[Senate Hearing 111-1037]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 111-1037
 
  NOMINATIONS OF HON. DANA KATHERINE BILYEU, MICHAEL D. KENNEDY, HON. 
  DENNIS P. WALSH, MILTON C. LEE, JR., JUDITH ANNE SMITH, AND TODD E. 
                                EDELMAN 

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

                                HEARING

                               before the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 20, 2010

                               __________

NOMINATIONS OF HON. DANA KATHERINE BILYEU AND MICHAEL D. KENNEDY TO BE 
  MEMBERS, FEDERAL RETIREMENT THRIFT INVESTMENT BOARD; HON. DENNIS P. 
  WALSH TO BE CHAIRMAN, SPECIAL PANEL ON APPEALS; MILTON C. LEE, JR., 
JUDITH ANNE SMITH, AND TODD E. EDELMAN TO BE ASSOCIATE JUDGES, SUPERIOR 
                   COURT OF THE DISTRICT OF COLUMBIA

                               __________

        Available via the World Wide Web: http://www.fdsys.gov/

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs


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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri           JOHN ENSIGN, Nevada
JON TESTER, Montana                  LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware

                  Michael L. Alexander, Staff Director
               Kristine V. Lam, Professional Staff Member
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government 
    Management, the Federal Workforce, and the District of Columbia
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                   Jennifer L. Tarr, Minority Counsel
    Jennifer A. Hemingway, Minority Staff Director, Subcommittee on 
  Oversight of Government Management, the Federal Workforce, and the 
                          District of Columbia
                  Trina Driessnack Tyrer, Chief Clerk
         Patricia R. Hogan, Publications Clerk and GPO Detailee
                    Laura W. Kilbride, Hearing Clerk


























                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Akaka................................................     1
    Senator Voinovich............................................     2
Prepared statements:
    Senator Akaka................................................    29
    Senator Voinovich............................................    30

                               WITNESSES
                        Tuesday, April 20, 2010

Hon. Dana Katherine Bilyeu to be a Member, Federal Retirement 
  Thrift Investment Board:
    Testimony....................................................     3
    Prepared statement...........................................    39
    Biographical and financial information.......................    42
    Letter from the Office of Government Ethics..................    55
    Responses to pre-hearing questions...........................    56
Michael D. Kennedy to be a Member, Federal Retirement Thrift 
  Investment Board:
    Testimony....................................................     5
    Prepared statement...........................................    63
    Biographical and financial information.......................    65
    Letter from the Office of Government Ethics..................    75
    Responses to pre-hearing questions...........................    76
Hon. Dennis P. Walsh, to be Chairman, Special Panel on Appeals:
    Testimony....................................................     7
    Prepared statement...........................................    84
    Biographical and financial information.......................    87
    Letter from the Office of Government Ethics..................    99
    Responses to pre-hearing questions...........................   101
    Responses to post-hearing questions for the Record...........   108
Hon. Eleanor Holmes Norton, a Delegate in Congress from the 
  District of Columbia:
    Testimony....................................................    16
Milton C. Lee, Jr., to be an Associate Judge, Superior Court of 
  the District of Columbia:
    Testimony....................................................    18
    Prepared statement...........................................   110
    Biographical and financial information.......................   112
    Responses to post-hearing questions for the Record...........   136
Judith Anne Smith to be an Associate Judge, Superior Court of the 
  District of Columbia:
    Testimony....................................................    19
    Prepared statement...........................................   137
    Biographical and financial information.......................   138
    Responses to post-hearing questions for the Record...........   152
Todd E. Edelman to be an Associate Judge, Superior Court of the 
  District of Columbia:
    Testimony....................................................    21
    Prepared statement...........................................   153
    Biographical and financial information.......................   154
    Responses to post-hearing questions for the Record...........   174

                                APPENDIX

Hon. Harry Reid, a U.S. Senator from the State of Nevada, 
  prepared statement.............................................    33
Paul Strauss, U.S. Shadow Senator for the District of Columbia, 
  prepared statement.............................................    34


  NOMINATIONS OF HON. DANA KATHERINE BILYEU, MICHAEL D. KENNEDY, HON. 
  DENNIS P. WALSH, MILTON C. LEE, JR., JUDITH ANNE SMITH, AND TODD E. 
                                EDELMAN

                              ----------                              


                        TUESDAY, APRIL 20, 2010

                                     U.S. Senate,  
                       Committee on Homeland Security and  
                                      Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:07 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Daniel K. 
Akaka, presiding.
    Present: Senators Akaka and Voinovich.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. This hearing will come to order.
    Good afternoon and welcome to all of you. Today, the 
Committee on Homeland Security and Governmental Affairs meets 
to consider the nominations of Dana Bilyeu and Michael Kennedy 
to be Members of the Federal Retirement Thrift Investment Board 
(FRTIB) and Dennis Walsh to be Chairman of the Special Panel on 
Appeals. On the second panel, we will consider nominations for 
the District of Columbia Superior Court.
    My friend, Senator Reid of Nevada, is unable to join us 
today, but he submitted a statement of introduction and support 
for Ms. Bilyeu that will be placed, without objection, at the 
appropriate place in the record.\1\
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Reid appears in the Appendix 
on page 33.
---------------------------------------------------------------------------
    The Federal Retirement Thrift Investment Board was 
established in 1986 by legislation modernizing the Federal 
retirement system and creating the Thrift Savings Plan (TSP). 
The Board administers the TSP, which is a retirement savings 
plan similar to a 401(k) plan for Federal employees as well as 
military service members.
    Ms. Bilyeu is well qualified to join this Board. She has 
decades of experience with retirement funds and currently is 
Executive Officer of the Public Employees Retirement System of 
Nevada. In that role, she is responsible for fund management, 
including investment oversight.
    Mr. Kennedy also has strong credentials. He is Trustee for 
the Employees Retirement System of Georgia pension fund, a 
position he has held for over a decade already. He also has 
spent many years in the private sector and currently is a 
senior client partner at an executive recruiting firm in 
Atlanta.
    The Special Panel on Appeals resolves disagreements between 
the Merit Systems Protection Board (MSPB) and the Equal 
Employment Opportunity Commission (EEOC). These disagreements 
arise on occasion in mixed cases where an employee appeals a 
personnel action to the MSPB and also petitions the EEOC, 
alleging that the action was based on discrimination.
    Mr. Walsh is a distinguished attorney who currently serves 
as the Associate General Counsel of the Federal Labor Relations 
Authority. Prior to that, he spent 20 years working at the 
National Labor Relations Board and served both as a member and 
as Deputy Assistant General Counsel.
    I am impressed with the qualifications of the nominees 
before us and am confident that, if confirmed, they will have 
much to offer the Federal Government.
    I want to congratulate all three of you on your nominations 
and welcome you and your loved ones to the Committee today. I 
understand that you have some family and friends in the 
audience, and I can hear them, too. [Laughter.]
    I want to give you the opportunity to introduce them to the 
Committee. Ms. Bilyeu, I would like to start with you and your 
introductions.
    Ms. Bilyeu. Senator Akaka, my mother, Laurel Sammons, and 
my sister, Brooke Nielsen, are with me today in the audience.
    Senator Akaka. Thank you. Mr. Walsh.
    Mr. Walsh. Thank you, Senator Akaka. With me today is my 
wife, Barbara A. O'Neill, who is a prominent labor attorney and 
long-time public servant with the National Labor Relations 
Board, sitting behind me.
    Senator Akaka. Welcome. Mr. Kennedy.
    Mr. Kennedy. Senator Akaka, I do not have anyone with me 
today, so I am flying solo.
    Senator Akaka. Thank you. Aloha again to you and your 
families and your supporters, and welcome. You must be very 
proud of your loved ones and what they have accomplished.
    Now let me call on my good friend and partner here. We have 
worked so well together over the years. Senator Voinovich and I 
have sat on the Committee for many of those years. Senator 
Voinovich is a true leader in Federal workforce issues and has 
demonstrated his commitment during his time on this Committee 
to improving all aspects of our Federal workforce.
    Senator Voinovich, would you like to make an opening 
statement at this time?

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. Thank you, Senator Akaka. The two of us 
have spent a lot of time together over 10 years working on 
human capital and trying to create an opportunity where we can 
keep the best and brightest and attract those that we would 
like to see come into government.
    Senator Akaka has really done a wonderful job of 
introducing all of you. To our TSP nominees, you are coming at 
a challenging time, but both of you have excellent credentials 
for that job, and I appreciate your willingness to serve, and I 
appreciate your families and the sacrifice they are going to 
make so you can serve.
    Mr. Walsh, I would like to recognize the fact that you are 
willing to take on this job, in spite of the fact that you are 
not going to get paid--because under the rules, you cannot 
receive pay for two jobs--because you think it is going to make 
a difference for our country, so I thank you very much for your 
service.
    Senator Akaka, thank you.
    Senator Akaka. Thank you, Senator Voinovich.
    Our nominees have filed responses to biographical and 
financial questionnaires and answered prehearing questions 
submitted by the Committee. Without objection, this information 
will be made a part of the hearing record, with the exception 
of the financial information, which is on file and available 
for public inspection at the Committee offices.
    Our Committee rules require that all witnesses at 
nomination hearings give their testimony under oath. Therefore, 
I ask all of the witnesses to please stand and raise your right 
hand.
    Do you swear that the testimony you are about to give this 
Committee is the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Ms. Bilyeu. I do.
    Mr. Kennedy. I do.
    Mr. Walsh. I do.
    Senator Akaka. Thank you. Let it be noted in the record 
that the witnesses answered in the affirmative.
    Ms. Bilyeu, will you please proceed with your statement.

