[Senate Hearing 110-138, Part 4]
[From the U.S. Government Publishing Office]
S. Hrg. 110-138, pt.4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
----------
MAY 7, JUNE 11, SEPTEMBER 9, AND SEPTEMBER 23, 2008
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PART 4
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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. 4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MAY 7, JUNE 11, SEPTEMBER 9, AND SEPTEMBER 23, 2008
__________
PART 4
__________
Serial No. J-110-8
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
48-894 PDF WASHINGTON : 2009
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
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May 7, 2008
STATEMENT OF COMMITTEE MEMBER
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement and letter................................ 297
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 4
PRESENTERS
Levin, Hon. Carl, a U.S. Senator from the State of Michigan
presenting Helene N. White, Nominee to be Circuit Judge for the
Sixth Circuit, Raymond M. Kethledge, Nominee to be Circuit
Judge for the Sixth Circuit and Stephen Joseph Murphy III,
Nominee to be District Judge for the Eastern District of
Michigan....................................................... 6
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan
presenting Helene N. White, Nominee to be Circuit Judge for the
Sixth Circuit, Raymond M. Kethledge, Nominee to be Circuit
Judge for the Sixth Circuit and Stephen Joseph Murphy III,
Nominee to be District Judge for the Eastern District of
Michigan....................................................... 8
STATEMENTS OF THE NOMINEES
Kethledge, Raymond M., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 78
Questionnaire................................................ 79
Murphy, Stephen Joseph, III, Nominee to be District Judge for the
Eastern District of Michigan................................... 106
Questionnaire................................................ 108
White, Helene N., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 9
Questionnaire................................................ 10
QUESTIONS AND ANSWERS
Responses of Raymond M. Kethledge to questions submitted by
Senator Grassley............................................... 178
Responses of Stephen Joseph Murphy III to questions submitted by
Senator Grassley............................................... 181
Responses of Helene N. White to questions submitted by Senators
Brownback, Coburn, Grassley, Hatch, Kyl, Sessions, Specter and
Cornyn......................................................... 183
SUBMISSIONS FOR THE RECORD
American Bar Association, Chicago Illinois
Michael S. Greco, October 31, 2005, letter................... 291
C. Timothy Hopkins, May 6, 2008, letter...................... 293
June 11, 2008
STATEMENTS OF COMMITTEE MEMBERS
Brwonback, Hon. Sam, a U.S. Senator from the State of Kansas..... 304
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 303
STATEMENTS OF THE NOMINEES
Gardephe Paul G., To be U.S. District Judge for the Southern
District of New York........................................... 305
Questionnaire................................................ 306
Matsumoto Kiyo A., To be U.S. District Judge for the Eastern
District of New York........................................... 344
Questionnaire................................................ 346
Seibel Cathy, To be U.S. District Judge for the Southern District
of New York.................................................... 377
Questionnaire................................................ 378
Suddaby Glenn T., To be U.S. District Judge for the Northern
District of New York........................................... 412
Questionnaire................................................ 414
SUBMISSIONS FOR THE RECORD
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York presenting Kiyo Matsumotot, Cathy Seibel, Paul
Gardephe and Glenn Suddaby to the Federal Bench................ 447
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont
presenting Kiyo Matsumotot, Cathy Seibel, Paul Gardephe and
Glenn Suddaby to the Federal Bench............................. 449
September 9, 2008
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 720
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 453
prepared statement........................................... 735
Specter, Hon. Alren, a U.S. Senator from the State of
Pennsylvania................................................... 455
PRESENTERS
Allard, Hon. Wayne, a United States Senator from the State of
Colorado presenting of Christine Arguello, Nominee to be
District Judge for the District of Colorado, and Philip A.
Brimmer, Nominee to be District Judge for the District of
Colorado....................................................... 459
Bennett, Hon. Robert F., a United States Senator from the State
of Utah presenting Clark Waddoups, Nominee to be District Judge
for the District of Utah....................................... 457
Hatch, Hon. Orrin G., a United States Senator from the State of
Utah presenting Utah of Clark Waddoups, Nominee to be District
Judge for the District of Utah................................. 456
Salazar, Hon. Ken, a United States Senator from the State of
Colorado presenting of Christine Arguello, Nominee to be
District Judge for the District of Colorado, and Philip A.
Brimmer, Nominee to be District Judge for the District of
Colorado....................................................... 461
Specter, Hon. Arlen, a United States Senator from the State of
Pennsylvania presenting Gregory G. Garre, Nominee to be
Solicitor General of the United States......................... 463
STATEMENTS OF NOMINEES
Anello, Michael M., Nominee to be District Judge for the Southern
District of California......................................... 547
Questionnaire................................................ 548
Arguello, Christine M., Nominee to be District Judge for the
District of Colorado........................................... 624
Questionnaire................................................ 625
Brimmer, Philip A., Nominee to be District Judge for the District
of Colorado.................................................... 667
Questionnaire................................................ 669
Garre, Gregory G., Nominee to be Solicitor General of the United
States......................................................... 503
Questionnaire................................................ 507
Scriven, Mary Stenson, Nominee to be District Judge for the
Middle District of Florida..................................... 583
Questionnaire................................................ 585
Waddoups, Clark, Nominee to be District Judge for the District of
Utah........................................................... 465
Questionnaire................................................ 466
QUESTIONS AND ANSWERS
Responses of Gregory G. Garre to questions submitted by Senator
Durbin......................................................... 698
SUBMISSIONS FOR THE RECORD
Clement, Paul D., Acting Solicitors General of the United States,
and Walter E., Dellinger, III, Theodore B. Olson and Barbara D.
Underwood, former Solicitors General of the United States...... 721
Congressional Research Service, Denis Steven Rutkus, Specialist
of the Federal Judiciary and Kevin M. Scott, Analyst on the
Federal Judiciary, Government and Finance Division, Washington,
D.C............................................................ 723
Martinez, Hon. Mel, a U.S. Senator from the State of Florida,
statement...................................................... 743
Millett, Patricia A., Akin Gump Strauss Hauer & Feld LLP,
Washington, D.C., letter....................................... 744
Salazar, Hon. Ken, a U.S. Senator from the State of Colorado,
statement...................................................... 745
September 23, 2008
STATEMENTS OF COMMITTEE MEMBERS
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas,
prepared statement............................................. 965
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 749
prepared statement........................................... 970
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 751
WITNESSES
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas
presenting Eric F. Melgren a Nominee to be District Judge for
the District of Kansas......................................... 752
Casey, Hon. Robert, Jr., a U.S. Senator from the State of
Pennsylvania presenting C. Darnell Jones, II, a Nominee to be
District Judge for the Eastern District of Pennsylvania,
Mitchell S. Goldberg a Nominee to be District Judge for the
Eastern District of Pennsylvania, and Joel H. Slomsky a Nominee
to be District Judge for the Eastern District of Pennsylvania.. 753
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas
presenting Eric F. Melgren a Nominee to be District Judge for
the District of Kansas......................................... 754
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Anthony J. Trenga a Nominee to be District Judge for
the Eastern District of Virginia............................... 752
Webb, Hon. Jim, a U.S. Senator from the State of Virginia
presenting Anthony J. Trenga a Nominee to be District Judge for
the Eastern District of Virginia............................... 754
STATEMENTS OF NOMINEES
Goldberg, Mitchell S., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 841
Questionnaire................................................ 842
Jones, C. Darnell, II, Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 811
Questionnaire................................................ 812
Melgren, Eric F., Nominee to be U.S. District Judge for the
District of Kansas............................................. 907
Questionnaire................................................ 908
Slomsky, Joel H., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 869
Questionnaire................................................ 870
Trenga, Anthony J., Nominee to be U.S. District Judge fo the
Eatern District of Virginia.................................... 755
Questionnaire................................................ 757
QUESTIONS AND ANSWERS
Responses of Eric F. Melgren to questions submitted by Senator
Kennedy........................................................ 960
SUBMISSIONS FOR THE RECORD
Casey, Robert P., Jr., a U.S. Senator from the State of Kansas,
statement...................................................... 968
Warner, Hon. John, a U.S. Senator from the State of Virginia,
statement...................................................... 973
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas,
statement...................................................... 972
Webb, Hon. Jim, a U.S. Senator from the State of Virginia,
statement...................................................... 977
ALPHABETICAL LIST OF NOMINEES
Anello, Michael M., Nominee to be District Judge for the Southern
District of California......................................... 547
Arguello, Christine M., Nominee to be District Judge for the
District of Colorado........................................... 624
Brimmer, Philip A., Nominee to be District Judge for the District
of Colorado.................................................... 667
Gardephe Paul G., To be U.S. District Judge for the Southern
District of New York........................................... 305
Garre, Gregory G., Nominee to be Solicitor General of the United
States......................................................... 503
Goldberg, Mitchell S., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 841
Jones, C. Darnell, II, Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 811
Kethledge, Raymond M., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 78
Matsumoto Kiyo A., To be U.S. District Judge for the Eastern
District of New York........................................... 344
Melgren, Eric F., Nominee to be U.S. District Judge for the
District of Kansas............................................. 907
Murphy, Stephen Joseph, III, Nominee to be District Judge for the
Eastern District of Michigan................................... 106
Scriven, Mary Stenson, Nominee to be District Judge for the
Middle District of Florida..................................... 583
Seibel Cathy, To be U.S. District Judge for the Southern District
of New York.................................................... 377
Slomsky, Joel H., Nominee to be U.S. District Judge for the
Eastern District of Pennsylvania............................... 869
Suddaby Glenn T., To be U.S. District Judge for the Northern
District of New York........................................... 412
Trenga, Anthony J., Nominee to be U.S. District Judge fo the
Eatern District of Virginia.................................... 755
Waddoups, Clark, Nominee to be District Judge for the District of
Utah........................................................... 465
White, Helene N., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 9
NOMINATION OF HELENE N. WHITE, OF MICHIGAN, TO BE CIRCUIT JUDGE FOR THE
SIXTH CIRCUIT; RAYMOND M. KETHLEDGE, OF MICHIGAN, TO BE CIRCUIT JUDGE
FOR THE SIXTH CIRCUIT; AND STEPHEN JOSEPH MURPHY III, OF MICHIGAN, TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN
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WEDNESDAY, MAY 7, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:11 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Cardin, Specter, Hatch, Grassley,
Kyl, Sessions, Cornyn, Brownback, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. I have been speaking during
the last several weeks about the progress we have made and are
making in repairing the terrible damage done to our
confirmation process and about our progress in reducing
judicial vacancies.
The American people do not want judicial nominations rooted
in partisan politics. They want Federal judges who understand
the importance of an independent judiciary. Our independent
courts are a source of America's strength, endurance and
stability. Our judicial system has been the envy of the world.
The American people expect the Federal courts to be impartial
forums where justice is dispensed without favor to the right or
the left or to any political party or faction. They are the
only lifetime appointments in our Government, and as a result,
these nominations matter a great deal. The Federal judiciary is
the one arm of our Government that should never be politicized
or made political, regardless of whether we have a Democratic
President or a Republican President.
Now, today we see a demonstration of the progress about
which I have been speaking and for which I have been working.
Today's hearing moves us closer to confirming President Bush's
nominations to the last two vacancies on the Sixth Circuit
Court of Appeals. This completes the task I began when I became
Chairman in the summer of 2001, when the Sixth Circuit was in
turmoil and nominations had been road-blocked for years. At
that point there were four vacancies on the Sixth Circuit. I
thought I would go through some of this history for those who
may be new to all this or may not remember this.
When I scheduled a hearing and a vote for Judge Julia Smith
Gibbons, and then for Judge John Marshall Rogers, we were able
to break an impasse that had lasted for 5 years. The other
party had blocked all of President Clinton's nominees. I
quickly moved to President Bush's. And if we confirm Judge
White and Mr. Kethledge, that would complete the process by
filling the two remaining vacancies on the Sixth Circuit.
I continue in this Congress, and I will continue with a new
President in the next Congress, to work with Senators from both
sides of the aisle to ensure that the Federal judiciary remains
independent and able to provide justice to all Americans,
without fear or favor.
The Michigan vacancies on the Sixth Circuit have proven a
great challenge. I do want to commend Senator Levin and Senator
Stabenow for working to end the impasse. I have urged the
President to work with the Michigan Senators and, after 7
years, he has. Last month our extensive efforts culminated in a
significant development that can lead to filling the last two
vacancies on the Sixth Circuit, both vacant so long that they
have now been classified as ``judicial emergencies.''
This accomplishment stands in sharp contrast to the actions
of my friends, the Senate Republicans who refused to consider
any--any--of the highly qualified nominations to the Sixth
Circuit Court of Appeals during the last 3 years of the Clinton
administration. Those nominees included Judge White; also,
Kathleen McCree Lewis, an accomplished attorney and the
daughter of former Solicitor General of the United States and
former Sixth Circuit Judge Wade McCree; and Professor Kent
Markus. Professor Kent Markus was supported by his home-State
Senators, both Republicans.
So, accordingly, I am delighted to welcome Judge Helene
White to the Committee. Judge White has served on the Michigan
Court of Appeals during the past 15 years, having been elected
by the people of Michigan in 1992. Before that she served for a
dozen years on the Wayne County Circuit Court, a court of
general trial jurisdiction, the Common Pleas Court for the city
of Detroit, and the 36th District Court of Michigan. But here
is how she is described by the Bush White House on their
website. President Bush's website described her as ``an
experienced and highly qualified judge, who is known for her
intellect, work ethic, and demeanor.'' I do not want to upset
President Bush by saying this, but I totally agree with the
President on this issue. In addition, she has been active as a
member of the legal community and of community organizations
including COTS, the Coalition on Temporary Shelter, something
my wife and I support in Burlington, Vermont; JVS, Jewish
Vocational Services; and the Metropolitan Detroit Young Women's
Christian Association.
Now, she was first nominated by President Clinton to a
vacancy on the Sixth Circuit in January 1997, more than 11
years ago, but the Republican-led Senate refused to act on her
nomination. She waited in vain for 1,454 days for a hearing,
before her nomination was withdrawn in March of 2001. Hers was
one of the scores--actually, about 60--of qualified judicial
nominees who were pocket filibustered during that time. But as
I said, last month President Bush reconsidered, renominated
her, and according to his website has very high praise for her.
Our second Sixth Circuit nominee is Raymond Kethledge. Mr.
Kethledge is a young man who has spent 8 years in legal
practice in Michigan beginning as an associate in the
litigation department of Honigan Miller Schwartz and Cohn,
later as a partner at the boutique litigation firm of Feeney
Kellett Weinner and Bush and, since the summer of 2003, as a
founding member of his own firm, that of Bush Seyferth
Kethledge and Paige. He also spent a year as an in-house
counsel at Ford Motor Company in their general counsel's
office. I am also glad to see that he has performed pro bono
legal services, something I have always thought lawyers should
do and something that the managing partner in the law firm I
was in when I first came out of law school insisted that
everybody perform pro bono service, as did he.
Our third nomination for consideration today is the
President's recent nomination of Stephen Joseph Murphy III to
be a United States District Judge for the Eastern District of
Michigan. That vacancy is also classified as a ``judicial
emergency.''
When on April 15 he announced the renomination of Judge
White, I commended the President. Since then I have sought to
expedite consideration of these Michigan nominees in
recognition of the breakthrough represented by the agreement
reached between the President and the Michigan Senators. The
Michigan Senators have always been interested in a bipartisan
solution to judicial vacancies on the Sixth Circuit. I
remember, Senator Levin, you had worked, and Senator Stabenow,
with former Governor Engler, actually a Republican Governor,
and reached an agreement that he was strongly in favor of but
was rejected by the White House. And you had previously
proposed a bipartisan commission as a way to reach consensus in
Michigan. Today, I thank and commend the Senators from
Michigan, and again I thank the President for finally working
with them and us.
In light of that cooperation, we have taken extraordinary
steps to expedite this hearing. I thank all members for their
cooperation. I recently received a letter from Senator
McConnell and Senator Specter in which they note the importance
of our receiving updated ABA peer reviews for these new
nominations. I want Senator Specter to know that I agree with
him that those are important. The ABA Standing Committee has
been working diligently to provide reviews on the recent
nomination of Justice Steven Agee to the Fourth Circuit as well
as other nominations. They have been helpful, and we appreciate
their efforts. Given the ABA ratings we have received in
connection with the prior nominations of Judge White and Mr.
Murphy, I expect the new ratings will not present a concern
about qualifications. As I have assured Senators McConnell and
Specter, I will seek to ensure that we proceed in an orderly
fashion, that all Senators have a fair opportunity to question
the nominees, and that we have all the materials we need in
order to fairly consider these nominations.
Now, I am sure there are some who prefer partisan fights
designed to energize a political base during an election year.
I do not. The Republican Senate majority during the last 5
years of the Clinton administration more than doubled vacancies
on our Nation's circuit courts. They went from 12 to 26 to 32
during the transition. We have been able to reverse that trend.
We have reduced circuit vacancies by almost two-thirds. Today
there are fewer circuit court vacancies than at any time since
the 1996 session. In fact, our work has led to a reduction in
vacancies in nearly every circuit. We are heading toward
reducing circuit court vacancies to single digits for the first
time in decades. With these nominations, we are also poised to
add the Sixth Circuit to the other five circuits without a
single vacancy, thanks to our efforts.
I am determined to prioritize progress, not politics, and
focus the Committee on those nominations on which we actually
can make progress, those on which the White House has finally
begun to work with the Senate. Of course, the alternative is to
risk becoming embroiled in contentious debates for months and
then foreclose any of the progress we have made. We saw it
happen last year when we had a controversial nomination took
5\1/2\ months of debate after a hearing before Senate action
was possible. We saw what happened during the last several
months of the last Congress. There were many hearings on many
controversial nominations, and everything slowed up. I like to
make progress, and that is what we have tried to do. And during
the years that I have been privileged to serve as Chairman of
this Committee, we have been able to.
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
I think that it bears repeating that we are approaching a
hearing for Judge White which does not conform with the
practices of the Committee and is an unusual rush to judgment.
I begin with the letter sent to the Chairman and me yesterday
from the American Bar Association raising concerns and
objecting to the hearing in advance of the ABA report.
I look at the sequence with Judge White's nomination on
April 15th of this year, 21, 22 days ago; the questionnaire not
completed until April 25th; FBI report not completed until
April the 25th; and at the time sequence where nominations have
been handled in the past with deliberation and not this
racetrack approach.
The comments in 2001 were noted in the ABA publication
which said, ``Several key Democratic Senate leadership, most
significantly Patrick J. Leahy of Vermont, say that''--
Chairman Leahy. Leahy. Not Leehy. Leahy.
Senator Specter. Excuse me, but I have the floor.
Chairman Leahy. I just want to--
Senator Specter. Excuse me. I know that is not regarded
around here, Mr. Chairman, but I have the floor. If you have a
correction, you may have a chance to do it.
`` * * * say that they will wait for the ABA's input before
moving forward on any nomination.''
When a hearing was scheduled for Peter Keisler 33 days
after his nomination, all of the Committee Democrats signed a
letter to me asking for a postponement. One of the concerns
was, ``Given how quickly the Keisler hearing was scheduled, the
ABA has not even completed its evaluation of this nominee.''
The letter said, ``We should not be scheduling hearings for
nominees before the Committee has received the ABA ratings.''
Senator Schumer said, ``So let me reiterate some of the
concerns we expressed about proceeding so hastily on this
nomination. First, we have barely had time to consider the
nominee's record. Mr. Keisler was named to this seat 33 days
ago, so we are having this hearing with astonishing and
inexplicable speed.'' That does not compare with the speed of
this hearing.
The situation is even in more stark contrast when we take a
look at how long people have been waiting for hearings or
action by the Committee. Peter Keisler's nomination has been
pending for more than 675 days. Robert Conrad has waited 290
days for a hearing and has been the subject of critical, really
defamatory statements in this Committee room about being anti-
Catholic without being given a chance to defend himself.
Stephen Matthews, to the Fourth Circuit with a judicial
emergency, has been waiting over 240 days.
Since the hearing has been scheduled, the Republican
members are prepared to proceed. We have accommodated
schedules. I met for the better part of an hour yesterday with
Judge White. But it would be my hope that the Committee will
schedule hearings for others like Conrad and Matthews and
others.
It is hard to see the judicial wars being exacerbated and
intensified in the U.S. Senate, but I see that coming if, as
stated, this is the last of the circuit court nomination
hearings. This has been a battle to the detriment of the
American people for the last 20 years. In the last 2 years of
the Reagan administration, the Democrats controlled and
stonewalled. The same in the last 2 years of the Bush I
administration. And in the last 6 years of the Clinton
administration, Republicans were even worse. Hard to be worse,
but Republicans were. And I voted with the Clinton nominations
when they were qualified. And the Senate almost came apart in
2005 with the filibusters and the so-called constitutional or
nuclear option.
And it had been my hope that Senator Leahy and I would have
structured a new era in the Senate. In the Roberts hearing,
Senator Leahy took a courageous leadership position supporting
Roberts for Chief Justice. Counting the Independent in the
Senate, a majority of the Democrats, 23, voted for Roberts. And
it had been my hope that we would come to a truce. But the
warfare goes on, and the American people are in the firing
line.
There are judicial emergencies all over this country,
exemplified by the Fourth Circuit where people need a day in
court and are not getting it, people who have automobile
accidents and are out of work and have medical bills, cannot
get redress in the courts. Verdicts cannot be heard on appeal.
We do not have to paint a graphic picture of what judicial
vacancies mean. And this is all to the detriment of the
American people. But I tell you, Mr. Chairman, a longstanding
trend of some 40 years that is becoming very, very personal,
and if it continues, there is going to be a new Congress, there
may be a President of a different party, and what has happened
will look modest in comparison to what the scorched earth may
be.
So I would urge you to reconsider. I would urge you to use
some of the approach which you and I took to the confirmation
of Roberts and Alito. When the White House wanted to have the
Roberts hearings begin on August 28th, I consulted with you,
and I thought your objections were sound. And the hearings
began after Labor Day. Your view prevailed because I thought it
was right over the White House view. Similarly, the White House
wanted Alito--I know the time, Mr. Chairman. I also know when
you arrived. The White House wanted Alito confirmed before
Christmas, and you objected, and you were right. And I agreed
with you. Later, the President personally told me that the
timing was correct. So here you see, Senator Leahy, you and he
have agreed more than once--not much more than once, but
occasionally more than once.
But I do hope for the sake of the country and for the sake
of the Senate that you reconsider this nomination-confirmation
process. Thank you.
Chairman Leahy. Well, thank you. I am glad to hear the
President said that about the timing to you. I wish he had said
it to me. In fact, he seemed surprised several months after the
Roberts nomination--when I told him I had voted for Roberts, he
seemed surprised to hear that I had.
I would note on the ABA, we are not going to vote on any of
this until the ABA reports are in. As you know, there is a
precedent for this. When you were Chairman, we held five
hearings under you as Chairman before ABA ratings came in,
including one where the rating turned out that the person was
not qualified. And I know that people have been waiting. Judge
Helene White has been waiting for 11 years. Mr. Kethledge and
Mr. Murphy have been pending longer than Conrad and Matthews
that you mentioned on their own terms here in Michigan. But
let's hear from one of the most senior members of the Senate,
Senator Levin--he has been very patiently waiting--and Senator
Stabenow.
PRESENTATION OF HELENE N. WHITE, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SIXTH CIRCUIT; RAYMOND M. KETHLEDGE, NOMINEE TO BE
CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; AND STEPHEN JOSEPH MURPHY
III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
MICHIGAN, BY HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF
MICHIGAN
Senator Levin. Mr. Chairman, thank you and Senator Specter
and members of the Committee for holding the hearing today. We
are pleased to be here to introduce three Michigan nominees:
Helene White and Raymond Kethledge, whom the President has
nominated to the Sixth Circuit Court of Appeals; and Stephen
Murphy, whom the President has nominated to the Eastern
District of Michigan.
Judge White has been a judge on the Michigan State Court of
Appeals for 15 years. Before that, she served as judge on the
Wayne County Circuit Court, which is our top trial court, for
10 years. She graduated with honors from Barnard College,
Columbia University, and earned her J.D. at the University of
Pennsylvania Law School.
Judge White, as the Chairman mentioned, was previously
nominated by President Clinton for a vacancy on the Sixth
Circuit starting in 1997. The nominations were returned to the
President without a hearing, as was the nomination of Kathleen
McCree Lewis. And I want to make reference to Kathleen McCree
Lewis here today for two reasons. First, I want to honor her
memory in this setting. I also want to make reference to her
because there is, in a letter which you have received from the
widower of Judge Susan Bieke Neilson, whose vacancy is up for
nomination today, a letter to the Chairman and the Ranking
Member of this Committee from Judge Neilson's husband. And
Judge Neilson served on the Sixth Circuit for a tragically
short period of 3 months, and, again, it is her seat on the
Sixth Circuit that is the open seat to which Judge White has
been nominated. This is a few excerpts from the letter from
Jeff Neilson, who is the spouse, the widower of Judge Neilson.
``Senators Leahy and Specter: I thought it appropriate to
correspond with you upon my becoming aware of the nomination of
Judge White to fill the vacancy on the United States Court of
Appeals for the Sixth Circuit occasioned by the death of my
wife, Susan Bieke Neilson, and to state without reservation
that Susan would be absolutely delighted that Helene would be
her successor on the Sixth Circuit.'' And then he makes
reference to their fondness for Kathy McCree Lewis, and he
closes by saying, ``I believe that Helene will reflect the best
qualities of both Susan and Kathleen in the performance of her
duties, so that although death has precluded their presence on
the Sixth Circuit, they will be there in spirit.''
The second nominee is Ray Kethledge. He is currently a
partner at Bush Seyferth Kethledge and Paige in Troy, Michigan.
Before joining the firm, Mr. Kethledge served as a law clerk to
Justice Anthony Kennedy on the U.S. Supreme Court, having
earlier clerked for Judge Ralph Guy of the U.S. Court of
Appeals for the Sixth Circuit, a very beloved judge. Mr.
Kethledge also served as judiciary counsel to Senator Spence
Abraham, our former colleague, whom we all know, from 1995 to
1997, and Ray Kethledge graduated magna cum laude from the
University of Michigan Law School in 1993.
Finally, Stephen Murphy, who has been nominated to the
District Court for the Eastern District of Michigan, currently
serves as the U.S. Attorney for the Eastern District. Prior to
his service as United States Attorney, Mr. Murphy was an
attorney with General Motors' legal staff in Detroit and worked
for the U.S. Department of Justice for more than 12 years. He
is a 1987 graduate of the St. Louis University School of Law.
Finally, I want to again thank this Committee for your
efforts to promote a resolution of this long unresolved matter,
and I look forward to working with our colleagues to move these
three nominations hopefully through the Senate.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Levin.
Senator Stabenow.
PRESENTATION OF HELENE N. WHITE, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SIXTH CIRCUIT; RAYMOND M. KETHLEDGE, NOMINEE TO BE
CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; AND STEPHEN JOSEPH MURPHY
III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
MICHIGAN BY HON. DEBBIE STABENOW, A U.S. SENATOR FROM THE STATE
OF MICHIGAN
Senator Stabenow. Well, thank you, Mr. Chairman, for
holding this hearing, and while we all recognize the checkered
past as it relates to judicial nominations, I would, with all
due respect, just indicate that we have here today two
Democratic Senators that are here introducing the President's
nominations. And it seems to me this is the process that we
want to have happen, for people to be coming together. And I
hope this is viewed as a positive reflection of the process of
working together.
I am very pleased to join Senator Levin in being here to
welcome and introduce Judge Helene White and Mr. Raymond
Kethledge and also Mr. Stephen Murphy III and their families.
It is wonderful to see their families and children, and we know
this is a very special day for all of them.
As has been indicated, Judge Helene White brings 30 years
of distinguished legal experience to the Federal bench. She has
been a State judge since 1981, has served on both the 36th
District Court for the city of Detroit and Wayne County Circuit
Court. Since 1992, she has served on the Michigan Court of
Appeals. She is a graduate of the University of Pennsylvania
Law School and the Barnard College at Columbia University. I
want to welcome Judge White and her family. It was wonderful to
meet her two children today.
Mr. Raymond Kethledge graduated from the University of
Michigan and the University of Michigan Law School. I have to
say as a Michigan State University graduate, this is a real
historic moment here that I am supporting a University of
Michigan graduate. Mr. Kethledge has worked for Senator Spence
Abraham as his judicial counsel and followed that by clerking
for both Justice Kennedy on the Supreme Court and Judge Ralph
Guy on the Sixth Circuit of Appeals, and he is currently in
private practice. So we want to welcome Mr. Kethledge and his
family as well, and I was so pleased to meet his son and
daughter today as well. We know it is a special day for them.
And, finally, I would like to introduce Stephen Murphy. He
is a graduate of St. Louis University School of Law. Mr.
Murphy's practice as both a Federal prosecutor and defense
attorney in his practice, business litigation as an attorney
for General Motors. Since 2005, he has served as the U.S.
Attorney for the Eastern District of Michigan. Mr. Chairman, we
welcome Mr. Murphy and his family as well, and very much
appreciate your taking the time of the Committee for this
hearing.
Thank you.
Chairman Leahy. Well, thank you very much, and I know both
of you, I understand, have other committees you are supposed to
be at, so I appreciate your being here. Thank you.
As Senator Levin and Senator Stabenow step down, we will
just take a minute so we can set up to have the three nominees
come back up to the table. Thank you very, very much.
Chairman Leahy. Would you please stand and raise your right
hand? Do you solemnly swear that the testimony you will give in
this matter will be the truth, the whole truth, and nothing but
the truth, so help you God?
Judge White. I do.
Mr. Kethledge. I do.
Mr. Murphy. I do.
Chairman Leahy. Thank you. Please be seated.
Traditionally what we do at this point is ask for any
opening statement from any one of you, and the tradition is I
would ask you to be brief. But I would ask you in doing that if
you would first--and let's begin with you, Judge White--if you
have members of your family or associates or friends who are
here, please introduce them, because that actually goes into
the record, and someday in the White Library or the Kethledge
Library or the Murphy Library, somebody will look back there
and say, ``I was there at that hearing.''
