[Senate Hearing 111-695, Part 3]
[From the U.S. Government Publishing Office]




                                                 S. Hrg. 111-695, Pt. 3
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               ----------                              

              JULY 29, SEPTEMBER 9, and SEPTEMBER 23, 2009

                               ----------                              

                           Serial No. J-111-4

                               ----------                              

                                 PART 3

                               ----------                              

         Printed for the use of the Committee on the Judiciary





                                                 S. Hrg. 111-695, Pt. 3

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

              JULY 29, SEPTEMBER 9, and SEPTEMBER 23, 2009

                               __________

                           Serial No. J-111-4

                               __________

                                 PART 3

                               __________

         Printed for the use of the Committee on the Judiciary












                  U.S. GOVERNMENT PRINTING OFFICE
  62-345                  WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001









                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
              Nicholas A. Rossi, Republican Chief Counsel







                            C O N T E N T S

                              ----------                              

                        WEDNESDAY, JULY 29, 2009

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin, a U.S. Senator from the State of Utah.........     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   707

                               PRESENTERS

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia 
  presenting Beverly Baldwin Martin, Nominee to be U.S. Circuit 
  Judge for the Eleventh Circuit.................................     5
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia 
  presenting Beverly Baldwin Martin, Nominee to be U.S. Circuit 
  Judge for the Eleventh Circuit.................................     6
Johnson, Hon. Tim, a U.S. Senator from the State of South Dakota 
  presenting Jeffrey L. Viken, Nominee to be U.S. District Judge 
  for the District of South Dakota...............................     4

                                NOMINEES

Kappos, David J., Nominee to be Under Secretary of Commerce for 
  Intellectual Property and Director of the U.S. Patent and 
  Trademark Office...............................................    77
    Questionnaire................................................    79
Martin, Beverly Baldwin, Nominee to be U.S. Circuit Judge for the 
  Eleventh Circuit...............................................     8
    Questionnaire................................................     9
Viken, Jeffrey L., Nominee to be United States District Judge for 
  the District of South Dakota...................................    53
    Questionnaire................................................    54

                         QUESTIONS AND ANSWERS

Responses of David J. Kappos to questions submitted by Senators 
  Hatch, Schumer and Specter.....................................   678
Responses of Beverly Baldwin Martin to questions submitted by 
  Senator Coburn.................................................   686
Responses of Jeffrey L. Viken to questions submitted by Senator 
  Coburn.........................................................   690

                       SUBMISSIONS FOR THE RECORD

American Intellectual Property Law Association, Teresa Stanek 
  Rea, President, Arlington, Virginia, letter....................   696
Former Law Clerks, July 27, 2009, letter.........................   698
Kappos, David J., Nominee to be Under Secretary of Commerce for 
  Intellectual Property and Director of U.S. Patent and Trademark 
  Office, statement..............................................   702
Intellectual Property Owners Association, Steven W. Miller, 
  President, Washington, DC, letter..............................   709
Nothhaft, Henry R., President and Chief Executive Officer, 
  Tessera, San Jose, California, letter..........................   710
                              ----------                              

                      WEDNESDAY, SEPTEMBER 9, 2009

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   944
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   719
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................   713

                               PRESENTERS

Johnson, Hon. Tim, a U.S. Senator from the State of South Dakota 
  Presenting Roberto A. Lange, Nominee to be U.S. District Judge 
  for the District of South Dakota...............................   715
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New 
  Jersey Presenting Joseph A. Greenaway, Nominee to be U.S. 
  Circuit Court Judge for the Third Circuit......................   717
Menendez, Hon. Robert, a U.S. Senator from the State of New 
  Jersey Presenting Joseph A. Greenaway, Nominee to be U.S. 
  Circuit Court Judge for the Third Circuit......................   718
Nelson, Hon. Bill, a U.S. Senator from the State of Florida 
  Presenting Charlene Edwards Honeywell, Nominee to be U.S. 
  District Judge for the Middle District of Florida..............   716
Rockefeller, John D. IV., a U.S. Senator from the State of West 
  Virginia Presenting Irene Cornelia Berger, Nominee to be U.S. 
  District Judge for the Southern District of West Virginia......   714

                                NOMINEES

Berger, Irene Cornelia, Nominee to be U.S. District Judge for the 
  Southern District of West Virginia.............................   772
    Questionnaire................................................   773
Greenaway, Joseph A., Nominee to be U.S. Circuit Court Judge for 
  the Third Circuit..............................................   720
    Questionnaire................................................   725
Honeywell, Charlene Edwards, Nominee to be U.S. District Judge 
  for the Middle District of Florida.............................   827
    Questionnaire................................................   828
Lange, Roberto A., Nominee to be U.S. District Judge for the 
  District of South Dakota.......................................   806
    Questionnaire................................................   807
Moreno, Ignacia S., Nominee to be Assistant Attorney General 
  Environmental and Natural Resources Division, Department of 
  Justice........................................................   861
    Questionnaire................................................   862

                         QUESTIONS AND ANSWERS

Responses of Irene Cornelia Berger, to questions submitted by 
  Senator Sessions...............................................   907
Responses of Joseph A. Greenaway, Jr., to questions submitted by 
  Senator Sessions...............................................   911
Responses of Charlene Edwards Honeywell to questions submitted by 
  Senator Sessions...............................................   915
Responses of Roberto A. Lange to questions submitted by Senator 
  Sessions.......................................................   920
Responses of Ignacia S. Moreno to questions submitted by Senators 
  Feingold and Sessions..........................................   923

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Lauren J. Caster, former Chair, Kenneth 
  J. Warren, former Chair, Claudia Rast, former Chair, Eugene E. 
  Smary, former Chair, Sheila Clocume Hollis, former Chair, Lynn 
  L. Bergeson, former Chair, Chicago, Illinois, joint letter.....   930
Boggs, Roderic V.O., Executive Director, Washington Lawyers' 
  Committee, Washington, DC, letter..............................   931
Cave, Robert B., Counsel, Hogan & Hartson LLP, Washington, DC, 
  letter.........................................................   932
Center for International Environmental Law (CIEL), Daniel Barstow 
  Magraw, President, Washington, DC, letter......................   933
Department of Justice, former Assistant Attorneys General, 
  Environment Natural Resources Division, Washington, DC, joint 
  letter.........................................................   935
Futrell, J. William, President, Environmental Law Institute, 
  Washington, DC, letter.........................................   937
Gracer, Jeffrey B., Sive, Paget & Riesel, P.C., New York, New 
  York, letter...................................................   939
Herman, Steven A., Assistant Administrator, Enforcement and 
  Compliance Assurance, Environmental Protection Agency, 
  Washington, DC, letter.........................................   940
Hispanic National Bar Association, Ramona E. Romero, National 
  President, Washington, DC, letter..............................   941
Kissinger, William D., Bingham, San Francisco, California, letter   943
Moreno, Ignacia S., Nominee to be Assistant Attorney General 
  Environmental and Natural Resources Division, Department of 
  Justice........................................................   946
National Council of La Raza, Janet Murguia, President and CEO, 
  Washington, DC, letter.........................................   949
National Hispanic Leadership Agenda, Lillian Rodriguez-Lopez, 
  Chair, on Behalf of Cuban American National Council; Hispanic 
  Federation; Hispanic National Bar Association; Labor Council 
  for Latin American Advancement; League of United Latin American 
  Citizens; MANA, A National Latina Organization; National 
  Association of Hispanic Federal Executives; National 
  Association of Hispanic Publications; National Conference of 
  Puerto Rican Woman; National Council of La Raza; National 
  Hispana Leadership Institute; National Hispanic Caucus of State 
  Legislators; National Hispanic Environmental Council; National 
  Puerto Rican Coalition; Self-Reliance Foundation; SER-Jobs for 
  Progress; Southwest Voter Registration and Education Project, 
  joint letter...................................................   951
National Native American Bar Association, Heather Dawn Thompson, 
  President, letter..............................................   953
Norton, Edward M., Chairman, National Conservation System 
  Foundation Founding, Durango, Colorado, letter.................   955
Revesz, Richard L., Dean and Lawrence King Professor of Law, New 
  York University, New York, New York, letter....................   957
Schiffer, Lois J., fomer Assistant Attorney General, Environment 
  and Natural Resources Division, Department of Justice, 
  Washington, DC, letter.........................................   959
Sheehan, Charles J., Judge, Environmental Protection Agency, 
  Washington, DC, letter.........................................   961
Simon, James F., Acting Chief Executive Officer, Oceana, 
  Washington, DC, letter.........................................   962
Solow, Steven P., Washington, DC,................................   964
Torres, Gerald, Austin, Texas, letter............................   966
Zaelke, Durwood, President, IGSD, Director, INECE Secretarist, 
  Washington, DC, letter.........................................   968
                              ----------                              

                     WEDNESDAY, SEPTEMBER 23, 2009

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   973
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....   971
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1265
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   972

                               PRESENTERS

Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Dolly M. Gee, Nominee to be District Judge for the 
  Central District of California.................................   974

                       STATEMENT OF THE NOMINEES

Chen, Edward Milton, Nominee to be District Judge for the 
  Northern District of California................................  1012
    Questionnaire................................................  1013
Gee, Dolly M., Nominee to be District Judge for the Central 
  District of California.........................................  1080
    Questionnaire................................................  1081
Nguyen, Jacqueline H., Nominee to be District Judge for the 
  Central District of California.................................   977
    Questionnaire................................................   979
Seeborg, Richard, Nominee to be District Judge for the Northern 
  District of California.........................................  1109
    Questionnaire................................................  1110

                         QUESTIONS AND ANSWERS

Responses of Edward Milton Chen to questions submitted by 
  Senators Coburn and Sessions...................................  1159
Responses of Dolly M. Gee to questions submitted by Senator 
  Sessions.......................................................  1176
Responses of Jacqueline H. Nguyen to questions submitted by 
  Senator Sessions...............................................  1181
Responses of Richard Seeborg to questions submitted by Senator 
  Sessions.......................................................  1184

                       SUBMISSIONS FOR THE RECORD

Asian American Bar Associations, Various, San Francisco Bay Area, 
  San Francisco, California, letter..............................  1188
Asian American Justice Center, Karen K. Narasaki, President and 
  Executive Director, Washington, DC, letter.....................  1191
Asian/Pracific Bar of California, Edwin K. Prather, President, 
  San Francisco, letter..........................................  1194
Asian American Judges, San Francisco Superior Court, Bruce E. 
  Chan, Andrew Cheng, Samuel Feng, Newton J. Lam, Cynthia M. Lee, 
  Ronald E. Quidachay, Lillian K. Sing, Julie Tang and Garrett L. 
  Wong, San Francisco, California, joint letter..................  1198
Boat People SOS, Inc., Thang Dinh Nguyen, Executive Director, 
  Falls Church, Virginia, letter.................................  1199
Bratton, William J., Chief of Police, Los Angeles Police 
  Department, Los Angeles, California, letter....................  1202
Catterson, Cathy A., Clerk of Court, United States Court of 
  Appeals for the Ninth Circuit, San Francisco, California, 
  letter and attachments.........................................  1204
Japanese American Citizens League, S. Floyd Mori, National 
  Director, Washington, DC, letter...............................  1260
Kardon, Nancy, Kardon Law, Inc., Torrance, California, letter....  1263
Low, Harry W., retired Justice, JAMS, San Francisco, California, 
  letter.........................................................  1267
Mexican American Legal Defense and Educational Fund, Andrew T. 
  Hahn, Sr., President, Tina R. Matsuoka, Executive Director, 
  John C. Yang, Co-Chair, Judiciary Committee and Wendy Wen Yun 
  Chang, Co-Chair, Judiciary Committee, Washington, DC, joint 
  letter.........................................................  1271
National Asian Pacific American Bar Association, Washington, DC, 
  letter.........................................................  1274
National Asian Pacific American Bar Association, Andrew T. Hahn, 
  Sr., President, and Asian American Justice Center, Karen 
  Narasaki, President & Executive Director, Washington, DC, joint 
  letter.........................................................  1278
National Asian Peace Officers Assocation, Regan O. Fong, 
  President, Oakland, California, letter.........................  1287
National Conference of Vietnamese American Attorneys, Dominique 
  N. Thieu, co-chair, and May Trinh Gibbs, co-chair, Fountain 
  Valley, California, joint letter...............................  1288
Renfrew, Charles B., San Francisco, California, letter...........  1290
San Francisco Deputy Sheriffs' Association, David Wong, 
  President, San Francisco, California, letter...................  1292
Thor, Doua, Executive Director, Southeast Asia Resource Action 
  Center (SEARAC), Washington, DC, letter........................  1294

                     ALPHABETICAL LIST OF NOMINEES

Berger, Irene Cornelia, Nominee to be U.S. District Judge for the 
  Southern District of West Virginia.............................   772
Chen, Edward Milton, Nominee to be District Judge for the 
  Northern District of California................................  1012
Gee, Dolly M., Nominee to be District Judge for the Central 
  District of California.........................................  1080
Greenaway, Joseph A., Nominee to be U.S. Circuit Court Judge for 
  the Third Circuit..............................................   720
Honeywell, Charlene Edwards, Nominee to be U.S. District Judge 
  for the Middle District of Florida.............................   827
Kappos, David J., Nominee to be Under Seretary of Commerce for 
  Intellectual Property and Director of the U.S. Patent and 
  Trademark Office...............................................    77
Lange, Roberto A., Nominee to be U.S. District Judge for the 
  District of South Dakota.......................................   806
Martin, Beverly Baldwin, Nominee to be U.S. Circuit Judge for the 
  Eleventh Circuit...............................................     8
Moreno, Ignacia S., Nominee to be Assistant Attorney General 
  Environmental and Natural Resources Division, Department of 
  Justice........................................................   861
Nguyen, Jacqueline H., Nominee to be District Judge for the 
  Central District of California.................................   977
Seeborg, Richard, Nominee to be District Judge for the Northern 
  District of California.........................................  1109
Viken, Jeffrey L., Nominee to be United States District Judge for 
  the District of South Dakota...................................    53


  NOMINATIONS OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE UNITED STATES 
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; JEFFREY L. VIKEN, NOMINEE TO BE 
  UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA; AND, 
    DAVID J. KAPPOS, NOMINEE TO BE UNDER SECRETARY OF COMMERCE FOR 
  INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND TRADEMARK 
                                 OFFICE

                              ----------                              


                        WEDNESDAY, JULY 29, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10 a.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Klobuchar, Specter, Franken, Sessions and 
Hatch.

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

    Chairman Leahy. Good morning, everyone. Yesterday, the 
Judiciary Committee reported the nomination of Judge Sonia 
Sotomayor to be a justice on the United States Supreme Court. 
And this morning, we are holding our first confirmation hearing 
for lower court nominees since the Supreme Court vacancy arose 
in May.
    The vacancies throughout the Federal courts have already 
risen to over 80. In addition, 27 upcoming vacancies have been 
announced. That is going to push Federal judicial vacancies to 
over 100. We worked very hard to fill the vacancies during the 
last presidency.
    Back when I chaired this Committee and we had a President 
of the other party in the White House, we were able to reduce 
overall vacancies by two-thirds, from over 100 down to 34, and 
reduce circuit court vacancies to single digits.
    Despite having received Federal judicial nominees since 
March from President Obama and despite having held hearings and 
reported those nominees in June, not a single Federal judge has 
been confirmed by the Senate all year. I believe the Senate has 
to do better.
    I mention that because when I was Chairman of this 
Committee with a Republican President, I moved President Bush's 
nominees through faster than either of the Republican chairmen 
did for President Bush, because I did not want to go back to 
what had been, during President Clinton's time, when 61 of 
President Clinton's nominees were pocket filibustered by the 
other side.
    I mention that because we tried very hard to have judges 
looked at as judges and to get out of partisan politics, and I 
hope we can get back to that. There is absolutely no excuse for 
not having moved yet. In fact, I notice even the U.S. Attorney 
recommended by Senator Sessions, the Ranking Member of this 
Committee, has been blocked. This is despite the fact that we 
cleared his nomination on the Democratic side of the aisle. 
This nominee of a Republican has been blocked by the Republican 
side. We have got to do better than that.
    Now, both judicial nominations we consider today come to us 
with bipartisan support. President Obama's nomination of Judge 
Beverly Martin to be elevated from the U.S. District Court for 
the Northern District of Georgia to the Eleventh Circuit has 
the support of Georgia Senators, Senator Chambliss and Senator 
Isakson. Senator Isakson and I had a good chat about this 
yesterday on the floor. Senator Chambliss and I talked with 
Judge Martin this morning.
    Jeffrey Viken has been nominated to serve on the U.S. 
District Court for the District of South Dakota and he has the 
support of South Dakota senior Senator, Senator Johnson, and 
Senator Thune.
    Judge Martin is the fourth of President Obama's circuit 
court nominees to come before the Committee and the fourth with 
extensive experience as a well respected Federal district court 
judge.
    When her nomination came to the Senate in 2000, it had the 
support of Senator Max Cleland, Democrat, and Senator Paul 
Coverdell, a Republican, also a friend of all of ours who died 
much too early.
    Since her confirmation, she has managed a docket of 3,100 
cases. Her nomination to the circuit court is rated unanimously 
well qualified by the ABA Standing Committee on the Federal 
Judiciary. I should note that is the highest rating they can 
give.
    Before becoming a Federal judge, she served as the U.S. 
Attorney for the Middle District of Georgia; as an Assistant 
U.S. Attorney in that office; and as an Assistant Attorney 
General in the Office of the Attorney General of Georgia. It is 
no secret on this Committee that, as a former prosecutor, I 
love seeing people who have had prosecutorial experience.
    Jeffrey Viken's wide-ranging experience makes him 
particularly qualified to serve as a judge on the U.S. District 
Court for the District of South Dakota. He is currently the 
Federal defender for the combined districts of North Dakota and 
South Dakota. I kind of gulp when I think of the land area that 
covers. I do not even want to think of how many times the size 
of Vermont that is.
    He spent more than two decades at a South Dakota law firm. 
Before that, he served as the District of South Dakota's Acting 
U.S. Attorney and as an Assistant U.S. Attorney, again, a 
former prosecutor.
    We will also include in today's hearing the nomination of 
David Kappos to be Director of the U.S. Patent and Trademark 
Office and Under Secretary of Commerce for Intellectual 
Property. He is well respected on both sides of the aisle, all 
parts of the intellectual property community, someone I have 
known for years.
    He is no stranger to the members of the Committee. He has 
worked with Senator Hatch and I and others on patent reform 
legislation. Coalitions on all sides of that debate applauded 
his nomination. We know the PTO needs strong and accountable 
leadership. It has a significant backlog of applications and 
faces serious challenges and we need somebody who can work with 
us on patent reform legislation and also can run the 
department, because, ultimately, patent quality begins at the 
PTO and that requires effective leadership.
    I am pleased that the President has nominated someone for 
this position with strong qualifications and abilities. I said 
to him earlier I do not know whether to give him 
congratulations or condolences, because it is going to be one 
of the toughest jobs in the government.
    So I hope the hearing today can mark a new start in 
cooperating to fill vacancies. Republican objections have 
prevented the Senate from confirming nominees reported by the 
Judiciary Committee for over 2 months, since May 12, including, 
as I said, somebody sponsored by the Ranking Republican on this 
Committee, Senator Sessions.
    There are currently 17 nominees reported by the Judiciary 
Committee pending on the executive calendar. A dozen have been 
installed on the Senate executive calendar since before the 
Fourth of July recess, five U.S. Attorneys, four Assistant 
Attorneys General, Chairman of the United States Sentencing 
Commission and others, as well as a number of judges. So I hope 
we can move forth.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Hatch, former Chairman of this Committee, former 
Ranking Member of this Committee, experienced person who, at 
least once or twice a year, will agree with me on something. I 
am delighted to have you here.
    [Laughter.]

STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF 
                              UTAH

    Senator Hatch. Long-term listener to Senator Leahy.
    [Laughter.]
    Senator Hatch. It is a privilege to be with you, Mr. 
Chairman, and I appreciate your leadership of this Committee.
    Judge Martin, welcome back to the Judiciary Committee. I 
was chairing the Committee when you first arrived. We have been 
proud of your service. And, Mr. Viken, we look forward to 
helping to confirm you.
    Mr. Kappos, I agree with the distinguished Chairman. This 
is one of the toughest jobs in all of the Federal Government 
and I think you are not only up to the job, I think you can do 
a great job there, and I look forward to supporting you.
    There is no question that America's ingenuity fuels our 
economy and we have to ensure that our patent system is as 
strong and vibrant as possible; not only to protect our 
country's premier position as the world leader in innovation, 
but, also, to secure our economic future.
    So I support you. I will announce that in advance. I may 
not be able to stay for the whole hearing, but just know that I 
am very proud of you for being willing to leave the private 
sector and come to the government and work in this very 
difficult position.
    You two nominees for judge, we are very grateful you are 
willing to serve and willing to participate in our government. 
We know that there are nice things that come from being a 
Federal judge, but there are a lot of difficulties, too, and we 
appreciate your willingness to serve.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. I would note for the record that 
Senator Hatch and I have been good friends for decades.
    Senator Hatch. That is true.
    Chairman Leahy. And we do enjoy teasing each other, but we 
have worked together and there has been an awful lot of Hatch-
Leahy and Leahy-Hatch legislation that has passed this body.
    We are going to go, as we normally do, by seniority of the 
Senators who are here. I appreciate you taking the time. I 
would note that, to the nominees, if the Senators, after they 
have introduced you, leave, that is not an indication how they 
feel about your qualifications. It is just that each one of 
these three Senators have several other committee meetings 
going on at this time.
    We will begin with Senator Johnson.

 PRESENTATION OF JEFFREY L. VIKEN, NOMINEE TO BE U.S. DISTRICT 
JUDGE FOR THE DISTRICT OF SOUTH DAKOTA, BY HON. TIM JOHNSON, A 
          U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

    Senator Johnson. Good morning and thank you, Mr. Chairman 
and members of the Committee. It is my great pleasure to be 
here this morning to introduce my friend, Jeff Viken, to be a 
Federal judge for our home State of South Dakota. I am also 
glad to see Jeff's wife, Linda Lea, is here.
    I have known Jeff since law school at the University of 
South Dakota and know well of his qualifications to fill the 
post of U.S. district judge. It is a great honor that President 
Obama has placed on Jeff. We are very lucky in South Dakota to 
have a great member of the legal community nominated to this 
post.
    Jeff has many years of public service and I look forward to 
his continued work for the people of our home state in the 
future.
    Thank you for your consideration of this nominee.
    Chairman Leahy. Thank you very, very much. Before I move on 
to the others, you have introduced Jeffrey Viken. Mr. Viken, do 
you have other members of your family here? I mention this 
because at some point, this will be in the Viken archives and 
you will want to know who was here.
    Mr. Viken. Thank you, Mr. Chairman. My district is 124,000 
square miles.
    Chairman Leahy. That is bigger than Vermont.
    [Laughter.]
    Mr. Viken. [Off microphone.]
    Chairman Leahy. Thank you. Thank you very much for having 
them all here. Senator Chambliss.

  PRESENTATION OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE U.S. 
     CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. SAXBY 
      CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA

    Senator Chambliss. Thank you very much, Mr. Chairman. It is 
a privilege for me to be here before you and my dear friend, 
Senator Hatch, Senator Franken to introduce to this Committee 
Beverly Martin. Beverly is a long-time dear friend, but her 
father and I go back even further than that, as a brand new 
lawyer in the Middle District of Georgia about 40 years ago.
    You always, as young lawyers, as you know, try to look to 
the best lawyers around to emulate and to learn from. Beverly's 
father, her grandfather and her great-grandfather were all 
lawyers and her father was one of the outstanding lawyers in 
our state and somebody that I looked to early on to learn from.
    So it is, indeed, a privilege to be back here 9 years after 
I came here to help introduce her before Chairman Hatch, at 
that point in time, to this Committee, regarding her nomination 
to the district court bench for the Northern District of 
Georgia.
    Beverly brings a great tradition, not just a family 
tradition, to the bench. She served as a member of Attorney 
General Mike Bowers' team at the state level for many years, 
and, there, I had the opportunity to work with her from time to 
time, because I did an awful lot of condemnation work and we 
worked very closely with that group of lawyers at the state 
level. I knew then what an outstanding person and outstanding 
lawyer she is.
    Beverly then went to become an Assistant U.S. Attorney in 
the Middle District and, ultimately, the U.S. Attorney, as she 
was named by President Clinton, and then was elevated to the 
bench on the Northern District of Georgia thereafter and, as 
the Chairman noted, she has handled over 3,100 cases during 
that 9 years, and she is so well respected by not just the 
judges who work with her every day, but by the lawyers that 
practice before her, and that is a real credit to her.
    She is one of those special individuals and I know Senator 
Sessions, as a former U.S. Attorney, remembers the weed-and-
seed program that was so popular. Beverly was a strong advocate 
of the weed-and-seed program during her U.S. Attorney days and 
she started programs in different parts of the district, in 
Valdosta, Columbus, Macon and Athens, and just did so many 
great things outside of the courtroom, just like she did inside 
the courtroom.
    She is tough, but she is fair, and that is what I hear from 
lawyers who practice before her on a regular basis. She 
replaces another great Maconite, Lanier Anderson, who was 
appointed by President Carter back in the 1970's. He has served 
us well on the Eleventh Circuit and Beverly is going to bring 
not just a great tradition to the Eleventh Circuit from a 
family perspective, but she is an excellent lawyer. She is an 
excellent judge, and she is going to make a fine member of the 
Eleventh Circuit bench.
    I look forward to supporting her as her nomination moves to 
the floor. I thank you again for the opportunity to be here 
today to introduce her.
    Chairman Leahy. Thank you very much. As I said, I enjoyed 
meeting her with you. Of course, Senator Chambliss and I have 
served together on another committee for years, on the 
Agriculture Committee, when he was chairman and since.
    Senator Isakson.

  PRESENTATION OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE U.S. 
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. JOHNNY ISAKSON, 
            A U.S. SENATOR FROM THE STATE OF GEORGIA

    Senator Isakson. Thank you, Chairman Leahy, Ranking Member 
Sessions. It is an honor for me to join with the senior Senator 
from Georgia, Saxby Chambliss, in introducing Judge Beverly 
Martin.
    I suffer at an extreme disadvantage when it comes to 
judicial appointments. I am not an attorney. So I have to set a 
criteria that may be different in judging people, and there are 
three things I look for when I consider the judicial 
appointments. One is knowledge, second is integrity, and the 
third is judicial activism.
    I was called out of a dinner at the Marriott downtown the 
day of the announcement by the President of Beverly Martin's 
nomination to the Eleventh Circuit. I received an emergency 
call, which I rarely get. It was from Mike Bowers, the former 
Republican Attorney General of the State of Georgia, now a 
practicing attorney, under whom Beverly Martin served in the 
Georgia Attorney General's office many years ago.
    He said, ``Johnny, I just want you to know I heard today 
that Beverly Martin has been nominated for the Eleventh 
Circuit. I want to tell you that I have never known a finer 
practicing attorney, never known a finer prosecutor,'' which I 
know the Chairman will identify with that remark, ``and I think 
she will be an outstanding judge in the Northern District.''
    The last call I received today was from south Georgia, from 
an attorney by the name of Jimmy Franklin, just to tell me how 
much he thought of Judge Beverly Martin. But for me, on the 
case of judicial activism, I tried to look back at her record 
to find some way to give me an indication of her position on 
judicial activism and I came upon her testimony when she was 
before this Committee on judicial activism in her appointment 
to the Northern District.
    If I can, I would like to quote her answer to this 
Committee. ``Once a case is properly before a court, a judge is 
obligated to follow the United States Constitution, statutory 
law and the doctrine of stare decisis, to adhere to the legal 
precedent. The precept is paramount, because it is necessary to 
the stability of our system for individuals and commercial 
concerns to find predictability in our judicial system and 
anticipate what actions are legally permissible. United States 
district courts have a limited jurisdiction and it is the 
solemn obligation of a judge not to find jurisdiction where it 
does not exist.''
    That was all I needed to know that Judge Martin was the 
type of judge that I am proud to be able to be before you today 
and introduce to you as a Georgian, a great justice, and a fine 
person.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. Judge, this just elaborates on 
the very nice things that Senator Isakson said to me on the 
floor of the Senate. Judge, you have family members here, do 
you?
    Ms. Martin. [Off microphone.]
    Chairman Leahy. I suspect two very proud gentlemen. Thank 
you. I thank all three of you for being here. I appreciate you 
being here. I know you have to be out--you are welcome to stay, 
of course, but I know you have all got committee meetings. So 
thank you very much.
    I should note, while they are moving things around, that on 
David Kappos, he has been nominated by President Obama to be 
the Under Secretary of Commerce for Intellectual Property and 
Director of the U.S. Patent and Trademark Office.
    In March, he had testified before the Committee on patent 
reforms. He has spent his entire professional career with IBM 
Corporation; graduated with highest honors from University of 
California-Davis in 1983 with a degree in electrical and 
computer engineering; again, worked for IBM as an engineer; 
went to the general counsel's office after receiving his law 
degree from the University of California-Berkeley in 1990; has 
held several positions within the general counsel's office, now 
serving as vice president and assistant general counsel for 
intellectual property.
    He serves on the board of directors of the American 
Intellectual Property Law Association, Intellectual Property 
Owners Association, the International Intellectual Property 
Association, as the vice president of the Intellectual Property 
Owners Association. I will put the rest of that in the record.
    [The information appears as a submission for the record.]
    Chairman Leahy. Mr. Kappos, do you have family members 
here?
    Mr. Kappos. Yes, I do.
    Chairman Leahy. For the Kappos archives, go ahead, please.
    Mr. Kappos. [Off microphone.]
    Chairman Leahy. Oh, boy, you know how to get it. Where in 
Vermont?
    Mr. Kappos. [Off microphone.]
    Chairman Leahy. Manchester.
    Mr. Kappos. [Off microphone.]
    [Laughter.]
    Mr. Kappos. [Off microphone.]
    Chairman Leahy. No wonder the room is so full today.
    [Laughter.]
    Chairman Leahy. We will check after with the staff to make 
sure we get all these names spelled correctly. Let us have the 
three nominees come forward and let me administer the oath, and 
we can begin.
    [Nominees sworn.]
    Chairman Leahy. Let the record show that each of the 
nominees took the oath and agreed to it. We will start with 
you, Judge Martin, if you have an opening statement that you 
would like to give.

   STATEMENT OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE UNITED 
         STATES CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT

    Ms. Martin. I do not have an opening statement, but I have 
got some people I would like to thank. On my way walking up 
here this morning, I remember that it was 35 years ago this 
summer that I was a summer intern for Senator Sam Nunn. So to 
be here this morning with both of my Senators from the State of 
Georgia is a big deal for me and I am grateful to them for 
being here.
    I wanted to mention that in addition to my husband and my 
father, there are six of my law clerks here today, former, 
present and future; one that is going to start in 2 weeks. 
Also, I noticed a couple of my colleagues from my time as 
United States Attorney, and I appreciate them being here, as 
well. But most of all, thank you all for having me here this 
morning.
    Chairman Leahy. You had the privilege of serving with Sam 
Nunn. His wife, Colleen, was my wife's big sister when she came 
here. Spouses will help spouses of incoming Senators, and they 
often become friends forever. My wife has served in a similar 
position with a number of people. She did it with a young 
Senator from Illinois named Barack Obama, with Michelle Obama.
    Mr. Viken.
    [The biographical information of Beverly B. Martin 
follows.]





  STATEMENT OF JEFFREY L. VIKEN, NOMINEE TO BE UNITED STATES 
        DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA

    Mr. Viken. Good morning, Mr. Chairman. Just a word of 
thanks, Mr. Chairman, to you and Senator Sessions, Senator 
Hatch, Senator Franken, the members of the Committee, for your 
investment of time and your deliberative energy in the process 
of considering the confirmation of myself to serve on the 
Federal bench.
    I, of course, greatly appreciate Senator Tim Johnson being 
present for the introduction and for President Obama's 
confidence in the nomination, and I am sure Beverly shares that 
thought with me, as well.
    We are honored to be here and honored to have an 
opportunity to be considered for this form of public service. 
Thank you, sir.
    Chairman Leahy. Thank you very much. Mr. Kappos.



    
STATEMENT OF DAVID J. KAPPOS, NOMINEE TO BE UNDER SECRETARY OF 
  COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. 
                  PATENT AND TRADEMARK OFFICE

    Mr. Kappos. Good morning. If it is OK, I do have a short 
statement that I would like to read, Chairman Leahy.
    Chairman Leahy. Please go ahead.
    Mr. Kappos. Thank you. Chairman Leahy, Senator Sessions, 
distinguished members of the Senate Judiciary Committee, thank 
you very much for the opportunity to appear before you here 
today. I am very grateful to President Obama and to Secretary 
Locke for the trust that they have placed in me, and to you for 
considering my nomination as Under Secretary of Commerce for 
Intellectual Property and Director of the U.S. Patent and 
Trademark Office.
    It is exceptional and humbling under any circumstance to 
have the opportunity to serve one's country, but it is 
particularly so for me as the son and grandson of emigrants. My 
father, who you met just a moment ago, came to this country 
from Greece and my mother's parents came to the U.S. from 
Italy. So the opportunity to be here today is particularly 
poignant for me and it is, also, for my family.
    If recommended by this Committee and confirmed by the 
Senate, I look forward to joining Secretary Locke, his team at 
Commerce, in their mission as stewards of American economic 
growth, job creation, and innovation. I have spent nearly my 
entire professional career in the field of intellectual 
property law and, indeed, my entire career around technology 
and innovation, first, as an electrical and computer engineer; 
then as a patent attorney handling matters before the U.S. PTO; 
litigating patent disputes both as defendant and as plaintiff; 
managing intellectual property matters in Asia; and, finally, 
as vice president and assistant general counsel for 
intellectual property law, managing IBM's IP interests 
globally.
    So I have seen the intellectual property system from all 
sides. I care passionately about this field and the role 
intellectual property plays in advancing American innovation. 
So it is particularly exciting for me to be considered for the 
position of Director of the U.S. PTO, an organization that 
traces its roots to the Founding Fathers and to their 
understanding that promoting and rewarding innovation is 
critical to our country's success.
    PTO faces many challenges, as we all know. Most immediate 
are those resulting from the economic downturn, the need for a 
stable and sustainable funding model, the need to address 
pendency concerns while preserving and enhancing patent 
quality, and the imperative to attract and retain skilled 
personnel at a time of fiscal constraint.
    Secretary Locke has personally asked me to refashion the 
patent examination process to meet these challenges and in 
carrying forward this direction, I will focus substantial 
personal attention within the U.S. PTO as my top priority.
    Additional challenges flow from rapid globalizing trade 
environment, impacting trademark and patent interests, as well 
as respect for intellectual property and the consequences where 
intellectual property is not respected. Longer term, the U.S. 
PTO is going to need to keep abreast of the astounding pace of 
technological change across a broad range of scientific 
disciplines.
    It must constantly rethink how it carries out its 
constitutional imperative to promote innovation and scientific 
advancement for the public good, both in terms of the 
technology confronting the office and in terms of leveraging 
that technology and applying the law to that technology.
    So as I consider these challenges, I am mindful of several 
things. I am mindful that the U.S. PTO serves the interests of 
all innovators in this country, small and large, corporate and 
independent, academic and applied, and, most importantly, the 
public interests. While I have spent my career to date at a 
large corporate enterprise, I am familiar with the concerns of 
all U.S. PTO constituents, including small and independent 
investors, the venture and startup community, public interest 
groups, the patent bar and many others, and I will reach out to 
all of them.
    I am mindful of the incredible dedication of the thousands 
of U.S. PTO employees and the essential role they play in the 
success of the U.S. innovation system. I will work every day 
with the U.S. PTO employees and the unions that represent them 
to establish strong, positive relationships grounded in 
professional treatment for professional judgment.
    I am acutely mindful that innovation today is global and 
that IP policy is of paramount importance, not only in our 
country, but also in the EU, in Japan, in China, Brazil, India 
and many other developing countries.
    I will use my international experience and my understanding 
of global IP trends to help this administration represent the 
interests of American innovators globally.
    Finally, I am mindful that the office for which I am being 
considered, working as part of Secretary Locke's team and 
within the administration's agenda, must be intensely focused 
on how to serve the American people at this time of economic 
uncertainty.
    I believe the U.S. PTO can play a significant role in 
enhancing economic growth, creating jobs and advancing American 
innovation, and I hope to play a part of this important 
mission.
    Again, I am grateful for the opportunity to address you 
here today and I am pleased to answer any questions.
    [The biographical information of David J. Kappos follows.]