  TESTIMONY OF HON. DANA KATHERINE BILYEU \1\ TO BE A MEMBER, 
           FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

    Ms. Bilyeu. Good afternoon and thank you, Senator Akaka, 
Ranking Member, and Committee Members for holding the hearing 
today. My name is Dana Bilyeu, and I am honored to appear 
before you as a nominee to the Federal Retirement Thrift 
Investment Board.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Bilyeu appears in the Appendix on 
page 39.
---------------------------------------------------------------------------
    I am deeply grateful to President Obama for his confidence 
in me for this position. I also want to express my thanks and 
gratitude to Majority Leader Reid for his trust and support in 
recommending me to the President for nomination to this 
important post.
    Before I start, I do want to thank my husband, Lindsay, and 
my son, Mateo, for their continuing support both in our family 
life and for my professional pursuits. Due to scheduling 
conflicts, namely they are both in school full time, they were 
unable to attend today's hearing. As I indicated previously, 
both my sister and my mother are with me today. They both 
inspire me to work to my greatest capacity, a trait that I 
learned through keen observation of both of them as they made 
their way through their personal and professional careers. My 
father, Daniel Sammons, died in February of this year, and it 
is in his honor that I speak today.
    Should I be confirmed, I look forward to working with the 
other members of the Federal Retirement Thrift Investment Board 
and with the dedicated staff of the agency to further the 
policy goals for the Thrift Savings Plan, as it is a critical 
component of the retirement security for Federal employees. If 
confirmed, I will draw on my 20 years of experience in the 
retirement industry to fulfill my obligation to the members of 
Thrift Savings Plan as a good steward of the investment policy 
of the plan, providing low-cost, high-quality, broadly based 
investment options for the members.
    My experience as a retirement professional managing pension 
assets for members and beneficiaries of the Nevada pension fund 
will provide a complementary perspective on retirement 
financing and investment vehicles for the Board. I began my 
career in the retirement sector as General Counsel, moving on 
to manage operations, outreach, education, and benefits for a 
diverse population of employees. In my current capacity as the 
Executive Officer, I am responsible for investment policy 
development, asset allocation recommendations, and risk 
management. I spend the lion's share of my average day focused 
on the same issues that face individuals participating in the 
Federal Thrift Savings Plan.
    I have had an opportunity since my nomination to learn more 
about the Thrift Investment Board, including the statutory 
mission, activities, and current investment policy framework 
within which the various investment vehicles for Federal 
employees have been crafted. If confirmed, I will work hard to 
continue the positive leadership already in place for this 
program.
    I have a great deal of experience working with a variety of 
professionals responsible for managing retirement assets for 
others as well as in the education sector within our industry. 
Now, more than ever, given the volatility our Nation has seen 
within the investment markets in the most recent market cycle, 
it is imperative that the financial literacy efforts of the 
agency be continued. Financial literacy allows participants in 
the plan to evaluate their own risk tolerance and to make 
informed investment choices that match that personal risk 
tolerance.
    I understand that the Office of Personnel Management is 
primarily responsible for educating the Federal workforce as to 
the nature of the benefits available to Federal employees, but 
the efforts of the Thrift Investment Board and staff in 
providing tools for employees to better understand the fund 
options available to them focus employees on the need to set 
aside funds today to help finance their futures in a manner 
that best suits the employees' own goals.
    Because the Thrift Savings Plan is a defined contribution 
plan, the most important challenge facing the agency today is 
the need to increase participation in the program in all 
employment sectors, but particularly for our military. Congress 
has provided a significant tool to aid this effort in allowing 
an immediate agency match as an incentive to employees to 
encourage participation, as well as automatic enrollment. If 
confirmed, I will continue to emphasize the efforts of the 
Board to educate the non-participating workforce and to provide 
appropriate tools for the participating population to make 
informed investment choices based on their individual goals.
    I believe my background and experience have prepared me to 
become a valuable and positive member of the Thrift Investment 
Board, and I would like to thank the Committee for considering 
my nomination. If confirmed, I look forward to working with the 
Members of this Committee, the Committee staff, and Congress as 
a whole.
    I would be happy to answer any questions that the Committee 
may have.
    Senator Akaka. Thank you. Thank you very much for your 
statement, Ms. Bilyeu.
    Mr. Kennedy, will you please proceed with your statement.

  TESTIMONY OF MICHAEL D. KENNEDY \1\ TO BE A MEMBER, FEDERAL 
               RETIREMENT THRIFT INVESTMENT BOARD

    Mr. Kennedy. Mr. Chairman and distinguished Members of the 
Committee, I am honored to appear before you today as a nominee 
to the Federal Retirement Thrift Investment Board. I am deeply 
humbled by the confidence that President Obama has shown in me 
with this nomination.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Kennedy appears in the Appendix 
on page 63.
---------------------------------------------------------------------------
    As you know, the FRTIB was established to provide guidance 
and oversight for the Thrift Savings Plan, the primary pension 
fund for Federal employees. If confirmed, I look forward to 
working with the staff and participants in continuing to 
fulfill the mission of FRTIB while strengthening the 
organization.
    I believe I was nominated for this position due to my 
extensive financial services background and pension fund 
experience. For the past 10 years, I have had the honor to 
represent the citizens of the State of Georgia as a Trustee for 
the Employees Retirement System (ERS) of Georgia. With assets 
of approximately $14 billion, ERS has administered benefits to 
over 130,000 active employees and 52,000 retirees. During my 
tenure on the Board, I have served as a member of the 
Investment Committee. For 5 years, I served as Board Chairman.
    Over this past 10 years, we have worked closely with our 
staff in enhancing our communications with participants in the 
plan. This has been done through the implementation of an 
effective call center as well as a revised and more interactive 
Web site. We have provided greater access to participants 
regarding retirement planning and education. Furthermore, we 
have upgraded our technology, which has allowed ERS to operate 
in a more efficient manner. Finally, we have attracted stronger 
and more experienced talent to the organization, which will 
benefit ERS long-term.
    As an ERS Trustee, I have had the opportunity to become 
involved in several national pension fund organizations such as 
the National Association of State Retirement Administrators 
(NASRA) and the National Association of Securities 
Professionals (NASP). My involvement in these organizations has 
allowed me to interact with trustees across the country and 
learn about industry trends. This involvement has also allowed 
me to develop best practices, which we have implemented back in 
the Georgia system. All of these experiences will be beneficial 
in my involvement with FRTIB, if confirmed.
    In the first part of my professional career, I developed a 
broad background in the financial services industry. I started 
my career as an investment analyst at J.P. Morgan in New York, 
where I analyzed bank and savings and loan stocks for portfolio 
managers. In this role, I developed a foundation for 
understanding equity capital markets.
    After completing my MBA at Harvard, I worked as a banker at 
Wachovia. In this role, I learned about the various financing 
options for corporations. Finally, at GE Capital, I focused on 
areas such as private equity and mezzanine debt. In addition to 
the traditional equities and fixed income asset classes, I have 
developed extensive knowledge of alternative investments. If 
confirmed, these financial experiences should allow me to bring 
a broad perspective to my position as a Board member at FRTIB.
    Currently, I am a Senior Client Partner at Korn/Ferry 
International in Atlanta. In my position, I conduct senior-
level searches for top talent in the financial services 
industry. Over the past several years, I have conducted senior 
searches for large pension fund organizations such as the 
California Public Employees Retirement System (CalPERS), the 
California State Teachers Retirement System (CalSTRS), and the 
Teacher Retirement System of Texas (Texas Teachers). These 
searches have allowed me to gain some insight into these 
complex organizations while understanding the need to recruit 
top investment talent. If I am confirmed, my recruiting 
background will be helpful in my new role at the FRTIB as the 
organization continues to recruit and retain top-level talent.
    Should I be confirmed, I will focus my efforts in three key 
areas: One, investment oversight; two, communications and 
education; and three, recruitment and retention of top talent.
    Although the current investment options appear to be 
adequate, it is always prudent to continually review these 
options in light of changing financial markets. It is also 
prudent to analyze and review additional options in order to 
remain current.
    Although the FRTIB does a good job in its current 
communications and education efforts, these areas need to be 
continually enhanced in order to capture new participants.
    Finally, it is important to make sure that the staff at the 
FRTIB remains top-notch. This can be done through strategic 
recruiting as well as providing constructive feedback to 
current employees. It is important to create a welcoming 
culture for employees and a team-oriented environment.
    I believe that my pension fund experience and financial 
services background have equipped me to make a positive 
contribution to the Federal Retirement Thrift Investment Board. 
If confirmed, I look forward to working with Members of this 
Committee and the entire Congress in helping to strengthen the 
FRTIB and maintain its important mission.
    I would be happy to respond to any questions you may have.
    Senator Akaka. Thank you very much for your statement, Mr. 
Kennedy.
    And now, Mr. Walsh, will you please proceed with your 
statement.