Judge White, go ahead. Do you have family members here?
Judge White. I do.
Chairman Leahy. Please introduce them. There should be a
little red button. If the light comes on, it is on. He is going
to show you. Okay. Go ahead.
STATEMENT OF HELENE N. WHITE, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT
Judge White. Thank you very much, Chairman Leahy. I will
then begin by introducing the friends and family who have
joined me today. Over the years, I have been blessed with their
love and support, and I am honored that they took the time to
come today.
I have some friends from Michigan who are with me: Jane
Schelberg, Cathy Radner, and Elaine Fieldman. And I have
friends, I have extended family: from Washington State Amy
Regan, and from Washington, D.C., Josh Levin and his family.
And, of course, I have my immediate family, and that would be
my sister and her husband, Nancy and Larry Roth, from New York;
and my precious children, Benjamin and Francesca. And I omitted
my friends from law school: Nancy Walters from Boston, and Ruth
Katz from Washington, D.C.
Chairman Leahy. When you get a copy of the transcript, you
can double-check the spelling of the names, because they will
all be interested in. I am delighted to see your children here.
I have a granddaughter named Francesca. That is a wonderful
name.
Judge White. And I would like to thank you, Chairman Leahy,
Ranking Member Specter, members of the Committee, for this
opportunity to appear before you. And I would like to take this
moment to express my deep gratitude to President Bush for
nominating me to this high office. I am both awed and honored
and humbled by the trust that he has placed in me by making
this nomination.
Chairman Leahy. Thank you. Is that it?
Judge White. Yes, sir. Thank you.
[The biographical information follows.]
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8Chairman Leahy. Thank you.
Mr. Kethledge, would you please tell us if you have members
here?
STATEMENT OF RAYMOND M. KETHLEDGE, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SIXTH CIRCUIT
Mr. Kethledge. Yes, thank you, Mr. Chairman. I would like
to introduce my wife, Jessica; my daughter, Ella; my son, Ray.
I am also joined by--I am going to get in trouble if I forget
anyone here. I am joined by--
Chairman Leahy. That is why we keep the record open, Mr.
Kethledge.
[Laughter.]
Chairman Leahy. And at some point, you can say, ``See, you
did not hear me say your name, but here it is in the record.''
Go ahead.
Mr. Kethledge. I am joined by my father, Ray Kethledge; my
sister, Laura Strasius; and my mom, Diane Kethledge. I am also
honored to have with me today two of my partners who made the
trip out from Michigan: Patrick Seyferth, who loves attention,
and Rick Paige. And I am joined by a whole bunch of other
friends: Jim Neill, Ward Bobitz, Steve Hessler, Karen Lloyd--
now I am going to forget somebody. They know who they are, and
I am grateful that they are here.
I would like to thank the Chairman, I would like to thank
the Committee for having this hearing. I would like to thank
the President for nominating me. I am deeply grateful for that.
I would very much like to thank Senators Levin and Stabenow for
their gracious introduction and for their hard work and
openness in getting us to this point. And I would very much
like to thank my wife for standing by me through this process.
Chairman Leahy. Well, thank you, Mr. Kethledge. It has got
to be great also to have your parents here. I know how thrilled
my parents were when they were able to see me sworn in several
times in the U.S. Senate. It was a thrill for me, and I think a
thrill for them.
Mr. Kethledge. Thank you.
[The biographical information follows.]
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5Chairman Leahy. Mr. Murphy.
STATEMENT OF STEPHEN JOSEPH MURPHY III, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN
Mr. Murphy. Thank you very much, Chairman Leahy.
First, I would ask my wife, Amy, and my two precious
children, Stevie and Natalie, to stand up. There is Natalie and
Stevie. Can we see you? Come out here so everybody can see you.
That is Stevie Murphy.
My mother and father join us from St. Louis. Mom and Dad.
And my sister, Tina, and her husband John Godar, who is a very
close friend and lawyer in St. Louis, join us as well.
Two of my colleagues from the Justice Department, Rita
Foley and Myra Stith, are here as well. And I think that is it.
I would like to give thanks, Chairman Leahy, to the members
of the Committee, to the Ranking Member, and, Senator Leahy, I
would really like to thank you for scheduling this hearing and
for treating us fairly, as you have. I am extremely grateful to
Senators Levin and Stabenow for introducing us and for working
to get us here today. My great thanks goes to the President of
the United States for this incredible gift and humbling
bestowing of a nomination on me. And, of course, my family I am
terrifically grateful for. So thank you for everything.
Chairman Leahy. Well, thank you very much, and let me ask
this question of Mr. Kethledge and Judge White. The courts are
really the only undemocratic branch of our Government, and in
the Constitution, the Founders set it up that way. So they have
a special responsibility to be open to those Americans who have
the least power. They cannot vote for them or against them.
They have--and with those Americans who have the least power,
they also have the need for the greatest protection. I think
the nominees have to show sensitivity to people of different
backgrounds and show they have a commitment to equal justice
under the law.
Can you describe any situations where, as either the lawyer
or as the judge, you have taken difficult positions on behalf
of comparatively poor or powerless individuals or members of
racial minorities?
Judge White.
Judge White. Senator, thank you for asking that question. I
began my judicial career as a judge on the Common Pleas Court
and the 36th District Court for the city of Detroit. In that
capacity, most of the cases that came before me were with pro
per litigants, and I quickly learned how difficult it might be
for someone who is uncounseled to appear before the court, how
intimidating it might be. And in that service, I took great
pains to both make people comfortable and to help them state
what was on their minds, to help bring out what brought them
before the court.
In fact, when I was on the traffic court, I saw that the
system was not responsive to pro per litigants in the sense
that they would come to court with a number of problems that
were just lurking in the file room, and they would leave
thinking that they had taken care of them. And I instituted
procedures in my courtroom that meant that when they came to
court, all of the legal problems that they had relating to the
matter but not necessarily brought before the court because of
the problems were addressed.
I mention it because it was unpopular to those who thought
that the system should just bring people in and out. But I have
to say that at the end of my tenure, all the other courtrooms
were using the same procedures, and I knew when I went home at
the end of the day that the people that came before me received
the justice that they were entitled to.
[The biographical information follows.]
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9
Chairman Leahy. Thank you.
Mr. Kethledge.
Mr. Kethledge. Thank you, Mr. Chairman. I would point to a
couple of experiences that I have had. The first is while I was
at Honigan Miller, I worked with people in Detroit who were
trying to take ownership of homes that had been subject to tax
foreclosures by prior owners. And it was actually a difficult
process to clear those prior tax liens from the titles of these
folks who were trying to renovate their homes. I worked with a
number of those people to get them clear title so that they
could renovate their homes. For that work, I was named Pro Bono
Lawyer of the Year for Community Legal Services in Detroit, and
I am very proud of that.
Chairman Leahy. And as I said, I feel very strongly that
lawyers should do pro bono. Let me ask you one question,
though, Mr. Kethledge. The overwhelming majority of your
practice focused on civil litigation and commercial litigation,
civil class action and so on. I went through your Senate
questionnaire. About 5 percent of the cases were criminal. Of
course, the Federal criminal docket has grown very
substantially, and a lot of the appeals that are going to the
circuit courts are from our criminal appeals.
What will you draw on, what kind of experience, knowing
that you are going to be hit with a whole lot of criminal cases
when they come up on appeal?
Mr. Kethledge. Well, Mr. Chairman, one experience I will
draw on is also partly in answer to your earlier question. I
did represent a man who was charged with negligent homicide.
His name was Takendra Sharma. He was a man without many
resources. He was involved in a fatal accident while he was
driving a semi truck. I represented him, and that gave me a
perspective on how important criminal litigation obviously is
to the person who is the subject of the State's power and the
prosecution, and an appreciation for the difficulty that an
individual finds himself in when they are prosecuted. It
humanized that side of criminal law for me. I would draw on
that personal experience regarding what Mr. Sharma went
through. He was acquitted.
The other thing I would draw on, Mr. Chairman, is that when
I was clerking, I did have very extensive exposure to criminal
law doctrines. As the Chair mentioned, that is a big part of
what Federal courts do. While I was clerking for Judge Guy and
Justice Kennedy, I did become, I hope, reasonably well versed
in the criminal doctrines themselves so that I would be able to
draw on that legal experience.
Chairman Leahy. Thank you.
Mr. Murphy, I have not ignored you, but my time is up, and
I have some questions for you on my next round.
Senator Specter.
Senator Specter. Judge White, in a case captioned People v.
Santiago, the court of appeals in a panel on which you were a
member upheld a jury conviction of a defendant for first degree
felony murder and armed robbery and his life sentence without
parole. You dissented, saying, ``While the evidence supports
the conclusion that defendant dropped the two perpetrators who
clearly committed the robbery and murder off near the house
knowing that they intended to rob and possibly kill the victim,
it is also clear''--referring to the defendant--``did so
without any intent or desire to assist them in committing the
offenses.''
The majority say, ``To convict the defendant on an aiding
and abetting theory, the prosecution must show that the
defendant performed acts or gave encouragement that aided or
assisted in the commission of the crime, and that he either
intended to commit the crimes or knew the principal intended to
commit the crime at the time he gave the aid or assistance.''
The Michigan Supreme Court denied the leave for appeal.
Judge White, isn't it really pretty much standard, clear-
cut law that when somebody drives a co-defendant to a place
where there is a robbery and a murder, that that kind of
assistance constitutes guilt on the part of the co-conspirator,
accessory before the fact?
Judge White. Senator, I don't have the specific case in
mind other than what you have just related to me. I can tell
you that--
Senator Specter. It is your case, isn't it?
Judge White. Yes, sir. I have been on the court of appeals
for 15 years and have sat in over 4,300 cases. So I don't have
each one of them directly in mind, but I--
Senator Specter. I understand that, but I have given you
the facts. You have a co-conspirator who drives a co-defendant
who robs and kills. What is your rationale for saying that that
does not constitute complicity in the principal offenses?
Judge White. Senator Specter, I went to law school in
Pennsylvania, and the law in Michigan--let me say I approached
that case by applying the law as enunciated by the Michigan
Supreme Court regarding guilt for the principal offense. It is
very, very true that many, many defendants who in that position
where some of the facts were driving the person to the scene,
dropping them off, would be--would constitute enough evidence.
I don't have the exact evidence in mind, but in Michigan, to be
responsible for the principal offense, one has to either share
the intent to commit the principal offense or provide aid and
support with knowledge that the principal offense was going to
be committed.
Senator Specter. Judge White, the problem with your
explanation is that the Michigan Supreme Court disagrees with
it. They denied leave for appeal, and the two judges who were
sitting with you disagreed with it. So what I am looking for is
some plausible explanation, if you have one, as to how you came
to that conclusion.
Judge White. I will again state that the requirement of
Michigan law is that the defendant either has the intent to
commit the principal offense, which here was the murder, or
that there is evidence to show that he aided with the knowledge
that that was the intent of the perpetrator.
Senator Specter. That is what the court found, that he
aided with the knowledge that the gunman intended to rob and
murder.
Judge White. Yes, and--
Senator Specter. Let me ask you this, Judge White, because
we have got quite a bit to cover. Are you standing by this
decision? Do you think the two judges who formed the majority
disagreed with your dissent and the Supreme Court which denied
appeal were wrong?
Judge White. Sir, I can only assume that if I read the
briefs again and read the record from cover to cover, as I do,
that I would have come to the same conclusion, that I had a
reasonable legal basis for doing so and that based on my best
assessment of applying the law to the facts that I read in that
transcript, that there was a problem with the conviction. Yes,
sir.
Senator Specter. Well, my time expired in the middle of
your answer, so I am going to yield. I thank so many of my
colleagues for being here, and I think it is important to
observe the 5-minute rule to give others a chance to question,
although there are--we will return for a later round.
Chairman Leahy. Senator Cardin?
Senator Cardin. Thank you very much, Mr. Chairman. And let
me thank all three of our nominees for their public service and
thank their families, and we very much appreciate your
willingness to continue to serve in the public life. It is not
easy to serve as a Federal judge, and we thank all three of you
for being willing to do that.
I want to ask about an area that is a particular concern
today, and that is, the relationship between the judicial
branch of Government and the President, the executive branch,
and the legislative branch. It is very likely that particularly
at the appellate levels you are going to have to deal with
Article II powers of the President. And as a result of the
attack on our country on September the 11th, the administration
has sought to use Article II powers in order, as they see it,
to protect the safety of the people of this country. At times
they have said that the urgency of the matter required
extraordinary powers of the President. And I just want to get
at least some indication from you as to how you will go about
evaluating the requests that come in on Executive power under
Article II and the restraints that are imposed either by
statute passed by Congress or the Constitution. Mr. Kethledge,
I would be glad to let you start.
Mr. Kethledge. I would be happy to, Senator. Thank you.
Clearly, there are limits on the Executive power. There are
limits on the Commander-in-Chief power. Youngstown Sheet and
Tube tells us that. That was a case where the President issued
an Executive Order to seize steel mills, cited exigent
circumstances related to the Korean War. The Supreme Court
stepped forward and said no, you can't do that. That is a clear
example of courts doing, I think, what the Senator described.
How does a court go about that? I think that certainly as a
court of appeals judge, you start with the Constitution itself.
You go to Supreme Court precedent, which is obviously binding
on any court of appeals. You look to the prior precedents of
one's own circuit, which would be binding as well. The
decisionmaking can also be informed by precedents from other
circuits.
I think you look at those things, and you try to reach a
lawful result, which is precisely that and which is not a
result which is driven by passion or considerations of the
moment. That is why judges have life tenure.
Senator Cardin. Thank you, Mr. Kethledge. Let me just point
out that the circumstances of 9/11 were unprecedented in
America, and the war against terror is not a traditional war,
as we have known it over the history of this Nation. And there
were really some challenging moments, I think, between the
judicial branch and the executive branch. And obviously we now
have court decisions that will help us guide future
determinations.
But we are in unprecedented times, and you may not have a
clear case and precedent to rely on. And I would like you to
expand a little bit more as to the respect between the three
branches of Government. At times there have been some heated
moments in this Committee between the executive and legislative
branches as to whether the Congress can limit Article II
powers. Ultimately, that is going to be determined by the
courts. This is an area that really does require the
independence of the judiciary, but in giving a fair ruling as
to what our Constitution requires, mindful of the
responsibilities of each branch of Government.
Mr. Kethledge. Thank you, Senator. The branches are co-
equal, and I think what an Article II judge has to do if
presented with the kind of question that you described is go
through the process and the materials that I described. An
answer may or may not emerge from those materials. There may be
answers that are implicit in those which haven't been
explicitly rendered in a court decision. But, clearly, Senator,
I would say that no one is above the law, and that goes in
wartime as well as in peacetime.
Senator Cardin. Judge White.
Judge White. I would join in many of the answers of my
colleague, and I would just add that obviously the separation
of powers is at the bedrock of our constitutional system. And
from time to time we do have these conflicts. I think it is one
of the most precious trusts of the Federal judiciary to rule in
those cases, to address the delicate balance between the
executive and legislative branch. The answers are of importance
not just to members of those branches, but to the American
citizens. And if I were confirmed and such a case would come
before me, I would very carefully consider the very reasoned,
legitimate arguments on both sides, the compelling arguments,
apply the precedents, and with due regard for the seriousness
of the question, come to the decision that seems to be
appropriate under the applicable rules.
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Cardin.
I have a list from Senator Specter of the order of
appearance on his side. Normally in the order I would follow, I
would call first on Senator Brownback. But apparently he is not
here. Senator Grassley is apparently not here. Senator Coburn
had to step out. So, Senator Kyl, you are up.
Senator Kyl. Thank you, Mr. Chairman.
Mr. Chairman, let me just first briefly associate myself
with the remarks of Senator Specter regarding the need for the
Committee to apply a consistent standard for consideration of
nominees, the time that we consider the questionnaires, the
timing of the hearings, the ABA investigation and so on. And as
part of the leadership, we would just note that the leadership
agreement to use the best efforts to confirm three nominations
by Memorial Day would not have required a violation of that
standard if other pending nominees whose nominations have been
pending for a lot longer had been moved forward rather than
trying to move someone just nominated. Senator Specter
mentioned who these other nominees were, the fact that they
could be moved forward, and I would just say that there is no
reason not to move those nominees forward. They are qualified.
The ABA has deemed them qualified, and we have a constitutional
obligation to do so. And I would note that from my perspective,
anyway, it would be unacceptable for the Committee to not have
any additional hearings, especially, I would note, since there
is at least one nominee from Arizona pending and ready to be
considered by the Committee.
I generally ask questions that are general in nature about
respect for the law, precedent, and so on, so let me ask each
of the witnesses--and there are basically five questions here,
and hopefully we can get through them fairly quickly. They deal
with the concept that respect for the law is critical for any
judge, somebody who is going to be judging others, and judgment
with respect to judging others. So let me just ask each of you
in turn, and we can start, Judge White, with you and then Mr.
Kethledge and then Mr. Murphy.
First of all, is there anything in your background that you
believe might disqualify you from serving in the position to
which you have been nominated?
Judge White. No, sir, there isn't.
Mr. Kethledge. No, sir.
Mr. Murphy. No, Senator.
Senator Kyl. Second, is there any public litigation that
you have been involved in personally that might bear upon your
responsibilities to serve as a judge?
Judge White. No, Senator, there isn't.
Mr. Kethledge. No, Senator.
Mr. Murphy. No, Senator.
Senator Kyl. Have you had any bad debts, late payments, for
example, credit cards, student loans, taxes, tickets, that kind
of thing?
Judge White. I take my obligations very seriously. There
have been no bad debts in the sense of judgments or bankruptcy,
anything like that, no liens. I have on occasion gotten notices
regarding that the amount of tax that was paid was
insufficient. I paid those. All my taxes are paid. The same
thing with any debts. I may have--from time to time there may
have been a payment that was after a date, but immediately I
satisfied that. I have no bad debts. I have no liens. I have
none of the things that you have asked--oh, and you also, I
think, said--what was the last one? Tickets?
Senator Kyl. Well, I just said bad debts, late payments,
for example, credit cards, student loans, taxes, tickets, and I
said any similar--
Chairman Leahy. If the Senator would yield just for a
moment, and I obviously will give him more time to respond to
this. Any of the financial backgrounds of all three of the
nominees have been thoroughly vetted in the background checks
by the White House, which is available to every Senator.
Senator Kyl. I appreciate that.
Chairman Leahy. Under the Memorandum of Understanding that
we have between the White House and the Senate--and Senators do
not, of course, go into anything that is in the FBI background.
Not only is it a violation of our rules, but that memorandum--
and I am not suggesting the Senator from Arizona has, but I
would hope that if we are going into things that are in the
backgrounds of any of these three nominees' financial
backgrounds or anything else, if it is in the background
reports given by the White House, that we maintain ourselves to
that. The Republican and Democratic counsel have been available
to all Senators to go through any part that--
Senator Kyl. I assure the Chairman I have not read the FBI
report. I haven't talked to the White House about anything. I
am not interested in financial records. I am mostly interested
in, again, matters that would demonstrate a lack of respect for
the law by not complying with the law oneself. And that is all
I am getting at here.
Judge White. I just want to--
Senator Kyl. Anything else that you wanted to say?
Judge White. [continuing.]--finish the answer. And, yes,
sir, I also take my obligations as a member of the motoring
public seriously, and I try to abide by the rules of the road
at all times, and at times I have had lapses and have received
tickets, yes. I am not proud of them, but I have.
Senator Kyl. Okay.
Mr. Kethledge. Senator, I am not aware of any issues except
I did have a few speeding tickets a long time ago. I can't
remember the last one, though.
Senator Kyl. For the record, I will say I have two. Okay?
[Laughter.]
Senator Kyl. Mr. Murphy.
Mr. Murphy. I will, too, Senator. I have definitely sped
and paid my tickets. And once the IRS told me after April 15th
I owed more money, and I paid it immediately. So other than
that, I have done nothing to show disrespect for the law.
Senator Kyl. Okay. Finally, in this regard, respect for the
law is also illustrated by past conduct, and this question goes
to things of a public record, whether there has been any matter
of public record that others may learn that would cast doubt on
your respect for the law, either State or Federal law.
Judge White.
Judge White. No, Senator.
Senator Kyl. Mr. Kethledge.
Mr. Kethledge. I am not aware of anything, Senator.
Senator Kyl. Mr. Murphy.
Mr. Murphy. No, sir.
Senator Kyl. Might I, with the Chairman's indulgence, since
we had our little conversation, just ask one-and-a-half other
question. Could you just in a quick percentage, each of you
tell me what your extent of experience with the Federal as
opposed to State law has been in your career, since you are
nominated to a Federal law position here?
Judge White. I have had--as a State judge for 27 years, we
do have issues that come before us that are issues that might
come before the Federal courts, first of all, with respect to
the--well, the diversity jurisdiction would be not Federal
issues, but I have dealt with preemption issues since 1983.
Senator Kyl. If I could just--I am just trying to do this
real quickly, just sort of a general percentage--
Chairman Leahy. I am indulging the Senator from Arizona.
Senator Kyl. And I indulged the Chairman with his
intercession a moment ago in my time, too. Just all I am
looking for is a general percentage.
Judge White. Oh, a percentage?
Senator Kyl. Yes.
Judge White. I would say maybe--Okay. I would say probably
maybe about--including issues of general Federal constitutional
law, I would say maybe about 10 to 15 percent of the cases that
have come before me have raised Federal issues in that sense.
Senator Kyl. All right. Thank you.
Mr. Kethledge.
Mr. Kethledge. Senator, I would say about 70 percent of my
private practice has been State law. I would say, obviously,
the 2 years I was clerking was all Federal, almost all.
Senator Kyl. And Mr. Murphy.
Mr. Murphy. Ninety-five to 99 percent of my work has been
Federal, Senator Kyl.
Senator Kyl. Okay. And, Judge White, you did not practice
law, right? You have been on the bench your entire judicial
career. Is that right?
Judge White. That is correct. I spent 27 years on the
bench.
Chairman Leahy. Senator Kyl, I would note--
Senator Kyl. Thank you, Mr. Chairman.
Chairman Leahy. [continuing.]--Two things for the record.
One, we had the hearing on your Arizona judge, I think last
week. I think Senator Cardin--
Senator Kyl. I am appreciative of that.
Chairman Leahy. I did not want the impression to be that
somehow he was not getting the hearing.
Senator Kyl. No, no.
Chairman Leahy. He did.
Senator Kyl. The hearing was held. I appreciate it.
Chairman Leahy. And, second, also for the record, I never
had a speeding ticket. Had a couple of overtime parking
tickets. Some overtime parking tickets, but never had a
speeding ticket.
Senator Sessions, and I am not asking members to say
whether they have had speeding tickets or not. Senator
Sessions, you are next.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Leahy. According to the list I received from
Senator Specter.
Senator Sessions. I did arrive after Senator Hatch, but--
Chairman Leahy. I am sorry. I just realized that there is a
crossout. It is Senator Hatch who is next. I apologize.
Senator Sessions. I think that is correct, Mr. Chairman.
Senator Hatch. I had no problem with that, but, Mr.
Chairman, I see for the first time we have two appeals court
nominees in the hearing. This is a step that I took at least
ten times when I chaired the Committee during President
Clinton's tenure. I would also say that for the first time one
of these appeals court nominees is before us before the
American Bar Association has completed its review. As my
colleagues know, I have not been the ABA's biggest fan over the
years, so I do not mention this because I think the ABA's
evaluation and rating are necessarily the gold standard for
judicial nominees. And I am pleased with the way the ABA has
done its job over the last number of years. But others have
said that it is the gold standard, and you have indicated that
before this comes to the floor, you will certainly have the ABA
report.
I also see the ABA has expressed its own serious concern
about setting this precedent, and I recall this is inconsistent
with what many of my Democratic colleagues have said it is the
way they want to handle judicial nominees, at least when I was
Chairman.
Now, other appeals court nominees have completed all the
normal procedural steps, and their consideration would set an
unusual or inconsistent precedent. But here we are, so let me
just ask a few questions of these nominees.
Mr. Kethledge, I want to welcome you back to the Judiciary
Committee. You served on this side of the dais as counsel to
Senator Spence Abraham when I chaired the Committee, so you are
no stranger to this room. And I am pleased with what you have
done since leaving the Judiciary Committee, including your
clerking for Justice Anthony Kennedy on the Supreme Court. That
is a singular experience that deserves a lot of credit.
And I see Judge Ralph Guy, whom you served as a law clerk,
remains on the Sixth Circuit as a senior judge. It must be
exciting to consider serving with him. I note, however, that he
took his senior status at the end of your clerkship for him in
1994. I am not sure what caused that.
Mr. Kethledge. I tried to talk him out of it, Senator.
Senator Hatch. Okay. Now, let me ask you to comment on what
you believe to be the role of the Federal appellate courts in
our overall system of Government within the judicial branch,
and how carefully should the U.S. Court of Appeals tread giving
deference to the trial courts below and respecting the rulings
of the Supreme Court above?
Mr. Kethledge. Well, Senator, obviously courts of appeals
are bound by the decisions of the Supreme Court. They are for
the most part bound by prior decisions of their own circuit
court.
I think that the best judges are the ones that seek to
apply precedent in good faith. I think most judges do that. But
that is something that has to be done in good faith without
skewing the precedent one way or the other. At the same time,
there has to be a respect for the work of the district courts
and not take an ivory tower approach to the review of what
happens there. Those judges are the ones that see the people
before them. They see the witnesses. The court of appeals just
has a cold paper record. I think there has to be a reasonable
level of deference given to the judgments of the Article III
judge who has the trial before him.
And with respect to all of one's colleagues in the judicial
system, I think it is very important for a judge to have almost
an irrebuttable presumption that every other judge who has
looked at a particular issue was doing his or her best to
discharge his or her oath just as well as I might be if I am
fortunate enough to be confirmed.
Senator Hatch. Thank you, sir.
Judge White, you have served on the State appeals court for
more than a dozen years, and I am sure that with all of that
experience, you already have a perspective or at least a view
about how a collegial body such as the appeals court should
operate.
Now, in reviewing your opinions, I see that you have
written numerous separate opinions, both dissents and
concurrences, and these include dissents in quite a few
criminal cases, criminal law cases, and dissents taking
positions that the Michigan Supreme Court has rejected.
Now, would you please describe for us your view of whether
an appellate court should strive for unanimity in its opinions
and the purpose and effects of your frequent separate opinions?
Judge White. Thank you, Senator Hatch. I want to preface my
answer by saying again that in the 15 years that I have been on
the Michigan Court of Appeals, I believe there were over 4,000
cases in which I participated with my colleagues, and I would
venture to say that probably in 95 percent of those, there was
unanimity, and that is the context for this. And in the vast
majority of those, the trial judge was affirmed.
Collegiality is very important. One can disagree without
being disagreeable. In the cases where I have written
separately, I tried to decide cases narrowly. And there are
times when I feel that a colleague says too much, and that may
be a reason why I concur.
Regarding dissents, there are sometimes differences of
opinion, but as I said, in 95 percent of those cases, there was
unanimity. I have been on the intermediate court for 15 years.
It is a role with which I am very comfortable. I understand
that the trial court is accorded deference, and I understand
that it is the Supreme Court that makes the law. And that has
been my job, and that would be--if I were to be confirmed, it
would be a similar role in terms of deference to the trial
judge and taking direction from the Supreme Court and, of
course, from the legislative body.
Senator Hatch. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Brownback.
Senator Brownback. Thank you, Mr. Chairman.
Chairman Leahy. And, again, to go through the list on my
time, to go through the list I have Senators Brownback,
Grassley, Senator Coburn, Senator Cornyn, and Senator Sessions.
Senator Brownback.
Senator Brownback. Thank you, Mr. Chairman. Thank you,
nominees, for being in front of us. I appreciate that very
much.
Judge White, I want to really, if I could, focus in on your
nomination. I hope you can understand some of the grave
concerns that many of us have on the rush nature of your
nomination here and lack of information that we have. On
looking at this, I would like to have had the information and
hold the hearing and being able to question in depth about it.
We don't have the ABA rating, but I understand you have been
rated by the ABA when you were nominated by President Clinton.
Is that correct?
Judge White. Yes, sir.
Senator Brownback. Do you recall what that rating was?
Judge White. My understanding is that it was a substantial
majority qualified and a minority not qualified.
Senator Brownback. You have not conducted a private law
practice. Is that correct?
Judge White. That is correct.
Senator Brownback. But you have worked in the judiciary all
of your professional career.
Judge White. That is correct.
Senator Brownback. You started out clerking not at the
Federal but you clerked at the State court. Is that correct?
Judge White. That is correct.
Senator Brownback. Who did you clerk for?
Judge White. Justice Charles Levin.
Senator Brownback. How long did you clerk for Judge Levin?
Judge White. Almost 2 years.
Senator Brownback. And then you went from that to the
bench.
Judge White. Yes, sir.
Senator Brownback. Is that correct?
Judge White. Yes.
Senator Brownback. And you were appointed to the bench or
elected to the bench?
Judge White. I was elected.
Senator Brownback. To which bench were you elected?
Judge White. It was the Common Pleas Court for the city of
Detroit. It no longer exists. There was court reorganization,
and it became the 36th District Court.
Senator Brownback. Okay. What did you do after that
position?
Judge White. I was elected to the Wayne Circuit Court,
which is the general trial jurisdiction court.
Senator Brownback. And how long did you serve in that
position?
Judge White. For 10 years, Senator.
Senator Brownback. And what have you done after that
position?
Judge White. Then I was elected to the Michigan Court of
Appeals.
Senator Brownback. And that is where you serve today?
Judge White. Yes, sir.
Senator Brownback. And how long have you served on that
court of appeals?
Judge White. For 15 years.
Senator Brownback. You were nominated by President Clinton.
When were you nominated by President Clinton?
Judge White. I believe it was January of 1997.
Senator Brownback. Okay. And so you have just recently been
nominated by President Bush. Is that correct?
Judge White. Yes, sir.
Senator Brownback. I think you answered with Senator Kyl
your experience in handling Federal cases. You have not handled
direct Federal cases in any private practice?
Judge White. No, sir.
