[Senate Hearing 111-695, Part 5]
[From the U.S. Government Publishing Office]
S. Hrg. 111-695, Pt. 5
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
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JANUARY 20, FEBRUARY 11, FEBRUARY 24, and MARCH 10, 2010
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PART 5
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Serial No. J-111-4
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 111-695, Pt. 5
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JANUARY 20, FEBRUARY 11, FEBRUARY 24, and MARCH 10, 2010
__________
PART 5
__________
Serial No. J-111-4
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
65-688 WASHINGTON : 2011
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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 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
Brian A. Benzcowski, Republican Staff Director
C O N T E N T S
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January 20, 2010
STATEMENTS OF COMMITTEE MEMBERS
Page
Kaufman, Hon. Edward E., a U.S. Senator from the State of
Delaware....................................................... 1
opening statement............................................ 365
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 366
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 300
PRESENTERS
Barrasso, Hon. John, a U.S. Senator from the State of Wyoming
presenting Nancy D. Freudentahl, Nominee to be U.S. District
Judge for the District of Wyoming.............................. 3
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio
presenting Timothy S. Black, Nominee to be U.S. District Judge
for the Southern District of Ohio; and Benita Y. Pearson,
Nominee to be U.S. District Judge for the Northern District of
Ohio........................................................... 7
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming
presenting Nancy D. Freudentahl, Nominee to be U.S. District
Judge for the District of Wyoming.............................. 2
Lincoln, Hon. Blanche L., a U.S. Senator from the State of
Arkansas presenting Denzil Price Marshall, Jr., Nominee to be
U.S. District Judge for the District of Arkansas............... 4
Pryor, Hon. Mark L., a U.S. Senator from the State of Arkansas
presenting Denzil Price Marshall, Jr., Nominee to be U.S.
District Judge for the District of Arkansas.................... 6
STATEMENTS OF THE NOMINEES
Black, Timothy S., Nominee to be U.S. District Judge for the
Southern District of Ohio...................................... 165
Questionnaire................................................ 166
Freudenthal, Nancy D., Nominee to be U.S. District Judge for the
District of Wyoming............................................ 10
Questionnaire................................................ 11
Lynch, James P., Nominee to be Director of the Bureau of Justice
Statistics..................................................... 213
Questionnaire................................................ 214
Marshall, Denzil Price, Jr., Nominee to be U.S. District Judge
for the Eastern District of Arkansas........................... 69
Questionnaire................................................ 70
Pearson, Benita Y., Nominee to be U.S. District Judge for the
Northern District of Ohio...................................... 116
Questionnaire................................................ 117
QUESTIONS AND ANSWERS
Responses of Timothy S. Black to questions submitted by Senators
Coburn, Grassley and Sessions.................................. 316
Responses of Nancy D. Freudenthal to questions submitted by
Senators Coburn, Grassley and Sessions......................... 324
Responses of James P. Lynch to questions submitted by Senators
Coburn and Sessions............................................ 334
Responses of Denzil Price Marshall, Jr., to questions submitted
by Senators Coburn, Grassley and Sessions...................... 343
Responses of Benita Y. Pearson to questions submitted by Senators
Coburn, Grassley and Sessions.................................. 351
SUBMISSIONS FOR THE RECORD
American Society of Criminology, Richard Rosenfeld, President,
Columbus, Ohio and Academy of Criminal Justice Sciences, Janice
Joseph, President, Greenbelt, Maryland, joint letter........... 363
Lauritsen, Janet L., Professor, University of Missouri, St.
Louis, Missouri, letter........................................ 369
Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas,
prepared statement............................................. 370
Sullivan, Michael J., Attorney at Law, Rothgerber Johnson & Lyons
LLP, Casper, Wyoming, letter................................... 372
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio,
letter......................................................... 373
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THURSDAY, FEBRUARY 11, 2010
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 710
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 375
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 718
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 376
PRESENTERS
Bayh, Hon. Evan, a U.S. State Senator from the State of Indiana
presenting Tanya Walton Pratt, Nominee to U.S. District Judge
for the Souther District of Indiana; Jon E. DeGuilio, Nominee
to be U.S. District Judge for the Northern District of Indiana,
and Jane E. Magnus-Stinson, Nominee to be U.S. District Judge
for the Southern District of Indiana........................... 378
Boxer, Hon. Barbara, a U.S. State Senator from the State of
California presenting Lucy H. Koh, Nominee to be U.S. District
Judge for the Northern District of California.................. 381
McCaskill, Hon. Claire, a U.S. State Senator from the State of
Missouri presenting Audrey G. Fleissig, Nominee to be U.S.