 TESTIMONY OF HON. DENNIS P. WALSH \1\ TO BE CHAIRMAN, SPECIAL 
                        PANEL ON APPEALS

    Mr. Walsh. Thank you. I am honored to be appearing before 
this Committee as the President's nominee for the position of 
Chairman of the Special Panel on Appeals. I would like to thank 
you, Senator Akaka and Senator Voinovich, and the other Members 
of the Committee for this opportunity to appear before you and 
to be considered for this very important position. I would also 
like to thank my wife, who I have already introduced, Barbara 
O'Neill, who has supported me throughout my career in the 
Federal Government, and our two children, Steven, who is a 
sophomore in college, and Rose, a freshman in high school, and 
as educational as this experience would have been for them, we 
preferred for them to be in class, as well, today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Walsh appears in the Appendix on 
page 84.
---------------------------------------------------------------------------
    As you know and as you have described very aptly, the 
Chairman of the Special Panel on Appeals is a position 
established by the Civil Service Reform Act of 1978 to address 
certain mixed cases that involve issues concerning both merit 
systems principles and anti-discrimination principles as 
applied to Federal employees. If a Federal employee appeals 
such a case to the Merit Systems Protection Board and the MSPB 
decides the case, the employee can subsequently appeal the 
decision regarding the discrimination claim to the Equal 
Employment Opportunity Commission. If the EEOC issues a 
decision that differs from the MSPB's decision as to the 
discrimination claim, it refers the case back to the MSPB. The 
MSPB can concur in the EEOC's decision at that point, which 
makes it a final decision subject to judicial review.
    But if the MSPB determines that the EEOC's decision 
conflicts with merit systems rules or laws, or that it did not 
have sufficient evidence in the record in applying those rules, 
it must certify the case to the Special Panel on Appeals. That 
somewhat complex procedure is where this position comes into 
play.
    The Chairman of the Special Panel, a presidential appointee 
under the Civil Service Reform Act, convenes a Special Panel, 
consisting of himself or herself, a member of the MSPB, and a 
Member of the EEOC. The Special Panel has 45 days to consider 
the case and must decide within that time period if indeed the 
EEOC's decision is in violation of merit systems rules or did 
not apply them correctly to the record. In making such a 
decision, the Special Panel must give due deference to the MSPB 
on issues involving merit systems principles and to the EEOC on 
anti-discrimination principles.
    In a nutshell, Senators, that is the position which the 
President has asked me to assume. I believe I am well 
positioned to undertake this responsibility because of my 
extensive experience as an adjudicator of labor cases at the 
National Labor Relations Board (NLRB), my experience as a 
Federal manager at the NLRB, and my present position as the 
Deputy General Counsel at the Federal Labor Relations Authority 
(FLRA).
    As a member of the NLRB, I was called upon to decide cases 
involving labor law issues under the National Labor Relations 
Act as part of a politically divided yet collegial body. Our 
job was to meld our various views together and decide cases as 
expeditiously as possible. The job of the Chairman of the 
Special Panel on Appeals, likewise, is to work together with 
panel members who may have disparate points of view and to 
issue a decision within a very tight time frame.
    My priority as a decisionmaker at the NLRB was always to 
decide cases quickly, while at the same time addressing all of 
the issues thoroughly and fairly. Those skills should serve me 
well if I am confirmed as Chairman of the Special Panel. As 
both a Chief Counsel and a Member of the NLRB, I was often 
confronted with issues involving both merit systems and anti-
discrimination principles since I was responsible for managing 
my own Federal staff and also had co-responsibility with the 
other Board Members and the General Counsel for overall 
management at the NLRB.
    And finally, in my current position as Deputy General 
Counsel at the FLRA, I am responsible for the overall 
management of a nationwide field staff of Federal employees. In 
this position, therefore, I am becoming even more familiar with 
the merit systems and anti-discrimination principles that the 
Chairman of the Special Panel on Appeals is charged with 
addressing.
    The main priority of the Special Panel on Appeals is to 
decide cases presented to it fairly and expeditiously within a 
tight time frame. The statutory procedures that result in cases 
being presented to the Special Panel are complex. That is 
because those procedures are the product of a congressional 
compromise that was designed to maintain a delicate balance 
between merit systems and anti-discrimination principles by 
providing a third-party administrative tribunal that can 
reconcile those principles in a way that preserves the 
authority of both the MSPB and the EEOC over the areas in which 
each has the greatest expertise.
    It is, therefore, important to have fair and impartial 
decisionmakers on the Panel who understand the need both for 
careful legal rationales and expeditious decisions. I believe I 
have demonstrated my ability to accomplish both of those 
objectives in my career as an adjudicator of labor cases.
    I thank this Committee for its consideration of my 
nomination, and I, of course, will be pleased to answer any 
questions that you may have.
    Senator Akaka. Thank you very much, Mr. Walsh, for your 
statement.
    I will begin with the standard questions this Committee 
asks of all nominees and ask you to answer these questions 
verbally.
    Is there anything you are aware of in your background that 
might present a conflict of interest with the duties of the 
office to which you have been nominated?
    Mr. Walsh. No, sir.
    Ms. Bilyeu. No, sir.
    Mr. Kennedy. No, sir.
    Senator Akaka. Do you know of anything, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated?
    Mr. Walsh. No, sir.
    Ms. Bilyeu. No, sir.
    Mr. Kennedy. No, sir.
    Senator Akaka. Finally, do you agree without reservation to 
respond to any reasonable summons to appear and testify before 
any duly constituted Committee of Congress if you are 
confirmed?
    Mr. Walsh. Yes, sir.
    Ms. Bilyeu. Yes, sir.
    Mr. Kennedy. Yes, sir.
    Senator Akaka. Thank you very much for your responses.
    I have some questions here for you. This question is for 
both Ms. Bilyeu and Mr. Kennedy. You both have distinguished 
careers and serve on State pension boards that make investment 
and policy decisions to provide for public worker retirement. 
As you know, the Federal Retirement Thrift Investment Board 
makes similar decisions that affect millions of Federal 
employees. Please discuss how your experience has prepared you 
to serve on this Board. Ms. Bilyeu.
    Ms. Bilyeu. Thank you, Senator Akaka. My experience in the 
managing of the Public Employees Retirement System in Nevada 
has prepared me, I think, to be a major contributor to the 
Thrift Savings Plan for the Federal workers in that we make 
investment decisions all the time. We manage investment 
professionals. We monitor return numbers. We monitor fees, all 
of the very same things that this Board will be doing on behalf 
of those that are participating in the various funds approved 
by Congress. From that perspective, being able to lend that 
expertise to this Board, I think, will allow us to provide a 
greater depth of experience to the Board over time.
    Senator Akaka. Mr. Kennedy.
    Mr. Kennedy. Yes, Senator Akaka, I think there are several 
areas, and I may have mentioned some in my opening statement, 
but I think from a communications standpoint, I certainly have 
been involved in that area as a Trustee of the State of 
Georgia. In addition, education, coming up with creative ways 
to educate some of the participants in the plan about 
investments and also just about retirement planning in a 
general sense. And then third, as Ms. Bilyeu pointed out, the 
oversight of investments. We certainly have a great deal of 
experience in that regard.
    The other factor is that she and I have both been involved 
in several national public pension fund organizations, so 
therefore, we have been able to develop a network of other 
people leading to best practices and things of that nature.
    So I think those are some of the things that we would be 
able to bring to the FRTIB from our State perspectives.
    Senator Akaka. Thank you very much.
    Mr. Walsh, you have a long record of service at the NLRB 
which administers the National Labor Relations Act, the law 
governing relations between unions and private sector 
employers. You already touched on this, but I would like you to 
discuss how your experience has prepared you for the Special 
Panel on Appeals and what you will do to further develop your 
expertise in Federal employment and discrimination law.
    Mr. Walsh. Thank you, Senator. Yes, in terms of my 
experience, I think that in some ways I am uniquely positioned 
for the Chairman of the Special Panel position in the sense 
that it was my role on the National Labor Relations Board to 
work with other decisionmakers to carefully craft decisions on 
labor law issues in an expeditious way, which is, in general, 
of course, the job of the Chairman of the Special Panel.
    In terms of expertise in Federal merit systems and anti-
discrimination law, as I said, I have had experience with it as 
a manager in a Federal agency, and I am now, as a manager in an 
advisory capacity at the Federal Labor Relations Authority, 
learning more and more about Federal service law and the 
principles that apply to Federal employees. There is also staff 
assistance available to the Chairman of the Special Panel at 
both the EEOC and the MSPB, and that will be my first priority, 
to draw upon the vast experience at those two agencies to 
educate myself even more thoroughly on civil service principles 
as well as anti-discrimination principles so that I will be 
ready whenever a case comes before the Special Panel.
    Senator Akaka. Thank you, Mr. Walsh. Ms. Bilyeu and Mr. 
Kennedy, as you both know, I am a strong advocate for improving 
financial literacy. Will you please give specific examples of 
the steps you will take as a Board member to increase 
participants' education about their investment options?
    Ms. Bilyeu. Senator Akaka, the first step, if we are 
confirmed in these positions, that I would want to do is to 
take a very in-depth look at what is the financial literacy 
education program that is currently in place at the TSP, and I 
know that there have been some broad steps taken there, as well 
as making some of their tools a little bit more interactive for 
individuals.
    I think the first step that I would want to look at 
implementing is broadening how we address those that are non-
participants in the program, particularly those in the 
military. As I indicated in my opening statement, those that 
are at the beginning of their careers, those that are very 
early on, 18, 19, and 20-year-olds, often are those that have 
the hardest time deciding to participate in these programs, and 
they are actually the group that needs to start participating 
early, and our military, I think, is a great example of that. 
We have a very young military, and those that need that 
participation, we will be focusing on that.
    Financial literacy is very difficult to strike the right 
balance between how much information you give them and how 
careful you are not to lead them to make particular choices. 
For me, financial literacy means being able to have the 
individual be able to assess what their own risk tolerance is 
and to learn about the various risks of the funds as they go 
forward. So introducing a risk component to the education 
process is something that I would want to see happen.
    Senator Akaka. Thank you. Mr. Kennedy.
    Mr. Kennedy. And just to build on Ms. Bilyeu's comments, 
which I agree with wholeheartedly, I think there are several 
things that the FRTIB has already started to implement that 
will help in terms of communications within the financial 
literacy area. Specifically, they have been working to enhance 
the Web site to make it more interactive as a way to get the 
message out to more and more people, and I think that will be 
something that we will continue to work with the staff to 
continue to develop going forward.
    Second is in the area of the call centers because they have 
actually set those up, and it is another mechanism specifically 
they have in order to communicate with current participants and 
hopefully with new participants. As Ms. Bilyeu pointed out, I 
think one of the challenges that the FRTIB and TSP will be 
confronted with is continuing to bring new plan participants 
into the plan. So that is something that will be a goal of mine 
as well as, I think, of hers going forward.
    Senator Akaka. Thank you very much.
    Ms. Bilyeu, in your answer to this Committee's prehearing 
questionnaire, you identified investment performance oversight 
as an area you plan to focus on, if confirmed. Please explain 
why performance oversight is important to the Thrift fund and 
its participants. I just want to warn Mr. Kennedy that I am 
going to ask you for a comment on that, too. Ms. Bilyeu.
    Ms. Bilyeu. Senator Akaka, from the experience that I have 
seen, both in my current professional career and after review 
of the funds that are available in the Thrift Savings Plan, you 
want to make sure when you are using even index funds, which is 
what is used primarily at the TSP, that your investment 
managers are following all the terms and conditions that have 
been set for them. There are a lot of layers to that in the 
investment world, and from my perspective, as fiduciaries to 
the fund, it is our obligation to ensure that those that are 
actually doing the investments on behalf of the individuals 
have very clear responsibilities to report to us how they are 
doing. Any of their potential issues that may come up, we 
should know about those ahead of time.
    So it is about ensuring that those that have been charged 