Senator Brownback. You have not handled any Federal cases
as a judge?
Judge White. No, sir.
Senator Brownback. I am curious then. I should give you
this as open because we haven't had a chance to meet privately,
either, which normally would be the process. But what do you
believe makes you qualified for this position? This is the
Sixth Circuit. The circuit court of appeals is next to the
Supreme Court. It is a phenomenal position of importance. I
would like to hear your thoughts on your qualifications as you
look having not handled Federal cases before for this position.
Judge White. Let me start by saying that I agree with you,
it is a position of enormous importance. My professional path
has been in the judiciary, and this is what I would bring to
the position. I was in a limited jurisdiction court for 2
years. After that, I moved to the general jurisdiction court. I
brought with me the experience of that position. What I brought
to the court of appeals was the experience of being a trial
judge for 10 years.
There is something in the process of judging that--judges
are generalists. It has been a long time since I have been in
law school. It has been a long time since most judges were in
law school. We learn skills on the bench. We learn how to
approach the task of judging, which is to decide individual
cases. I brought that experience of being a trial court judge,
which I think is very valuable for an appellate judge, to the
appellate court.
If I am confirmed, what I would bring to this is 27 years
of judicial experience in terms of the process. I bring the
experience of reading briefs, reading briefs in an area of law
with which I may not yet be familiar, because that is the
nature of litigation. The lawyers are far more expert at the
time that the case begins than the judge. The experience of
studying those briefs, the experience and the ability to
understand difficult legal issues, to thoughtfully consider
them, to understand the arguments of both sides, to respect the
importance of the position, to distill the legal arguments,
address the issue in written manner, to carefully decide the
case, going through the process of deference to the precedents,
understanding how to treat legislation, and basically how one
comes to a decision in a particular case that is presented to
the judge.
Senator Brownback. Thank you.
Chairman Leahy. Senator Sessions.
Senator Sessions. Mr. Chairman, I would offer for the
record a letter of May 6th from the Standing Committee on the
Federal Judiciary, Mr. Timothy Hopkins, Chair, to you and
Senator Specter, although it is pretty clear Senator Specter
agrees with it. Mr. Hopkins says, ``On behalf of the American
Bar Association's Standing Committee on the Federal Judiciary,
I write to express our concern that you have decided to proceed
with the confirmation hearings of Helene White to be United
States Circuit Judge for the Sixth Circuit and Stephen Joseph
Murphy III before completion of the evaluations. Under our
normal timetable, it would be reasonable for you to expect to
receive our evaluations by the close of this month. It is
unfortunate that during confirmation hearings your Committee
members will not have the benefit of the answers.''
Chairman Leahy. Without objection, that letter will be
included in the record. Also without objection, my response
would be included in the record. And without objection, the
similar letter written by the ABA to then-Chairman Specter
objecting to the five hearings without the ABA being completed
will be included in the record so that we can have it all
before us. And I thank the Senator for raising the issue. It
gave me a chance to put the other letters in.
Senator Sessions. I would just observe that that letter is
indicative of the fact that this is an extraordinarily fast-
moving nomination. Of that I think there is little doubt. And
there are questions that we have, and I for one do not believe
this hearing, with just a day or two notice, basically, to me,
allows us to be properly prepared to ask the kind of questions
that ought to be asked of a position one step below the U.S.
Supreme Court.
I would note that we could have had hearings on Judge
Conrad of North Carolina who has been unanimously rated well
qualified by the ABA, the chief judge of the Western District
of North Carolina, a Federal prosecutor under both Republican
and Democratic administrations, and it is a judicial emergency
circuit. And Mr. Steve Matthews of South Carolina, nomination
to the Fourth Circuit, graduate of Yale, distinguished private
practice career, managing director of a South Carolina law
firm, strongly supported by both his State Senators and rated
highly qualified by the ABA also. So this is troubling to me, I
have just got to tell you.
No. 2, Judge White, I presume you misspoke, but let me ask
you. You said a moment ago the Supreme Court makes the laws.
What would you say about that?
Judge White. The Congress makes the laws in the Federal
system, and the legislature passes the laws. If I said that, I
misspoke, and I was referring to the common law. And if I said
``laws,'' I would have misspoke and would not have meant to
refer to legislative laws.
Senator Sessions. Well, I think that is very important
because one of the things that is causing the delays and
tension in the confirmation process at its most fundamental
level is more than politics and more than numbers. It is really
about what kind of judges we want on the courts.
President Bush has a philosophy of judging that I share. I
think it was ably articulated by Chief Justice John Roberts in
his confirmation hearings. And there are others in this
Congress that have different views. They prefer to have judges
in rulings that affect their political agenda that cannot be
won at the ballot box, in my view. So I just want to tell you
that is a concern to me.
Judge White, your entire legal career of almost 30 years
has been in the Michigan State system. I think I am correct
that you have never spent a single day of your legal career in
private practice, except maybe a summer internship. And you
have never represented a client, never litigated a case, and
never appeared in Federal court at all. Is that correct?
Judge White. That is correct.
Senator Sessions. Now, I believe that that is not an
automatically disqualifying thing, but I think it is a lack
that is worthy of concern on the confirming body to analyze
what other strengths you have to justify the appointment
without the kind of experience we would normally expect in this
high appointment, which is, as I said, one step below the U.S.
Supreme Court.
Mr. Chairman, my time has expired. I would share with you,
Ms. White, my concern about this aiding and abetting case that
Senator Specter asked you about in the sense that to me that is
fundamental law that if you drive the car to assist the people
in a crime, you are chargeable for that offense. And in your
own opinion, you concluded that the defendant knew what was
about to occur and aided in the action by delivering them to
the scene of the crime.
Chairman Leahy. Thank you, Senator Sessions.
Judge White--
Senator Sessions. She was prepared to answer, but that is
Okay. She has answered it previously.
Chairman Leahy. Earlier--
Senator Sessions. It is a concern to me as a prosecutor.
Chairman Leahy. Earlier you had said something about the
percentage of cases, the rough percentage of cases where you
have been in concurrence with the rest of the court.
Approximately what percentage are you in concurrence with them?
Judge White. Well, I would say that probably 95 percent of
the cases are decided unanimously, would be my guess.
Chairman Leahy. And, Mr. Kethledge, you don't have any
experience--I mean, we speak about experience. You have no
experience managing a docket as a judge. You have not worked in
a prosecutor's office or a defender's office where you would
have had to manage a very high volume of cases. What do you say
about being able to successfully manage the docket of a United
States circuit judge? You have not had judicial experience like
Judge White has in managing dockets, but what would you say
about that?
Mr. Kethledge. That is true, Mr. Chairman. What I would say
in response to that is two things:
First, hard work. A court of appeals judge from my
observation and clerking has some latitude as far as when
things are due. You do not have briefing deadlines the way you
do in private practice. And it is the conscientiousness of the
judge, I believe first and foremost, which is responsible for
moving the cases along and clearing the docket at the court of
appeals.
The other thing I would say is just the example I have had
of the judge that I worked for, and I was part of his system. I
got a sense of how things work, and I think I could make use of
that experience as well.
Chairman Leahy. Thank you.
The question I was going to ask you before, Mr. Murphy, I
served on this Committee for decades with former Senator Strom
Thurmond. And there is a question I heard him ask, whether it
was nominees of Democratic administrations or Republican
administrations, that was always the same about judicial
temperament. And it was basically something like this: When you
go into a Federal court, a Federal judge is very powerful. It
is a lifetime position. The only way he is going to be out of
there is if he is impeached or resigns. And very few are ever
impeached. And if he shows bias one way or the other toward
plaintiffs or defendants or based on the nature of the case, it
is devastating to the person who may--this may be the only time
in their life they will be before the Federal court. We all
have a responsibility to keep the Federal courts independent,
but also to have the respect of them. Courts do not command
armies. They do not command great forces. They exist and
command respect only if they show respect.
How do you feel about that? There are times when you have
some people who attack Federal courts as being out of touch for
whatever political purpose. You have people running for office
and so on. What would you do so people would look and say, you
know, ``One thing about Judge Murphy, I may agree or disagree
with his opinions, but, boy, I sure agree that he is a good
judge'' ?
Mr. Murphy. I would first of all thank the Senator for that
comment, endorse the sentiments of both the Chair and Senator
Thurmond. I would hope that however many years from now, should
I be confirmed, that that sort of evaluation was made, that
that would be exactly what they would say about me. I have
striven to have that reputation as a Federal prosecutor, and I
think that neutrality, detachment, fairness, and moderation are
the hallmarks of a Federal judge. And should I be confirmed by
this Committee, those are the traits that I would demonstrate
in my daily work.
Chairman Leahy. Thank you. Let me ask this question of both
Judge White and Mr. Kethledge. We are at the sort of pivotal
moment in American history of trying to keep that careful
balance between the branches of Government. The President has
made unprecedented claims of nearly unchecked Executive powers.
Congress and the courts have traditionally acted as curbs on
any President who might do that, whether it is cases like Iran-
contra or warrantless spying on American citizens. But we
should also have a self-check on abuse of the congressional
power, looking at ethical violations or corruption, for
example, Jack Abramoff's influence of a Member of Congress.
Do you believe that congressional oversight, not just
judicial but congressional oversight, is an important means of
creating accountability in all branches of Government? We will
start with you, Mr. Kethledge. You have been here. You
understand the question.
Mr. Kethledge. I do understand the question, Senator. I
don't think I am knowledgeable to answer it, frankly, in a
specific way. What I would say is that each branch is co-equal.
Congress clearly has powers of oversight. Those powers are
important ones, just like other powers that Congress has. Some
of those oversight powers are derived from the power of the
purse that Congress has ultimately.
Certainly, Senator, I would agree that those are important
powers, safeguards on Congress' other core powers.
Chairman Leahy. Judge White.
Judge White. I would agree. The powers of each branch of
Government are important and must be respected by the other
branches.
Chairman Leahy. I would agree, I think all of us would
agree, there have to be these checks and balances. Our Nation
is powerful. It is awesome in its power and its potential as
the United States.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Judge White, I now turn to a case captioned People v.
Hansford, decided in 1997. You served on a three-judge panel
which decided that a 40- to 60-year term was inappropriate and
remanded for resentencing. And my question goes to your
judgment in disagreeing with that sentence for the defendant
who has a record that I am about to specify.
On October 11, 1976, he was convicted of attempted larceny
from a building and sentenced to 2 years' probation.
June 14, 1977, convicted of attempted receiving and
concealing $100 and sentenced to 1 to 5, did 2\1/2\ years in
prison.
Two months later, August 22, 1977, convicted of attempted
larceny from a motor vehicle, sentenced 1\1/2\ to 2\1/2\.
September 4, 1980, convicted of fleeing and eluding,
sentenced to a fine of $185 or 19 days.
Convicted of receiving and concealing stolen property and
sentenced to 6 months, March 26, 1981.
August 3, 1982, convicted of two counts of receiving and
concealing stolen property, over $100, sentenced to 3 years'
probation on April 15, 1985.
November 5, 1985, convicted of a violation of probation,
sentenced to 90 days in jail.
July 17, 1988, convicted of larceny, 3 to 7 years.
Escaped from correction center, July 1990, returned
February 1991. Paroled on March 31, 1992, listed as an
absconder on July 9, 1992. Still on parole when he committed
the instant offense.
Now, the procedural history of this case is that on initial
review, the court of appeals determined that the sentence of 40
to 60 years for a fourth offender was disproportionate. On
remand, the Supreme Court ordered reconsideration in light of a
recently decided case. The court of appeals on which you sat,
another judge determined the sentence constituted an abuse of
discretion. The Supreme Court reversed saying there was not an
abuse of discretion, two Justices dissenting, concluding that
because the defendant had demonstrated his inability to conform
his conduct to the laws of society, the court's sentence was
not an abuse of discretion.
Now, the first opinion, which was unanimous, by your court
that it was an abuse of discretion was unpublished. I am
advised by staff that there was an opinion. What are the
standards for publishing an opinion? It seems to me pretty
important for the public to know why that sentence was vacated,
and the public only knows it if there is a published opinion.
What are the standards of that court for not publishing an
opinion so the public knows what is happening?
Judge White. Senator Specter, we are an intermediate
appellate court with a very, very heavy volume. The vast
majority, more than the majority of our cases are unpublished.
The criteria for publication is that it--
Senator Specter. The vast majority unpublished, even a
matter of this severity, this kind of a record, to send
somebody back for resentencing?
Judge White. Senator, every single case is important. I
don't intend to minimize any type of case, but--
Senator Specter. Well, Judge White, some cases are--
Chairman Leahy. I think you should at least let her answer
the question.
Senator Specter. Well, I think you should let me question.
Chairman Leahy. Let her answer the question.
Senator Specter. We have considerable latitude, at least
when I was Chairman--
Chairman Leahy. And you always used to remind us to let the
witness answer the question.
Judge White. Given the volume of the cases--
Senator Specter. If you are going to answer, try to be
responsive.
Judge White. I am sorry, sir. I have been trying--
Senator Specter. My question to you was: Aren't some cases
more important than others?
Judge White. Yes, some cases are more significant
jurisprudentially than others, and our directive is that those
are the cases that should be published. We have many, many,
many sentence appeals. We have judicial--we have guidelines. At
one point they were legislative--they were judicial sentencing
guidelines. Now there are legislative guidelines. We have many
sentence appeals, and it would be the most, most rare
circumstance that a case, even one reversed, would ever be
published under these circumstances. That is not the practice
of the court.
Senator Specter. Okay, Judge White. Now down to the merits.
I read you this record in detail. The habitual offender
statutes are designed, as I am sure you know, to take habitual
offenders off the streets for life. There are customarily three
offenses. Seventy percent of the crimes are committed by
habitual offenders.
What was your reasoning and thinking that a man with the
record I just enumerated did not deserve to be off the streets
for life?
Judge White. Senator Specter, crime is a terrible problem
in this society, and everybody should recognize that. And
sentencing is a solemn obligation.
I don't have the facts specifically in front of me. I don't
even know what year it is. But I can tell you that the case was
either decided under the judicial guidelines or the legislative
guidelines. And there is a guideline within which a judge must
sentence. If the judge doesn't sentence within that guideline,
then that sentence is subject to review.
Chairman Leahy. Thank you.
Senator Cardin.
Senator Specter. One more. One more minute, Mr. Chairman.
Chairman Leahy. I will give you as a matter of courtesy one
more minute. You are now over your time.
Senator Specter. I told you what the year was. It was 1997.
And I told you what the facts were. Two-part question. Are you
saying that it was outside--you weren't saying it was outside
the sentencing guidelines because the State Supreme Court said
40 to 60 was fine.
Now, as you listened to the recitation of these facts,
which come from the Supreme Court's opinion, are you standing
by the judgment you made twice that a 40- to 60-year sentence
was inappropriate for this career criminal?
Judge White. I want to say first that I don't know from the
facts that you gave me whether it was within the guidelines or
not. It may have been outside of the guidelines and,
nevertheless, affirmed. I accept the Supreme Court's decision,
and that is the final decision in the matter. And I accept that
the sentence was appropriate, and it was appropriate because
the Supreme Court has said it is appropriate. And I said that.
Senator Specter. The pending question is whether you today
say that you were right, listening to this record, in saying
the sentence was inappropriate.
Judge White. What I would say is that I read the case,
applied the law as I understood it, and the sentence was
appropriate. The Supreme Court said it was appropriate, and the
panel and I were wrong.
Senator Specter. Let me ask you one more time if you think
sitting here today, listening to this record, that you were
right in saying that 40 to 60 years was an inappropriate
sentence.
Judge White. At the time I decided the case, the--I have to
have been wrong, sir. The Supreme Court reversed. I was wrong.
The Supreme Court reversed. There are times when an appellate
judge is reversed. There are times when a circuit judge is
reversed. And once you are reversed, there is no question
whether you were right or wrong. The higher court said you were
wrong.
Senator Specter. I think the record is clear you have not
answered the question.
Chairman Leahy. Well, I disagree, and I gave the Senator a
great deal of extra time so she could. Any one of us who
practice law or who have been prosecutors have been reversed.
We know what that is like.
Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman, and let me first
make an observation. I am a new member of this Committee, and I
was looking forward to getting involved particularly in one of
the most important responsibilities of the U.S. Senate, and
that is the confirmation of judges to lifetime appointments.
And I take the confirmation hearings very seriously, which is
part of a total process on confirmation, including your records
that we have and the reports that have been made available to
us. And my observation is that I want to compliment all three
of you for the manner in which you have responded to our
Committee's questions. I am impressed by all of your--the way
that you have answered the questions.
Judge White, I just can't imagine what is going through
your mind as you hear us talk about rushing your nomination
through when you waited 4 years since your last appointment.
You have shown tremendous restraint, which I think bodes well
for your judicial temperament.
Mr. Kethledge, I want to follow up on Senator Brownback's
point on qualifications, because I think it is a very important
point, and I think he raises a very valid point about Federal
experience. I don't disagree. I think that is a very important
point for us to evaluate.
The difficulty I have had with some of the more recent
appointments from President Bush is that he has selected
individuals who don't have a judicial background, so,
therefore, you don't have the traditional cases in which we can
question as to how you ruled on a particular case, which is
very interesting to see how you went about making decisions. Or
we don't have a lot of writings in which we can look at the way
that you evaluated a particular legal issue because of your
background. Instead, you come to this appointment with a
relatively short background in law, and if I have read your
background correctly, it has been mostly as a private attorney
handling product liability issues for companies such as auto
manufacturers, drug manufacturers, and in at least one case a
tobacco company.
And I guess my question to you is, you know, we all come to
this with life experiences to whatever we do in our future in
life. And I want to give you a chance to express your views as
to how you would rule on these types of matters that may come
before you, including product liability and consumer rights.
You have represented the company point of view. There is
obviously another point of view, the consumer point of view, as
represented in some of these cases. And I just want the record
to be clear as to how you will approach matters that may be
brought by individuals looking at rights for non-smokers,
looking for rights for consumers, recognizing that product
liability issues are important ways of defending those types of
interests.
Mr. Kethledge. Thank you, Senator. I understand really two
questions to be part of what you are asking, the first being
what kind of approach would I take, because I agree, you don't
have the kind of written record to review that Judge White has
provided. I don't have that kind of judicial experience, and I
admit that. So the question of what approach would you take is
an important one.
First and foremost, Senator, I think the approach I would
take recognizes the fact that, in my opinion, the fact that
judges are unelected I think is really the defining
characteristic of Article III judges and the characteristic
that circumscribes their power. We are a democracy. Nobody
elects Article III judges. I think that means that Article III
judges don't get to impose their policy views, their opinions
on the people of this country because that is not democracy.
The folks in this body do, and it is the job of Article III
judges to enforce your will, not the will of the judges
themselves. I feel very passionate about that, and I tell you
that, to the extent of my ability, that is what I would do if I
were a judge.
Regarding experience, I have been out of school 15 years,
and I recognize that is a relatively brief time. I am over 40
now, and I actually celebrated that birthday anticipating this
question perhaps. I would hope that I have tried to pack an
awful lot of relevant experience into my 15 years:
Clerking for Judge Guy on the court to which I am
nominated. He is someone whom I revere, whose example I think
would be of indescribable benefit to me if I were to be a
judge.
Clerking for Anthony Kennedy, a man who comes to his job
with extraordinary dedication and conscientiousness, and who is
also a kind and decent man. Those examples would be very
helpful to me.
I had the privilege of working in this institution,
oftentimes in this room--
Senator Cardin. That worries us a little bit.
[Laughter.]
Mr. Kethledge. I really better not say anything about that,
Senator.
But I think that that experience gives me the perspective
of the legislative branch and being inside the legislative
branch. A number of the Senators today have talked about
separation of powers issues. I think that experience, that
perspective, would be extremely valuable.
And then I have been a lawyer in private practice. I have
seen the impact that these cases can have on the parties and
individuals that are involved. Yes, I have had corporate
clients, but not all of my clients have been corporate clients.
I understand that these are not abstractions that are behind
these cases. These are people. And I respect that, and I would
have a sensitivity to that.
The other thing I would point out is that I have had the
experience of starting my own law firm with two partners and,
shortly thereafter, three. There were 15 people that chose to
come with us. We were responsible in a large sense for their
economic well-being. That was a responsibility I took very
seriously, and, frankly, I think that was an experience that
makes one grow up.
So I would hope that those things that I would draw on
would allow me to be a judge that would do the job in the way
the Committee would hope.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Brownback, did you have any other questions?
Senator Brownback. Yes, I do, Mr. Chairman. Thank you. And
thank you for allowing us to go another round. There are
individuals here who get a chance to question the first time.
Ms. White, I want to go back--Judge White--and ask you a
few other things, if I could, and this is, I think,
uncomfortable for everybody, just the way this has come
forward, so I apologize for that. But they are things we really
need to know.
Just without the Federal work, I would just like to know
your view of the Constitution, just to--I know you cannot tell
us how you decide individual cases, but do you see generally
the Constitution as a more organic document, or do you see it
more as a strict constructionist, or do you put yourself
somewhere in between?
Judge White. Senator Brownback, I have never placed labels
on my judicial philosophy. I have never thought of it in those
terms. I decide individual cases, and when the Constitution is
implicated, I look to the precedent, and I find my way within
the precedent that has been given. And I don't take a
particular role. My role as a judge--my role is to be a judge
in that case, and that is the way I approach it.
Senator Brownback. Then what do you understand this current
state of the law to be on Establishment Clause cases?
Judge White. Senator Brownback, in my 27 years I have not
had Establishment Clause cases--well, I must have had some. I
haven't had it recently.
Senator Brownback. I understand that, but you are going
onto the Sixth Circuit Court of Appeals. This is a big area of
the law. I am just asking you your understanding of the current
status of the law in Establishment Clause cases.
Judge White. I am--I haven't read the cases recently enough
to be comfortable giving you an answer, and if a case came
before me, then I--if I were confirmed and a case came before
me, then I would be an expert in all of the Supreme Court
decisions to date.
Senator Brownback. Judge White, the Chairman brought up--
and I thought this was appropriate to ask about--case
management, saying that another nominee had not been a judge so
does not know about case management. But you have been on the
bench, and you have dealt with case management. The Sixth
Circuit is one of the busiest per judges' cases, caseloads, so
this will be very important. Have you ever thought you have had
problems managing your cases or issuing your opinions in a
timely fashion?
Judge White. When I first became a court of appeals judge,
I had a period of adjustment in the sense that it is an
extremely heavy docket, and I had to learn that although I gave
each case careful consideration, I couldn't write the way one
would normally want to write in each case. And that was a
process where I came to understand that. It took a while, and
the 15 years have been very valuable.
I think that if one thinks about the important traits in an
appellate court judge, timeliness is certainly one of them, and
I try to balance timeliness with considered judgment, with
scholarship, giving each case attention. I try to put all of
that together, and that is the way that I manage my docket.
Senator Brownback. So I take it from what you are telling
me, you have had a problem in this, but you feel like you have
grown over the years in this area?
Judge White. Yes, I would say when I first went on the
bench, I did have a problem with that. It is something that one
learns in the 15 years.
Senator Brownback. Mr. Kethledge, just in a short period of
time, I would be curious about your view of the Constitution,
whether you see it as--just as your overall view, as a living
document or as a strict constructionist. Do you have a view on
that?
Mr. Kethledge. Senator, I don't really have a label that I
can put on myself. What I would say is that, obviously, first
and foremost I would follow Supreme Court precedent.
The other thing I would say is that, again, I would make
sure that the values that I would be enforcing if I were a
judge are not just my values, that I am not striking something
down simply because I don't like it. That is a
countermajoritarian aspect of our system of Government. I would
start with the text. I would say that, sir.
Senator Brownback. And I would just, with that answer,
because we are apparently not going to be able to understand
further--although clerking for the people that you did gives us
some opinion on your idea. But what do you understand the
current state of the law to be on Establishment Clause cases?
Mr. Kethledge. Senator, I would have to give pretty much
the answer Judge White did. That is not an area that I have
recent experience in in my practice. If I were presented with
an issue along those lines, obviously I would carefully study
Supreme Court and other applicable precedent. I believe that is
where the Lemon v. Kurtzman case comes in, but I could be
getting the wrong clause, and that is why I shy away from being
too definitive in this regard.
Senator Brownback. Have you handled any Establishment
Clause cases? If I could on this, Mr. Chairman.
Chairman Leahy. Yes, take one more minute. The reason is we
were going to end this round, but Senator Specter has asked to
be able to go until about 12:20, 12:25. And I want to make an
exception to the time so that he can. He is a highly respected,
knowledgeable person here. We will do it. But if you could
finish with whatever this question is, Senator Brownback.
Senator Brownback. Have you handled any Establishment
Clause cases in any of your clerkships or any of the work that
you have done?
Mr. Kethledge. Senator, I cannot remember offhand whether
the courts that I worked on had any Establishment Clause cases
while I was there. There isn't one that comes to mind. I have
not handled that issue in my private practice. It is simply not
possible to handle every issue that might arise under the
Constitution in one's practice.
I will say that that is obviously a very important issue
where some of the most deeply held views of our citizens come
into play, and I would take that very seriously.
Chairman Leahy. Thank you very much. And, of course, the
record will be kept open for followup questions.
Senator Brownback. I appreciate that. I am going to, as the
appropriate time, move that we go into closed session, Mr.
Chairman. I would like us to be able to do that.
Chairman Leahy. If you move that, then we will have to come
back later today to do that so we can accommodate Senator
Specter now.
Senator Brownback. I just wanted to put you on notice of
that, Chairman.
Senator Specter. Judge White, we have a very limited time.
I am trying to accommodate to the Chairman's schedule. So if
you could answer my questions briefly and directly, I would
appreciate it.
In a case captioned People v. Ryan, which there is a
Supreme Court opinion in 1996, you were one of a three- person
panel where you affirmed the dismissal of a drug dealer's
conviction. The Supreme Court reversed you. Your description of
the case is as follows:
Defendant was arrested with a kilogram of cocaine by
Federal agents, but was charged and convicted in State court
after DEA agents turned over their file to the State. Defendant
argued the decision to pursue a State prosecution was
vindictive. A panel of the court of appeals where you were not
a member concluded that the case was vindictive and remanded
for an evidentiary hearing. In an evidentiary hearing, the
trial court found vindictive conduct. On appeal, you were a
member, finding that the trial court's findings were not
clearly erroneous and affirmed.
The State Supreme Court said that, ``The mere threat to
refer the case for State prosecution does not amount to
objective evidence of hostile motive.''
Do you think that you were correct in deciding that the
evidence was sufficient for a finding of vindictiveness when
all that happened was for the Federal DEA authorities to do was
to turn the matter over to State prosecutors, which is a very
commonplace practice?
Judge White. Again, Senator, my familiarity, my
recollection is refreshed by what you have said, by only by
what you have said. I cannot say that those were the only facts
involved. I can say that the prior panel found that there might
be vindictiveness, that there was, sent it back. We had a
hearing. I applied the law in terms of review, deference to be
made to a trial court, concluded that it wasn't an abuse of
discretion for the trial court to so find, and that was the
extent of my participation.
Again, the Supreme Court reversed, and because the Supreme
Court reversed, it meant that I, among others, got it wrong.
Senator Specter. Do you stand by your judgment today that
you rendered at the time? That is my question, again.
Judge White. The Supreme Court said I was wrong. I stand by
the Supreme Court.
Senator Specter. Well, let the record show again you
haven't answered the question.
In a 1996 case captioned People v. Thomas, the panel issued
the decision--you were a member the panel--reversing a
conviction of a gang member who was charged with second-degree
murder and found guilty by a jury of voluntary manslaughter,
carrying a concealed weapon, and felony firearm. The panel
opinion reversed the conviction saying that the gang member's
assertion was correct, being denied a fair trial because the
prosecution called a witness knowing the witness would refuse
to testify. Your panel based its opinion on the violation of
the defendant's confrontation right. But, of course, when the
witness didn't testify, there was no opportunity for
confrontation.
The Supreme Court of the State reversed your panel's
opinion saying that there was no constitutional error, found
evidentiary error but harmless error.
Judge White. Can you repeat that? I am sorry. I didn't hear
the last sentence.
Senator Specter. The Supreme Court found there was
evidentiary error, but the error was harmless because the State
had ``proved that it was highly probable that the errors did
not contribute to the verdict.''
Question: Do you stand by the judgment you made at that
time?
Judge White. Well, apparently the decision on the
evidentiary and constitutional issue was determined to be
correct, but the harmless error analysis was determined to be
erroneous. So, again, I would stand with the Supreme Court and
conclude that my analysis on the constitutional and evidentiary
issue was correct, and the panel, of which I was one, our
conclusion regarding the harmless error was erroneous.
Senator Specter. The Supreme Court concluded your panel was
wrong. They reversed you, for the reason I stated, on harmless
error. Now, my question to you is: Do you stand by the judgment
that you made at that time?
Judge White. No, sir. Again, I stand by the judgment of the
Supreme Court.
Senator Specter. You think the Supreme Court was right? I
am still trying to get an answer.
Judge White. The issue--
Senator Specter. I know the Supreme Court has the final
word.
Judge White. They do, sir.
Senator Specter. They are not necessary correct. I am just
asking you for your judgment. I am trying to evaluate your
judgment. Do you think you were right in the judgment--you were
part of the panel--or that the Supreme Court was right in
reversing for the reasons I have gone into?
Judge White. Sir, I thought I was right at the time I made
the decision, and I accept the conclusion of the Supreme Court.
Senator Specter. Okay. Same answer, same conclusion. The
question hasn't been answered.
Judge White, would you care to amplify in any way your
record in handling criminal appeals? Because on the basis of
the cases that I have cited--and we are under very tight time
constraints--I would like to go into a lot more of your cases,
very frankly. But I haven't had time to read all your cases,
and I am a fast reader, but there have only been a few days. So
I want to give you an opportunity to comment or explain your
attitude toward appellate work on criminal cases. Are these
cases that I cited characteristic of your work on the bench?
Judge White. Thank you for the opportunity to address my
record on criminal cases. As I said, there are over 4,300
cases. I would say that over--probably about 60 percent of them
are criminal. I would have affirmed in maybe 98 percent of the
cases.
