that this is an area that 
should have no partisan difference, one in which we all should 
be looking at ways that that division can perform its historic 
role in advancing the rights of Americans, and would urge you 
to give this your highest priority.
    Mr. O'Connor. Senator, I will. I would simply say that 
Congressman Larson was kind enough to refer to a few cases, but 
we just most recently took guilty pleas from two New Haven 
police department officers who framed an African American 
defendant for civil rights. So, I will pledge to this committee 
that, should I be fortunate enough to be confirmed, I will 
continue the same level of aggressive enforcement of civil 
rights in Connecticut on a national level and I'm very, very 
cognizant of your concerns in this area.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Well, I thank you both for your service 
to our country. You both bring significant talents to 
government service, which you and your families know would be 
better recompensed, financially at least, and in terms probably 
of worries taken home at night in other areas of activity, but 
you have chosen to dedicate your talents to government service 
and we are very grateful for that.
    I want to particularly thank and express my appreciation to 
Mrs. O'Connor, who has done a wonderful job of keeping the 
O'Connor children in a state where their grandparents can be 
very proud of their behavior through a long afternoon. I know, 
as the Chairman of these things, that there is a part-way 
ceremonial aspect to them, but there is also a significant 
substantive aspect. I appreciate those who are here for family 
reasons, having had the patience as we went through some of the 
substantive issues that concern, I think, our entire country.
    If there's anything that anybody else would like further to 
add to the record, the record of these proceedings will remain 
open for one further week. But other than that, and with my 
renewed thanks and appreciation to the two witnesses, the 
hearing is now concluded.
    [Whereupon, at 3:10 p.m. the Committee was recessed.]
    [Questions and answers and submissions follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    


NOMINATIONS OF JAMES RANDAL HALL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR 
  THE SOUTHERN DISTRICT OF GEORGIA; RICHARD H. HONAKER, NOMINEE TO BE 
  U.S. DISTRICT JUDGE FOR THE DISTRICT OF WYOMING; GUSTAVUS ADOLPHUS 
PURYEAR, IV, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT 
OF TENNESSEE; BRIAN STACY MILLER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR 
                    THE EASTERN DISTRICT OF ARKANSAS

                              ----------                              

                 TUESDAY, FEBRUARY 12, 2008
                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:34 p.m., in 
room 301, Russell Senate Office Building, Hon. Dianne 
Feinstein, presiding.
    Present: Senators Cardin and Specter.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Senator Feinstein. I will call this meeting of the 
Judiciary Committee to order. I spoke with Senator Specter this 
morning. He indicated that he was going to be here, but I know 
he does hear his distinguished colleagues on other occasions. 
So in the interest of time, I am going to begin.
    We have four nominees before us today. They are: Richard 
Honaker for the District of Wyoming; Gus Puryear, for the 
Middle District of Tennessee; Brian Stacy Miller for the 
Eastern District of Arkansas; and James Randal Hall, for the 
Southern District of Georgia.
    We also have a distinguished panel of U.S. Senators who are 
here who care enough to come to the committee to be able to 
introduce the nominees from their State. If anyone has an 
absolute time problem, please let me know. Otherwise, I will 
begin with Senator Alexander and just go straight down the 
table.
    If there is no problem, Senator Alexander, please proceed.

 PRESENTATION OF GUSTAVUS ADOLPHUS PURYEAR, IV, NOMINEE TO BE 
 U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF TENNESSEE, BY 
    HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE STATE OF 
                           TENNESSEE

    Senator Alexander. Thank you, Madam Chairman. Thank you for 
your time and for allowing me to come by, with Senator Corker, 
on behalf of Gus Puryear. He was nominated by President Bush in 
June. He would succeed Judge Robert Ecchles, who is taking 
senior status, who has been a very excellent, very excellent 
judge in Nashville.
    Gus has a strong record of achievement in both the public 
and the private sectors. He's tried cases in both Federal and 
State courts. He has worked for committees in the U.S. Senate, 
and he has worked most recently in the private sector with one 
of Tennessee's largest companies. He's an honors graduate of--
and the University of North Carolina. He clerked on the Fifth 
Circuit Court of Appeals, where I once clerked many years 
earlier. He's been a litigator with one of Nashville's major 
firms.
    I think it's important to note that in private life he has 
been a commissioner of the National Prison Rape Elimination 
Commission, one of eight commissioners on a bipartisan panel 
created by the Prison Rape Elimination Act of 2003. He's active 
with the Red Cross, the Boy Scouts, and in the First 
Presbyterian Church in Nashville. His family is here today. I'm 
sure he'll introduce them. It's my pleasure to be here to 
support the President's nomination, to say that I hope the 
Senate will swiftly confirm him.
    Thank you very much for your time.
    Senator Feinstein. Thank you very much, Senator Alexander.
    Senator Chambliss.
    Senator Chambliss. Madam Chairman, thank you very much. I'm 
happy to yield to our colleague from Tennessee to keep this in 
order if Senator Corker wants to go, and we'll have both 
Tennesseans going first.
    Senator Feinstein. That's fine. Thank you.
    Senator Corker.

 PRESENTATION OF GUSTAVUS ADOLPHUS PURYEAR, IV, NOMINEE TO BE 
 U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF TENNESSEE, BY 
  HON. BOB CORKER, A U.S. SENATOR FROM THE STATE OF TENNESSEE

    Senator Corker. Thank you, Madam Chairman. Thank you for 
rescheduling things so this hearing could take place. I know 
you're very busy. We thank you, and are honored to be here. 
Senator Cardin, thank you for the same.
    I am very excited to join Senator Alexander in being here 
and talking about Gus Puryear. He's a Tennessean who has 
practiced law for the majority of his career in Middle 
Tennessee, and has had a distinguished career as a lawyer. He's 
excelled in the private sector, as Lamar has mentioned and 
served his country twice, once as a law clerk to the Fifth 
Circuit Court of Appeals, and then as a lawyer here in the U.S. 
Senate.
    In his service here in the Senate, he served as counsel to 
the Committee on Government Affairs during the campaign finance 
investigation, and then went on to serve 2 years as Legislative 
Director for Senator Bill Frist. Currently, Gus, as Lamar has 
mentioned, is general counsel for a national corporation, 
Correction Corporation of America.
    He's been exposed to many facets of law, however, Gus is 
also a devoted family man. He's been blessed with a beautiful 
wife, Jennifer, who is with him today, and two daughters, Ruth 
and Mary, who join him today. He's been active in many civic 
endeavors, which I greatly applaud, in the Nashville area, and 
has been a tremendous asset to his community. I hope that this 
committee will see fit to bring him to the floor as quickly as 
possible.
    Again, thank you for this time.
    Senator Feinstein. Thank you very, very much.
    Senator Chambliss.

PRESENTATION OF JAMES RANDAL HALL, NOMINEE TO BE U.S. DISTRICT 
JUDGE OF GEORGIA, BY HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM 
                      THE STATE OF GEORGIA

    Senator Chamblis. Thank you very much, Madam Chairman. We 
lost Senator Cardin. Now, this is a lot more exciting than Ben 
thought it was going to be.
    [Laughter.]
    Madam Chairman, I am pleased to be here today to have the 
opportunity to introduce James Randal Hall to the Committee. I 
would say that my colleague, Senator Isakson, has a conflict, 
but he is going to be here a little bit later to also speak on 
behalf of Randy Hall.
    Randy Hall is well-qualified to fill the position to which 
he's been nominated on the District Court bench in the Southern 
District of Georgia, and I'm pleased to endorse his nomination. 
I, and the people of Georgia, thank Chairman Leahy and Senator 
Specter for scheduling Randy's hearing today, and I hope the 
Judiciary Committee will act promptly to favorably report his 
nomination, and the Senate will follow with a swift 
confirmation.
    Randy Hall has been a partner with Warlick, Tripp, Simmons 
& Hall since 2004. Prior to that, he served in the Georgia 
State Senate as a Senator from the 22nd District. For over 10 
years, Randy's practice has focused on commercial real estate, 
banking, corporate matters, and commercial litigation. He has a 
reputation for integrity and character. Those who have worked 
with him say he is totally committed to the rule of law and 
that he is fair and honest in all of his dealings and 
undertakings. Obviously those traits are very much needed on 
the bench today.
    Mr. Hall is a native of Augusta, Georgia. He graduated from 
Augusta College in 1979 and became a fellow Bulldog when he 
graduated from the University of Georgia School of Law in 1982. 
He's an active member of his community, serving on the Augusta-
Richmond County Community Partnership for Children and 
Families, and attends Trinity-on-the-Hill United Methodist 
Church.
    He is here today with his wife Suzi and other members of 
his family, including his daughters, Betsy and Mary Catherine, 
that he will introduce. I commend my friend, Randy Hall, to 
this Committee, urge swift action to advance his nomination, 
and look forward to the prompt confirmation of James Randal 
Hall to the Southern District of Georgia.
    I thank you, Madam Chairman.
    Senator Feinstein. Thank you very much, Senator.
    Senator Enzi.

PRESENTATION OF RICHARD H. HONAKER, NOMINEE TO BE U.S. DISTRICT 
 JUDGE OF THE DISTRICT OF WYOMING, BY HON. MICHAEL B. ENZI, A 
                   U.S. SENATOR FROM WYOMING

    Senator Enzi. Thank you, Madam Chairman. I want to begin by 
thanking you for holding this hearing today. I know the 
difficulties with the scheduled vote this morning, and then the 
difficulties in having rooms in the afternoon. I really 
appreciate that you're the Chairman of the Rules Committee and 
we're able to pull that off.
    Senator Feinstein. Sometimes it does come in handy. Thank 
you.
    [Laughter.]
    Senator Enzi. I think the last time that I was in this room 
testifying, it was 11 years ago when I was trying to bring my 
laptop on the floor of the U.S. Senate.
    Senator Feinstein. I remember that, yes.
    Senator Enzi. Yes. I trust that today's hearing will have a 
much better outcome for me. Although Senator Leahy is unable to 
attend, I want to formally thank Chairman Leahy for his 
willingness to hold this hearing. I spoke with the Chairman a 
number of times about Mr. Honaker's nomination, and I 
appreciate that the Chairman has kept his word and placed him 
on the Committee's schedule.
    This will be a little bit different introduction because 
Mr. Honaker has been a long-time friend of mine. He was 
actually nominated by Craig Thomas--Craig Thomas was the senior 
Senator--and went through an extensive selection process that 
involved a lot of the legal community in Wyoming, and selected 
Richard and put his name forward. He has since, of course, been 
supported by a wide group of people from Wyoming. You will find 
many positive letters of reference in his file. I do have a 
number of letters that I'd like to introduce and have as part 
of the record.
    Senator Feinstein. They will be included in the record.
    Senator Enzi. Thank you.
    [The letters appear as a submission for the record.]
    Senator Enzi. One is from our most popular former Governor 
and former Ambassador to Ireland, Mike Sullivan, who is a 
Democrat. Another is from the former Senator, Allen Simpson, 
who all of us know is a very strong Republican. You'll find 
that kind of a mix throughout the file.
    Mr. Honaker will be an excellent jurist for our home State 
of Wyoming. He has the experience and the temperament to serve 
our State and judiciary well. You'll be making the correct 
decision if you vote to move his nomination forward.
    He was born in Wyoming in 1951. He obtained an 
undergraduate degree at Harvard University. He returned to 
Wyoming to study law, and graduated from the University of 
Wyoming College of Law in 1976. Since he graduated, he 
practiced law or worked in State government in one form or 
another in Wyoming. If he's confirmed to be a District Judge, 
his familiarity with Wyoming and the rest will undoubtedly 
benefit him as he hears cases.
    Now, as a Republican, I never thought I would be supporting 
a trial lawyer to be a Federal judge, but Mr. Honaker's 
qualifications are beyond reproach. He has served as the 
president of the Wyoming State Bar Association, and he's served 
as the president of the Wyoming Trial Lawyer's Association. The 
American Bar Association has unanimously given Mr. Honaker its 
highest rating of ``Well Qualified. ''
    I'm well aware of some special interest groups who oppose 
Mr. Honaker's nomination. I don't think there has ever been a 
judge who's not faced some sort of opposition before being 
confirmed. The groups that oppose Mr. Honaker do not know him 
as well as I do. They don't know him as well as those in the 
legal community who have sent in countless letters in support 
of the nomination. He is a fair and just man. I know that from 
experience that comes from many times before.
    He does know the difference between legislating--and that's 
from his experience as a Wyoming representative and a 
Democrat--and judging from all his years of court work. Since 
the criteria is fairness, I want to assure you that Richard is 
among the fairest people I know. I mentioned that he's a good 
lawyer. He's also a good friend. We did serve together in the 
State legislature.
    We worked across the aisle with each other to provide 
leadership on a lot of bills, and I highly recommend that we 
vote this nomination out of Committee so that the Senate can 
confirm him so that he can be a District Judge for the District 
of Wyoming. One of the letters in here is also from the 
retiring judge, who has done an outstanding job and highly 
recommends him.
    I thank you, Madam Chairman, for the opportunity. The other 
Senator from Wyoming is also here, and I think would appreciate 
it if he could say a few words.
    Senator Feinstein. Thank you very much. Senator Corker, 
that is very nice of you. If the other panel can come up, 
please. We'll hear from the other Senator from Wyoming, Senator 
Barrasso, first.

PRESENTATION OF RICHARD H. HONAKER, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE STATE OF WYOMING, BY HON. JOHN BARRASSO, A U.S. 
               SENATOR FROM THE STATE OF WYOMING

    Senator Barrasso. Thank you very much, Madam Chairman and 
Senator Specter. Thank you very much for allowing me the 
opportunity to be here with you today.
    I'm pleased to join Senator Enzi to speak in support of 
Richard Honaker to be the U.S. District Judge for the District 
of Wyoming. Richard's family is here as well, his wife Shannon, 
their three children. And Senator Specter, the nominee's 
daughter is a senior at Penn Law School right now.
    Mr. Honaker is an outstanding attorney. He is widely 
regarded by his peers, as evidenced by the fact that he is the 
first attorney in the history of the State of Wyoming to serve 
as both president of the Wyoming State Bar Association and the 
Wyoming Trial Lawyers Association.
    Now, Madam Chairman, as you know, I'm an orthopedic 
surgeon. I never thought I'd be here today supporting a trial 
lawyer for the federal bench. But he is just outstanding. I 
feel very proud to support Richard Honaker as our nominee. He 
has earned the respect of the legal community. The Standing 
Committee of the Federal Judiciary of the American Bar 
Association has unanimously voted that Mr. Honaker is ``Well 
Qualified'' for a position on the Federal bench in the District 
of Wyoming. His 30-plus years of legal work is exemplary. There 
is no question that he is ready to fill the seat for which he 
has been nominated. I know Mr. Honaker. I respect him as an 
individual. I admire his legal abilities, his passion, and his 
love for the law. That respect is shared by many of Wyoming's 
finest legal minds.
    Words I have heard from members of the Wyoming Bar to 
describe Mr. Honaker are: bright, fair, civil, ethical, 
passionate about his clients, and devoted to the law. He 
expects the same of others that he requires of himself, is 
which to be well-prepared, to observe the rules of courtroom 
procedure and decorum, and to treat every person in the 
courtroom, whether lawyer, litigant, witness, or juror, with 
the greatest measure of courtesy and respect. Madam Chairman, 
Richard Honaker is eminently qualified to serve on the Federal 
bench in the District of Wyoming. He has my support, and I 
would ask the members of this Committee to support his 
nomination as well.
    Thank you, Madam Chairman.
    Senator Feinstein. Thank you very much, Senator.
    We will now turn to the remaining nominee, Mr. Miller. We 
have Senator Lincoln and Senator Pryor. Also, I see Senator 
Isakson is here. So why do we not begin with you, Senator 
Lincoln, if you would?

PRESENTATION OF BRAIN STACY MILLER, NOMINEE TO BE U.S. DISTRICT 
JUDGE FOR THE DISTRICT OF ARKANSAS, BY HON. BLANCHE L. LINCOLN, 
           A U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Lincoln. Well, thank you, Madam Chairwoman and 
Senator Specter, and to all the members of the Judiciary. I am 
enormously appreciative of the opportunity to appear before you 
this afternoon to introduce Brian Miller, who has been 
nominated to be the U.S. District Judge for the Eastern 
District of Arkansas. East Arkansas is my home, and it's Mr. 
Miller's home as well.
    As the senior Senator from Arkansas, I am pleased to 
support Mr. Miller for this important post. After reviewing his 
record and speaking with many of his friends and colleagues in 
Arkansas, I can assure the Committee that Brian Miller is not 
only a superb lawyer and public servant, but he's also a 
trusted friend who is held in high regard by so many in our 
great State.
    Mr. Miller is a native of my hometown, Helena, Arkansas, 
which also happens to be the oldest city in the State of 
Arkansas. After high school, Brian continued his education, 
graduating from the University of Central Arkansas in 1992. Not 
satisfied with only a baccalaureate degree, he continued his 
education by earning a law degree from Vanderbilt University.
    Brian also had the distinction, which I have to say adds to 
my pride in being here before this Committee, in serving as one 
of the first interns for my office in the U.S. House of 
Representatives in the summer of 1993. Brian began his 
professional career up the Mississippi River in Memphis, 
Tennessee at the firm of Martin, Tate, Morrow & Martsen.
    In 1998, Brian ran a successful campaign to be the city 
attorney for our hometown of Helena. While he served as city 
attorney, his father served as mayor. I must add that as Brian 
and I both grew up in the same hometown, our parents worked 
very diligently in that community to make it a strong community 
and that makes me even more proud to be here on Brian's behalf.
    He continued to work part-time with his firm in Memphis 
until January of 2007, when he was selected by Governor Mike 
Huckabee to be a State Appellate Judge. Throughout his career, 
Brian has been no stranger to the courtroom. In addition to the 
positions mentioned above, he also was appointed Deputy 
Prosecuting Attorney for Phillips County. In fact, between 
January of 1999 and January of 2006, Brian spent 3 days a week, 
every week, in the courtroom either in his capacity as a 
prosecutor or on behalf of his clients.
    He has a reputation for being a tough, but fair, litigator 
who is a respected prosecutor and tireless advocate. He's 
received overwhelming support from the legal community around 
my State for his nomination.
    When evaluating lifetime appointments to the Federal bench, 
I carefully consider a nominee's skills, experience, intellect, 
and ability to understand and apply established precedent. 
Fundamentally, I'm interested in knowing that a nominee can 
fulfill his responsibility under the constitution to apply the 
law fairly, without political favor or bias. I am fully 
satisfied, Madam Chairwoman, that Brian has met that standard.
    In closing, I want to thank Chairman Leahy and Senator 
Specter and the Chairwoman here today for working with Mr. 
Miller, my staff, and myself in working to prepare for this 
hearing today. I appreciate your consideration of this nominee 
and encourage members of this Committee to certainly support 
his confirmation.
    Thank you, Madam Chairwoman.
    Senator Feinstein. Thank you, Senator Lincoln.
    Senator Pryor.

PRESENTATION OF BRAIN STACY MILLER, NOMINEE TO BE U.S. DISTRICT 
JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON. MARK PRYOR, 
           A U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Pryor. Thank you, Madam Chair. I want to thank the 
Committee for having us today, and having this hearing.
    I want to begin with a statement and end it in the same 
way, and that is: I heartily recommend and support Brian Miller 
for confirmation for this position in the Eastern District of 
Arkansas. He has earned a reputation in legal circles and 
around the State of Arkansas as a qualified and fair judge, and 
he understands that he has big shoes to fill for the late Judge 
George Howard, Jr. I'm confident that he is up to the task of 
filling those shoes.
    Now, this Committee has seen more than its share of 
polarizing nominees, but Brian Miller is the exception. He has 
a track record of bringing integrity and impartiality to the 
Arkansas Court of Appeals. Before that, he was a municipal 
judge, before that, a deputy prosecuting attorney, and also 
before that, in private practice for 9 years.
    He's a graduate of Vanderbilt University Law School and the 
University of Central Arkansas, as well as the Phillips 
Community College. He also served in the Navy and the Navy 
Reserve from 1985 to 1992. As a member of the Arkansas Bar, I 
hear a lot of comments from lawyers in Arkansas about issues 
that are important to them. I understand that members of this 
Committee feel my pain on that. We have a lot of lawyers that 
contact me about different legal matters, especially when it 
comes to Federal judgeships.
    But when Judge Miller's name began to circulate for this 
nomination, I received only praise from his colleagues. In 
fact, it was one of the few occasions--maybe the only one--
since I've been in the Senate where not a single person 
criticized this nomination. He had truly an outpouring of 
support from the Arkansas legal community and folks outside the 
legal community in my State. I think one of the primary 
reasons, is he brings such a breadth and diversity of 
experience and fairmindedness and intelligence to this position 
in the court today.
    So I would say that Brian Miller is in it for all the right 
reasons. He exemplifies what is right with the system and he is 
a nominee that people in Arkansas feel extremely comfortable 
with. I will end where I began, and that is: I heartily endorse 
Judge Brian Miller for the Eastern District of Arkansas.
    Senator Feinstein. Thank you very much, Senator Pryor.
    Senator Isakson, welcome.

PRESENTATION OF JAMES RANDAL HALL, NOMINEE TO BE U.S. DISTRICT 
  JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA, BY HON. JOHNNY 
       ISAKSON, A U.S. SENATOR FROM THE STATE OF GEORGIA

    Senator Isakson. Thank you very much, Madam Chairman. I'd 
like to thank Ranking Member Specter and Chairman Leahy for 
facilitating this hearing today and allowing these nominees to 
come before the Committee.
    I join the Senior Senator from Georgia, Saxby Chambliss, in 
praising Randy Hall, who's been nominated to replace Judge 
Avant Edenfield in the State of Georgia. I won't recite the 
long litany of accomplishments that Senator Chambliss has 
already presented to you because those are in the record, but I 
would like to emphasize a couple of things about Randy's record 
that is so exemplary for why he would be great on the bench.
    He has an extensive practice in real estate, business, 
corporate law, and corporate litigation which is an absolutely 
critical type of a practice to have in our judiciary, and that 
type of expertise.
    Second, as Senator Pryor was talking about, phone calls 
from home, we all get phone calls from home on appointments. 
But I have to tell you, in my experience in the U.S. Senate--
this is my fourth year--I have never had a total volume of 
totally unanimous calls about any prospective judicial 
appointment until Randy's name was recommended by the President 
of the United States. Augusta, Georgia is the home of the 
Masters, but it is also the home of the most opinionated people 
I've ever seen.
    [Laughter.]
    In their opinion, Randy Hall is the right man for this 
judicial appointment.
    He is joined today by his lovely wife, Suzi. He's a 
graduate of my alma mater, the University of Georgia, with his 
juris doctor in 1982. He was elected to the Georgia State 
Senate and served there. Before that, he served in his spare 
time as the chairman of the Augusta-Richmond County Planning 
and Development Authority.
    So, Randy brings extensive business experience, extensive 
government experience, and a great deal of support from his 
home community, and I commend him to the Committee with my 
highest recommendation. Thank you.
    Senator Feinstein. Thank you very much, Senator Isakson. I 
believe that completes the testimony of the Senators, actually 
two, for each of the nominees. So if you wish to be excused, 
you certainly can. I thank the Senators very much.
    I notice that there are some empty seats in the first 
couple of rows; if people who are standing would like to take 
them, please feel welcome to do so.
    We are joined by our Ranking Member, Senator Specter. 
Senator, do you have a statement you'd like to make?

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you very much, Madam Chairwoman. 
Just a word or two. I appreciate the listing of these nominees. 
It is my hope that we will be able to process them promptly for 
up-and-down votes. We have had some considerable discussion 
about expediting the confirmation of judges or the rejection of 
judges so that we have quite a backlog, and it is my hope that 
we will be able to proceed for up-and-down votes.
    Just one comment. It's nice to be in the Rules Committee 
hearing room.
    Senator Feinstein. Well, you're very welcome. It's a 
beautiful room, isn't it?
    Senator Specter. It's an exquisite room. It's the first 
time that I can recollect being on the dais here, and it's a 
magnificent room. The Russell Building has appointments which 
are remarkable, built in 1909. We've had other buildings since, 
but none can quite match the grandeur of this hearing room. I 
know we're here because you are the Chairperson of the Rules 
Committee and this is your home.
    Senator Feinstein. It was a place to go.
    Senator Specter. So thank you for inviting all of these 
people, and me, to your home.
    Senator Feinstein. You're very welcome.
    We will now proceed. I'll ask the four nominees to please 
come forward and be seated. The way we will proceed, is I will 
ask each one, before they're seated, to affirm the oath when I 
complete its reading.
    [Whereupon, the witnesses were duly sworn.]
    Senator Feinstein. Thank you. You may be seated.
    The process right now, gentlemen, is this. Each of you will 
be afforded the opportunity to make an opening statement. I 
think Senator Specter and I would hope that you would introduce 
your family and that they would stand when they are introduced 
so that we might acknowledge their presence.
    Then following your statements, each member of the 
Committee that's present, which right now is the two of us, 
will ask a few questions and that will be it.
    So why don't we begin with you, Mr. Hall, and we'll just 
proceed right down the table.