with the obligation to actually invest the funds on behalf of 
the individual members are doing what they are supposed to do, 
and as a fiduciary, I think that is one of my major goals.
    Senator Akaka. Mr. Kennedy.
    Mr. Kennedy. Just to build on that comment, I would 
continue to work and sort of monitor and oversee not only the 
performance of the investment management options that are in 
the program, but the stability of the investment management 
firms providing the mutual funds or whatever the various 
options are. We live in a very rapidly changing financial 
environment. There is a great deal of consolidation within the 
financial services industry. Many of the firms, as you know, 
continue to merge and things of that nature. So we really need 
to have an understanding and feel comfortable that the 
investment management firms that we do employ to provide the 
options remain strong, as well as some of the comments that Ms. 
Bilyeu made.
    Senator Akaka. Thank you very much. Senator Voinovich.
    Senator Voinovich. Mr. Walsh, I think you are in great 
shape. Senator Akaka asked some good questions. I am going to 
concentrate on Ms. Bilyeu and Mr. Kennedy, so you can breathe 
easy.
    Mr. Walsh. Thank you. [Laughter.]
    Senator Voinovich. First of all, Ms. Bilyeu, you have a 
husband and a son named Mateo?
    Ms. Bilyeu. Mateo is my son.
    Senator Voinovich. Bilyeu, it is an interesting name. What 
derivation is that, do you know?
    Ms. Bilyeu. That is a good question, Senator Voinovich. I 
would be happy to get back to you---- [Laughter.]
    Senator Voinovich. It is going to have a lot to do with 
this job. [Laughter.]
    Ms. Bilyeu. I believe that it is Cajun derivation. It is a 
French derivation that has been misspelled over time, and so we 
believe the background is Cajun.
    Senator Voinovich. Well, you will have to excuse me because 
my parents were first generation, and the first question that 
was always asked at the table was, what is their ethnic 
background? So I play games guessing people's background.
    You both have a tough job. We do not know where the markets 
are going. Can you share with me who the managers are for the 
respective funds, and what qualifications do you have and how 
would you monitor their performance? In other words, I think 
many believe that we have a bunch of people at the Thrift Board 
that are looking at various stocks and deciding on how the TSP 
should be invested, when actually what the TSP does is hire 
some firms for this function and then they kind of oversee what 
they are doing. I would like your opinion on how do you judge 
the performance of those people and how do you make sure that 
the TSP is not going down the wrong track.
    Ms. Bilyeu. Senator Voinovich, Senator Akaka, from my 
perspective, when you are looking at investment management 
firms of any type, those that are currently hired by the TSP 
or, for instance, my own pension fund, there are various types 
of management. When you have index managers, which are passive 
managers managing against indexes themselves, the first thing 
you want to do is make sure that they are tracking the index 
appropriately, that they are following the mandate that has 
been given to them, and that is a significant issue for us 
because tracking error always means performance changes.
    You want to make sure that the team that is involved in the 
oversight of the account is maintained; it stays in place; it 
is not one in which there are a lot of changes. And as Mr. 
Kennedy indicated, you want to make sure that there is 
stability in those firms----
    Senator Voinovich. I think there are two managing firms now 
for them.
    Ms. Bilyeu. I believe one of them is Barclays Global 
Investors (BGI), which is the most significant money manager in 
the country at this point. We actually refer to them sometimes 
as the 800-pound gorilla in the investment management world 
because they are such a very significant firm. It is a very 
strong firm, with very strong performance, particularly in the 
index world, which is where the lion's share of these funds 
are.
    Senator Voinovich. Mr. Kennedy, please go ahead and 
comment.
    Mr. Kennedy. Yes. And just to pick up on that, I really do 
think we need to underscore the stability factor, as well, 
because certainly we will work with the staff at the FRTIB in 
reviewing the investment returns for the various funds and 
making sure there is not a drift from being the passive style 
that they selected. So tracking the mandates is going to be 
vitally important. But I do think it is going to be equally as 
important to make sure that we have a great deal of stability 
for the individuals who are working with the FRTIB on the 
specific choices so there is not a lot of turnover, because 
typically when there is turnover in these firms, then that 
could lead to some performance issues. So I think from that 
standpoint, it will be important for us to make sure that there 
is a remaining stability there.
    Senator Voinovich. Have you had an opportunity to review 
their performance in the last 2 or 3 years, and is there 
anything that causes you to have some concern about what we are 
doing?
    Ms. Bilyeu. Senator Voinovich, from the perspective of the 
passive mandates that they have, my personal impression of them 
is that they have tracked their indexes very well. Now, 
obviously, the indexes themselves have suffered as everything 
has suffered in the financial downturns. But being able to 
capture those returns on the way down and then again on the way 
back up, I believe that they have been capable of doing that, 
and there has not been, other than mergers, as Mr. Kennedy 
spoke of, really not a lot of turnover within those firms.
    Particularly BGI--it is actually called BGI BlackRock, or I 
cannot remember the merged name at this point--it is a very 
significant firm, and so from my perspective, I would want to 
make sure that the index team that is in place handling these 
funds on behalf of the members of the Federal Thrift Savings 
Plan has them first and foremost in their minds as they move 
forward with their mandates.
    Senator Voinovich. Great. So basically, from your 
perspective, our funds have come back pretty much like some of 
the other similar funds? They have done a pretty good job?
    Ms. Bilyeu. I would say, yes, they have tracked exactly 
basically what the market has done. The market itself is, of 
course, extremely volatile, and so from my perspective, I would 
want to look even a little bit closer at that to see how well 
the individuals who participate in those funds have actually 
done because what you see happening with a lot of individual 
investors is the funds may do very well, but the individuals 
themselves within them, because they become concerned about 
what is going on in the markets, may pull out at the wrong 
times, get back in at the wrong times. So there is probably a 
difference between how your individual investors are doing 
versus how the index funds themselves are doing.
    Senator Voinovich. That gets into the whole issue of the 
Office of Personnel Management's (OPM) responsibility for 
education. Both of you would probably agree that OPM needs to 
do much more work in that area so people are a little more 
sophisticated in terms of what they are doing, particularly 
given our current climate.
    Ms. Bilyeu. Everyone needs to do a lot more work in 
education. All of us do.
    Senator Voinovich. One of the things that you are going to 
find is you are going to be pestered by various people in terms 
of adding to the options that are available. Senator Akaka and 
I faced real pressure to add Real Estate Investment Trusts 
(REITs) to the TSP. They really lobbied, very heavy lobbying, 
and the Board said no to it, noting that there were some 
options that were available within existing TSP funds for the 
REITs, but the fact was they did not think we ought to get into 
it. I guess as I look back on that, it was a very good decision 
by the Board.
    If you look at the portfolio that is available--you 
mentioned you are both involved in your pension plans, but you 
are also involved in your deferred compensation programs, too, 
in your respective States--do you think that we have enough 
options available right now for our Federal employees?
    Mr. Kennedy. I would probably say we do, and I am 
comfortable with the options that we currently have and the 
composition of the TSP. And I guess the reason why I say that 
is you want to make sure that you provide enough options but 
not too many options because when you start to provide too many 
options, then you really need to do a better job educating the 
participants about what these new options are. So I think it 
adds a whole different sort of element to the process as you 
start to add a great deal of additional options.
    Now, with that said, I do think it is important for us to 
continue to look at new options and new ideas because things do 
change in financial markets. And one of the things I can sort 
of add to the FRTIB is the experience I have had in the 
alternatives investment space, and I am certainly not 
advocating that the FRTIB or TSP go in that direction. But as 
we look at things such as REITs and we look at social 
responsibility funds and other ideas that kind of gravitate to 
us, I think it will be good to be able to at least take a look 
at it and be able to make some pretty good decisions going 
forward about why we are not going to do that. So I am pretty 
comfortable with the line-up that we have today.
    Senator Voinovich. Ms. Bilyeu.
    Ms. Bilyeu. Just adding to what Mr. Kennedy has said, the 
whole concept of the array of funds that you have is to allow 
the individuals, based on how much they want to put into those 
funds, to balance out what their risk tolerance is. Some of 
them are stock funds, some are bond funds, and some are 
lifestyle funds, and the idea is to be able to allow those 
individuals to match what they believe their risk tolerance is 
and what their personal investment goal is.
    Right now, I think you have a broad array that does do that 
and allows for the diversification that is part of the entire 
investment process. As Mr. Kennedy said, though, you do want to 
continue to look at how that evolves and continues through and, 
of course, to always make decisions for either adding or 
deleting a fund through the process of where you are 
approaching it from the broadest possible perspective for the 
most people in your fund overall.
    Senator Voinovich. The last comment, Senator, is that 
several years ago, we had a member of the Senate by the name of 
Peter Fitzgerald from the State of Illinois, a banker. I am 
still asking my staff to see if I could get a copy of his 
speech on the TSP. But one of the things he said, for all the 
people here who are part of the TSP program, is that the cost 
involved to the participants is the lowest in the country 
today. It is amazing. I never really appreciated that. The cost 
of being involved in the TSP is the lowest perhaps in the 
world. And it all adds up if you stay in it for many years. 
That is another thing, I think, that ought to be driven home 
with folks, that this is a pretty good operation that they are 
fortunate to be a part of.
    Thank you very much for your testimony.
    Senator Akaka. Thank you very much, Senator Voinovich.
    Let me ask Mr. Walsh a question. The Special Panel on 
Appeals has issued only five decisions since 1978. What is your 
understanding of the role of the Special Panel on Appeals and 
the responsibilities of the chairman?
    Mr. Walsh. Thank you, Senator. The role is really to act in 
a way as an intermediary and also as kind of a check. It is to 
ensure that both anti-discrimination principles and the civil 
service or merit systems principles are taken into 
consideration in these kinds of cases because we have two 
agencies, each of which has expertise in its own area. So the 
Special Panel's role is really to achieve parity between the 
principles while also preserving the authority of the two 
agencies over their areas of expertise.
    And in terms of how many cases have been heard, it is true 
that there have been very few cases, but that does not 
necessarily mean that both the chairman and the panel do not 
have an ongoing role, because just the fact that this appeals 
process and this panel exists is a check on each agency in 
terms of applying the principles that are usually the expertise 
of the other one, to make sure, for example, the MSPB correctly 
applies anti-discrimination principles and the EEOC correctly 
applies merit systems principles. The fact that this process 
and this panel exists is kind of a check and a balance to make 
sure that happens.
    Senator Akaka. Thank you very much for your testimonies. At 
this time, there are no further questions. There may be 
additional questions for the record, which will be submitted to 
you in writing. The hearing record will remain open until the 
close of business tomorrow for Members of this Committee to 
submit additional statements or questions.
    Ms. Bilyeu, Mr. Kennedy, and Mr. Walsh, I wish you all the 
best of luck as we move forward here. I would tell you that I 
am impressed with your backgrounds and with your testimony and 
look forward to moving as quickly as we can on confirmation. So 
thank you again, and thank your families and supporters who are 
here with you. Thank you very much.
    Mr. Walsh. Thank you, Senator.
    Mr. Kennedy. Thank you.
    Ms. Bilyeu. Thank you.
    Senator Akaka. I would now like to call up the nominees for 
the D.C. Superior Court.
    [Pause.]
    Senator Akaka. I want to welcome everyone to the second 
part of today's proceedings as this Committee considers the 
nominations of Todd Edelman, Milton Lee, and Anne Smith to be 
Associate Judges of the District of Columbia Superior Court.
    We consistently receive excellent D.C. Court candidates 
nominated by the President from those recommended by the 
nonpartisan Judicial Nomination Commission. I am confident 
that, if confirmed, these nominees will join the others who 
have appeared before us in making valuable contributions to the 
District.
    I would now like to welcome Congresswoman Norton to the 
Committee and yield for her introduction of our nominees. 
Congresswoman Holmes Norton, please proceed.