District Judge for the Eastern District of Missouri............ 383
Reid, Hon. Harry, a U.S. State Senator from the State of Nevada
presenting Gloria Navarro, Nominee to be U.S. District Judge
for the District of Nevada..................................... 376
STATEMENTS OF THE NOMINEES
DeGuilio, Jon E., Nominee to be U.S. District Judge for the
Northern District of Indiana................................... 525
Questionnaire................................................ 526
Fleissig, Audrey G., Nominee to be U.S. District Judge for the
Eastern District of Missouri................................... 422
Questionnaire................................................ 423
Koh, Lucy H., Nominee to be U.S. District Judge for the Northern
District of California......................................... 487
Questionnaire................................................ 488
Magnus-Stinson, Jane E., Nominee to be U.S. District Judge for
the Southern District of Indiana............................... 599
Questionnaire................................................ 600
Navarro, Gloria M., Nominee to be U.S. District Judge for the
District of Nevada............................................. 385
Questionnaire................................................ 386
Pratt, Tanya Walton, Nominee to be U.S. District Judge for the
Southern District of Indiana................................... 559
Questionnaire................................................ 560
QUESTIONS AND ANSWERS
Responses of Jon E. DeGuilio to questions submitted by Senators
Coburn and Sessions............................................ 657
Responses of Audrey G. Fleissig to questions submitted by
Senators Coburn and Sessions................................... 663
Responses of Lucy H. Koh to questions submitted by Senators
Coburn and Sessions............................................ 670
Responses of Jane E. Magnus-Stinson to questions submitted by
Senators Coburn and Sessions................................... 677
Responses of Gloria M. Navarro to questions submitted by Senators
Coburn and Sessions............................................ 689
Responses of Tanya Walton Pratt to questions submitted by
Senators Coburn and Sessions................................... 697
SUBMISSION FOR THE RECORD
Asian American Justice Center, Karen K. Narasaki, President and
Executive Director, Washington, DC, January 29, 2010, letter... 702
Burchfield, Bobby R., Attorney at Law, McDermott Will & Emery,
Washigton, DC, February 9, 2010, letter........................ 704
Carr, Dolores A., District Attorney County of Santa Clara, San
Jose, California, February 1, 2010, letter..................... 705
Chandler, Mark, Senior Vice President, General Counsel and
Secretary, Cisco, San Jose, California, February 5, 2010,
letter......................................................... 706
Dinh, Viet D., Professor of Law, Georgetown University Law
Center, Washington, DC, February 9, 2010, letter............... 708
Gallagher, Catherine A., Judge, Superior Court of California,
County of Santa Clara, San Jose, California, February 27, 2009,
letter......................................................... 714
George, Eric M., Browne Woods George LLP, Law Offices, Los
Angeles, California, March 3, 2010, letter..................... 716
Lee, Randall R., Wilmer Hale, Los Angeles, California, February
9, 2010, letter................................................ 723
Lugar, Richard G., a U.S. Senator from the State of Indiana,
prepared statement............................................. 725
National Asian Pacific Bar Association, Washington, DC:
Daniel Levin, February 4, 2010, letter....................... 726
Joseph J. Centeno, President; Tina R. Matsuoka, Executive
Director; John C. Yang, Co-Chair, Judiciary Committee and
Wendy Wen Yun Chang, Co-Chair Judiciary Committee, February
9, 2010, joint letter...................................... 727
Schwarzenegger, Arnold, Governor, Sacramento, California, January
29, 2010, letter............................................... 732
Smith, Laurie, Sheriff, County of Santa Clara, San Jose,
California, January 29, 2010, letter........................... 733
Weld, William F., McDermott Will & Emery, New York, New York,
February 2, 2010, letter....................................... 735
Young, Ernest A., Alston & Bird Professor of Law, Durham, North
Carolina, February 9, 2010, letter............................. 737
Zweig, Sally Franklin, Attorney at Law, Katz & Korin, PC,
Indianapolis, Indiana, March 10, 2010, letter.................. 739
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WEDNESDAY, FEBRUARY 24, 2010
STATEMENTS OF COMMITTEE MEMBERS
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 741
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 971
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 742
PRESENTERS
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia
presenting Marc T. Treadwell, Nominee to be U.S. District Judge
for the Middle District of Georgia............................. 747
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Josephine Staton Tucker, Nominee to be
U.S. District Judge for the Central District of California..... 743
Levin, Hon. Carl, a U.S. Senator from the State of Michigan
presenting Mark Allan Goldsmith, Nominee to be U.S. District
Judge for the Eastern District of Michigan..................... 744
Landrieu, Hon. Mary L., a U.S. Senator from the State of
Louisiana presenting Brian Anthony Jackson, Nominee to be U.S.