  STATEMENT OF JAMES RANDAL HALL, NOMINEE TO BE U.S. DISTRICT 
           JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA

    Mr. Hall. Thank you, Madam Chair. Let me particularly thank 
you for chairing this meeting, Senator Specter, for your 
presence. I thank the Committee for calling this hearing today. 
I want to thank President Bush for the nomination and thank my 
friends, Senators Chambliss and Isakson, for not only their 
support, but for those very kind words that they've offered 
into the record.
    It's my great privilege today to present my family. They 
did travel with me from Georgia for this very special moment. 
My wife, Suzi, my oldest daughter, Mary Catherine, who is a 
freshman at Friendly University.
    Senator Feinstein. Please stand.
    Mr. Hall. My youngest daughter, Betsy, a high school 
freshman. My father, Jim Hall, and my stepmother, Julia Hall. 
I'm very pleased to have them. Thank you.
    Senator Feinstein. Well, we are delighted to have the 
family, so please feel very welcome. Thank you very much.
    [The biographical information follows:] 

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 STATEMENT OF RICHARD H. HONAKER, NOMINEE TO BE U.S. DISTRICT 
               JUDGE FOR THE DISTRICT OF WYOMING

    Mr. Honaker. Thank you, Senator Feinstein, for being here 
on such a busy legislative day to convene this hearing.
    I would like to begin by thanking the late Senator Craig 
Thomas, who was so kind to sponsor my nomination. I want to 
thank Senator Enzi and Senator Barrasso for their warm and 
generous comments and for their leadership in advancing my 
nomination after Senator Thomas' passing.
    I'd also like to thank Senator Allen Simpson, former 
Senator from Wyoming, who couldn't be here today but who has 
kindly provided me with great counsel and support during the 
process. And, of course, I'd like to thank the President for 
his nomination.
    It's my pleasure, Senator, to introduce my family to you. 
I'd like to start by introducing my daughter, Heather and her 
husband Derrick, Heather and Derrick Mercer. Heather serves our 
country in the Foreign Service. Heather worked as a staffer in 
Senator Enzi's office, and Derrick in Senator Kyl's office.
    Senator Feinstein. Oh, my goodness.
    Mr. Honaker. And I'd like to introduce my daughter Harmony 
Decosimo and her husband David Decosimo. Harmony's a third-year 
student at Penn, and David is a Ph.D. candidate at Princeton. 
The two of them, in our big family event of the year, are 
expecting their first child and our first grandchild in June.
    Senator Feinstein. That's wonderful.
    Mr. Honaker. I'd like to introduce my son Dustin, who is a 
senior at the University of Wyoming, and also works in our oil 
fields out there.
    And the most important person in my life, my wife Shannon, 
the great person in my life.
    Thank you very much. I look forward to your questions.
    [The biographical information follows:] 

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    Senator Feinstein. Thank you. Thank you. Welcome to the 
family.
    Mr. Puryear.

STATEMENT OF GUSTAVUS ADOLPHUS PURYEAR, IV, NOMINEE TO BE U.S. 
      DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF TENNESSEE

    Mr. Puryear. Thank you, Senator. Thank you for holding this 
hearing. I appreciate the Committee's and staff's hard work in 
preparing for this hearing.
    Senator Feinstein. Is your mic on?
    Mr. Puryear. It is now.
    Senator Feinstein. OK. Good.
    Mr. Puryear. Thank you, Senator. I appreciate your holding 
this hearing. I want to thank the Committee and the staff for 
all the hard work that they do in getting ready for this 
hearing. I particularly would like to thank Senators Alexander 
and Corker for coming by and lending their support, and for 
their friendship through the years.
    I'd also like to introduce you to my wife, Jennifer, who is 
here, and my daughters, Ruth and Mary. I also have my mother, 
Mary Puryear, who's here. And I'm blessed to have my in-laws, 
Joe and Marion Herndon, coming to the hearing as well. So I 
want to thank all of them for their love and support throughout 
this process, and I look forward to answering any questions you 
may have.
    Senator Feinstein. Welcome to the family, and particularly 
to the little ones. You're so well behaved.
    [Laughter.]
    Please, thank you.
    [The biographical information follows.]

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    Mr. Miller.

 STATEMENT OF BRIAN STACY MILLER, NOMINEE TO BE U.S. DISTRICT 
           JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS

    Mr. Miller. Thank you, Senator Feinstein. Thank you so much 
for taking the time to have this hearing this afternoon. We 
know it got bumped from this morning.
    Senator Feinstein. I don't think your mic is turned on.
    Mr. Miller. Is that it now? The light is on.
    Senator Feinstein. Yes. If the light's on, it's on. Pull it 
a bit closer to you. Thank you.
    Mr. Miller. Thank you, Senator.
    I wanted to thank you for taking the time to have this 
hearing this afternoon. Also, I want to thank President Bush 
for giving me this opportunity, and my two home State Senators. 
I told Senator Lincoln--I hugged her as she left--that I almost 
cried when she said those words about me. It's kind of 
difficult sometimes to sit up and listen to people say such 
nice things. But I want to thank Senator Lincoln and Senator 
Pryor.
    Today I have my children with me and I have my wife with 
me. My wife's name is Monique, and both of my daughters' names 
are Alexandria and Arianne. They're 13-year-old twins. They 
were very thankful to be here today also.
    Senator Feinstein. Well, we welcome them. It's great to 
have you here. Thank you.
    That completes it?
    Mr. Miller. Yes.
    [The biographical information follows:] 

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    Senator Feinstein. All right.
    Now for the hard part. I'm going to begin with Mr. Puryear, 
if I might, with a question. In a 2004 article in Corporate 
Legal Times--excuse me. I wanted to ask another question here.
    Your current employer, the Corrections Corporation of 
America, has apparently been named as a defendant in more than 
400 cases since 2000 in the Middle District of Tennessee. That 
is the same court to which you've been nominated. How would you 
handle the obvious conflict of interest posed by cases 
involving CCA?
    Mr. Puryear. Senator, thank you for the question. Let me 
say as an initial matter, that there's no question, as a 
shareholder in the company and as an executive officer of the 
company in the immediate past, during my initial term on the 
bench, if I were fortunate enough to be confirmed, I would not 
be hearing any cases involving Corrections Corporation of 
America, for obvious reasons. Perhaps somewhere with the 
passage of time and not having any shares that could change, 
but I can't envision a set of circumstances under which it 
would in the near term.
    Senator Feinstein. That's the next question. So you would 
recuse yourself from any case involving the corporation. Is 
that correct?
    Mr. Puryear. Correct.
    Senator Feinstein. And you would maintain your shares?
    Mr. Puryear. At present I have shares.
    I do not intend to--there are some shares that are bound up 
by resale agreements and things like that. But over time I 
would plan to divest from the company.
    Senator Feinstein. Over what period of time?
    Mr. Puryear. Well, I have divested, as of today, I believe, 
all of the shares--except for restricted shares and shares that 
are subject to a resale agreement--that I can, pursuant to a 
planned sale over the last 6 months. So I anticipate quickly, 
after the separation of my employment, being able to dispose of 
the rest of those shares.
    Let me add this, Senator. I believe that the numbers that 
were provided to the Committee might be slightly exaggerated. 
Our records, and the public records that I've examined, show 
about 181 cases against CCA since 2000. Over that same period 
of time, 15,000 cases were filed in the Middle District of 
Tennessee. We average about 27 cases a year against CCA in the 
Middle District since 1992. During that same time period, 
there's more than 2,000 cases, on average, filed each year.
    So shifting those cases that involve CCA to other judges 
will not likely present any sort of undue hardship to them, in 
my taking on other cases that they would otherwise handle. I 
think that could be easily accomplished, Senator.
    Senator Feinstein. Do you have any other potential conflict 
of interest?
    Mr. Puryear. Obviously, any companies in which I have any 
direct-share ownership in, I would recuse myself from 
consideration of those cases. Any company that I've served as a 
fiduciary, such as I'm on the board of directors of a local 
bank, a small community bank in Nashville, I would not hear 
cases involving that institution. Any nonprofits that I am also 
in a fiduciary relationship with, I'd recuse myself. I don't 
think that any of those entities have ever been sued in the 
Middle District of Tennessee, so I don't anticipate that would 
require recusal, only if a case came up would it.
    Senator Feinstein. Thank you. So I just want to understand. 
Your plan is to recuse yourself for the duration of time that 
you own an interest in this company.
    Mr. Puryear. Correct, Senator. I would do so.
    Senator Feinstein. However long that may be.
    Mr. Puryear. However long that may be. I think, without 
knowing when that could change, if ever, it would not be my 
intent, as somebody who is closely associated with the 
management of that company, to hear cases concerning that 
company for an extended period of time, even if I were 
divested.
    Senator Feinstein. I appreciate that. Thank you. Mr. 
Puryear. Thank you, Senator.
    Senator Feinstein. Mr. Honaker, if I might, I think it's 
fair to say right up front that your nomination has become 
quite controversial. So without a softball, let me jump right 
to the heart of it. As a State legislator, you were the author 
of the Human Life Protection Act. You introduced the bill in 
1991, and when it was defeated you reintroduced it in 1992. You 
told a press conference that Rowe was ``in shambles'' and that 
your bill was ``a direct challenge to Rowe''.
    As you know, the Rowe decision recognized a constitutional 
right to privacy. Did your legislation adhere to the 
constitutional right of privacy recognized in Rowe?
    Mr. Honaker. Thank you for that question, Senator. I might 
begin by saying that it was a great honor to serve three terms 
in the Wyoming legislature and to serve with great people who 
were interested in the best interests of the State of Wyoming.
    I introduced that bill in 1991, together with 20 other co-
sponsors, Democrat and Republican, men and woman, African 
Americans, Hispanics, and whites. That bill, it's true, was a 
challenge to existing precedent. I did that in my role as a 
legislator. The role of a legislator is so far different from 
the role of a judge, as you well know, with the separation of 
powers.
    As a sitting District Judge, if confirmed, I can commit to 
you--and I do--under oath that I have great respect for the 
rule of law, that I would faithfully apply the precedent of all 
higher courts, whether it be Rowe v. Wade or whether it be any 
other existing precedent of the higher courts. That is the duty 
of a District Judge. I recognize the right to privacy and I 
recognize the precedent of the U.S. Supreme Court.
    Senator Feinstein. My time is up. But, respectfully, you 
didn't answer my question. My question was, did your 
legislation adhere to the constitutional right of privacy 
recognized in Rowe.
    Mr. Honaker. Senator, the legislation, as you correctly 
stated, was a legislative challenge to Rowe v. Wade. A 
legislator properly observes the rule of law by bringing issues 
before the courts that can be properly reconsidered or 
revisited by the courts. The role of a District Judge would be 
absolutely contrary to that. A District Judge would honor and 
apply the precedent of higher courts. So I believe in either 
context, which are two very different contexts, that I 
respected the rule of law in my respective roles.
    Senator Feinstein. That's actually not my question either, 
but if that's your answer, so be it.
    Senator Specter.
    Senator Specter. Thank you, Madam Chairwoman. By your 
response, were you seeking to take the issue back to the 
Supreme Court of the United States?
    Mr. Honaker. Senator, the purpose of the legislation in 
that time period, which was not introduced only in Wyoming but 
was introduced in many States, was to allow the Supreme Court 
to reconsider that precedent, should they have wished to have 
done so.
    Senator Specter. When you say there was an effort made in 
other States, how many States?
    Mr. Honaker. I recall, Senator, that Utah, Idaho, and South 
Dakota, in our region, also considered similar legislation 
within that timeframe.
    Senator Specter. When you say ``consider'', was similar 
legislation introduced in other States?
    Mr. Honaker. I believe so, Senator, but I can't say that 
for sure.
    Senator Specter. There has been considerable publicity 
about South Dakota. Do you recollect what happened in South 
Dakota?
    Mr. Honaker. I'm sorry, Senator. I didn't understand your 
question.
    Senator Specter. There was considerable publicity about 
what happened in South Dakota. Do you recall what occurred with 
respect to legislation coming out of South Dakota?
    Mr. Honaker. The Wyoming legislation was in 1991. I know 
that this South Dakota legislation was much more recently than 
that. I believe that it was similar. But I have to say, 
Senator, since I left the legislature, I have not been involved 
in that issue at all.
    Senator Specter. And when did you leave the legislature?
    Mr. Honaker. I left the legislature in 1993.
    Senator Specter. And you've had no further contact with the 
issues involved in Rowe v. Wade?
    Mr. Honaker. I really haven't, Senator. The only further 
involvement I would have had was in 1994, when a political 
action committee took that 1991 legislation and sought to put 
it on the ballot as an initiative, and there was a civil action 
filed by Maryland Planned Parenthood to keep it off the ballot. 
I was retained, for a fee, by the Pro-Life Political Action 
Committee to defend that action, which I did in the Supreme 
Court of Wyoming, and prevailed. However, the issues in that 
case were access to the ballot issues and did not, per se, deal 
with the issue of abortion.
    Senator Specter. You say you prevailed?
    Mr. Honaker. We did.
    Senator Specter. So that it was placed on the ballot?
    Mr. Honaker. The initiative was placed on the ballot where 
the people of Wyoming could vote on it, and then it was voted 
down at the next general election. So far as I know in Wyoming, 
Senator, that was the end of this issue.
    Senator Specter. And are you saying that that was the end 
that you had anything to do with this issue?
    Mr. Honaker. It was, Senator. I've practiced law in the 
Federal courts of Wyoming for 32 years. My involvement in the 
abortion issue was not other than the initiative case in the 
courts. It's not a major part of my career. It was one issue 
that came up during my service as a legislator. It was a 
personal political viewpoint that I took. I've checked those 
viewpoints at the door of the courthouse for 32 years as a 
lawyer. As a judge, I would check those personal viewpoints at 
the door of the courthouse as well.
    Senator Specter. There are occasions where an 
interpretation of facts before the court has nuances. What is 
the strongest assurances you can give this Committee that you 
would follow not only the letter, but the spirit, of the law as 
interpreted by the Supreme Court of the United States?
    Mr. Honaker. I think, Senator, the strongest assurance that 
I can give you is that I have tried cases in the courts over 32 
years. I understand the need for lawyers on both sides of an 
issue, particularly a controversial issue, to make it a 
complete and full record if a case were to be appealed.
    I would, as a District Judge, if confirmed, give lawyers 
great latitude in making the record they need to make and in 
presenting the evidence that they need to present. My part 
would be to make sure that all relevant and admissible evidence 
came into the record, and then to apply as faithfully as 
possible the precedent of the Supreme Court in the Tenth 
Circuit.
    Senator Specter. Well, my question to you was the letter 
and spirit of the Rowe v. Wade decision and the cases which 
have followed it.
    Mr. Honaker. I think, Senator, that the spirit of that case 
is the right to privacy, and I recognize the right to privacy. 
I would apply the precedent of the Supreme Court with regard to 
that right.
    Senator Specter. And again, the letter and the spirit?
    Mr. Honaker. Yes, sir.
    Senator Specter. And beyond the Tenth Circuit, the Supreme 
Court of the United States?
    Mr. Honaker. Absolutely.
    Senator Specter. Thank you. Thank you, Madam Chair.
    Senator Feinstein. You're very welcome, Senator. Just to 
continue this, a few more questions on the subject. This Human 
Life Protection Act which you authored, Mr. Honaker, does not 
include an exception for the health of the mother. As you know, 
Rowe requires such an exception.
    Do you believe--I'm asking you for your personal belief 
right now--that both the life and the health of a mother must 
be protected in order for a law regulating abortion to be 
constitutional?
    Mr. Honaker. That's a very fair question, Senator. 
Certainly, I have always had the personal belief that the life 
of the mother should be protected. I have had the personal 
concern that the health of the mother is not defined 
specifically enough that I have accepted, in a political 
context, that viewpoint. As a District Judge, if confirmed, if 
that is the law of the land, then I would apply it.
    Senator Feinstein. Well, it is the law of the land and it's 
the way it is in Rowe, which is the health of the mother. So 
you are saying, if I understand you, that the term ``health'' 
is sufficiently vague for you, that you do not include it.
    Mr. Honaker. Senator, you asked me for my personal 
viewpoint. My legal viewpoint is that the health of the mother 
is included in the Rowe framework, and I would apply it. I 
would honor and respect that part of the Rowe decision, as well 
as all of the decision.
    Senator Feinstein. All right.
    Now, you wrote a letter back to Sharon Breitweiser, and I 
wanted to ask you about a part of that letter. After you were 
nominated to be a Federal Judge, you wrote this letter. In it, 
you wrote that if a case involving abortion came before you, 
``the losing party would appeal to the Tenth Circuit, and 
perhaps on to the U.S. Supreme Court, and nobody would remember 
what the trial judge did anyhow.''
    Now, this sounds to me like you believe that the District 
Court judgment doesn't make a difference because it could 
always be appealed and no one would remember what the District 
Court actually did. That's the way it sounds to me. Is that a 
correct interpretation?
    Mr. Honaker. I appreciate the opportunity to clarify what I 
said, Senator. The intent behind what I said was to clearly 
convey to Ms. Breitweiser that I was absolutely committed to 
the rule of law and to applying a precedent of higher courts. 
Any litigant on the abortion issue, or any other issue, who 
would come into my court would receive the full benefit of the 
precedent of the U.S. Supreme Court and the Tenth Circuit. 
Certainly if someone disagreed with the precedent they could 
appeal.
    I've always said, as in the Gideon cases, or the Miranda 
cases, or the Rowe case, none of us can name who that District 
Court judge was or which way he ruled. But the truth is, that 
in my court, if confirmed, precedent would be faithfully 
applied. If someone appealed, it would be up to a higher court 
to overturn or modify precedent, but it wouldn't be up to me.
    The letter, I hope read as a whole, clearly conveys that 
impression. I feel that that one particular part perhaps was 
not well written and was misinterpreted.
    Senator Feinstein. Well, it's a very strange phrase to use 
in a letter after you were nominated for a Federal District 
Court, to say, well, the findings of the District Court won't 
be remembered by anyone, because it's just simply not true.
    Mr. Honaker. Having spent my life in the courts 
representing the interests of all sorts of people of all sorts 
of walks of life, I have great respect for the decisions and 
findings of our Federal and State courts. If I conveyed any 
impression that I didn't respect the findings of a Federal 
District Court judge, that would be inconsistent with 
everything I've done in my career. I entirely do.
    Senator Feinstein. You were quoted in the Daily Rocket 
Miner newspaper as saying that the abortion issue is ``not 
settled until it's settled right''. What did you mean by that?
    Mr. Honaker. I, as a politician and as a State legislator, 
expressed my personal viewpoint that the abortion issue should 
be settled in a pro-life way. That was a personal viewpoint 
that legislators and individuals take in this country. There 
are people on both sides of this issue that are good people and 
good citizens, and I took that position as an individual and as 
a legislator.
    As a judge, in a separate branch of government, honoring 
the separation of powers, I would certainly apply the precedent 
of the U.S. Supreme Court, including Rowe v. Wade.
    Senator Feinstein. My time is up.
    Senator, would you like an opportunity?
    Senator Specter. One additional item, Madam Chairwoman.
    That is, there is a letter from one of his colleagues, a 
man named Eric M. Alden from Wheatland, Wyoming, a letter which 
appeared in the Casper Star Tribute on March 28, 2007 endorsing 
the candidate, the nominee, and noting as follows: ``I served 
in the State House in 1991 along with Mr. Honaker and I was on 
the other side of the abortion issue from him.''
    Then the final paragraph: ``I was pleased to see that Dick 
Honaker had been selected to this position. I believe he has 
the potential to be one of the finest trial judges ever to 
serve in the State. His commitment to fairness is second to 
none. I can truthfully say there is no person I would rather 
have as a judge on a case, no matter what side of any issue I 
was on, than Dick Honaker.''
    I would ask consent that the full text of the letter be 
included in the record.
    Senator Feinstein. Without objection.
    [The letter appears as a submission for the record.]
    Senator Specter. Thank you. Senator Feinstein. I feel badly 
that we've left a couple of people out of this conversation. 
I'm trying to think of some hard balls to throw at you, but I 
don't come up with any.
    So let me ask one question to both of you. This Committee's 
recent investigation into the Department of Justice has 
uncovered evidence of political considerations improperly 
entering into the administration of justice.
    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 cases only on the law and the facts before you? Who would 
like to go first?
    Mr. Miller.
    Mr. Miller. Senator, I'll take that one. What I would say 
to this Committee, is look at my record. Look at the opinions 
I've written while serving on the Arkansas Court of Appeals. 
What you will find, as I believe you will find, is that I have 
followed the law and have been fair. In cases involving large 
companies, I have ruled in favor of large companies, I've ruled 
in favor of--I've written opinions in favor of plaintiffs, 
depending on where the law is and what the rules are.
    I believe you can look at my record, both on the bench and 
before I began serving on the Arkansas Court of Appeals. What 
you will find is, and the same thing that Senator Lincoln was 
speaking of, my colleagues will speak to that, that I've always 
been fair. I've never taken one side over the other. I can 
assure this Committee that I'll do the same, if you approve me.
    Senator Feinstein. Thanks, Mr. Miller.
    Anybody else? Mr. Hall.
    Mr. Hall. Thank you, Senator.
    It is the bound duty of every District Court judge to apply 
the law, follow the rule of law, and to set aside all personal 
and political concerns. I take that responsibility and that 
oath very seriously, and will if I am lucky enough to be 
confirmed. I have spent some part of my life in the political 
arena and complained about activist judges that made decisions 
based upon political or their personal considerations. It 
affects the credibility of our judiciary. It strikes at the 
heart of our separation of powers. You have my commitment that 
I would follow the duty as a trial judge and I would simply set 
those concerns aside and apply the law.
    Senator Feinstein. Thank you.
    Mr. Puryear, would you like to make a comment?
    Mr. Puryear. I would just like to echo what Mr. Hall said. 
I commit to the Committee that, if confirmed, I would follow 
the law, the relevant precedent, and the Constitution, which is 
the oath that a judge takes as to the Constitution as the 
highest authority, and will do my level best to ensure fairness 
to all litigants that come before me.
    Senator Feinstein. OK.
    Mr. Honaker.
    Mr. Honaker. Senator, in many cases the trial judge stands 
between a citizen and his government. Whether the government is 
on one side of a case or not, it's the duty of the District 
Judge to apply the law fairly and impartially without respect 
to persons and I'm committed to doing that.
    Senator Feinstein. Thank you.
    Now, Mr. Hall, you raised the question of judicial 
activism. Retired Supreme Court Justice Sandra Day O'Connor, of 
whom I am a great fan, has written ``the breadth and intensity 
of rage currently being leveled at the judiciary may be 
unmatched in American history.'' She added that ``this 
situation presents a grave threat to the independent 
judiciary.''
    How do each of you define ``judicial activism''? Mr. Hall?
    Mr. Hall. In my opinion, judicial activism is simply a 
judge ignoring precedent and rendering a decision that is based 
upon either political views or their own personal view of how 
society should exist or operate. As I previously said, I think 
there is no place for that in a judicial setting.
    The rule of law is clear. My duty is to apply the law 
established by acts of Congress, by the Supreme Court, and by 
the Eleventh Circuit Court of Appeals, in my case. So I realize 
that it is important for me to make a commitment both to this 
Committee, but to myself, that I can very quickly set aside any 
political or other opinions and simply deal with the facts that 
are before me in the case and apply the law of the land as it 
exists at that time.
    Senator Feinstein. Thank you.
    Mr. Hall. Thank you.
    Senator Feinstein.
    Mr. Honaker? We'll go right down the line.
    Mr. Honaker. Senator, I think that a judicial activist can 
be conservative, liberal, moderate, or of any viewpoint. But 
the essence of judicial activism is the substitution of one's 
own personal viewpoints or opinions for the laws written by 
Congress. I would not legislate from the bench, I would apply 
the law as written by Congress and as interpreted by the higher 
courts.
    Senator Feinstein. If I might just make one editorial 
comment. I remember the Ranking Member, distinguished as he is, 
asking some very piercing questions of Supreme Court nominees 
on the subject of precedent. I think you even used the word 
``super precedent''.
    Senator Specter. Super-duper precedent.
    [Laughter.]
    Senator Feinstein. Super-duper precedent. And everybody 
said they would agree with it. Then, of course, they didn't. 
But, anyway.
    Senator Specter. Well, I'm glad you brought that up, Madam 
Chairwoman, because that opens up this hearing probably well 
into the evening.
    Senator Feinstein. Well, I don't want to do that.
    Senator Specter. I'll withdraw the comment.
    Senator Feinstein. Going right down the line. Mr. Puryear?
    Mr. Puryear. Thank you, Senator. I think I would define 
judicial activism as when a judge substitutes his or her own 
political beliefs, regardless of the nature of those beliefs, 
for duly enacted laws in the Congress or for the Constitution 
of the United States. In all things, I will be guided by the 
Constitution and the enacted laws of Congress in what I do, if 
confirmed as a District Judge, as applied to the facts in front 
of me. Thank you.
    Senator Feinstein. Mr. Miller?
    Mr. Miller. Senator, I can't improve upon what my 
colleagues have already said. I would just echo exactly what 
they've said before me.
    Senator Feinstein. Thank you. Thank you.
    Senator.
    Senator Specter. Thank you, Madam Chairwoman.
    Mr. Puryear, the Alliance for Justice sent a letter dated 
October 30, 2007 opposing your nomination on two grounds. It 
charged that you have made ``public comments'' that ``indicate 
hostility toward civil rights lawsuits in general, and to 
those--prisoners in particular.'' The one-sided example was a 
quote from a legal periodical: ``Litigation is an outlet for 
inmates,'' and said it's ``something they can do in their spare 
time.''
    Are you hostile toward civil rights lawsuits?
    Mr. Puryear. Senator, I am not. The question that provoked 
the answer that you read was about some of the more extreme 
examples of frivolous inmate litigation, which examples do 
exist. That does not diminish the fact that there are numerous 
meritorious claims that inmates file. In fact, as the general 
counsel for CCA, I have authorized significant payments in some 
of those cases. I've implemented a compliance program to try to 
prevent those cases from arising, and to ensure that we have an 
anonymous means of reporting for staff, so that those abuses do 
not occur.
    As a member of the National Prison Rape Elimination 
Commission, on which I serve as a volunteer, I'm well aware of 
the abuses and the losses of life that can occur in 
correctional facilities. There are human beings on both sides 
of the sliding doors and mistakes can happen. So, I am not 
hostile to prisoners rights, Senator.
    Senator Specter. So do you say that you think that the 
courthouse doors ought to be open to people who have complaints 
about civil rights?
    Mr. Puryear. Yes, Senator, they should.
    Senator Specter. And then how do you define ``frivolous''?
    Mr. Puryear. Frivolous, I think, is a difficult thing to 
define. I leave it to Congress to enact statutes that address 
those issues. I know that--
    Senator Specter. Well, it's not a matter of leaving it to 
Congress. You may have to leave it to the inmate. How does an 
inmate know what frivolous is--
    Mr. Puryear. Correct. A frivolous lawsuit, Senator, would 
be a lawsuit that--for example, applying the Rule 11 standard, 
that either lacked a factual basis for being brought or lacked 
a factual basis for--
    Senator Specter. I don't know that the inmates understand 
Rule 11.
    Mr. Puryear. Right.
    Senator Specter. Not many lawyers understand Rule 11. Not 
many people know what Rule 11 is.
    On this statement that ``litigation is an outlet for 
inmates, it is something they can do in their spare time'', is 
it your position that you think the courts ought to be open for 
civil rights litigation and that--well, tell me what your 
position is.
    Mr. Puryear. My position is that the courts should be open 
for civil rights lawsuits of all types, including those brought 
by inmates. In fact, prior to coming to CCA I represented an 
inmate, pursuant to a court appointment, in a civil rights 
case.
    Senator Specter. Did you win?
    Mr. Puryear. We did not win. But I fought as zealously as I 
could on behalf of my client.
    Senator Specter. What was the essence of the complaint?
    Mr. Puryear. The essence of the complaint was two-fold. The 
first component of the complaint dealt with the fact that his 
security classification was being altered in an upward manner 
because of a conviction shown on an FBI rap sheet that he 
contended were false, and indeed some of them were false. Once 
learning of the falsity of some of those convictions, the 
prison administrators had not inquired reasonably to confirm 
whether the other rap sheet convictions were, in fact, true.
    The second component of this lawsuit was a claim for 
retaliation. He asserted that he'd been placed into 
administrative segregation, denied access to his legal 
materials as a consequence of his raising issues around what 
was contained in his rap sheet.
    We tried that case through a jury in District Court in 
Nashville, and ultimately the jury was not persuaded by the 
claims that we made. But it was a hard-fought contest. I was 
proud to be a part of it, and I did everything that I could to 
try to secure victory, as any lawyer would, for his client.
    Senator Specter. The Alliance for Justice also contended 
that your position with Corrections Corporation of America 
would cause ``docket management problems'' by requiring recusal 
in numerous cases. What's your response to that?
    Mr. Puryear. Well, Senator, the numbers that were provided 
to the Committee by the Alliance for Justice, I don't know what 
their source was, but it's not consistent with the numbers that 
I'm aware of. In fact, since 2000, 181 lawsuits have been filed 
in the Middle District of Tennessee against CCA. Over that same 
time period, I believe over 15,000 cases have been filed in the 
Middle District of Tennessee.
    Right now, when I last checked a month ago, CCA has six 
cases pending in the Middle District of Tennessee, with four 
active District judges and four senior District judges. I do 
not think it will work an undue burden to allocate those cases 
involving CCA to the other judges within the District, and I 
would take other cases in which there was not an apparent 
conflict in order to equalize the caseload.
    Senator Specter. Do you think the number is sufficiently 
small as not to be a problem so that other judges can handle 
it, even if you have to recuse yourself?
    Mr. Puryear. Yes, Senator. In fact, I think the number is 
probably much smaller than it would be for some of the large 
law firms in Nashville that undoubtedly have more than six 
cases pending at any one time in the District Court of 
Tennessee.
    Senator Specter. The Private Corrections Institute, 
further, raises a question about your lack of sufficient 
litigation experience for the job. How much litigation 
experience have you had?
    Mr. Puryear. Well, Senator, my experience directly in 
litigation and related to litigation has been many--fold and 
diverse. I've spent 7 years as the general counsel for a large 
public company.
    Senator Specter. How many cases have you tried?
    Mr. Puryear. I've tried two cases, two jury trials, one as 
the sole trial lawyer and one as the associate counsel.
    Senator Specter. Non-jury trials?
    Mr. Puryear. Pardon me?
    Senator Specter. Non-jury trials?
    Mr. Puryear. Non-jury. Well, there was a component of one 
of those jury trials that was decided by the judge. I cannot 
think of any--there was one non-jury trial where we had to 
withdraw on the eve of trial because a rule that would no 
longer apply concerning calling of a partner as a witness in a 
case. There was a bench trial where we sat behind the trial 
lawyers and assisted them as they tried the case, but no 
additional trial experience beyond those.
    Of course, as a law clerk in the Fifth Circuit, we spent a 
year reviewing District Court cases. That was what we did, is 
we reviewed the record, we reviewed evidentiary rulings, and 
that was certainly an instructive experience at the outset of 
my legal career. More recently, as general counsel at CCA, 
we've had to make a number of decisions, and I've attended 
trials where I've not actually been the counsel of record, 
where I've had to make decisions about whether to settle cases 
or not.
    Senator Specter. Well, thank you very much, Mr. Puryear. I 
wanted to give you a chance to respond to these issues which 
were raised, and I appreciate your answers.
    Mr. Puryear. Thank you, Senator.
    Senator Specter. Thank you for the extra time.
    Senator Feinstein. You're very welcome, Senator.
    I have something I'd like you to respond to, too. ``As 
CCA's general counsel'', this is a statement that the Committee 
has received, ``Mr. Puryear has taken an active role in hiding 
damaging information about the company from the public, 
including the governmental agencies that contract with the 
company. Such actions are antithetical to the ethical qualities 
that should be displayed by a Federal judge.''
    There are two examples that they cited. ``Following a 
hostage-taking at CCA's Boyd County Florida jail in 2004 which 
resulted in a prisoner and a nurse hostage being shot by a 
S.W.A.T. team member, CCA refused to release an After-Action 
Report related to the incident. Mr. Puryear arranged to have a 
private law firm conduct the report to protect CCA from 
liability and stated that the proprietary report would never 
become a public record.'' This was reported in the News Herald 
November 14, 2004.
    ``Further, Mr. Puryear put the company's Quality Assurance 
Division under CCA's Legal Department so any quality assurance 
audits would not be subject to public records laws due to 
attorney/client privilege. While Mr. Puryear may have been just 
doing his job as CCA's chief lawyer, this certainly is not 
behavior worthy of a Federal judicial candidate.''
    Could you respond, please?
    Mr. Puryear. Yes. Thank you, Senator. The hostage-taking 
episode, as I understand it, what the author of that comment is 
accusing me of, is accusing me of attempting to protect the 
work product protections of the company which I represent, and 
to that I plead ``guilty''. After an incident that occurred 
within the prison, we knew litigation was going to be coming. 
We sent in a group of outside lawyers to figure out what 
happened and what the underlying facts were to share their 
impressions about the defensibility of that lawsuit.
    The only request that I received was a telephone call, 
asking me if I would turn over the report from a third party, 
the private--affiliated with Private Corrections Institute, and 
I said that I would not. The issue was never litigated. That is 
the position. So I was doing my best to protect the work 
product privileges that attach to investigations performed 
under the supervision of lawyers in anticipation of litigation.
    The Quality Assurance Division was moved to my office 
several years ago, primarily to move it out of the Operations 
Division of the company so that there would be an independent 
reporting mechanism for quality assurance to the Board of 
Directors and the CEO of the company through me. The reason was 
to improve the quality of our operations. Our quality assurance 
audits, the raw audits, are available.
    To my knowledge, I don't know that we've ever denied those 
to any public entity that has requested them, any governmental 
entity or any customer. There may be mental impressions that 
get shared by the auditors about possible litigation concerns 
which would not be a part of the underlying audit report, but 
I'm not aware that we've ever withheld an audit report from any 
customer.
    Senator Feinstein. Actually, there are a number of 
allegations here. I'm going to ask that you review them and 
respond in writing to the Committee.
    Senator Feinstein. Could I ask this question? How much 
stock do you own in CCA?
    Mr. Puryear. As of right now, I think I own--
    Senator Feinstein. In a percent, please.
    Mr. Puryear. Oh. In a percentage of the company?
    Senator Feinstein. If you can.
    Mr. Puryear. I couldn't. It is minuscule as of right now. 
But I couldn't even begin to approximate the percentage. It's 
not a percent of the company, it's way, way south of that. It's 
a large, you know, multi-billion dollar capitalized company and 
I have only the shares that are restricted shares and a few 
stock options that are tied up with resale agreements until my 
separation of employment. And by ``few'' I mean whatever that 
number is. I don't know exactly what the number is, but I've 
liquidated the other holdings.
    Senator Feinstein. Yes.
    Let me ask you about another case. This goes back to 2004, 
while you were serving as the lawyer for CCA. Apparently a 
female prisoner at the company's Metro Division in Nashville 
was beaten to death. Estelle Richardson, 34, was in a solitary 
confinement cell when she was found unresponsive. An autopsy 
revealed a skull fracture, four broken ribs, and liver damage. 
A medical examiner ruled her death a homicide, saying her 
injuries were consistent with blunt force trauma and could not 
have been self-inflicted.
    In 2005, four CCA guards were indicted on murder charges in 
connection with Richardson's death. The charges were dropped by 
prosecutors because they could not determine the exact time the 
injuries were inflicted. CCA quietly settled a civil lawsuit by 
Richardson's family in `06.
    So the question this individual is raising is, who murdered 
Estelle Richardson? Mr. Puryear, who had inside knowledge about 
Richardson's death through internal CCA records and a suit 
filed by her family, was only interested in protecting CCA's 
interests. What about the public interest in knowing who beat 
Estelle Richardson to death? What about bringing her killers to 
justice, whether they were CCA guards or other prisoners?
    Mr. Puryear. There are a range of possible explanations for 
what happened to Ms. Richardson. It was awful, what happened. I 
remember getting the phone call informing me about the death of 
an inmate in one of our segregation units in my hometown. We 
did settle that case with the family of Ms. Richardson. I'm not 
at liberty to discuss the amount; there are minors involved, 
and that's one of the main reasons why that settlement has been 
kept confidential. But there were a range of alternative 
explanations, many of which would not have involved a beating 
death that could have explained what happened.
    Senator Feinstein. So you settled it for money. Is that 
what you're saying?
    Mr. Puryear. CCA settled the case. I can't comment beyond 
that. But I can say that the four correctional officers who 
were originally charged with homicide in connection with the 
death, I can say this. The plaintiff's expert, the family's 
expert, and the company's expert that examined the medical 
records concluded that the medical examiner made a mistake, 
that it was not a death that resulted from a beating within 
anything close to the timeframe that had been assumed by the 
medical examiner.
    So, four innocent correctional offices who had nothing 
whatsoever to do with her death, which is clear from the 
record, were exonerated. It's to the great credit of the 
District Attorney General of Nashville that he chose to drop 
those charges in the face of evidence from both the family and 
from us that those four offices had nothing to do with her 
passing. And again, there are a variety of possible 
explanations for what happened. I don't know what happened, 
Senator, but I do know that those four correctional officers 
were not involved and that the District Attorney General did a 
courageous thing to not charge innocent people after that 
evidence was brought to light.
    Senator Feinstein. Well, when you say there are a variety 
of explanations for what happened, I trust you're not saying 
that this inmate fractured her own skull, and damaged her own 
liver, and broke her own ribs.
    Mr. Puryear. Senator, the rib fractures, for instance, 
would be consistent with CPR being performed, which was 
performed, and the liver injury could also be explained that 
way. That does commonly happen. The head injury was--
    Senator Feinstein. Common? Common?
    Mr. Puryear. The head injury--
    Senator Feinstein. You said it commonly happens giving CPR?
    Mr. Puryear. Having ribs broken, if it's administered. It 
happens. At least, that's what I am told by the experts.
    Senator Feinstein. It's common?
    Mr. Puryear. That's what I'm told by the experts who were 
engaged in this case. The head injury was of indeterminate 
length before her death, at least more than a few days before 
the inmate passed away, according to some of the medical 
experts that were engaged to work on this on both sides. They 
agreed on that point, so there was not a beating the night 
before, which is what the original charges were.
    There is the possibility--well, there are any number of 
possible explanations, including fights with other inmates, a 
fight with unknown correctional officers, self-inflicted 
wounds, medication issues. She had a history of seizures. I do 
not know what happened, Senator. I don't think that the family 
knows what happened. The case was settled. The civil case was 
settled, and fortunately four correctional officers, that 
everyone involved agreed were innocent, were cleared of 
responsibility by the District Attorney General.
    Senator Feinstein. So a finding of blunt force trauma by a 
medical examiner and a finding of homicide, you are essentially 
saying you dispute.
    Mr. Puryear. The family's medical expert would dispute the 
finding of homicide on the grounds that the medical examiner 
found it. Yes. Yes, Senator.
    Senator Feinstein. OK.
    Do you have any other questions, Senator? I'm finished.
    Senator Specter. Thank you very much. I have no further 
questions.
    Senator Feinstein. All right. I have no further questions 
either. Gentlemen, thank you very much.
    The hearing is adjourned. Oh, if I may, I'd like to, before 
I do that, put in the record a statement by the Chairman of the 
Committee, Senator Leahy, and indicate that we will keep the 
record open for 2 weeks for written questions.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Feinstein. The hearing is adjourned.
    [Whereupon, at 3:51 p.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