TESTIMONY OF HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS 
                 FROM THE DISTRICT OF COLUMBIA

    Ms. Norton. Thank you, Mr. Chairman, and while I am here, 
may I also thank you for your long and dedicated work for us as 
you get to do not only this but a lot more for the District of 
Columbia.
    And may I express my thanks especially to Senator 
Voinovich, who is leaving the Senate this year. Senator 
Voinovich has rendered especially dedicated service to the 
District of Columbia. He was a former mayor, and he never 
forgot what it was like to be mayor of a big city, and he 
showed every bit of it when he served on our committees and in 
the Senate, and I thank him personally for that service.
    For you, Mr. Chairman, and Mr. Voinovich, we have three 
especially well qualified candidates, as you, Mr. Chairman, 
have already said, and I will not belabor the point except to 
introduce them briefly.
    Todd Edelman is a clinical Professor of Law at Georgetown 
University Law Center. He is well qualified for the court. He 
has been chief of the Serious Felony Section of the Public 
Defender Service and has tried in the very court where he is to 
serve over 60 cases. He is a cum laude graduate of Yale 
University and was a Root-Tilden Scholar at the New York 
University School of Law.
    Judge Milton Lee is already a judge, but he is a Magistrate 
Judge on the Superior Court where he would serve. He is a 
graduate of American University and Catholic University Law 
School. He, too, worked at the Public Defender Service, and I 
might say, Mr. Chairman, that our Public Defender Service is 
renowned for attracting the best and the brightest from across 
the country. It is the best Public Defender Service in the 
country. He was Deputy Trial Chief while he was there. He has 
been on the faculty as a professor at the District of Columbia 
School of Law. We are particularly grateful in the District 
that he has spearheaded the development of the District of 
Columbia Superior Court's Fathering Court Program, considering 
the duties he will have if he is confirmed.
    And finally, Mr. Chairman, I am pleased to introduce Judge 
Judith Smith to you today, who is also already a judge, but a 
Magistrate Judge, and a graduate with high distinction from 
Pennsylvania State University, a Certified Public Accountant, 
and a graduate of Georgetown University Law Center. She has had 
the distinction of already serving as a law clerk to an 
Associate Judge on the Superior Court, so she knows the court 
she would serve very well. She, too, has extensive trial 
experience with the Public Defender Service of the District of 
Columbia.
    I do not think you will find better qualified candidates 
than these to serve on our excellent Superior Court, Mr. 
Chairman.
    Senator Akaka. Thank you. Thank you very much, 
Congresswoman Norton. It is always good to see you here. We 
appreciate your being here today to introduce the nominees.
    Ms. Norton. Thank you, sir.
    Senator Akaka. Thank you very much.
    Our nominees all have strong legal backgrounds and have 
devoted much of their careers to public service. Each of them 
has served as an attorney for the D.C. Public Defender Service. 
Mr. Lee has been a Magistrate Judge for the D.C. Superior Court 
for more than a decade, presiding over a wide range of 
calendars. Ms. Smith also is a D.C. Superior Court Magistrate 
Judge, serving in the Court's Family Division. Mr. Edelman 
currently is a professor in Georgetown Law's Criminal Justice 
Clinic, and he practiced civil litigation before that.
    I believe these nominees have much to offer the D.C. 
Superior Court, and I hope we can act quickly to confirm them.
    Senator Voinovich, do you have any statement to make?
    Senator Voinovich. Yes. Thank you, Mr. Chairman. I want to 
extend a welcome to the nominees and to their families, and I 
thank you for your willingness to serve on the District of 
Columbia Superior Court.
    As Senator Akaka says, we have three experienced attorneys, 
two of whom currently serve as Magistrate Judges, and I know it 
is no surprise for me to say that judges have significant 
responsibilities.
    Mr. Chairman, I have reviewed each of the nominees' 
biographical questionnaires and believe each of them is well 
qualified to serve as Associate Judge for the Superior Court of 
the District of Columbia, and each of them would bring 
extensive legal experience to the bench. Without echoing your 
remarks about each of these nominees' specific qualifications, 
I do want to point out that they all have a history of public 
service as each of them has gained practical legal experience 
working for the District of Columbia Public Defender Service. I 
think it is also notable that they have each taught law 
students practical trial court skills in Georgetown 
University's law clinics. And I understand that both Judge 
Smith and Judge Lee have served well as Magistrate Judges, and 
I also note that Judge Smith hails from my home State of Ohio. 
It is good to have a Buckeye before me.
    I look forward to hearing from each of you about the 
reasons why you think that you are qualified, but I already 
know that. I hope the Committee will vote on your nominations 
in the very near future. Thank you.
    Senator Akaka. Thank you very much, Senator Voinovich.
    Each nominee has filed responses to a biographical and 
financial questionnaire submitted by the Committee. Without 
objection, this information will be made part of the hearing 
record, with the exception of the financial data, which will be 
kept on file and made available for public inspection in the 
Committee office.
    Our Committee rules require that all witnesses at 
nomination hearings give their testimony under oath. Therefore, 
at this time, I ask you to please stand and raise your right 
hand.
    Do you swear that the testimony you are about to give this 
Committee is the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Mr. Lee. I do.
    Ms. Smith. I do.
    Mr. Edelman. I do.
    Senator Akaka. Thank you. Please note for the record that 
the witnesses answered in the affirmative.
    Judge Lee, I understand you have family here with you 
today. I would like to give you an opportunity to introduce 
them at this time.

 TESTIMONY OF MILTON C. LEE, JR.\1\ TO BE AN ASSOCIATE JUDGE, 
           SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

    Mr. Lee. Thank you very much, Mr. Chairman and Senator 
Voinovich. It is certainly my pleasure. I am honored to be here 
before you today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Lee appears in the Appendix on 
page 110.
---------------------------------------------------------------------------
    I would like to introduce the members of my family, and I 
would like to say first and foremost that I really could not be 
where I am today if I did not have the type of support that 
they have offered to me. I know they have sacrificed on many 
occasions so that I can be in a position to continue to serve 
the citizens of the District of Columbia.
    Seated immediately behind me is my wife, Claudia. My sister 
is in the audience, as well, Sandra Baumgardner, her daughter, 
Deanna, and her grandson, John. My son, Joshua, is a freshman 
at Temple University, and he is unable to be here today because 
he indicated to me last week that he had study commitments and 
exams to take care of, and while I was a little shocked at the 
maturity of that response, I was very pleased by it. So he is 
not here. He is here in spirit, quite frankly.
    I would also like to say that there are many other people 
in the gallery who have been supportive, as well. My staff at 
the courthouse has really made it a pleasure for me to serve in 
the capacity that I serve. My secretary, Michelle Fitzgerald, 
is here. My current law clerk, Sarah Acker, and my current 
courtroom clerk, Ronnie Mitchell, are all present, as well, and 
I would like to say publicly that these are the folks who are 
really the backbone, the workforce of the Superior Court. They 
often do not get the type of credit that they deserve, and so I 
want to publicly thank them for everything that they have done 
for me during my time on the court.
    I would also like to thank Chief Judge Lee Satterfield, who 
has supported me in every endeavor since I have joined the 
court. Also present is Judge Emmett Sullivan from the U.S. 
District Court here in the District of Columbia. He is the 
Chair of the Judicial Nomination Commission, and that 
commission was responsible for forwarding my name to the White 
House. I would also like to thank President Barack Obama for 
the nomination that I received for the position of Associate 
Judge.
    I am fortunate. I am blessed, I think, in many respects, 
and more than just a little humbled to be in the position to 
come before you on this nomination. I am born and raised here 
in the District of Columbia. I am educated by the city school 
system. I graduated from American University and received my 
law degree from Catholic University. Upon graduation, I joined 
the Public Defender Service here in the District of Columbia 
and practiced with that agency for 9 years in the very court 
that I now work with and I hope to continue to work with.
    I have also been a faculty member at the University of the 
District of Columbia School of Law, where I have taught in the 
Juvenile Law Clinic, and I have transitioned over to many 
substantive classroom experiences, teaching evidence, criminal 
procedure, and criminal law, to name a few.
    I joined the court in 1997 as a Magistrate Judge, and I 
have served in every single branch of the court, and I think 
that experience has served me well over the years.
    One of the best experiences I have had with the court has 
been the work that I have had on the Fathering Court 
Initiative, and that is a program that is designed to help 
fathers coming home from a period of incarceration reunite with 
their families so that they are fathers in every sense of the 
word. We assist them in getting employment. We provide 
educational services and job training. We make sure that they 
are current on their child support, that they are reconnected 
with their children, and that they do not reoffend. Those are 
the things that this program has done over the course of the 
last 4 years, and I am proud to say that I have been a part of 
that.
    My professional life has been dedicated to serving the 
citizens of the District of Columbia through our judicial 
system. If confirmed, I would be honored to be in a position to 
continue that service as an Associate Judge. I recognize that 
people come to the Superior Court at a time when there is a 
great deal of anxiety, when they are looking sometimes for 
answers, for a solution to the things that trouble them the 
most. I think they deserve to be treated with dignity and 
respect. They should have their cases decided efficiently and 
fairly, and we should exercise the greatest amount of 
professionalism in delivering that justice to them.
    That is the commitment that I have made to the citizens of 
the District of Columbia and the commitment that I make to this 
Committee, and if confirmed, that is the way that I will 
approach delivering justice for our citizens.
    I want to thank the Committee and its Members. Its staff 
has been very professional and courteous. They have given us 
every piece of assistance we could possibly ask for. I look 
forward to answering any questions that you may have about my 
qualifications to continue service as an Associate Judge.
    Senator Akaka. Thank you very much, Judge Lee. I want to 
say, it is good to have your family here, as well as those who 
support you.
    Judge Smith, will you please introduce your family and 
continue with your statement.

 TESTIMONY OF JUDITH ANNE SMITH \1\ TO BE AN ASSOCIATE JUDGE, 
           SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