There is an appellate system applying both to criminal and
civil cases. When a case comes before me, I apply the law as
stated by the Supreme Court. In each of those cases, I endeavor
to do so.
I am also confident in saying that both prosecutors and
defense lawyers regard me as being fair and impartial. I think
that lawyers on both sides are pleased to come into the
courtroom when I am on the panel, and that in each of these
cases, even the prosecutor would have thought that there was a
reasonable basis. And as in some of these cases, my colleagues
shared my opinion.
The bottom line is in most cases, 98 percent of the cases,
convictions are affirmed. Part of my duty as an intermediate
appellate judge is to be open to the possibility that there was
error below. And I take criminal cases very seriously. I take
the rights of citizens to be free of crime very seriously. I
also take the rights of defendants seriously, and I have
decided each one of those cases to the best of my ability.
Senator Specter. Now, Judge White, Senator Brownback asked
you about the Establishment Clause, and you said you hadn't had
any experience with it. Have you had any experience with the
Free Exercise Clause of the First Amendment, freedom of
religion?
Judge White. Let me say I recognize that the Establishment
Clause and the Free Exercise Clause are parts of the First
Amendment. I understand that in many respects they are two
sides of the same coin and that from time to time cases come to
the court--
Senator Specter. Have you had any cases on these issues or
any experience as a lawyer?
Judge White. Okay. I don't recall specific cases on either
of those clauses. That doesn't mean I haven't had them. I just
don't recall them.
Senator Specter. Have you had any experience on the issues
of freedom of speech, assembly, freedom of the press?
Judge White. I have had some cases implicating the press,
mostly under our State FOIA statute, Freedom of Information
statute. Maybe in terms of the press in the courtroom, it has
come up in that context.
Senator Specter. Have you had any experience on holding
reporters in contempt, a contentious issue?
Judge White. I have not had them directly, no.
Senator Specter. Have you had any experience on the
attorney-client privilege, now a contentious issue, where the
Federal Government is extracting waivers or tougher sentences
and tougher charges?
Judge White. We--
Senator Specter. Have you had experience in that field?
Judge White. I am sorry to interrupt. I have had cases
dealing with the attorney-client privilege, not in that
context, but certainly attorney-client privilege issues have
come before me.
Senator Specter. Have you had any experience in the issue
of Executive power? The Sixth Circuit had the appeal coming out
of the Detroit United States District Court for the Terrorist
Surveillance Program which constituted an analysis of the
Foreign Intelligence Surveillance Act. Are you familiar with
the Foreign Intelligence Surveillance Act?
Judge White. Only to the extent that any citizen would be.
I haven't had any Federal Executive power cases. I have had
State Executive power cases. I understand the importance of
these issues and would address them accordingly.
Senator Specter. Have you had any experience with the cases
now pending in the Federal court seeking to grant retroactive
immunity to the telephone companies? Any experience with issues
like that?
Judge White. I don't recall cases that would be directly on
point with immunity for telephone companies. No, sir.
Senator Specter. Have you had any experience with the state
secrets doctrine?
Judge White. It wouldn't be something that would come to
the State court system, no.
Senator Specter. Well, let me ask you--let me give you an
opportunity to respond, pretty much the same question Senator
Brownback asked. With no experience in these areas, on these
front-line issues--the Sixth Circuit just had the Terrorist
Surveillance Program--what are your qualifications to sit on
the court of appeals for the Sixth Circuit, finality of
decision short of the Supreme Court?
Judge White. At the risk of being redundant, there are
elements that go into being a judge. One is knowledge of the
subject matter. The other is the process of deciding cases. I
venture to say--and I could be wrong--that there are judges on
the Sixth Circuit now who have not had cases dealing with some
of the issues that--
Senator Specter. Do you think that ought to be considered
by the Senate in whether to confirm you or not? These other
judges you allude--these other unnamed, unspecified judges you
allude to, do you think we ought to consider that in evaluating
your qualifications?
Judge White. I didn't mean to be speaking--I would say that
they are qualified in the same way that I am qualified because
you are in the job of addressing these issues every day as
Members of the Congress. As judges, whether it is in the State
or the Federal system, judges decide cases, individual cases,
and they become expert in the subject matter through the case.
As one has been on a particular court for a length of time, one
becomes more familiar with certain types of cases. But there is
always a first time with any subject matter, and the question
is how the judge approaches it and whether the judge thoroughly
familiarizes him- or herself with the law and whether the judge
is familiar with the general principles of judging.
Senator Specter. Judge White, I am going to finish up with
you in the next 2 minutes, by 12:25, as the Chairman has
requested. And I am going to reserve some questions for the
closed sessions, which Senator Brownback has already mentioned,
which I think we do need. But I want to pick up on two things
you testified to.
You said in your earlier testimony, I quoted you, that
sometimes your taxes were ``insufficient.'' Could you amplify
that, please?
Judge White. When I pay my taxes, which is something that I
am proud to do, I do not compute my taxes. I give all of my
information to an accountant. That happened--
Senator Specter. Did you ever get a bill that you didn't
pay for a protracted period of time, a tax bill?
Judge White. Senator, I think I know what you are referring
to. This past year, I got a notice that the amount that I had
sent in apparently wasn't sufficient. I sought advice on
whether it was, and when I was told that it wasn't, I sent it
in. I paid what I believed to be my taxes at the time, and if
it turns out it is not correct, then I pay whatever I am
supposed to pay.
Senator Specter. Judge White, you testified that you
``abide by the rules of the road, but sometimes you have not.''
Could you expand upon whether you--when and under what
circumstances you have not?
Judge White. I have tried to abide by the speed limit.
There are times when I--
Senator Specter. Have you on occasion not abided by the
speed limit? You mentioned that.
Judge White. Yes, sir, there are times when I have exceeded
the speed limit.
Senator Specter. Anything else related to the rules of the
road?
Chairman Leahy. You know, if you want to ask further
questions, we can wait until that closed session. I hope we do
not set a standard that nobody can be a Federal judge if they
have ever driven over the speed limit or that nobody can be a
United States Senator if they have ever driven over the speed
limit, because it is going to be a pretty darn empty chamber
around here if that is a standard.
Mr. Kethledge, we were talking about--have you had any
experience with the Terrorist Surveillance Act?
Mr. Kethledge. No, sir, I have not.
Chairman Leahy. Or with the Federal Rules on attorney-
client privilege that is under debate now, the--
Mr. Kethledge. Not the Federal. I have only experienced
that to the extent I have been subject to it.
Chairman Leahy. And how about the reporter's shield law?
Have you done a lot in that regard?
Mr. Kethledge. No, sir.
Chairman Leahy. So you are so like Judge White in that
regard.
Mr. Kethledge. That would be correct, Chairman.
Chairman Leahy. I know that I agree with what President
Bush has on his website, Judge White, that you are experienced
and highly qualified. I was thinking that you--about 98 percent
of these district attorneys see their sentences upheld. Anybody
who has ever been a district attorney would be delighted to
have 98 percent of their cases upheld. And I also, even though
you have been an appellate judge longer than Mr. Kethledge has
been a lawyer, I think you are both highly qualified.
We will--
Senator Brownback. Mr. Chairman, I do want to move that we
go into closed session.
Chairman Leahy. We will set a time so we can have other
members here at a time when that can be done. The record will
stay open in the meantime, and I can assure the Senator from
Kansas he will have his opportunity to make that request.
Senator Brownback. Thank you.
Chairman Leahy. We stand in recess.
[Whereupon, at 12:27 p.m., the Committee recessed, to
reconvene at 5 p.m., and went into closed session.]
[Questions and answers and submissions follow.]
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3
JUDICIAL NOMINATIONS: PAUL G. GARDEPHE, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; KIYO A. MATSUMOTO, NOMINEE
TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK; CATHY
SEIBEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
NEW YORK; GLENN T. SUDDABY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF NEW YORK
----------
WEDNESDAY, JUNE 11, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, Pursuant to notice, at 2:17 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer, presiding.
Present: Senator Brownback.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. The Committee will come to order.
I want to welcome all the nominees and their families. We
have an all-New York panel this afternoon, and that warms my
heart. In New York, we have worked out a really wonderful
system of nominating judges to the District and Circuit courts,
in which the President and I have worked extremely well
together to name highly qualified consensus candidates to the
Federal bench.
We all know there's often rancor when it comes to judges
from other parts of the country, but there's been virtually
none in the 7-years of George Bush's term, in the 7-years I've
been here in the Senate when we have served together and that's
because in New York we select mainstream consensus candidates
for the bench.
It's my honor to introduce to the Committee today four such
candidates to serve as judges in the District Courts across the
great State of New York. All four of our nominees have
unanimously been rated ``Well Qualified'' by the Bar
Association.
And so now I would like to ask the nominees to come
forward. Okay. Now, Congressman Walsh was going to be here to
give an introduction, particularly to Mr. Suddaby, but he
isn't. So if he comes we'll let him do his introduction after
the introductions.
[Laughter.]
Now, will you please raise your right hand?
[Whereupon, the nominees were duly sworn.]
Senator Schumer. Please be seated.
Now, before I introduce the judges, the witnesses, Senator
Brownback? I can sit down, I guess. Would you like to say
something, Senator Brownback.
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Yes. Thank you. I wanted to thank
Chairman Leahy for holding this hearing and moving these
forward. As you know, this has been a controversial issue, the
slow pace of judges getting approved, both at the District and
the Circuit levels. I'm pleased to see us getting this moving
forward, and hopefully these will get floor time to be able to
get approved on through the process. We are historic low levels
on Circuit Court judges, and my hope is that we can start to
get some of those to move, as well as District Court judges.
I am pleased we are getting these four in the hearing
today. I have looked through some of your backgrounds; quite
impressive. We have even got one here from Manhattan, Kansas.
Or was it Manhattan, New York? Okay. Well, I get those mixed
up.
Senator Schumer. Six of one, half dozen of the other.
Senator Brownback. Big Apple, Little Apple. I get those
confused sometimes. But glad to have you here, and glad to be a
part of the hearing.
Senator Schumer. Well, thank you, Sam. We in New York were
proud to name our center island of New York City after
Manhattan, Kansas.
Anyway, let me first--I am pleased to introduce Paul
Gardephe. He's nominated to be a District Court judge for the
Southern District of New York. Mr. Gardephe has an impressive
and eclectic legal resume that includes work in both the public
and private sectors in work on criminal prosecution, criminal
defense, civil litigation, and corporate law.
After graduating magna cum laude from the University of
Pennsylvania and from Columbia Law School, Mr. Gardephe served
as a clerk to Judge Albert Engel on the Sixth Circuit. He then
worked as an associate with Patterson, Belknap, Webb & Tyler
before working 9-years in the U.S. Attorney's Office in the
Southern District of New York.
Mr. Gardephe then left to work for the Inspector General at
the Department of Justice, where he worked to review the
Department's performance in the Robert Hanson and Aldritch Ames
spying cases. After the Inspector General's Office, Mr.
Gardephe returned to the private sector, first to work as an
in-house counsel, and ultimately vice president and deputy
general counsel to Time, Inc. Mr. Gardephe later returned to
Patterson, Belknap, Webb & Tyler, where he is now a partner and
chair of the Litigation Department.
Among other things, Mr. Gardephe has represented a death
row inmate pro bono who was eventually released after years of
litigation. For his work, Mr. Gardephe was honored with the
Thurgood Marshall Award for Pro Bono Death Penalty
Representation.
Mr. Gardephe, I understand your wife and four children are
here with us today. Would you like to introduce them and make
any remarks to the Committee?
STATEMENT OF PAUL G. GARDEPHE, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK
Mr. Gardephe. Thank you, Mr. Chairman. I would like to
thank you, I'd like to thank Senator Specter, Senator
Brownback, and all of the members of the Committee for the
privilege of appearing before you today. I'd also like to thank
the President of the United States for giving me the honor of
nominating me to this position.
I am fortunate to have with me today my wife of 27 years,
Colleen Davis, along with our four children.
Senator Schumer. When is your anniversary, Mr. Gardephe?
Mr. Gardephe. 12/27/81, Mr. Chairman.
[Laughter.]
Senator Schumer. Because my wife and I are married--we
celebrate our 28th on September 24th.
Mr. Gardephe. I have with me today, in addition to my wife,
my four children: Tess, who just graduated from high school,
and I have three other children. They're triplets, 12 years
old.
Senator Schumer. Ooh.
Mr. Gardephe. Emma Kate, Paul William, and Sophie Elayna.
In addition, I have two friends with me today.
Senator Schumer. Why don't we first have your family stand
up so we can just acknowledge them? Mrs. Gardephe. And hi,
triplets.
[Laughter.]
Thank you. Welcome.
Please continue.
Mr. Gardephe. I have two friends with me, Mr. Chairman.
Susan Woodside, who I worked with on the Ames and Hanson
investigations at Department of Justice, and also Amanda
Kramer, who is an Assistant U.S. Attorney in the Southern
District of New York.
[The biographical information follows.]
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1Senator Schumer. Thank you, Mr. Gardephe.
Now let's move on. Next, I am particularly proud to
introduce Judge Kiyo A. Matusumoto because she was my
recommendation to fill the seat on the U.S. District Court for
the Eastern District of New York, which covers all of Long
Island, which includes Brooklyn and Queens, where I live.
Before becoming a well-respected U.S. magistrate judge in the
Eastern District, Judge Matsumoto's impressive career included
work in the private sector, in academia, and in public service.
After graduating with high honors from the University of
California at Berkeley and receiving her J.D. from Georgetown,
Judge Matsumoto worked as an associate at McDonald, Hogue &
Bayliss from 1981 to 1983. She then worked as an Assistant U.S.
Attorney in the Eastern District, and has also taught as an
Adjunct Professor of Law at NYU.
As a magistrate judge since 2004, Judge Matsumoto has
earned an unimpeachable reputation, and only on one occasion
has a reviewing District Court declined to adopt her report and
recommendations. I am not only pleased with Judge Matsumoto's
nomination because of her integrity and qualifications, but I
also believe Judge Matsumoto will contribute to a diversity of
perspectives to the Federal bench. Outside the Ninth Circuit,
Judge Matsumoto will be only the third Asian American appointee
to the Federal courts, and only the second in 14 years.
Judge Matsumoto's father is here with us today. He and
Judge Matsumoto's mother spent time in an internment camp
during World War II, and I've always been hopeful that by
ensuring that the Federal bench is filled with men and women of
principle from a diverse range of backgrounds and experiences,
we can avoid repeating such tragic mistakes of the past.
Judge Matsumoto and her husband have three beautiful
children. So, Judge, why don't you introduce your family and
make any brief remarks you wish to make?
STATEMENT OF KIYO A. MATSUMOTO, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Judge Matsumoto. Senator Schumer, I would like to thank you
and the Committee for hearing us today, and thank Senator
Brownback for being here. I would also like to thank the
President for his nomination to the U.S. District Court for the
Eastern District.
I'm very pleased to introduce my family. I have here my
father, George Matsumoto, and my brother Ken Matsumoto, both
from California. And I have my husband of 23 years, Colin Lee,
along with our three children, Kimi Lee, Liam Lee, and Miya
Lee.
In addition, I am pleased to note that seven of my present
and former law clerks are present here.
Senator Schumer. Why don't we first have your family stand
so we can acknowledge them? It's always nice to see the proud
families. Welcome. And particularly for you, Mr. Matsumoto. I'm
sure you're very proud of your daughter today.
Judge Matsumoto. Thank you, sir.
Senator Schumer. Please continue.
Judge Matsumoto. I do have, as I said, seven present and
former law clerks here today: Ameet Kabrawla, Tomoko Onozawa,
Kristin Mattiske, Alvin Lin, Ellen Blain, Jenny Kim, and Joseph
Loy, as well as representatives of the Asian American Bar
Association of New York and the National Asian-Pacific American
Bar Association.
Thank you, sir.
[The biographical information follows.]
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2Senator Schumer. Thank you, Judge Matsumoto.
Next, we're going to move on to another nominee who I
enthusiastically recommended to the President, and that is Ms.
Cathy Seibel. She is nominated for the District Court of the
Southern District of New York. She spent 21 years as a Federal
prosecutor, mostly in New York. She developed a reputation for
fairness and effectiveness. Currently, she's the First
Assistant U.S. Attorney for the Southern District, and she's
also served as Deputy U.S. Attorney and Assistant U.S. Attorney
in Charge during her tenure.
She has prosecuted a number of high-profile tax fraud
cases, including the Leona Helmsley case, as well as the very
first case when the Violence Against Women Act was used for a
murder charge. I was the author in the House of that law, so it
is good to see it going into effect in a good way.
Despite the demands on her time as a prosecutor, Ms. Seibel
also finds time to teach a course on trial practice at Columbia
Law School and has previously taught courses at Fordham. And, I
would add that while at the Southern District she has trained
several generations of lawyers, and not the least of whom is my
own chief counsel, the well-known and outstanding Preet Barara,
who is sitting behind me making sure I make no mistakes.
Ms. Seibel graduated magna cum laude from Princeton,
received her J.D. from Fordham University where she was editor-
in-chief of the Fordham Law Review. She clerked for Judge
Joseph McLaughlin in the Eastern District after graduation, and
so she has truly been working to protect the rule of law in New
York since the beginning of her career as a lawyer.
Ms. Seibel, I know you are, too, joined by your family
today. Would you like to introduce them to the Committee and
make any brief statement?
STATEMENT OF CATHY SEIBEL, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
Ms. Seibel. Thank you, Mr. Chairman. I'd like to thank you
and Senator Brownback for convening this hearing today, and
particularly, Senator Schumer, thank you for recommending me to
the White House. I'd like to thank President Bush for accepting
that recommendation. It is an honor to be here.
I have with me today my mother, Ellen Seibel, my husband of
almost 18 years, Barron Lerner, our two children, Ben, who is
15, and Nina, who is 13.
Senator Schumer. Will you please rise, Seibel family?
Welcome. Glad you're here. I can see how proud your mother is
by the smile on her face.
Ms. Seibel. And also some friends from DC are here: Eric
Biel, Michael Bosworth, and Christine Parker.
[The biographical information follows.]
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6Senator Schumer. Great. Okay. Thank you.
And finally, last but not least, I'd like to introduce the
current distinguished U.S. Attorney for the Northern District
of New York and the President's nominee to the bench for that
same District, Mr. Glenn T. Suddaby.
Mr. Suddaby has been a U.S. Attorney since 2002, but his
ties to the Northern District go much further than that. He
received his B.A. from Suny at Plattsburg, then received his
law degree from Syracuse University, and then began his career
as a prosecutor in Onondaga County, which is the county that
the city of Syracuse is in.
After a short stint in the private sector at the Syracuse
law firm of Mentor, Ruben, and Trivelpiece, Mr. Suddaby
returned to the Onondaga County District Attorney's Office as
the First Chief Assistant District Attorney, and he served in
that position for 10 years. Between college and law school, he
served for several years as a legislative aide in the New York
State legislature.
Mr. Suddaby has earned his reputation as a hard- working
prosecutor who has, in particular, targeted corruption
throughout his District. Mr. Suddaby's impressive career in law
enforcement and his commitment to placing the rule of law ahead
of ideology make him a fine choice for New York and for the
Northern District.
Mr. Suddaby and his wife Jane have two children.
Mr. Suddaby, please make any remarks you wish to make, and
introduce your family.
STATEMENT OF GLENN T. SUDDABY, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK
Mr. Suddaby. Thank you, Mr. Chairman. Thank you for the
opportunity to be here today. I want to thank Senator Leahy and
the Committee for the opportunity to be here. Senator
Brownback, I want to thank you, sir, for being here as well.
I want to particularly thank you, Senator Schumer, for your
support now for the second time. I would like to thank the
President for the nomination for the ability to sit here today.
Thank you.
My family is here. My wife Jane, of almost 19 years on
August 25th, and my oldest son, Conor, and my younger son,
Ryan.
Senator Schumer. Please stand so we may say hello. Welcome.
Thank you all for being here.
Okay. Well, great. Now let's begin some questions.
Here is my first question to all four nominees. There's
been an age-old debate about how exactly a free society should
balance security and liberty. I've always been a strong
believer we can have both, that we can continue to exercise the
liberty guaranteed by our Constitution without hampering the
ability of government to protect us from those who would do us
harm. We know there are plenty of people like that,
particularly these days.
I believe that our constitutional system requires checks
and balances. The most important check on over-reaching
executive power is the Federal judiciary. As a judge you will
be on the front lines of the debate of how to balance liberty
and security. How should a judge approach this question? How
will you go about balancing these interests on the bench? We'll
start with Mr. Gardephe and work our way to my right.
Mr. Gardephe. Thank you, Mr. Chairman. The place I would
begin, of course, is with our Constitution and laws that govern
our country, and have governed it for the last 200 years. I
would be guided by the fact that we have been able to maintain
our principles through war and peace for the last 200 years,
and most recently by the experience of the prosecutions in the
Southern District of New York regarding the first attack on the
World Trade Center, as well as the seditious conspiracy
involving Sheik Rahman.
I believe in both of those cases the judges involved were
able to balance those important--indeed, vital--considerations
that you just mentioned, and that we can be confident in the
future that those critical values can be balanced.
[The biographical information follows.]
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3Senator Schumer. Judge Matsumoto.
Judge Matsumoto. I agree with my colleague, Mr. Gardephe. I
also would start with the Constitution that has governed all of
the courts' considerations of issues where one must balance the
interests of liberty and due process against the vital national
interest of national security, particularly in times as we have
experienced recently.
I do believe that a judge, when making those delicate
balances, must pay due deference to the executive and
understand that in certain circumstances the executive does
have certain prerogatives. However, when individual liberties
are affected, I do believe that the court must look at the due
process considerations to ensure that an individual is given
fair notice of the charges and adequate protection of his
constitutional rights.
Senator Schumer. Thank you.
Ms. Seibel.
Ms. Seibel. Thank you, Mr. Chairman. The question you raise
is probably the pressing issue of the day. Government has no
higher function than to protect its citizens. At the same time,
the rights in the Constitution are of utmost importance, and
have been, as Mr. Gardephe said, for 200-plus years. If issues
involving the conflict between those two principles came before
me, I would look to what the higher courts have said on the
subject and attempt to achieve, as you said a moment ago, the
maximum security with the minimal abridgement of individual
liberties based on that body of law.
Senator Schumer. Mr. Suddaby.
Mr. Suddaby. Thank you, Mr. Chair. I think it is, without
question, a critical area that we really have to continue to
show the world that we will continue to do it the right way and
that individual rights will be protected. The judiciary has its
role. We have a responsibility to make sure that we follow the
law of the Constitution and that those rights are protected, at
the same time assuring the public that justice will be done in
our country for those who would threaten our liberties and
safeties.
Senator Schumer. Thank you.
Now, for each of you, a second question. Can you name a
judge or a justice whom you admire, and tell us why?
Mr. Gardephe. Yes, Mr. Chairman.
Senator Schumer. Mr. Gardephe.
Mr. Gardephe. There is a judge in the Southern District of
New York when I first began as a lawyer named Edward Weinfeld,
a District Court judge. Judge Weinfeld was admired greatly by
lawyers practicing at the time for his legal scholarship, his
work ethic, and his commitment to justice. He, in particular,
when citing his opinions, it was the common practice after the
citation to list in a parenthetical ``Weinfeld, J.'' because of
the imprimatur that came along with any decision he had
written. He is someone I admire greatly and would hope to
emulate.
Senator Schumer. Judge Matsumoto.
Judge Matsumoto. Thank you, Senator. I would have to say
that I have always had a great deal of respect and admiration
for Circuit Judge Rena Radja of the Second Circuit. She served
briefly as the U.S. Attorney before her appointment to the U.S.
District Court in the Eastern District, and throughout her
career as a jurist has demonstrated a high level of
scholarship, clear writing, very strong awareness of protecting
the rights of the accused, and ensuring that he or she receives
a fair trial. She is also, I think, as a Circuit judge,
continued her tradition of writing clear, scholarly decisions
and providing guidance for judges to follow.
Senator Schumer. Ms. Seibel.
Ms. Seibel. I had the good fortune after law school to
clerk for Judge Joseph McLaughlin, who was then a District
Court judge in Judge Matsumoto's court in Brooklyn. He, to me,
is a wonderful example of a judge who is scholarly and yet
practical, who runs a tight ship but never loses his humanity,
and his recognition that the parties before him are there on
what is, in their lives, an incredibly important matter, and I
would try to emulate him.
Senator Schumer. Mr. Suddaby.
Mr. Suddaby. Yes. Thank you, Mr. Chairman.
I met the Chief Judge in the Northern District of New York
when I was in law school, Judge Munson, who was revered as a
very clear-thinking, hard-working, hard-charging, practical
judge. He works--you know, took the time to work with law
students. He reached out to the community and he was really
very well-known for his recall. In the middle of the trial he
would quote testimony back to people from a week before. He was
just what a District Court should be. He just retired last
month after, I think it was, 30-some plus years on the bench.
It was a great honor to know him and to have him as a role
model.
Senator Schumer. Thank you.
I have two more brief questions. My time is up, but with
Senator Brownback's indulgence, first, for Judge Matsumoto, you
have spent most of your career representing the government,
defending it from civil litigation. One of the hallmarks of our
legal system is, all citizens have the opportunity to seek
redress from their government when it has violated their
rights.
What can you tell the committee to assure us that, if
confirmed, you'll be able to fairly consider the claims and
rights of plaintiffs against the government?
Judge Matsumoto. Thank you, Senator. In my capacity as an
Assistant U.S. Attorney, I also had occasion to bring suits on
behalf of the Federal Government. As a magistrate judge, I
certainly do have many cases before me where I must carefully
weigh the arguments, both factual and legal arguments, of both
parties. I believe that I have attempted, and have in fact
achieved, the ability to come to every case with an open mind,
read the papers submitted by the parties, research the law, and
follow the law to the best of my ability.
I do believe that in my capacity as a magistrate judge,
when I've had to select jurors, I try very hard to probe the
jurors and ensure that they come to the jury box with an open
mind with no pre-conceived prejudices or notions about the
outcome of a case or that may affect their ability to be fair
and impartial in considering the facts before them.
Senator Schumer. Thank you.
And now for both Ms. Seibel and Mr. Suddaby, you both spent
the bulk of your legal career as prosecutors, Federal
prosecutors. By all accounts you've been both fair and tough,
but you have spent little or no time representing the other
side in the criminal justice system. What can you tell the
Committee to assure us that, if confirmed, you will be able to
fairly consider the claims and rights of criminal defendants
who come into your courtroom?
Ms. Seibel. Thank you, Senator. I regarded as part of my
job as a prosecutor to look at the case from both sides, to
make sure that the process is fair, to make sure that the
defense has the rights--in fact receives the process to which
it's entitled under our laws, and I would like to think, if you
spoke to opposing counsel on the cases I've handled, they would
tell you that I have succeeded in what I hope I'm achieving, to
be open-minded and fair, and I would certainly do my best to
continue that if I am fortunate enough to be confirmed.
Senator Schumer. Mr. Suddaby.
Mr. Suddaby. Thank you, Senator.
As in my supervisory capacity, both in the District
Attorney's Office of Onondaga County as a U.S. Attorney, I
often spoke to our young prosecutors about the fact that they
have a high responsibility as prosecutors to do justice, and
that means they should be just as happy and satisfied with the
dismissal of a case if that warrants--if that accounts for
justice as a jury verdict. I think I can say that people who
know me understand that that's the way that I look at it, and
that if I am fortunate enough to take this next step and be
confirmed as a Federal District Court judge, that every person
that walks into that courtroom will be treated fairly and just
the same as anyone else.
Senator Schumer. Thank you. I'm finished with my questions.
Senator Brownback.
Senator Brownback. Thank you very much, Mr. Chairman.
Welcome, all of you. I'm delighted to have you here. I was
sitting up here feeling a little bit left out, so I wanted to
tell you all, I have been married 25 years to a wonderful wife.
[Laughter.]
I have five children, and August 7th is my anniversary
date.
[Laughter.]
So I'm delighted to have all of you here. You've got great
records. I've just got one specific question for each of you
I'd like to go through, if we could.
Mr. Gardephe, you worked for the Justice Department as
Chief Investigator of the FBI's performance in connection with
the Ames and Hanson espionage cases. I just wondered, and this
is just for personal consumption more than anything, what did
we learn as a country through your investigation in coming out
of that on the other side?
Mr. Gardephe. Thank you, Senator. We learned, I think in
part, from both the Ames and the Hanson experiences that it is
important to have deterrents in place to make people who are
contemplating espionage think about the risks. And I think what
we learned from the Ames and the Hanson affairs is that we did
not have adequate deterrents in place, we did not have
financial disclosure requirements, we did not impose polygraph
examinations with the frequency perhaps they should have been.
We did not have adequate deterrents in place to prevent people
like Ames and Hanson who attempted to betray their country to
think about the consequences and the risks if they went forward
with that betrayal.
Senator Brownback. This doesn't have anything to do with
your appointment, but have we put those safeguards in place
since then?
Mr. Gardephe. There have been great improvements in the
security regimes at both the CIA and the FBI since Ames and
Hanson. While we cannot be certain that there are no moles in
these organizations today, there are certainly far more
deterrents in place now than there was back when Ames was a CIA
officer and Hanson was an FBI agent.
Senator Brownback. Judge Matsumoto, you have an impressive
background and impressive family history. I jog or walk around
Capitol Hill and will go by the memorial where we recognize the
internment, and it's always, I guess, great to see people
succeed through difficulty. You and your family, and your
father, certainly have a lot to be proud of.
You've done pro bono work for several women's
organizations, I noted, including for a community group who
provides assistance and shelter for abused women and their
children. What have you learned through that work that we
should know about here in dealing with that type of situation
of abused women and children?
Judge Matsumoto. I think the overriding concern, Senator,
in that situation was to provide a safe shelter for women who
were trying to remove themselves from the abusive situation so
that she and her family could seek adequate support, whether
it's legal or from the social services agencies, and to give
her a place where she could decompress and have some distance
from an abusive relationship, which oftentimes would be highly
charged. My work there was primarily to assist organizations
that would try to set up shelters for these women so that they
could receive safe shelter from a situation until those support
services were put into place.