    Chairman Leahy. Thank you very much. My mother's parents 
also emigrated to Vermont from Italy.
    Judge Martin, the courts are--and they were set up this way 
by the founders of the country--they are the one undemocratic 
part of our government. So they have a special responsibility 
to Americans who have the least power and greatest need for 
protection.
    Judges are protected in their own decisions by lifetime 
appointments. You certainly understand that, after 9 years on 
the Federal bench. But I also think there is a need to show 
sensitivity to people of different backgrounds, to show equal 
justice, whether you are coming before a court, whether you are 
rich, poor or no matter what your political background, no 
matter whether you are plaintiff or defendant, to show that 
they are going to be treated the same.
    Can you describe any situation, either as a lawyer or as a 
judge, in which you have taken difficult positions on behalf of 
comparatively poor or powerless individuals or members of 
racial minorities against a large corporation or the 
government?
    Ms. Martin. The first thing that comes to mind is criminal 
sentencing. That is probably the toughest day for any district 
judge. It is the worst day in the criminal defendant's life, 
but it is also the worst day in his or her family's life.
    So that is a time when I think it is important really to 
the rehabilitative process for me to treat the criminal 
defendant, as well as his or her family, with respect.
    In civil cases, a very large part of our docket in the 
Eleventh Circuit are employment discrimination cases. So I have 
had some exposure to providing trials to people claiming race 
discrimination. Again, I think it is my role to treat the 
parties and their counsel with respect and provide them with 
access to the courts.
    Chairman Leahy. Let me talk about a case, a recent Eleventh 
Circuit case I was reading about in Legal Times, Williams v. 
Mohawk Industries. That is a case where hourly wage employees 
brought a racketeering class action against the employer, 
Georgia Carpet, a flooring manufacturer.
    They said that the manufacturer had violated Federal law 
for years by hiring illegal aliens to keep wages low. The 
district court denied class certification to the employees, 
and, normally, the Eleventh Circuit, as in most circuits, the 
circuit would accept what the district court had done in 
denying class certification.
    In this case, somewhat rare, they reversed it. They 
remanded the decision to the lower court. Now, obviously, as a 
district court judge, I know you accept what the circuit has 
done, but how do you handle those kinds of decisions on class 
certifications? Is there any rule of thumb or is each one 
different? How do you handle those?
    Ms. Martin. Each one is different, of course. I see a lot 
of securities class action cases. In those instances, every 
single member of the class really does have the same claim. So 
the class certification process for those cases is a little bit 
different than the one that Judge Murphy faced in the Mohawk 
Industries case.
    I have read the case and the primary impression it made on 
me at the time was that great judges really do get reversed 
sometimes, because Harold Murphy is probably the most beloved 
judge in the Northern District of Georgia.
    I think it went up three different times, maybe. So beyond 
that, I am not familiar with the details of the case.
    Chairman Leahy. But how do you handle the issue? You have 
one come before you on a motion for class certification. Do you 
treat each one differently or do you have a matrix that 
applies?
    Ms. Martin. Well, I have Rule 23. So I go through the Rule 
23(a) factors and, as I said, with securities class action 
cases, that is fairly straightforward; then the 23(b) factors, 
which I think is where the Eleventh Circuit disagreed with what 
Judge Murphy had done, if I understand the decision correctly.
    But I approach each one differently, but follow Rule 23. Of 
course, those decisions go up on an interlocutory appeal 
whether you certify the class or not.
    Chairman Leahy. But you certainly understand the precedent 
that a court of appeals may overrule.
    Ms. Martin. I understand it very well.
    Chairman Leahy. Mr. Kappos--and I apologize to Senator 
Sessions. I am going somewhat over time here--but we have been 
working on a bipartisan basis in this Committee on 
comprehensive patent reform legislation. We have done this the 
past three Congresses.
    If you are confirmed, as I fully expect you will be, will 
you work with us members, both Republicans and Democrats, work 
with us on trying to resolve the final issues in the patent 
reform legislation?
    Mr. Kappos. Yes, absolutely, Chairman Leahy. That would be, 
I am tempted to say, the top priority, but there will be 
several very top priorities.
    Chairman Leahy. You also have a big backlog of patent 
cases.
    Mr. Kappos. That is right.
    Chairman Leahy. I assume you are going to try to clear 
those up, too.
    Mr. Kappos. That is right. That would be the second one, 
yes.
    Chairman Leahy. Mr. Viken, I notice you currently supervise 
32 employees. You find time to initiate an annual law day 
program to teach local students about their constitutional 
rights and obligations. You did not have to do that. Why did 
you do that?
    Mr. Viken. Mr. Chairman, in our districts, in North and 
South Dakota, as you know, it is very rural. We serve people on 
13 Indian reservations. Law day programs are a wonderful thing, 
but they tend to focus on communities which are larger and 
public school systems.
    My effort was designed to go out into the reservation 
communities, where kids just do not have access to lawyers to 
the same extent; someone to come into the classroom and really 
talk to them in a front line way about their constitutional 
rights and their obligations as American citizens.
    So that was the motivation, sir, and we have touched about 
1,000 children a year with our law day programs on the 
reservations in the Dakotas.
    Chairman Leahy. Thank you very much. Senator Sessions, I 
thank you for your forbearance. I went over time there.
    Senator Sessions. That is fine.
    Chairman Leahy. Please go ahead.
    Senator Sessions. Thank you, Mr. Chairman. I was prepared 
to yield to Senator Hatch or Senator Coburn. Both I know have 
serious matters on their agenda. I am not sure who.
    Senator Hatch. Maybe I could just ask one question of Judge 
Martin and then just maybe a little bit of comment for Mr. 
Kappos.
    Senator Sessions. Please.
    Senator Hatch. I want to congratulate all three of you. 
These are important jobs. I take them very seriously. Judge 
Martin, like I say, I was chairman when you first came up 
before the Committee.
    Ms. Martin. I remember it very well. My father and I speak 
often of your kindness to both of us that day. It was a 
highlight for both of us.
    Senator Hatch. Thank you. I hope you do not think this 
question is unkind.
    Ms. Martin. All right.
    Senator Hatch. But I have one question about one of your 
cases. That was U.S. v. Farley, which you decided last year. 
The reason I am concerned about this is I understand that this 
decision is currently on appeal to the Eleventh Circuit. So I 
just want to ask you about your decision and how you reached 
it.
    In that case, you found a man guilty of crossing state 
lines with intent to engage in a sexual act with a child under 
the age of 12. You found the mandatory minimum 30-year sentence 
required by the Federal statute to be unconstitutional and a 
violation of the Eighth Amendment.
    Now, I am interested in this decision for a number of 
reasons, one of which is that this mandatory sentence was 
established by the Adam Walsh Child Protection and Safety Act, 
which I introduced in the Senate. Now, you said that the 
mandatory minimum was grossly disproportionate to the crime, 
but I was surprised at your reasoning.
    You said that no harm was suffered because the predator had 
not actually had sex with the child. You even observed that, 
quote, ``It was not possible for a child to be harmed because 
the child was a creation of law enforcement and no real child 
exists,'' unquote.
    Now, I have some difficulty seeing how either of those 
observations is relevant, since the crime for which the 
predator was convicted is defined in terms of the intent to 
have sex with a child.
    Now, Congress made that a crime and imposed a hefty 
mandatory minimum, as you know, precisely because the 
consequences of a predator actually abusing a child are so 
horrific.
    Now, with respect, it sounds like you were saying no harm, 
no foul. But that is certainly not what the Congress thought. 
Now, your decision suggests that you would have viewed the case 
differently if law enforcement had actually used real children 
as bait rather than setting up a sting.
    Now, I have to say I was disturbed by the decision, but I 
have great confidence in you. I would just appreciate whatever 
insight you can give me about it.
    Ms. Martin. Well, 18 United States Code Section 3553(a) 
requires that I look at the nature and the circumstances of the 
crime committed, and there was a challenge made to the 30-year 
mandatory minimum.
    There is a presumption, as I well understand, that any act 
of Congress is constitutional. The United States Supreme Court 
has a test that judges are supposed to apply when there is a 
challenge, Eighth Amendment challenge made to a statute, and I 
set out to apply that test, which requires that I look at the 
punishment for similar crimes or more serious crimes in the 
same jurisdiction and how other jurisdictions punish similar 
crimes.
    It is a pretty onerous test and I looked at how each of the 
50 states treat that crime and what I ran into was the laws 
are--for example, the law for producing child pornography which 
involves the molestation of an actual child and then the 
continuing molestation of that child by the distribution of the 
photographs of the molestation that can go on for the child's 
whole life, and the sentence for that was a mandatory minimum 
15 years, a cap of 30 years.
    In my case, the defendant talked to an FBI agent who 
pretended to be the mother of a child and he was arrested on 
the plane. He never left the plane. He waived a jury trial. I 
convicted him of the 30-year count, which is what I refer to it 
as, and then there was the Federal statute that criminalizes 
crossing state lines with intent to murder somebody, murder for 
hire. There was a statutory cap on that of 10 years.
    Senator Hatch. You basically thought the 30 years was 
excessive.
    Ms. Martin. It wasn't about what I thought. My effort was 
to write an opinion applying the test and when I got to the 
proportionality analysis, as I said, I could not find the words 
to say that it was not disproportionate.
    Senator Hatch. Mr. Chairman, let me just say, I am going to 
support you, but I did want to hear what your reasoning was. So 
I plan on supporting you. I plan on supporting you with 
respect.
    Mr. Kappos, there is no question we are going to support 
you, as well. You have an eminent experience in this field and 
I just challenge you. I know that Senator Leahy and I and 
others on this Committee work very strongly together to try and 
help bring about the effective changes that we need to make to 
help you to do your job better and to help this country and to 
keep us at the forefront of innovation.
    I think you are the type of person who can help us to do 
that and I am very proud of you for accepting this position, as 
I am of these two judgeship nominations. I had some questions 
for you, but I will submit those in writing and just know that 
I am very impressed that you are willing to do this, very 
impressed with you personally, and I am counting on you really 
helping us do a better job up here on Capitol Hill for the 
people, for innovators, for the Patent Office, and we will do 
everything we can to assist you.
    I know that Senator Leahy feels exactly the way I do. We 
are together really on these issues. Thanks, Mr. Chairman.
    Chairman Leahy. Senator Hatch, I thank you for what you 
said, too, because one of the things we have found, all these 
patents, every single patent bill has been a bipartisan patent 
bill when it is passed and, actually, most of the good 
legislation on here has been bipartisan and I would like to 
keep it that way.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. Thank you, Judge, 
Mr. Viken, Mr. Kappos. Just a few quick questions. Mr. Kappos, 
you talked about your experience in Asia and the importance of 
intellectual property in innovation and in the American 
economy.
    I was wondering if you had any thoughts about intellectual 
property in terms of the entertainment industry, in terms of 
knock-offs of movies and those sorts of things, especially in 
China.
    Mr. Kappos. Thank you, Senator Franken, for that question. 
There unquestionably is a significant problem with 
counterfeiting and piracy, the two areas that affect the 
entertainment industry, and that is movies we think of and that 
is also, of course, entertainment content in the form of music 
and, additionally, other content, software.
    Senator Franken. Books.
    Mr. Kappos. And the high tech industry. Significant 
challenges. We have got some new capability in the 
administration that I would like to see and hope that will lead 
to more aggressive action in terms of working with our overseas 
counterparts.
    I hope, if confirmed for this job, to be able to work with 
the new players in order to be able to engage with whatever 
countries are needed, in Asia, in some cases, in Eastern 
Europe, in some cases, in Africa, in order to be able to put a 
new emphasis on piracy and counterfeiting.
    The special 301 process that USTR undertakes is clearly an 
important part of that equation, but there are other parts, 
too, including education, including working with our 
counterparts in these other countries to help them put in place 
new laws and win-win enforcement scenarios that will encourage 
them to take the aggressive enforcement actions we need.
    Senator Franken. Thank you. Mr. Viken, I am the newest 
member of the Indian Affairs Committee and I was particularly 
happy to see and hear about your significant work with the 
Native community.
    Can you tell us a little bit about that? I understand you 
and your wife were adopted by a Lakota family.
    Mr. Viken. We were, Senator. About 15 years ago, full blood 
families on Pine Ridge Indian Reservation in South Dakota gave 
us the honor of going through a hunka lo'api ceremony, which is 
a very ancient, traditional form of Lakota adoption, a making 
of relatives ceremony.
    So we have functioned with families, traditional families 
on Pine Ridge for all of these years. It has been a wonderful 
experience personally, and, professionally, I think it brings a 
level of cultural competence that is very useful in the work 
that we do.
    Senator Franken. Judge Martin, I heard in your introduction 
by Senator Chambliss that you were involved in the weed-and-
seed program.
    Ms. Martin. You know the weed-and-seed program.
    Senator Franken. Yes. We have that in Minnesota and I have 
been to some weed-and-seed events, and they seem to be 
diminishing, the number of them. Is that the case and do you 
not think we should be encouraging those programs?
    Ms. Martin. Well, of course, that is policy and judges do 
not make policy. But I was thrilled with my involvement in the 
program and the effect it had on some neighborhoods that needed 
some help throughout my part of the state.
    We had summer camps in our weed-and-seed program. Did you 
know about those?
    Senator Franken. They did all kinds of things in different 
weed-and-seed programs. Basically, it was a way of reducing 
crime in these neighborhoods and by doing various things like 
camps, but other stuff, too.
    Ms. Martin. We have so many military reservations in 
Georgia that we could partner with the military reservations 
and have the children come to the military reservations and 
spend the night and so they were exposed to all sorts of things 
they would have otherwise not known about. It was a real 
highlight for me.
    Senator Franken. I am glad you took the initiative to do 
that. Thank you, Mr. Chairman.
    Senator Sessions. Are you recognizing me?
    Senator Franken. Yes. Mr. Ranking Member Sessions, Senator, 
sir, from the great State of Alabama.
    Senator Sessions. We are great.
    Senator Franken. I am sorry.
    Senator Sessions. Mr. Kappos, Senator Coburn is in the 
middle of a markup he had to attend, but he wanted me to ask 
you this. He had talked to you previously, I think.
    Do you think you can effectively manage the PTO through 
this difficult time, reduce the backlog, reduce patent 
pendency, if you constantly have the threat of fee diversion 
hanging over your head every year?
    In other words, what Congress has done is we have allowed 
these fees to be assessed on the private companies and then we 
spent them on other things, looted the fund. So how do you 
answer that?
    Mr. Kappos. Thank you for that question, Senator Sessions. 
I am already well on the record as being opposed to fee 
diversion and, certainly, speaking as a citizen and as a member 
of the intellectual property community, I know well that the 
community is strongly supportive of the U.S. Patent and 
Trademark Office and, in fact, will fully fund the Patent and 
Trademark Office, including even paying more fees than are 
currently paid.
    So it is one of the few places where a user community will 
readily step up and say, ``We do not mind paying whatever it 
costs.'' However, the challenge of fee diversion has been very 
costly in terms of user community confidence in the Patent and 
Trademark Office and that comes in the sense that the community 
is steadfast in that it does not want to pay additional fees 
just to have them diverted to other government uses, as worthy 
as those other government uses may be.
    So one of the things that I would like to focus very 
substantial attention on, in addition to the backlog and some 
of the other things that we mentioned, S. 515, getting 
legislation through, is working with the Congress, as well as 
the administration to come up with a sustainable, long-term 
funding model for the U.S. PTO that includes the director's 
ability to set reasonable fees, and that provision is in S. 
515; that includes some way to enable the PTO to have the fees 
that it collects 1 year in order to be able to spend them in a 
future year to conduct the work that the fees are paid for in 
the first place; and then, finally, Senator Sessions, to your 
question and to Dr. Coburn's question, to work with the 
administration to put a sustainable system in place that makes 
fee diversion something that the user community does not have 
to worry about so that it will fund the patent.
    Senator Sessions. Well, I would just say I think you are 
right about that. I think there is a concern about delays. Some 
of those delays are probably a lack of resources for you and 
your team and if the fees had not been diverted, we would not 
have a shortage of resources.
    The same thing has happened with nuclear power, where we 
were going to tax the nuclear companies to create a storage 
place, and that money has been spent on other things and now 
they are suing the government because the government cannot 
take the nuclear waste that they have been paying billions of 
dollars for. So it is bad government and bad management on our 
side.
    Ms. Martin, thank you. I hear great things about you. I 
have talked to a number of people who have known you. So I am 
very positively disposed about it. I have gotten a lot of calls 
to that effect.
    But to follow-up on Senator Hatch's question, to me, there 
is a danger if a judge feels that a sentence is incorrect, and 
I can respect that. That is a pretty strong, heavy sentence, 30 
years, in this kind of case, even though the man thought, by 
all bits of evidence, that he was going to have sex with a 12-
year-old child. So I think people can disagree on what the 
right sentence there is.
    I am a bit concerned about your leap to the fact that the 
Eighth Amendment would cover this. I would just ask, first, has 
there been any other case that you are aware of in which a 
court has held that a heavy sentence, even a life sentence, 
violates the Eighth Amendment, which prohibits the imposition 
of cruel and unusual punishment?
    Ms. Martin. The test that applied in the case was a United 
States Supreme Court case, and I, frankly, cannot remember how 
they came out in applying that test. It sounds so terrible when 
we are sitting here. I want to be sure people understand.
    Senator Sessions. Let me just say I know a lot of judges. 
We have had a previous one this year that has got a little bit 
of a problem, because he, I would say, was criticized, I will 
just say it that way, because he did not want to follow one of 
these sentences.
    These child molestation cases have very heavy sentences and 
I think good judges could think that some of them may be more 
excessive. But Congress, we debated that at great length and we 
passed that and we take that very seriously. We want to end 
this problem. But go ahead.
    Ms. Martin. And I do, as well. I bet, when you were a 
United States attorney, you prosecuted these folks when the 
Postal agent was the case agent in the case. I did, as well.
    So I am delighted not to be the policymaker in this area, 
because I think it is a terrible problem and I have no idea how 
to solve it. As I said in the transcript, when I set out to 
apply the test, I had no idea it would turn out that way. But I 
think that is what judges have to do. You have to look at each 
case fresh and apply the test that the Supreme Court has 
provided and it comes out how it comes out, and I understand.
    My father is probably having a heart attack back there 
about what I did. This man, there was no evidence he ever 
touched a child.
    Senator Sessions. I understand that.
    Ms. Martin. And I sentenced him to 20 years.
    Senator Sessions. I just want to raise the question with 
you, just basically--go ahead, if I am interrupting.
    Ms. Martin. No. I just wanted to be sure my daddy knew I 
sentenced him to 20 years. I did not just let him go home.
    [Laughter.]
    Senator Sessions. Well said.
    Chairman Leahy. Before your father walked out of the room.
    Ms. Martin. He is not going to vote for me now.
    Senator Sessions. No, no. Twenty years without parole is a 
very serious, heavy sentence.
    Ms. Martin. I am under oath. So it was 235 months, 5 months 
short of 20 years.
    Senator Sessions. Very good. Well, I am just of the view 
that this was a pretty significant or a fairly unusual thing 
that former Chairman Sensenbrenner, ranking in the House 
Judiciary Committee, has filed a brief in the case, being 
concerned that it does violate the congressional authority in 
that area.
    My time is up. I would just say to you that there is a 
siren call of temptation out there, always, ``Well, this is not 
quite the way I would like it to come out and I would like to 
do it differently.'' The majority of your record is not that 
way. This is just one of the cases that jumps out at some 
people, especially since the House has filed a brief, members 
have filed a brief on it.
    I would like your commitment that you understand that it 
will be your responsibility to serve under the Constitution and 
under the laws of the United States, as the oath says, and not 
above it.
    Ms. Martin. Absolutely. Absolutely. I do impose mandatory 
minimums all the time, Senator Sessions. I wanted to be sure 
you knew that.
    Senator Sessions. Yes. I know that is true and your record 
demonstrates that.
    Ms. Martin. Thank you.
    Chairman Leahy. Thank you very much. Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. Mr. Kappos, you 
have been nominated for a very, very important job. This 
Committee has labored arduously on the issue of patent reform 
and we have heard many, many witnesses testify about the 
importance of patents and intellectual property as our place 
preeminent in the world and to stimulate inventions.
    So it is a big responsibility. The Patent Act has allowed 
for petitions to make special, which is an accelerated 
procedure, and there had been a special opportunity for 
environmental patents to expedite the process. That was changed 
to put those applications in line very far back and there is 
great emphasis, as we all know, on the effort to develop 
environmentally safe approaches to the environment.
    We are struggling mightily with cap-and-trade now. I would 
be interested in your views and interested in your assurances 
that you would do whatever is possible to expedite the patent 
applications for environmental issues.
    Mr. Kappos. Thanks for that question, Senator Specter. That 
goes into the green tech area. I am very familiar with the 
accelerated prosecution rider, petition to make special 
process, that was formerly applicable in that area that has 
been somewhat cut back.
    One thing that I think is very straightforward to do and 
very clearly positive for our country and our economy is to 
reinvigorate the right for an applicant to make her or his 
application special.
    Senator Specter. You would put back the old system where 
environmental applications had precedence.
    Mr. Kappos. Exactly, on account of the invention relating 
to the environment. I would like to do even more than that, 
though, because I believe there is a strong nexus between the 
patent system, the innovation capability behind the patent 
system and fueling sustainable innovation, like innovation that 
benefits the environment.
    Senator Specter. Mr. Kappos, I have a couple of other 
questions. So would you supplement your answer in writing as to 
specifically what you would do?
    Mr. Kappos. Sure, I would be happy to.
    Senator Specter. That is a very weighty issue and I think 
there would be a lot of interest in going beyond the old rules 
which gave expedited attention to that issue.
    You come to the position with an extensive background with 
IBM and IBM will have a great many issues before the Patent 
Office which you will be called upon to rule. Now, the 
government welcomes people of competence who have experience 
and there is inevitably an issue as to whether you may be faced 
with some matters which would have special benefit for IBM.
    It is a matter of some delicacy and there is not a whole 
lot that you can do except to focus on it. But address that 
issue and tell us what special precautions you would take to be 
fair to IBM, but not to be biased to anybody one way or 
another, because there are so many competing interests and 
these rules are--some of them are favored by IBM and to the 
disadvantage of others. How will you handle that?
    Mr. Kappos. Thanks, Senator Specter. This, to me, is a very 
clear situation involving conflicts, actual and apparent. To 
me, it is extraordinarily important that I have absolutely 
nothing to do with any particular decision that involves my 
former employer, if I am confirmed for this job, IBM. 
Therefore, I will have to recuse myself.
    Senator Specter. But how do you avoid the issue beyond 
that? The Federal circuit has granted a request for en banc 
hearing in Tafas v. Dudas, and there has been a stay of 
proceedings to see what attitude you might have, and IBM would 
be benefited in one way and other companies would be benefited 
another way.
    If there is some specific issue which IBM is the sole party 
to, that is one thing. But how do you handle a more subtle and 
sophisticated issue like the one I just mentioned?
    Mr. Kappos. In the Tafas v. Dudas case, my current 
employer, IBM, has no stake in that case in the sense that it 
is not a party on either side.
    Senator Specter. But is it not true that one interpretation 
of the rules or one application of the rules would benefit IBM 
and another would benefit many other smaller companies?
    Mr. Kappos. I do not know that I see it that way. I think 
of my role, if I am confirmed for this job, is doing the right 
thing for the American people and the United States of America. 
Like other people who are in private industry and move to the 
government, I will put my previous role behind me and focus 
entirely on doing the right thing for the United States of 
America, in the Tafas case, in the Bilski case, and in 
everything else, on a policy level that faces the U.S.
    Senator Specter. That is a very good answer and doing that 
will satisfy everybody.
    Mr. Kappos. Thank you, Senator.
    Senator Specter. Let me make one additional comment, if I 
may, Mr. Chairman, to the judicial nominees. When Senator 
Thurmond was chairman in here, he--Judge Martin, you are 
already a judge and, Mr. Viken, you are likely to become a 
judge.
    Senator Thurmond used to say, ``If you're confirmed, do you 
promise to be courteous,'' which translates from South 
Carolina-ese, ``If you are confirmed, do you promise to be 
courteous.''
    When I first heard him ask the question, I said, ``That is 
not a very meaningful question. What is anybody going to say 
but yes?'' The nominees dutifully answered ``yes'' and then he 
said, ``Because the more power a person has, the more courteous 
a person should be.'' Translated, ``More power a person has, 
the more courteous the person should be.''
    Sometimes there is a tendency, when you put on that black 
robe and have all that power, especially lifetime tenure, which 
Senators do not have, except for Senator Leahy----
    [Laughter.]
    Senator Specter. When you have all that power, bear Senator 
Thurmond's admonition in mind. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much. I will resist the 
response to that. I do recognize Senator Klobuchar, but before 
the clock starts on her, having Senator Thurmond here was a 
very interesting thing. I once made a comment on something 
Senator Kennedy said and I said, ``The problem with you guys 
from the southern states, meaning Massachusetts.''
    Senator Thurmond sat bolt upright and for 20 minutes, he 
said, ``I'll tell you boys,'' you boys, ``what southern is.'' 
And at the end of that 20-minute lecture, we realized 
Massachusetts may be south of Vermont, but it is not southern.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. 
Congratulations to all of you. I would tell you, Judge Martin, 
that I have been watching your father back there and he is 
doing fine.
    Ms. Martin. Good, good, good.
    Senator Klobuchar. He was laughing at the last jokes. He is 
doing Okay.
    Ms. Martin. As long as he is still here.
    Senator Klobuchar. Yes, that is good. I will say I have 
appreciated your honest explanation about that case and I think 
Senator Sessions understands, as does everyone up here, that 
people may not agree with every decision that you make, but it 
is looking at your record as a whole, which is very strong.
    Also, your explanation here was very good. I would add, 
which I am sure was mentioned before, that you got the blue 
slips, which means the go-ahead from the two Republican 
Senators in Georgia, Senator Isakson and Senator Chambliss, 
both of whom are well respected here. But thank you for your 
answer.
    Ms. Martin. It is a real honor.
    Senator Klobuchar. Mr. Viken, neighboring state of South 
Dakota, for Mr. Viken, congratulations on your nomination, as 
well.
    Mr. Viken. Thank you, Senator.
    Senator Klobuchar. I am going to focus my questions on Mr. 
Kappos. We believe that your nomination is a good thing for 
this country. I appreciate your willingness to work with this 
Committee. I know I saw you before in your previous role.
    As you know, we have 5,600 IBM employees in Minnesota, 
which I think you have pointed out to me, and we stand ready to 
work with you in your new position. I am very interested in 
this patent issue, because as you know, in my state, we have 
companies that have a lot of patents, from Medtronic to 3M. We 
gave the world everything from the Post-It Note to the 
pacemaker.
    So we care very much about this issue. So I wanted to focus 
on the Patent and Trademark Office, how you think that we could 
improve the efficiency. I hear a lot of concerns about that, as 
well as improving the morale in the office.
    Mr. Kappos. Thank you, Senator Klobuchar. Yes. The 
efficiency challenge in the U.S. PTO is a considerable one. 
There are so many things that need to be done, we will not be 
able to go into all of them this morning, but I would list just 
a few right off the top.
    One of them that is critical and I believe is a major 
morale issue and productivity issue to the examining corps 
itself, especially on the patent side, is the so-called count 
system. This is a system that has been in place for more than a 
generation, since the 1970's, that governs how examiners are 
encouraged to do their work.
    As I understand it, the examining corps hates the count 
system the way it is. The applicant community, the 3Ms and the 
Medtronics of the world, hate the count system the way it is, 
because it results in dysfunctional behavior.
    One of the things that I commit to do, if confirmed for 
this job, is to work immediately with the unions that represent 
PTO employees, the examining corps, and completely remake the 
count system.
    Secretary Locke has personally asked me to do that. That is 
going to be priority one, among a few other priority ones, like 
S. 515. So the count system needs to be fixed. That will help 
morale tremendously and it will help substantively to enable 
examiners and applicants to get to the issues that count in 
patent applications, that matter, and to get them to 
appropriate disposal much more quickly.
    Senator Klobuchar. Very good. When we had our hearing on 
the patent reform bill, we talked a little bit about the 
economy and the state of the economy and how that affects the 
issues of innovation in America and really the issue of patent 
reform.
    Could you talk about your views, in general, on that and 
why it is important that we not only get the PTO as functional 
as possible, but also get something done with regard to patent 
reform?
    I actually believe that it helped to forge some consensus. 
We know there is still some work to be done on the issue, but 
that the economy was a major factor. Do you want to comment on, 
in general, the effect of the economy on innovation and patents 
and things like that?
    Mr. Kappos. Yes, sure. Thanks for that question, Senator 
Klobuchar. So I believe that at the top, first and foremost, 
the intellectual property system truly is the facilitator of 
innovation. It truly is the engine that encourages innovation 
for our country.
    In a world in which, the way I put it, the distance between 
innovation and products is decreasing continuously, because of 
how easy it is to move from an idea to a finished product, the 
only thing that protects the innovation is intellectual 
property. It is the patent system, in the case of inventions.
    So there is nothing more important to returning our country 
to economic health than getting the innovation system working 
again, and the Patent Office is right at the center of that.
    So I would say, yes, clearly, there is a tremendous nexus. 
The Patent and Trademark Office can play an enormous role as 
part of the Department of Commerce.
    The second thing I would say is that in terms of just the 
economics of managing and leading a large intellectual property 
granting authority, the U.S. Patent and Trademark Office, as 
you know from the legislation that recently had to be passed 
just a few weeks ago, there are some significant challenges 
with patent application filings being down, patent grants being 
down, renewal fees or maintenance fees being down, all of which 
is taking fee collections down in an era in which there is this 
tremendous backlog of over a million applications to examine.
    So we clearly need to, in addition to refashioning the 
count system, we need to refashion the fee system of the U.S. 
PTO in order to be able to more accurately assess fees against 
the work that is being done. I believe that with that piece of 
work, which is part of S. 515, director fee-granting authority, 
plus fixing the issue of fee diversion that we spoke about 
before, we can make a tremendous amount of progress and get 
tremendous support from the intellectual property system.
    Senator Klobuchar. Thank you very much, and thank you for 
that practical answer.
    Chairman Leahy. Thank you. Any further questions? If no 
further questions, we will hold the record open for a week, as 
we normally do, for Senators who wish to submit questions.
    I thank all three of the nominees. I applaud you on being 
nominated. I think it speaks well for the United States to have 
three people of the quality of the three of you being 
nominated, two for lifetime appointments on our Federal court. 
For those of us who spent years practicing before Federal 
courts at all levels, that means a lot.
    Mr. Kappos, as I said, I have known you for years and, as 
we face increasingly worldwide economic competition, we need to 
have a strong Patent Office.
    Senator Klobuchar, Senator Franken and I represent states 
that have had a lot of patents. It is what is going to create 
jobs, it is what is going to create the future in our country 
and it is important that we have the best as the head of the 
office.
    So I thank you all. We stand in recess.
    [Whereupon, at 11:15 a.m. the Committee was adjourned.]
    [Questions and answers and submission for the record 
follow.]