 NOMINATIONS OF CATHARINA HAYNES, OF TEXAS, NOMINEE TO BE U.S. CIRCUIT 
 COURT JUDGE FOR THE FIFTH CIRCUIT; JOHN A. MENDEZ, NOMINEE TO BE U.S. 
 DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA; STANLEY THOMAS 
ANDERSON, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
                               TENNESSEE

                              ----------                              


                      THURSDAY, FEBRUARY 21, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10:04 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy (Chairman of the Committee) presiding.
    Also present: Senator Warner.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning, everyone. I want to thank 
everybody for being here. I especially want to welcome the 
senior Senator from Virginia who's joining us today and makes 
it possible to have the second hearing on judicial nominations 
in 2 weeks.
    Senator Warner has always appreciated the importance of the 
judiciary and the significance of judicial nominees. I was 
pleased to work with Senator Warner when his support for Roger 
Gregory helped the Senate finally to confirm the first African-
American to serve on the Fourth Circuit. Judge Gregory was the 
first judicial nominee confirmed during my earlier chairmanship 
in 2001.
    Let me just say on a personal basis, for those of you that 
may be from Virginia, you have been privileged to have John 
Warner as your Senator. I say this as a member of the other 
party. I told Senator Warner, when he announced his retirement, 
that I've served here now with, including incumbent Senators, 
about 300 Senators. Some have resigned, some have died, some 
have left, some have been defeated. Some I have missed when 
they have left, some I have found it interesting that they have 
left.
    John Warner is one I will miss as much as anybody I've ever 
served with. He is not only a true gentleman, he's a Senator's 
Senator. He is a man who does what Mike Mansfield, who was our 
Majority Leader when I first came here told me on my very first 
day: you always keep your word. He has done that. Sometimes 
it's been on very difficult issues for him where he's had to 
take a very independent position.
    I think, John, it'll probably be OK if I tell them that 
I've always referred to you, because I--of course, I'm a 
Vermonter, live in Vermont, but I have a home also in Northern 
Virginia that my family and I use when the Senate is in 
session. I've always referred to Senator Warner as my Senator-
away-from-home. John, even after you retire, you will still be 
my Senator.
    Senator Warner. Thank you very much for those remarks. We 
indeed have had a wonderful relationship. This is my 30th year 
here in the Senate and we've traveled together in different 
parts of the world. I've sat in that seat I don't know how many 
times, but every single member of the Federal bench in 
Virginia, I've been involved in their confirmation and advise-
and-consent procedure.
    Chairman Leahy. I might note that every time Senator Warner 
has recommended somebody and has come here and endorsed that 
person, whether we've had a Republican or a Democratic 
President, whether we've had a Republican-controlled Senate or 
Democratic-controlled Senate, when John Warner has recommended 
the person they've all been confirmed.
    Senator Warner. I thank the Senator for your remarks.
    Chairman Leahy. And today we're going to hear from 
Catharina Haynes, who I just met. She's been nominated from 
Texas for a judgeship on the Court of Appeals for the Fifth 
Circuit. I know that Senator Cornyn is very interested in 
seeing her nomination proceed. I told Judge Haynes that the 
reason we're doing this during a recess, is with the Senate 
schedule the way it is, there was a question whether we would 
be able to fit a time otherwise.
    For those who have been watching the Today Show this 
morning, it's taking place just a few miles from my home in 
Vermont, the Sugarbush ski area. It's gorgeous up there and I 
want you to know it's only to fit this in that I was willing to 
come back during probably the best skiing time of the year. But 
I also told Senator Cornyn that we would have a hearing for 
you. One, I always keep my word on those things, and I just 
knew that otherwise, if we didn't do it now, it might not 
happen.
    We're also going to hear from Stanley Thomas Anderson, 
whose nomination for U.S. District Court for the Western 
District of Tennessee, is one that Senator Alexander raised 
with me. Then we'll have John A. Mendez for appointment to the 
U.S. District Court for the Eastern District of California.
    Each of these nominations have the support of their home 
State Senator. Recently, the President and several Republican 
Senators held, I thought, an unfortunate partisan political 
rally with judicial and executive nominees at the White House, 
insisting that they have these hearings.
    I was surprised to see Judge Haynes at that photo 
opportunity. I thought it was unfortunate that she did that and 
allowed herself to be used in such a partisan political way, 
especially as I'd already announced her hearing for today. I 
mention that, because the facts are that during the last 7 
years, despite the efforts of the administration to pack the 
Federal courts and tilt them sharply to the right, this 
Committee and the Senate have worked hard to consider judicial 
nominees.
    The fact that we are proceeding today during a 
congressional recess is yet another indication of our efforts. 
Last year, the Senate confirmed 40 judicial nominees. That 
topped the total achieved in any of the three preceding years 
when the Republicans controlled this Committee.
    I mention that, not for bragging rights, but unfortunately 
there are some at the White House who think that when Democrats 
have been in control of this Committee that their nominees are 
slowed down, and of course they went fast under Republicans. 
It's been just the opposite. Nominees have gotten faster under 
Democratic control for President Bush than they did under 
Republican control.
    There's also actually more judges than were confirmed in 
1996, 1997, 1999, or 2000, when President Clinton was here and 
the Republicans slowed down his nominees. In the almost 3 years 
I've chaired the Committee, the Senate has confirmed 140 of 
President Bush's lifetime appointments to our Federal courts. 
We did 140 in 3 years. During 4 years with Republican 
leadership, they did 158. We actually moved faster year by 
year.
    I said that we would treat this President's nominees more 
fairly than Republicans treated President Clinton's. I told 
President Bush that. I told him I had no intention of doing as 
his party had when they pocket filibustered more than 60 of 
President Clinton's nominees. I made it very clear to my own 
caucus, if I'm going to be Chairman of this Committee, I would 
not repeat that. I thought it was a shameful, wrong thing to 
do.
    I would not want it done to a Republican President, I would 
not want it done to a Democratic President. So the other thing 
is, in the past, you could secretly hold up somebody by what 
you did in the so-called blue slips. For the first time in the 
history of the Senate under my chairmanship I've made such blue 
slips public, so we've done everything on the record. I also 
proceeded with a number of nominations I opposed, something 
that had never been done before under Republican leadership.
    So we're going to consider a nominee to the Fifth Circuit, 
a court to which 12 of the 16 active judges have been appointed 
by Republican Presidents. We moved forward, as Democrats, on 
that. It's unfortunate that when President Clinton nominated 
people to that court they were blocked. Judge Jorge Rangle of 
Texas, or Enrique Moreno of Texas, or Allison Johnson of 
Louisiana were never given the kind of hearing that Ms. Haynes 
is having today.
    In fact, those on the other side of the aisle refused to 
proceed on any nomination to the Fifth Circuit during President 
Clinton's entire second term. That's why I said, Ms. Haynes, I 
thought it was unfortunate that you allowed them to use you as 
a political poster person at the White House, especially as we 
had already noted your hearing.
    President Clinton's Fifth Circuit nominees were pocket 
filibustered. I held hearings on all six of the Fifth Circuit 
nominees of this President during my chairmanship, and the 
Committee has voted on all the previous five. Vacancies on the 
Fifth Circuit are at an all-time low because we have not pocket 
filibustered as our predecessors did. Indeed, the vacancy for 
which Ms. Haynes has been nominated is the only one that exists 
on the Circuit. That's a lot different than when the chief 
judge of the Circuit had to declare a judicial emergency when 
previous Presidents' nominees are being pocket filibustered.
    I mention that because the Circuit vacancies rose to 26 at 
the end of President Clinton's second term. They rose to a high 
of 32 with the additional resignations during the change of 
administration. By contrast, we have helped reduce those from 
32 Circuit Court vacancies across the country to as low as 13 
last year.
    This may seem to be going long on this, but I do it because 
almost every week I hear from the White House, faxes from 
whatever the young person's name is, the President's press 
secretary, that are oftentimes in error that I want to give 
everybody the benefit of the doubt, that it's simply an error 
in arithmetic and not a flat-out lie.
    So, unfortunately, valuable time has been wasted on 
nominations, such as the recently withdrawn nomination of 
Duncan Ghatto for one of Virginia's two vacancies on the Fourth 
Circuit. I mention that because we lost a year there, when the 
President had bipartisan recommendations from the two 
outstanding Senators from that State, for another nomination.
    So, I'd hope you'll work with Senators Warner and Webb to 
name well-qualified consensus nominees before the Thurman rule 
comes into force. I'd much rather work with the White House. I 
realize we're in a political season, and I have to realize that 
the President's press secretary will not tell the truth on 
this, but I thought it was a good time to just lay it out.
    Senator Warner, again, I can't tell you how--I should also 
mention that Senator Warner had a distinguished career in the 
Justice Department and as Navy Secretary. We first met when he 
was head of the Bicentennial Commission. I still have in my 
home in Vermont a plaque signed by you to the Bicentennial 
Commission.
    Senator Warner, it's all yours.

STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF 
                            VIRGINIA

    Senator Warner. Your State had a lot to do with the history 
of our great Nation. Mr. Chairman, I'd just ask unanimous 
consent that any remarks that the distinguished Ranking Member, 
Senator Specter, may wish to make be placed in the record at 
the appropriate place.
    I've enjoyed--this is my 30th year in the Senate. You are 
about 4 years senior to me, in my recollection. We've always 
had a very cordial and strong working relationship. As you 
stated for the record, all of the nominees that I've been 
privileged to participate in the advice-and-consent role have 
been confirmed by this Committee and are now sitting in 
Virginia.
    You mentioned the Fourth Circuit. I do hope that the White 
House will be forthcoming, and I thank you for your offer the 
other day, as Senator Webb and I have submitted a list of five 
nominees. We have sort of stuck by that list and I'm still 
optimistic that we can replace some vacancies on the Fourth 
Circuit.
    But I wonder if the Chair would indulge me in a short 
personal story.
    Chairman Leahy. I'll indulge the senior Senator from 
Virginia, the cradle of our country, with anything he wants.
    Senator Warner. Well, thank you. But I co-sponsored a bill 
to increase the salaries for the Federal judiciary. I think 
it's extremely important that Congress address that issue early 
on. I mention it for two reasons. First, is that I think it's a 
slightly amusing story. As you all know, all of us interview 
very carefully individuals before we forward the names to the 
President recommending they be appointed to the Judiciary. I 
had a marvelous man in the office about 3 months ago.
    Coincidentally, he is now a partner in a firm that I was a 
partner in before I became Secretary of Navy. I jokingly asked 
him as we concluded our discussion and I said, what does your 
firm offer a law student coming out of my old school, where I 
went to law school, to enter your firm? And he said about 
$162,000 a year. I just sort of said to him jokingly--
    Chairman Leahy. I wish you wouldn't say that in front of my 
staff here!
    [Laughter.]
    Senator Warner. But I've been in the Senate now, this is 
the 30th year, and I haven't advanced any salary-wise since 
when I left law school. But we've tied our salaries, in many 
respects, to the Federal judiciary. I also, Mr. Chairman, 
regrettably, for the first time experienced a very fine 
individual that I recommended, was confirmed by the Senate, has 
served several years in the Federal District Court, who came in 
to advise me of his retiring early on because of the need to 
work with his family expenses and so forth. So I think it's 
timely that we do this, and I commend you for your leadership 
on this subject. I would hope--the bill was reported out of the 
Committee this January, was it not?
    Chairman Leahy. It was. It was a very interesting thing. We 
had to kind of almost corral people to stay in here for a 
quorum, which I did. I said we would not take up anything else 
in the Committee until that bill was finished. It was finished. 
I've spoken with the chief justice. He actually called me at 
home to thank me, and I've spoken with him and my counterpart 
in the House. Both our Leaders, Republican and Democratic 
Leaders, are sponsors of it. I'm hoping we can get that through 
quickly.
    Senator Warner. Good. Well, I commend the Chair, and I do 
hope that can be achieved because it's extremely important.
    The Senate has a unique role. It really creates the third 
branch of our government, the Federal judiciary, by virtue of 
the advice-and-consent process and the nominations coming from 
the President, so we have a particular responsibility for the 
welfare of those who publicly step up to do this service.
    We are fortunate today. I had the opportunity to visit 
yesterday with Ms. Haynes and meet her husband this morning, a 
very distinguished career, my gracious. I had no law school 
career of my own that parallels that, I assure you. Judge 
Mendez, you went to the U.S. Attorney's Office where I spent a 
goodly number of years, and I value those years. Honorable 
Anderson, you also have been a magistrate and administrative 
law judge.
    Indeed, I think the President has selected well with the 
three nominees we have before the Committee this morning. I 
find it a particular privilege to be participating in your 
advice-and-consent process.
    I thank the Chair.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Chairman Leahy. Thank you. I'm going to put in a statement 
from Senator Cornyn on Judge Haynes. As I said, he talked to 
me, a respected member of this Committee. As I said, I told him 
we would work a time. Senator Alexander has a statement that I 
will put in on Mr. Anderson. Senator Feinstein is another 
respected member of this Committee and has a statement on Judge 
Mendez, and I'll put all of those in the record. Of course, 
we'll leave open the record for any other Senators.
    [The prepared statements of Senators Cornyn, Alexander, and 
Feinstein appear as a submission for the record.]
    Chairman Leahy. Why don't the three of you step forward? 
I'll administer the oath, then I want you to introduce your 
family. That's not to suggest you wouldn't be able to introduce 
them without being under oath.
    [Laughter.]
    [Whereupon, the witnesses were duly sworn.]
    Chairman Leahy. Thank you. Please sit down.
    Judge Haynes, could you introduce your family? The reason I 
always like to do this at these hearings, someday in the 
Haynes, Mendez, or Anderson archives they will have their names 
on this record. We will double-check with you for the spelling 
of all the names and everything.
    But Ms. Haynes, please go ahead.
    Ms. Haynes. Thank you, Mr. Chairman. I appreciate it very 
much. I'm very honored to have with me some colleagues and 
friends from my first, as well as three members of my family: 
my brother-in-law, Roger Haynes, my nephew, Travis Haynes, and 
last, but certainly not least, my husband, Craig Haynes. My 
sister, Wydad Doubleday-Ruthberg had very much wanted to come 
and had her plane ticket from California, and then came down 
with a horrible case of the flu that I'm sure you're glad she's 
not here giving to all of us. But she just simply couldn't make 
the trip. My parents also were unable to make the trip, but 
they send their great thanks to you for holding this hearing.
    Chairman Leahy. And we will put the names of the members of 
your firm also in the record so that we'll have that.
    Ms. Haynes. Thank you.
    Chairman Leahy. The staff will work with you, or Mr. Kim 
will work with you and we'll make sure we get those names.
    Judge Mendez?
    Senator Warner. Mr. Chairman, if I might interject, I 
wonder if the young man would kindly stand and be recognized? 
It's very important he attend this hearing today, and I want 
everybody to take a good look at him. Could you introduce him?
    Ms. Haynes. My nephew, Travis Haynes. He's 14, and taking a 
day or two from school to come and learn something first-hand 
about government.
    Senator Warner. Well, that's important.
    Chairman Leahy. And I hope, Travis, you've had an 
opportunity to get a tour around the Capitol, too, because this 
is the seat of democracy. You go ahead and sit down. I just 
want to tell you a story, a brief story.
    I have a friend of mine from overseas, older than I am. 
Shortly after 9/11, he was here visiting and we were walking 
down the steps of the Capitol and it was just about dusk. This 
Capitol building is so inspiring, the sky turns this kind of 
deep bluish purple and the dome was all lit up. I said to him, 
``Isn't that beautiful?'' He said, you know, in World War II 
when we were being bombed by the Nazis in home area, he said, 
my father had a picture of the Capitol, the U.S. Capitol. He 
told us, don't worry, the Americans will come to help out, and 
they did. It was interesting.
    Senator Warner, I told him, I was pointing to the police 
around and I said how much they do to protect all of us here. 
He went around and obviously with an accent, not an American, 
and shook hands with each one of them and thanked them. It was 
very moving. So I hope you get a chance to go through that 
because it is a place that has protected our liberties. During 
the Civil War, President Lincoln wisely kept the building going 
on of it. It was burned in 1814, but rebuilt. It's an amazing 
place.
    Judge Mendez?