Senator Brownback. Are we adequately addressing that
situation now? This has no bearing on your appointment, but I
just was noting it in your resume and I just was curious.
Judge Matsumoto. This was an organization in Seattle in my
first 2 years of practice that I worked with. I haven't ever
been back to practice in Seattle, but I do believe that
certainly the public awareness of this problem has increased
and I do believe that, at least in New York City and other
metropolitan areas, there is more attention being focused on
the problem of domestic violence and the need to provide
shelter for families who may wish to extricate themselves from
a difficult situation.
Senator Brownback. Ms. Seibel, you've worked--there was an
article on you while you were serving as a Special Assistant
U.S. Attorney on bankruptcy and tax fraud crime cases. I think
you said in one article, if they quoted you right, said this
``made your blood boil''. I like it when people get their blood
boiling; we do that a lot around here.
[Laughter.]
In your view has the Federal law enforcement been paying
enough attention in recent years to bankruptcy fraud cases? Do
law enforcement officers and prosecutors have sufficient tools
to effectively attack bankruptcy fraud?
Ms. Seibel. Thank you, Senator. I think that quote sounds
like me. I think I probably was correctly quoted. There have
been improvements since I was doing that work back in the early
1990s. I believe it's Section 152, which is the main criminal
bankruptcy fraud statute, that has been amended and
rationalized. I think, like anything else, it is a matter of
resources. Many bankruptcy frauds are not huge frauds.
It is always difficult in allocating resources: Do you
focus on a few huge frauds? Do you try to look at a bunch of
little frauds? I think, as in most areas of law enforcement,
you can't possibly prosecute everybody who's doing it. You have
to try to bring enough cases that it will deter other people
who might be thinking of that. But to me, since bankruptcy is a
privilege created by government, it does make my blood boil
when people abuse it.
Senator Brownback. That undermines the system, as you note,
that privilege, if it is abused.
Mr. Suddaby, you mentioned in your written answers to the
Committee's question, you personally prosecuted over 80
homicide cases. That's a lot of cases to prosecute. You've
represented Department of Justice on a border enforcement team
on setting policy at the border with Canada. We generally focus
on the southern border a lot more than the northern border
here. What do you see as the greatest security threats we have
on that northern border, and are they being addressed?
Mr. Suddaby. Thank you, Senator. Yes. I've had the great
opportunity to serve as the Attorney General's chair on the
Border and Immigration Subcommittee, and it's mainly because I
was up there on the northern border yelling about all the
resources going to the southern border, and that we had another
border up north and there was a different type of threat, but I
thought, and still believe, a very real threat that we have to
be aware of.
I'm happy to tell you, I think we've made a lot of progress
in our work with the Canadian Government and Canadian law
enforcement. Our CMP has worked with our border law enforcement
agencies terrifically. One of the committees I sit on is the
International Joint Management Team for IBETs, which means
Integrated Border Enforcement Teams, where provincial in
Canada, Federal in the U.S., State and local, all the way
through work together on the border, come together as a task
force and share intelligence and do what they can to secure
that border.
Now, we still have a lot of work to do and there is a
threat there that we need to realize is real and pay attention
to, but I think we're doing a good job and we're making great
progress.
Senator Brownback. I would ask all of you a narrow question
on your background because I guess we tend to look at judges as
going into a cloistered life now, and it's okay, now you remove
yourself from living and you just sit on a bench and you
dispense justice from there. I don't think it's fair to you. I
don't think that's good for the system. You each bring
different experiences. They may be fairly far back in your
background, it may be fairly recent, but those are useful
things.
I just want to encourage each of you to continue to do
those to the degree you can and maintain your independence on
the bench. If it's spending the night at a homeless shelter or
checking yourself into jail sometime--not for breaking the law
but for experience basis--I just find, for me, it really
changes your outlook when you get a sense, and a smell, and a
feel and you can really see the system rather than hear about
it through somebody else.
I spent a couple nights in jail of my own volition, not
having committed any crime or being held there against my will.
Fabulous experience. Just the smell and the feel, it just makes
all the difference in the world. So I just urge you to follow
some of your instincts on some of those when you get a chance
to, because it just will really broaden that background of
experiences you have.
Too often when we put people up in your positions, it's
okay, that's it, now you've just got to sit here and be a judge
and stop experiencing these things, when we really need you to
experience a lot more things because you're going to have odd
cases come in front of you. You don't know what case is going
to come in front of you, but we expect you to be able to make a
good judgment once that case comes in front of you. I've you've
had a background of experiences to be able to mesh with it,
that's just all that much more helpful to be able to do.
My final thought and admonition is just that, in government
positions, I think we need a lot of humility, that we just
don't know everything. Certainly in my position you can't say
that sort of stuff because people expect you to know things,
but we don't. I think we just need a good, good dose of
humility, of listening to what people have to say, realizing we
need wisdom. We've been put in these great positions to be able
to do what's right, and the people trust the system. If they
ever lose trust in the system we are in real trouble, and you
are a big part of that trust in the system.
God bless you. I appreciate all of you, and I appreciate
your families, too, for being a part of this because these are
key jobs and it requires the whole family to do it.
Thank you, Mr. Chairman.
Senator Schumer. Well, thank you, Senator Brownback.
I want to thank all our witnesses. Before ending, I'd like
to put into the record the statements of Chairman Leahy, who
couldn't be here today--he's got many responsibilities, as you
can imagine--and Senator Clinton. So, without objection, their
statements will be entered into the record.
[The prepared statements of Senator Leahy and Senator
Clinton appear as a submissions for the record.]
Senator Schumer. We'll keep the record open for one week
for written questions.
With that, our hearing is adjourned.
[Whereupon, at 2:53 p.m. the Committee was adjourned.]
[Submissions follows.]
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9
NOMINATION OF CLARK WADDOUPS, OF UTAH, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF UTAH; MICHAEL M. ANELLO, OF CALIFORNIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; MARY STENSON
SCRIVEN, OF FLORIDA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE
DISTRICT OF FLORIDA; CHRISTINE M. ARGUELLO, OF COLORADO, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF COLORADO; PHILIP A. BRIMMER, OF
COLORADO, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO;
AND GREGORY G. GARRE, NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED
STATES
----------
TUESDAY, SEPTEMBER 9, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-562, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Whitehouse, Specter, and Hatch.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. The hearing will come to order. Senator
Hatch is a former Chairman of this Committee, and he knows that
many times these little colloquies between the members is where
half the work gets done.
I have been concerned--and I am not saying anything here
that I have not said before--about the number of filibusters,
Republican filibusters, we faced this year and the refusal to
give consent to proceed even on important bills. We had a
number of bills out of this Committee that went out with
virtually every Republican and every Democrat supporting them,
and yet they still get blocked. We do have the Republican
Thurmond rule which says no judges after--certainly after the
1st of July. But I have gone the extra mile by proceeding with
another confirmation hearing, and I hope that I will not get
the objections from our Republican colleagues on breaking the
Republican Thurmond rule by still having judges this late in
the game.
The hearing will include the President's nominee to be
Solicitor General. This will almost complete our efforts to
expedite consideration of replacements--the entire leadership
of the Justice Department resigned in the wake of the scandals
of the Attorney General Gonzales era, and so this will bring
about almost the replacement of the entire leadership team at
the Department of Justice.
We are going to include five additional judicial
appointments. Their tenure, of course, is for a lifetime and
will not expire in 5 months when the President leaves office. I
mentioned the Thurmond rule. That dates back to 1980, Senator
Strom Thurmond, the Republicans were in the minority, he was
Ranking Minority Member, and he called for shutting down the
judicial confirmation process. There was a Democratic
President. Republicans were in the minority, and Democrats
conceded to the Thurmond rule, which I know everybody on this
panel strongly supports.
Then the Republicans used it in another recent Presidential
election year, 1996, when the Republican Senate majority did
not confirm a single judge after the August recess and no
circuit judges during the whole 1996 session. I mention that
because I saw something in the press recently that suggested
otherwise, and it is unfortunate when reality gets in the way
of the rhetoric.
We have confirmed more judges already in this Congress than
during the entire 109th Congress, when a Republican Senate
majority and Republican Chairman of the Committee did not have
to worry about the Thurmond rule and an abbreviated session due
to a Presidential election. In the 37 months I have served as
Judiciary Chairman, the Senate has confirmed 158 of President
Bush's judicial nominees. That is the same number confirmed by
the Senate Republican majority in the more than 4 years it
controlled for the Republican administration.
But I will work with everybody. It is possible that you
know at this time there had been over the year rare exceptions
to the Thurmond rule, but it has required the consent of both
the Democratic and Republican Leader and the Democratic and
Republican leaders of this Committee to do that. And I want to
thank Senator Specter who agreed to these judges: Clark
Waddoups--am I pronouncing that correctly, Senator Hatch--of
Utah; Michael Anello of California; Mary Stenson Scriven of
Florida; and two nominees from Colorado: Christine Arguello and
Philip Brimmer. They have the support of their home-State
Senators, Republicans and Democrats.
Senator Salazar called me so many times at my home last
week in Vermont, I think he had me on speed dial. Both my wife
and I are friends of the Salazars, and she was always happy to
hear from you, and I was always happy to hear from you. At
least on one occasion when the phone rang, I said, ``Look, I
have got a pile of work I have got to do. I do not care who
that is. Tell them I am not here.'' And she answers and she
said, ``Oh, this is different. Patrick, it is Ken Salazar. You
take that call,'' which I did. And I want to commend you,
Senator Salazar, on working it out with Senator Allard so we
could have these judges before us. As you know, they were not
originally on the list, and at your request we asked consent to
do it. I want to thank Senator Specter, too, because even
though the time was not the normal time given for notice, the
Republicans did not object, and we were able to put them on.
Ms. Arguello had been nominated before by President Clinton
to the Tenth Circuit, but was pocket-filibustered in 2000. So
we are trying to get through these, so Ms. Arguello, like Judge
Helene White, has now been nominated by Presidents of both
parties. We have reduced Federal judicial vacancies from the
10-percent level they hit after the pocket filibusters before,
during President Clinton's time, to less than half that number,
and have done even better with the circuit vacancies. We have
reduced those by more than two-thirds. And so we have actually
improved--one of the areas we have improved.
I will put the rest of my statement in the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Chairman Leahy. I will yield, of course, to Senator
Specter, and again I thank Senator Specter for making it
possible for us to add the two from Colorado at the request of
Senator Salazar and Senator Allard.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you, Mr. Chairman. I was
pleased to consent to the additions, notwithstanding the
technical rule requirements, and we thank you for listing these
judges for the confirmation hearing today.
I think that the agreement between Senator Allard and
Senator Salazar is a good barometer of moving ahead with the
appointment of their judges, and it is my hope that the example
which they have set will provide the basis for some additional
confirmation hearings. Certainly when two Senators, one a
Republican and one a Democrat, come to an agreement, that takes
the issue of ideology out of the picture and provides a
principled basis for moving ahead, notwithstanding the fact
that it is September.
There are some other situations which I have been
discussing with the Chairman where the same thing has happened,
where Senators of different parties in other States have come
together, and it is my hope that it will provide a basis for
moving ahead with some additional confirmation hearings.
When the Chairman cites the practices of the past, I agree
that there has been certain actions taken by the Republican
Caucus which I think were unfortunate and said so at the time.
I think the same thing has happened with the Democrats. The
Chairman and I have engaged in a very extensive discussion on
statistics, which I will not do here today. We have also
engaged in discussions about the application of the so-called
Thurmond rule, and I would just put in the record a CRS study
which raises questions about the Thurmond rule, citing examples
where confirmations were held. Perhaps the most notable was now
Supreme Court Justice Breyer confirmed to the First Circuit
after the 1980 election when President Reagan was elected and
the Committee acted and the Senate confirmed First Circuit
Court Judge Breyer at that time.
But I think that it is fair to say that the Judiciary
Committee of late has acted in a bipartisan, collegial manner,
and I think that has been to the benefit of the country. And
that is illustrated today by the Chairman setting these
hearings, and even though it is September. So I hope we can
proceed, and I hope we will one day reach a point where the
ideology will be put behind us and we will try to move ahead on
qualification only.
Thank you, Mr. Chairman.
Chairman Leahy. I thank you.
Of course, as Senator Specter knows, we try to work
together of every one of these things and try to have them
together. So I will go by seniority in calling on the Senators:
first, from Utah, Senator Hatch, one of the most senior members
of the Senate.
PRESENTATION OF CLARK WADDOUPS, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF UTAH, BY HON. ORRIN G. HATCH, A U.S.
SENATOR FROM THE STATE OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman.
Chairman Leahy. I knew him when he had dark hair. He knew
me when I had hair.
[Laughter.]
Senator Hatch. And I like you better without hair. As long
as your wife likes you, I am going to love you, I tell you
that.
Well, thank you, Mr. Chairman, for scheduling this hearing.
It is very important to us in Utah, as well as the other States
involved here today. Let me just take a few moments to
introduce to the Committee Clark Waddoups, who is nominated to
the U.S. District Court for the District of Utah. And I will
just take a few minutes because my colleague Senator Bennett is
also here to speak about this exceptional nominee.
When Judge Paul Cassell stepped down from the U.S. District
Court last year, Senator Bennett and I set out to find a
replacement with legal experience that is both wide and deep.
Clark Waddoups truly stood out. It became obvious to us why the
Utah Chapter of the Federal Bar Association recognized Clark in
1999 as Utah's Outstanding Lawyer, because that is exactly what
he is. Clark has been practicing law for nearly 35 years, the
last 27 years as head of his own firm in Salt Lake City. Before
that, he was a partner in the law firm of O'Melveny & Myers,
but he did come home to Utah.
He has been involved in virtually every aspect of law in
our State, including serving on the Board of Visitors of the
Law School of Brigham Young University, and for 17 years on the
Advisory Committee to the Utah Supreme Court on the Rules of
Evidence. He has been involved in legal practice at the Federal
as well as State level, having clerked for the distinguished
Ninth Circuit Judge Jay Clifford Wallace and twice chairing the
Merit Selection Panel for the U.S. Magistrate Judges.
I might mention Judge Wallace was always in contention to
be placed on the Supreme Court. That is how well thought of he
was by both parties. And Clark Waddoups is the type of person
any appellate judge would love to have work.
The majority of Clark's extensive litigation experience has
been in Federal court, and I am confident that his confirmation
will be a smooth transition from before to behind the Federal
bench.
Mr. Chairman, I know this is a somewhat chaotic time of the
year in Congress, and we have just a few weeks to get a lot
done. Utah has only five U.S. district court seats, and our
population has increased by more than 50 percent since the last
one was created in 1990. That kind of population growth, among
the fastest in America, means more cases and more pressures on
the court.
Since Judge Cassell resigned to go back to teaching, he is
not available to pitch in the way senior judges do. So it is
very important that this seat be filled, and I am so pleased
with the excellent nominee the President has sent to the
Senate.
Mr. Chairman, I know Clark Waddoups very well. We looked at
the whole Utah Bar, and there are a number of very, very fine
judges and lawyers there from whom we could have picked this
seat. And I have to say that none is finer than Clark Waddoups.
Clark Waddoups is truly a lawyer's lawyer. He is somebody that
I think everybody on this Committee would respect and will
respect. He is a person who I expect to be nonpartisan in every
way. He is a person I expect to be one of the pillars of the
district court bench in not only Utah but throughout the
country. And I believe that he will add a great deal to our
Federal courts.
He is here with his wife and son, and I hope that you will
get him to introduce them to you. I am very proud of this
family, very proud of the services given, very proud of the
legal capacity that he has. He is one of the great lawyers in
this country, and I know that.
So once again, Mr. Chairman, I appreciate your scheduling
this hearing and hope that each of these nominees will be
confirmed before our work is finished this year, and I am
grateful to you.
Chairman Leahy. Well, thank you very much, and he should
know that the nice things you have said about him here you said
to me privately several times, and you have been a very active
backer of his and talked to me quite a bit. And, of course,
with your support and Senator Bennett's support, two Senators I
respect greatly, this has helped a lot.
Senator Specter. Thank you.
Chairman Leahy. Senator Bennett.
PRESENTATION OF CLARK WADDOUPS, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF UTAH, BY HON. ROBERT F. BENNETT, A U.S.
SENATOR FROM THE STATE OF UTAH
Senator Bennett. Thank you very much, Mr. Chairman. I am
very pleased to join with Orrin in recommending Clark Waddoups,
and we did conduct a search together. I had some names, Orrin
had some names. We sat down and went through them. And Clark
Waddoups' name rather quickly rose to the top of the list, and
he became ultimately our only choice as the one to recommend to
the President. And I am honored, as is Orrin, that the
President has chosen to respect our recommendation and make the
nomination to the Senate.
He is a named partner at one of Utah's leading law firms. I
am not a lawyer, but I have paid a lot of legal bills in my
life.
[Laughter.]
Senator Bennett. And this is a law firm that the company
with which I was associated used in its legal activities, and
they were searching for the best, and this is where they went.
He is ranked 26th in this year's list of Best Lawyers in
America. Orrin talked about best lawyers in Utah, but he has a
reputation that is national. He is an active member of the Utah
Supreme Court Advisory Committee on Rules of Evidence, and his
educational background shows how ecumenical he is in the
primary collegiate competition within Utah. He graduated cum
laude from Brigham Young University in 1970 and then graduated
Order of the Coif from the University of Utah Law School in
1973. So he has covered both of those bases that demonstrates,
I think, a very wise kind of political balance for this man.
While in law school, he served as President of the Utah Law
Review, and Orrin has mentioned that he clerked for Judge
Wallace on the Court of Appeals in the Ninth Circuit.
He has earned the praise of a lot of his colleagues. Let me
dip into a few publications and share with you some of the
comments that have been made.
In the ABA Journal, it says in an article that he possesses
``that rare ability to teach and inspire.''
Another colleague said, ``He is intellectually strong and
doesn't allow himself to be pushed around or walked over. But
at the same time, I have never seen him be belligerent with
opposing counsel or an opponent or belittle them.''
And finally, this quote: His style of legal practice
reflects ``an unflinching commitment to honesty and
professionalism.''
These are the comments of those who have worked with him,
and I am proud to support his nomination and hope that the
Committee will report it out in a judicious and rapid fashion.
Thank you.
Chairman Leahy. Well, thank you very much, and I know,
Senator Bennett, both you and Senator Hatch have other
committees that are meeting and going on. You are welcome to
stay, of course, but also with the understanding if you have to
leave at this point.
Chairman Leahy. Senator Allard and Senator Salazar, first I
might say that my wife and I spent several days in Denver,
Colorado, this past month. Senator Allard, understandably you
were not there, but--
Senator Allard. I was fishing, Mr. Chairman.
[Laughter.]
Chairman Leahy. Well, there was part of the time I wish I
could have been there fishing, and part of the time I wish I
was there fishing with you. But I must say that anytime I have
ever been in Colorado, I feel so much at home--the friendliness
of the people. I live on the side of a mountain in Vermont,
nowhere near the height of the Rockies, of course, but just
being there I feel very much at home. So I thank all
Coloradans, Republican and Democratic alike, for the
hospitality they showed us at our convention.
Senator Allard, please go ahead, sir.
PRESENTATION OF CHRISTINE ARGUELLO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO, AND PHILIP A. BRIMMER,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, BY
HON. WAYNE ALLARD, A U.S. SENATOR FROM THE STATE OF UTAH
Senator Allard. Well, Mr. Chairman, thank you for your very
gracious remarks on Colorado, and I am glad that you had a good
time while you were there. I thought it was a well-run
convention and was proud to have you in the State of Colorado.
Also, Ranking Member Specter, thank you for being willing
to move forward with these two nominees. Distinguished members
of the Committee, I am joined today by my colleague and friend
Senator Salazar to speak on behalf of Christine Arguello and
Philip Brimmer, two individuals nominated by President Bush to
fill judicial vacancies in the United States District Court for
the District of Colorado. Again, I just want to state how
profoundly thankful I am for both of you being willing to move
with both of these nominees.
Christine Arguello, rated as qualified by the American Bar
Association, and Phil Brimmer, rated as well qualified by the
ABA, would capably and honorably serve the citizens of Colorado
and the United States if confirmed.
I would like to begin by thanking Chairman Leahy for
holding this hearing. I look forward to the Committee
continuing the tone of expediency set by the Chairman by
swiftly reporting the nomination to the floor for an up-or-down
vote. It is critical to the administration of justice that the
vacancies on Colorado's Federal district bench, with a total of
three vacancies--two have existed since last year--be filled
immediately. And then one was added this spring with the
untimely death of Phil Figa on the Colorado district court.
I am pleased that we are joined today by Senator Salazar in
what I hope is an early indicator of broad bipartisan support
for these nominees.
I would like to welcome to the United States Senate Mr.
Brimmer's and Ms. Arguello's family who are here today. All of
you no doubt played an important role in Christine's and Phil's
being here today. Speaking from my own experience in public
service, you are all embarking on this journey together, and
your love and support will continue to be instrumental to your
spouse's ability to perform his or her public duties.
Mr. Chairman, Mr. Brimmer is an outstanding attorney. He is
a graduate of Harvard and Yale Law School, institutions that
provided him with tremendous analytical tools and an arsenal of
knowledge which has served him well in his career. Upon
graduation from law school, Mr. Brimmer spent 2 years clerking
with the U.S. District Court for the District of Colorado.
Thereafter, he joined a Denver law firm where he spent 7 years
in private practice before making a decision to devote his
career to public service. This decision led Mr. Brimmer to the
Denver District Attorney's Office, serving first as Deputy
District Attorney and later promoted to Chief Deputy District
Attorney.
Former District Attorney and current Governor of Colorado,
Governor Bill Ritter, wrote, ``Throughout Mr. Brimmer's service
at the Denver District Attorney's Office, he upheld the highest
standards of integrity, fairness, honesty, hard work, and a
dedication to public service.'' Governor Ritter felt he could
trust Phil Brimmer with the most challenging cases that came
before the office, and Phil Brimmer did not disappoint.
Current Denver District Attorney Mitch Morrissey recently
wrote about his former colleague in a similar fashion: ``Phil
Brimmer never failed to impress me both with his work ethic and
his knowledge of the law. He was one of our most valued
attorneys.''
The sentiments of Governor Ritter and District Attorney
Morrissey are reflected in numerous other letters sent to my
office from people who worked with Mr. Brimmer throughout the
years.
Similar to his experience as Deputy District Attorney, Mr.
Brimmer has been exceptionally successful as a Federal
prosecutor. Almost 7 years ago, he joined the U.S. Attorney's
Office as Assistant U.S. Attorney and has worked on an
assortment of criminal cases as chief of the Major Crimes
Section and now as chief of the Special Prosecutions Section.
As chief of Special Prosecutions in the U.S. Attorney's Office,
Mr. Brimmer handled very challenging and procedurally complex
cases, dealing with an assortment of crimes including child
exploitation, cyber crimes, capital crimes, and prison crimes.
Attorney General of Colorado John Suthers hired Phil Brimmer in
the fall of 2001, recognizing his excellent work ethic and his
tremendous intellectual capability. It seems Mr. Brimmer
continues to impress everyone he works beside as he continues
to serve Colorado's legal community with great distinction.
Anyone familiar with Phil Brimmer's professional
credentials can attest to his intelligence and his talent.
Anyone familiar with Phil Brimmer as an individual would
certainly observe that he is respectful, loyal, and good
humored. His integrity, honesty, and professional dedication to
public service also contribute to making Phil Brimmer a rare
find.
From my conversations with Mr. Brimmer, it is clear that he
recognizes the proper role of the judiciary. His personal
qualities and character, coupled with his professional
experience and an ABA rating of well qualified and outstanding
bipartisan recommendations from within Colorado's legal, make
Phil Brimmer ideally suited to service on the Federal district
court.
I would also like to welcome Ms. Christine Arguello to the
United States Senate. This is not my first endorsement of Ms.
Arguello. In 1999, I made a recommendation to then-President
Clinton to nominate Ms. Arguello for a seat on the U.S.
District Court for the District of Colorado. This past January,
I again offered her name to President Bush and urged he
consider nominating Christine Arguello to fill a vacant
judgeship on Colorado's Federal district court.
I speak before this Committee today in support of the
nomination of this fine lawyer for service on the Federal
bench. In her more than 25 years of legal experience, she has
worn many different hats. She is experienced as a trial lawyer,
in-house counsel, law professor, and public servant. She is a
skilled attorney with impressive credentials and a diverse
professional background.
Ms. Arguello earned her undergraduate degree from the
University of Colorado and her law degree from Harvard. She
began her distinguished professional career working as an
associate for a law firm. She moved to a public service career
after 19 years of private practice when she joined the Colorado
Attorney General's Office, where she served as Chief Deputy
Attorney General under former Attorney General and now my
current Senate colleague Ken Salazar. In 2003, she returned to
private practice as a civil litigation attorney. In 2006, she
assumed her current job as managing senior associate counsel
for the University of Colorado at Boulder.
Described by many as a trailblazer, Ms. Arguello and the
wide-ranging experiences and accomplishments she brings with
her would make her a great asset to the Federal bench. In
addition to being the first Hispanic from Colorado to be
admitted to Harvard Law School and the first Hispanic to be
promoted to partner at one of the ``Big Four'' law firms in
Colorado, Ms. Arguello has added law professor to a long list
of accomplishments. She became a tenured professor at the
University of Kansas Law School and joined the faculty at the
University of Colorado School of Law and the University of
Denver College of Law as an adjunct professor and a visiting
professor, respectively.
Christine Arguello is a top-flight nominee whom I am proud
to introduce to the distinguished members of the Committee.
I look forward to a fair and dignified confirmation
process, the outcome of which I am confident will reveal two
highly qualified nominees deserving of confirmation.
I would like to congratulate Phil and Christine, and on
behalf of the citizens of Colorado, thank each of you for your
willingness to serve this great country.
Thank you, Mr. Chairman, and thank you, Senator Specter.
Chairman Leahy. Thank you, Senator Allard.
Senator Salazar.
PRESENTATION OF CHRISTINE ARGUELLO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO, AND PHILIP A. BRIMMER,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, BY
HON. KEN SALAZAR, A U.S. SENATOR FROM THE STATE OF UTAH
Senator Salazar. Thank you very much, Chairman Leahy, for
holding this hearing this morning, and thank you for your
leadership and your example as a statesman in your position as
Chairman of this Committee. Thank you for the numerous
telephone conversations that we engaged in over the weekend,
and I appreciate Marcelle's patience in always answering the
telephone. Thank you for your example.
Senator Specter, you as well, as Ranking Member of this
Committee, I very much have enjoyed my 3\1/2\ years here in the
U.S. Senate, in part because I have had the honor of working
with Senator Leahy and you, Senator Specter.
Senator Hatch, thank you for your service on this
Committee, and, Senator Whitehouse, thank you as well. I
appreciate working with all of you, my colleagues.
To Senator Allard, I want to thank you for what has been a
journey that has taken us to where we are today. Some people
said that it could not be done, but at the end of the day, I
think our working together and recognizing the inherent
qualities of the two nominees from Colorado resulted in both of
us being able to stand before this Committee this morning
saying that we both unequivocally endorse both of these
nominees.
Let me make a comment very briefly about each of the
nominees, and I will submit the formal statement that I have
written for the record.
First, with respect to Christine Arguello, her life story
really is the personification of the American dream. She was
born in southern Colorado in a place called Thatcher, far away
from where anybody ever expected her to graduate from high
school. Her father worked on the railroad, and for a part of
her life, she actually grew up in a boxcar on the railroad as
they moved from town to town. She became the first Latina,
first Hispanic, ever admitted to Harvard Law School, went on to
graduate from Harvard Law School and work with some of the most
prestigious law firms in the Rocky Mountain West, including
Holland & Hart, and later on becoming a partner at Davis,
Graham & Stubbs.
But that was not enough in terms of achievement for her
because she also wanted to do some other things in terms of
teaching and public service. She went on to the University of
Kansas, where she became a tenured law professor, and while
there also wrote one of the books that is most often used now
in courses on evidence in law schools around the country.
When I became Attorney General for Colorado, I looked for
the best and the brightest to come to work for me in that
Office of Attorney General. Christine Arguello joined me and
served as the Chief Deputy Attorney General for the State of
Colorado, working on cases that involved both Federal courts as
well as the Colorado courts, arguing a number of cases before
the Colorado Supreme Court, and the district court and the
Tenth Circuit as well. She is a lawyer's lawyer and always
tries to make sure that it is the rule of law which she upholds
as she does her work in all the various capacities that she has
held.
She has most recently been serving as senior counsel for
the University of Colorado in Boulder and has done a tremendous
job. She also happens to be a wonderful mother of four,
including the two youngest of her children which she adopted
about 6 or 7 years ago, and I am very proud of what she does
within the community beyond her work as a great lawyer.
The story of Phil Brimmer likewise is a remarkable story.
Coming from a place in Wyoming named Rawlins, Wyoming, this
young man found his way to Harvard and then Yale Law School,
and from Yale Law School moving to work for a great judge known
to all of us who practiced law in Denver, Zita Weinshienk, and
clerked for her for a period of 2 years. She told me just last
week she thought Philip Brimmer was one of the very best law
clerks who had ever worked with her while she served in that
position of U.S. district court judge.
He went on to work with a national law firm, Kirkland &
Ellis, and then left Kirkland & Ellis because he reached a
point in his own life where he decided that the road that he
wanted to take was one of public service. He went on to
distinguish himself in the positions in the Denver District
Attorney's Office that Senator Allard has mentioned. His bosses
there, both current Democratic Governor Ritter for the State of
Colorado as well as the Democratic District Attorney for Denver
Mitch Morrissey, have given him their absolutely highest
ratings. He is a star in the work that he did on behalf of the
people that he represented in the Denver District Attorney's
Office.
Then moving to the United States Attorney's Office, he
worked on a number of very important and different cases, but
it led to the point where he became the chief of the Special
Prosecutions Unit and distinguished himself there as well. He
is joined today by his wife and his brother in the audience.
I would say in conclusion, Mr. Chairman, two things.