District Judge for the Middle District of Louisiana and
Elizabeth E. Foote, Nominee to be U.S. District Judge for the
Western District of Louisiana.................................. 746
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan
presenting Mark C. Goldsmith, Nominee to be U.S. District Judge
for the Eastern District of Michigan........................... 745
STATEMENTS OF THE NOMINEES
Foote, Elizabeth E., Nominee to be U.S. District Judge for the
Western District of Louisiana.................................. 780
Questionnaire.................................................... 781
Goldsmith, Mark A., Nominee to be U.S. District Judge for the
Eastern District of Michigan................................... 898
Questionnaire.................................................... 899
Jackson, Brian A., Nominee to be U.S. District Judge for the
Middle District of Louisiana................................... 748
Questionnaire.................................................... 750
Treadwell, Marc T., Nominee to be U.S. District Judge for the
Middle District of Georgia..................................... 821
Questionnaire.................................................... 822
Tucker, Josephine S., Nominee to be U.S. District Judge for the
Central District of California................................. 860
Questionnaire.................................................... 861
QUESTIONS AND ANSWERS
Responses of Elizabeth E. Foote to questions submitted by
Senators Coburn and Sessions................................... 943
Responses of Mark A. Goldsmith to questions submitted by Senators
Coburn and Sessions............................................ 949
Responses of Brian A. Jackson to questions submitted by Senators
Coburn and Sessions............................................ 956
Responses of Marc T. Treadwell to questions submitted by Senators
Coburn and Sessions............................................ 960
Responses of Josephine S. Tucker to questions submitted by
Senators Coburn and Sessions................................... 965
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WEDNESDAY, MARCH 10, 2010
STATEMENTS OF COMMITTEE MEMBERS
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1146
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 980
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 975
PRESENTERS
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado presenting William J. Martinez, Nominee to be U.S.
District Judge for the District of Colorado.................... 979
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois presenting Gary S. Feinerman, Nominee to be U.S.