    Ms. Smith. Thank you, Senator Akaka and Senator Voinovich. 
I want to thank you for the opportunity to appear before you 
today to have you consider my qualifications for a position as 
an Associate Judge on the D.C. Superior Court. I am honored to 
be nominated and want to thank the Judicial Nomination 
Commission, and in particular the Chair of the Commission, the 
Hon. Emmett Sullivan, for recommending me to the White House, 
and finally President Barack Obama for nominating me. I also 
want to thank the Senate Committee staff for their 
professionalism and assistance throughout this process.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Smith appears in the Appendix on 
page 137.
---------------------------------------------------------------------------
    Before I introduce my family, I also would like to thank 
Congresswoman Norton--I know she may have left already--for her 
kind remarks and introduction, and Chief Judge Lee Satterfield 
and several other Superior Court Judges for their advice and 
guidance.
    I do want to introduce my family who traveled from Florida 
to be here with me today: My parents, Richard and Sarah Smith, 
and my sister, Christine Carter, all three of whom have set a 
wonderful example for me and provided their love and support.
    I especially want to acknowledge my son, Jalen Pierce 
Smith, who turns six just next week, who is very excited about 
being here today. I would also like to thank my significant 
other, Lonnie Spencer, although he is unable to be here today.
    I do also want to acknowledge my Judicial Administrative 
Assistant, Patricia Harris, my law clerk, Helen Pilstrom, and 
my courtroom clerk, Jonathan Hopkins, who have been so helpful 
to me in my first year and a half as a Magistrate Judge. Also, 
there are a number of friends, former colleagues, and role 
models here or watching the hearings who have supported me both 
professionally and personally throughout my years of public 
service in the District of Columbia. I truly appreciate their 
advice, support, and encouragement.
    As Senator Voinovich noted, I was born in Columbus, Ohio, 
where I attended public schools. I received my bachelor's 
degree in accounting from the Pennsylvania State University and 
became a Certified Public Accountant. I worked for Price 
Waterhouse for a number of years in both Boston and Columbus. I 
then relocated here to Washington, DC, more than 20 years ago 
to attend Georgetown University Law Center and embark on a 
career in public interest law.
    After graduating from Georgetown, I was fortunate to clerk 
for an exceptional jurist, the Hon. A. Franklin Burgess, Jr., 
an Associate Judge, D.C. Superior Court, for whom I have great 
admiration and respect.
    Following my clerkship, I spent the majority of the next 15 
years in public service in the District of Columbia. I served 
as a Special Education Attorney, a Juvenile Services Attorney, 
and a Supervising Attorney at the Public Defender Service (PDS) 
for the District of Columbia and also as an attorney for the 
District of Columbia Public Schools and the Office of the State 
Superintendent of Education for the District of Columbia. I 
have appeared before dozens of current Superior Court judges as 
well as several Federal court judges over the years as I worked 
on special education and juvenile justice issues.
    I then had the great fortune to be appointed as a 
Magistrate Judge in the Family Court of D.C. Superior Court in 
September 2008, presiding over primarily abuse and neglect 
proceedings, as I still do now. In this position, I have had 
the privilege of serving the citizens of the District of 
Columbia. If confirmed, I will continue to serve with integrity 
and provide fair, efficient, and respectful justice to those 
who come before me.
    I am honored to be considered for this position and look 
forward to answering any questions the Committee may have about 
my qualifications. Thank you.
    Senator Akaka. Thank you very much, Judge Smith. I want to 
add my welcome to you, your family, and your supporters, as 
well.
    Now we will hear from Mr. Edelman. Please introduce your 
family and then give your statement.

  TESTIMONY OF TODD E. EDELMAN \1\ TO BE AN ASSOCIATE JUDGE, 
           SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