 NOMINATIONS OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT COURT 
   JUDGE FOR THE THIRD CIRCUIT; ROBERTO A. LANGE, NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA; IRENE CORNELIA BERGER, 
  NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST 
VIRGINIA; CHARLENE EDWARDS HONEYWELL, NOMINEE TO BE U.S. DISTRICT JUDGE 
 FOR THE MIDDLE DISTRICT OF FLORIDA; IGNACIA S. MORENO, NOMINEE TO BE 
    ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATIONAL RESOURCES 
                    DIVISION, DEPARTMENT OF JUSTICE

                              ----------                              


                      WEDNESDAY, SEPTEMBER 9, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, Pursuant to notice, at 2:34 p.m., Room 
226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse 
presiding.
    Present: Senators Klobuchar, Franken, and Sessions.

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

    Senator Whitehouse. The hearing will come to order.
    Today we will consider four nominations to the Federal 
bench. Judge Joseph Greenaway has been nominated to the United 
States Court of Appeals for the Third Circuit; Roberto Lange 
has been nominated to the United States District Court for the 
District of South Dakota; Judge Irene Berger has been nominated 
to the United States District Court for the Southern District 
of West Virginia; and Judge Charlene Honeywell has been 
nominated to the United States District Court for the Middle 
District of Florida. We also will consider the nomination of 
Ignacia S. Moreno, to be Assistant Attorney General for the 
Environment and Natural Resources Division at the Department of 
Justice.
    I understand that the Ranking Member, Senator Sessions, is 
on his way here and will be joining us shortly, but I would 
like to take this moment to welcome each of the nominees, and 
their families, and their friends to the U.S. Senate.
    I also, of course, would like to welcome those of my 
colleagues who are here to introduce the nominees. This 
Committee is graced by the presence of such a distinguished 
array of my colleagues.
    In the interest of efficiency, let me outline how this 
hearing will proceed. If the Ranking Member arrives and wishes 
to make remarks, we will accommodate him at this point. At the 
conclusion of my remarks, if he is not here, I will allow the 
introductions by the home State Senators to begin. Their 
introductions will proceed in order of seniority, and each will 
have the chance to introduce the nominees for their States.
    We then will have two panels. The first panel will be Judge 
Greenaway, and the second will be all the remaining nominees. 
Senators on the Committee will have 5-minute rounds in which to 
question each panel.
    Without the Ranking Member here, I ask unanimous consent 
that the remainder of my opening statement be put into the 
record so that I do not delay my colleagues any longer, and we 
will begin with the introduction of Judge Berger by the 
distinguished Senator from the State of West Virginia, the 
Honorable Jay Rockefeller.
    Senator Rockefeller.
    [The prepared statement of Senator Whitehouse appears as a 
submission for the record.]

   PRESENTATION OF IRENE CORNELIA BERGER, NOMINEE TO BE U.S. 
 DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, BY 
HON. JOHN D. ROCKEFELLER, IV, A U.S. SENATOR FROM THE STATE OF 
                         WEST VIRGINIA

    Senator Rockefeller. Thank you, Mr. Chairman, very much. I 
would point out to Judge Berger, who I am about to talk about, 
that Senator Sheldon Whitehouse is one of the people that you 
need to know. He's brilliant. He's a wonderful lawyer, he's a 
wonderful person. He gives great advice on what books to read, 
and he's somebody you can trust.
    And that, I would say to the distinguished Chairman, is 
what Judge Irene Berger is all about. Yes, she is being 
nominated to the--has been nominated to serve in the U.S. 
District Court of Southern West Virginia, but you can't leave 
that statement alone. She comes from a very large family, and 
her husband David and a lot of her relatives are here, 
scattered behind me. David is right here. She comes from a 
family, a large family, in one of the four poorest counties in 
the United States of America.
    Rather than coming up, going through law school, serving 
for 30 years for the people of West Virginia in a calm, 
deliberate, marvelous way and being kind of proud about just 
everything she is and talking about a lot, no. She is the 
ultimately quiet, fair, dispassionate, rational judge.
    I have to say that I had the honor to present Judge Pierre 
Lavalle, and that was one of the happiest days of my life. This 
is also one of the happiest days of my life because I think 
Judge Irene Berger is unmatched in her professionalism, in her 
experience.
    And above all, in this question of temperament, I've never 
heard her--I've seen her--over many years I've known her, I've 
seen her in all kinds of situations. She's always the same. 
She's always smart. She has--all the Circuit Court judges from 
West Virginia who are on the Fourth Circuit and elsewhere, et 
cetera, rave about her. And she's been waiting, but she's not 
been promoting herself. She simply does her job in a classic, 
stoic, strong, heartfelt, and ultimately brilliant Southern 
West Virginia way.
    It's not easy, always, to be from West Virginia. It's not 
always easy to be a judge from Southern West Virginia, or other 
parts of West Virginia. It's a very active, aggressive, 
sometimes angry State. But nothing seems to affect Judge Irene 
Berger except superb judgment, confidence in herself, pride in 
what she's done, but all quiet, all measured. She is a superb 
person.
    Go to her for counsel on anything. She doesn't play like, 
I'm a judge, or I'm about to be a judge at a higher level. She 
doesn't play that at all. She's just who she is and who she's 
always been. And you don't run into that often. People in this 
business, when it comes to judgeships, often want them, grasp 
for them, work for them, plot for them, and often get them. 
That's not her way. She is thrilled to have this opportunity, 
and I just want her to know how happy I am to be able to be a 
part in helping her to become the judgeship that she seeks.
    I thank the Chairman.
    Senator Whitehouse. Thank you, Mr. Chairman. We are honored 
to have you here. We very much appreciate your remarks on 
behalf of Judge Berger.
    Senator Rockefeller. Oh. Also, I want--Senator Byrd 
couldn't be here today and he has a very strong statement about 
Judge Berger, and I ask----
    Senator Whitehouse. It will be accepted into the record 
without objection. I thank the Senator.
    [The prepared statement of Senator Byrd appears as a 
submission for the record.]
    Senator Whitehouse. Next in order of seniority is Senator 
Tim Johnson, who is here to speak on behalf of Roberto Lange.
    Senator Johnson.

 PRESENTATION OF ROBERTO A. LANGE, NOMINEE TO BE U.S. DISTRICT 
JUDGE FOR THE DISTRICT OF SOUTH DAKOTA, BY HON. TIM JOHNSON, A 
          U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

    Senator Johnson. Good afternoon. Thank you, Mr. Chairman 
and members of the Committee. It is my good pleasure to be here 
this afternoon to introduce Roberto Lange to the Committee. 
President Obama has nominated Bob to be a Federal judge for our 
home State of South Dakota.
    Bob attended the University of South Dakota, my alma mater, 
and attended Northwestern University School of Law in Chicago. 
He was an editor of the Law Review and graduated Order of the 
Coif.
    We are very fortunate to have such a distinguished member 
of the South Dakota legal community nominated to this post. 
After more than 20 years of practicing law, Bob is well-
qualified for the position of U.S. District Judge for South 
Dakota.
    Ironically, Bob has clerked for the very same judgeship 
that he is now the nominee for. While there are many rewards 
for public service, there are also many challenges. Thus, I 
would like to thank Bob for his past and future service for the 
people of South Dakota. Thank you for your consideration of 
this nominee.
    Senator Whitehouse. Thank you, Senator Johnson. I 
appreciate very much that you have been here to speak on behalf 
of Mr. Lange.
    Our next speaker is Senator Bill Nelson of Florida, 
speaking on behalf of Judge Honeywell.
    Senator Nelson.

PRESENTATION OF CHARLENE EDWARDS HONEYWELL, NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE MIDDLE DISTICT OF FLORIDA, BY HON. BILL 
        NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Nelson. You know, Mr. Chairman, this seniority 
thing is quite interesting because Senator Lautenberg retired 
for a little over a year and a half, and he gets bumped to the 
bottom. Now Senator Menendez is the senior Senator from New 
Jersey.
    Senator Whitehouse. The other way around.
    Senator Nelson. I see.
    Well, I'm here on behalf of Judge Charlene Honeywell of 
Tampa, and it's for a judgeship in the Middle District of 
Florida.
    She graduated from Howard University and then from the 
University of Florida College of Law. Mr. Chairman, that's the 
University of Florida. They happen to be the national champion, 
Florida Gators.
    Judge Honeywell has had a distinguished record. And it's 
obvious that we select our judges by going through a panel that 
Senator Martinez and I nominate, called a Judicial Nominating 
Commission, made up of very prominent people throughout 
Florida. They do all of the hard work, the investigation, 
receiving the applications and the interviews. For as many 
qualified candidates as we get, they boil it down to three and 
send those three to Senator Martinez and me, and we do our 
interviews in the process then. We consult with the White 
House. All of that process of winnowing, vetting, narrowing has 
produced the cream to the top, and that's Judge Honeywell.
    After she had graduated from law school, she was first a 
public defender in two different judicial circuits in Florida. 
She's been an assistant city attorney. She's been in private 
practice with one of Tampa's most distinguished law firms and 
then she has kept all of that career with being one of our 
State court judges in what we call our Circuit Court in 
Florida.
    So it is Senator Martinez and my privilege to be here, and 
I speak on his behalf. I don't know if he has actually 
officially resigned. He just gave his farewell speech. I think, 
as of this moment, he is still Senator. So I can tell you, he 
certainly speaks through me today and the two of us encourage 
the Committee to approve Judge Honeywell.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you very much, Senator Nelson.
    And our last speakers, in order of seniority: Senator 
Lautenberg, and then Senator Menendez of New Jersey, speaking 
on behalf of Judge Greenaway.
    Senator Lautenberg.

PRESENTATION OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT 
COURT JUDGE FOR THE THIRD CIRCUIT, BY HON. FRANK R. LAUTENBERG, 
          A U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Thank you very much, Mr. Chairman and 
the Ranking Member of the Committee, Senator Sessions, members 
of the Committee, for the opportunity to be here today to 
present a fellow Columbia University graduate--obviously not in 
the same class year.
    [Laughter.]
    Senator Lautenberg. Why is there such a snicker going 
through?
    [Laughter.]
    Senator Lautenberg. One of New Jersey's most distinguished 
public servants, Judge Joseph Greenaway.
    On the District Court in Newark, Judge Greenaway has 
demonstrated his core values of integrity and fairness, the 
same values that will make him a success on the Third Circuit 
Court of Appeals. Through his impressive career, I've been 
fortunate enough to watch Judge Greenaway at work for our State 
and our people.
    Judge Greenaway became an Assistant U.S. Attorney in Newark 
in 1985. He first served in the Criminal Division, where he 
worked on bank fraud and white collar crime investigations. In 
1989, he was promoted to head the division dedicated to 
prosecuting narcotics cases. From 1990 to 1996, Judge Greenaway 
served as an in-house counsel for Johnson & Johnson, a 
prominent pharmaceutical company in New Brunswick, one of New 
Jersey's great companies. Then in 1996, Judge Greenaway was 
appointed by President Clinton to the United States District 
Court for the District of New Jersey, where he has since 
served.
    Now, I introduced him to this Committee at that time, as I 
am today, and I do it with great enthusiasm. The best thing 
about Judge Greenaway is that, despite his critical and time-
consuming responsibilities in the court, he still finds time to 
give back to the community. He teaches criminal law, criminal 
trial practice classes at Cardozo Law School, where I sit now 
as an honorary board member, as I was on that board for some 
time. He helps train the next generation of legal thinkers and 
leaders.
    Judge Greenaway also teaches a course about Supreme Court 
at both Cardozo Law School and Columbia University. He spent 
his career protecting New Jerseyans and their rights, and I 
know that we can depend on him to do the same for our Nation as 
an Appeals Court judge.
    I am pleased that President Obama has selected Judge 
Greenaway for this post and I urge my colleagues to support his 
confirmation.
    Before introducing his family, I want to say that I was 
honored to have a courthouse carry my name during my absence 
from the Senate, and I authored something to be posted on the 
plaque that carries the name. I said on that plaque, ``The full 
measure of a democracy is its dispensation of justice'', and I 
can't think of anyone who fills that obligation better than 
Judge Joe Greenaway.
    Now I want to recognize Judge Greenaway's wife, Veronica 
Blake Greenaway, his son Joseph, his daughter Samantha, and his 
parents as well. We all know that he would not be here today 
without your love and support.
    Mr. Chairman, I thank you for the opportunity to testify at 
this time.
    Senator Whitehouse. Thank you, Senator Lautenberg.
    Senator Menendez.