  STATEMENT OF HON. JOHN MENDEZ, NOMINEE TO BE U.S. DISTRICT 
          JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA

    Judge Mendez. Senator, unfortunately, coming from 
California, my wife and three daughters were unable to make the 
trip with me, but I know they're here in spirit: my wife Susan, 
my daughters, Mary, Caroline and Elizabeth. And as Judge Haynes 
indicated, my 80-year-old father wanted to make the trip but 
just wasn't able to, but I know he's here in spirit as well, 
too. Thank you for allowing me to be here today.
    Chairman Leahy. What are the ages of your daughters?
    Judge Mendez. My daughter is--the oldest is 20, a junior in 
college. I have an 18-year-old daughter, and I have a 13-year-
old daughter who acts like a 20-year-old daughter.
    [Laughter.]
    Chairman Leahy. You're very fortunate. I've reached an age 
now, we count the grandchildren. In fact, I was helping to 
baby-sit two of them last night.
    Judge Anderson?

   STATEMENT OF STANLEY THOMAS ANDERSON, NOMINEE TO BE U.S. 
      DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE

    Judge Anderson. Thank you, Mr. Chairman. I'd like to 
introduce to you my wife Lori, and also my son, six-year-old 
Hunter. Hunter, we are very glad could be with us today.
    Chairman Leahy. There we are.
    Judge Anderson. And I have two daughters. One is 19, who's 
in college, and one who's 13, as John said, who believes that 
she's close to 20 also. But I think it's a common situation.
    Chairman Leahy. Well, thank you. Thank you very much.
    Our first witness will be Catharina Haynes. She's been 
nominated for a Texas seat in the U.S. Court of Appeals for the 
Fifth Circuit. She's a former State trial court judge for 8 
years. Is that correct?
    Ms. Haynes. Yes, Mr. Chairman.
    Chairman Leahy. And I do have this right, that 191st 
District Court for the State of Texas?
    Ms. Haynes. That's correct.
    Chairman Leahy. Coming from a little, tiny State like mine, 
we talk about our 14 districts. This is amazing. She's 
currently a partner in the law firm of Baker & Botts in Dallas, 
Texas. She graduated valedictorian with highest honors from the 
Florida Institute of Technology, graduated second in her class 
at Emory University School of Law. My eldest son is a graduate 
of Emory School of Law, and I noted that. Prior to her service 
on the State bench, Ms. Haynes worked in private practice for 
12 years at the Texas law firms of Thompson & Knight and Baker 
& Botts. What year did you graduate from Emory Law School, just 
out of curiosity?
    Ms. Haynes. 1986. I think I was a little ahead by a few 
years.
    Chairman Leahy. Would you like to make any kind of opening 
statement? You're most welcome to.
    Ms. Haynes. Mr. Chairman, if I could, I just want to say a 
few words of thanks, if that would be acceptable.
    Chairman Leahy. Please.

  STATEMENT OF CATHARINA HAYNES, OF TEXAS, NOMINEE TO BE U.S. 
           CIRCUIT COURT JUDGE FOR THE FIFTH CIRCUIT

    Ms. Haynes. Mr. Chairman, I want to start by thanking you 
very much. I realize this is a recess week. It is a time when 
there are a lot of other things that you could be doing, not 
the least of which was the skiing you mentioned. But I know you 
also have a great many commitments to your constituents, to the 
Senate, and to this Committee that you could be attending to, 
and I very much appreciate that you took time to hold this 
hearing here today.
    I want to thank Senator Warner very much for being here as 
well. I realize you had many other obligations and I appreciate 
your time yesterday, and your graciousness in being here.
    I want to thank the staffs as well. I realize they work 
extremely hard to gather information that's necessary to this 
important role of advice and consent, and I do thank them very 
much.
    I also thank the President for nominating me, and Senators 
Hutchison and Cornyn for their support and encouragement. I 
thank very much all of my colleagues and friends in Dallas, 
including those at Baker, Botts. I particularly thank my 
family. They've been a tremendous source of strength and 
encouragement, not the least of which is my husband Craig, whom 
I introduced, and has been a tremendous support and help to me 
and a great role model to me as a lawyer and a person. So, 
thank you again.
    Chairman Leahy. Well, thank you very much. The Fifth 
Circuit is an intriguing circuit. It covers one of the most 
ethnically, racially, and economically diverse regions of the 
country. But it's also historically been the vanguard of 
protecting the civil rights of Americans. In the wake of the 
groundbreaking Brown v. Board of Education decision, it was 
Fifth Circuit judges who took a prime role in tearing down Jim 
Crow society in a region that had many areas highly segregated. 
They extended the Brown's promise of equality for education to 
other areas, transportation, voting rights, and so on.
    So I think that a nominee to this court has a great 
obligation to demonstrate sensitivity to people of different 
backgrounds, a commitment to equal justice under the law. You 
would face many issues that, for example, a judge in my own 
State of Vermont may not in a lifetime, or many other States 
similarly situated as mine. Now, you served in a court that 
normally does not produce written opinions, so it's hard to go 
into that kind of a paper trail.
    Have there ever been times, either as a lawyer, an 
advocate, or as a judge when you've taken difficult or 
unpopular positions on comparatively poor or powerless 
individuals or members of racial minorities, and taken that 
position when they may be up against a government or a large 
corporation?
    Ms. Haynes. Mr. Chairman, I am so fortunate to have been 
born into a multi-cultural family long before I knew what that 
word meant. My parents are both immigrants from two different 
parts of the world, and I had a front seat on the world just 
sitting in my own living room growing up. I have brought that 
understanding of different backgrounds to my work as a lawyer 
and as a judge.
    As a judge, I was fair to everyone. Everyone that walked in 
the room, I realized I was the face of justice to them. The 
people of the least means and the people of the greatest means 
all had equal justice under the law in my court. I have had the 
privilege and honor of working in the Vickery Meadow area of 
Dallas, which is a three square mile area that is full of many 
wonderful people of many diverse backgrounds, many of whom are 
low-income and come from all across the world. I had a concern 
about this area, because when you drive around you see a lot of 
different stores, but you see no law offices.
    So in the last year after I returned to private practice, I 
went about trying to do something about that. It was a little 
bit of a difficult issue because the existing structure for pro 
bono legal services really couldn't serve that community, and I 
was able to bring together a coalition of several different 
agencies throughout Dallas County to join together to form the 
Vickery Meadow Legal Clinic that had its inaugural--
    Chairman Leahy. The Victory?
    Ms. Haynes. Vickery Meadow Legal Clinic, that had its 
inaugural clinic 3 weeks ago tonight. We had a number of 
clients appear. We had 25 volunteer attorneys or more. We had 
non-attorney volunteers. We had folks from the National Council 
of Jewish Women come and act as leaders. It was a wonderful 
collaboration of community organizations to help people who not 
only are low-income, but also many times have language 
difficulties and cultural barriers to seeking legal help.
    Chairman Leahy. I ask this because, I'm sure you'd agree 
that as a judge, you have to leave any kind of political bias 
behind. You have to be--you can't look at somebody as Democrat 
or Republican, poor, rich, no matter what their racial 
background. What would you say--and let me back up a little 
bit. When I voted for judges, and I've voted for thousands of 
them over the years, I always ask myself the question: if I had 
to appear before that judge would it make any difference who I 
was, plaintiff, defendant, rich, poor, anything else?
    Can you sit here this morning and just say you're ready to 
do that? I'm not asking you to never be political in your 
thinking or your voting or anything else like that, but when 
that person, that litigant, that issue is before you, can you 
sit there and say I'm going to be fair, I'm going to be fair no 
matter what, and the other judge says on here, I'm going to be 
my own person?
    Ms. Haynes. Mr. Chairman, I can not only say I will be 
fair, I can point to 8 years of a court in which there were 
never any Democrats or Republicans, there were only litigants 
seeking justice and for whom I was that face of justice. I 
believe I have a very good reputation for being fair and 
impartial to all, whatever their background and whatever their 
political indications.
    Chairman Leahy. Thank you.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Warner.
    Senator Warner. Thank you very much, Mr. Chairman. I was 
particularly interested when you talked yesterday about your 
pro bono work, and I'm glad that you covered that this morning. 
I think it's a dimension of growing importance for the Bar 
Associations and members of the Bar Associations to step up and 
help because of the cost to engage attorneys today, and so many 
people simply can't do it. So, you have a very credible record 
in that context.
    There were some questions raised apparently in your work 
with the staff and others about written opinions. The question 
is, apparently on your court it's not a practice to write 
opinions. Is that correct?
    Ms. Haynes. That is correct, Senator. We are not blessed 
with law clerks. We do all our own research, our own 
preparation of orders. Sometimes they're prepared by lawyers, 
but if it's going to be prepared by the court, it's myself who 
would have done it, including typing it.
    Senator Warner. What about other documents such as speeches 
and so forth? In other words, is there some material out there 
by which it would reflect some of your views in your capacity 
as a member of the bench, and indeed when you practice law?
    Ms. Haynes. Senator, I, of course, have a long record of 8 
years of service as a judge which is well-known to the 
community, and thousands of litigants and jurors and lawyers 
came through my court over those 8 years. In addition, I sent 
copies of my speeches and writings and so forth, and my memory 
is, if I'm remembering correctly, I sent five sets and it was a 
30-pound box. So that is, by my calculation, six pounds. So 
there's a great many speeches that I've given that are in 
written form. I have had some very short speeches that don't 
have notes because they were so short there was no need of 
notes.
    Senator Warner. Well, I've been sitting here 30 years and I 
don't know where I'd go to look for any of my old speeches 
either.
    [Laughter.]
    So I haven't got any recollection.
    It's interesting. Your record reflects the following: as a 
State court judge you presided over hundreds of trials, 
including more than 190 jury trials, 100 bench trials, and 
decided more than 7,000 cases. That, I think, is an 
extraordinary record, coupled with your academic achievements. 
I think you were second in your class. Is that correct?
    Ms. Haynes. I was, Senator. Thank you.
    Senator Warner. In law school. And your husband was first 
in his class.
    Ms. Haynes. He was, indeed. In fact, he courted me by 
pointing that out.
    [Laughter.]
    Chairman Leahy. And you still went out with him.
    [Laughter.]
    Senator Warner. Well, as I said, Mr. Chairman, we're 
fortunate that this lovely jurist is stepping forward for 
further public service and a most important responsibility on 
the Circuit Court of Appeals.
    Ms. Haynes. Thank you.
    Senator Warner. That court is--those following this hearing 
understand that it's just below the Supreme Court of the United 
States, and those decisions combined--let's see. Texas, 
Louisiana, and Mississippi. Is that the three States that this 
circuit covers?
    Ms. Haynes. Yes, Senator, it is.
    Senator Warner. Right. Well, I thank you again.
    I'll put one or two additional questions into the record, 
Mr. Chairman.
    Chairman Leahy. Thank you, Senator Warner.
    Chairman Leahy. You know, let me go back to this issue of 
race. Last year, the U.S. Supreme Court heard two cases 
involving the use of race as a factor in student assignments to 
public schools. I realize that any member of any Court of 
Appeals is of course bound by stare decisis, bound by decisions 
of the Supreme Court.
    In Parents Involved in Community Schools v. Seattle School 
District, the combined case, in a 5:4 decision the court struck 
down school assignment plans from school districts in Seattle, 
Washington, and Louisville, Kentucky, that they were used to 
achieve diversity in public education.
    Now, Justice Kennedy provided the crucial fifth vote to 
strike down the school plan issue, but he wrote a concurring 
opinion accepting that achieving diversity and overcoming 
racial isolation in public schools have compelling interests. 
Have you had a chance to read that decision and do you agree 
with what Justice Kennedy said?
    Ms. Haynes. I have a great passion for education as the way 
out of a lot of difficulties. In my particular case, my parents 
came here as immigrants with little or no money, but blessed 
with a Ph.D. in the case of my father in physics and a master's 
in chemistry in the case of my mother, and this was a 
tremendous help to them in making their way in this new world. 
So, I respect education a great deal.
    If a case were presented to me in this area, we'd have to 
very carefully review the precedents you mentioned that I'm 
familiar with, but if the case were presented to me I would 
want to review them very carefully against that backdrop of 
passion for education and address the particular circumstance 
presented.
    Chairman Leahy. There are some who have felt that the 
Supreme Court almost nonchalantly overturned Brown v. Board of 
Education, others have looked at the concurring opinion and say 
they did not. Do you feel that Brown has been overturned?
    Ms. Haynes. It would take a majority of the Supreme Court 
to state that they're overruling Brown v. Board of Education, 
to take away a precedent such as that. As a judge on the Fifth 
Circuit, if I were confirmed, I would have to look at all of 
the opinions and follow that of the majority, which under the 
Marks case is the narrowest ground that would support the 
decision.
    Chairman Leahy. Chief Justice Roberts had said in that 
case, the way to stop discrimination on the basis of race is to 
stop discriminating on the basis of race. That statement by 
itself is one I would assume you would agree.
    Ms. Haynes. That statement was in the plurality. If I were 
confirmed on the Fifth Circuit, I would have to look at the 
majority holding to address on a case that might be presented.
    Chairman Leahy. When people go to the courts, oftentimes as 
a last resort to protect their constitutional rights, 
especially less powerful who may not have the kind of political 
clout and legislative bodies that others might have. The 
Supreme Court defined the special role for the courts in 
stepping in where the political process fails to police itself.
    They did this in U.S. v. Carolene Products back in 1938. 
They held the legislation which restricts those political 
process which can ordinarily be expected to bring about repeal 
of undesirable legislation is to be subjected to more exacting 
judicial scrutiny under the general prohibits of the 14th 
Amendment than are most other types of legislation. Now, that's 
actually a footnote. But do you read that as saying that 
litigants can expect the courts to look very, very carefully at 
what has been done, including in the legislative process?
    Ms. Haynes. We're very fortunate, in my view, to be in a 
country that has the checks and balances of three branches of 
government. The judiciary has to give respect to the other two 
branches, and particular respect to the laws passed by the 
legislature.
    At the same time, it is necessary for the judiciary to hold 
government accountable where those rules are not followed. In 
my particular case, I had numerous situations where someone was 
suing the government, or the State was suing, and I had to 
address the question of whether or not government had followed 
the rules. I had a specific case involving plaintiffs suing the 
Dallas Independent School District, alleging that they had not 
followed the Open Meetings Act in connection with 
redistricting, which is a very sensitive and difficult issue in 
Dallas, and probably beyond.
    I made a very careful scrutiny of hundreds of pages of 
transcripts myself--again, no law clerk--of these closed 
sessions that were alleged to have been improperly held in 
closed session, and found that some had been improperly held in 
closed session and required that they be made public and open, 
and therefore held government accountable.
    Chairman Leahy. I appreciate that. So often, as indicated--
and I'll have a couple other questions for the record--we find 
that the courts really are the last resorts. I mean, we have 
seen it in the past when legislatures or Congress has failed to 
act, and sometimes is a right that needs to be under the 
Constitution, needs to be enforced, and we have to go there. At 
the same time, we have to show judicial restraint and 
temperament.
    I feel like in saying that that I'm channeling Senator 
Thurmond, who used to state very clearly here, don't forget, 
it's a lifetime position. You go there, you're the most 
powerful person in the courtroom. You have to treat everybody 
the same. I mean, in your law practice you've seen people that 
did not have what you call judicial temperament, I'm sure. We 
all did when we were practicing law. There's no way of putting 
a definition of that, but it's more, you know it when you see 
it.
    If you've ever had the temptation, if you're confirmed, to 
abuse your position, think of judges in your own practice or 
our own career, especially when you were a young, beginning 
lawyer, when you looked at them and thought, who do they think 
they are? That's probably the best way of doing it. Look at 
them and just think, a lawyer would be sitting there saying, 
who the heck do they think they are? It's not a bad test.
    Senator Warner, did you have any other questions?
    Senator Warner. No, that's all. Thank you. I will put in, 
for the record, a few questions.
    Chairman Leahy. Well, then let me lead into, for both of 
the District Court nominees, just starting with that same 
question. Judge Mendez, let me ask you, have you, in your 
practice of law, seen a judge act where you were thinking, who 
the heck does he or she think they are?
    Judge Mendez. I have.
    Chairman Leahy. I'm not going to ask you to say who it was.
    [Laughter.]
    Judge Mendez. I will not.
    Chairman Leahy. But if you're confirmed, this is a lifetime 
position. I mean, you can tell me or anybody else what you 
think of us, and that's fine. But do you feel that you can go 
on a bench and remember that lawyers are there to advocate for 
clients and that the issues have to be treated fairly?
    Judge Mendez. I'm reminded of that every day as a State 
court trial judge. Having been a State court trial judge for 7 
years, that's been excellent training, great experience for a 
move to the Federal District Court, if I am confirmed. I am 
constantly reminded of that. In California, we are constantly 
reminded of that when we attend judicial education programs 
over and over again.
    I do remember being a lawyer in Federal District court and, 
just as you said, thinking if I am ever fortunate enough to 
become a judge, I'm going to remember what it's like to be a 
lawyer. I've taken that to heart every day as a State court 
trial judge.
    Chairman Leahy. Over a period of about 10 years, I had the 
privilege of actually trying more cases than anybody else in 
our State of Vermont. I saw some very, very good judges. I saw 
some others I wondered, how in heavens name did they ever get 
where they are. In the Federal system, it is so important. I 
mean, our whole--this is the third branch of our government and 
this is where it works only if people have faith in the courts. 
You don't have armies. You don't have anything else like that. 
People have to have faith and respect for the courts. If you 
lose that, we've lost the ability to have checks and balances 
in our government.
    I'd tell, if I might, Senator Warner, a short story. 
Shortly after the break-up of the Soviet Union, a group of 
jurists and lawyers were here visiting and going around the 
Capitol, talking to different people. As part of their 
business, they came in the conference room in my office and 
they were asking me questions. One said, is it true that in 
your country people have actually gone in and sued the 
government? I said, yes, it happens all the time. And is it 
true that there are time that the government loses? I said, it 
happens all the time. And do you then replace the judge?
    [Laughter.]
    It was like, you know in the cartoons where a light bulb 
goes on? It was like that as we explained.
    We've had lawyers, and even members of our Supreme Court, 
who have taken part in exchanges with, now Russia, formerly the 
Soviet Union, in talking about courts. That is the one thing 
they keep emphasizing, the independence of it. We see it every 
time we read about other countries, where suddenly the 
President or Prime Minister is arbitrarily firing judges 
because he didn't like their decisions. We can't have that.
    Let me ask Judge Anderson, what about you? Is there 
anything here that you disagree with? I mean, here's your 
chance to tell me.
    Judge Anderson. No, sir, there is not. I think it comes 
down basically to a matter of respect, respect not only that 
the litigants have for the court, but respect that the court 
has for the litigants, and the attorneys, and everyone who 
appears. I have tried as best I could to conduct myself as a 
magistrate judge in that fashion, and as an administrative law 
judge it was the first time in Tennessee's history that 
citizens had the right to sue the State, so I was the first 
judge--one of the first three judges to serve in that capacity, 
so I got to deal frequently with issues involving State 
liability.
    Chairman Leahy. And would it be safe to say you realize the 
State can lose?
    Judge Anderson. Yes, sir. I do realize the State can lose.
    Chairman Leahy. And do you agree--I mentioned Carolene 
Products. The footnote said all citizens have to have fair and 
effective representation. Do you agree with that?
    Judge Anderson. I do agree with that, Senator.
    Chairman Leahy. When I was a prosecutor, I always used to 
think one of the most difficult things was when we had 
basically incompetent counselors show up on the other side, 
because I thought I had a duty in the court to basically try 
their case as well as my own case. It's a lot better, I think 
you'd both agree, as trial judges, if you've got two basically 
equal--or basically equal representation on both sides.
    Judge Anderson. Yes, sir.
    Chairman Leahy. I think the checks and balances is 
important. It can come at all levels. In 2002, the Office of 
Legal Counsel at the Justice Department issued a secret legal 
opinion that concluded that the President of the United States 
had the power to override domestic and international laws 
outlawing torture and said he has complete authority to do 
that. It seemed to assert the President could immunize people 
from prosecution for a violation of U.S. criminal laws that may 
prohibit torture.
    I'm not talking about the President's obvious and complete 
constitutional power to issue pardons, but just to immunize and 
say, OK, you can break the law, but you can't. Now, after it 
became public--after the secret memo became public, it was 
withdrawn. Do you believe that--not just this President, but 
any President, can immunize illegal conduct?
    Judge Anderson. Senator, I believe that in a situation like 
what you're talking about, it comes back for someone--if I'm 
fortunate enough to be confirmed as a District judge, it comes 
back to Supreme Court authority, the statutes that have been 
passed by this Congress, and any other body of law that might 
apply to the situation. That's the way I would try to 
administer the law, if I'm fortunate enough to be confirmed.
    Chairman Leahy. Would you take the basic proposition to at 
least begin with that nobody in the United States is above the 
law?
    Judge Anderson. Yes, sir. I would.
    Chairman Leahy. Judge Mendez.
    Judge Mendez. I agree with Judge Anderson. In thinking 
about this, too, as a trial judge, one of the benefits I think 
you have as a trial judge is the ability to create a record. 
You can call for witnesses. You have the ability to ask for 
briefs. You need to follow precedent. You can make--again, 
that's why I like being a State trial court judge. You can take 
your time on decisions that are incredibly important and get 
all the information you need to do your job as a judge, and 
that's what you need to do as a judge. Make a record, explain 
your decisions, and get as much information as you can and 
apply specific facts of the case to precedent.
    Chairman Leahy. Judge Haynes, would you agree that the life 
of an appellate judge is at least easier if you've got a 
complete record coming up?
    Ms. Haynes. Each level--
    Chairman Leahy. I mean, you're still going to have--you may 
have a hard decision on the issue.
    Ms. Haynes. Yeah.
    Chairman Leahy. But it's a little bit easier if you don't 
have to try to create the record yourself. Is that correct?
    Ms. Haynes. Each level has its own challenges. I certainly 
know the challenges that are faced in a District court, at 
least a State District court, and they are substantial.
    Chairman Leahy. Senator Warner.
    Senator Warner. To Judge Mendez, you have always found a 
lot of time to speak to young people. You've taken an interest 
in that. Would you share with us some of the principles that 
you lay down when you explain the importance of the third 
branch of government, namely the judicial system?
    Judge Mendez. Thank you for pointing that out. I actually 
spent, as I indicated in my questionnaire, 5 years on our 
juvenile delinquency court. I found that to be the best 
assignment I've had as a judge. In terms of laying down 
principles, one of the reasons I really enjoyed juvenile court 
is you not only get to be a judge, quite frankly, you can bring 
your parenting skills to that court as well. It's very unique 
in terms of what you do for young people who obviously are 
there because their life is in crisis.
    The most important principle I lay down is education, quite 
frankly. The way out of juvenile delinquency, the way out of 
the life that most of them aren't responsible for, their 
parents are responsible for creating this situation, is 
education. I emphasize that over and over again, including 
learning about government, participating in the process.
    I always tell them, anyone that complains about the 
branches of government, and particularly elected officials, the 
first question you ask is, did you vote, have you registered to 
vote? People that complain about--we get a lot of questions 
about jury duty. It's important to participate in the process, 
but the way out, and the main message I give is what my parents 
gave me, and that is the way to succeed in life is through 
education.
    Senator Warner. The Chairman was recounting the demise of 
the Soviet Union and the excitement of former Soviet citizens, 
now Russian citizens, and others in learning about our judicial 
system. You have no reluctance to hold the President of the 
United States, if he's adjudged to have misconstrued his 
constitutional powers, to hold him accountable. Is that 
correct?
    Judge Mendez. I think the Chairman pointed out well, as a 
judge it doesn't matter who comes into your court: everyone is 
equal, everyone has to be treated fairly. As a judge, that's 
the way you have to approach every case, and that's the way I 
would approach this.
    Senator Warner. One of the landmark cases certainly in our 
lifetime, was the time of Truman, who was held accountable in, 
what, 1944?
    Chairman Leahy. On the Youngstown Steel case. Yes.
    Senator Warner. The Youngstown Steel case.
    Chairman Leahy. Yes.
    Senator Warner. But you know, it's interesting. People 
don't realize, if you look at the Constitution and the 
protection of liberty and rights, the U.S. District judge has, 
I think, the most powerful position. It certainly in many ways 
is equated to that of the President in finding fact and holding 
people accountable under the law, and I hope each of you are 
fully aware of the awesomeness of your power and how, as the 
Chairman pointed out, it has to be administered with a sense of 
fairness to all and equal justice to all.
    Judge Anderson, again, you've done a lot of work in the pro 
bono field. I think it's important that you lay before us this 
morning some of the things that you did in that field.
    Judge Anderson. I was fortunate to serve on the Pro Bono 
Panel for my local Bar Association. My area of focus was civil 
rights. I was amazed at times at the number of cases that we 
were called and consulted about regarding various civil rights 
violations, or perceived violations. It, in many ways, was one 
of the most rewarding aspects of my private practice.
    Also, in serving as a judge you see a lot of litigants who, 
it may be their very first time to be in the court and the 
first time to see how the process works, and I've tried to use 
that as much as I could to help educate young people and those 
that come into court for the first time.
    Senator Warner. Thank you.
    Mr. Chairman, I think that concludes my question in open 
hearing here this morning with our distinguished panel of 
nominees.
    Chairman Leahy. I was chuckling a little bit, thinking of 
judicial demeanor. I'm a member of the Vermont Bar, I'm a 
member of the District of Columbia Bar, the U.S. Supreme Court 
Bar. These are all bars I've appeared before in the Second 
Circuit. But I've only appeared once in court since I--when the 
Senate has to appear before a judge, the District judge in 
Vermont, whom I had recommended to President Clinton, he was 
now our chief district judge. It was a young law graduate who 
had clerked for him from Emory Law School, my son Kevin. Now it 
is his time to be--he's already admitted to the Vermont Bar. 
There, the admission is moved by the head of the Board of Bar 
Examiners for anybody who has passed the bar.
    In the District court, you had to have a member of the bar 
move, so I appeared in court. He was clerking for that judge. I 
made the usual motion, put into the record all--admitted to the 
Vermont bar, and here is who it was. So I said, Your Honor, may 
it please the court, I'd move his admission. He looks at me and 
goes, hmmm. I'm like, what do you mean, hmmm? He said, motion 
granted.
    [Laughter.]
    He told me, how creative. He said, you know, Patrick, I 
just wanted to remind you who's boss here in this court. But 
thank you.
    We'll stand in recess. We'll leave the record open for an 
appropriate period of time if anybody has questions.
    Senator Warner, I can't thank you enough for this.
    Senator Warner. I thank you, Mr. Chairman. It's been a 
great privilege for me, and to have the opportunity to meet 
Mrs. Haynes. I have to say, the Chairman talked about my modest 
career in the Senate. I recommended to a President the first 
woman Federal jurist in the history of Virginia. Just think: it 
was 200 years of history by the time I got around to that 
nomination. She later became the chief judge of our District 
court in her region.
    So I congratulate you, and I congratulate each of you for 
your past public service, and hopefully with the confirmation 
of the Senate, your future public service.
    Chairman Leahy. Thank you.
    Senator Warner. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. I really appreciate it.
    [Whereupon, at 11:05 a.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.] 