    Mr. Edelman. Thank you, Mr. Chairman and Senator Voinovich. 
I am grateful for and honored by the opportunity to appear 
before you today as a nominee to be an Associate Judge on the 
Superior Court of the District of Columbia.
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    \1\ The prepared statement of Mr. Edelman appears in the Appendix 
on page 153.
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    I want to begin by introducing my family: My wife, Marisa 
Nightingale, who is directly behind me, along with our 
daughter, Nora, who is on the second day of her fifth birthday 
party today. Our son, Jacob, was not showing this body the 
respect that it deserved, so he is now in the hallway. 
[Laughter.]
    My mother and stepfather, Sybil and Lewis Mitchell, are 
also here, up from Florida, as well as my father-in-law and 
mother-in-law, Stuart and Elena Nightingale. And while I have a 
lot of people to thank today, I know that I am sitting in front 
of you primarily because of my family's support, encouragement, 
and patience.
    A number of my friends, colleagues, and students are also 
here in the gallery, and I would like to thank them not only 
for their support today, but for their inspiration and their 
challenges and at times their entertainment over the last 15 
years.
    I would also like to thank the District of Columbia 
Judicial Nomination Commission and Judge Sullivan for 
recommending me to the White House and President Barack Obama 
for nominating me.
    And finally, I would like to thank the Committee for 
considering my nomination so expeditiously and the Committee 
staff for their hard work in preparing for this hearing on such 
short notice and for the courtesy they have shown me during 
this process.
    I went to law school 15 years ago to pursue a career in 
public service, and I feel fortunate that I have had the 
opportunity to do so. I have dedicated my legal career to 
protecting the principles that access to justice should be 
equally available to everyone in our community and that the 
quality of representation provided in court should not depend 
on income, wealth, or connections.
    As a public defender at the Public Defender Service and the 
Georgetown University Law Center's Criminal Justice Clinic, I 
represented indigent men and women in D.C. Superior Court for 
over 12 years, work that I have found to be both a daunting 
responsibility and a unique privilege. I have also spent much 
of my career teaching other public defenders and legal service 
providers and other attorneys and law students who work on 
behalf of low-income people here in Washington.
    As a clinical professor at Georgetown Law, I aim to instill 
in my students a passion for using their law degrees to help 
those who need it the most. The same commitment to public 
service and the principle of equal justice under the law that 
motivated me to go to law school and to take these positions at 
PDS and at Georgetown has motivated me also to seek appointment 
to the bench.
    As I contemplate the next step in my career, I cannot help 
but think about the way that I started my career, which was as 
a law clerk to Judge William Bryant in the U.S. District Court 
for the District of Columbia. Judge Bryant was a legendary 
trial lawyer, a respected and historic jurist, and, above all 
else, one of the warmest and kindest men I have ever met. Judge 
Bryant may have taught me more in that one year than I have 
learned since, and he set an example that I will seek to 
emulate should I be confirmed.
    Judge Bryant was intellectually curious, committed to 
applying the law impartially and fairly, and dedicated to 
showing equal respect to all parties. If I am confirmed, after 
my career on the bench is over, I hope to be remembered the way 
Judge Bryant is remembered, as a judge who treated litigants 
with dignity and his role with humility.
    I am quite moved to be here sitting as a nominee for a 
judgeship on the D.C. Superior Court. That is the court where I 
grew up as an attorney, where I learned much of what I know 
about the law and being a lawyer, about winning and losing, and 
about the joys and challenges of public service. I am humbled 
to be considered for this position, and I thank you again for 
considering my qualifications.
    Senator Akaka. Thank you very much, Mr. Edelman. It is 
wonderful to have all of your loved ones here and those who are 
supporting you. I am sure they are proud of all you have 
accomplished.
    Let me continue with the standard questions this Committee 
asks of all nominees. I would like you to answer each of the 
questions.
    Is there anything you are aware of in your background that 
might present a conflict of interest with the duties of the 
office to which you have been nominated? Mr. Lee.
    Mr. Lee. No, sir, Mr. Chairman.
    Senator Akaka. Ms. Smith.
    Ms. Smith. No, sir.
    Senator Akaka. Mr. Edelman.
    Mr. Edelman. No, Mr. Chairman.
    Senator Akaka. Do you know of anything, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated? Mr. Lee.
    Mr. Lee. No, sir.
    Senator Akaka. Ms. Smith.
    Ms. Smith. No, sir.
    Senator Akaka. Mr. Edelman.
    Mr. Edelman. No, sir.
    Senator Akaka. Do you agree without reservation to respond 
to any reasonable summons to appear and testify before any duly 
constituted committee of Congress if you are confirmed?
    Mr. Lee. Yes, sir.
    Ms. Smith. Yes, sir.
    Mr. Edelman. Yes, sir.
    Senator Akaka. Thank you very much.
    This is to all three of you on the panel. I see that you 
are former D.C. public defenders. I commend your decision to 
serve those who may be unable to afford legal representation. 
How did your experience as a public defender shape your sense 
of justice and your approach to later work? Mr. Edelman, I 
would like to start with you.
    Mr. Edelman. Thank you. Being a public defender has 
obviously been the bulk of the work I have done as an attorney, 
and it has shaped much of the way I see the law. I think the 
thing that has struck me above all else is the importance of 
having not just competent counsel, but excellent counsel 
representing those who are in the situation. People who are 
charged with crimes are facing very difficult circumstances, 
and many times that is appropriate, facing lengthy jail terms. 
It is also appropriate that for people who are in that 
situation, they receive counsel that is not just minimally 
competent by some constitutional standards, but our goal should 
be that everyone who is in that situation, charged with a 
crime, have counsel who can represent them in a way that 
someone watching their trial or watching those court 
proceedings would think, I cannot tell whether that person 
could afford an attorney or whether they had an attorney 
appointed for them. So it has very much shaped my view of the 
role of counsel and the importance of having counsel in those 
situations.
    In addition, I think that being a public defender, people 
think of us sometimes as cynics about the system. I think it is 
something, those people who take on this role are actually 
idealists about the system, and I am an idealistic person with 
regard to the system, as well. I think that part of our role is 
to explain to our clients who may well not trust the system the 
importance of doing so because we need to do that so that we 
can do our jobs, and I think that is an important role of the 
judge, as well. The judge needs to earn the trust of all people 
appearing in front of him or her in order to play the role the 
judge needs to play in the system.
    Senator Akaka. Thank you. Judge Smith.
    Ms. Smith. Thank you. I do agree with the comments Mr. 
Edelman made, certainly, about competent counsel. I would also 
add that during my experience, primarily, I represented 
teenagers who were involved in the juvenile justice system who 
also had special education needs, and I had oftentimes a fairly 
high caseload in terms of the students I was working with.
    I think one of the many things that I learned from being a 
public defender is that while I may have many clients, the case 
that the respondent had was really the one and only thing that 
was on his mind, and to slow down, use patience in both 
explaining the process to him as well as making sure that he 
had my full attention. I see that carry over into the work I do 
in the Family Court, where I often have very emotional families 
in front of me, and so it is very important for me to realize 
that while I may have more than one case on any day, it is the 
only case they have and it is very important for them that they 
have my focus and respect during those proceedings, and that is 
something that I find very important.
    Senator Akaka. Thank you. Judge Lee.
    Mr. Lee. One of the things that I learned as a young lawyer 
at the Public Defender Service was the importance of 
representing individuals so that when they got through with 
their litigation, they felt like they were represented 
completely and they had a sense that even if the outcome was 
not the outcome that they wished for or desired, they had a 
sense of fairness about the process.
    So as I have transitioned from the Public Defender Service 
into an academic life and now a judicial life, my goal really 
across the board is to make sure that people who come before me 
feel as though they were dealt with fairly and they understand 
the process by which we reached a decision, even if they may 
not agree with that process. And that requires that you treat 
people as individuals and not as cases that come before you. 
They are not defined solely by what they are charged with or 
the litigation that brings them to the court. There is a bigger 
picture that is required.
    I think the system that we have is the greatest system in 