PRESENTATION OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT 
 COURT JUDGE FOR THE THIRD CIRCUIT, BY HON. ROBERT MENENDEZ, A 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Menendez. Thank you, Mr. Chairman, to the 
distinguished Ranking Member, to all the distinguished members 
of the Committee. I am pleased to join my colleague in the 
Senate, Senator Lautenberg, and to have the pleasure and honor 
to come before the Committee today to introduce a man from New 
Jersey who fully embodies the qualities of respect for justice 
and the rule of law we demand of all of our judges.
    At the age of 40, Judge Joseph Greenaway, Jr. was appointed 
by President Clinton to the Federal bench and he has served for 
over a dozen years with distinction. He earned a bachelor of 
arts from Columbia University, where he was honored in 1997 
with the Columbia University Medal of Excellence and with the 
John Jay. Award in 2003.
    He was an Earl Warren Legal Scholar at Harvard University, 
where he received his J.D. and served as a member of the 
Harvard Civil Rights and Civil Liberties Law Review. He clerked 
for the late Honorable Vincent L. Broderick in the U.S. 
District Court for the Southern District of New York before he 
became an Assistant U.S. Attorney in Newark and received a 
promotion to become chief of the Narcotics Bureau.
    In the private sector, he was an associate with the firm of 
Kramer, Levin, Nessen, Kamin & Frankel, and served at Johnson & 
Johnson, as Senator Lautenberg said, as their in-house counsel.
    He is chair emeritus of the Columbia College Black Alumni 
Council. He has been an adjunct professor at my alma mater, 
Rutgers Law School. He is an adjunct professor at the Cardozo 
School of Law, where he teaches a course on trial practice and 
a seminar on the Supreme Court. He is also an adjunct at 
Columbia College, where he teaches a seminar on the Supreme 
Court.
    But that is Judge Greenaway's resume. It is a distinguished 
resume, to say the least. It also is one that I'm sure, through 
your questions, you will find a judge who has the demeanor, the 
intellect, the integrity, the deference to the rule of law as 
well as to precedent, and you'll get those from your questions. 
But it does not do justice to Judge Greenaway the man.
    There is an inscription, Mr. Chairman, over the Tenth 
Street entrance to the U.S. Department of Justice, just a few 
blocks from here. That inscription says, ``Justice in the life 
and conduct of the state is possible only as first it resides 
in the hearts and souls of men.''
    So, Mr. Chairman, I can tell you, those true qualities of 
justice do indeed reside in the heart and soul of Judge 
Greenaway. He was born in London, grew up in Harlem, in the 
northeast Bronx, not far from where Justice Sotomayor grew up, 
and just across the river from where I grew up.
    He is accomplished and successful, but he's given a lot 
back. In 2006, when he spoke at the Benjamin Cardozo School of 
Law Yeshiva, Dean David Rudenstein said then, ``Judge Greenaway 
has been a generous teacher and mentor to Cardozo students 
throughout the years and has touched many of their lives in 
meaningful ways. I'm delighted that our graduates will have the 
opportunity to hear his insights, witness his humaneness, and 
be inspired by his example.''
    Judge Greenaway, who long taught master classes at Yeshiva, 
has always been instrumental in mentoring students and 
graduates, often taking them under his wing as law clerks or 
fellows.
    He has said, ``I tell my students to work hard and work 
smart. Our profession requires a drive to search for 
perfection. Without that goal, mediocrity becomes the norm.'' 
Well, mediocrity has never, and never will be, the norm for 
Judge Greenaway. He has always strived for excellence and he's 
always taught young lawyers to do the same.
    So in conclusion, Mr. Chairman, members of the Committee, 
when we look to our courts to dispense justice fairly, 
honorably, equally under the law, we look to those among us who 
have worked hard not only for themselves, but for the 
betterment of the community as a whole. We look to those who 
have achieved much, but whose humility allows them to take the 
long view, to see the whole board, and act accordingly. Judge 
Joseph Greenaway is that kind of judge, the kind of person we 
look to when we think of the notion of equal dispensation of 
justice under law.
    It is my pleasure to join Senator Lautenberg in introducing 
him to the Committee and thank him for his service to New 
Jersey. I know that I join with all of you in wishing him and 
his wife Veronica, his son Joseph, and his daughter Samantha 
good luck and godspeed on this next journey in life.
    Mr. Chairman, I appreciate your opportunity to make this 
presentation. I urge the Committee to recommend favorable 
action and a speedy confirmation to the Third Circuit Court of 
Appeals.
    Senator Whitehouse. I thank you, Senator Menendez. I thank 
all of my colleagues who have taken the trouble, from extremely 
busy schedules, to come here today and speak on behalf of these 
candidates. The constitutional prerogative of advice and 
consent and the Senate tradition requiring the approval of the 
home State Senators for judicial appointments, I think, lead to 
wonderful consequences for America in the caliber of the 
appointees who are brought forward and the requirement that 
they meet the confidence of their home State Senators in order 
to achieve these lifetime appointments. So in coming before us 
as you have, you are, I believe, acting in the finest 
traditions of the U.S. Senate, and I appreciate that you took 
the trouble to do so. The panel is excused.
    If the distinguished Ranking Member would like to make an 
opening statement, I would invite him to do so when the 
situation settles down in a moment. After that, we will call up 
Judge Greenaway first.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Mr. Chairman, I thank you for this 
opportunity. It is a part of our congressional responsibility, 
a senatorial constitutional requirement that we examine 
nominees for the bench. We hope and look forward to a good 
group of nominations from this administration.
    I think the Senators that just testified being strong in 
their support for these nominees is always most meaningful to 
me, and I think the other Senators--to the nominees, I think 
that will stand you in good stead to have their firm and 
vigorous support. I think it will definitely make a difference 
in how those confirmation hearings go.
    We do have some disagreements, I think, about the role of 
courts and how they should conduct themselves in America today, 
sort of a national discussion about, to what extent judges are 
bound by the law and to what extent they feel that they are 
empowered to allow their personal feelings or approaches to law 
affect how they decide cases. So I think that's something that 
is very important to me and we'll ask about it, but all in all, 
I think the nominees that we're seeing here today that will be 
before us have good records, and I look forward to examining 
them.
    Senator Whitehouse. I thank the very distinguished Ranking 
Member.
    I would now ask the Honorable Joseph Greenaway to come 
forward.
    [Whereupon, the nominee was duly sworn.]
    Senator Whitehouse. Please be seated, and welcome.
    Do you have an opening statement? If you would be good 
enough to turn on your microphone, that would help. You are 
most welcome to introduce your family who are here with you in 
addition to making some opening remarks, if you would care to 
do so.

STATEMENT OF HON. JOSEPH A. GREENAWAY, TO BE U.S. CIRCUIT COURT 
                  JUDGE FOR THE THIRD CIRCUIT

    Judge Greenaway. Well, thank you so much, Mr. Chairman.
    The first remark I'd like to make is to thank God for his 
grace and countenance that I'm here today. I'd like to thank 
President Obama for his confidence in me with regard to this 
nomination. I'd like to thank Senators Lautenberg and Menendez, 
Congressman Payne, and others. I'd like to thank my family and 
friends for being here today. I'd also like to thank you, Mr. 
Chairman, and the Ranking Member and the Committee members who 
are present as well.
    I'd also like to take this opportunity to introduce my 
family. I'm not going to turn around, because I'm told that 
that would mean you can't hear me. So behind me is my father, 
Joseph Greenaway.
    Senator Whitehouse. Welcome, sir. We're glad to have you 
with us. Congratulations on your son's accomplishments.
    Judge Greenaway. My wife, Veronica Greenaway.
    Senator Whitehouse. Wonderful to have you with us.
    Judge Greenaway. My son, for his second visit. He was six 
the last time.
    [Laughter.]
    Judge Greenaway. He's a little older now.
    Senator Whitehouse. He has grown handsomely since then, 
Your Honor.
    Judge Greenaway. Thank you, Mr. Chairman.
    My daughter Samantha, who was not here the last time.
    Senator Whitehouse. Welcome.
    Judge Greenaway. My two sisters, Rosemary and Sonia, my 
brother-in-law Rodney, and Charlotte Rosen, my son's special 
friend.
    [Laughter.]
    Judge Greenaway. And Mr. Chairman, I'm graced with the 
presence of many friends, lifelong friends, law clerks and 
interns who are here for today's proceedings.
    Thank you so very much.
    Senator Whitehouse. You are most welcome, and we are 
delighted to have you here. I congratulate you on the quality 
and extent of your public service to date and hope that a 
speedy and uneventful confirmation awaits you here.
    I would like to ask you the same question that I asked now-
Justice Sotomayor when she was before our Committee for 
confirmation, and that is whether, in your role as an appellate 
judge, you will respect the role of Congress as representatives 
of the American people, decide cases based on the law and the 
facts, not prejudge any case, but listen to every party that 
comes before the court, respect precedent, and limit yourself 
to the issues that the court must decide?
    Judge Greenaway. Let me give you my unequivocal assurance, 
Mr. Chairman, that with regard to each of those items, that 
that is exactly what I have been doing and what, if I am 
confirmed--fortunate enough to be confirmed, I intend to do in 
the future.
    The role of stare decisis in our legal system is critical. 
I believe in it and I have adhered to it as a District Court 
judge. I believe that the only basis that cases can be decided 
on are the law and the facts and not some predetermined notion 
of what the outcome should be. Clearly, in my work as a 
District Judge, I have respected the role of Congress in our 
tripartheid system.
    Senator Whitehouse. In the context of your pledge to listen 
to every party that comes before the court, clearly not every 
party comes before the court with similar resources. Sometimes 
parties are represented by enormous law firms, sometimes 
they're represented by considerable numbers of enormous law 
firms. Sometimes a party comes before the court with a new 
lawyer, a solo practitioner, perhaps even a lawyer who is 
simply having a bad day. What is your view of the judge's role 
in ensuring that those differences of resources do not 
interfere with each party's right to a fair trial before the 
court?
    Judge Greenaway. Thank you, Mr. Chairman. I believe that 
the role of the judge, when there's an inequity in resources, 
an inequity in legal talent, as you've alluded to in your 
question, is frankly confined. I don't believe that the role of 
a district judge or a circuit judge is to sort of try to even 
things out. I've had cases where a solo practitioner is up 
against a massive law firm and, frankly, outdoes them quite 
nicely.
    I know in our own district, some of our CJA counsel are 
among the best lawyers available in the State. I think that if 
a judge were to say, you know, I'm not sure things are evened 
out so I'm going to call this one this way to kind of even 
things out, I think that that kind of interference or intrusion 
into the system is one that is ill-advised.
    I haven't followed that, and I would not want to in the 
future. I do believe that all people who appear before me, 
those with limited resources and those with unlimited 
resources, deserve fair treatment. I have done that. If 
confirmed, I would continue to do that. I believe that is the 
only role that a judge can play, to play it down the middle and 
call it as you see it.
    Senator Whitehouse. Finally, Your Honor, the Constitution 
embodies eternal principles that may be at odds with popular 
conventions or passions of the time and substantial societal 
expectations may have grown around those conventions or 
passions by the time a matter comes before the court.
    You may find yourself in a situation in which you find that 
the eternal principles of the Constitution, if applied 
properly, are actually disruptive of certain expectations and 
certain settled practices, and perhaps even certain interests. 
Do you feel any hesitancy, when the facts and the law and the 
principles of the Constitution so direct, to disrupt those 
conventions or practices that have settled around those popular 
passions?
    Judge Greenaway. Well, Mr. Chairman, I believe that the 
beauty of the Constitution is its enduring quality. I also 
believe that the prescience of the Founding Fathers was in 
giving Federal judges lifetime tenure so that in those 
instances that you've alluded to, those times when difficult 
decisions have to be made so that judges act in conformity with 
the Constitution rather than public opinion, those decisions 
can be made without fear of retribution.
    I do believe that the Constitution of the United States is 
a wonderfully constructed document. It is one that I enjoy 
reading. I believe that it is important to apply. I think that 
public opinion on particular issues comes and goes, but I think 
that the fact that that endures and that it is difficult, under 
our constitutional system of government, for amendments to be 
made speaks to the fact that the Constitution, for whatever 
foibles people may have with or see in it, should be followed.
    Senator Whitehouse. I thank you. My time has expired.
    I'd call on the distinguished Ranking Member.
    Senator Sessions. Thank you, Mr. Chairman.
    Judge Greenaway, it's a pleasure to be with you. I think 
you showed some admirable humility in your opening statement, 
thanking the President and God for your opportunity to serve in 
this august position. Some people get on the bench and they 
think they are anointed rather than appointed, as they say.
    [Laughter.]
    Judge Greenaway. Not I, sir.
    Senator Sessions. A little humility doesn't hurt for 
somebody who's got a lifetime appointment and we can't vote you 
out of office. But you have a lot of good friends, a lot of 
firm recommendations, and both of your Senators are very 
supportive.
    I remember, really before I came here, my staff has found a 
statement you made last time, when you were up for 
confirmation, that ``judicial activism is a practice that goes 
beyond the bounds of permissible jurisprudence, as set forth in 
the Constitution. In my view, engaging in such activism 
requires a jurist to begin the journey down the proverbial 
slippery slope. Once down that path, stare decisis and the 
Constitution fall prey to that judge's perceptions, prejudices, 
and predilections. This approach is antithetical to the intent 
of the framers of the Constitution and results in haphazard 
decisionmaking.''
    You go on to say, ``A Federal judge cannot impose his or 
her own views on what the law should be as if sitting as a 
super-legislature. In theory and practice, judicial opinions 
must be measured and guided by precedent and the Constitution. 
Judges must limit themselves to the parameters permissible 
within the larger constitutional scheme.''
    So I guess I like that.
    Judge Greenaway. Thank you very much, Senator.
    Senator Sessions. Do you still believe that?
    Judge Greenaway. Absolutely, sir.
    Senator Sessions. You made a speech, a lecture entitled, 
``Judicial Decision-Making in the External Environment''. You 
said that ``the external environment consists of the political, 
social, intellectual, and other forces that influence and 
affect our judiciary and its decisionmaking. Although the 
public may believe that judges make their ruling in a vacuum, 
they clearly do not. Not only does each member of the judiciary 
come to the bench with a different set of experiences, but our 
environment affects each judge differently as well.''
    Then you note that Justice Black, who ruled in the Japanese 
detention case, the Koramatsu case, was ``undoubtedly 
influenced by several factors outside the record, such as his 
own military career, the fact that his sons were in World War 
II, and his friendship with General DeWitt.'' I guess I think, 
as I read those remarks, you seemed to criticize Black for 
allowing those things to cause him to not be sensitive to the 
constitutional rights of the people, the Japanese citizens, who 
were interned. Is that correct?
    Judge Greenaway. Well, Senator, I think that--well, first 
of all, you quoted me absolutely accurately. I think that my 
point in that article was that, No. 1, we had suspect 
classifications involved. No. 2, we were talking about probably 
one of the most egregious violations of an entire subgroup of 
Americans in our Nation's history. No. 3, there was a real lack 
of evidence brought before the President before he acted, and 
the court before it acted.
    In looking at Koramatsu critically, my view was, if we're 
going to--if we as a society, and the court in particular, is 
going to take that kind of action, that we'd better have a good 
reason to do it and there should be some evidence to support 
it. Now, I think what you quoted with regard to Justice Black 
and his background is part of it, certainly not the only thing. 
But I think that was my point.
    Senator Sessions. Well, sort of to follow up on Senator 
Whitehouse's question about taking clear stands sometimes on 
important issues, even if not popular, I think there is a 
danger--do you not agree, that in a judge allowing such things, 
extra-judicial matters that you've cited that possibly could 
have influenced Black, there is a danger in allowing that to 
happen and could indeed weaken certain constitutional 
protections?
    Judge Greenaway. That is certainly possible, sir.
    Senator Sessions. Some people seem to think that feelings 
and experiences are necessarily good and are always going to 
lead a judge in the right way. Sometimes feelings could lead 
you in the wrong way in your experiences.
    Judge Greenaway. That is also certainly possible, sir.
    Senator Sessions. President Obama described, once, the kind 
of judges he would look for on the bench as follows: ``We need 
somebody who's got the heart, the empathy to recognize what 
it's like to be a young teenaged mom, the empathy to understand 
what it's like to be a poor African-American, or gay, or 
disabled, or old, and that's the criteria by which I'm going to 
be selecting my judges.''
    Now, Justice Sotomayor declined to endorse that as her 
philosophy of service on the bench. Do you have any comments 
about that and how you would approach the difficult task of 
judging?
    Judge Greenaway. Well, Senator, I know a little bit about 
being African-American.
    [Laughter.]
    Judge Greenaway. I think we might not have had a lot of 
money growing up, but I didn't think we were poor. We were 
really rich in a lot of the more important things in life, my 
sisters and I. You know, I think my father and mother prepared 
us for life in the best way they could, and that is giving us 
the principles to be productive members of society.
    I am not in the President's position with regard to what 
makes a good judge. The only thing I can tell you is that, in 
my years of experience, I've tried to be fair to folks, I've 
tried to treat them with the utmost respect and to deal with 
their--address their cases as best I could, applying the facts 
to the law.
    Senator Sessions. Well, I thank you for saying that. We 
haven't done an exhaustive search of your record like what gets 
done for the Supreme Court nominees. Every word that they say 
gets researched. But it does appear that you have a good record 
and broad support in the community. Thank you.
    Judge Greenaway. Thank you very much, Senator.
    Senator Whitehouse. Thank you, Senator Sessions.
    As I said, Judge Greenaway, we hope very much for a speedy 
and uneventful confirmation. I thank you for your testimony 
here today. The record of the proceedings for you and for the 
other candidates will remain open for a week from the 
conclusion of this hearing, so if there are other comments 
anybody cares to make about your candidacy, they have that 
final week to make them before the record of these proceedings 
closes. But I welcome you here. I congratulate your family on 
this achievement and I wish you godspeed.
    Judge Greenaway. Thank you so much, Senator. Both Senators. 
I appreciate it very much. Have a good day.




    Senator Whitehouse. We will take a 5-minute recess--and I 
do mean 5 minutes--while the table gets turned over for the 
next panel and people have a chance to assemble themselves.
    [Whereupon, at 3:19 p.m. the hearing was recessed.]
    AFTER RECESS [3:21 p.m.]
    Senator Whitehouse. The Committee will come back to order.
    I would ask if the nominees would please stand to be sworn.
    [Whereupon, the nominees were duly sworn.]
    Senator Whitehouse. Thank you very much. Please be seated.
    I think I will proceed in the order of the introductions, 
which would put Judge Berger at the front of the line.
    Welcome, Your Honor. Delighted to have you here.
    Judge Berger. Thank you.
    Senator Whitehouse. I call on you for any opening remarks 
or introductions that you would care to make. I understand that 
you have family and friends here on this day.

 STATEMENT OF IRENE CORNELIA BERGER, TO BE U.S. DISTRICT JUDGE 
           FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

    Judge Berger. I do. Thank you, Chairman.
    First, I would like to extend my heartfelt thanks to 
President Obama for the honor of the nomination. I also would 
like to extend my gratitude and appreciation to Senators Byrd 
and Rockefeller for their recommendation, and also their 
comments here today.
    I thank you and Senator Sessions for being here today and 
affording us this opportunity. I also would like to thank 
Senator Leahy for scheduling our hearing.
    It is with great pleasure that I introduce to you my 
brother, Charles Berger, my sister-in-law, Janet Berger, my 
niece, Charlene Berger, my niece, Michelle Berger, my 
administrative assistant and best friend, Karen Sword, and her 
husband, David Sword.
    Senator Whitehouse. We are delighted that you're all here 
today and we welcome you to the Senate Judiciary Committee.
    Judge Berger. My family and I are honored to be here. Thank 
you.
    [The biographical information of Irene Cornelia Berger 
follows.]




    Senator Whitehouse. We're delighted to have you, and 
congratulations to you on your nomination.
    Next, is Bob Lange.

 STATEMENT OF ROBERTO A. LANGE, TO BE U.S. DISTRICT JUDGE FOR 
                  THE DISTRICT OF SOUTH DAKOTA

    Judge Lange. Thank you very much, Mr. Chairman. I would 
like to join Judge Greenaway in thanking God. I feel very 
blessed in my life. Also, thank you to the Committee for the 
hearing, for Senator Johnson for his introduction of me, and to 
the President for the nomination.
    I'm delighted to be joined here by my wife, Lisa Lange, my 
youngest sister, Heidi Logelin, and her nine-year-old twins, 
Madison and Alec Logelin, my dear friends from law school, Tom 
and Tish Pahl, and by surprise, a raft of my cousins who 
happened to work in Washington, DC, David Hubbuch, Eleanor 
Hubbuck, and Mary Lange.
    Thank you, Mr. Chairman.
    Senator Whitehouse. We are delighted that they are all 
here, particularly Madison and Alec, who I think will probably 
find this a memorable day as they grow older as their uncle 
came to this great day. I applaud you on your nomination and 
welcome you here.
    Judge Lange. Thank you.
    [The biographical information of Roberto A. Lange follows.]



    
    Senator Whitehouse. Next, is Judge Honeywell.

 STATEMENT OF CHARLENE EDWARDS HONEYWELL, TO BE U.S. DISTRICT 
            JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Honeywell. Thank you, Mr. Chairman. I, too, must join 
Judge Greenaway in thanking God for making this possible.
    I am delighted to have present with me at these proceedings 
a number of family members and friends, but I must first, in 
addition to thanking God, thank the President for nominating 
me, thank the members of the Federal Judicial Nominating 
Commission in our State for sending my name to Senators 
Martinez and Nelson, thanking them for their support of my 
nomination, and then thank the Senate Judiciary Committee, 
thank Senator Leahy for scheduling this, and thank you all for 
your presence in affording us the opportunity to address you 
this afternoon.
    Traveling with me from Florida are my husband of 18 years, 
Major Gerald Honeywell.
    Senator Whitehouse. Welcome, Major. Glad to have you with 
us.
    Judge Honeywell. My 16-year-old son, Brenton Honeywell, my 
13-year-old daughter, Brianna Honeywell, and my mother, who is 
terrified of flying, but made the trip regardless.
    [Laughter.]
    Senator Whitehouse. Good for her. Good for her.
    Judge Honeywell. I also have some very dear friends who 
traveled with me from Florida: my good friend from law school, 
Willye Dent; a very dear friend, Bettye Johnson; two other very 
dear friends, Reverend Arthur T. Jones and Mrs. Doris Jones.
    I also have present with me this afternoon members of my 
sorority and college friends from Howard University, many of 
whom live in the Washington, DC area. I'd just ask if they 
would stand. I won't introduce them individually, but I do have 
a number of friends present from college here in support of me 
today.
    Senator Whitehouse. There seems to be a color theme.
    [Laughter.]
    Judge Honeywell. It is: red. That was our sorority color, 
red and white.
    [The biographical information of Charlene Honeywell 
follows.]