First, I think the common theme among both Phil Brimmer and
Christine Arguello is they are the kinds of people that we
should be supporting for positions in our Federal judiciary
system. They are lawyer's lawyers. They understand the
importance of fairness and judicial temperament and the rest of
the qualities that make great judges. I appreciate their
willingness to sacrifice the other route that they could have
taken, which is to make a lot more money in the private sector,
to come and be servants of the public.
Second, Mr. Chairman, once again to you especially for
holding this hearing at this point in time in our political
season to address what is a judicial emergency in the State of
Colorado, I am very, very personally appreciative of your
efforts in doing so, and I appreciate the cooperation of
Senator Specter in getting this done.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Specter.
Senator Specter. I have the pleasure of introducing
Gregory--
Chairman Leahy. Just before we do this, I also know that
both Senator Allard and Senator Salazar have other committees
meeting, and if you want to leave, I am sure it will not be
seen as any snub of the two fine nominees, who I suspect are
not going to have that difficult a time before the Committee
today.
Senator Allard. Thank you, Mr. Chairman.
Chairman Leahy. I thank you both very much for being here.
Senator Salazar. Thank you, Mr. Chairman.
Chairman Leahy. Go ahead.
PRESENTATION OF GREGORY G. GARRE, NOMINEE TO BE SOLICITOR
GENERAL OF THE UNITED STATES, BY HON. ARLEN SPECTER, A U.S.
SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. I have the
pleasure to introduce Gregory G. Garre to the position of
Solicitor General of the United States Department of Justice.
Mr. Garre comes to this position with a very distinguished
academic record, distinguished professional record, and very
extensive service already in the Solicitor General's Office.
Academically, he graduated cum laude from Dartmouth in
1987; his law degree with high honors from George Washington
University Law School; Order of the Coif; editor-in-chief of
the Law Review there. After graduation, he clerked for the
chief judge of the Third Circuit, Anthony Scirica, and then for
Chief Justice Rehnquist. He has worked with the prestigious law
firm of Hogan & Hartson where he became a partner and served
there for 5 years in that capacity. He has been with the
Solicitor General's Office as Principal Deputy Solicitor
General, and most recently Acting Solicitor General. He has had
23 cases before the United States Supreme Court, which is quite
a record and background for coming to this position.
So I am pleased to introduce him, also to note that he has
Pennsylvania connections, was born in Bryn Mawr, Pennsylvania,
and his grandparents live there.
Chairman Leahy. Where is that? Where is Bryn Mawr--oh, Bryn
Mawr. I know where Bryn Mawr is. Sorry.
Senator Specter. It is a little hard to understand Bryn
Mawr with either a Kansas or a Vermont accent.
When I first came to Philadelphia years ago and met
somebody from Bryn Mawr, I spelled it B-r-i-n-m-a-r, and I soon
found out how to spell Eastern style.
[Laughter.]
Senator Specter. Mr. Chairman, before excusing myself, I
want to ask consent to enter into the record a statement by
Senator Martinez for the nomination of Mary Scriven.
Chairman Leahy. Without objection. Senator Martinez had
asked me, too, on that, and that will be part of the record.
Thank you.
Well, then, if nobody else has anything to say, I would ask
Mr. Waddoups, Mr. Anello, Ms. Scriven, Ms. Arguello, Mr.
Brimmer, and Mr. Garre to come forward. Before we start, if you
would all stand and raise your right hand and repeat after me.
Do you solemnly swear that the testimony you will give in the
matter before us will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Waddoups. I do.
Judge Anello. I do.
Judge Scriven. I do.
Ms. Arguello. I do.
Mr. Brimmer. I do.
Mr. Garre. I do.
Chairman Leahy. Let the record show that all responded in
the affirmative. Please sit down.
As has been noted, Mr. Waddoups is a partner at the Salt
Lake City, Utah, law firm of Parr, Waddoups, Brown, Gee &
Loveless; prior to that at O'Melveny & Myers. We have had over
the years a number of judicial nominees who worked at O'Melveny
& Myers who have come before us.
I also had the pleasure a few years ago at the opening of
the new Air and Space Museum meeting General Myers, who was the
original partner, just recently passed away. He was at that
time about 90 years old. He had flown his own airplane in for
the event, and he was ramrod straight. That has absolutely
nothing to do with your hearing, but an interesting bit of
esotericism.
Mr. Waddoups., please go ahead.
STATEMENT OF CLARK WADDOUPS, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF UTAH
Mr. Waddoups. Thank you, Mr. Chairman. It is an honor to be
here, and I look forward, if confirmed, to serving in this
position.
I would like to introduce my wife, Vickie Waddoups, and my
son, Doug Waddoups, who are here with me.
Thank you, Senator.
Chairman Leahy. Thank you, and I should have asked you to
do that to begin with. I will, when each one comes, I will ask
for their names, because someday when somebody goes to the
Waddoups archives, they will note in our official record that
you were there.
Incidentally, on introducing everybody, you will be given a
chance to see the transcript and to add names or correct
spellings or anything else, because it is not a bad thing to
have in the record.
Please go ahead, Mr. Waddoups. Did you want to add anything
further?
Mr. Waddoups. No; just that I am honored to be here, am
thankful for the Committee to consider this hearing at this
time, and I look forward to being able to respond to any
questions you may have.
[The biographical information follows.]
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2Chairman Leahy. Let me ask you this: The courts, the
Federal courts, is the only undemocratic branch in our system,
and it was intended to be that way. They are not elected. They
are appointed, given lifetime appointments--entirely different
from the other two branches of our Federal system. If you go
all the way back to reading the Federalist Papers on there, it
is to give them the independence without fear or favor of
either political party.
I have always looked, when I am going to vote on a judge--I
spent a number of years in a courtroom, as many of us did. I
ask myself, this person, if they are Federal judge, would I
feel comfortable coming into their court, whether I was
plaintiff or defendant, whether I represented somebody rich or
poor, no matter what my political background or my race or my
gender or my religion, would I feel that that judge will hear
the case without any preconceived notion about either the
attorney or the litigant? Could you give those assurances, that
you would look at a case and say whether this person is a
plaintiff or defendant, criminal, government, or whatever, you
would look at that case and say, ``You are going to get the
fairest trial you could ever have before me'' ?
Mr. Waddoups. Without any qualification at all, I can give
you that representation. I can tell you that as a litigant,
when I appear in courts with clients, that is what they are
looking for. They want a court that will hear their case
without bias and without prejudice. That is a principle on
which I am firmly committed and would assure you that that is
exactly what I would attempt to do to the best of my ability.
Chairman Leahy. And do you have any background that can
show that kind of equal respect to people no matter what their
gender, no matter what their background?
Mr. Waddoups. I would hope--I think Senator Hatch referred
to the work I have done with my colleagues. I believe I enjoy a
reputation among the lawyers in our community as having treated
everyone with respect. Part of my service has been to serve on
the Board of the Family Support Center in Salt Lake City, in
which our principal mission was to look out for mothers who are
in abusive situations or who are abusive with their children. I
found that to be meaningful and important service. I think that
kind of service needs to continue over and be carried on the
bench.
Chairman Leahy. Also, the courts serve as a check on either
a runaway executive or a runaway legislature. We had a memo for
a while, a secret memo, that once it came to light, it was
withdrawn by the White House, which said basically the
President could put people outside the law on questions of
torture. He could say that the law would not apply to him or
anybody he said it does not apply to.
Do I have your assurances that you feel the laws of this
country apply to everybody, whether it is a Federal judge, a
U.S. Senator, or a President or anybody else?
Mr. Waddoups. Without any question at all.
Chairman Leahy. And you know Federal judges have great
abilities that they--on questions of conflicts of interest,
basically they have to make this decision, whether they recuse
themselves. What would be the kind of thing, do you believe,
would require a recusal? What kind of case do you think that
might come before you that would require you to just say, look,
I should not sit on this case?
Mr. Waddoups. I would be guided by the Rules of Judicial
Conduct, but let me give you some illustrations that would seem
clear to me.
Any kind of case that came before me from members of my
existing law firm, I would be required, at least for a number
of years, to recuse myself. I would also feel that I would
recuse myself if there were cases in which adversaries, lawyers
who have been advocates of mine in the recent past--that would
be a shorter period of time, but I would not want anyone to
feel that because we had been opposite each other they somehow
were mistreated. And the same with recent clients.
Beyond those kinds of clear conflicts, as guided by the
Rules of Judicial Conduct, I think a judge has a responsibility
to hear the cases that come before him, whether they are hard
or easy. And I do not think recusing yourself simply because of
the nature of the case would be appropriate. But if there is an
appearance that someone feels that they may not be treated
fairly because of a past relationship, I would recuse myself.
Chairman Leahy. Emphasize that last one just a little bit.
You feel if the appearance would be that because of a Judge
Waddoups, this plaintiff or this defendant might not be treated
fairly, you feel that that is cause for recusal?
Mr. Waddoups. If there was a factual basis in terms of
facts, somebody that was an adversary, somebody that was on the
opposite side of me in a case before, somebody whose client was
opposed to a client of mine, those kinds of situations. Simply
an unsupported factual assertion would not be sufficient.
Chairman Leahy. I understand. But what you are saying--and
I do not want to put words in your mouth, but what you are
saying is that your use of recusal would be also to support the
integrity, the impression of the Federal court as being
independent and open-minded to the American public. Is that
correct?
Mr. Waddoups. Yes, sir.
Chairman Leahy. I must say that I find this so important,
because, I mean, a court cannot--a court does not have an army
or anything else. It has to rely and the whole system breaks
down if it cannot rely on the respect the American people have.
I have tried an awful lot of cases. I am sure my colleagues
here have. But sometimes you win and sometimes you lose, but
you have to be able to say to your clients, you have to be able
to say to the public, ``But it was a fair trial.'' And I think
that is very important.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
your courtesy and your kindness and your effort to bring these
folks before the Committee, get them through the Committee,
and, of course, to the floor. And I am going to help you every
step of the way.
This is an impressive group of nominees, and I want to
commend each and every one of you for being here today. It
means a lot to me to have good people on the bench, and, Mr.
Garre, you are terrific. You have the support of Democrats and
Republicans in this town and across the country who have
watched you in action and know how good you are.
Having said that, I just want to say that we are very proud
to have Clark Waddoups here. We know he is one of the great
lawyers in this country. We know that he has an impeccable
reputation. He is a leader in one of the great law firms in
Utah, and I personally have a great deal of fondness and
admiration for him. And I expect him to become one of the great
district court judges in this country.
With regard to Mr. Garre, I hope we can confirm Mr. Garre
to the position of Solicitor General by the time the Supreme
Court begins its hearings when it comes in on October 6th. The
4 months that would remain in this administration would
actually be more than half of the time the Supreme Court
devotes to oral arguments, which conclude in May. Mr. Garre is
eminently qualified, highly respected, and I see no reason why
he could not begin the Supreme Court's term with the public
backing of the executive and legislative branches.
I ask consent that a letter by a bipartisan group of former
Solicitors General on behalf of Mr. Garre's nomination be
entered into the record, Mr. Chairman.
Chairman Leahy. Without objection.
Senator Hatch. Let me quote small portion of that letter.
``We have worked with Mr. Garre in the Office of Solicitor
General or as co-counsel in cases before the Court. We have
observed at close range his vast legal talents, and we are
unanimous in our conclusion that by any measure he has been an
extraordinarily effective advocate on
behalf of the United States. Mr. Garre's nomination is in
keeping with the finest traditions of the Office of Solicitor
General.''
I certainly agree with that assessment, and I commend you
for the reputation that you have been able to develop over
these years, and it is a well-earned reputation.
Let me turn to the judicial nominees. By my count, the
district court nominees before us today have more than 90
combined years of private practice experience. That is pretty
impressive. As somebody who has been on this Committee for 32
years and has held an awful lot of these hearings, this is an
impressive group of people. That does not count experience as
prosecutors and judges, and that means that each of you has
seen many State and Federal judges do what they do.
Now, Mr. Chairman, I do not have any questions because I
have looked at the resumes and the information about these
terrific people who are before us today. I am going to support
every one of you, and I hope that we can do this quickly and
get you through and confirmed quickly. And, above all, Mr.
Garre, I hope you can continue doing the excellent job you have
been doing, only as Solicitor General, at least during the 4
months that remain in this administration, and hopefully even
after, regardless of who wins the election come this November.
Mr. Chairman, I personally want to thank you. It is tough
being Chairman of this Committee. It is a very partisan
Committee in many respects. When I was Chairman, I had a very
difficult time from time to time, and I understand how
difficult it is, and I am very grateful that you would hold
this hearing today and be willing to push these people.
Chairman Leahy. Thank you very much.
Senator Whitehouse, did you have anything?
Senator Whitehouse. Yes, if I may. I have some questions
that I would like to ask of Mr. Garre, and let me preface them
by assuring my colleagues that I do not intend to object to Mr.
Garre's nomination. But as the Chairman indicated earlier, we
have had a very unfortunate episode in the history of this
country and in the history of the Department of Justice that
has largely come to its conclusion with the replacement of the
entire leadership of the Department of Justice, to which the
Chairman referred.
My concern is that the cleanup is not complete. As I have
indicated in many other forums, my concern is that the Office
of Legal Counsel in particular remains what I have called the
``George Bush Little Shop of Legal Horrors.'' And while I
applaud Attorney General Mukasey for many of the steps that he
has undertaken to set the Department of Justice right, I do
believe--and I am not, of course, Mr. Garre, asking you to
accept this belief. I am just stating it to you. I do believe
that the OLC remains a very troubled part of the Department of
Justice into which the broom that has cleaned up so much else
of the Department of Justice still needs to sweep.
You and I probably disagree on a great number of legal
issues, and we would probably have a good academic and
intellectual combat were we arguing cases against each other.
But I think we also agree that there is a basic level of legal
competence and scholarship that, irrespective of what the
position you choose to take in a case is, is a baseline. And
you should never go below that, and you should certainly never
go below that if you are the Department of Justice of the
United States of America. And I think that after the
unfortunate episode that we have been through, you will
probably also agree that every officer of the Department of
Justice, no matter what their station, has an interest in
seeing to the integrity of the entire Department of Justice.
And it is off those two principles, to which I see you nodding,
that my concern about OLC--it is on those two that the concern
stands.
I have recently had an exchange with a member of the
Department in the Intelligence Committee on which I serve.
Regrettably, that transcript is classified. My efforts to have
it be declassified have been resisted by the administration,
are unsuccessful. We are still asking for an explanation of
what it is about this exchange that contains anything that
would reveal any sources or methods of intelligence gathering.
I think that the denial of it is, frankly, just a desire to
keep the issue out of the public and stands on no legitimate
national security footing. But, in any event, we are still
engaged in that, and as a result, I cannot in this forum even
tell you the name of the person who I had the exchange with.
But if you ask within the Department, it will be easy--it is
perhaps even obvious.
I would like to ask you--I know how busy you are going to
be. I know what it is like to be an appellate attorney with a
vast amount of reading to do. I would ask you to take a look at
that transcript--I am sure you can get clearance to do it--and
to take a look at the torture memoranda that the OLC wrote,
specifically focusing on its failure to treat with a case named
United States v. Lee, which is a Fifth Circuit Court of Appeals
decision in which the court, in a prosecution brought by the
Department of Justice, on the conviction of a Texas sheriff and
his deputies for waterboarding prisoners to get convictions,
found over and over in the opinion that this technique was
torture--referred to it as ``water torture.'' The word
``torture'' I think appears eight times, sometimes quoting the
Government's own indictment, sometimes using the court's own
language.
For the life of me, I cannot understand how in the lengthy
opinions that support the administration's position on torture
which went so far afield legally as to quote standards out of
health care reimbursement statutes, they were unable to find or
unwilling to discuss a case bang on point, discussing the
procedure at issue, calling it ``torture,'' by a circuit court
of appeals of the United States of America, a court in which
the Department of Justice itself was the prosecutor and the
proponent of the theory that this was torture. To me, that
shows that something went seriously, seriously awry.
In the context of that, I would like you to also take a
look at the treatment of a decision called United States v.
Hilldow, which involved a course of abuse at the hands of the
Marcos regime of an American citizen. The course of treatment
included waterboarding. The course of treatment was referred to
as torture, and the distinction that was drawn was that it was
a course of treatment that included other forms of abuse than
waterboarding. And, therefore, the case could not stand for the
proposition that waterboarding alone was torture.
Well, there stands Lee. I do not see how from a pure point
of craftsmanship you could ever write an opinion on that
subject without addressing Lee. I submit to you that if you
wrote that opinion to the United States Supreme Court as a
brief and left out a case that on point, it would make the
recent episode with respect to the omission of the statute on
the death penalty look like child's play.
I am not going to ask you any more than that. Have a look
at it. Don't tell me--don't talk publicly, but let ye Deputy
Attorney General, let your Attorney General know what your
opinion on that subject is. If you agree with me that there is
no legitimate standard of advocacy and scholarship that would
allow that case to be omitted, then I think that is a sign we
need to take a second look at OLC. And I frankly do not see how
reasonable lawyers who are well trained and professional
frankly could see this any other way. So that is my request to
you.
STATEMENT OF GREGORY G. GARRE, NOMINEE TO BE SOLICITOR GENERAL
OF THE UNITED STATES
Mr. Garre. Thank you, Senator, and thank you, Mr. Chairman,
for including this in this hearing. I feel very privileged and
honored to be here.
Senator, I will absolutely look at the items that you asked
me to look at and follow through in the manner that you
requested.
Senator Whitehouse. I appreciate that.
Mr. Garre. I also agree with you wholeheartedly that the
integrity of the Department of Justice and the integrity of the
lawyers who work in the Department of Justice is critical for
the American people and for the duty that we have for those of
us privileged enough to work there.
A former Solicitor General, Solicitor General Soboloff,
said that the duty of the Solicitor General's Office and the
lawyers in that office is not simply to advocate on behalf of a
client but to do justice. And I certainly agree with that. And
if I were privileged enough to be confirmed, that is something
that I would have foremost in my mind in carrying out my
responsibilities with respect to all matters, including the
matters that you referred to.
Senator Whitehouse. I appreciate and accept that. I thank
you.
Mr. Garre. Thank you, Senator.
Chairman Leahy. If I actually could follow up on that just
a little bit, because the Solicitor General's Office is very
unique. It has the capacity as friend of the court. It is
sometimes referred to as the ``tenth Justice,'' and it has to
speak and lay out what is best.
Can you assure us that a Solicitor General, whether you had
a Democrat or Republican in the White House, you would not
serve a partisan interest but, rather, a judicial interest or a
judicious interest in your work as Solicitor General?
Mr. Garre. Absolutely, Senator. I have been privileged to
work in the office under two different administrations, and in
both administrations, it was made clear to the lawyers of that
office that our duty is to represent the best interests of the
United States, irrespective of the political administration of
that time. And I think that is critical for the Solicitor
General to perform his obligations to the Court and to the
country to provide the best representation that he can, and to
have the courts accept the candor and arguments of the
Solicitor General as a representation of what is in the best
interests of the United States as opposed to the political
interests of any particular time.
Chairman Leahy. I think we would all agree with that
answer, but let us just go to a specific. As Principal Deputy
Solicitor General, you signed the amicus brief in Ledbetter v.
Goodyear. And for those who are not aware of that, that was a
case where Lilly Ledbetter for nearly two decades was paid a
lot less than her male counterparts. As a supervisor, she was
paid less and did not realize it until after she had left
employment. But in the brief you signed, you contended she was
not eligible for Title VII protection against discriminatory
pay because she did not file her claim within 180 days of their
repeated discriminatory pay decisions, even though, of course,
she was not aware of the pay decisions. And that view
contradicted the position of the Equal Employment Opportunity
Commission, the EEOC. And some have called your position even
more draconian than the Eleventh Circuit.
Did you decide to file an amicus brief as a result of a
request of the EEOC, which obviously disagreed with that
position?
Mr. Garre. Senator, the determination to file an amicus
brief in that case was made in the same manner it is in any
case, and it is a very collaborative process where we, the
Solicitor General--
Chairman Leahy. Was the EEOC involved in that collaborative
process?
Mr. Garre. It was, Senator.
Chairman Leahy. And did the EEOC agree with your brief?
Mr. Garre. I believe, as was indicated in the brief, and
certainly as made clear through the briefings, that the EEOC
had by regulation or policy statement taken a contrary
position. The position that we laid out in the brief we
believed was consistent with prior positions that the Supreme
Court had taken in a number of decisions.
Chairman Leahy. Who made the final decision to file an
amicus brief?
Mr. Garre. The final--
Chairman Leahy. I mean, this was Ledbetter v. Goodyear. It
was not Ledbetter v. the United States. Why was the decision
made to file an amicus brief?
Mr. Garre. Senator, the Solicitor General makes that
determination. He looks to the interests of the United States
in a particular question pending before the Court if the United
States is not a party, and he looks to whether or not
reasonable arguments can be made in support of that position.
The Federal Government has both the responsibility to
enforce the civil rights laws, including Title VII, and is also
an employer who is subject to suit under Title VII.
Chairman Leahy. As you know, there has been some very
strong criticism--in fact, we came, I think, within about one
vote of overturning it, in fact, of overcoming a Republican
filibuster to restore rights for subsequent people in a
situation like this. But what I cannot seem to understand is
you have a company that hides the fact that they are paying a
woman less. The matter is up in litigation, and somebody in the
U.S. Government steps in to say we have got to protect that
company, not the woman who was being paid less all those years.
You write the brief. I still do not fully understand why this
administration, why your office, why it was so necessary to
weigh in on behalf of Goodyear and not this woman who was given
such a bum deal.
Mr. Garre. Certainly, Senator, no one--and certainly no one
in the Department of Justice--condoned discriminatory practices
that were alleged in that case. The legal principle that we
were focused on was when does the statute of limitations begin
to run when someone has suffered a discrete act of
discrimination.
Chairman Leahy. But having taken the position the EEOC had
taken, and you taking a contrary position, I mean, you could
just as well have just stayed out of the case. Is that not
correct?
Mr. Garre. That is always an option, Senator, that the
Solicitor General has. The Solicitor General of the United
States had participated in a number of prior cases involving
the same--
Chairman Leahy. Who made the final decision?
Mr. Garre. The Solicitor General did, Senator. The
Solicitor General at that time was Paul Clement.
Chairman Leahy. Was there any influence from the White
House or from the Attorney General in making that final
decision?
Mr. Garre. Senator, in every case there is input from all
interested components.
Chairman Leahy. Was there in this case from the White House
and the Attorney General?
Mr. Garre. I am not personally aware of that. The Solicitor
General would make a final determination in that case,
listening to all interested parties, because we are interested
in representing the views of the United States to the best we
can, taking into account all different interests of the
interested agencies and components.
Chairman Leahy. Even though in this case the views were
contrary to the views at EEOC, which is the part of the
Government that would normally be involved in this.
Mr. Garre. That is correct, Senator. And certainly it is
not uncommon that different components within the Department of
Justice or even different agencies may have different
perspectives, regulatory perspectives or enforcement
perspectives or policy perspectives.
Chairman Leahy. Some of us were concerned that this may
have been political, including to the point when Ms. Ledbetter
came here to testify, and her testimony was cut off by a
Republican objection. But I just throw that out for what it is
worth.
[The biographical information follows.]
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2Chairman Leahy. Let us go to Mr. Anello. I want to mention
to you that both Senator Feinstein and Senator Boxer told me of
their strong support for you and that you have their support. I
would ask you a similar question to what I asked Mr. Waddoups.
You are already a superior court judge in San Diego, and you
were a partner with the San Diego law firm of Wingert, Grebing,
Anello & Brubaker and deputy city attorney. You were a captain
on active duty in the United States Marine Corps, as the father
of Lance Corporal Mark Patrick Leahy. That does not influence
me a bit.
Judge Anello. I hope we did not meet back then. Did we?
Chairman Leahy. No. He is now a former Marine. As you know,
there are no ex-Marines, only former Marines. Special Courts
Martial Military Judge, graduated from Bowdoin, graduated from
Georgetown University Law Center, where I did. Do you have
members of your family here today?
STATEMENT OF MICHAEL M. ANELLO, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Anello. I do, and thank you very much, Mr. Chairman,
and I also would like to express my personal appreciation to
you and the other members of the Committee for having this
hearing, especially at this late date in the session. I know
the Senate is busy, obviously, these days, to put it mildly,
and I most appreciate the opportunity to be here and appear
before you today.
I do, with your permission, have folks here that I would
like to introduce, if I might at this point.
Chairman Leahy. Please do.
Judge Anello. Perhaps they could each stand as I announce
them. First of all, my wonderful wife, Pam, who has put up with
me for 35 years, is here--thankfully, I should add. We have
with us also, thankfully, our three sons, starting with the
oldest: Andy is here with his friend, Jane McCormick; and No. 2
son by age is Dan, he is here; and our youngest son, Chris, is
here.
Also, I am pleased to have here today my sister, Diane
Anello, who has also been a source of wonderful support to me
over the years. And, in addition, we have her boss from the
Aspen Institute, former Iowa Senator Dick Clark.
And last, but not least, we have a very--
Chairman Leahy. I served with Senator Clark, and I did not
see him there. I should have recognized that shock of white
hair back there. Dick, it is always, always good to have you
back here.
Judge Anello. And last, but not least, we have a very dear
friend of ours, Liz Armstrong, from California, recently having
moved to the area, and it is a pleasure to have her here today
also.
Thank you.
[The biographical information follows.]
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6Chairman Leahy. Well, if I might ask the same question I
asked before--and it is the sort of thing that I think all of
us have in mind when we vote on a lifetime judgeship. This is
an area where you are outside of politics. It is the
undemocratic part, and rightly so, the undemocratic branch of
our three branches of Government.
If you walk into a courtroom, if you have any respect for
our Federal courts around the Nation, you have to walk in and
think, okay, I am going to be treated the same as the person on
the other side; my race, my color, my creed, plaintiff,
defendant, wealth, non-wealth, it is not going to make a
difference.
Can you give that assurance that when somebody comes in and
sees you sitting there as the judge, they are not going to say,
``We are in trouble,'' but, rather, ``We are going to get a
fair hearing'' ?
Judge Anello. I can certainly give you that assurance
without qualification, Senator. I have endeavored to do that
through the 10 years plus that I have been sitting on the State
court, and should I be fortunate enough to be appointed to this
position, I would hope to continue that. So I certainly agree
with that and those sentiments 100 percent.
Chairman Leahy. Have you had occasion to do things where
you would show your commitment to equal treatment of people?
Judge Anello. Well, I have. Like, I would say, most
lawyers, I have volunteered to perform legal services for
indigent people as a public service. In my many years in the
military--I remained in the Marine Corps Reserve after getting
off active duty--one of our missions was to provide legal
assistance to the young semi-indigent, unfortunately, men and
women of the Marine Corps. And we would go to the local bases
on Saturdays. With some notice they would show up. We would do
the best we could to help them deal with their personal and
legal problems. So that is one thing that we did often over the
years throughout my entire military reserve career.
Chairman Leahy. I like to think the country has reached a
point where people are treated the same. I think of the stories
I remember from my maternal grandparents when they emigrated to
this country from Italy, and having difficulty first with the
language and treated differently. And some of the things they
had to put up with even as they established a business and then
helped many others who were not able to get the kind of--or who
were being treated much the same. I like to think in our State
that is no longer the case. But I think that immigrants' rights
are extremely important. You do not think of Vermont so much as
being a State with that, although we share a border with
Canada. My parents-in-law emigrated from Canada, had to learn a
new language, as did my grandparents and my mother.
You are in San Diego. One only needs to look at the map.
Can you assure people who come into your court, the Federal
district court, that they are going to be treated fairly,
whether it is an immigration or a civil case?
Judge Anello. I can certainly give you that assurance,
Senator. You are correct. Obviously, we are a border State. We
have immigration issues. We have not dealt with them so much in
the State court. Certainly, if I were fortunate enough to be
confirmed to the Southern District Court, we would deal with
those issues on a more daily basis. But certainly you have my
assurance that, if confirmed, I would agree 100 percent with
those sentiments and act accordingly.
Chairman Leahy. And you heard Mr. Waddoups' comments before
about the need to recuse oneself to preserve the integrity of
the court. Now, you might have a case that would come to
Federal court for post-conviction relief or something like from
the court you now sit on. That should be fairly easy, I would
assume. But do you agree with what Mr. Waddoups said about
protecting the integrity of the court and the appearance of
conflicts?
Judge Anello. I do absolutely, and the appearance aspect of
that, of course, is most important for the citizenry to retain
their respect for the courts. Obviously, the appearance is
important. Again, I have faced those issues over the past 10
years, and I have not found it difficult. But as Mr. Waddoups
says, if someone appears before me who is a former client, that
is pretty easy; a former law partner, that is pretty easy.
Where it gets a little dicey is someone who perhaps is a
friend, a casual friend. So we try to draw lines there, make
whatever disclosures are necessary. But as he also indicates,
and as I agree, we also are duty-bound and required to try
cases that come before us unless there is a real reason to
recuse.
Chairman Leahy. Well, disclosure is always a very good
thing. I mean, you can--certainly in my own years of practice,
we would have the kind of friends or associations, a neighbor
or whatever, and matters that would come up. And when the court
has made the disclosure, it is not unusual to have the lawyers
on both sides say we have discussed this with our clients and
we have no problem. And it certainly takes care of the problem
later on when somebody says, ``Well, wait a minute. I lost.''
Senator Hatch, did you want to--
Senator Hatch. No. Thank you, Mr. Chairman.
Chairman Leahy. And I would assume you would say the same
to the earlier question that no one is above the law, not the
President, not a judge, not a U.S. Senator.
Judge Anello. Absolutely. We have a rule of law, not a rule
of man. Absolutely, I agree 100 percent.
Chairman Leahy. Thank you very, very much.
Ms. Scriven, we have already put the letter of support in
from Senator Martinez for you. You spent 11 years serving as a
magistrate judge in the U.S. District Court for the Middle
District of Florida, taught contracts, banking law, associate
professor at Stetson University College of Law; partner at the
Tampa, Florida, law firm of Carlton Fields; graduate of Duke,
Florida State.
Do you have members of your family here with you?
STATEMENT OF MARY STENSON SCRIVEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Scriven. Thank you, Senator Leahy. Yes, I do.