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



NOMINATION OF MARK S. DAVIS, TO BE U.S. DISTRICT JUDGE FOR THE EASTERN 
DISTRICT OF VIRGINIA; DAVID GREGORY KAYS, TO BE U.S. DISTRICT JUDGE FOR 
 THE WESTERN DISTRICT OF MISSOURI; DAVID J. NOVAK, TO BE U.S. DISTRICT 
 JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA; STEPHEN N. LIMBAUGH, JR., 
  TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI; AND 
 ELISEBETH C. COOK, TO BE ASSISTANT ATTORNEY GENERAL FOR THE OFFICE OF 
                  LEGAL POLICY, DEPARTMENT OF JUSTICE

                              ----------                              


                        THURSDAY, APRIL 3, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:20 p.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Herb Kohl, 
presiding.
    Present: Senators Specter and Kyl.

 OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Kohl. The Committee will come to order.
    We welcome a distinguished panel of five nominees before us 
today, as well as the nominees' families and friends who are 
here in support.
    We also welcome the home State Senators who are here to 
introduce them: Senator Warner and Senator Bond, who are here 
now, and Senator Webb and Senator McCaskill, who may arrive.
    Judicial nominations are among the most important duties of 
the Senate Judiciary Committee. The Senate has a responsibility 
to ensure that any nominee possess the qualifications, 
integrity, and the independence necessary to carry out his or 
her responsibilities to the American people.
    A Federal judgeship is a lifetime appointment, so we take 
this responsibility most seriously. Today the committee will 
consider four District Court nominations, two in Virginia and 
two in Missouri. All four enjoy the strong support of their 
home State Senators. We will also consider the nominee for 
Assistant Attorney General for the Office of Legal Policy in 
the Department of Justice.
    We will proceed in the following manner. After opening 
statements from any Committee members, we would like for the 
Senators present to introduce their nominees. Then we will 
invite the nominees themselves to take the oath, as well as 
present any opening remarks or introduce their family and their 
friends. Then we will take the time for questions.
    Senator Specter is here, and we ask him for his comments.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, thank you very much, Mr. Chairman. I 
am delighted to see our colleagues, Senator Warner and Senator 
Bond, here today for purposes of making introductions. Senator 
Webb has just joined us. We welcome the nominees and their 
families and we will do our best to process these nominations 
through the Committee for up-or-down votes.
    Earlier today in this room we had an extended discussion on 
the confirmation process. I think it is only fair to let all 
the nominees and others interested in what is going on, 
candidly, about the difficulties of the confirmation process. 
We have had a practice of slow-downs during the last 2 years of 
a presidency. It happened in the last 2 years of President 
Reagan, the last 2 years of President Bush the first, and 
happened in the tenure of President Clinton, where Republicans 
were in control for 6 years.
    In 2005, we had very extended filibusters and challenge of 
changing the rules on filibustering with the so-called 
Constitution, or nuclear, option. It is my hope we'll be able 
to process these nominees. We're obviously concerned about the 
qualifications. As the Chairman, Senator Kohl, has commented, 
lifetime appointments are very, very important. But I do 
believe we need to proceed with the hearings and evaluation and 
vote up or down on these nominees. I will do my best to move 
the process forward.
    So, on with the show, Mr. Chairman.
    Senator Kohl. Thank you very much, Senator.
    Senator Specter. Senator Warner is next to you.
    Senator Kohl. If you would like to make your introduction, 
Senator Warner.

 PRESENTATION OF MARK DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF VIRGINIA AND DAVID J. NOVAK NOMINEE 
TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 
 BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. Thank you, Mr. Chairman, and my lifetime 
friend, Senator Specter. Senator Specter and I have been here, 
we're going into our 30th year in this institution. I value the 
friendships that I've had with you, sir, and Senator Specter, 
and the chairman of this Committee, Chairman Leahy, and many 
others. I've appeared before this Committee, I'm not sure how 
many times, Mr. Chairman, but I know that I have either 
introduced or sat here on behalf of every member of the Federal 
judiciary in the Commonwealth of Virginia.
    I just think it's one of the most important functions of a 
United States Senator to work with the President, to work with 
his colleagues in the Senate, in the advice and consent 
process. I commend you, Mr. Chairman, for the dedicated work 
that you had.
    Today, our two nominees are from Virginia. It's an unusual 
situation. I'm privileged to introduce Chief Judge Spencer, the 
Federal District Court of the Eastern District of Virginia, who 
has come on behalf of the candidates today. I'd ask if Judge 
Spencer might rise to be recognized. Thank you, Your Honor.
    We also have Judge Morrison of the State Court of Virginia 
who has come on behalf of--Judge Morrison, we thank you.
    Now, Mr. Chairman, I would like unanimous consent to place 
into the record my statement. I see my colleague is here. I can 
be very brief, because the records speak for themselves and 
need not have this old, crackly voice here, which is not 
working too well today, to cover it.
    The first nominee I'd like to address is Judge Davis. He's 
Chief Judge on a division of our State Court. This young man 
started in my office as an intern, Mr. Chairman, and then came 
back and worked on the staff in my office. His whole judicial 
career, up through his position as Chief Judge, is carefully 
outlined in this statement. Without any hesitation, I 
unequivocally back this nomination and am very, very proud to 
see one of my staff members come before the U.S. Senate to be 
recognized under the advice and consent constitutional 
procedures for elevation to the judiciary. I thank you.
    Next, is a gentleman, Mr. Novak, whom I have come to know 
in the process with my good friend, Senator Webb and I. We work 
together as a team and we interview extensively many, many 
individuals carefully before we first submit the names to the 
President, and then before we come here. I wish to thank 
Senator Webb. I've worked in a similar capacity with all of my 
partners here in the Senate and the State of Virginia, be they 
Republican or Democrat, to see that we put forward for the 
judiciary only those we deem qualified.
    Now, this young man, having been a Federal prosecutor 
myself many, many years ago, I would call him the prosecutor's 
prosecutor. He has done so much in his lifetime in the 
prosecutorial work to see that people are fairly prosecuted and 
to carry out the law of the land, which allegedly has been 
broken in the various prosecutions. Again, his entire biography 
and all the important positions that he's held are captured in 
detail in my statement. Likewise, I put my unequivocal support 
behind this fine gentleman.
    I wish to also bring to the Chairman's attention and that 
of the distinguished Ranking Member that I have spoken to 
either the Senators themselves or their senior staff on behalf 
of this Committee. There is a matter with Mr. Novak. It's being 
reviewed within the Department of Justice. There's knowledge in 
here with your staff, and I'm confident that this matter will 
be completely resolved prior to the action of this Committee.
    And last, Mr. Chairman, I introduce Ms. Elisebeth Cook. 
Now, each of these distinguished candidates has their family 
here. Perhaps, I think your protocol is, when they come they 
introduce their own families. She's joined by members of her 
family today. This fine nominee is nominated to serve as the 
Assistant Attorney General responsible for leading the Office 
of Legal Policy, or the OLP, as we know it. That serves as the 
principal office for the planning, development, and 
coordination of high-priority policy initiatives from the 
Department of Justice, and works closely with the President on 
the selection process for the Federal judiciary.
    Again, Phi Beta Kappa. I need not go further. It's all in 
here, an extraordinary career for this magnificent female 
professional.
    I thank you, distinguished Chairman and the distinguished 
Ranking Member, and ask again that my full statement be placed 
in the record.
    Senator Kohl. Thank you, Senator Warner. It shall be done, 
without objection.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Senator Kohl. Senator Webb, would you like to speak?

  PRESENTATION OF MARK S. DAVIS, NOMINEE TO BE U.S. DISTRICT 
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA AND DAVID J. NOVAK, 
 NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
  VIRGINIA BY HON. JIM WEBB, A U.S. SENATOR FROM THE STATE OF 
                            VIRGINIA

    Senator Webb. Thank you, Mr. Chairman and Ranking Member 
Specter. I would like to begin by associating myself with all 
the remarks of our senior Senator from Virginia. Actually, as 
he was giving his remarks, I was sitting here remembering that, 
24 years ago this very month, Senator Warner sat next to me 
during my confirmation hearing to be Assistant Secretary of 
Defense, and introduced me. So when we're talking about trying 
to move things forward in a bipartisan manner here in the 
Senate, that is one example among many of how we have been able 
to work over many years together.
    I would like to add my own strong support for the 
nominations of Judge Mark Davis and Mr. David Novak, and also 
I'm pleased to join Senator Warner in introducing Elisebeth 
Cook Collins, who is a Virginian who has been nominated as 
Assistant Attorney General for Legal Policy at the Department 
of Justice. We all know the role that the Constitution assigns 
the Senate in the advice and consent process with respect to 
our judgeships. These are lifetime appointments.
    Virginians expect our Senators to take very seriously our 
constitutional duties and to look beyond party affiliations to 
impartial, balanced, fair-minded criteria in examining those 
people who we are going to trust in those fiduciary 
responsibilities.
    Senator Warner and I, early on, undertook a careful and 
deliberative joint process in order to find the most qualified 
judicial nominees. This process involved a thorough records 
review, rigorous interviews jointly held, asking for the 
opinions of the bar associations, many different bar 
associations in Virginia, and through that process we jointly 
concurred in the high qualifications of Judge Davis, and also 
Mr. Novak.
    So, without going into any duplicative detail in terms of 
qualifications, I would ask that my full statement be inserted 
into the record of this hearing, and I would like to associate 
myself in full measure with what Senator Warner has already 
said.
    Senator Kohl. Thank you, Senator Webb. Without objection, 
it will be done.
    Senator Webb. Thank you, Mr. Chairman.
    [The prepared statement of Senator Webb appears as a 
submission for the record.]
    Senator Kohl. We have two Senators from Missouri with us at 
this point. Senior Senator Chris Bond?

PRESENTATION OF DAVID GREGORY KAYS, NOMINEE TO BE U.S. DISTRICT 
   JUDGE FOR THE WESTERN DISTRICT OF MISSOURI AND STEPHEN N. 
   LIMBAUGH, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
  EASTERN DISTRICT OF MISSOURI BY HON. CHRISTOPHER S. BOND, A 
            U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator Bond. Thank you very much, Mr. Chairman, Senator 
Specter.
    I, too, would associate myself with the general comments 
made by the distinguished senior Senator from Virginia. He 
always says it well, and he did again today. I thank the 
members of the Committee for holding this hearing to consider 
the nominations for the Eastern and Western Federal District 
Court benches in Missouri, the Honorable Stephen Limbaugh and 
the Honorable Greg Kays, or as he's known in the formal papers, 
as David Gregory Kays, so there is no confusion about referring 
to him by his middle name.
    Your holding these hearings today, reporting these nominees 
favorably, and ensuring the full Senate approve their 
nomination will help show that the Federal judicial nominating 
process can work to provide Federal judges our courts so 
desperately need.
    I'm so pleased and proud to be able to be here today, along 
with my colleague, Senator McCaskill, to introduce such 
outstanding nominees to the Federal bench. Both Judge Kays and 
Judge Limbaugh share bipartisan support, both have fine 
judicial minds, and are public servants. They both represent 
the values and character of my Missouri constituents.
    Judge Kays hails from Lebanon, Missouri, a mid-sized city 
in Southwest Missouri. Folks from Southwest Missouri are 
hardworking, God-fearing, family loving. Of course, I like to 
think of all Missourians that way, but they're particularly 
proud to do so. But you will see today, as I see, that Judge 
Kays' sharp legal mind and record of experience as a State 
Circuit Court judge--that's a trial judge--are matched equally 
by a midwesterner's modesty, earnestness, and commitment to 
duty and service.
    Now, Kansas City is in the Western District of Missouri and 
produces many big-city lawyers and judges, some of whom I was 
also proud to recommend, but I am especially happy that this 
occasion will allow the nomination and hopeful confirmation of 
a judge from Laclede County.
    Judge Limbaugh also hails from a mid-sized city, Cape 
Girardeau, on the Mississippi River in southeastern Missouri. 
Judge Limbaugh and his entire family, which includes more than 
one greatly distinguished judge, represents the excellence that 
can be achieved and produced in Missouri.
    I would note that his grandfather, one of the leaders of 
the Bar for many years in southeast Missouri, I heard him speak 
when he was 100 years old, a very compelling speaker who told 
me at the time that he had practiced law with my grandfather 
some 50 years before, Judge Rush Limbaugh, Sr. was still a very 
active and effective advocate at that time.
    Judge Stephen Limbaugh is a gentleman. Even his colleagues 
on the Supreme Court, who from time to time disagree with him, 
believe there to be no finer man or judge than Steve Limbaugh. 
They believe, and I agree, that Judge Limbaugh has the 
attributes necessary to be an outstanding Federal judge. So, 
this process thus far has worked as it should.
    Outstanding candidates with fine legal minds, exceedingly 
fine character, and bipartisan support are here before you 
today. I urge you to embrace these models of integrity and 
excellence. You will be proud, I assure you, of the service 
they provide to the Federal court, and we are especially proud 
of them in Missouri.
    I thank you and the Committee.
    Senator Kohl. Thank you for your statement, Senator Bond.
    Senator McCaskill.

PRESENTATION OF DAVID GREGORY KAYS, NOMINEE TO BE U.S. DISTRICT 
   JUDGE FOR THE WESTERN DISTRICT OF MISSOURI AND STEPHEN N. 
   LIMBAUGH, JR., NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
  EASTERN DISTRICT OF MISSOURI BY HON. CLAIRE M. MCCASKILL, A 
            U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator McCaskill. Thank you, Mr. Chairman, and thank you, 
Senator Specter, for being here.
    I want to first--maybe the right word today would be to say 
``ditto'' to the words of the other Senators from Virginia, and 
certainly my senior citizens--
    [Laughter.]
    Senator Bond. Senator. Senator.
    Senator McCaskill. Excuse me. The senior Senator from 
Missouri.
    Let me tell you that I have a connection to both of these 
nominees. Greg Kays is from my mother's hometown and where I 
spent part of my childhood. And although I don't know him as 
well personally as I do Judge Limbaugh, I will tell you that 
there has been an outpouring of support for Greg Kays from his 
community.
    It's a small-knit community and there are a lot of people 
that live in Lebanon that don't share my politics, but even 
those who share my politics said, listen, this is a good man. 
He has been a fine trial judge. As someone who has spent some 
time in a courtroom, as I know my colleague from Pennsylvania 
has, what you want from a trial judge is respect for lawyers in 
the courtroom and respect for the law, and an understanding 
that the judge is there to serve the public and not their ego. 
In fact, Greg Kays has that reputation among everyone who 
appears in his courtroom, and I think he would be an 
outstanding member of the Federal bench and he would be, in 
fact, replacing another trial judge from Lebanon, Missouri, a 
fairly small community in southwest Missouri that I feel very 
close to.
    As to Judge Limbaugh, I consider him a friend. I think that 
I would quote briefly from a letter that was sent to me by 
Judge Wolfe of the Missouri Supreme Court: ``Judge Limbaugh has 
served with distinction on the Missouri Supreme Court for many 
years, and two judges that are on the court that came to the 
court through Democratic Governors have expressed publicly what 
a fine judge he is.'' This letter is particularly meaningful 
because not only was he appointed by Governor Carnehan, but he 
had served in Governor Carnehan's administration. He wrote this 
letter, referring to Judge Limbaugh, ``He is a magnificent 
judge. He is civil, he is polite, he is extremely conscientious 
and hardworking. Most of all, he truly cares about the law. He 
is the kind of judge with whom you can disagree and the matter 
is never disagreeable.''
    There have been many kind words said about Judge Stephen 
Limbaugh in terms of his work, his collegiality, but once 
again, he is a former trial judge. He came to the Supreme 
Court, the highest appellate court in our State, from a 
courtroom. I think it's wonderful that he wants to return to a 
courtroom, because I think the essence of a trial judge is one 
who understands that the battle before him is one that it is an 
honor to be in a position to make decisions as to the law and 
to try to make sure that law is applied fairly, regardless of 
who comes to the courtroom.
    So I think these are two outstanding nominees and I'm proud 
of the bipartisan manner in which my colleague, the senior 
Senator from Missouri--
    Senator Bond. Thank you.
    Senator McCaskill.--has worked with me on these 
nominations. I recommend them to the Committee, I recommend 
them to the Senate, and I appreciate your time today.
    Thank you very much.
    Senator Kohl. Well, we thank both the senior and the junior 
Senator from Missouri. We appreciate your being here.
    At this point we'd like to call all five nominees to come 
forward and to remain standing. If you'll raise your right 
hand, I'll administer the oath.
    [Whereupon, the nominees were duly sworn.]
    Senator Kohl. You may be seated.
    Starting with Ms. Cook, we will ask each nominee to 
introduce themselves, make any brief comments you'd like to 
make, and introduce members of your family as you may see fit.
    Ms. Cook.

   STATEMENT OF ELISEBETH C. COOK, NOMINATED TO BE ASSISTANT 
ATTORNEY GENERAL FOR THE OFFICE OF LEGAL POLICY, DEPARTMENT OF 
                            JUSTICE

    Ms. Cook. Thank you, sir. First, I wanted to take you for 
taking the time to chair this hearing today, and Senator 
Specter, for being here today. I also wanted to thank the 
Chairman for scheduling this hearing. I wanted to thank the 
President for this nomination and the Attorney General for the 
faith that he has placed in me.
    I also wanted to take the opportunity to introduce my 
family members who are here. My parents, Tom and Martha 
Collins, and my husband, Jim Cook. Jim's parents, Ron and 
Maryann, were hoping to come today, but Maryann's mother is not 
well so they were unable to make it.
    Senator Specter. Would you ask your relatives to stand so 
we can greet them?
    Ms. Cook. Please stand.
    Senator Specter. Nice to have you all here.
    Ms. Cook. And I also wanted to thank my friends and 
colleagues who have taken time out of their busy schedules to 
be here today.
    Senator Kohl. Thank you, Ms. Cook.
    Mr. Davis.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
STATEMENT OF MARK S. DAVIS, NOMINATED TO BE U.S. DISTRICT JUDGE 
              FOR THE EASTERN DISTRICT OF VIRGINIA

    Mr. Davis. Thank you, Mr. Chairman. Thank you for 
scheduling this hearing. I want to thank the President, and 
also thank Senator Warner and Senator Webb for recommending me 
to the President.
    I am honored to have here today my parents, Barbara and 
Ralph Davis. I'd ask them to stand. I also have my brother, 
Mike Davis, and his wife Donna. I'd ask them to stand. And my 
nephew, Dustin Davis. I'm honored to also have, as you heard 
Senator Warner introduce, one of my fellow colleagues from the 
Circuit Court where I sit, Judge Morrison. I have numerous 
friends here and I won't burden you with all the names, but I'm 
very appreciative of all of them being here.
    Thank you.
    Senator Kohl. Thank you, Mr. Davis and the other members of 
your family and friends who are here.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Kays.

 STATEMENT OF DAVID GREGORY KAYS, NOMINEE TO BE U.S. DISTRICT 
           JUDGE FOR THE WESTERN DISTRICT OF MISSOURI

    Mr. Kays. Good afternoon. I'd like to take this opportunity 
to thank the Chairman for chairing this hearing today, and the 
Committee for scheduling the hearing. I'd like to express my 
gratitude to Senator Kit Bond and Senator Claire McCaskill for 
their support, and the President for his support and his 
nomination.
    At this time I would like to introduce my family. My wife, 
Julie Kays, my 11-year-old daughter, Slone Kays, who's missing 
the sixth grade today. My mother, Nancy Kays, my father, 
Darrell Kays, my sister, Terri Griffith, my brother-in-law, 
Greg Griffith, and my nephew, Corey Renken, who is a senior in 
high school. I have a laundry list of friends who traveled all 
the way from the great State of Missouri to be here. There are 
about 16 of us.
    Thank you, sir.
    Senator Kohl. Thank you, Mr. Kays. We appreciate your 
family and friends who are here with you today.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Novak.

STATEMENT OF DAVID J. NOVAK, NOMINEE TO BE U.S. DISTRICT JUDGE 
              FOR THE EASTERN DISTRICT OF VIRGINIA

    Mr. Novak. Thank you, Senator. I'd like to thank you and 
Senator Specter for holding this hearing today. I'd also like 
to thank the President for nominating me, and also thank 
Senator Warner and Senator Webb for their support throughout 
this process.
    With me today is my wife Martha, who's in the front row. 
I'm going to ask her to stand. And my two young daughters, 
Nicole and Katie, who are also missing school today. I think 
they're pretty happy about that. Also, Chief Judge James 
Spencer from the Eastern District of Virginia. I'd ask them to 
rise. As well as a number of friends. Again, I'm not going to 
burden you as well with their names.
    Senator Kohl. Thank you, Mr. Novak. We appreciate your 
family and friends who are here.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Limbaugh.