the world, and it is great because everyone takes their role 
seriously and they work to the best of their capability to make 
the results fair and just.
    Senator Akaka. Thank you.
    Mr. Edelman, the role of a judge is very different from the 
role of an advocate and will be relatively new to you. Please 
discuss how you will transition to the role of an impartial 
decisionmaker.
    Mr. Edelman. Thank you, Mr. Chairman. Obviously, as you 
pointed out, the decision to go from being an advocate, as I 
have been in my various jobs, and to apply for the bench is a 
decision to take on a different role and a broader role than I 
have had before. I think that the key to doing that is to seek 
out mentorship on the court.
    There are many others on the court who have been advocates 
in the same sense that I have, who have been defense lawyers or 
public defenders, and many who have been prosecutors or 
litigators in private practice. All of them have made the 
transition, I have heard, with some bumps along the way, from 
beginning to look at things from the point of view of a judge 
rather than from an advocate, and I think in this and in other 
areas, the wisest course for me will be to seek out their 
counsel and discuss how they did it.
    I know that, obviously, I am going to be approaching 
situations differently. I am not going to be approaching 
situations thinking about what is best for my client, but 
thinking about the interests of all parties, all litigants, 
and, of course, what is just, and that is a change in mindset 
that I will seek out counsel on.
    Senator Akaka. Thank you.
    Judge Smith, as a Magistrate Judge for the D.C. Family 
Court, you know that courtrooms can often be emotionally 
charged places. How have you maintained a productive courtroom 
environment?
    Ms. Smith. Mr. Chairman, sometimes it is a difficult 
balance. We have a high volume of cases, and we have a lot of 
emotional families in front of us. But it is truly important to 
make sure, as I mentioned before, that everyone feels like 
their case is what my focus is at that time. And so I do my 
best to schedule so that I know they have the appropriate time 
to have their case heard and be heard, and I try to work the 
best I can in terms of my patience and calmness in the hearing 
so that in some ways that may help calm them down.
    I also think it is important that they, again, have the 
opportunity to be heard as well as have the process explained 
to them in clear, non-legal language, as many of the families 
certainly do not have their own knowledge of the law, and that 
if they need any opportunity to ask questions, they do so and 
consult with their counsel. So far, I feel like I have been 
successful in that. Thank you.
    Senator Akaka. Thank you.
    Judge Lee, attention to detail is critical for any judge. 
If a mistake goes unnoticed, it may directly impact the life of 
someone appearing before you. Please describe the steps you 
have taken to minimize the number of errors that occur in your 
courtroom.
    Mr. Lee. Senator, I will be the first to tell you that I am 
not a perfect soul, and recognizing that I am not a perfect 
soul means that I have to rely on others sometimes to point out 
what I can do better and when I have made mistakes. I work very 
closely with my courtroom staff, my chambers staff, to make 
sure that what I do is done correctly and that if there is a 
mistake out there, we correct it as quickly as we can.
    One of the benefits of working in the Superior Court, 
notwithstanding how busy our courthouse is, is that our Chief 
Judge and our presiding judges have committed themselves to 
putting in place a process that minimizes those mistakes. And 
so every case that gets reviewed in a courtroom is reviewed by 
our quality control staff before entries are made in the record 
to make sure that it is accurate. We have a recording system 
that we can listen to simultaneously or contemporaneously with 
what goes on in the courtroom. So we are able to pick up on 
errors when they are brought to our attention.
    These are all things that we all have to rely on because we 
understand that we are not perfect at what we do, but we make 
every effort to find a perfect result as often as we possibly 
can.
    Senator Akaka. Thank you very much, Judge Lee. Senator 
Voinovich, your questions, please.
    Senator Voinovich. In terms of public defenders, all of you 
are going to have people appearing before you, and if you 
ascertain that the person who is appearing before you has 
counsel who is not competent, how will you handle something 
like that?
    Mr. Edelman. It is a difficult situation because obviously 
there are a lot of pressures on the court in terms of getting 
people to go onto the list to be court-appointed counsel. I 
think that what many judges do in that situation is, first, ask 
the attorney's client, are you satisfied with the work of your 
attorney? In some situations, the client will respond, no, I am 
not, and the judge will----
    Senator Voinovich. Would you do that right in the 
beginning, before the trial began?
    Mr. Edelman. Yes, I would try to do that at the earliest 
possible time.
    Senator Voinovich. OK.
    Mr. Edelman. And the second thing I was going to say was in 
those situations, I think it is imperative when a judge has a 
concern about the quality of counsel that the concern be raised 
as early in the history of the case as possible so you do not 
get into a situation where you have an attorney actually in a 
trial representing somebody, not performing competently. That 
puts that person at risk and puts any verdict that might be 
reached at risk.
    Senator Voinovich. Ms. Smith.
    Ms. Smith. Thank you, Senator Voinovich. In echoing 
slightly what Mr. Edelman has said, I think it is important to 
reach out to the participant to determine what the issue may 
be. I have had one such instance where a litigant raised a 
question about counsel. They were confused about some things 
and wanted the opportunity to have the court explain it to 
them, which I did with parties present, and then an opportunity 
to say themselves whether they wanted to continue on with their 
counsel. As Mr. Edelman indicated, we do have mentoring 
attorneys, as well, and the attorneys that are on the panel 
have the opportunity to get additional training, if needed, if 
they are not up to the standards that are expected. And so 
there are opportunities to address that situation.
    Senator Voinovich. Mr. Lee.
    Mr. Lee. Senator, one of the important functions of, I 
think, judges in the system that we have, to make sure that it 
works at the level that we expect from it, is that everyone 
does what they are committed to doing. We have to have good 
judges. We have to have good prosecutors. We have to have good 
defense lawyers. And I think judges have to oversee all of 
that.
    In our courthouse, we are, I think, in a unique position, 
where we have panels of lawyers who serve in each of our 
branches, and they have been pre-screened and they apply and 
they are reviewed by the judges and committees, and there are 
Continuing Legal Education requirements that they all must 
meet. These are all core or minimum requirements that we 
require of the lawyers that appear before us. And part of our 
obligation is to make sure that after they meet those minimum 
qualifications, they do what needs to be done on behalf of the 
clients for us. And if they do not, then we have to respond to 
that.
    Senator Voinovich. In other words, do you have a procedure 
where you screen the people who would represent indigent 
clients beforehand? Then you have a pool of individuals that 
are eligible that would step forward. So there is some 
screening before somebody comes in.
    Mr. Lee. That is absolutely correct. We refer to it as the 
panel system, and each branch of the court, Family Court and 
the Criminal Court, have panels and designated areas of 
representation. The lawyers apply to be on the panel. They are 
screened by a committee that the Chief Judge has created----
    Senator Voinovich. This takes care of the indigent people.
    Mr. Lee. Yes, it does.
    Senator Voinovich. But you also are going to have people 
appearing before you who just have lousy lawyers. [Laughter.]
    Mr. Lee. That happens, as well. It is not unique to those 
that are poor.
    Senator Voinovich. But you still go through the process 
with them, are you happy with this, and so on and so forth?
    Mr. Lee. That is correct. We make sure that the lawyers 
that come before us are lawyers that are capable of functioning 
at the level required for the type of case that they have. I 
think that is the responsibility of every judge.
    Senator Voinovich. Well, it seems to me that you have all 
had some great experiences and all seem to be fairly qualified 
to take the jobs that you are seeking.
    Mr. Chairman, I have no further questions.
    Senator Akaka. Well, thank you very much, Senator 
Voinovich.
    I want to thank all of you. There are no further questions 
at this time. There may be additional questions for the record, 
which will be submitted to you in writing. The hearing record 
will remain open until the close of business tomorrow for 
Members of this Committee to submit additional statements or 
questions that they may have for you.
    It is my hope that this Committee and the Senate will be 
able to act quickly on your nominations. We look forward to 
that happening. And again, thank you very much for being here. 
Thank you for your families being here and your supporters, as 
well.
    This hearing is adjourned.
    [Whereupon, at 3:39 p.m., the Committee was adjourned.]






















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