Chairman, I have with me almost my entire family. I have my
parents, who are here from Georgia: Reverend Marshell Stenson
and Dr. Mary Stenson, if they would stand.
I have my younger brother, Joel Stenson and his wife,
Kartika Stenson.
I have my dear friend, Jaye Ann Terry; a friend of the
family and a colleague, Fred McClure; and a young guy that my
husband has mentored, Romeo Domdii Cliff, who is also here. He
lives here in D.C.
And last, but not least, I have my immediate family. I have
my daughter, 15-year-old Sarah; and Charles, who is enjoying a
day out of school but getting an education nonetheless.
[Laughter.]
Chairman Leahy. I bet you he hated to miss school today.
Judge Scriven. And I have my husband of 20 years and my
best friend, Lansing Scriven, who is an attorney in Tampa,
Florida.
Chairman Leahy. Thank you very much. I appreciate that. Did
you want to give any opening statement?
Judge Scriven. I just want to say, as my colleagues have
already said, that I am honored and humbled by the opportunity
to be here. I thank the Chairman and the Committee for
convening this hearing. I thank the home-State Senators,
Senator Martinez and Senator Nelson, for working together
across lines to bring this nomination forward. And I thank the
President for nominating me for what I hope will be a
confirmation to serve as United States District Judge for the
Middle District of Florida.
[The biographical information follows.]
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3Chairman Leahy. Well, I appreciate that, and both Bill
Nelson and Mel Martinez have talked to me privately in support,
doing, as I said, what Senator Hatch and Senator Bennett have
for Mr. Waddoups, and the Senators from California with Judge
Anello.
Let me ask you the same thing. I walk into your court as a
litigant. Can I look at a Judge Scriven--and you have your
reputation as a magistrate judge, and I have gone through those
cases. Can I look at you and say, ``I am going to be treated
the same no matter who I am, rich, poor, Democrat or
Republican, white, black, Hispanic, whatever, male, female,
plaintiff, defendant, am I going to be treated the same'' ?
Judge Scriven. There is no question, Senator, that you are
going to be treated the same without respect of who you are,
and I think there is a great deal of assurance in the context
of my consideration here, because I have come to you as a
candidate from a nonpartisan, bipartisan judicial nominating
committee that has presented my name forward for consideration.
In addition to that, I have 11 years on the bench, and as a
magistrate judge, you do not serve a lifetime term. You get
terms. And I served one term, and then I had to be questioned
and evaluated by the people who had come in front of me, and I
had unanimous approval from the Retention Committee after an
extenuous review in the community for the service that I had
provided to the court. And I was humbled and challenged by the
respect that people had shown as part of the process.
And so, yes, I think anyone coming before me could feel
confident that they would be given fair and just treatment
under the law.
Chairman Leahy. Judge, I looked at that retention, and I
must admit I was impressed with it. Do you have any question on
being able to recuse yourself? It would be an obvious case if
your husband's law firm--
Judge Scriven. He would be grateful that I would recuse
myself.
[Laughter.]
Chairman Leahy. You do not want somebody coming forward in
the court and instead of calling you ``Judge,'' and they call
you ``Honey,'' or something like that.
Judge Scriven. He calls me ``Your Honor'' at home, too.
[Laughter.]
Chairman Leahy. I do not even want to get into that. I do
not get called ``Senator'' at home, let me tell you right now.
Judge Scriven. No, seriously, Senator, I have faced the
question of recusal throughout my tenure as a magistrate judge.
I recused from my law firm of Carlton Fields that I had
practiced for years, for the first 5 years of my tenure as a
magistrate judge. And if my husband has cases before me, or his
firm does, or if any--he serves, for example, on the board of
the Tampa General Hospital. I do not handle cases that the
hospital handles. And, more importantly, as I think you have
indicated, it is not just the impropriety of serving on cases,
but the appearance of impropriety that courts must observe,
because lay people, more than lawyers, look to what is
happening in the court and how judges comport themselves. And
if we do not avoid the appearance of impropriety, it sort of
falls on deaf ears when we occasionally recuse ourselves.
Chairman Leahy. And I think the appearance--the public has
to--we went through this, and I do not mean to be picking on
either Justice Scalia or Vice President Cheney. But I remember
the dispute. Senator Lieberman had made the original complaint
where Vice President Cheney and Justice Scalia were going
hunting together at a time when a case involving Vice President
Cheney was before the Supreme Court. And I think you have to--
and courts get attacked, ofttimes unfairly, just because
somebody disagrees with an opinion. To overcome those attacks,
we have to be able to say these courts are impartial. We have
had Members of Congress who have said we should impeach these
judges because we disagreed with this decision. Of course,
maybe somebody on the other side disagreed with other judges.
And the reason that law is somebody sent out a press release
but goes no further is that people respect our Federal judges
and respect the impartiality of it. And I think that everybody
who comes on the Federal bench has an enormous responsibility
for that.
I have had the honor of being able to recommend both
Democrats and Republicans to various Presidents to go on the
Federal bench from our State. But the point I have made in my
reviews of every one of them: Can you be, will you be
impartial?
Now, we are a very small State, and if you are anything but
impartial, it becomes pretty obvious very quickly. You are
probably the fastest-growing State or one of the two fastest-
growing States in the country, but it is still important
because many people, the only time they will ever know about
the Federal courts is when they come before you. And,
obviously, this is directed at all of you because--and I am
sure you all feel that way.
Did you have anything, Orrin?
Senator Hatch. No. I am just grateful to all these folks
for being willing to serve, and I think we ought to introduce
Mr. Garre's family as well, if you would.
Chairman Leahy. Mr. Garre, we questioned you, and you did
not get a chance to mention your family, as Senator Hatch just
pointed out. Would you, please, for the Garre archives?
Mr. Garre. Thank you, Mr. Chairman. I would be thrilled to
do that.
I am very proud to say that my wife, Lorane Hebert, is here
today, and--
Chairman Leahy. They put you way in the back out there.
Mr. Garre. Our two children: our little daughter, Natalie,
who is going to be 3 in October; and our newest member, Sawyer,
who is going to be 3 months later this week, who I think just
wheeled in. They are really the reason I am here today, and my
inspiration.
I am proud to say that my parents, Sam and Maryjo Garre,
are not only here today, but celebrating their 47th wedding
anniversary today.
Chairman Leahy. Congratulations. My wife and I celebrated
our 46th when we were in Denver at the convention. It was not
quite the way we normally would, but youngest son, whom I
mentioned earlier is a Marine--a former Marine--is now a pilot
for a large corporation, their jets--he flew a number of their
executives out and joined us for dinner on our 46th. I am
always delighted to see people with long marriages like that. I
will not even give Senator Hatch a point to point out that he
has been married longer than all the rest of us--of course I
will.
Senator Hatch. Well, let me just say that I really believe
Marcelle deserves a medal for bearing this heavy cross all
these years.
[Laughter.]
Senator Hatch. She is a wonderful person. Elaine and I
celebrated our 51st wedding anniversary on August 28th, so this
is a crusty old judiciary with a lot of us being married for a
long time.
Chairman Leahy. Our wives are bearing the brunt.
Do you have anybody else?
Mr. Garre. I am very happy to say my sister flew here from
Minneapolis to be here today, and I am grateful that many
friends and mentors and colleagues in the Office of Solicitor
General made time to be here today. And I am particularly
grateful that you included me in this hearing and feel very
privileged to be here.
Chairman Leahy. Thank you.
Chairman Leahy. Ms. Arguello, do you have family members
here?
STATEMENT OF CHRISTINE M. ARGUELLO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO
Ms. Arguello. Unfortunately, I did not get the news with
enough time to--I was lucky to bring myself out. But I would
like to--
Chairman Leahy. But you did not object to coming out.
Ms. Arguello. I did not object at all.
Chairman Leahy. Would you like to put their names in the
record just so it can be--
Ms. Arguello. I would love to recognize them: my husband,
Ron Arguello, husband of 34 years; my older son, Ronnie; my
older daughter, Tiffany; my younger daughter, Jennifer; and my
son, Kenny. And I would just like to thank them for their love,
their support, and their patience with me.
Chairman Leahy. Good. And you should know that we talked
about it here, but Senator Salazar was--as I said, I think he
has my farmhouse in Vermont on speed dial. He was calling me
from home. He was calling me from the road. He was calling me
elsewhere to make sure you would be here, and I committed to
him that we definitely would.
Ms. Arguello. Well, I definitely appreciate the fact that
you and this Committee have taken the time in what I know is a
very busy schedule.
I would also like to thank Senator Allard and Senator
Salazar and President Bush for having confidence in my ability
to serve them well.
[The biographical information follows.]
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4Chairman Leahy. Well, thank you. You are one of those rare
people that has the distinction of having been nominated by
both a Democratic President and a Republican President. I am
glad you are here.
Let me ask you the same questions. You are in a State, a
beautiful, wonderful State, but a State of great diversity in
income, races, creed, everything else. Can somebody come before
a court where you preside and look at you, no matter who they
are, no matter their background or religion, gender, or
anything else, can they look at you and say, ``Okay, if I have
got a winning case, I win; if I do not, I lose; but it will be
solely on what the case I have is'' ?
Ms. Arguello. Absolutely. I believe that my reputation in
the community for fairness and objectivity is very strong. I
have lived my life or I have attempted to live my life by the
Golden Rule, to do unto others as I would have them do unto me.
And so I treat everyone with respect. And the No. 1 lesson I
taught my trial lab students was treat everyone as if they were
a very important person. It does not matter at what level they
interact with them.
Chairman Leahy. I mentioned my grandparents, and I still
remember the details of them coming here from Italy, speaking a
different language and having to overcome that, and eventually
becoming one of the most respected members of the community for
what they had overcome. Is it fair to say that nobody is going
to have to overcome those kind of hurdles if they come before
your court?
Ms. Arguello. Absolutely not, and that would be very fair
to say. I recall--although I was not an immigrant, my family
has been in the United States for four or five hundred years. I
was bilingual, but I remember being told not to speak Spanish
on the playground at school and being punished for having done
so. So I am very sensitive to those issues.
Chairman Leahy. My wife's first language is not English,
even though she was born here in the United States. She
remembers that. Now, of course, it is a great advantage to be
bilingual. I had to learn the same language when we started
dating as teenagers because I wanted to know what her parents
were saying about me.
[Laughter.]
Chairman Leahy. And they still let her marry me.
On the recusal issue, do you have any different answer than
what has already been given on recusal?
Ms. Arguello. I would say my answer would be exactly as
Judge Anello had stated.
Chairman Leahy. You could possibly have in your career at
times when a court has to step in because everything else has
failed--the political process and everything else has failed.
Do you have any problem with that? I am thinking back to U.S.
v. Carolane Products. It is now a 60-, 70-year-old case, but
the Supreme Court held that legislation which restricts those
political processes which can ordinarily be expected to bring
about repeal of undesirable legislation is to be subjected to
more exact judicial scrutiny under the general prohibitions of
the 14th Amendment than are most other types of legislation. In
other words, if an unfair result is coming about in
legislation, do you believe that the court has a duty for
stronger scrutiny of such legislation?
Ms. Arguello. I believe if a case were to come before me
and I were fortunate enough to have been confirmed by the
Senate, my job would be to review the controlling precedent and
attempt to come to a decision that would be within the rule of
law.
Chairman Leahy. Senator Hatch
Senator Hatch. I have to say that I am pleased with this
whole set of nominees, and, frankly, I think you have covered
the basic questions that need to be covered.
Chairman Leahy. Thank you.
. Now, Mr. Brimmer, you have not had a chance to introduce
your family. I mentioned that he was chief of the Special
Prosecutions Section in the U.S. Attorney's Office in the
District of Colorado, and I mentioned Chief Deputy District
Attorney in the Denver District Attorney's Office. Those of us
who had the opportunity to be district attorneys, or as we call
them in Vermont ``State's Attorneys,'' appreciate that; Harvard
and Yale, obviously a great background. But we have not heard
whether you have family members here, and I realize you are
here on short notice, but do you have family members here?
STATEMENT OF PHILIP A. BRIMMER, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO
Mr. Brimmer. I do, Mr. Chairman, and I would like to take
this opportunity to introduce them to the Committee.
Chairman Leahy. Please.
Mr. Brimmer. My wonderful wife, Dana Brimmer, is here. My
brother Andy Brimmer is here. And my cousin Rob Wallace is also
here.
Chairman Leahy. Thank you all for being here.
Mr. Brimmer, you have been in private practice. You have
also been a prosecutor. You could have litigants before you on
criminal matters as well as private matters. Let us go first
with the criminal matters. Would you be able to fairly look at
a criminal case, even though you have been a prosecutor, would
you be able to fairly judge it on the merits without a bias
toward either side?
Mr. Brimmer. Yes, I absolutely could do that. As you know
from being a prosecutor, prosecutors wear different hats. One
of the hats is being not just an advocate but being a minister
of justice. And so in a role as a prosecutor, you need to look
at fairness to the defendants in deciding whether to charge
them, whether to offer them a plea bargain, or whether you have
sufficient evidence to proceed. So I am confident that I can do
that and not simply be in the role of an advocate on behalf the
Government.
Chairman Leahy. And you have been in private practice, and
you have been in the prosecutor's office. Do you have any
doubts of being able to recuse yourself if a case came up that
might have involved directly matters that you had handled
before?
Mr. Brimmer. No. In fact, if I were lucky enough to be
confirmed, I would set up a procedure with the clerk's office
so that I could be informed if there were any matter that my
name is associated with from the U.S. Attorney's Office, and
also given the fact that I am the chief of the Special
Prosecutions Unit, if any case came from one of those
attorneys, I would in all likelihood recuse if it seemed to be
one that arose during the time that I was there.
Chairman Leahy. And do you agree that no one is above the
law? And I am thinking back to the infamous torture memo that
we can immunize--Presidents can immunize people from legal
action itself. Would you agree with me that no one is above the
law? You would not be as a Federal judge. Senator Hatch and I
would not be as U.S. Senators. And the President would not be
and nobody else would be.
Mr. Brimmer. I strongly agree with that, Mr. Chairman.
Chairman Leahy. That it keeps our system of Government
working.
Mr. Brimmer. Absolutely. If it were something else, then
the system would not be fair.
Chairman Leahy. Thank you.
Senator Hatch.
Senator Hatch. Again, very happy to welcome you to the
Committee. I frankly support you very strongly, and I look
forward to seeing you be confirmed.
Mr. Brimmer. Thank you.
[The biographical information follows.]
Chairman Leahy. With this grueling part to have somebody
show up here on short notice, especially Ms. Arguello and Mr.
Brimmer, I appreciate you all being here. I appreciate your
family coming. Sorry we had to take you out of school, young
man, but--
[Laughter.]
Chairman Leahy. If you are like my grandchildren, you
probably did not mind that.
We will stand in recess subject to the call of the Chair,
and we will keep the record open, and I would hope that we
could get cooperation on both sides of the aisle to move
quickly. I appreciate Senator Hatch, who is sitting here, I
appreciate his efforts in helping move this forward, and I
appreciate Senator Specter's willingness to waive the notice on
the two nominees from Colorado. I realize that meant you have
to move very quickly in getting out here, but you were probably
willing to do that under the circumstances.
We stand in recess.
[Whereupon, at 11:42 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follows.]
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3
JUDICIAL NOMINATIONS ANTHONY J. TRENGA, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA; C. DARNELL JONES, II,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA; MITCHELL S. GOLDBERG, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA; JOEL H. SLOMSKY, NOMINEE TO
BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA; ERIC
F. MELGREN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF
KANSAS
----------
TUESDAY, SEPTEMBER 23, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, Pursuant to notice, at 3:09 p.m., in
room SD-562, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Brownback and Specter.
Also present: Senators Warner, Webb, Casey, and Roberts.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. There are rather extraordinary things going
on on the Hill and we get one request after another to vote for
a blank check on a ``just trust us'' basis involving Wall
Street. Unfortunately, the form of the blank check tends to
change all the time, so there's been some skepticism raised, I
think as much on the Republican side of the aisle as the
Democratic side. But I'm holding this exceptional hearing this
late in a Presidential election year as an accommodation to
Senator Specter, who is the Ranking Republican member of our
Committee and a former Chairman.
The Thurman rule, which was certainly established and
followed by Republicans when there's a Democratic President in
the White House, calls for Senate consideration of judicial
nominations to stop in the last several months before a
Presidential election until we see the outcome of the election.
Senator Hatch followed that practice in both 1996 and 2000
when he chaired the Judiciary Committee. In fact, in the 1996
Presidential year, no one nominated after June 6th was
considered and there were no judicial confirmations after the
August recess. In 2000, there were none after July 25th.
I have said throughout my chairmanship I would treat
President Bush's nominees better than Republicans treated
President Clinton's, and I've done so. This hearing is another
example of that. This is the second hearing I've held for
judicial nominees in September of this Presidential election
year.
I've included the five judicial nominees from Utah,
California, Florida, and Colorado, who participated in our
September 9 hearing on the Committee's agenda for consideration
in our business meeting later this week.
Today we are going to hear from five additional nominees
for lifetime appointments to the Federal bench in Pennsylvania,
Virginia, and Kansas. I have consistently said this time of the
year I will work with the Majority Leader and the Republican
Leader in order to be able to proceed on consensus nominees.
Progress on judicial nominees requires consensus and the
cooperation of all Senators, I think something that is one of
those things that both Republicans and Democrats would agree
on. I want to thank Majority Leader Reid, with whom I've
consulted, for his willingness to have us proceed with this.
Now, three of the nominees are included at Senator
Specter's request: C. Darnell Jones, Mitchell Goldberg, and
Joel H. Slomsky, and they all have the support of the other
distinguished Senator from Pennsylvania, Senator Casey.
President Bush did not nominate these men until just before
the August recess. At the time I set this hearing last week we
still had not received ABA ratings, but based on peer reviews
of all of them. We are expediting these proceedings as a
courtesy to Senator Specter, and he's agreed with me to waive
the 1-week notice required by our Senate rules.
I am also happy to accommodate the request of the senior
Senator from Virginia that we include the nomination of Anthony
J. Tringa to a judicial vacancy in Virginia. Senator Warner is
one of our most distinguished members, and he's retiring at the
end of this Congress. In this case he's been helped by Senator
Webb, who has worked with him on the nomination and supports
this nomination as well with his bipartisan support of the
nominee. I compliment Senator Webb, who's sitting right here,
for that, for making it possible to go forward.
The final nominee is Eric Melgren of Kansas. I am
accommodating the requeste of Senator Brownback by including
this nomination. I must say to my friend Senator Brownback, I
did so notwithstanding his rather constant criticism of my
efforts in expediting other nominees, including when I worked
to provide consideration of long-delayed judicial nominations
for Michigan earlier this year.
I talked to him about having his delaying of Senate
consideration of first one, and then as a result a dozen other,
of President Bush's nominees at the end of the last Congress.
He's explained his reasons for doing that, and of course he was
within his rights to, whether I agree with him or not.
There's more that I could say, but I understand we're going
to have to go back on the floor very soon. I would note, we've
cut the judicial vacancies that I encountered in the summer of
2001 by more than half. A lot of those vacancies occurred
because of the pocket filibuster by Republicans of President
Clinton's nominees. Right now, we are proceeding with this
hearing when we're facing what the White House describes as the
worst financial crisis since the Great Depression, and many of
us have to get back to that.
We'll go for opening statements by seniority of those who
are here. I think the only person senior to Senator Specter is
Senator Warner, and he's not here at the moment. So I will
yield to you.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. Senator Warner is
not here because he is still at the Republican conference. When
I exited just a few moments ago, he asked me to explain his
absence and his assurance that he will be along shortly.
Today is a very complicated day on Capitol Hill because of
the economic crisis. I did not use the word ``tumultuous'',
which I used earlier today, commented on by the Chairman.
We have a Republican luncheon, as the Democrats do. It
starts at about 12:30 and usually goes to 2:15. When I left a
few moments before 3, it was still in process. Secretary
Paulson was supposed to be there early and didn't finish up the
hearing until past 2. I left a few minutes before 3, even
though I didn't have a chance to ask a question, or questions,
that I wanted to. Senator Warner remained.
I had planned to meet with three of the Pennsylvania
nominees earlier today and just arrived a few moments ago here.
But the schedule is very involved. We were scheduled to have a
series of votes starting at 2:15, 2:30 and the photograph of
the Appropriations Committee, and all of that has been
deferred. The Senators may be interrupted at any time to go to
the floor for votes, depending upon what happens there.
I thank Chairman Leahy especially for scheduling this
hearing. It is very unusual to have judicial hearings on the
week when the Senate is scheduled for termination. The reasons
are very complicated and we don't have time to discuss them
now. But suffice it to say that Chairman Leahy has gone the
extra mile, the extra two miles, the extra 25,000 miles around
the globe to accommodate this proceeding.
I also thank Senator Reid, the Majority Leader, for his
acquiesence, for his support of this proceeding. It is my
hope--really, my expectation--that we will be able to complete
these nominations. That, of course, in the final analysis rests
with the Majority Leader who sets the agenda for confirmation.
But we do have a very distinguished panel of lawyers who are
here.
If I may, Mr. Chairman, I will just proceed with very brief
introductions of the three Pennsylvania nominees.
Chairman Leahy. I see Senator Warner is here.
Senator Specter. Senator Warner.
Chairman Leahy. I'd like to hear from Senator Casey before
we introduce people from Pennsylvania.
Senator Warner, we've already given you glowing accolades
as one of the most senior members of the Senate, and praised
your work, your bipartisan work, with Senator Webb. That's why
we're here.
With that, I'll go to you because apparently we're going to
have votes fairly soon. I doubt if we'll come back to this
hearing once those votes start, so we're going to see how many
judges we get done before the votes start. I'm not suggesting
that anybody--put speeches in the record.
PRESENTATION OF ANTHONY J. TRENGA, A NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. JOHN WARNER,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Mr. Chairman, you and I have been here
together 30 years, and the man on your right, 28 of those years
he's been with us.
Chairman Leahy. That's right.
Senator Warner. I think it's just important to say that I
have had the privilege of introducing many, many, many
individuals before the U.S. Senate, particuarly this Committee.
In the first place, I thank the courtesy that the Chairman and
the Ranking Member extend to all members of the Senate as they
deal with these situations, because each of us has nominations
coming up for the judiciary.
I was a former lawyer and prosecutor myself, so I've had
some modest experience. I can cut to it right away. This
gentleman that I have the privilege of introducing, Anthony
Trenga, is a lawyer's lawyer. He has tried and proven his
skills. He has the highest ratings of our State Bar Association
and of the American Bar Association. His career is what every
young lawyer I think dreams about when they finally make their
way through law school and pass the Bar. So I will simply put
in my statement, but first I would ask that he introduce his
family.
Chairman Leahy. I was thinking, because we have not heard
from--
Senator Warner. Senator Webb joins me in this nomination.
Whatever the pleasure of the Chair might be.
Chairman Leahy. Well, I'll tell you what. Because of the
time--normally I would, but because of the time thing, why
don't I go to Senator Brownback, Senator Casey, and Senator
Webb for any comments they want. Then we'll introduce all the
nominees.
Senator Brownback.
PRESENTATION OF ERIC F. MELGREN, A NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF KANSAS BY HON. SAM BROWNBACK, A U.S.
SENATOR FROM THE STATE OF KANSAS
Senator Brownback. Thank you very much, Mr. Chairman.
Chairman Leahy. I'm just afraid, if we run out of time,
some of these people will have to wait till next year and take
their chances with a new president.
Senator Brownback. Thank you very much, Mr. Chairman. I
appreciate that. I appreciate your accommodating this on the
schedule and the nominee. I visited with you about policy
concerns on prior nominees, but more than anything I want to
thank you for holding this hearing and putting up Eric Melgren
in this. I think it is an extraordinary act on your part and I
deeply appreciate it, and I want you to know that.
If I could--and I will cut to the chase on this as well.
Eric Melgren is somebody I've known for a number of years. He
was born in Minneola, Kansas, which probably the only other
person that would even know about that in this room would be
the Ranking Member of where that is. It's a very small
community near Dodge City, not far from Russell, Kansas. He's
been married for 30 years. He's got four kids.
But he's also a lawyer's lawyer as well: graduated Washburn
University. He was student body president first at Wichita
State, magna cum laude at his law school, top 5 percent. Then
he went out and clerked for the very judge and on the bench on
which he seeks to go now, on the Federal court bench in
Wichita, where we have three senior judges that are helping us
carrying our cases--I mentioned last week in the hearing, the
oldest of which is 100 years old, who is still hearing cases.
We're just a little concerned about his work ethic at this
point in time at that age.
He joined a major law firm in Kansas, did a great job
there. He's been U.S. Attorney for the last 6 years, very
publicly involved. I think he's earned the highest ranking from
the Bar Association of Unanimously Well Qualified. I urge his
consideration.
Chairman Leahy. Thank you. We'll put the full statements in
the record. I apologize for rushing, but we would not have this
hearing if we couldn't do it otherwise.
[The prepared statement of Senator Brownback appears as a
submission for the record.]
Chairman Leahy. Senator Casey.
PRESENTATION OF C. DARNELL JONES, II, A NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, MITCHELL S.
GOLDBERG, A NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, AND JOEL H. SLOMSKY, A NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON.
ROBERT CASEY, JR., A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Casey. Mr. Chairman, thank you very much. I
appreciate the time you're putting into holding this hearing
and scheduling it so late in the legislative year. I want to
thank Senator Specter for his work that went into today's
proceeding.
I'm going to be very brief but I wanted to say, in summary
fashion--I know that Senator Specter and the record will
reflect more detail about the records of all of these
individuals. I want to say, first of all, by way of support for
all three individuals, Judge C. Darnell Jones, Mitchell
Goldberg, and Joel Slomsky, all of them in one way or another
have the requisite legal experience, in some cases--in two
cases they are judges.
Each of them has some other kinds of experience, including
experience as prosecutors. I think they're all ready to assume
the important responsibilities of being not just a judge, but a
judge on the Federal District Court in the Eastern District of
Pennsylvania. I am honored to stand here--to sit here, I should
say--in this hearing and to be able to support them. It is an
honor to work with Senator Specter to bring them forward, and
we look forward to their confirmation.
Chairman Leahy. You and Senator Specter, like Senator
Warner and Senator Webb, have shown the way a bipartisan effort
can be done to bring about judges, and I commend both of you.
Senator Webb.
PRESENTATION OF ANTHONY J. TRENGA A NOMINEE TO BE 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 have a longer statement I would ask be inserted in
the record at this point.
Chairman Leahy. All statements will be.
[The prepared statement of Senator Webb appears as a
submission for the record.]
Senator Webb. I appreciate very much the unusual step of
having this hearing. Senator Warner and I, as you know, have
worked hard, jointly, in a bipartisan way to come up with
highly qualified candidates. I think a lot of that work would
have been for naught if you had not given us the courtesy of
this hearing.
Mr. Trenga enjoyed a long career. He's earned the respect
of colleagues and clients. He received a rating of Highly
Qualified by the Virginia Bar. His nomination was, as I said,
the result of a very rigorous process that Senator Warner and I
jointly participated in. I am very proud to be supporting him,
along with Senator Warner. He has a number of family members
who are with him today; this is a big day for their family. We
wish him the best as a judge.
Chairman Leahy. Thank you very much. We will put the full
statements of everybody in the record.
Senator Roberts, did you wish to speak? I noted before,
anybody who doesn't get heard by the time we have our roll call
votes probably will not get heard this year.
Go ahead.
PRESENTATION OF ERIC F. MELGREN A NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF KANSAS BY HON. PAT ROBERTS, A U.S. SENATOR
FROM THE STATE OF KANSAS
Senator Roberts. Mr. Chairman, I used to, when I was
chairman of the Intelligence Committee, say that people would
have 1 minute and if they exceeded that they would be taken to
Dodge City and hung by the neck until they're dead.
Chairman Leahy. You've used up about half of that 1 minute.
Go ahead.
Senator Roberts. I've got it. I support the President's
nomination of Eric Melgren as Federal District Judge for the
District of Kansas. I associate myself with the remarks of my
distinguished colleague and the senior Senator from Kansas,
Senator Brownback.
Simply put, Eric Melgren is qualified for this important
responsibility. On the other side of it, we are in desperate
need of active judges as opposed to senior judges and he would
do a great job. Thank you.
Chairman Leahy. Thank you very much.
Senator Specter, do you and Senator Casey wish to note who
is here? Maybe their families may want to stand up and be
recognized.
Senator Specter. Thank you, Mr. Chairman. That's a good
idea. If the families of the three nominees from Pennsylvania
would stand, you'd be recognized.
Chairman Leahy. It would be Mr. Jones, Mr. Goldberg, and
Mr. Slomsky. Thank you. And when the individual nominee
testifies, we'll make sure we put in the names of all the
families so that someday in the Jones, Goldberg, and Slomsky
family archives, we'll know exactly who was here.
Senator Warner and Senator Webb.
Senator Warner. Thank you. As Senator Webb said so
eloquently, we both worked on this and it was a pleasure to
have interviewed this nominee who is right here with his
family. If he'd stand with the family, and then we'll get all
the names in due course. Wonderful.
Chairman Leahy. Thank you.
Senator Warner. And could I add one note? Throughout this
process and others, I just want to compliment the dignity of
the staff. They were always responsive, both Majority and
Minority, in working on this and other nominations this year.
Chairman Leahy. You instill that in everybody, Senator
Warner, and I mean that very seriously.
Senator Brownback, Senator Roberts.
Senator Brownback. Eric Melgren's family is not here, but
obviously he is here and will be testifying.
Chairman Leahy. Thank you. Well, I know that all Senators
have about four other hearings they have to go to. If you want
you're welcome to stay, but if you want to leave, feel free
also. The statements are all going to be put in the record.
All the nominees, Trenga, Judge Jones, Judges Goldberg,
Slomsky, and Melgren, please come.
Would you please stand, raise your right hand, and repeat
after me.
[Whereupon, the witnesses were duly sworn.]
Chairman Leahy. The record can show they all were sworn in.
