[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
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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
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Washington, DC 20402-0001
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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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