   STATEMENT OF STEPHEN N. LIMBAUGH, JR., NOMINEE TO BE U.S. 
      DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI

    Mr. Limbaugh. I, too, am grateful to the President for the 
nomination and for this Committee's consideration of the 
nomination. I am especially grateful to Senator Bond and 
Senator McCaskill for their support and friendship.
    I have my wife, the love of my life, with me here, Marsha. 
And also my parents are in the back, my mother and father. My 
father is a senior U.S. District Judge in St. Louis. Even 
though he's been senior status for a number of years now, he 
keeps a full caseload. Twenty-five years ago when he was before 
this body for his own confirmation hearing, the Honorable Strom 
Thurmond presiding, he had his own father in tow with him. His 
father was, at the time, 91 years old, still a practicing 
lawyer.
    Thank you.
    Senator Kohl. Thank you, Mr. Limbaugh. We appreciate your 
family and friends who are with you here today.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Leahy has a statement to be entered into the 
record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Kohl. At this time I'd like to call on the Ranking 
Member, Senator Specter, to begin the questioning.
    Senator Specter. Well, thank you very much, Mr. Chairman. 
Welcome, all. I'm not going to be able to be here very long. 
We're scheduled to start a vote at 2:45, which is just in 
another couple of minutes. Another Republican is scheduled to 
come here.
    I wanted to take a few moments, Mr. Novak, to go to an 
issue which has been raised with respect to your handling of 
the prosecution of the Massaoui case. Would you tell us about 
the issue and what happened?
    Mr. Novak. Yes, Senator. To the best of my ability, I 
certainly would be glad to. You know I prosecuted Zacarias 
Massaoui, one of the 9/11--
    Senator Specter. Senator Warner has raised the matter with 
me and it is a matter under inquiry. It will doubtless be a 
matter discussed when your nomination is considered by the 
Committee. So it would be very helpful for me to hear it so 
that I can comment about it when the issue arises at that time.
    Mr. Novak. Thank you, Senator. Again, I had the honor of 
being selected to be one of the prosecutors of Zacarias 
Massaoui after the 9/11 attacks, and at that time I am quite 
proud of my work that I did during the prosecution of Mr. 
Massaoui. I'm also proud of the fact that, at the end of the 
trial our esteemed trial judge, Judge Brinkema, was quite kind 
in saying some very nice things about the work that I did, as 
well as my fellow prosecutors, and particularly talked about 
our integrity.
    One of the issues that came up, as I think, frankly, the 
world knows at this point, is there was a violation of a 
sequestration order by a TSA attorney by the name of Carla 
Martin, and I'm the person that reported that to the court. 
After the trial was over, her parent organization, DHS, did an 
investigation of her and she was fired. After she was fired she 
made a complaint to--
    Senator Specter. She was taken off the case?
    Mr. Novak. Yes.
    Senator Specter. And what caused the controversy? There was 
a violation of a sequestration order?
    Mr. Novak. Yes.
    Senator Specter. And what did that sequestration order 
provide?
    Mr. Novak. That there was to be no communication of trial 
transcripts with witnesses, sir.
    Senator Specter. And there was a communication with one of 
the witnesses?
    Mr. Novak. A number of witnesses. She had sent e-mails to a 
number of the witnesses, Senator.
    Senator Specter. How many?
    Mr. Novak. I believe, six.
    Senator Specter. Anything besides e-mails?
    Mr. Novak. She might have had some oral communications, I 
believe.
    Senator Specter. Might have?
    Mr. Novak. What I recall was, we had an evidentiary and I 
think some of the witnesses said she had spoken to them as 
well.
    Senator Specter. How did you find out about that?
    Mr. Novak. I found out from a witness and I disclosed it to 
the court, sir.
    Senator Specter. You disclosed it to the court. And what 
action did the court take?
    Mr. Novak. The court had an evidentiary hearing, found that 
she'd engaged in egregious misconduct, took action against the 
United States, which we then had to reconsider, and the court 
was effusive in explaining that my colleagues and I had done 
the right thing by learning of misconduct and disclosing it 
right away. She was then removed from the case. Thereafter, her 
parent organization did a thorough internal background and 
determined to remove her, and then thereafter she decided to 
file a complaint against me which has yet to be resolved.
    Senator Specter. And later she filed a complaint?
    Mr. Novak. Against me. Yes, sir.
    Senator Specter. And tell us about that.
    Mr. Novak. Sir, the complaint remains--a person can file a 
complaint against a prosecutor in the Office of Professional 
Responsibility, and that complaint is pending. It's been 
pending for a year.
    Senator Specter. And what was the essence of her complaint?
    Mr. Novak. Her complaint--well, Senator, I will tell you, 
because the matter is pending within the Office of Professional 
Responsibility, I'm under the understanding that I don't have 
the ability to talk about it because it's a confidential--it's 
a confidential complaint, in fairness to Ms. Martin. I mean, 
I'm obviously not happy with the fact that she filed a 
complaint against me, but she has rights and I don't think it 
would be appropriate for me to say anything disparaging against 
her in terms of that--that complaint. It remains pending. I'm 
sure the Department of Justice will notify you as soon as 
it's--
    Senator Specter. Well, how is the Committee and the Senate 
to evaluate the matter?
    Mr. Novak. Senator, I would tell you, I am glad to answer 
any questions about this. But my problem is, I'm in a situation 
where it is a confidential matter in the Department of Justice. 
I'm still a Department of Justice attorney with 
responsibilities to protect the confidentiality of the OPR 
process. I have selfish interests. I would like to sit here and 
talk all about it. But at the same time, I have 
responsibilities. I have responsibilities to Ms. Martin and I 
have to protect her.
    Senator Specter. For the time being, we will respect your 
position on it. We may need to revisit it at a later time, and 
if we do, we shall. Anything else you wish to tell us about the 
matter?
    Mr. Novak. No, sir. I would look forward to answering your 
questions as soon as the investigation is concluded. I'm quite 
proud of my conduct. I'm proud of what Judge Brinkema said 
about our conduct throughout. I had a responsibility to make 
the disclosures to the court, and I did.
    Senator Specter. OK. Thank you, Mr. Chairman, for 
permitting me to go out of sequence and discuss this with Mr. 
Novak. I note your record. I note your Pennsylvania connection. 
I note you were an Assistant D.A. in a very good District 
Attorney's Office. Not as good as when I was District Attorney, 
but very good.
    [Laughter.]
    The vote has started. I'm going to excuse myself, Mr. 
Chairman.
    Senator Kohl. Thank you.
    Senator Specter. I expect to have a replacement Republican 
Senator arriving shortly.
    Senator Kohl. Thank you, Senator Specter.
    There is a vote, as he said, so we'll recess for perhaps 10 
minutes. I'll get back here as soon as I can and then we'll 
proceed with questions.
    [Whereupon, at 2:49 p.m. the hearing was recessed.]
    AFTER RECESS [3:07 p.m.]
    Senator Kohl. The hearing will resume. We will commence 
questioning for Ms. Cook.
    Ms. Cook, one of your primary responsibilities at the 
Office of Legal Policy is the selection of judicial nominees. 
With time is very short before the next election, what has your 
office done to encourage the White House to identify consensus 
nominees like the ones who are before us today who can be 
confirmed? Do you believe that it is important to consult and 
get the approval of home State Senators before nominations are 
made?
    Ms. Cook. Thank you for that question. The Office of Legal 
Policy within the Department of Justice does play a supporting 
role in the selection process for judicial nominees. Ultimately 
the decision of whether or not to nominate an individual is the 
President's decision, but the Department, and my office in 
particular, does play a supporting role in that process.
    You had asked specifically about consultation. The 
consultation process is one out of the White House council's 
office. It is not one of the areas where the Department of 
Justice would play a role.
    Senator Kohl. Ms. Cook, during the tenure of Attorney 
General Gonzales there was a perception that politics played a 
significant role in the decisions made at the Department. Was 
there a similar problem at OLP? What will you do to ensure that 
this does not become a problem, should you be confirmed?
    Ms. Cook. Let me explain a little bit about how the Office 
of Legal Policy is currently staffed. I am the Acting Assistant 
Attorney General right now, there are three Deputy Attorney 
Generals, and a Chief of Staff on the senior staff. They are 
all career attorneys. They have all been at the Department 
longer than I have. One of my goals, if confirmed, would be to 
make the Office of Legal Policy a place where they will want to 
stay long after I am gone. If confirmed, in any of my 
decisions, I would hope to have their input and their 
experience in that decision-making process.
    Senator Kohl. Thank you.
    Ms. Cook, while OLP is known primarily for its role in 
filling judicial vacancies, it also plays a role at the Justice 
Department in conducting policy reviews of legislation 
implementing Department initiatives, among other things. Can 
you tell us what your priorities will be in that area for the 
rest of this administration?
    Ms. Cook. If confirmed, my priorities would be to 
institutionalize the gains that we have made in areas such as 
combatting violent crime, combatting child exploitation, 
combatting identity theft, and combatting human trafficking. 
These are areas where my office has been very involved in the 
past in the development of initiatives, in assessing 
legislation, and I would hope to continue to prioritize those, 
if confirmed.
    Senator Kohl. What will be your biggest challenge, do you 
imagine, over the next several months?
    Ms. Cook. I think the biggest challenge that we will face 
is the fact that the administration is ending. But from my 
perspective, now is the time to institutionalize the gains that 
we have made in numerous areas and to make sure that the 
Department continues to be a place where great professionals 
want to work.
    Senator Kohl. Where do you think you may have some problems 
that you will have to deal with, that you might warn us?
    Ms. Cook. I'm not aware of any specific areas, but I can 
tell you that, should areas arise where we feel we could use, 
for example, additional authorities, we would welcome the 
opportunity to work with this committee.
    Senator Kohl. Thank you, Ms. Cook.
    Ms. Cook. Thank you.
    Senator Kohl. Judge Davis and others, during Chief Justice 
Roberts' nomination hearing, much was made of his suggestion 
that his job as a judge was little more than that of an umpire 
calling balls and strikes. I'm sure you recollect that. Some of 
us, in response, suggested that this analogy might be a little 
too simple, because all umpires, after all, have different 
zones with respect to balls and strikes. That is because they 
bring their own unique life experiences to the bench. No two 
people are exactly similar.
    So would you comment on the Chief Justice's comparison to 
the role of a judge being like that of an umpire?
    Mr. Davis. Well, Senator--
    Senator Kohl. Would you agree with him or do you think the 
Chief Justice was wrong?
    [Laughter.]
    I dare you to answer that question, yes or no.
    [Laughter.]
    Mr. Davis. Senator, it is a metaphor, I guess, that he 
chose to use. I would say that I see the role of a judge as to 
uphold the rule of law. That's what I've tried to do in the 
past 5 years while I've served, and to look to the 
Constitution, to look to the statutes that are passed by this 
body, and to try to do the best job possible to make sure that 
everybody in the court is heard, they're heard in a fair 
manner, and that the process plays out in an open and fair 
manner.
    I think that's the way that I see the role of the judge, to 
make sure that in the courtroom that happens, that everyone in 
the adversarial process has the opportunity to be heard and to 
make sure that the rule of law is what governs the outcome.
    Senator Kohl. All right.
    Judge Kays.
    Mr. Kays. Thank you, Senator. I agree with much of what 
Judge Davis has stated. You know, one of the challenges that I 
think people on the bench--judges have is to ensure that when 
people leave the courtroom they have a sense that they were 
treated fairly and there was a, pardon my metaphor, level 
playing field for everyone who comes before the court, no 
matter their station in life.
    Thank you.
    Senator Kohl. Mr. Novak.
    Mr. Novak. Thank you, Senator. I would also agree that one 
of the key aspects is to ensure a level playing field, and that 
playing field will exist solely by a judge applying the laws 
that he is given, either through statute or by previous 
precedent. If I were confirmed, that's what I would do.
    Senator Kohl. Judge Limbaugh?
    Mr. Limbaugh. I got out of the use of Chief Justice 
Roberts' metaphor that he was simply using an example of an 
umpire as someone who is, by the very office that the umpire 
holds, someone who is impartial and even-handed, and that he is 
someone who should not try to inject his personal policy 
preferences into the game, so to speak.
    Senator Kohl. Thank you.
    For the judicial nominees, the following question: the 
debate around judges in the Senate can often get quite heated 
become some believe that nominees are brought forward because 
of a specific set of beliefs which conform to one political 
ideology or another. We can all agree that the overriding 
belief for any judge should be that he or she is independent 
and eager to apply the law in an even and fair way.
    Could you respond to the thought that judges are brought 
forward because of a specific set of ideological beliefs? Mr. 
Davis?
    Mr. Davis. Yes, sir, Senator. Senator, once you--it's 
almost 5 years that I've served on the bench and I've been 
honored to do that. It was amazing to me, once I started that 
process, the seriousness of it. When you know that people are 
coming before you, it's their day in court. They've been 
preparing for it for a long time. It may be the most important 
day in their life. When that seriousness hits, I've found it, 
frankly, easy to be very objective about what I was doing to 
take it seriously.
    When I say ``easy'', it was just the seriousness of it that 
made me step back and say, it's not my personal views, it's 
nothing that I've done in the past. What governs here is the 
Constitution, to the extent that that's an issue, any statutes, 
any laws that we're dealing with, and any precedent, binding 
precedent that I have to follow, and then treat everyone 
fairly. I think, for me at least, I found that a fairly easy 
transition from private practice to doing that because it was 
such a serious thing.
    Senator Kohl. OK. Judge Kays, why is it that there is this 
controversy when it comes to nominees, that they're either 
ideologically to the left or to the right, and so Republicans 
might support one, Democrats might support another? Do you 
think there's merit in that or do you think that it is much 
over-blown?
    Mr. Kays. Thank you, Senator. I understand that different 
people have different ideas on backgrounds of the judiciary. 
Senator, we're called to check our personal views at the door 
once we put on our robe, sir. Only then can we ensure 
uniformity, predictability, and stability in our court system. 
To do less does undermine the confidence of the entire judicial 
branch, in my opinion.
    Senator Kohl. All right.
    For the other two, there really is a difference, isn't 
there, between the Federal court that you are up for and, for 
example, the Supreme Court in terms of your responsibilities 
and duties as you see it versus what a Supreme Court justice 
might be called upon to do in interpreting the Constitution. Is 
that correct or incorrect? Mr. Novak, then Judge Limbaugh.
    Mr. Novak. Well, I can't speak for others, but I can speak 
for the process here in Virginia. As you heard from Senators 
Warner and Webb, Mark Davis and I were selected from a 
bipartisan interview process with both Senators. I think that 
was guided by recommendations from the local Bar organizations 
as to who they believed the people that are best qualified, 
those that are committed to applying the rule of law regardless 
of any type of political connection whatsoever. And again, I 
can't speak to others, but I can tell you, Senator, if I am 
fortunate enough to be confirmed I'm going to apply the rule of 
law, end of story. It doesn't matter what anybody's political 
connections are.
    Senator Kohl. Thank you.
    Judge Limbaugh.
    Mr. Limbaugh. Senator, I'm not sure I understand the 
question exactly. As an appellate court judge, I'm bound by the 
precedents of our cases, the statutes, and Constitution, and on 
Federal matters, of course, the pronouncements of the U.S. 
Supreme Court. As a trial judge, I'm still bound by those same 
things.
    Senator Kohl. Right.
    Mr. Limbaugh. It is a different role, though, altogether as 
an appellate judge.
    Senator Kohl. Thank you.
    Judge Limbaugh, some people have criticized this President 
for the excessive use of signing statements. As you know, 
signing statements are the President's contemporaneous 
interpretations of the legislation that he signs into law. This 
administration has issued many more of these statements than 
any administration in the past. Would you discuss the 
appropriate deference that a Federal judge should give to a 
signing statement when you are interpreting the statute?
    Mr. Limbaugh. Well, as a trial judge I would hope that I 
would have some guidance at some point from the Federal 
circuits and from the U.S. Supreme Court on just how we are to 
use those matters, if at all. I hope that's the situation, in 
the event I am confirmed, that we'll have some guidance. 
Frankly, I had not considered that issue, myself. I don't know 
the answer.
    Senator Kohl. Well, you three are familiar with signing 
statements and what they are and how the President uses them. 
I'd like to hear a word or two from the three of you on that 
whole issue, starting with you, Mr. Davis.
    Mr. Davis. Mr. Chairman, obviously I think the obligation 
from me, if I were to be confirmed, would be to look to the 
precedent from the Supreme Court. Obviously there is case law 
out there on legislative history and the degree to which 
legislative history is to be consulted by the court in reaching 
an outcome. To the extent that there are similar statements 
either from the Supreme Court or from, in my case, the Fourth 
Circuit Court of Appeals, that would be the binding precedent 
in Virginia and I would follow that. I have a healthy respect 
for the separation of powers and for the constitutional role of 
the Congress. So, I think that is an over-arching principle 
that I would also keep in mind in any such situation.
    Senator Kohl. Thank you.
    Mr. Kays.
    Mr. Kays. Thank you, Mr. Chairman. The beginning point for 
a trial judge is with the text of the statute and the 
expression of the legislative branch. As a State trial judge 
for the last 14 years, I'm not familiar with any precedents 
that would require me to review the signing statements. I, 
frankly, am unable to give you an answer because I don't know 
of any precedent or legal authority related to that at this 
time.
    Senator Kohl. All right.
    Mr. Novak.
    Mr. Novak. Senator, like my colleagues, I would first look 
to precedent as well. My understanding, particularly under the 
separation of powers, my limited knowledge of signing 
statements, is that a signing statement really applies to the 
execution of the law, which is an executive branch function, as 
opposed to rewriting the law, which is a legislative function.
    Obviously the people speak through the Congress when the 
statutes are drafted, and the statutes speak for themselves. My 
understanding--my limited understanding--of a signing statement 
really--my view is that it really applies to how the executive 
decides to carry out the law.
    Senator Kohl. All right.
    Comments from each of you, please. In the past few years 
there's been a growth in the use of so-called protective orders 
in product liability cases. We saw this, for example, in the 
settlements arising from the Bridgestone/Firestone lawsuits. 
Critics argue that these protective orders sometimes prevent 
the public from learning about the health and safety hazards in 
the products that they use.
    Now, I ask you, should a judge be required to balance the 
public's right to know against the litigant's right to privacy 
when the information sought to be sealed could keep secret a 
public health and safety hazard? Who wants to speak first on 
that? I will ask all four. Should a judge be required to 
balance public health and safety with a litigant's right to 
privacy when considering a protective order? You will be 
sitting and you will have the judgment to make. You can decide 
then. When these cases come up, will you use that balancing 
test? If so, to what extent? It's an issue that I've been 
pushing for several years, so you can also balance your 
response to the fact that I'm sitting before you.
    [Laughter.]
    Who'd like to speak first? Mr. Davis, why don't you try 
that one?
    Mr. Davis. OK. Senator, I will tell you, I don't--I don't 
know--I've never had that issue during my practice in the 
Federal court--
    Senator Kohl. OK. All right.
    Mr. Davis [continuing].--before I went on the State court 
bench. In the State court system, we have a case, for example, 
that prevents us from sealing wrongful death settlements, a 
State Supreme Court case that emphasizes the importance of the 
public being able to know what the terms are. So I have had the 
opportunity, when attorneys have tried to present me with those 
kind of documents, to remind them that that is not something 
that we can do in Virginia, and I've refused to do it.
    So, I can only tell you that I would look to the precedent, 
any statutory framework that is provided, and precedent. And to 
the extent that anyone raised a constitutional issue about it, 
I would certainly look to the text of the Constitution and any 
precedent that governed. But I would certainly be--it would be 
my role to look for that precedent to determine how to handle 
those issues, and I would do that.
    Senator Kohl. Mr. Kays.
    Mr. Kays. Thank you, Mr. Chairman. I have not dealt with an 
issue of that nature. I will tell you, in Missouri, we 
generally lean toward openness in everything we do in our court 
system and we don't have, that I'm aware of, any secret 
judgments or anything like that. Our judgments are all open to 
the public.
    I will tell you that this sounds like an issue that is 
addressed in the legislative branch, perhaps, about whether or 
not we should be making things secret, or unknown, or 
undisclosed to the public. I would review the statute, the 
applicable precedent, and the rules and follow those.
    Senator Kohl. Thank you.
    Well, as it now stands, if you're a sitting judge in your 
court, if you will be a sitting judge in your court, you would 
have the opportunity to make that decision and you could go 
either way on that with respect to allowing protective orders 
to be sealed, even though we may be talking about public health 
and safety. So when you say you look at the precedent, you can, 
but you will have the opportunity to make that judgment.
    There are some Federal judges who very strongly believe 
that protective orders should not be sealed when there's public 
health and safety involved. They believe that as a principle 
and they conduct their court that way. Others go in the 
opposite direction.
    I guess what I'm interested in is what your inclination 
would be when you are in a situation where you can go either 
way with respect to protective orders, keeping them secret, or 
if you believe that there are many people that might be injured 
by keeping them secret, not to allow that.
    Now, Mr. Novak, what would be your inclination?
    Mr. Novak. Well, Senator, I also have not been confronted 
with such a situation. Of course, if I were fortunate enough to 
be confirmed, I would turn to the precedent. I do know that in 
a criminal context, which I'm much more familiar since I've 
been a prosecutor for a number of years, that the Fourth 
Circuit case law creates quite a presumption in terms of 
openness of documents and access to the public, and I think 
that I would start with a view of what the Fourth Circuit case 
law is.
    Senator Kohl. Judge Limbaugh.
    Mr. Limbaugh. Of all the many hundreds of cases that I've 
addressed, I don't remember having this issue head on. It's a 
fascinating issue. I would hope, as a U.S. District Judge, that 
I would have some guidance from the courts by the time that I 
would have to address it. Perhaps, too, it is more appropriate 
a matter for legislation. But in Missouri, our court system is 
very open, like Judge Kays suggested. I know of very few 
examples where the parties have been successful in closing the 
records of a case, other than in juvenile court cases, and once 
in a while in a domestic case.
    Senator Kohl. Well, we have had, and I'm sure you remember, 
situations like the Bridgestone/Firestone case where the 
protective order was granted in terms of a defective product 
that then continued to be sold and wound up killing many, many 
people, as well as others. There were breast implant cases 
where a protective order was granted and the product was 
defective and the protective order prevented people from 
knowing, and the manufacturer continued to sell their product 
protected by the order.
    Now, to me this is a matter of common sense. If I were a 
judge, I'd have a hard time allowing that to occur if, in 
granting that protective order, I knew that many people were 
going to continue to be injured. I'm not sure what I've heard 
from you all today, but I'll try once more.
    Mr. Davis. Senator, if I could.
    Senator Kohl. Judge Davis.
    Mr. Davis. I'm sorry. Thank you. You have laid it out for 
me so that I think I have a better understanding of what the 
issue really is. To the extent that, as you say, there is 
discretion in the judge to make that decision, and as I said, I 
honestly don't know what the law is on that in the Fourth 
Circuit, but to the extent that there's discretion, I think 
when there's a danger, an issue of danger to the public, that 
has to be a factor that you weigh heavily. So, I guess I can 
pledge to you that I would look very carefully at any such 
situation.
    There's certainly an interest in trying to resolve 
litigation. To the extent that--it was the situation that I had 
before me in the State court, as I recall, in a wrongful death 
case. The parties said, we're not going to--we may not be able 
to resolve this case if we can't seal the result. It was a much 
easier case for me there because the Supreme Court of Virginia 
had said you can't do it. You can't do it because there are 
public health and public policy interests that encourage those 
orders to be open. But I think the wisdom of that decision 
speaks for itself. There's great wisdom in that.
    Senator Kohl. Thank you.
    Mr. Kays.
    Mr. Kays. Mr. Chairman, since--if the court does have the 
ability to balance the harm, certainly I'm reminded quite often 
that I am a public servant, and certainly I would have an 
interest in protecting the public from harms which they may be 
exposed to. I think each case would probably be different 
absent some legislative expression, but I can see where, if it 
would be in the public's best interests to protect the public 
from some known evil, that that would be appropriate not to 
issue a protective order in that case, sir.
    Senator Kohl. Thank you.
    Mr. Novak.
    Mr. Novak. Senator, as somebody who has spent their entire 
career in public service, as I have, I certainly would not want 
to do anything that would harm the public, in fact, quite the 
opposite. You can begin with the presumption in that favor, as 
I think all of us would do. We'd just be in a position where we 
don't know what the law is at this point, at least I do not, 
having not been confronted with that.
    But assuming that there is the relevant law in the Fourth 
Circuit that affords you discretion, I think you're going to 
obviously want to lean toward protecting the public. Everyone 
wants to do that because I don't want to be harmed. I don't 
want my beautiful young daughters being harmed, nor my wife 
harmed from somebody else's misconduct.
    Senator Kohl. Thank you so much.
    Judge Limbaugh.
    Mr. Limbaugh. I understand well your concern. I have a 
concern of my own, and that is, so many settlements--most 
settlements are entered into without any admission of liability 
by one party or the other. So I'm trying to figure out what 
kind of mechanism could be used to address your concern and 
still protect the legitimate interests of the other side. It is 
something that needs to be addressed. Perhaps legislation is 
the right way.
    Senator Kohl. Yes. Thank you.
    If there are no other comments, I think you have all done a 
very good job.
    Senator Kyl, before we end the hearing, we'll come to the 
most interesting part, which is Senator Kyl and his comments 
and questions.
    [Laughter.]
    Senator Kyl.
    Senator Kyl. Thank you, Senator Kohl.
    I was sent here by Senator Specter, who indicated that he 
had to leave.
    Senator Kohl. Right.
    Senator Kyl. He did not want the hearing to be concluded 
without a Republican member present.
    Senator Kohl. Good.
    Senator Kyl. So, we have certainly guaranteed that. What I 
can do, Mr. Chairman, is if there are any other questions that 
either Senator Specter or other members on my side have, we'll 
obviously be submitting them to you. We appreciate your being 
here. I apologize for being here late, Mr. Chairman. Thank you.
    Senator Kohl. Thank you very much for being here for the 
moment, Senator Kyl. We appreciate it.
    Folks, we'll keep the record open for 1 week for Senators 
who may want to submit written questions or make statements. 
But again, we thank you for being here. You've done an 
excellent job and we look forward to, hopefully, your 
confirmation. Thank you.
    [Whereupon, at 3:34 p.m. the hearing was adjourned.]
    [Questions and answers and submissions follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    


NOMINATIONS OF G. STEVEN AGEE, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE 
FOURTH CIRCUIT; WILLIAM T. LAWRENCE, NOMINEE TO BE U.S. DISTRICT JUDGE 
FOR THE SOUTHERN DISTRICT OF INDIANA; AND G. MURRAY SNOW, NOMINEE TO BE 
            U.S. DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA

                              ----------                              


                         THURSDAY, MAY 1, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, Pursuant to notice, at 2:15 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, presiding.
    Present: Senators Specter, Kyl, and Brownback.
    First, let me thank Senator Leahy for allowing me to chair 
today's hearing. In today's hearing, we will consider for U.S. 
Circuit Court Judge for the Fourth Circuit Justice George 
Steven Agee; for the U.S. District Court for the Southern 
District of Indiana, Judge William Thomas Lawrence; and for 
U.S. District Court for the District of Arizona, Judge Gene 
Murray Snow.
    Before I give my opening statement, with the permission of 
Senator Specter, we're going to recognize Senator Kyl for an 
opening statement.

  PRESENTATION OF G. MURRAY SNOW, NOMINEE TO BE U.S. DISTRICT 
   JUDGE FOR THE DISTRICT OF ARIZONA BY HON. JON KYL, A U.S. 
               SENATOR FROM THE STATE OF ARIZONA

    Senator Kyl. Mr. Chairman, I very much appreciate your 
courtesy, and apologize in advance to my colleagues, as well as 
to those nominees who are here. I am not feeling well and I'm 
going to be leaving immediately after I introduce Judge Snow. 
So, please forgive me.
    But I did want to be here to commend Judge Snow to the 
members of the Committee. I strongly support his nomination to 
the U.S. District Court for the District of Arizona, and would 
note that Senator McCain joins me in this strong 
recommendation.
    Judge Snow has served on the Arizona Court of Appeals since 
the year 2002. Prior to that, he was a partner at the firm of 
Osborn & Maladon in Phoenix. He received his bachelor's degree 
magna cum laude, and his law degree magna cum laude, both from 
Brigham Young University, and was Order of the Coif.
    He clerked for the Tenth Circuit for Judge Steven Anderson 
after his graduation and was an Adjunct Professor of Political 
Science at Arizona State University for 7 years. He also served 
4 years on the State Bar of Arizona Ethical Rules Review Group, 
and for 6 years on the Committee on Rules of Professional 
Conduct. The American Bar Association unanimously gave Judge 
Snow its highest rating of ``Well Qualified''.
    As I say, Mr. Chairman, both Senator McCain and I offer our 
strongest recommendation for the confirmation of Judge Snow, 
and I appreciate, again, the courtesy of you and my colleagues.
    Senator Cardin. Thank you, Senator Kyl.

 STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE 
                       STATE OF MARYLAND

    Senator Cardin. Today the Senate Judiciary Committee meets 
to undertake one of its most serious duties, and that is the 
confirmation of Federal judges to a lifetime appointment.
    Today, part of the hearing, of course, is the testimony 
that we'll hear from the nominees. We also have had submitted 
to our Committee detailed information, which is also available 
to all the members of the U.S. Senate.
    I want to thank all three of our nominees for their 
commitment to public service, and particularly want to 
acknowledge their families for the sacrifices that they have 
made.
    Let me just, if I might for the record, make a quick 
comment about the confirmation process, since there's been much 
stated about this. I really want to compliment our Chairman, 
Senator Leahy, and our Ranking Member, Senator Specter, because 
I think the record of this Congress has been a strong record on 
the confirmation process and I do compliment both the Chairman 
and Senator Specter.
    At the end of the Clinton administration there were 32 
vacancies that were unconfirmed for the Circuit Court of 
Appeals. Right now, we have 12 Circuit Court judges that have 
not been filled. We are acting on one today by hearing, and 
Senator Leahy has announced that there will be hearings on two 
additional Michigan Circuit Court of Appeals judges; on May 7, 
we're going to have a public hearing. So, we are moving forward 
on the Circuit Courts.
    Including the District Court vacancies, there was an 
overall vacancy rate of 80 at the end of the Clinton 
administration, and we now have about 46. I mention that just 
so we can try to set the record straight and move forward on 
the hearings of three judges today, and I do look forward to 
their testimony.
    With that, I would recognize Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman. Let the record 
show that I begin with the observation that I do not object to 
these hearings. It would be foolhardy to object to any judicial 
confirmation hearings in this Congress under the prevailing 
facts.
    But I do think it important to express some concerns. We 
are now seeing the continued exacerbation of the balance 
between the two parties. In the last 2 years of a Presidential 
administration, where the White House is controlled by one 
party and the Senate by the other.
    In my personal experience, going 20 years back, in the last 
2 years of President Reagan's administration, inappropriate 
tactics were used by the Democrats, who controlled the Senate. 
The same prevailed in the last 2 years of President Bush the 
first. It got worst around Clinton. Let me agree with you, Mr. 
Chairman, when you said that there are fewer vacancies now than 
there were during the Clinton administration. The pattern has 
been to exacerbate: at one level during Reagan, higher in Bush, 
higher still in Clinton, and I said so at the time.
    As the record shows, I voted for Clinton judges who were 
qualified, and I expressed myself on the Senate floor to that 
effect and I stood against the Republican caucus, which I 
thought was wrong. Now I think the Republican caucus is right 
and I am prepared to leave the caucus. That's my given position 
as Ranking Member on this Committee. It is fresh in our 
memories, what we went through in 2005 when we had the repeated 
filibusters--I shall not elaborate upon them. They're etched 
indelibly on the public record.
    The confrontation with the so-called constitutional, or 
nuclear, option to upset a longstanding tradition of the Senate 
on filibuster, narrowly--to changing the procedures in the 
Senate, whose procedures have maintained the independence of 
the Federal judiciary and the impeachment proceeding of Justice 
Chase in 1805 and the power of the presidency and the 
impeachment proceeding in President Johnson in 1868. So we've 
been on the edge.
    I do disagree, Mr. Chairman, with the characterization that 
the record is a good one. I will not burden the record with the 
lengthy statistics and long speeches and the extraordinary 
exchange of letters which have taken place, all of which prove 
nothing. You can manipulate the statistics any way a speaker 
likes.
    We have, today, a commitment--perhaps it's a commitment of 
a sort--to confirm three Circuit judges by Memorial Day. Maybe 
it's only a best-efforts commitment, but there is some 
tenuousness as it's expressed by the Majority Leader and the 
Chairman of the Committee.
    Now we're looking at three nominations, the nomination of 
Justice Agee, whom I saw briefly yesterday, and I greeted him 
in a rather unusual fashion. I said, ``Justice Agee, I think 
you're in a pretty good position on the confirmation process 
because there are other nominees who I dislike more than you.'' 
That is sort of a strange way to put it, but that happens to be 
a fact. Justice Agee, and perhaps Justice White and Judge 
Kethledge--I'm not sure I have all the titles straight--are in 
preferred position because Peter Keisler, Judge Robert Conrad, 
and Mr. Matthews are more heartily rejected than any other 
Republican nominees.
    There are some statistics which are worth noting very, very 
briefly. I will only use Helene White for illustrative 
purposes. She was nominated on April 15th. Let's see. This is 
May 1st. That's 16 days. She has a hearing scheduled for May 
the 7th. That's 22 days. Peter Keisler has been waiting for a 
Committee vote for over 670 days; Judge Conrad has been waiting 
for a hearing for over 285 days; Mr. Steve Matthews has been 
waiting for a hearing for over 235 days.
    Now, a concern that I express, but I do not intend to dwell 
on it, is that the regular order of the Senate cannot be 
maintained on the hearing schedule, illustratively, for Helene 
White. Her nomination date was April 15th. Her questionnaire 
was received on April 25th. The FBI investigation started the 
same day, April 25th. Her ABA rating has not been received, and 
is not be expected prior to the hearing.
    With the hearing on May 7th, the hearing record would be 
open, customarily, 7 days until May 14th. The earliest mark-up, 
if there were no questions for the record, which there 
customarily are, would be May 15. The earliest mark-up, if 
there are questions for the record, would be May 22nd. The 
earliest mark-up, if no questions and held over for 1 week, 
would be May 22nd. There is scant time to confirm before we 
adjourn for Memorial Day.
    Now, that sequence I've gone into in a, believe it or not, 
abbreviated fashion to point up what the regular order is for 
this Committee to give due consideration to the qualification 
of a Circuit judge for a lifetime appointment. I don't have to 
emphasize the importance of that position.
    Faced with not having confirmation or having a hurried 
confirmation, we Republicans will take a hurried confirmation. 
That's only because we don't have any realistic choice. But I 
don't think it should pass without having it known for the 
record, and noted emphatically, that regular order is not 
followed. When you don't follow regular order, there's enormous 
potential to get into trouble. But I repeat: I do not object to 
this schedule. I don't want to hear any reason to cancel this 
unsatisfactory schedule. Unsatisfactory as it is, it's better 
than no schedule.
    I ask consent that a series of letters from Senator 
McConnell and me to the Leader and Chairman Leahy be made a 
part of the record, and I will only make a very brief reference 
to one.
    Senator Cardin. Without objection, they will be made part 
of the record.
    [The letters appear as a submission for the record.]
    Senator Specter. Dated yesterday from the Majority Leader 
to the Republican Leader and to me, where he notes that ``No 
one presumed to instruct Senator Specter about the sequence of 
nominations during the years he served as Chairman of the 
Judiciary Committee.'' Well, that's true. No one did presume to 
instruct me because no one had any call to do so.
    I refer to only two illustrations. We had two Supreme Court 
nominations and I consulted in great detail with the Chairman 
of the Committee, with the Ranking--now Chairman, Senator 
Leahy, then Ranking--and meetings involving Senator Reid and 
Senator McConnell as well. The White House was insistent on 
having the hearing for Chief Justice Roberts begin on August 
24th, insistent--a meeting in the living quarters of the White 
House attended by the President, the Vice President, and all 
the Republican leadership, and that was what was to be done.
    And I didn't think it was a good idea to start a hearing in 
August for the Supreme Court, consulted with Senator Leahy, and 
began in regular order after Labor Day. On the confirmation of 
Justice Aleto, the White House insisted on having it done 
before Christmas. Without getting into the number of opinions 
and the details and the timing, it didn't make sense. I 
consulted with Senator Leahy and it was scheduled after 
January. So, there's no need to instruct Arlen Specter, serving 
as Chairman, as to what to do. There was total consultation 
with the Minority.
    On this schedule, there has been none, N-O-N-E. Just for 
the record, and let it be noted that the President personally 
told me after the confirmations of Chief Justice Roberts and 
Justice Aleto that the proper schedule was followed.
    Mr. Chairman, I'm delighted to proceed.
    Senator Cardin. Thank you, Senator Specter.
    Without objection, Chairman Leahy's statement will be made 
part of the record, with the opportunity to add some additional 
letters that would complete the letters that Senator Specter 
has entered into the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Cardin. Let me just briefly comment that it seems 
like the Democratic leadership is criticized when it moves too 
slow or when it moves too fast. Yes, we are moving quickly, 
thanks to the cooperation of the two Senators from Virginia and 
the two Senators from Michigan. We are trying to move as 
quickly as we possibly can without compromising the appropriate 
Senate responsibilities on the confirmation process of judges 
to the Circuit Court of Appeals. We will move as quickly as we 
can, knowing full well that any member has certain prerogatives 
on both sides of the aisle.
    I just want to point out also, Senator Specter, for the 
record that we have confirmed, the U.S. Senate, three 
appointees to the appellate court that were objected to by 
Democrats. One was a very contested situation. The delay in the 
confirmation of that judge was as a result of the Republicans, 
who wanted additional time in order to try to get the necessary 
votes for confirmation. The strategy was successful. You were 
able to obtain the necessary support for an affirmative vote in 
the Committee and on the floor.
    In two other cases, one in which I chaired the hearing, 
there were objections, but no efforts made at all to delay the 
process. I again repeat the numbers. I think those who are 
watching this can judge by the performance. But I will point 
this out: there have been over 60 filibusters led by the 
Republicans this year. The most recent was the FAA, Federal 
Aviation Administration, reauthorization bill that's on the 
floor of the U.S. Senate as we speak.
    We're unable to bring it to a vote because the Republicans 
are using their prerogatives to require filibuster votes and 
the time to run on different procedural votes. This is not the 
first time, it's 60 times. I would say that the failure of us 
to act on the FAA reauthorization bill has real consequences on 
the safety of those who use our air traffic system.
    There has not been one filibuster on the floor of a 
judicial appointment. Not one. So I just think you should look 
at the way this has been handled. I'm a new member of the U.S. 
Senate, but I deeply respect the manner in which Chairman Leahy 
has exercised his responsibilities as Chairman in handling 
judicial nominations from this administration, and I think the 
record will speak for the fact that the Senate has carried out 
its responsibility.
    With that, I'm going to recognize, first, Senator Lugar to 
introduce one of our nominees.
    Oh. If I could just correct the record. I just want to 
correct one more thing in the record with Judge Agee. I just 
want to make it clear, I don't know of anybody on our side that 
thinks you're objectionable, so I just want to make sure--
there's not a scale here. We very much respect your background. 
I just want to correct that from Senator Specter's point of 
view.
    Thank you.

    PRESENTATION OF WILLIAM T. LAWRENCE, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE DISTRICT OF INDIANA BY HON. RICHARD 
        LUGAR, A U.S. SENATOR FROM THE STATE OF INDIANA

    Senator Lugar. Mr. Chairman, I bring good news to the 
Committee. My esteemed colleague, Senator Bayh from Indiana, 
and I have consulted about our nominee today, and we're 
privileged to be here together to introduce an outstanding 
District Court nominee for the Southern District of Indiana, 
namely, William Thomas Lawrence.
    I would first like to thank the Senate Judiciary Chairman, 
Senator Pat Leahy, the Ranking Member, Senator Arlen Specter, 
and the presiding Chairman, Senator Ben Cardin, for holding 
this hearing today and for moving so promptly on this 
nomination.
    I am pleased that Bill is joined here today by his wife 
Jeanie, his daughter Kate Simons, and his brother Tony, who are 
right beside us here.
    Mr. Chairman, on December 18, 2007 the Senate voted to 
confirm the nomination of John Tinder to serve on the Seventh 
Circuit Court. John was a distinguished leader on the Indiana 
Southern District Court, and I know that his successor will 
need to possess the same degree of integrity and intelligence. 
Given this need for strong leadership, I was pleased to commend 
William Lawrence to President Bush for consideration.
    This selection was the product of a bipartisan process and 
reflective of the importance of finding highly qualified 
Federal judges to carry forward the traditions of fair, 
principled, and collegial leadership.
    I have known Bill for many years and I have always been 
impressed with his high energy, his resolute integrity, and his 
remarkable dedication to public service.
    William Lawrence attended Indiana University, where he 
received both his undergraduate and law degrees. He then 
entered private practice, but also devoted time to serve as a 
public defender in the Marion County, Indiana courts. 
Subsequently, he served part-time as a master commissioner for 
the Marion County Circuit Court.
    In 1996, Judge Lawrence was elected to the Marion County 
Circuit Court. In this position he built a reputation for 
fairness and efficiency. The Marion County Circuit is one of 
the busiest in the State of Indiana. In less than 3 years, 
Judge Lawrence reduced the number of pending cases by 20 
percent. This impressive performance on the bench led to his 
appointment in 2002 to serve as a U.S. magistrate judge.
    Throughout his year, his reputation for personal courtesy, 
fairness, decency and integrity was equally well-earned and 
widespread among colleagues and opposing counsel alike on both 
sides of the political aisle. I am also pleased that Bill's 
experience and professionalism were recognized by the American 
Bar Association, which rated him, by a substantial majority of 
the committee, ``Well Qualified''.
    I would like to thank, again, the Chairman for this 
opportunity to present William Lawrence to the Committee. I 
believe he will demonstrate remarkable leadership and will 
appropriately uphold and defend our laws under the 
Constitution.
    I thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Lugar.
    Senator Warner, if you don't mind, I think we'll hear from 
Senator Bayh next.
    Senator Warner. Absolutely.
    Senator Cardin. Senator Bayh?

    PRESENTATION OF WILLIAM T. LAWRENCE, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA BY HON. 
      EVAN BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA

    Senator Bayh. Thank you, Mr. Chairman. It is a privilege 
for me today to appear before this Committee, for several 
reasons. First, as Senator Specter will recall, my father 
served on this Committee for 18 years and loved the business of 
the Judiciary Committee, including the process of confirming 
judges. So, we have a great deal of respect in our family for 
the work you so ably do.
    Second, I'm just happy to talk about something other than 
the Indiana primary coming up next Tuesday.
    [Laughter.]
    The reason for that, is that we in Indiana care about, 
frankly, a lot more important things than politics, and one of 
them is ensuring that justice is dispensed here in our State 
and across our country.
    I regret, as both of you have outlined, the course of 
events over the last 30 or so years. Dick, I had the feeling we 
had wandered into the congressional equivalent of the ``War of 
Roses'' here today. But regardless of how all this started, we 
need to find a better path to get our way out of it.
    I want to publicly thank my colleague and friend, Senator 
Lugar, for the respect and the comity with which he has 
conducted this process. He reached out to me, consulted with 
me, asked me to do my own due diligence, and not surprisingly, 
I ended up reaching the same conclusions about the nominee that 
he did.
    Judge Lawrence has served our community in a variety of 
capacities, always intelligence, always with honor, and always 
with what we would call the highest standards of judicial 
temperament. He enjoys my full and unqualified support. I hope 
that perhaps the kind of cooperation that we have here and that 
our colleagues from Virginia apparently have can perhaps set a 
better example going forward.
    The final thing I would say, Mr. Chairman, just on a 
personal note, my first job out of law school was to be a law 
clerk in the Southern District of Indiana, where I hope Judge 
Lawrence will soon serve. As a young lawyer, I looked up to 
those judges. They were men not only who were learned, but 
tried to do right by the people who came before them, people 
like Judge Nolan, Judge Steckler, Judge Dillon. I have no doubt 
in my mind whatsoever that Judge Lawrence will serve in a 
similar capacity for the people of Indiana, and I am proud to 
come before you and second the high regard of our colleague, 
Senator Lugar.
    Senator Cardin. We thank both of you for your 
introductions.
    Senator Warner.

  PRESENTATION OF G. STEVEN AGEE, NOMINEE TO BE U.S. CIRCUIT 
COURT JUDGE FOR THE FOURTH CIRCUIT BY HON. JOHN WARNER, A U.S. 
               SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. Might I just say that I was very touched by 
the remarks of Senator Bayh on behalf of Senator Lugar. Senator 
Lugar is one of the great icons in this institution, and I, 
too, am privileged to enjoy his friendship and his confidence. 
To see the two Senators from the State of Indiana here joined 
on this, I think, is a clear indication of how this institution 
can, and often does, work in a truly bipartisan way.
    I am privileged to be joined by my colleague, Senator Webb, 
and had it not been for his concurrence in certain views on 
this, we would not be here today on behalf of this 
distinguished individual, Mr. Agee.
    I would also like to pay recognition to someone in the 
audience, Susan Magill. Susan was my administrative assistant 
for many years, but in total served in my office for almost 25 
years of my 30. She grew up with the nominee, and he and her 
late brother were law partners. She was the one to bring to my 
attention this outstanding nominee for the bench.
    Now, I want to ask unanimous consent to put my full 
statement in.
    Senator Cardin. Without objection, it will be.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Senator Warner. I think that will cover the points, and I 
think that time is sliding by here.
    I also indicate that in my years here I've enjoyed support 
of the Chairman of this Committee in the nominations that I've 
made. I've had a hand in working with every single Federal 
judge now sitting in Virginia, and I would not have been able 
to achieve that without the cooperation of both the Democrats 
and the Republicans in seeking to get those nominations 
through.
    So, I thank Chairman Leahy, I thank my old friend, Chairman 
Specter, and indeed the presiding officer here today. I note 
that this is for the Fourth Circuit, and that the great State 
of Maryland is an integral part of the Fourth Circuit, so 
indirectly the Chair has a special interest in this nomination.
    I think we have come forth, Senator Webb and I, with an 
outstanding individual. He is joined by his lovely wife today. 
Nancy, would you stand? And their son, Zach. Thank you very 
much.
    This fine man has had an extraordinary career in the 
academic world, and indeed, I think I'll get right to the 
point. He was a magna cum laude graduate from Bridgewater 
College in Virginia. He subsequently took his law degree at my 
school, the University of Virginia law school. His academic 
record at that school, I might add, was considerably better 
than mine, which indicates why he is there and I am here.
    Since his graduation from law school, he has been engaged 
in the legal community for 30 years. He found time to serve in 
the U.S. Army Reserve as a Judge Advocate General, rising to 
the rank of major.
    From 1982 to 1994, he was a member of the Virginia House of 
Delegates in the General Assembly. That's our State 
legislature. Then, of course, in 2000, the General Assembly 
unanimously confirmed him for the Virginia Court of Appeals, 
and subsequently 3 years later the General Assembly once again 
unanimously confirmed him to a seat on the Virginia Supreme 
Court.
    Mr. Chairman and members of the Committee, this is a very 
eminently qualified individual to serve America on the Federal 
Circuit Court, Fourth Circuit.
    Senator Cardin. Senator Warner, thank you very much.
    Senator Webb.

  PRESENTATION OF G. STEVEN AGEE, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE FOURTH CIRCUIT BY HON. JIM WEBB, A U.S. SENATOR 
                   FROM THE STATE OF VIRGINIA

    Senator Webb. Thank you, Mr. Chairman and Senator Specter. 
It's my pleasure to join with our senior Senator from Virginia 
in offering our support for this nomination. All of us are 
acutely aware of the vitally important role that the 
Constitution assigns to the Senate in this process and I am 
very grateful for the guidance and the cooperation that Senator 
Warner has shown over the past year and a half on these issues. 
We undertook a very careful and deliberate joint process in 
order to find the most qualified nominees, and this process 
involved a thorough records review and rigorous interviews 
which we conducted jointly.
    We, I think, are both of the opinion that Justice Agee not 
only met these standards, but exceeded them. He is on the joint 
list of recommended nominees that we submitted to the President 
last year and I am pleased that the President has chosen to 
respect all of the diligence and bipartisan work that went into 
this.
    Justice Agee is regarded as a jurist of superior intellect 
and judicial temperament who exhibits the highest degree of 
integrity and professionalism. I won't repeat his 
qualifications. I would ask that my full statement be submitted 
as a part of the record.
    Senator Cardin. Without objection.
    [The prepared statement of Senator Webb appears as a 
submission for the record.]
    Senator Webb. But I want to thank the Chairman and Senator 
Specter for this opportunity to come before you and for the 
expeditious way that you have moved, at least this nomination, 
through the process. I am very proud to be sitting with Senator 
Warner here, recommending this candidate.
    Thank you.
    Senator Cardin. Well, let me thank all four of our 
colleagues. The way that you have handled these nominations, 
working together, putting partisan politics aside, makes it a 
lot easier for our committee and for the U.S. Senate. So, my 
applause to all four of you for what you've done for Indiana, 
for Virginia, and Senator Warner, you pointed out, it affects 
my State of Maryland. We very much appreciate the manner in 
which you have brought forward these nominations.
    Thank you.
    Senator Specter. Mr. Chairman, just a word of comment. Let 
me congratulate our four distinguished colleagues for their 
presentations. It is always a treat to hear Senator Lugar on 
any subject. Senator Lugar established a record in Indiana by 
being elected to a sixth term in 2006, but then he held the 
record which he'd established when being elected to a fifth 
term in the year 2000. So, it's just one record after another. 
I saw your father yesterday, former Senator Birch Bayh, in the 
corridor. He looks like he stepped right out of your age 
bracket, Evan, fit and ready to go. He would pass as a brother, 
and not necessarily a younger brother. But he could be a 
brother.
    I compliment Senator Warner and Senator Webb for coming 
together. It's been contentious. You worked it out, and it 
ought to be a model. It ought to be a model for the Fourth 
Circuit, which is so desperately in need of judicial manpower. 
It's always a treat to hear Senator Warner. The problem is, 
we're not going to be treated to it much longer. Senator Webb 
has already established himself in this body. But when you have 
Senator Lugar and Senator Warner on the podium on the same day, 
it's a good day, notwithstanding one or two other problems 
which I've already mentioned.
    [Laughter.]
    Thank you.
    Senator Cardin. Thank you all very much for your testimony.
    If I can now ask our nominees, Justice George Steven Agee, 
Judge William Thomas Lawrence, and Judge G. Murray Snow to come 
forward, and I will first administer an oath. If you would 
please remain standing, and we'll swear you in under an oath.
    [Whereupon, the nominees were duly sworn.]
    Senator Cardin. Thank you. Please be seated.
    We would welcome a brief opening statement in which we 
would hope that you would introduce your family that may be 
here today.
    We'll start off with Judge Agee.

 STATEMENT OF G. STEVEN AGEE, NOMINEE TO BE U.S. CIRCUIT JUDGE 
                     FOR THE FOURTH CIRCUIT

    Judge Agee. Thank you, Mr. Chairman. I am privileged to 
have with me today my wife Nancy and my son Zach, who Senator 
Warner introduced just a few moments ago, a number of other 
friends, including Susan McGill, who Senator Warner introduced, 
and some of my former law clerks. I'd like to take this 
opportunity to thank you, Mr. Chairman, for the opportunity to 
appear before the Committee. I appreciate the nomination from 
President Bush, and in particular I appreciate the confidence 
that's been expressed in my by Senator Warner and Senator Webb. 
Last, I'd like to thank my family for standing by me through 
this.
    [The biographical information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Cardin. Thank you.
    Judge Lawrence.

 STATEMENT OF WILLIAM T. LAWRENCE, NOMINEE TO BE U.S. DISTRICT 
           JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA

    Judge Lawrence. Mr. Chairman, thank you.
    First of all, I'd like to thank you and the Committee for 
the invitation to appear at this hearing this afternoon. I'd 
like to thank the President for this nomination. I would 
certainly like to thank Senator Lugar and Senator Bayh for 
their support and stewardship through this process.
    I would like to acknowledge and introduce, I guess, again, 
my family, who is here supporting me, including my wife Jeanie, 
my daughter Kate, and my brother Tony. I appreciate them being 
here this afternoon.
    Thank you.
    Senator Cardin. Thank you.
    [The biographical information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Judge Snow.