    Senator Whitehouse. Well, I'm delighted that your lovely 
family and your friends are here, and I thank them for joining 
us.
    The final member of our panel has not been introduced. She 
is not a candidate for a judgeship, but rather has been 
nominated to serve as Assistant Attorney General for the 
Environment and Natural Resources Division at the U.S. 
Department of Justice.
    I have served in that Department as a U.S. Attorney. I am 
keenly sensitive to what an important role she will play. I am 
delighted that Ignacia Moreno is here. She, too, is a veteran 
of the Justice Department, having served during the Clinton 
administration as Special Assistant, and then as Counsel and 
Principal Counsel to the Assistant Attorney General for the 
Environment and Natural Resources Division. So, this will be 
something of a homecoming.
    After serving at the Department of Justice, Ms. Moreno 
joined Spriggs & Hollingsworth in Washington, DC, where she 
became a partner, specializing in environmental and mass tort 
litigation, with an emphasis on science-based advocacy. She is 
currently counsel for corporate environmental programs at the 
General Electric Company and serves pro bono as general counsel 
to the Hispanic National Bar Association.
    We welcome Ms. Moreno and invite her to make any statement 
she cares, or any introductions she cares.

   STATEMENT OF IGNACIA S. MORENO, TO BE ASSISTANT ATTORNEY 
GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT 
                           OF JUSTICE

    Ms. Moreno. Thank you very much, Senator Whitehouse, for 
those kind remarks and the kind introduction. Thank you and 
Ranking Member Sessions for holding this hearing. I would also 
like to thank the President, as have my other panelists, for 
nominating me for this very important position. I am grateful 
to the President and to the Attorney General for their 
confidence in me.
    I'd like to briefly introduce my family who is with me 
today: my mother, Zenith Morena.
    Senator Whitehouse. Welcome.
    Ms. Moreno. Sisters, Patricia Moreno and Veronica Acosta; 
brother, Carlos Moreno; my niece and nephew, Francesca and 
Alexander Moreno; and it gives me special pleasure to introduce 
my husband and son, Robert and Nicholas Begotka. My father, 
Carlos Moreno, was unable to be here today, but is certainly 
with me in spirit. I wouldn't be here without my family's 
inspiration, their encouragement, and their support. In 
particular, I wish to thank my mother for her many and 
sustained sacrifices. She is my hero. Thank you again for the 
opportunity to appear before you, and I look forward to your 
questions.
    [The biographical information of Ignacia Moreno follows.]



    
    Senator Whitehouse. Thank you very much, and welcome.
    I would begin by asking each of the judicial nominees the 
same question that I asked Judge Greenaway, which is whether 
you are prepared, in embarking on these judicial duties, to 
respect the role of Congress as the representatives of the 
American people, to decide cases based on the law and the 
facts, to not prejudge any case, but listen to every party that 
comes before the court, to respect the precedent of law that 
has been established in your district, and to limit yourself to 
the issues that your court must decide.
    Are you prepared to undertake your duties under that set of 
strictures?
    Judge Lange. Mr. Chairman, my answer is, unequivocally, 
yes.
    Judge Berger. Mr. Chairman, my answer to all facets of your 
question is an unequivocal yes.
    Senator Whitehouse. Judge Honeywell?
    Judge Honeywell. And Mr. Chairman, I join with the other 
panelists. My response is also an unequivocal yes. I have 
endeavored to do that for the eight and a half years that I've 
already served as a judge in Florida, although not Congress as 
much as the Florida legislature. So, I absolutely agree and 
give you an unequivocal yes.
    Senator Whitehouse. I appreciate that.
    The other question I asked is also one that is important to 
me. There may very well come a time when the requirements of 
the law or the requirements of the Constitution, as you with 
your very best conscience and judgment read it to say, may very 
well cross either expectations or conventions of society. In 
those circumstances, can we be assured that you will follow the 
law and the Constitution, even if the consequences may be 
disruptive for settled interests?
    Judge Lange. My answer, Mr. Chairman, is yes. The 
Constitution is the supreme law of the land that must be 
followed, even if it is a difficult result.
    Judge Berger. I agree with Mr. Lange. In all instances, the 
Constitution and the law controls, given the particular factual 
scenario, without giving consideration to the other issues 
which might come to bear at the time.
    Senator Whitehouse. Thank you.
    Judge Honeywell. And Mr. Chairman, I, too, agree with the 
responses of my colleagues. I absolutely agree that the 
Constitution and the controlling law are to be followed by the 
judge in rendering decisions without giving attention to any 
other extraneous matters. It is my responsibility as a judicial 
officer to be faithful to the law.
    Senator Whitehouse. I thank you all.
    Ms. Moreno, you have been on both sides of the aisle, so to 
speak. You have served before in the Environment and Natural 
Resources Division and been an enforcer of our environmental 
laws. You have also represented the private sector in matters 
of compliance with those environmental laws. Can you assure me 
that you are prepared to pursue full and fair enforcement of 
our environmental laws, and elaborate a little bit on what your 
experience on the defense side has taught you that you would 
bring to your duties, should you be confirmed?
    Ms. Moreno. Thank you, Senator Whitehouse, for that 
question. I'm being advised to turn the mike on. Thank you, 
Senator.
    Senator Whitehouse. Always wise to obey a judge.
    [Laughter.]
    Ms. Moreno. Absolutely. Thank you, Senator, for giving me 
the opportunity to answer that question. I am--I can tell you, 
unequivocally, the answer is: yes, I will absolutely be a 
defender of the Nation's environmental law. I am fully 
committed to the core mission of the Environment and Natural 
Resources Division, which includes a strong enforcement of laws 
enacted by Congress to protect human health and the 
environment, and to ensure clean air, clean water, and clean 
land for all Americans. That core mission also includes the 
defense of the laws enacted by Congress in the defense of 
agency programs and actions, as well as stewardship 
responsibilities and mindful management of our trust 
obligations to Native American tribes.
    My experience in the Division will serve me well if I am 
confirmed to be Assistant Attorney General for the Environment 
Division. I both work on affirmative enforcement matters, on 
criminal prosecutions, as well as in defense of the Nation's 
laws and programs. My private sector experience will only serve 
to make me a more effective Assistant Attorney General, if I 
should be confirmed, because I have, as you said, seen how it 
all works on both sides and would be mindful of our 
obligations.
    Senator Whitehouse. Thank you very much.
    My time has expired and I call on our distinguished Ranking 
Member.
    Senator Sessions. Thank you. I will just ask one thing of 
all of you, which is it's pretty obvious to me, having spent a 
good number of years practicing before Federal judges, that 
it's a challenge and a difficult task and requires a lot of 
work.
    So I guess I would ask you, Mr. Lange, are you committed to 
managing your courtroom, to reaching--doing justice as best 
you're able, but also managing the courtroom, disposing of 
cases in a timely fashion and not causing unnecessary expense 
to the litigants?
    Judge Lange. I certainly am, Senator Sessions. I'm from a 
family farm background. I've worked very hard throughout my 
life and I intend to commit myself to diligent and timely 
handling of the cases that come before me in a fair and 
impartial manner.
    Senator Sessions. Thank you.
    And do you agree?
    Judge Berger. Yes, Senator, I absolutely agree. I think 
it's exactly what I've made an effort to do over the course of 
the last 15 years as a State court judge, to employ whatever 
tools necessary in keeping with trying to ensure that every 
party was heard fairly and equally to try to be responsive in a 
timely manner.
    Senator Sessions. Thank you.
    Judge Honeywell.
    Judge Honeywell. Yes, Senator Sessions. I, too, agree. I 
first learned a little bit about managing a heavy caseload as 
an assistant public defender. That experience has kept me well 
in my experience now as a State court judge, where I preside 
over a docket of approximately 4,300 cases.
    Senator Sessions. Well, I think it is important. I hear, on 
occasion, lawyers and litigants complain about unnecessary 
delays. It can be very costly to them in terms of lawyers and 
business decisions that are in limbo, and that kind of thing.
    Mr. Lange, I like the fact that you're an active 
practitioner in your State for a number of years, and I like 
the fact that you've been active politically. I think that's a 
good thing. You've been active in a number of campaigns for 
Democratic nominees, as the Governor's race, Senator Daschle 
and Senator Johnson, both of which are honorable things to do.
    Are you confident that you can make the transition to a 
judge who puts aside those political views and can decide the 
case objectively, even though the person before you might be of 
a different political party?
    Judge Lange. Certainly, Senator Sessions. Many of my 
friends are of a different political party; I'm from South 
Dakota, after all.
    [Laughter.]
    Judge Lange. Many of my partners are from a different 
political party. I have no question about my ability to treat 
people fairly, regardless of what background they come from or 
what their political affiliation may be. My role in those 
campaigns was to make sure that the candidate was well-
represented and the campaign laws were followed, and those 
proved to be campaigns that went fairly smoothly in terms of no 
great issues arising. That's the way it should be. Elections 
should be fair and square. That was what my responsibility, I 
felt, was in those settings.
    Senator Sessions. Well, I remember when President Bush 
chose Ted Olson to be his Solicitor General and some were 
unhappy because he had defended him in Florida. But I figured 
that proved that he thought highly of him, if he chose to 
defend him out of the whole--of all the lawyers in the United 
States of America, he told Ted Olson to be the one that 
defended his campaign.
    So, no. I think that's very true. I believe, particularly 
in smaller States where you deal on a regular basis with judges 
of different parties, you've practiced before them with lawyers 
of different political views, I think you can move past that. 
Some people can't, but most people who have actually been good 
practicing lawyers have no difficulty in that.
    Let's see. Judge Berger, 3 years ago, in a speech to the 
Legal Services Corporation in Charleston, West Virginia, you 
closed with the following quote from a former Canadian Attorney 
General: ``Substantive and procedural law benefits and protects 
landlords over tenants, creditors over debtors, lenders over 
borrowers, and the poor are seldom among the favored parties.'' 
Now, I think those were remarks made some 40 years ago by a 
Canadian.
    The oath that you take says that you will do equal justice 
to the poor and the rich alike. Are you committed to that oath, 
and does this suggest that you feel that contracts and 
mortgages shouldn't be enforced as written? Would that not 
impact the willingness of, let's say, a bank to loan somebody 
$100,000 to pay it back over 30 years at 6 percent if they felt 
like the terms of the contract wouldn't be honored if the 
borrower got into default?
    Judge Berger. Thank you, Senator, for an opportunity to 
clarify that comment. First of all, I want to say very strongly 
that I will, if confirmed, ensure that all parties are treated 
fairly and equally. They will be heard equally, be they rich or 
be they poor. In making that speech and quoting that, I simply 
wanted to impress upon the Legal Services Board that there was 
work to do in terms of equaling, from their perspective, the 
playing field among various constituencies.
    As a judge in a courtroom, I do not have that luxury. I 
think the Legal Services Board, however, does have the luxury 
for working to trying to see that people have access to the 
courts, and that was my intention in adding that to that 
particular speech.
    Senator Sessions. I think there is a danger that poor 
people with less education have difficulties understanding the 
full ramifications of a contract. But I do believe that the 
entire economic system and the ability of a poor person to get 
a loan could be reduced if the fundamental principles of the 
contract are not enforced.
    With regard to sentencing, you made a comment in 2000 that 
you never knew prison to improve a person, and that in 
borderline cases you would prefer 2 or 3 years probation. As 
you know, the sentencing guidelines in Federal court are pretty 
restrictive on a judge. State judges often chafe at that narrow 
window of ability to sentence. People who have gone straight on 
the Federal bench, I don't think, have any trouble. They find 
it pretty--somewhat relieving to be able to say, well, this 
objective panel has said this is the kind of range I should 
utilize when I sentence. But a judge who allows their personal 
views to impact sentencing can cause quite a bit of turmoil, 
appeals, and uncertainty in the system.
    So I guess I would ask you, are you generally familiar with 
the requirements of the sentencing guideline, and are you 
willing to follow them even if that would not be your choice 
for an appropriate sentence in a case?
    Judge Berger. Thank you, Senator. The answer to your 
question is yes. I am familiar with the sentencing guidelines. 
I would agree with you that oftentimes in State court there is 
discretion that is not presented by the operation of those 
sentencing guidelines. There are also, however, in State court, 
some mandatory sentences where judges don't have any leeway and 
I have, over the course of the 15 years that I have sat as a 
State court judge, applied those when it was appropriate. If 
confirmed by this body, I will continue to do that. I see it no 
differently than applying the law in any other area, which I am 
very committed to do, if confirmed.
    Senator Sessions. Thank you. It's a remarkable thing, what 
the Federal Government did with regard to the sentencing 
guidelines.
    Judge Honeywell, a number of years ago you were 
representing the City of Ft. Lauderdale. St. Petersburg. No, 
Ft. Lauderdale.
    Judge Honeywell. Tampa. city of Tampa.
    Senator Sessions. Tampa. OK. A Ft. Lauderdale gun show--
reported in the St. Petersburg Times about Tampa. I guess 
that's right, Tampa. They had banned gun show sales. You were 
the attorney for the city, correct?
    Judge Honeywell. That's correct. I was, Senator.
    Senator Sessions. Which is your duty to defend the city's 
statutes.
    Judge Honeywell. Absolutely.
    Senator Sessions. And you stated, ``Our position is that if 
speech is involved it's commercial speech, which is not 
entitled to the same protection under the law as political 
speech.'' I guess, have you had any thoughts about that 
statement in light of more recent Supreme Court authority, and 
even the Heller case in the District of Columbia?
    Judge Honeywell. Thank you, Senator. I have not had any 
additional thought with regard to that statement because that 
statement occurred, gosh, over 12 years ago. I can assure you 
that as a judge, though, I would be required to, and absolutely 
would, follow the law of our land. So as the law has changed 
and evolved since that statement was made, I, as a judge, would 
follow that law based upon precedent and the doctrine of stare 
decisis.
    Senator Sessions. I think there has been some recognition 
that there's not much difference between commercial speech and 
personal speech, but at one time there was some case authority 
that went along that way.
    Likewise, on the sentencing guidelines, are you committed 
to following those?
    Judge Honeywell. I am committed to following the sentencing 
guidelines. I believe that establishing the guidelines is the 
role of Congress. It would be my job, if confirmed by this 
body, to apply that law to the facts of the cases before me, 
but Congress certainly has the authority and has acted by 
establishing the sentencing guidelines. I am also familiar with 
the sentencing guidelines because in Florida we do have 
sentencing guidelines, too.
    Senator Sessions. I think it was a major step that the 
Congress took before I came here. I think Senator Kennedy and 
Senator Thurmond both supported it and it brought some 
objectivity to sentencing. We had this spectacle in the same 
courthouse, two people being convicted of the same crime, and 
one judge giving probation and another 20 years, and it was 
difficult to justify that. So it does bring some consistency 
and gives you a range within which to sentence. But people who 
are not that familiar with guidelines often feel some of our 
State judges who become Federal judges get anxious about it, 
I'll just say it that way. They're used to doing it the way 
they've done it.
    Ms. Moreno, yours is an important position. You've had a 
position with an environmental group, the Environment and 
Natural Resources Division, before. They have to take some 
tough cases. Some of them are quite technical. Some of them 
have been criticized as being unnecessary, unnecessary 
enforcement actions that don't make sense. But the Department 
has been proud of its strict enforcement of the law, which I 
don't disagree with.
    So I guess, you've been in the Department, you've been in 
the private sector. Do you think you can enforce the law fairly 
and adequately based on the law and the facts as you make the 
final decision on what cases to bring and recommend for 
prosecution?
    Ms. Moreno. Absolutely, Senator. You have my commitment to 
that.
    Senator Sessions. Well, I think there's nothing wrong with 
you having been with a major corporation and you have the other 
side experience, too, in the Department. So, I thank you.
    Mr. Chairman, each one of these nominees has strong support 
and we'll be continuing to look at their records, but I'm 
impressed with them.
    Senator Whitehouse. I thank the very distinguished Ranking 
Member.
    I want to thank all of you for your presence here today. 
This is a very distinguished panel. Each one of you is an 
extraordinarily accomplished individual. The process that has 
led to today of FBI background checks and innumerable forms to 
fill out, and so forth, has been--I know from firsthand 
experience--a long ordeal, but it is essentially concluded at 
this point. I think you have both of our hopes for a speedy and 
uneventful confirmation.
    But as you think back on this day, I want you to be aware 
that both the Ranking Member and I are aware that you bring 
extraordinary life experience, talent, and dedication to this 
day. Two of you bring substantial judicial experience as well, 
Judge Berger and Judge Honeywell. You bring before us the 
confidence of your communities, you bring before us the 
confidence of your home State Senators, and you carry with you 
the confidence of the President of the United States of America 
that you will do well as you assume the responsibilities that, 
upon confirmation, will be yours.
    You are embarking, each of you, in somewhat different ways 
on a career of public service that will entail a lot of hard 
work, a lot of late hours. Nothing particularly great in the 
way of pay, but a lot of great moments, a lot of great 
opportunities, and the greatest opportunity of all, which is to 
serve your country, the United States of America.
    So I salute you on being here today. I hope that you and 
your families enjoy this day and I wish you godspeed.
    Do you have anything else you'd like to add?
    Senator Sessions. Just briefly.
    Congratulations to each of you for your nomination. I'm 
happy for you and your families. This should, indeed, be a 
special occasion. I may submit some questions for the record 
that I hope that you would respond to. I know you understand 
fully that a Federal judge is given a lifetime appointment. 
Even though the salary may not be the greatest compared to what 
some private lawyers make, you don't have to worry about 
maintaining your position in the law firm and you don't have to 
keep a time sheet.
    So, it's a fabulous job and most judges that I've known 
have thoroughly enjoyed it. It's a great honor that you've been 
given to be nominated and I expect things should go forward in 
a timely manner. I don't believe that any of you need to be 
held up based on what I know at this time. So, we'd like to see 
you get your vote as soon as reasonably possible.
    Senator Whitehouse. I thank the Ranking Member very much 
for that. We have already, without objection, put my complete 
opening statement into the record. We have already, without 
objection, put the remarks by Senator Robert C. Byrd in favor 
of the nomination of Judge Berger, at the request of Senator 
Rockefeller, into the record.
    I would also ask unanimous consent that the statement of 
the distinguished Chairman of the Senate Judiciary, Patrick 
Leahy, be added to the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Whitehouse. The full statement of Ignacia Moreno. I 
appreciate very much that she shortened her statement, but we 
would like to have her full statement be a matter of record in 
these proceedings.
    [The prepared statement of Ms. Moreno appears as a 
submission for the record.]
    Senator Whitehouse. And finally, we have a file folder full 
of letters of support for Ms. Moreno from a great number of 
people. I will not read them all off, but they include: Lois 
Schiffer, who was a previous occupant of that position; Steven 
Solau, who's the former Chief of the Environment Crimes section 
at the NRD; and the Center for International and Environmental 
Law; OCEANA, Protecting the World's Oceans; the Hispanic 
National Bar Association; the National Hispanic Leadership 
Agenda; the National Council of La Raza; the current and past 
chairs of the American Bar Association, Section of Environment, 
Energy and Resources; and I promised I would not read them all 
so I will not.
    [Laughter.]
    Senator Whitehouse. But there is a hefty file of support. 
Without objection, they will be made a part of the record.
    [The letters appear as a submission for the record.]
    Senator Whitehouse. As I said earlier, the hearing will 
remain open for an additional week for the responses and for 
any other materials that anybody should seek to add to the 
record, and then we will proceed through the remainder of the 
nomination process. But I wish you all well. I congratulate you 
on the achievements that have brought you here today.
    The hearing is adjourned.
    [Whereupon, at 3:55 p.m. the Committee was adjourned.]
    [Questions and answers and submission for the record 
follow.]




NOMINATION OF JACQUELINE H. NGUYEN, OF CALIFORNIA, TO BE DISTRICT JUDGE 
    FOR THE CENTRAL DISTRICT OF CALIFORNIA; EDWARD MILTON CHEN, OF 
     CALIFORNIA, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 
 CALIFORNIA; DOLLY M. GEE, OF CALIFORNIA, TO BE DISTRICT JUDGE FOR THE 
CENTRAL DISTRICT OF CALIFORNIA; AND RICHARD SEEBORG, OF CALIFORNIA, TO 
       BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

                              ----------                              


                     WEDNESDAY, SEPTEMBER 23, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 2:34 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Al Franken, 
presiding.
    Present: Senators Franken, Feinstein, and Sessions.

 OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE 
                       STATE OF MINNESOTA

    Senator Franken. Good afternoon. The hearing will come to 
order.
    I want to welcome everyone to today's hearing of the Senate 
Judiciary Committee. Today we will hear from four nominees. All 
four nominees are for the Federal district courts in 
California, so I would like to extend a special welcome to my 
distinguished colleague Senator Boxer, who I believe will be 
here in just a few moments to introduce each of our nominees, 
and perhaps Senator Feinstein will also be able to make it. 
Unfortunately, she is on the floor right now managing the 
interior appropriations bill, and if she cannot make it, she 
sends her apologies.
    The nominees being considered are: California Superior 
Court Judge Jacqueline Nguyen to sit on the U.S. District Court 
in Los Angeles; U.S. Magistrate Judge Edward Chen to sit on the 
U.S. District Court in San Francisco; Dolly Gee to sit on the 
U.S. District Court in Los Angeles; and U.S. Magistrate Judge 
Richard Seeborg to sit on the U.S. District Court in San 
Francisco.

    Although I have only been here a short time--there is 
Senator Boxer. Welcome.
    Senator Boxer. Thank you.
    Senator Franken. Although I have only been here a short 
time, I was able to participate in the historic nomination of 
the first Latina appointed to the Supreme Court. Today's 
hearing is also a historic one both for the Federal courts and 
for the Asian American Community. As the Congressional Asian-
Pacific American Caucus recently pointed out in a letter to the 
Committee, Asian Americans and Pacific Islanders are among the 
fastest-growing racial groups in the United States. Yet of the 
Nation's 875 active Article III judges, only eight are Asian 
American or Pacific Islander. Should today's nominees be 
confirmed, that number would rise to 11.
    In addition, we would be confirming the first Asian 
American judge ever to sit on the U.S. District Court for the 
Northern District of California, which includes San Francisco 
and the Bay Area, the first Vietnamese American woman to serve 
as a U.S. district judge and the first Chinese American to sit 
as a U.S. district judge. So this is an important hearing, and 
I want to thank representatives from the National Asian and 
Pacific American Bar Association, the Asian Pacific Bar of 
California, and the Asian American Justice Center for being in 
attendance today.
    I would also like to briefly point out something about two 
of the nominees today. Both Judge Seeborg and Judge Nguyen have 
experience in prosecuting cases of fraud--in particular, Ponzi 
schemes. These corrupt business practices have recently come to 
light across the country. Unfortunately, in my home State of 
Minnesota, with the case of Tom Petters and his alleged $3.5 
billion scheme, it is extremely important that we have judges 
equipped with the financial experience to handle these cases, 
and I look forward to hearing from both of them on their 
experience with these cases.
    In closing, I would like to outline how the hearing will 
proceed. After the Ranking Member Senator Sessions makes his 
introductory remarks, the Senator from California, Senator 
Boxer, will introduce the nominees and I believe also will 
Senator Feinstein, who is now here sitting to my left. And then 
each Senator on the Committee will have a 5-minute round with 
the panel.
    Now I will turn it over to my distinguished Ranking Member 
Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman, and I think we 
should note the meteoric rise you have achieved here.
    [Laughter.]
    Senator Franken. Thank you.
    Senator Sessions. It gives new meaning to the words 
``meteoric rise.'' Thank you. You are an active, participating 
member of this Committee, and I hope you enjoy it. And I think 
you are from our conversations.
    We welcome these nominees and look forward to hearing 
from--I see Senator Boxer. I know she is ready to talk. Each 
has an impressive resume and fine credentials, and I look 
forward to participating in the discussion.
    Senator Franken. Thank you, Senator Sessions.
    Senator Feinstein, would you like me to go to Senator 
Boxer.
    Senator Feinstein. Yes, please.
    Senator Franken. Senator Boxer, I would like to welcome you 
again.
    Senator Boxer. I think it would be wonderful if Senator 
Feinstein went first. She has so many more to introduce, and I 
would defer to her since she is on the Committee. And, by the 
way, I just want to say thanks for her hard work on the floor.
    Senator Franken. Well, in that case, since I am the 
Chairman, I will make the decision. Let me see.
    [Laughter.]
    Well, I will defer to Senator Boxer's judgment and 
recognize Senator Feinstein.

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

    Senator Feinstein. Thank you very much, Mr. Chairman, and 
to my colleague, I would only say so far, so good down on the 
floor. But thank you very much, and thank you for being here.
    I would like to begin by introducing Judge Jacqueline 
Nguyen. She has been a judge of the California Superior Court 
in Los Angeles County since 2002 when she was appointed by 
Governor Gray Davis. Before becoming a judge, she served as a 
Federal prosecutor in the Los Angeles United States Attorney's 
Office for 7 years. She began in the Public Corruption and 
Government Fraud Section and was promoted to be Deputy Chief 
for General Crime in 2000.
    During her time as a prosecutor, Judge Nguyen led a 2-3 
year undercover investigation into the filing of false 
applications for United States visas. In this case, Judge 
Nguyen secured the first ever conviction of a defendant for 
providing material support to a designated foreign terrorist 
group.
    Judge Nguyen also handled an important wiretap 
investigation of a Russian organized crime group that was 
smuggling sex slaves into the United States from the Ukraine. 
She received an impressive list of accolades for her work as a 
prosecutor. In 2002, she was awarded the Director's Award for 
Superior Performance as an Assistant U.S. Attorney. In 2000, 
she received a special commendation from FBI Director Louis 
Freeh for her work on the material support of terrorism case. 
And in 1996 and 1997, she received two commendations for 
sustained superior performance as an Assistant U.S. Attorney. 
Judge Nguyen has also experienced working 2 years on commercial 
cases at a private law firm.
    I want to mention one other thing. Judge Nguyen's personal 
story is one that to me, and I believe to Senator Boxer, really 
shows how fortunate we all are to live in the United States. 
Judge Nguyen and her family came to California in 1975 from 
South Vietnam. They lived initially at Camp Pendleton before 
moving to Los Angeles where her parents worked in and later 
owned a series of doughnut shops. Judge Nguyen helped her 
parents in their shop during her high school years, and she 
continued working with them while she went on to graduate from 
Occidental College and the University of California Los Angeles 
School of Law.
    Judge Nguyen will be the first Vietnamese American woman to 
serve as a United States district judge. My selection Committee 
in California highly recommended Judge Nguyen to me for the 
district court, and I was proud to recommend her to the 
President. She has been rated well qualified by the American 
Bar Association.
    So I would just like to recognize that and say how welcome 
she is here today.
    Senator Franken. Thank you, Senator Feinstein.
    Senator Boxer.

PRESENTATION OF DOLLY M. GEE, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. BARBARA BOXER, A 
       UNITED STATES SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Mr. Chairman, thank you so much. I am 
honored to be here today to introduce Dolly Gee and welcome all 
of our California nominees and their families, and I want to 
add my congratulations to them all. Each of them comes to you 
so well qualified and well suited for the responsibilities that 
we hope they will take on.
    Senator Feinstein and I share the responsibility in 
California for providing advice and consent to the President on 
judicial nominations. I am very proud of the way we do it. Our 
bipartisan judicial advisory committees have vetted all of 
these nominees, and they have given them their highest 
recommendation. We are united in our admiration for the 
nominees, all of whom are respected by their colleagues in the 
California legal community, and they will all make outstanding 
additions to the Federal bench.
    I do want to say a few words about the nominee whom I had 
the pleasure of recommending to the President, Dolly Gee. And, 
Dolly, would you stand, please?
    Dolly is the daughter of parents who came to the United 
States from a small farming village in southern China. Her 
father was a World War II veteran, and he worked as an 
aerospace engineer on projects such as the Space Shuttle and 
the Apollo mission. Dolly's mother, who is with us today--and I 
would ask, Mr. Chairman, if it is OK with you and Senator 
Sessions, if I may ask her to stand, Dolly's mother. Is that 
all right?
    Senator Franken. Absolutely.
    Senator Boxer. Where is she? She will just show you who she 
is.
    Senator Franken. Welcome.
    Senator Boxer. And she was a garment worker who never 
taught Dolly to sew because she did not want her daughter to 
have to stitch clothes for a living. And this touches us all, I 
think. Her mom's experience as a seamstress helped inspire 
Dolly to pursue a career in employment law, to seek equal and 
fair treatment for workers.
    Dolly graduated summa cum laude from UCLA in 1981, and then 
she received her law degree from the same university in 1984. 
After a Federal clerkship in the Eastern District of 
California, she began her career in private practice at the 
firm of Schwartz & Steinsapir in Los Angeles. In 1994, 
President Clinton appointed Dolly to a 5-year term on the 
Federal Service Impasses Panel, acting as a mediator and 
arbitrator in hundreds of disputes between Federal agencies and 
the workers. She has also served as an arbitrator for Kaiser 
Permanente, helping to resolve medical and contract claims.
    In these roles--and I think this is so important--she has 
learned to listen to all sides and dispassionately apply the 
law to the facts, skills that are so essential as a judge.
    Dolly has been widely praised for her work promoting racial 
tolerance in Los Angeles by building diverse coalitions among 
various bar associations. She is a co-founder of the Asian 
Pacific American Bar Association of Los Angeles county and the 
Multicultural Bar Alliance and served as president of the 
Southern California Chinese Lawyers Association.
    As with Ms. Nguyen, Dolly's nomination is historic. If 
confirmed, she would be the very first Chinese American woman 
in U.S. history to serve as a Federal district court judge. Her 
nomination is a source of pride to so many people, not just to 
her family--to her Mom, who is here today, and to the Asian 
American Community--but to everyone who believes that our 
Federal courts should reflect the diversity of this, the 
greatest country in the world.
    And I have to say it is such an extraordinary moment, and I 
would say to our Chairman, Senator Franken, it is a great day 
to be sitting in that chair because here is who is making 
history today. We heard of the two women. If confirmed, Judge 
Edward Chen, a respected former civil rights lawyer and the 
first Asian American magistrate judge in the Northern District, 
would take another historic step as the first ever Asian 
American district court judge for the Northern District.
    So we have all of this making history today, and here is 
the important thing. Senator Feinstein and I have one direction 
to our committees: Send us the best. That is all we want. Send 
us the best. It is not partisan. I, frankly, have never known 
one person that I have recommended. It just so happens I never 
have known them personally. They have come through this 
wonderful system that we have created here. And so, clearly, I 
am very proud today. And I am so hopeful that the Committee 
will act to confirm these nominees quickly.
    Federal judges across the country, and particularly in 
California, are carrying a large caseload, backlogs, due to the 
fact that we have not updated the number of Federal judgeships 
in 20 years. And I know Senator Feinstein has been working long 
and hard on this. One of our districts, the Eastern District of 
California, carries the highest number of case filings per 
judge in this country, an astounding 1,106 per judge. And I say 
to Senator Sessions, who knows what that kind of a caseload is, 
this is quite an extraordinary number of cases to be carrying-
1,106 in the Eastern District of California. And two more 
districts, I say to my friends, the Central and the Northern 
Districts, are also among the top ten in the country in terms 
of these caseloads.
    Our courts need help now. This is a momentous day, and I am 
very happy to be with you, and I am looking forward to your 
swift action. And thank you very much for your allowing me to 
speak today.
    Senator Franken. Thank you, Senator.
    Senator Feinstein, would you also introduce Judge Chen and 
Judge Seeborg.
    Senator Feinstein. I would be happy to, and let me thank my 
friend and colleague for being here, and let me also thank you 
for bringing to the attention of both Senator Franken and 
Ranking Member of the Judiciary Committee, Senator Sessions, 
the fact that we are really under-judged in California, and 
particularly in the Eastern District. So I very much appreciate 
your comments. Thank you.
    I would like to now introduce Judge Edward Chen. Judge, 
would you stand, please? Right there. And, Judge Nguyen, would 
you stand, please? I did not do that. Thank you very much.
    Judge Chen has served as a United States magistrate judge 
in the Northern District of California for the last 8 years. He 
was appointed to that position by a merit-based selection 
Committee and was recently reappointed to serve a second 8-year 
term after a thorough review of his work, detailed confidential 
feedback from litigants, and insights from district judges.
    Before he was appointed to the Federal magistrate bench, 
Judge Chen worked as a staff attorney at the American Civil 
Liberties Union Foundation of Northern California and as a 
litigation associate at the law firm of Coblentz, Cahen, McCabe 
& Breyer. Judge Chen was part of the legal team that 
successfully represented Fred Korematsu in a suit to have his 
conviction removed for failing to report to an internment camp 
during World War II. Judge Chen worked as a law clerk to United 
States District Judge Charles Renfrew and to Judge James R. 
Browning on the United States Court of Appeals for the Ninth 
Circuit, and he is an Order of the Coif graduate of the 
University of California-Berkeley Boalt School of Law.
    Judge Chen has served as a master of the Edward J. 
McFetridge American Inn of Court, which is a new association 
for me, and as Chair of the Federal Courts Committee of the 
California Commission on Access to Justice and as an appointee 
to various Ninth Circuit committees. In 2007, he was named the 
Judge of the Year by the Barristers Club of San Francisco.
    Judge Chen was unanimously recommended to me by my 
bipartisan selection Committee in California, and I recommended 
him to the President. He has been rated well qualified by the 
American Bar Association. Judge Chen was the first Asian 
American appointed to be a magistrate judge in Northern 
California, and as has been said about others, he would be the 
first to sit--Asian male, that is, to sit as a United States 
district judge in the district, if confirmed.
    I would also like to introduce Judge Richard Seeborg. Would 
you stand, please? Thank you very much. Like Judge Chen, Judge 
Seeborg has been a United States magistrate judge in the 
Northern District of California since 2001. He was recently 
reappointed to a second term after a lengthy review process. He 
sits in San Jose, California, where he has presided over many 
intellectual property cases coming out of Silicon Valley. He 
has a special expertise in this area and has made speeches in 
places as far away as Chile and India about intellectual 
property rights enforcement.
    Before stepping onto the Federal bench, Judge Seeborg 
worked as a Federal prosecutor and as a partner at a private 
law firm. From 1991 to 1998, he prosecuted white-collar crime 
cases as Assistant U.S. Attorney in San Jose. He brought 
charges of wire fraud, high-tech crime, tax evasion, and money 
laundering, and he was co-lead counsel in a case involving 
money swindling by a mortgage loan company. He also 
successfully prosecuted a manufacturer of GPS devices for 
exporting goods from the UAE to Iran without a valid customs 
license.
    For 12 years, Judge Seeborg litigated complex civil cases 
as an associate and then a partner at the law firm of Morrison 
and Foerster. His work at the law firm gave him experience 
ranging from contract law to intellectual property law to 
antitrust. He is a summa cum laude graduate of Yale and a 
Harlan Fiske Stone Scholar at Columbia University School of 
Law. He was also unanimously recommended to me by my judicial 
screening Committee in California, and I have subsequently 
recommended him to the President, and he finds himself here 
today.
    So welcome, Judge Seeborg, and thank you very much, Mr. 
Chairman.
    Senator Franken. Thank you, Senator Feinstein, and thank 
you coming from the floor where I know you are busy managing 
the interior appropriations bill.
    Now I would like all the nominees to please stand and take 
the oath. Raise your right hand. Do you confirm that the 
testimony you are about to give the Committee will be the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    Judge Nguyen. I do.
    Judge Chen. I do.
    Ms. Gee. I do.
    Judge Seeborg. I do.
    Senator Franken. Well, thank you and please be seated.
    Judge Nguyen--do I have the pronunciation right? Because I 
said ``Noo-in.''
    Judge Nguyen. I pronounce it ``nwin.'' Thank you, Mr. 
Chairman.
    Senator Franken. Sorry. You are now free to give any 
opening remarks and also to introduce any family members who 
might be here today.

 STATEMENT OF HON. JACQUELINE H. NGUYEN, TO BE DISTRICT JUDGE 
             FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Judge Nguyen. Thank you, Mr. Chairman. It is my honor and 
privilege to appear before you this afternoon. I would like to 
thank President Obama for nominating me. I would like to thank 
Senator Feinstein for recommending me and for that very kind 
introduction, and Senator Boxer for her support as well. I 
thank you, Mr. Chairman, for presiding over the hearing today 
and Senator Leahy for scheduling this hearing. I also would 
like to thank the Ranking Member, Senator Sessions, and the 
other Committee members as well.
    I am very proud to introduce my family members who are 
present to support me this afternoon: my husband, Pio Kim; my 
children, 10-year-old Nolan and 7-year-old Avery; my mother-in-
law, Hyo Soon Kim; and my mother, Hoa Nguyen. I also have other 
supporters----
    Senator Franken. I would just like to say welcome to your 
family.
    Judge Nguyen. Thank you. I have other supporters present, 
and I would like to acknowledge and thank them as well.
    At home, I have many, many family members and friends 
watching the live webcast, and I want to acknowledge them and, 
in particular, acknowledge my father-in-law, Mr. Suh Chang Kim, 
and my other father, Binh Nguyen.
    Thank you, Mr. Chairman.
    [The prepared statement of Judge Nguyen appears as a 
submission for the record.]
    [The biographical information of Judge Nguyen follows.]



    
    Senator Franken. Absolutely. Thank you.
    Judge Chen, please make an opening statement, if you would 
like, and also introduce your family members who are here.

STATEMENT OF HON. EDWARD MILTON CHEN, TO BE DISTRICT JUDGE FOR 
              THE NORTHERN DISTRICT OF CALIFORNIA

    Judge Chen. Thank you, Mr. Chairman. I do not have a formal 
opening statement, but I, too, would join in thanking, first of 
all, both of my home-State Senators, Senator Feinstein and 
Senator Boxer, for their support and kind words, and 
particularly Senator Feinstein for making the recommendation to 
the President. And, of course, I want to thank President Obama 
for placing his trust and confidence in me in making that 
nomination, and to you, Mr. Chairman, in chairing this meeting 
and to Ranking Member Sessions for participating in today's 
session. So thank you very much.
    I am joined by a portion of my family today. With me from 
California is my wife of 29 years, Janet; my daughter of 18 
years, Tara; my brother-in-law, Laurence Lee; my aunt and uncle 
who have traveled all this way to be with me, Robert and Ellen 
Wong. And I am especially proud and privileged to have with me 
my staff who decided to come here, knowing that I am completely 
useless without them, so they decided to support me, and I 
appreciate that: Leni Doyle, my judicial secretary; Betty Lee, 
my courtroom deputy; and Shao-Bai Wu, my law clerk.
    And if I may, I just want to say a brief word about three 
people who are not here today.
    Senator Franken. Well, I want to welcome your family, and I 
know exactly how you feel about your staff.
    [Laughter.]
    Judge Chen. Thank you. I want to mention my son, Luke, who, 
because of his special needs, is not able to make the cross-
country trip. But he is here in spirit, and I want to state for 
the record that today is his birthday, and so I want to----
    Senator Franken. Happy birthday, Luke.
    Judge Chen. Thank you. And I also finally would like to pay 
tribute to my parents. My father came to this country in the 
1920's on a visa with nothing more than $20 in his pocket and a 
suitcase full of consigned goods, looking to pursue the 
American dream. My mother came in 1939 from war-torn China to 
be reunited with her family in San Antonio, Texas, from whom 
she had been separated for nearly 20 years. My father worked 
very hard to provide financial security for my family, and when 
he became ill and passed away when I was very young, my mother 
was tasked with the burden of raising four boys and running the 
family business. And although neither of them lived to see this 
day, their courage, their perseverance, their dedication to 
family, and commitment to the community resides with me and 
continues to inspire me.
    Thank you, Mr. Chairman.
    [The prepared statement of Judge Chen appears as a 
submission for the record.]
    [The biographical information of Judge Chen follows.]



    Senator Franken. Thank you, Judge Chen.
    Ms. Gee, we have met your Mom, but I want to say welcome 
once again and thank you for coming. And any opening statements 
you would like to make, please, now would be a good time.