STATEMENT OF ANTHONY J. TRENGA NOMINEE TO BE DISTRICT JUDGE FOR
THE EATERN DISTRICT OF VIRGINIA
Mr. Trenga, would you please just put in, for the record,
those of your family and friends who are here? Later we'll make
sure we get all the spelling right for the Trenga archives.
Mr. Trenga. Yes. Thank you, Mr. Chairman. I'm very
fortunate to have here today with me my family and some very
close friends and colleagues. First and foremost is my wife,
Rita. We have been married 25 years and we have two children.
My daughter Elizabeth is here with me. Unfortunately, my son
Anthony was unable to be here. Also with me are my two
siblings: my sister, Marilyn McClain and her husband Charles;
and my brother, Larry Trenga, who came in from Philadelphia
today.
I also am very fortunate to have with me my brother-in-law,
Colonel Ken Dahl, who is currently here in this area.
I am also very fortunate to have with me a number of my
very good colleagues and friends from my law firm: Mr. Charles
McAleer, Elizabeth O'Keefe, Megan Ellis, Pat Hackman, and also
very good friends, Agnes Dover and Mary Hanigan have joined us.
Also, very good friends, Tom Hylden and Shelley Davis.
[The biographical information follows.]
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7Chairman Leahy. Which indicates he is--being from Virginia
and nearby. I appreciate that. I'd note that we'll put in the
record your background and the fact that you're a partner at
the DC law firm of Miller & Chevalier, and so on.
STATEMENT OF C. DARNELL JONES, II, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Then if I could have Judge Jones, who is a judge on the
Philadelphia Court of Common Pleas, the highest trial court in
the Commonwealth of Pennsylvania. He's been there 21 years. He
was elected president judge by the judges of the Court of
Common Pleas in 2006. Prior to becoming a judge, he was an
Office Assistant in the Citizens Crime Commission and practiced
law at the Defender Association of Philadelphia. And down
through--and I will put, again, in the record his whole
background, which is significant.
I would note that Judge Srika, Tony Srika, took me aside at
the Supreme Court the other day and praised you--not very
much--Judge Jones.
Could you please introduce any members of your family who
are here?
Mr. Jones. Yes, sir. Good afternoon, Mr. Chairman. Thank
you again for the honor of being here, Senator Specter. My
wife, Evelyn Jones, my daughter, Sheinelle Jones, my daughter,
Dr. Keesha Elliott, my daughter, Antonia Jones, and my son-in-
law, Uche Ojeh. And my close friend from law school, Judge
Reggie Walton and his daughter Dannin.
[The biographical information follows.]
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6Chairman Leahy. Thank you all for being here.
Judge Goldberg, who's next, is a judge in the Bucks County
Court of Common Pleas. He was appointed in February 2003,
elected into office for a 10-year term in November of 2003. He
was a former Assistant U.S. Attorney for the Eastern District
of Pennsylvania, a senior partner at the Philadelphia law firm
of Cousin O'Connor, Assistant D.A. for the Philadelphia
District Attorney's Office, one office that I first knew about
when the distinguished senior Senator from Pennsylvania was the
District Attorney there.
Would you like to indicate, Judge Goldberg, do you have
family members here?
STATEMENT OF MITCHEL S. GOLDBERG, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Goldberg. I do. Thank you, Chairman Leahy and Senator
Specter. My wife, Helene Goldberg, is here. My children are
not. My daughter is attending Boston University, her first
year. My son Sam, hopefully is in school right now.
[Laughter.]
My sister-in-law, Sandi--
Chairman Leahy. When he reads this record he's going to
pray he was.
[Laughter.]
Mr. Goldberg. I'm going to show it to him. My sister-in-
law, Sandi Widlitz, who--really, sister-in-law is just a term.
Sandi Widlitz is like a sister to me. She is here. And my
sister, who lives in Bethesda, Maryland, Aileen Kantor, is also
here. I hope I haven't missed anybody.
I did have a brief opening statement. The lawyer in me
wanted to give it, but you've emphasized brevity so I'll waive
my opening statement, Senator.
Chairman Leahy. That shows you're a very good lawyer.
[Laughter.]
[The biographical information follows.]
[The prepared statement of Judge Goldberg appears as a
submission for the record.]
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3[The prepared statement of Judge Goldberg appears as
submission for the record.]
Chairman Leahy. Joel Slomsky, for the past 38 years, has
been a Federal prosecutor, a partner in a law firm, a sole
practitioner, a Federal prosecutor with the Criminal Division
of the Organized Crime section with the U.S. Department of
Justice in Washington, and down through. Again, your whole
background, Mr. Slomsky, will be in the record. Of course, you
know that having two former prosecutors up here, we both read
that part of your background.
Do you have members of your family here?
STATEMENT OF JOEL H. SLOMSKY, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Slomsky. I do. I just want to thank you also for
holding the hearing and giving us this opportunity, and also
thank Senator Specter, and certainly Senator Casey.
I have here today my wife, Paula. Next March, we celebrate
our 40th anniversary, and I've been truly blessed. Also, my
daughter Mona, who is here, who we both love dearly.
[The biographical information follows.]
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0Chairman Leahy. Thank you very much.
The last one will be Eric Melgren, who's currently the U.S.
Attorney for the District of Kansas, a position he's held since
2002. He graduated magna cum laude from Wichita State
University, was student body president, has a law degree from
Washburn, graduating cum laude.
STATEMENT OF ERIC F. MELGREN, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF KANSAS
Mr. Melgren, I understand that with the short notice, you
do not have family here with you. Is that correct?
Mr. Melgren. That's correct, Mr. Chairman.
Chairman Leahy. Thank you.
Mr. Melgren. They're very supportive, but in absence.
Chairman Leahy. No, I understand. We could have waited a
couple of weeks to give them a chance, but I don't think you
wanted to do that.
Mr. Melgren. We're much happier with the way it is. I would
join the remarks. I'm very grateful to you for scheduling this
hearing, Mr. Chairman.
[The biographical information follows.]
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2Chairman Leahy. Let me ask sort of a basic question of all
of you. Again, both Senator Specter and I have been trial
lawyers. Those who have, when you come into a courtroom, you
look at the judge and you say, whether on plaintiff, defendant,
government, or non-government, no matter who I'm representing,
I kind of look at that judge and say, okay, I'm going to get a
fair trial. Win, lose or draw, it's going to be a fair trial.
What assurances--and I'm going to ask the same question of
each of you--that everybody coming into your courtroom--because
we ask this question because you're the only undemocratic
branch of our government. You're not elected and it's a
lifetime appointment. What assurances that they'll be treated
fairly regardless of race, gender, religion, political beliefs,
or anything else? Can you point to anything specific in your
background that would demonstrate that commitment? I'll start
with you, Mr. Trenga.
Mr. Trenga. Thank you, Mr. Chairman. I can certainly give
you that assurance without any reservation or qualification.
I've worked with people and have lived in a variety of
circumstances that have allowed me to work with a wide
diversity of people. Within the community, I have attempted to
participate in activities that were dedicated to the
proposition of treating people fairly and to address
inequalities.
Within my own practice, I have attempted to represent all
people of whatever means they may have. My practice has been
broad. I've represented plaintiffs, I've represented
defendants, I've represented indigent defendants, I've
represented defendants of means, plaintiffs of means.
I've represented large corporations, small corporations,
employees, managers, and I've not restricted my practice in any
way to either plaintiffs or defendants, whether it be
securities fraud cases, or employment cases, or personnal
injury cases. I think it is an enormous--of utmost importance
that the process be perceived as credible, and in order to be
credible the process has to be--the person involved in the
process has to do precisely what you say, and that is treat all
people fairly and without regard to station or office.
Chairman Leahy. I wish to underscore that, because if
courts--Federal courts especially--give the impression that
they won't treat you fairly, the whole system breaks down. When
people lose respect for the courts, it totally breaks down in
this country. We are a country of the rule of law. If we can't
trust our courts, they get their reputation, then we've all
lost. It makes no difference what our political parties are or
our position in the country.
Judge Jones, the same question to you. Can you give that
assurance? Can you point to things in your own background that
would demonstrate commitment to that assurance?
Mr. Jones. Without any equivocation whatsoever, I can make
that commitment, Chairman Leahy. Thank you again for the
opportunity to be here and participate in this process.
Two things. First, my reputation. I trusted my reputation
through all of the reports that have been returned from the
endorsements by the various Bar Associations, the
questionnaires, the American Bar Association. All of those
things combined would demonstrate my reputation for being an
individual who has always been fair and equitable in treatment
of all persons who appeared before me, and all entities which
appeared before me.
I also know that by reason of my experience many, many
years ago as an Assistant Public Defender, I always promised
myself, if I was ever able to achieve the level of being a
judge, I would treat lawyers and litigants the same way I would
want to be treated as a lawyer, and if I ever was a litigant,
the same way. I am duty-bound to do that, sir.
Chairman Leahy. That is important. I remember one thing
that Senator Thurmond would say to everybody, and it didn't
care who was President. He said, remember your power as a
judge. A lot of litigants will only be in a Federal courthouse
once. They're not like those of us who may practice law.
They're only going to be there once, and their whole view of
the criminal justice or the civil justice system of our country
is going to be based on that one time. That's an awesome
responsibility a judge has, an awesome responsibility of the
lawyers as litigants, too, but also for the judge to
demonstrate clearly that he's not favoring one side or the
other.
Judge Goldberg, how would you answer that question?
Mr. Goldberg. First, Senator, you have my word that I will
be fair and impartial, and I'll give you an example that I'm
very proud of. When I first came to the Court of Common Pleas
of Buck's County in the Commonwealth of Pennsylvania, I had
previously been an Assistant United States Attorney, a Federal
prosecutor for some time, and further back in my career, a
State prosecutor. So when I came to the Buck's County
Courthouse, as you can imagine, the Public Defender's Office,
they were a little bit wary of, what kind of sentencer was I
going to be, was I going to be pro-prosecution, pro-defense.
We have proceedings in our courthouse, trials go to certain
judges, and then those persons who want to plead guilty go to
other judges. Initially, there was a reluctance--I think
rightly, because the lawyers and the public defenders didn't
know much about me. They were reluctant to plead in front of
me.
But shortly after I took the bench, the head of the Public
Defender's Office came to our president and judge and said, we
have a great comfort level with Judge Goldberg. We know that he
is going to--has put aside his prior background as a
prosecutor. He's been fair. He's exhibited that fairness and
we're comfortable bringing our clients in front of him for plea
proceedings. Even as a former State and Federal prosecutor,
that was a very high compliment to me.
The other--the second way I'd answer that question,
Senator, is I've represented a wide range of litigants, not
only as a State and Federal prosecutor, but I've also, in
private practice, represented criminal defendants, and in civil
practice, small business owners up to large corporations. So, I
have the perspective of all kinds of litigants that would come
into my courtroom.
Chairman Leahy. Thank you very, very much, Judge Goldberg.
Mr. Slomsky.
Mr. Slomsky. Thank you, Mr. Chairman. I can assure you also
that I will be very fair and very courteous to all litigants
and lawyers that come into my courtroom. I have practiced law
for 37 years in our Federal courts. I was a prosecutor, I've
been a defense attorney. I have represented people from
practically every socioeconomic level in this country,
different ethnic backgrounds. I've interacted with so many
people and I've learned the necessity of treating everyone
fairly, and not only my clients, but also prosecutors I've
interacted with, and fellow lawyers. I can assure you that,
based upon my experience, everyone will be treated fairly in my
courtroom.
Chairman Leahy. Thank you.
Mr. Melgren, I might put extra emphasis on the question
that Judge Goldberg responded to. You're going to be going, if
you're confirmed, from a U.S. Attorney to a judge who will, the
way our dockets go today, have to be handling a lot of cases
from a U.S. Attorney.
Now, I assume it's easy enough to answer the obvious
questions about recusal in cases that you may have been
involved with. But how do you demonstrate your impartiality,
and what is there in your background that would give
credibility to that?
Mr. Melgren. Well, thank you, Mr. Chairman. And thank you
for the question, because I do think the issue of both judicial
impartiality and a comfort with the litigants before the jurist
that he or she is impartial goes to the heart of the integrity
of our process.
It has been my honor to represent the U.S. Government for
the last 6 years as a U.S. Attorney, but prior to that in my
days of private practice, my practice was characterized
principally as a tax litigant. As was noted when I was sworn
into this office, in that role I typically was adverse to the
U.S. Government, so I actually have probably had more years of
suing them than of defending them.
I've been pleased, as this process has progressed along, to
have been stopped several times in our courthouse, even by our
Federal public defenders, to wish me well and to tell me that
they believed and had every confidence that I would be a good
judge and they wished me well in the process.
I was pleased to discover in the American Bar Review that
several people had made comments, and I was told one that
included a longstanding, well-regarded senior attorney in our
community, a member of the American College, who I have on many
occasions debated various issues with in public forums, Rotary
Clubs and such. He told the Bar Review that he and I may be on
opposite ends of an ideological spectrum, but he would have no
hesitation at all in entrusting a matter to me as a judge and
believing he'd be treated fairly.
Chairman Leahy. I read the Bar Association--you had the
highest rating they can give.
Senator Specter.
Senator Specter. The critical questions which are
customarily asked are whether you will interpret the law as
opposed to making the law, and whether you will follow the
statutory requirements, or if the matter is governed by
appellate decisions, will you follow those without regard to
your own personal opinions?
Mr. Melgren.
Mr. Melgren. Thank you, Senator Specter. Certainly you and
this Committee have my commitment that, if I am confirmed in
this as a judge, my commitment is to follow the law. I have
great pride in the fact that we are a Nation of laws and that
we are governed by laws, and that as a trial judge it would be
our duty to interpret the law as this Congress has passed it
and has been signed into law as it is written. It's my
commitment that that would be my highest goal and obligation,
if I were confirmed.
Senator Specter. Mr. Slomsky.
Mr. Slomsky. Senator Specter, I certainly concur. I think a
judge's job is to apply the law and put aside any personal
feelings and to follow the language of the law, and to make
sure that it's followed. I will do that. I assure you it will
be done, and I will respect the process of the law.
Senator Specter. Judge Goldberg.
Mr. Goldberg. Senator Specter, I have the greatest respect
for the separation of powers. I understand and respect that a
judge's role is not to be a policymaker or to legislate. That
is the role of the legislature. You have my commitment that I
will strictly apply the statutes and the precedent.
Senator Specter. Judge Jones.
Mr. Jones. Senator Specter, I concur again with my
colleagues here. I also commit that I have demonstrated that
same kind of commitment for the last 21 years as a member of
the bench in Philadelphia.
Senator Specter. Mr. Trenga.
Mr. Trenga. Senator Specter, you also have my commitment.
It is the role of the court to decide cases based on the law in
a transparent, principled way. The statutes that we're called
upon to interpret reflect the legislative judgments that are
entitled to respect and deference, and I give you my commitment
that I'll do precisely that.
Senator Specter. Judge Goldberg, there was a removal of a
polling place in Buck's County where you sat on a three-judge
panel to decide the matter. There were some concerns expressed
that there was an effort to deprive people of the right to vote
by moving it from what I believe was a housing project to a
more affluent neighborhood because of concerns that there had
been a high incidence of crime at the housing project.
Would you explain what happened there, what your role was
and why your decision was made as it was?
Mr. Goldberg. Sure. The Board of Elections in Buck's County
made a recommendation to move a polling place. I believe the
distance was less than one-half a mile. Their recommendation,
as I understood it, was based on the fact that there had been
high incidence of crime in the one polling place. That decision
has to be affirmed by the Commissioners of Buck's County. But
it was during an election year, so for obvious reasons they
could not stand in and affirm that recommendation.
I believe what occurred then, is the president judge of our
court asked myself and two other judges, Judge Lawlor and Judge
Mellon, to hear the evidence and decide whether the Board of
Elections was acting properly. We heard the evidence. I won't
go into great detail here, but it was, as I said, that there
had been high incidence of crime, and also that the move was
only a half-mile and that would not cause a huge inconvenience
to the voters who had to move from one polling place to
another.
Given that evidence, I deferred to--and I don't believe
technically I was sitting as a judge. I was sitting as a member
of the Board of Elections. Given that evidence, I did what I do
in all the cases that I sit: I weighed the evidence, I listened
carefully, and decided that the Board of Elections was acting
properly. That was my vote, and that was the vote of Judge
Lawlor and Judge Mellon as well.
Senator Specter. I think we have time for one question on
the substance.
Chairman Leahy. Ask all the questions you want.
Senator Specter. Well, when they ring the bells and you
have 15 minutes to get to vote, there's 5 minutes of grace
period. But they haven't rung the bell yet, so I will ask a
question which we customarily reserve for Supreme Court
nominees. Chairman Leahy and this Committee and I have been
engaged in very heavy lifting on the question of the
warrantless wire tap program which the President has instituted
on his Article 2 powers as Commander in Chief, which is in
violation of the Foreign Intelligence Surveillance Act which
requires judicial approval.
When the matter came before the District Court Judge in
Detroit who declared it unconstitutional, that's a pretty big
decision for a District Court judge, when the Congress and the
President are battling over expansion of executive authority.
How would you tackle an issue like that, Judge Goldberg?
Mr. Goldberg. It's a very complicated issue, obviously,
Senator. I would approach it, I think, like I approached all
cases, which is to study the statute first, know it backwards
and forwards, and then study all of the precedent around that
and try to give the truest meaning to the statute.
Senator Specter. I've already told you it's a violation of
the statute. Now you have to decide whether the President's
Article 2 powers are sufficient. That's a judgment call on Al
Qaeda, the atmosphere, and all the surrounding circumstances.
You don't have a whole lot to go on here. Will you have any
hesitancy in declaring it unconstitutional because you're only
a District Court judge and you're bucking the President of the
United States?
Mr. Goldberg. I'd have to read and study the statute,
Senator. But after doing that, if I concluded that the statute
was unconstitutional, even though the ramifications would be
significant, I would do my job.
Senator Specter. How about it, Mr. Trenga?
Mr. Trenga. If I were confirmed as a District Court judge,
I, of course, would look for comfort in the case law as best I
could find it in the Supreme Court cases, and in the cases of
the Fourth Circuit.
Senator Specter. You might not find any comfort in the case
law, in the Sixth Circuit, or in the Tenth Circuit. Let's see.
You're in the Fourth Circuit?
Mr. Trenga. Fourth Circuit. If there were an absence of
guidance, I would, of course, examine what the precise
constitutional challenge was. I don't think it's ever an easy
matter to invalidate a legislative judgment based on a
constitutional challenge. Likewise, I would examine the actions
that were being challenged as a violation of the Constitution.
If, in fact, I was convinced under the law that there was in
fact a constitutional violation, I would--I would so declare.
Senator Specter. A first cousin, Judge Jones, has been the
controversy over habeus corpus and the Combat Status Review
Board which has been set up by Congress, which involved the
abrogation of habeus corpus. When the case came to the Supreme
Court, the Miller case--we don't have time to go into great
detail on it, but how would you approach an issue like that as
to whether the congressional decision to have a review board
was sufficient to guarantee the rights of someone in detention
to have a reason stated as to why they were held in detention,
contrasted with the customary habeus corpus where the Federal
judge makes a determination as opposed to a review board?
Mr. Jones. Mr. Senator, I, if confirmed, would first
recognize the very, very high bar of congressional legislation,
that it is not something that would be taken lightly,
recognizing the status of this great body. It would be, as has
been discussed, something that would be taken into
consideration based upon all of the requisite applications of
constitutional dimension as espoused by the U.S. Supreme Court,
and certainly thereafter entertaining all the arguments of all
sides. Then I would address the issue.
Senator Specter. Mr. Slomsky, which one of those two
questions would you prefer to answer?
[Laughter.]
Chairman Leahy. Because you've got to answer one or the
other.
Mr. Slomsky. Senator Specter, I believe in an independent
judiciary. I have been before many independent judges in my
career. I think when you have a constitutional question, a
judge has to act with restraint, has to study the law very
carefully. I agree with Judge Jones, there is a high bar set. I
would want to read the precedent, study the Supreme Court
decisions on that area and listen to the arguments of counsel
and read the submissions, and then make a decision on what I
think is the right thing to do. It's never easy for a District
Judge, I believe, to declare a statute unconstitutional, or
something the President did unconstitutional. I think that
power has to be used very judiciously.
Senator Specter. Mr. Melgren, do you look forward to being
a Federal judge to have an opportunity to weigh these lofty
issues?
Mr. Melgren. Well, certainly, Senator Specter, both of your
scenarios raise questions of greatest weight that are vested in
a judiciary. I think I would join many of the comments of my
colleagues, that I believe when we're reviewing, if I'm
confirmed, when a judge--any judge--is reviewing an act of
Congress, acting under the broad powers that Article 1 of the
Constitution gives the Congress, great respect and deference is
due to those actions.
Likewise, I think the President, under Article 2, is given
broad powers and respect and deference is due to those as well.
But the courts, under Article 3, do have both the authority and
the responsibility to uphold and enforce the Constitution. And
although those would not be easy decisions nor ones taken
lightly, if I were confirmed as a judge and a matter came
before me either from a--from either a congressional enactment
or a Presidential action, that my study of the law and
listening to arguments of counsel convinced me was
unconstitutional, I believe it would be my responsibility to so
hold.
Senator Specter. Mr. Melgren, which is your town in Kansas,
your residence?
Mr. Melgren. Minneola, Senator. It's probably 100, 120
miles south of Russell, population 700. My father farmed there
and my mother was a nurse in our little 18-bed hospital.
Senator Specter. Well, I knew it was small because I didn't
know about it.
[Laughter.]
And where do you have your office?
Mr. Melgren. As U.S. Attorney?
Senator Specter. As U.S. Attorney.
Mr. Melgren. The District of Kansas is all one district,
but there are three Federal courthouses: Wichita, Topeka, and
Kansas City. My principal office is in Wichita--hat's the
headquarters office of U.S. Attorneys--but we have Assistant
U.S. Attorneys at all three courthouse locations.
Senator Specter. I will conclude by a short Senator
Thurmond story. Senator Thurmond left the Senate 1 month after
his 100th birthday. He still casts a long shadow over our
proceedings. The Chairman has quoted him, and I will quote him
as well.
On one of the early hearings that I attended on this
Committee, Senator Thurmond, in his inimitable voice, said,
``Do you promise to be courteous'', which is interpreted to be
``do you promise to be courteous? ''
[Laughter.]
And then he said, ``The more power a person has, the more
courteous a person should be.'' The more power a person has,
the more courteous the person should be.
In Senator Thurmond's absence, I always--or whenever I
can--repeat that admonition, because it's like Chairman Leahy's
point about impartiality. Judges wear black robes. Fortunately,
as Mr. Slomsky talked about, judicial independence is the
hallmark of the system. Those of us who have to run for elected
office are envious of those of you who enjoy lifetime
appointments. Not sufficiently envious so we'd give up the
Senate to become a judge.
[Laughter.]
Chairman Leahy. I was going to say, I have, three times,
turned down the possibility of being a judge.
Senator Specter. But nonetheless, envious. But when you put
on that black robe and you get up in the morning and things
haven't gone exactly your way, there's a real temptation to not
be courteous, a real temptation not to be courteous. Nominees
have come to me years after these hearings and have said, I
remember what Senator Thurmond said. Keep it in mind.
Thank you, Mr. Chairman.
Chairman Leahy. And I appreciate you doing that. I'm going
to turn to Senator Brownback in just a moment, but I feel very
much the same way, the courteous--the treating everybody alike.
I can't emphasize enough the fact that the people who come in
there--there's some lawyers in there all the time. That's fine
for them. Most litigants will be in there once in their
lifetime, and their whole view of the third branch of
government is going to be based on that.
When the Soviet Union broke up, a group from Duma in Russia
came to visit with me. They were trying to study something
about the independence of our judiciary. I remember very well,
one of them said, is it true that people in your country
sometimes sue the government? I said, happens all the time.
They said, is it also true that sometimes the government loses?
I said, yes, it happens often. And do you then replace the
judge?
[Laughter.]
I'm serious. It was almost like a lightbulb went on in the
room when I explained, no, we don't. I think what Senator
Specter--the questions on the Constitution are very, very
important because, in these particular things--and I'm not
being partisan in saying it.
I have a great deal of concern. Both Senator Specter and I
have made comments about this, on habeus corpus, on wire
tapping, and everything else. Without going into all the cases,
the fact is, in many of them the changes came about only when
the judge had the willingness to stand up and say, no matter
how much pressure--political pressure or anything else--is
being brought, as I read this statute, as I read what is
happening, what is happening is unconstitutional and it must
stop.
As a practical matter, once those positions were taken,
then changes came about. It's because the Federal judiciary
stepped in and showed that kind of courage. Among those who
have shown the courage are people who have been both Republican
and Democratic judges.
Senator Brownback, did you wish to add something? Then I
had one other question.
Senator Brownback. Yes, if I could, just briefly. More,
it's just a statement following up. First, congratulations to
each of you making it this far. This is something that a number
of people aspire to and dream about in law school or other
iterations, so it's really quite a compliment to you and to
your families as well if this moves on through.
Then just, finally, really is a comment along the lines of
what Senator Specter said, just a kind of a mentality approach.
When you go on to the bench, that's one of the highest
positions that the government--the highest positions in the
land, and just to maintain a humility about that, that while
you are in one of those vaulted positions and it's a position
for life, if you're able to make it all the way through the
process, just that humility of what that power brings to it. I
would hope you would think about it.
I think about that often in a great Nation and where we are
one of 100 in this body, which is a fabulous honor. It's a
great blessing, but it's a trusteeship more than anything else.
I'm entrusted with a certain level of power and authority that
is far beyond me as an individual, and after I'm gone will
continue to be there. I need to be as good a trustee as I
possibly can with that so that it maintains the dignity of the
system, maintains the dignity of the human individual that's in
front of me, and it maintains the wisdom of the founders of
this country.
You are possibly going to be in one of those vaulted
positions, and I just would urge you all to contemplate on that
on a fairly regular basis. If you don't, I would hope your
family that's here would remind you about that. Mine regularly
does, and it's a nice help that they do.
Thanks, Chairman.
Chairman Leahy. Thank you.
Judge Goldberg, when your name came up here we had a lot of
people raise the Buck's County voting booth place. One thing
that occurred to me, would it not have worked just to keep it
where it was, but just say we've got to have more law
enforcement in there, more law enforcement presence? Was that
an option?
Mr. Goldberg. I probably, Senator, shouldn't speculate, so
I preface this answer with, I'm not sure that this is 100
percent correct. But I believe, under the Pennsylvania Voting
Act laws, the Board of Elections cannot order law enforcement
to be at the polling places. And because it was such a short
distance, I again defer to the wisdom of the Board of
Elections.
Chairman Leahy. Now, every judge has to make a decision
when there's a conflict of interest. Some conflicts of interest
are very easy and you have to recuse yourself. Chief Justice
Rehnquist said many times that the standard for recusal was not
subjective, but rather objective. Your brother brings a case
before your court, a member of your family is a litigant,
that's very easy. You can do that. It's in the gray areas.
I know that in 2004, I remember Senator Lieberman was very
critical of Justice Skalia, as was I, for not recusing himself
from a case about Vice President Cheney, even though, after he
refused to recuse himself, he went on a duck hunting trip with
the vice president and rode in his airplane, and everything
else, and then wrote a harshly worded opinion in which he said
that there's no way ``his impartiality might reasonably be
questioned.'' People are still scratching their heads over
that.
Without going into the Scalia case, you'll be coming from
either private practice or a different judgeship. Do I have the
assurance of all of you that you will bend over backward,
especially when you first get on the bench, to be prepared to
recuse yourself if there is the appearance of conflicts of
interest?
Mr. Trenga.
Mr. Trenga. Thank you, Mr. Chairman. This is an issue that
goes to the integrity of the process. You do have my assurance
that I would--I would seriously consider any suggestion of
conflict and recuse myself in those circumstances.
Chairman Leahy. Thank you very much.
Judge Jones.
Mr. Jones. Absolutely, I would, Mr. Chairman. In fact, I
did just that in a case in Philadelphia involving a Democratic
chairman who was also a candidate for mayor not too long ago. I
recused my entire bench.
Chairman Leahy. That's a big recusal.
[Laughter.]
Judge Goldberg.
Mr. Goldberg. You have my assurances, Senator. I think
you--you honed in on the most important words: the appearance
of impropriety. I'm well aware that if I am lucky enough to be
confirmed, it's not only do you have a direct conflict, but is
there an appearance of a conflict; how the public views the
court and the trust in the court is very important.
Chairman Leahy. Mr. Slomsky.
Mr. Slomsky. You have my assurance, Mr. Chairman. My
reverence for institutions is such that any appearance will be
completely avoided, and I would recuse myself whenever
necessary.
Chairman Leahy. Thank you.
Mr. Melgren.
Mr. Melgren. Certainly, Mr. Chairman. Your opening question
to this panel went to the trust of the litigants before it, and
I believe these issues address not only whether a judge is
impartial, but whether he may be reasonably viewed to be
impartial by those before him. I take that very seriously.
Certainly you and this Committee have my word that, if I am
confirmed, I will take those issues seriously and do so to
further the trust and integrity of the process of those who
appear before us.
Chairman Leahy. Thank you very much.
Senator Specter.
Senator Specter. Again, Mr. Chairman, thank you for
scheduling and conducting these hearings, and so efficiently as
to have concluded them before the vote bell has rung.
Chairman Leahy. And I want to thank you, of course, and
Senators Warner, Brownback, Roberts, Casey and Webb. I know
they all had long statements praising all of you, and I
normally never cut off any Senator who wants to give a
statement. But I did urge them to do that because I was afraid
we might not complete these hearings. Obviously the record will
stay open for any statement they want to add, or any further
statement you want to add, because we also rushed you, too.
With that, we'll stand in recess subject--
Senator Specter. Mr. Chairman, I'd just like unanimous
consent to put in resumes from each of the nominees.
Chairman Leahy. Oh, sure. Of course. They will be put in.
And if there's anything further that the staff sees has been
left out, resumes or anything else, those will be added to the
record.
With that, we'll stand in recess, subject to the call of
the Chair. Thank you all.
[Whereupon, at 4:11 p.m. the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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