STATEMENT OF G. MURRAY SNOW, NOMINEE TO BE U.S. DISTRICT JUDGE 
                  FOR THE DISTRICT OF ARIZONA

    Judge Snow. Mr. Chair, I, too, appreciate the Committee and 
you taking the time to consider my nomination. I'm thankful to 
the President for that nomination, and also to Senator Kyl and 
Senator McCain, especially under the circumstances of his 
health, appearing and presenting me today.
    Although I have a wife and children of whom I am very 
proud, they're unable to be here today. I do have my brother-
in-law with me, Keith Teel. I'm glad to have him here, and some 
friends from Phoenix, Anna Duran-Krauss and Tim Eckstein.
    Senator Cardin. Well, we welcome you and we welcome your 
families and friends. Again, we understand that there is a 
tremendous sacrifice in serving in the public sector and the 
families have a huge part of that, and we thank you for the 
commitment that all of you have made.
    I just want to start off with a general question to each 
one of you. If you would comment briefly on your commitment to 
pro bono access to the legal system and your philosophy as it 
relates to those that otherwise could not afford a lawyer or a 
legal system as to what we as attorneys and the courts have 
responsibility to provide equal justice to our courts?
    [The biographical information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    We'll start with Judge Agee.
    Judge Agee. Mr. Chairman, when I was in private practice I 
participated for all of my private practice years in the local 
Bar Association's pro bono programs, which provided primarily 
domestic relations and bankruptcy services for the indigent.
    I also served throughout my career in private practice 
doing court-appointed work in the Federal system, which isn't 
quite the same as pro bono, but it gave me a look both on the 
civil and the criminal side.
    As a member of the Supreme Court of Virginia, I've worked 
with my other colleagues on the court and the chief justice in 
trying to implement better pay conditions for those who 
represent the criminally indigent. We've been working on a 
system to provide a bank of attorneys and appellate cases for 
indigent and pro se civil litigants, and that's a commitment, 
if I'm accorded the high privilege of serving on the Court of 
Appeals, that I would continue to carry on.
    Senator Cardin. Thank you.
    Judge Lawrence. Mr. Chairman, thank you. As previously 
noted, I was a public defender in the Marion County criminal 
courts in the Major Felony Division for 9 years at the 
beginning of my practice. At that period of time the public 
defender office was my office. I handled cases as they came in, 
obviously from indigent clients. I was not only the trial 
attorney, but I was also the paralegal, the witness 
coordinator, the investigator, and the secretary. I think I was 
paid $5,700 back there in the mid-1970's. I did that for 9 
years, and probably over-stayed my welcome as far as my own 
practice was concerned.
    Thereafter and in the late 1970's, I was part of a Bar 
Association task force, Pro Bono Task Force, if you will, that 
organized the Pro Bono Panel that is now in effect in 
Indianapolis, and has been for the last several years. So not 
only did I organize it, I was also a participant for many 
years, handling pro bono cases at either no fee or a reduced 
fee.
    Third, during my early years as a Circuit Court judge, a 
State court judge, if you will, in Indianapolis, I saw a need 
for a consolidated paternity court. I think it might have been 
the first, or one of the first, consolidated paternity courts 
in the Nation at that point. Essentially what we did, is we 
provided a forum to establish paternity and for essentially 
welfare individuals to come forward and try to collect support.
    At the beginning, we believed that we could maybe collect 
$30 million. I'm happy to report that, in 2004, that court was 
directly responsible for putting $80 million of money into the 
pockets of single head-of-household custodial parents of 
children born out of wedlock, and I'm proud of that.
    Senator Cardin. You should be.
    Judge Snow.
    Judge Snow. Mr. Chairman, a substantial part of my private 
practice, when I was a private practice lawyer, was always 
dedicated to pro bono work. I received several awards from 
different organizations, including the Maricopa County Bar 
Association and the Arizona Association for Providers for 
Persons with Disabilities, for my pro bono work on behalf of 
various people and enjoyed that very much.
    I also believe that Maricopa County, the Phoenix area, and 
the Arizona court systems have done a lot with the Internet, 
with available resources in the courthouses so that litigants 
who can't afford the services of a lawyer can, nonetheless, 
have the process to file and to bring about a lawsuit, 
explained to them in plain English, and help them step-by-step 
through the process. I've been a supporter of those efforts.
    The American Bar Association has just put out new rules, or 
canons, model canons, for judges and they've emphasized in 
their proposed model rules rule changes which would make it 
clear that judges that explain the process to pro-per litigants 
are not violating their responsibilities in any way. I've been 
involved in Arizona in adopting those new rules, and they're 
currently proposed.
    Senator Cardin. Well, thank you. I appreciate those 
answers.
    Judge Agee, in regards to existing precedents and judicial 
restraint, could you just share with me your philosophy of when 
you think it's appropriate to overrule precedent to move in a 
different direction in the courts?
    Judge Agee. Stare decisis is a foundational principal of 
our justice system and it is an obligation of members of the 
judiciary to follow the stare decisis in most all 
circumstances.
    In looking at my career as a member of the Supreme Court of 
Virginia and of the Court of Appeals of Virginia, I have 
followed precedent and looked at stare decisis as a very high 
principle that we are to follow. There have been a few 
occasions where we have overruled cases. Those are very rare 
cases, usually on very narrow points and where it can be 
determined that the prior decision was plainly wrong. But as a 
member of the Court of Appeals, if I'm accorded that privilege 
by the Senate, it would be my responsibility to apply the 
precedent as it is handed down from our Supreme Court.
    Senator Cardin. Sometimes the plain meaning of a statute is 
difficult to determine. What standards do you use if you need 
to go beyond the language of a statute in rendering a judgment?
    Judge Agee. In those circumstances there are canons of 
construction that judges use as part of the discharge of their 
duties. Hopefully the statute would have sufficient plain 
meaning that that would not be necessary, but there are canons 
of construction that judges use which may begin with simply 
going to a dictionary definition of terms. But those are fairly 
well laid out, and I think that in my opinions as a member of 
the Supreme Court of Virginia where those circumstances have 
been necessary, I have followed those.
    Senator Cardin. One of those tools would be legislative 
intent. I've always wondered how judges determined legislative 
intent, because I'm not sure what we all mean when we pass the 
laws around here. Maybe Senator Specter has a different 
interpretation there. But when you try to interpret the intent 
behind statutes, how do you go about doing that?
    Judge Agee. That's often a very interesting question. 
Coming from my background, having served 12 years in the 
legislature, I suppose I have a way of looking at the 
separation of powers that's more empirical than perhaps some 
members of the bench having been able to serve in that branch 
of government as well.
    At least on the State level, there are very rare 
circumstances where there would be any type of legislative 
history that we could use in terms of interpretation. I know 
that's different on the Federal level to a certain extent. But 
in looking at plain meaning again, you would go back to canons 
of construction that may start from as simple a standpoint as 
going to dictionary definitions to interpret terms.
    Senator Cardin. You do have the advantage of having served 
in the legislature and of serving in the judicial branch. There 
are times that there are direct conflicts between the executive 
branch, and the judicial branch, and the legislative branch. I 
guess my question to you is, what importance do you give to the 
independence of the judicial branch?
    What is an appropriate involvement with the executive 
branch? We have national security issues. We have a lot of 
issues around here in which the policies of this country become 
vitally important, but the independence of the judiciary has 
been tested, certainly, since 9/11. Would you just share with 
the Committee your views as to how the independent judiciary 
works in checks and balances with the executive branch, but 
still mindful of the awesome responsibility that each of us has 
to our Nation?
    Judge Agee. Well, as a Virginian, I've always held in high 
regard our first Chief Justice, John Marshall, who was 
instrumental in our history in establishing the independence of 
the judicial branch as a co-equal branch of government. As a 
former legislator, I have deep respect for the separation of 
powers and see that the judiciary's job, while it is an 
independent branch, our job is to apply the law as adopted by 
the Congress or the State legislature, as the case may be. 
There is a distinction between those two branches.
    As far as the relation with the executive branch is 
concerned, that's a topic that has not often arisen that I can 
recall in my experience on the State court.
    Senator Cardin. Well, at the national level, you're 
correct, there would be more testing of the independence of the 
judicial branch as it relates to matters involving the 
Presidential powers, which is an area that we have had some 
disagreement within this Committee as to how far the 
legislative branch can go in regards to the powers of the 
President.
    I think that many of us here are very interested in 
maintaining the independence of the judiciary to make sure that 
the emotion of the moment does not cause permanent damage to 
our Constitution or to the powers of the different branches of 
government. If you could share a little bit more on this, I 
would appreciate it.
    Judge Agee. The independence of the judiciary is 
fundamental in our system of government. It is the judiciary 
that becomes the basic, fundamental conservator of the rights 
that are in the Bill of Rights. That is a duty that I take very 
seriously, from the first moment when I took the oath of office 
as a judge in the Court of Appeals of Virginia, and that would 
carry through for the remainder of my career, particularly if 
I'm accorded the privilege of serving on the Federal Court of 
Appeals.
    Senator Cardin. Thank you. I'm going to have some 
additional questions, but let me yield, if I might, to Senator 
Specter.
    Senator Specter. Judge Agee, on the issue of judiciary 
independence and the treatment of the expansion of executive 
authority, have you had any occasion in your career to take a 
look at the State Secrets doctrine?
    Judge Agee. No, Senator, I have not.
    Senator Specter. Have you had an occasion to become 
involved in any way in any of the judicial review on the 
Foreign Intelligence Surveillance Act?
    Judge Agee. No, Senator. That's not been anything that's 
come across my duties in Virginia.
    Senator Specter. On your State court duties, have you had 
any activities with respect to habeas corpus?
    Judge Agee. Yes, Senator. We have a fairly significant 
habeas corpus docket.
    Senator Specter. What is your evaluation of the importance 
of habeas corpus, the so-called--emanating from the Magna Carta 
in 1215. It was a way of ensuring that there is sufficient 
evidence to warrant detention of individuals to await trial?
    Judge Agee. Habeas corpus has a long and distinguished 
history in our system of justice. It is a process that has been 
with us through the centuries and was foundational when our 
Constitution and the Bill of Rights were adopted in this 
country. On the Supreme Court of Virginia, we have a 
significant amount of our staff that's devoted to the review 
and assistance to the justices in habeas cases. It's something 
that we take very seriously and devote a fair amount of 
attention to.
    Senator Specter. Well, those are all major issues. On the 
Fourth Circuit, you're in a very key position to rule on those 
matters. A great many of those cases come before the Fourth 
Circuit, perhaps because they originate in the Northern 
District of Virginia, finding their way to that Circuit. It is 
a tough job balancing security interests versus executive 
authority. What we have seen since 9/11 is a very substantial 
increase in executive authority.
    I think an increase of executive authority has been 
necessary to deal with terrorism, which is a major problem 
which confronts us right up to this moment in the United States 
as well as in the reports of Al Qaeda involvement and the 
attempted assassination of the leader of Afghanistan. But there 
have to be--there have to be--limits and there have to be 
balances, and we have not yet had a determination as to whether 
the President was right in taking the position that his 
constitutional authority under Article 2 superseded the 
legislation of the Foreign Intelligence Surveillance Act.
    There is no determination as to whether the President was 
right in ignoring the National Security Act of 1947 in not 
informing the Intelligence Committees of the Terrorist 
Surveillance Program. So I call those matters to your attention 
as very, very major items to be considered. I will not go into 
the State Secrets doctrine, but there may well be legislation, 
if it can overcome a Presidential veto, which will give the 
courts a balancing say in what is a legitimate state secret and 
what is not. I would encourage you, and Federal Judge-to-be 
Lawrence, and Federal Judge-to-be Snow, your records are very 
strong, but I do not want to make any predictions that could 
get you into trouble. But I think your confirmations are very 
highly likely at that time.
    But I commend to you this issue of strength on the 
judiciary, on maintaining a check and balance. Congress has 
been totally ineffective at doing the job. Right now we're in 
the midst of reauthorization of the Foreign Intelligence 
Surveillance Act and the issue is immunity for telephone 
companies. Well, I think the telephone companies have been good 
citizens and I think they ought to be protected, although I 
have to tell you that, for the record, nobody knows exactly 
what they've done.
    In a sense, Congress is being asked to give a pig-in-a-poke 
immunity without knowing what we're immunizing. Those of us in 
key positions have some information. I think it is important 
for the government to have cooperation from the telephone 
companies, but that can be maintained on an amendment which 
would substitute the government as the party defendant so the 
courts are not closed and the telephone companies are 
protected. But I urge you to weigh that very, very heavily 
because the beauty of America is our ability to maintain civil 
rights, at the same time protecting our security.
    Senator Brownback has arrived and he is my replacement 
here, so I'm going to be moving on to other duties. I wanted at 
least one Republican here to guard you against the Chairman.
    [Laughter.]
    Against whom you need no guarding. But as a matter of 
protocol, there ought to be a member of the Minority here at 
all times.
    Senator Brownback. I just want to thank the Senator for his 
confidence.
    [Laughter.]
    Senator Specter. It is total, and it is well placed.
    I leave you with one question for the three of you, on the 
answer I know. In 1982, I was joining Senator Thurmond, who was 
Chairman of the Judiciary Committee, on the confirmation of two 
Pennsylvania Federal District Court judges. Senator Thurmond 
asked the two of them in unison, ``If you are confirmed, do you 
promise to be courteous?'' That's South Carolina for, ``If 
you're are confirmed, do you promise to be courteous?'' I 
thought to myself, that's not exactly a hard-hitting question. 
What do you expect them to say? Both replied, ``Yes.'' Then 
Senator Thurmond went on to say, ``If you're confirmed, the 
more power a person has, the more courteous a person should 
be.'' The more power a person has, the more courteous a person 
should be.
    Whenever I participate in one of these confirmation 
hearings--Senator Thurmond is not around--I ask his question. 
Years later--decades, as a matter of fact--nominees have 
approached me and have said, I was really impressed by the 
Thurmond question that you asked because that black robe is the 
guard-all shield in front of the rest of the world when you're 
presiding. All those litigants have problems, all those lawyers 
have problems. Courtesy is something that cannot be overly 
exercised. There may be, just conceivably, some occasion when 
you're out of sorts someday and you might be inclined to be a 
little tougher on somebody before you. Remember Strom Thurmond.
    Thank you, Mr. Chairman.
    Senator Cardin. We won't require you to answer that because 
you're under oath.
    [Laughter.]
    Senator Brownback?
    Senator Brownback. Thank you very much, Mr. Chairman. I 
want to thank Senator Specter, too, for the thoughts and his 
courage that he's shown to all of us, and is showing us again.
    Gentlemen, thank you very much for being here.
    I mostly wanted to come over to thank the Majority for 
moving these forward. I was presuming that Senator Leahy would 
be here, but that's fine. My good friend, Senator Cardin, I 
know can receive this as well. But thank you for moving these 
forward. I know it--
    Senator Cardin. We sort of heard that from Senator Specter, 
but he put a couple of different twists in it.
    Senator Brownback. Yes. Well, I'm going to leave that for 
whether you move any more. But these, we're very happy that 
we're finally getting some moving on forward. I know several of 
you have waited for some lengthy period of time.
    I also want to thank your families that I know are here. I 
wasn't here for the introduction. But these are family affairs. 
I mean, when you go into this, the family goes onto the bench, 
too. Everybody has their different activities, but it's all 
part of the family now, and it's part of the family lineage, 
too. It's a beautiful thing to go into these family records and 
you can see somebody was a judge, a Federal judge, a Circuit 
Court judge. I mean, that's really is something significant for 
a family tree to have. So, I congratulate you and I thank the 
family members that are here for being a part of this as well.
    I don't have any hard-hitting questions. I looked briefly 
at the papers here. I do think, just as a very quick 
admonition, like what Senator Specter was saying, it is an 
amazingly important position, being a judge in this society. 
When you consider that here the people rule, and then all of a 
sudden in this system when we get a dispute, how do we get that 
resolved? The people rule here. Well, you can't just kind of, 
well, let's get all the people together and we'll have them 
vote on this. That doesn't quite work.
    So, well, let's empower somebody. Well, who do we empower? 
Well, we've got to empower somebody we really trust here to 
resolve this, that the people will trust within the system, 
because there's not enough law enforcement to go around. If the 
people decide they don't start trusting the system, things 
don't work. You are one of the key areas of resort to justice. 
You are the key area of resort to justice that the people have.
    That question of courtesy, I think is actually a pretty 
good one, because you're going to be in a position where you 
could get up, and get up on the wrong side of the bed, and 
maybe not have your second cup of coffee before you're going 
out, and you've got a full docket and you're maybe kind of 
cranky that day. Just, I would hope one would remember that the 
people have entrusted you with this incredible position in this 
society and that it's like we are.
    We're entrusted with an incredible position in this 
society. I just, every day, wake up really happy that I get to 
be in this sort of job, and I hope you can look at it as well 
and treat people with courtesy and respect, and I also might 
add, a big dose of humility. My view is, the further up you get 
called in these systems, the more humility I think a person 
needs to have, because you've just got to realize we aren't the 
be-all and end-all. While we've got these great positions, 
there's a whole bunch of people beside us and behind us and 
just a good dose of humility is, perhaps, one of the best 
things.
    I had a businessman that I thought had the greatest thought 
that somebody in public office can't use. But he said, you 
know, in business, we really don't know anything about the 
future. We don't know anything. We're kind of looking at 
probabilities of what's going to happen, and you're trying to 
project and make the best decision you can for your company.
    Well, you're going to have a lot of facts in front of you, 
but you've just got to have a lot of wisdom with those items 
that come in front of you. Going on a Circuit Court where 
you've got a precedent-setting body, even more so. It affects a 
whole bunch of people in this country, and around the world. I 
always think just a big, good dose of humility is one of the 
best things, just to realize I need a lot of help to be able to 
figure this stuff out and to rely on that help and assistance 
that's around.
    Mr. Chairman, thank you again for moving these nominees 
forward on the hearing. We really appreciate that, and I hope 
we can get you confirmed through the full Senate. Godspeed to 
you.
    Senator Cardin. Thank you, Senator. I join you and Senator 
Specter in your observations on the importance of judicial 
temperament and courtesy.
    Judge Agee, I have just a couple more questions, if I 
might. The Fourth Circuit has the largest number of African-
American citizens of any circuit in the Nation. It was the last 
Circuit to be integrated as far as the judges' appointments. It 
wasn't until President Clinton's recess appointment of Judge 
Roger Gregory in 2000 that the Fourth Circuit finally had an 
African-American judge.
    Given the history, I think it's particularly important that 
this Circuit's sensitivity to minority rights, and the rights 
of all the citizens, are represented on the Court of Appeals.
    My question is somewhat related to a 1990 op-ed that you 
wrote in the Roanoke Times, commenting on the Virginia 
Employment Commission's ruling that gave extra weight to 
minority employment applicants in which I believe you expressed 
disdain for use of a system that adjusts the score solely on 
the basis of race. You used the comparison to a plot of George 
Orwell's 1984.
    My question to you, and you can certainly go beyond 
affirmative action, but I am interested in your views as to the 
appropriateness of affirmative action and the matters that are 
attempts to make sure that all citizens of our State are 
included in all aspects of our society. At times, it's up to 
the courts to help in that regard.
    Judge Agee. Thank you, Senator. The obligation of an 
appellate judge, and mine if I'm accorded the privilege by the 
Senate to serve on the Court of Appeals, is to apply the 
precedent. That is what I have done as a member of the Supreme 
Court of Virginia, and would continue to do if accorded that 
opportunity.
    I have been privileged to serve on two courts that have a 
wide diversity in terms of age, gender, geography, and race. I 
think that has enriched my experience as a member of the 
judiciary. In the approximate same period of time, I was the 
author of a floor amendment in the General Assembly of Virginia 
that passed the legislature, indicating to the Supreme Court 
that they should adopt judicial canons that prohibited judges 
from belonging to any discriminatory club or organization.
    The concern that I think was raised in the op-ed piece that 
you referenced was not so much that the activity was done, but 
it was done without the knowledge of other parts of government 
so there was no opportunity for input from the legislative 
branch, for instance.
    Senator Cardin. Well, I appreciate that answer. That 
clarifies that for me, and I thank you for that because 
practices have been upheld by the courts to try to deal with 
diversity. There has been some erosion, many of us think, over 
recent years. But it is important that the courts are prepared 
to enforce our laws, and I thank you for that response.
    There was one part of your questionnaire that I want to 
give you a chance to clarify for the record, if you would, and 
that's your membership in the Shenandoah Club, which is 
Virginia's oldest continuously operated private club. In your 
Senate questionnaire, in response to a question about whether 
you ever held membership in an organization that discriminates 
on the basis of race, sex, or religion, you answered that the 
Shenandoah Club ``probably discriminated, in fact, during the 
time I was a member.'' Although you resigned from this club in 
1987, which is several years ago, you held membership in the 
club for 8 years prior to your resignation.
    I just want to give you a chance to clarify or add to the 
record in regards to your membership in that organization.
    Judge Agee. I think what is stated on the questionnaire is 
accurate. I think, in fact, the club probably did have 
discriminatory policies during that period of time, and after a 
period of time I resigned.
    Senator Cardin. Were you aware that the club discriminated 
when you joined the club?
    Judge Agee. I can't recall if I had specific knowledge of 
that. Certainly as time went on, it seemed more likely than not 
that that occurred. After some period of time, I resigned.
    Senator Cardin. What was the reason that you resigned?
    Judge Agee. There were a multitude of reasons, and lack of 
openness to the full community was one of them.
    Senator Cardin. Thank you for that response.
    Judge Lawrence, if I could ask you a question about one 
point in your background. You, in 2002, responded in the 
Indianapolis Star that you were looking forward to working in a 
Federal court as opposed to a State court. You said, ``The 
administration of a State court often gets caught up in 
partisan politics.'' I thought that was an interesting comment.
    Could you just, perhaps, clarify for us how you see being a 
Federal judge, following on Senator Specter's point where 
you're going to be called upon to judge, the appropriateness of 
executive actions, which clearly could be interpreted to have 
some partisan aspect to it? Right now, again, we're struggling 
with executive power during extraordinary times. If you could 
just help clarify for us your view as to the politics of being 
on the Federal bench.
    Judge Lawrence. Well, I don't think there is politics. I 
think when you are a judge--and in all candor, any type of 
judge--that you pretty much leave your agenda at the front 
door. I think part of the responsibilities of a judge is to 
provide a canvas that the lawyers can try their case. A judge's 
ideology, preferences, dislikes play no part in the 
decisionmaking process that a judge must render.
    Senator Cardin. And I don't want to get into too much 
detail about your home State, but I take it you do not find 
that comfort level at the State level?
    Judge Lawrence. The judges in Marion County, Indiana were 
elected on a strictly partisan basis. We ran in primaries, we 
attended local political functions, and such as that. We also 
had to raise money, which I was very vocal about not 
particularly caring for. Clearly, the people we were running--
we were asking for money were the very people that were going 
to be appearing in front of us after the election. I thought 
that was very distasteful and I was very vocal about my 
opposition to that.
    Senator Cardin. I appreciate that. I think that clarifies 
it, and I thank you very much for that.
    Judge Snow, I wanted to go back to one of the articles that 
you wrote in 1986. I know that's a long time ago, but it just 
brings up an issue for me that I find interesting.
    This is criticizing a 1984 California decision that 
decriminalized public employee strikes. You said something that 
I just would like to have you at least clarify for me. You 
said, ``A court should not merely consider whether legitimate 
rights are unduly abridged, but whether the court is capable of 
realistically fashioning remedies for their deprivation.''
    Then you go on, ``When, as in this case, granting such 
rights will require constant judicial supervision over an area 
in which the judiciary has little experience and in which the 
judiciary's role is not practically limited by legislation, the 
remedy may be worse than the injustice.''
    I just thought that was an interesting comment. Again, I 
know it was written in 1986. I'd just like you to clarify for 
me. It seems to me that some of the most dramatic court 
decisions dealing with the rights of the disabled, dealing with 
integration of our schools, dealing with the protection of 
constitutional rights, were decisions that were extremely 
difficult to implement and we still haven't gotten that right.
    So I just want to give you a chance, if you might, to 
clarify a statement that was written over 20 years ago, if you 
still remember that statement.
    Judge Snow. Thank you, Mr. Senator. I don't remember the 
statement, but I certainly don't disavow it. I'm sure, as a 
second-year law student, I wrote it. That is--and I still 
believe that if I am fortunate enough to be nominated--and I 
guess over the course of years I've had some experience. If I'm 
fortunate enough to have my nomination confirmed, I'll be in a 
District Court capacity. I guess I still do hew to that 
statement in this respect. It is occasionally the case that a 
judge who oversteps his bounds can do more damage than he does 
good if his remedy sweeps more broadly than the harm.
    Certainly you're correct, that many times--and there are 
instances in our history where a broad remedy has been 
required. We still have a hard time implementing that. The 
advantage you get in being in a District Court is usually 
you're presented with a single problem and you can, I hope, as 
a judge find a single solution to that problem that fits the 
problem and doesn't overstep the judicial bounds, while at the 
same time meeting the requirements of the law.
    Senator Cardin. Well, I thank you for that clarification. I 
will point out that some of the most far-reaching decisions 
have been reached by District Court judges.
    Judge Snow. That's true.
    Senator Cardin. So you are going to be confronted with the 
issue of implementation of a judicial order, which may not be 
easy, it may be difficult to determine, but the overriding 
constitutional issues may require you to seek a remedy that the 
legislature and the executive branch have not done. So, I don't 
think you can avoid this. I'd just urge you to be passionate 
about the Constitution.
    Judge Snow. Thank you. I will do my best.
    Senator Cardin. Thank you.
    Senator Brownback, anything further?
    Senator Brownback. Yes, if I could, Mr. Chairman. One more 
just for Judge Agee, if I could.
    You were asked about your membership in the Shenandoah 
Club. I was curious, and I appreciate your actions that you 
took after that. Are there any other actions you've taken to 
show commitment to equality for all people in the various 
positions or social activities you've been involved in?
    Judge Agee. Thank you, Senator, for the question. During my 
time in the General Assembly of Virginia, I introduced an 
amendment to a particular piece of legislation that dealt with 
the judicial canons with respect to judicial membership in 
discriminatory clubs. That was about 1990 or 1991. I had the 
privilege, during my private practice, to represent some 
plaintiffs in race discrimination cases.
    I think my record on the Supreme Court of Virginia and on 
the Court of Appeals of Virginia demonstrates my commitment to 
equal access and equal opportunity to present the case before 
the court. I've had a long private involvement with a number of 
charitable organizations that deal with wide segments of 
society.
    I've been on the Board of Directors of the Free Clinic in 
the Roanoke Valley for over 20 years that serves a large 
economically disadvantaged group of folks. I've been very 
active with my Rotary Club for over 25 years in all of the 
community activities it undertakes. I've been a member of the 
Board of Trustees of my undergraduate college now for over two 
decades, and we have also taken significant action with respect 
to increasing the diversity of the student body at the school, 
and also the diversity of the faculty.
    Senator Brownback. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator.
    A couple final points from me. That is, Judge Agee, the 
Miranda rights decision, you have been critical about. I want 
to give you a chance, if you might, to express your views as it 
relates to the courts' requirements in regards to Miranda 
rights for criminal defendants.
    Judge Agee. I have always applied the precedent set by the 
Supreme Court of the United States in my decisions as a member 
of the Supreme Court of Virginia and the Court of Appeals of 
Virginia. I can't recall any particular instance of criticism 
of Miranda. In particular cases there may be fact-driven 
instances that may stand out for peculiar treatment, but I've 
always accorded the decisions of the Supreme Court the 
precedent that they're due in my judicial decisions, and would 
continue to do so if accorded the privilege of sitting on the 
Court of Appeals.
    Senator Cardin. Thank you.
    My staff has informed me that you have been critical at 
times of the Attorney General of Virginia on giving the advice 
that the Governor always wanted rather than independent advice. 
I take it from that, it's a good sign of what Senator Specter 
was talking about as far as the independence of the judiciary. 
We've had some problems with the secret opinions given by the 
Attorney General to the President, which has been the basis of 
what we call secret laws, allowing the President certain powers 
that we don't know about, no one knows about, because these are 
opinions that are classified and are never brought to light.
    I would hope that the judicial branch of government would 
be sensitive to the legitimate needs of the President and the 
executive branch to conduct affairs of this country during very 
extraordinary times, but that we have a Constitution for a good 
reason. The need for openness is very important. I was 
impressed, Judge Agee, with your view on the affirmative action 
decision, that it was not a transparent process. I agree with 
you, it should be a transparent process.
    People should know what is going on and have a chance to 
review it. But that also holds for executive power. I would 
hope that the responses that you've given today are an 
indication of each of your commitments to the independence of 
the judicial branch of government, and to do what is right 
under our Constitution, not just because one branch or another, 
whether it's the legislative branch or the executive branch, 
believes it's right, although I certainly hope you would uphold 
any statute that I happen to be the sponsor of.
    Senator Brownback, any further questions?
    Senator Brownback. I don't think so. Thank you, Chairman.
    Senator Cardin. Let me point out that the record will 
remain open for written questions that may be propounded by 
members of the Committee to you, and we would ask that you try 
to get those responses back as quickly as possible, if 
questions are propounded, so that we can schedule action on 
your nominations as soon as we can get all that information 
together.
    If there are no further questions, the Committee will stand 
adjourned. Thank you all very much.
    [Whereupon, at 3:34 p.m. the hearing was adjourned.]
    [Submissions for the record follows:]

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