STATEMENT OF DOLLY M. GEE, TO BE DISTRICT JUDGE FOR THE CENTRAL 
                     DISTRICT OF CALIFORNIA

    Ms. Gee. Thank you, Chairman Franken. I would like to thank 
President Obama for nominating me to the Central District court 
bench. I would also like to thank Senators Feinstein and Boxer 
for their support, and Senator Boxer for her kind and gracious 
introduction. I would also like to thank you, Chairman Franken, 
and Ranking Member Sessions and all of the other members of the 
Judiciary Committee for considering my application.
    At this time, I would like to introduce once again my 
mother, Helen Gee, who I am blessed to have here with me to 
experience this occasion.
    Senator Franken. Welcome.
    Ms. Gee. And I also would like to introduce other people 
who have come to support me at this hearing from afar: my 
cousin, Lily Lee; three friends of mine who are like sisters to 
me: Margo Feinberg, a partner of mine in my law firm; Kathryn 
Hirano, from Los Angeles; and Betty Bolden.
    Senator Franken. Welcome to you all.
    Ms. Gee. If I may, I would like to also acknowledge some 
people who would like to have been here but could not be here: 
my husband, Albert Wong, who is watching the live webcast; as 
well as my brother Kelvin and my sister-in-law Kay; and all of 
my nieces and nephews; and members of my law firm who are also 
watching.
    [The prepared statement of Ms. Gee appears as a submission 
for the record.]
    [The biographical information of Ms. Gee follows.]



    
    Senator Franken. Thank you, Ms. Gee.
    Judge Seeborg.

STATEMENT OF HON. RICHARD SEEBORG, TO BE DISTRICT JUDGE FOR THE 
                NORTHERN DISTRICT OF CALIFORNIA

    Judge Seeborg. Thank you very much, Mr. Chairman. I also 
will forego an opening statement, but would like to join in 
some of the thank-you's.
    First of all, I would very much like to thank my home-State 
Senators, Senator Feinstein and Senator Boxer, and also thank 
Senator Feinstein for her very kind words, which I appreciate 
very much.
    I would like to express my profound gratitude to President 
Obama for nominating me to this position of very high public 
trust.
    I would like to thank you, Mr. Chairman, for presiding 
today and Senator Sessions also for participating in the 
hearings and all the members of the Judiciary Committee.
    I would like to acknowledge, as have some of my co-
nominees, some people who are not here: my parents, Ken and 
Jane Seeborg, and my grandparents, Ken and Vivian Sartori. All 
of them would so much have enjoyed being here, but they are 
with me in spirit.
    I would like to introduce some people who have come with me 
today, several former colleagues and wonderful friends from my 
days in the U.S. Attorney's Office: Marcia Jensen, Leo 
Cunningham, and their daughter, Alexandra, who is a freshman at 
GW here in Washington. I would also like to introduce my 
college roommate who has come down from Boston, Jonathan 
Kaufman, and his son, Nick Kaufman.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Judge Seeborg appears as a 
submission for the record.]
    [The biographical information of Judge Seeborg follows.]



    
    Senator Franken. Welcome to you all. We will start the 
questioning now, and I guess I get to start.
    Judge Nguyen, we got to confirm Judge Sotomayor, the first 
Latina Justice of the Supreme Court, and now you are going to 
be the first Vietnamese American woman to be a Federal district 
court judge in the United States, if confirmed. How has this 
experience affected you, being a first? And how does--or has it 
affected your judging? And if so, how has it?
    Judge Nguyen. When I was fortunate enough to be appointed 
to the State court bench by Governor Gray Davis, I was the 
first Vietnamese American judge ever appointed to that 
position, and being a first of anything is both a privilege, 
but also carries with it certain responsibilities. And I take 
that responsibility very seriously.
    I know and appreciate the fact that I am a role model for 
so many people, not only from the Vietnamese American community 
but also from other communities as well. And in my years as a 
State court judge, I have done what I could in order to mentor 
and guide young people who look to me for guidance and career 
advice and encourage them to participate in the community and 
to try to give back to the community.
    But the process of judging does not change merely by my 
ethnicity. The law remains the same, and my task as a judge is 
to apply the law to the facts of each case.
    Senator Franken. Thank you.
    Judge Chen, I see that you are part of the pro bono team 
that successfully represented Fred Korematsu in his effort to 
overturn his conviction for failing to report to an internment 
camp. Can you tell us more? It seems like a fascinating case. 
Can you tell us more about the case?
    Judge Chen. Yes. Well, as you probably know, 110 Japanese 
Americans were interned during World War II out of fear that 
they would commit sabotage or espionage along the West Coast, 
and they were evacuated pursuant to military orders.
    The Supreme Court ultimately upheld in a series of cases 
both the curfew that was imposed on Japanese Americans as well 
as their ultimate internment, even though two-thirds of those 
were American citizens and included children, women, and the 
elderly, none of whom were ever accused of disloyalty, none of 
whom ever were given a hearing.
    Those cases I think live in infamy for many Americans as 
decisions that were wrongly decided. The coram nobis case in 
which I participated added some new information to that, and 
that is, what was discovered some 40 years after the fact 
through researchers going through the archives was that the 
United States Justice Department had in its possession a number 
of documents which contradicted its assertion that the order 
was necessitated by military necessity; that there were, in 
fact, reports from the FBI, from the Office of Naval 
Intelligence, from the FCC that showed that there was not a 
threat and that the rumors that had been circulated of 
signaling and this sort of thing, in fact, had been 
investigated and found to be unfounded.
    And so once those documents were uncovered, the legal team 
of which I was a part went back to court and petitioned for a 
writ of coram nobis, a little-known writ, to essentially allege 
that the United States Justice Department had withheld critical 
evidence, material evidence from the court. And it was on that 
basis that the conviction of Mr. Korematsu was overturned. And 
I think the lesson that we learned from that is the importance 
of having checks and balances and having meaningful judicial 
review.
    Senator Franken. Thank you, Your Honor.
    Ms. Gee, I saw that you currently serve as an arbiter for 
Kaiser Permanente for the independent arbitration system that 
they have--an arbitrator. The job you are about to take is very 
different. Can you speak to how serving as an arbitrator is 
different than serving as a judge?
    Ms. Gee. Serving as an arbitrator is somewhat different in 
that the rules of evidence that would apply in a Federal 
proceeding would not necessarily be applicable. There are 
certain rules of evidence, but more relaxed with regard to 
hearsay and other types of rules.
    In many respects, however, it is similar. The ability to 
listen and to learn, to dispassionately listen to the parties 
present the facts of their case, and to apply whether it is 
negligence principles or contract interpretation principles to 
the situation at hand.
    Those are skills that I believe are transferable to a 
position as a U.S. district court judge, if I am fortunate 
enough to be confirmed.
    Senator Franken. Thank you. I have used up my time, so I 
apologize to Judge Seeborg.
    Judge Seeborg. That is quite all right, Senator.
    Senator Franken. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Judge Seeborg, good luck.
    [Laughter.]
    Judge Seeborg. Thank you, Senator.
    Senator Sessions. There is some advantage being at the end 
of the table there.
    Judge Nguyen, I have an appreciation for Assistant United 
States Attorneys, having been one before, and I was impressed 
that you headed a 2\1/2\-year investigation that led to the 
arrest of 35 individuals in several countries. That is a big 
effort when you do those kinds of cases. It led to the first 
successful prosecution in the United States for providing 
material support and resources to a designated foreign 
terrorist in violation of 18 U.S.C. 2339.
    Do you believe that material support provision remains an 
important tool for prosecutors?
    Judge Nguyen. Well, it is up to the legislature to make the 
law, and whatever the state of the law is, if I am fortunate 
enough to be confirmed, I will faithfully apply it.
    Senator Sessions. Well, I certainly agree with that, but as 
you having worked with that statute, did you find it helpful in 
your case to render justice?
    Judge Nguyen. Well, certainly, when I handled that 
prosecution, given the facts of that case, I obviously thought 
that it was justified.
    Senator Sessions. Well, I thank you for that good work and 
believe it is something that you can take pride in.
    Tell me about your understanding of precedents. Are you 
committed to following the precedents of higher courts 
faithfully and giving them full force and effect even if you 
personally were to disagree with those precedents?
    Judge Nguyen. Absolutely yes, Senator Sessions. That is how 
I have conducted myself as a State trial court judge and how I 
intend to conduct myself as a United States district court 
judge, if I am fortunate enough to be confirmed.
    Senator Sessions. Thank you very much.
    Judge Chen, I will ask you the same question. Are you 
committed to following the precedents of higher courts 
faithfully and giving them full force and effect, even if you 
personally disagree with the precedents or, I will add, the 
policy results that may occur from your ruling?
    Judge Chen. Absolutely, Senator Sessions. That requirement, 
of course, is part of the rule of law which I respect and which 
I have endeavored to apply. And I think that has particular 
force with respect to the district court because we are the 
subordinate court within the system, and we take our commands 
from the circuit courts and from the Supreme Court.
    Senator Sessions. As a magistrate judge, how did the--is 
that the right word now?
    Judge Chen. Yes, it is. The magistrate judge is fine.
    Senator Sessions. I remember one magistrate judge, I wrote 
him a letter and said, ``Dear Magistrate Judge,'' he thought 
that was funny. I thought that was the right name. But how are 
you allowed--various district judges give more or less power 
and responsibility to magistrate judges. I am of the view 
generally that they should be given responsibility that the law 
allows for the most part. What kind of responsibilities were 
you given in your court?
    Judge Chen. Well, I am very fortunate, as Judge Seeborg, my 
colleague, is, to be in the Northern District of California 
where the judges have decided to give the full range of 
responsibility permissible under Article III of the 
Constitution to magistrate judges. So not only do we hear 
matters that are assigned to us by the district judges, but we 
have our own caseload. We are on the wheel, and our names are 
drawn when cases are filed. And so long as the parties consent, 
we have full jurisdiction over the case through disposition. 
And so it is common for magistrate judges to rule on motions to 
dismiss, summary judgment, to hold trials, and have those 
matters appeal directly to the Ninth Circuit.
    Senator Sessions. In the California Law Review, you wrote 
this: ``Diversity enhances the quality of decisionmaking. In 
addition to analyzing and applying the law, judges have to make 
determinations that draw not so much upon the legal acumen but 
on the understanding of people and human experiences. Such 
experiences inform assumptions that affect legal decisions. At 
trial and in evidentiary hearings, judges have to assess 
credibility of witnesses. A witness' testimony may seem more 
credible if it is consistent with the judge's knowledge or 
experience and, conversely, less credible if it remains outside 
the judge's experience. Simply put, a judge's lifetime 
experiences affect the willingness to credit testimony or 
understand the human impact of legal rules upon which the judge 
must decide. These determinations require a judge to draw upon 
something that is not found in the case, reports that line the 
walls of our chambers; rather, judges draw upon the breadth and 
depth of their own life experiences, upon the knowledge and 
understanding of people and of human nature, and inevitably 
one's ethnic and racial background contribute to those life 
experiences.''
    Does that statement accurately reflect your judicial 
philosophy?
    Judge Chen. Well, let me put that in context, if I can, 
Senator. The point I was trying to make in that law review 
piece was that there is a benefit to having a diverse 
judiciary; that the judgments we make, some of those are based 
on deductive reasoning and analysis of law, and sometimes they 
are based on more intuitive analysis--judging the witness' 
credibility, making a decision with respect to bail or 
sentencing. That requires an understanding of human factors in 
different--in various contexts.
    And the point I was trying to make is that the broader the 
breadth of experience both for an individual judge and 
collectively as a court, I think the better the ability of 
judges to make those assessments. And I tried to give some 
illustrations in that piece about how the collegiality amongst 
judges, whether it is a formal exchange amongst the members of 
the Supreme Court or the court of appeals or the informal 
exchange that often happens in the district court, in the 
hallways and the dining rooms, that we learn from each other 
about various perspectives, different perspectives, and life 
experiences.
    Senator Sessions. Well, you know, the average litigant 
would be nervous if he thought a decision was being made on 
what you judges talked about in the dining hall or in the 
hallways. I mean, the case should be decided, should it not, on 
the evidence introduced and the law properly applied to that 
evidence?
    Judge Chen. No, and I agree with that fully, and I did not 
mean to suggest that cases are decided in a hallway. But----
    Senator Sessions. Well, I am just raising this point 
because it is something we have talked about before. I suppose 
your experience might help you have insight into a witness' 
credibility. Everybody has different experiences, and it might. 
But I was a little concerned that you say you might understand 
the human impact of legal rules upon which a judge must decide.
    You know, the oath says that a judge should do equal 
justice to the poor and the rich. I assume you would take that 
oath and intend to follow that.
    Judge Chen. Absolutely, and I did take that oath when I was 
sworn in as a magistrate judge.
    Senator Sessions. And that you would be impartial.
    Judge Chen. Absolutely.
    Senator Sessions. I know you served--what--18 years as 
counsel for the American Civil Liberties----
    Judge Chen. Sixteen years, actually.
    Senator Sessions. Sixteen. Now, you were on their payroll 
as a----
    Judge Chen. As a staff attorney.
    Senator Sessions. A staff attorney. Well, you know, the 
ACLU has filed some excellent cases. They have filed some I am 
not comfortable with.
    Is my time up?
    Senator Franken. Well, you are right, but I was giving 
you--in my role as Chairman, I was giving you leeway because 
you are the distinguished Ranking Member, and I was torn, 
frankly.
    [Laughter.]
    Senator Franken. But I guess your time is up, and I would--
--
    Senator Sessions. Well, one thing Senator Franken always 
has tremendous skill at: timing.
    [Laughter.]
    Senator Franken. Thank you.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I think I know where Senator Sessions is going, and let me 
say this to him: Judge Chen has been a very fair magistrate 
judge for 8 years. I have tested this, because I also am aware 
he has been a fierce advocate prior to that time. And I might 
have some differences of opinion with some of the things, and I 
am going to raise one in a moment. But, nonetheless, he has 
been examined by a Republican screening Committee and by a 
Democratic screening committee for the position of magistrate 
judge, and everybody has found he is fair.
    I would like to just read on this subject one comment of 
the Coalition of Northern California Asian American Bar 
Associations, and it is this: ``He has made a successful 
transition from a zealous advocate to a balanced and 
conscientious adjudicator who is committed to the impartial and 
active administration of justice. Judge Chen has earned a 
reputation as an even-handed jurist who is constantly mindful 
of the role that judges fulfill in our society.''
    Senator Sessions. Well, I think a person can be a zealous 
advocate and be a great judge.
    Senator Feinstein. So let me ask a question that takes you 
back a ways, because it was of some concern to me. In 1988, you 
filed a brief challenging Federal railroad regulations that 
require that certain employees be tested for drug use at 
random. You made similar arguments in a series of articles 
about the same time. As I understand it, the Supreme Court 
disagreed with your position and held that these drug tests 
were, in fact, constitutional.
    So here is the problem--or here is the question, I should 
say. I do not really believe there is a problem. Will you have 
a problem as a district court judge following the Supreme 
Court's law in this regard or any other?
    Judge Chen. Absolutely not, Senator. The Supreme Court has 
now ruled in a series of cases on that particular topic, the 
permissibility or not of drug testing, and the law has now 
evolved to a much clearer point than it was back in 1988. And I 
take the decisions of the Supreme Court as my command, and I 
would follow those.
    And I would add that in my position as a magistrate judge 
it is common, indeed routine, for us to impose mandatory drug 
testing on pre-trial releasees, on probationers. And I have not 
had a problem at all, even though one might think that it could 
be at odds with my former advocacy.
    I understand my role as a judge now is entirely different, 
and my task is to apply the law as it is given to us and to the 
facts of the case.
    Senator Feinstein. Well, you come very well regarded, and 
by a whole host of varying authorities. And I think you did 
make that transition as advocate to judge. And I think you have 
8 years under your belt to show that.
    So with this in mind was the reason that I recommended you 
and that your performance as a magistrate judge has been 
sterling.
    Judge Chen. Thank you, Senator.
    Senator Feinstein. And I think you are to be complimented 
on that.
    You know, let me quickly ask this of all of the panelists. 
I think the Ranking Member, Senator Sessions, essentially 
referred to this. We hold precedent as very important and the 
ability of a judge to be cognizant of precedent and to follow 
it. I would like a comment from each of you as to whether you 
would see yourself as bound by legal precedent. Judge Nguyen.
    Judge Nguyen. Yes, I would absolutely be bound by 
precedent. Sitting as a lower-court judge, that is my 
obligation.
    Senator Feinstein. Judge Chen.
    Judge Chen. I would, Senator, and I have a fairly lengthy 
record of published opinions now as a magistrate judge.
    Senator Feinstein. Yes, you do.
    Judge Chen. And I think you would see that I adhere to 
precedent and try to read the precedent as best I can.
    Senator Feinstein. Judge Gee.
    Ms. Gee. Not quite ``Judge Gee'' yet, but----
    Senator Feinstein. Oh, I am sorry.
    [Laughter.]
    Senator Feinstein. Almost.
    Ms. Gee. If confirmed as a judge, I would most definitely 
take very seriously my obligation to apply the precedent of the 
circuit as well as of the United States Supreme Court.
    Senator Feinstein. Thank you.
    Judge Seeborg.
    Judge Seeborg. Senator, I believe I have done that in my 
tenure as a magistrate judge, and I can give you that assurance 
that, if confirmed, I will continue to follow precedent.
    Senator Feinstein. Thank you very much.
    Those are my questions. Thank you.
    Senator Franken. Thank you, Senator Feinstein. Thank you, 
Ranking Member Sessions.
    Before I adjourn, the Committee has received a number of 
letters from individuals and organizations who are supporting 
the nominees before us today. Just to name a few, we have a 
letter from the Congressional Asian Pacific American Caucus in 
support of Judge Nguyen, Judge Chen, and Ms. Gee; testimony 
from the National Asian Pacific American Bar Association and 
Asian American Justice Center in support of these three 
nominees; a letter from the Asian Pacific Bar of California; 
and a letter from six Northern California Asian American Bar 
Associations in support of Judge Chen. So, without objection, I 
would like to submit all these letters and testimony for the 
record.
    [The information appears as a submission for the record.]
    Senator Franken. I would also like to introduce Chairman 
Leahy's opening statement into the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Sessions. Mr. Chairman, briefly, could I ask one 
more question?
    Senator Franken. Absolutely.
    Senator Sessions. A lot of people have firm views about the 
death penalty. I do not believe a judge should be disqualified 
or a nominee disqualified if they do not support the death 
penalty but if the--it is a lawfully applied penalty. My 
question is: Do you have any personal views such that you would 
be unwilling to carry out a death penalty if it was properly 
imposed?
    Judge Nguyen. No, I do not, Senator Sessions.
    Judge Chen. I do not, Senator Sessions.
    Ms. Gee. I do not, Senator Sessions.
    Judge Seeborg. I do not, Senator.
    Senator Sessions. Judge Chen, according to the website of 
the ACLU, it believes the death penalty inherently violates the 
constitutional ban on cruel and unusual punishment and 
guarantees of due process and equal protection. Do you agree 
with that?
    Judge Chen. Well, those views are not the views of the 
Supreme Court, and I abide by the rulings of the Supreme Court. 
And I will tell you that I had one death penalty case that I 
handled as a lawyer. In that case, we did not bring a broad 
challenge, a sweeping challenge. It was very fact specific 
about the case, the ineffective assistance of counsel that this 
individual had and mistakes that were made by the trial judge. 
So it was a very narrowly focused case, and we brought that 
case to ensure that the person had fair process. It was not a 
broad challenge.
    Senator Sessions. Well, great attention is provided on 
those cases by the courts, and that is legitimate. But I guess 
my question is: Do you agree with this position of the 
organization you worked for 16 years?
    Judge Chen. Well, other than that one case, I have never 
been involved in any of the policymaker or any of the broader 
efforts of the ACLU on that issue. And I would affirm again 
that as a district judge I see my role very differently today 
than as an advocate some 15 years ago.
    Senator Sessions. Ms. Gee, you were a member, I believe, of 
the ACLU for years, 8 years. Do you agree with that legal 
position that is on their website?
    Ms. Gee. Ranking Member Sessions, I have never been in a 
policy position or had any active role in the ACLU other than 
to be a member. I take very strongly the position that as a 
district court I would have the obligation to apply the law and 
that I would set aside any personal opinions whatsoever in my 
faithful adherence to the law.
    Senator Sessions. Well, you know, you voluntarily joined an 
organization. I usually do not join one I do not agree with. 
But I think it is legitimate to ask those questions. We will 
submit some more questions for the record.
    Mr. Chairman, these are able nominees who I believe have 
good integrity, and I appreciate the opportunity to ask these 
questions.
    Senator Franken. Thank you, Senator.
    Senator Feinstein, any more questions?
    Senator Feinstein. No, Mr. Chairman.
    Senator Franken. Well, in that case, I would like to thank 
Senator Feinstein and the distinguished Ranking Member. I also 
want to thank each of you for your testimony today. You are all 
very impressive, and I will hold the hearing opening for 1 week 
for submission of questions for the nominees and other 
materials.
    The hearing is adjourned.
    [Whereupon, at 3:27 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]




                                 