District Judge for the Northern District of Illinois and Sharon
J. Coleman, Nominee to be U.S. District Judge for the Northern
District of Illinois........................................... 976
Udall, Hon. Mark, a U.S. Senator from the State of Colorado
presenting William J. Martinez, Nominee to be U.S. District
Judge for the District of Colorado............................. 978
STATEMENTS OF THE NOMINEES
Coleman, Sharon J., Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 981
Questionnaire................................................ 983
Feinerman, Gary S., Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 1023
Questionnaire................................................ 1024
Martinez, William J., Nominee to be U.S. District Judge for the
District of Colorado........................................... 1060
Questionnaire................................................ 1061
QUESTIONS AND ANSWERS
Responses of Sharon Johnson Coleman to questions submitted by
Senators Coburn and Sessions................................... 1104
Responses of Gary S. Feinerman to questions submitted by Senators
Coburn and Sessions............................................ 1110
Responses of William J. Martinez to questions submitted by
Senators Coburn and Sessions................................... 1120
SUBMISSION FOR THE RECORD
Anti-Defamation League, Abraham H. Foxman, National Director, New
York, New York, March 9, 2010, letter.......................... 1137
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado, statement............................................ 1139
Colorado Hispanic Bar Association, Damian J. Arguello, President,
Denver, Colorado, March 9, 2010, letter........................ 1142
Hispanic National Bar Association, Roman D. Hernandez, National
President, Washington, DC, March 19, 2010, letter.............. 1144
Mexican American Legal Defense and Educational Fund, Claudine
Karasik, Legislative Staff Attorney, Washington, DC, March 12,
2010, letter................................................... 1150
National Employment Lawyers Association, Bruce A. Fredrickson,
President, and Sara J. Rich, President Colorado PELA,
Washington, DC, March 9, 2010, letter.......................... 1152
ALPHABETICAL LIST OF NOMINEES
Black, Timothy S., Nominee to be U.S. District Judge for the
Southern District of Ohio...................................... 165
Coleman, Sharon J., Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 981
DeGuilio, Jon E., Nominee to be U.S. District Judge for the
Northern District of Indiana................................... 525
Feinerman, Gary S., Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 1023
Fleissig, Audrey G., Nominee to be U.S. District Judge for the
Eastern District of Missouri................................... 422
Foote, Elizabeth E., Nominee to be U.S. District Judge for the
Western District of Louisiana.................................. 780
Freudenthal, Nancy D., Nominee to be U.S. District Judge for the
District of Wyoming............................................ 10
Goldsmith, Mark A., Nominee to be U.S. Judge for the Eastern
District of Michigan........................................... 898
Jackson, Brian A., Nominee to be U.S. District Judge for the
Middle District of Louisiana................................... 748
Koh, Lucy H., Nominee to be U.S. District Judge for the Northern
District of California......................................... 487
Lynch, James P., Nominee to be Director fo the Bureau of Justice
Statistics..................................................... 213
Magnus-Stinson, Jane E., Nominee to be U.S. District Judge for
the Southern District of Indiana............................... 599
Marshall, Denzil Price, Jr., Nominee to be U.S. District Judge
for the Eastern District of Arkansas........................... 69
Martinez, William J., Nominee to be U.S. District Judge for the
District of Colorado........................................... 1060
Navarro, Gloria M., Nominee to be U.S. District Judge for the
District of Nevada............................................. 385
Pearson, Benita Y., Nominee to be U.S. District Judge for the
Northern District of Ohio...................................... 116
Pratt, Tanya Walton, Nominee to be U.S. District Judge for the
Southern District of Indiana................................... 559
Treadwell, Marc T., Nominee to be U.S. District Judge for the
Middle District of Georgia..................................... 821
Tucker, Josephine S., Nominee to be U.S. District Judge for the
Central District of California................................. 860
NOMINATIONS OF NANCY D. FREUDENTHAL, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE DISTRICT OF WYOMING; DENZIL PRICE MARSHALL, JR.,
NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
ARKANSAS; BENITA Y. PEARSON, NOMINEE TO BE UNITED STATES DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF OHIO; TIMOTHY S. BLACK, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO; AND,
JAMES P. LYNCH, NOMINEE TO BE DIRECTOR OF THE BUREAU OF JUSTICE
STATISTICS
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WEDNESDAY, JANUARY 20, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:33 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Edward E. Kaufman
presiding.
Present: Senators Franken, Sessions and Coburn.
OPENING STATEMENT OF HON. EDWARD E. KAUFMAN, A U.S. SENATOR
FROM THE STATE OF DELAWARE
Senator Kaufman. Good afternoon, everybody. I am pleased to
call this nomination hearing of the Senate Committee on
Judiciary to order, and I thank Chairman Leahy for permitting
me to chair this hearing.
I would like to welcome each of the nominees, their
families and friends to the U.S. Senate and congratulate them
on their nomination and hope you will have a good experience.
I would also like to welcome my colleagues--what a lineup--
here to introduce the nominees. I am pleased to note that
Republican and Democratic Senators have worked together to
bring us these well qualified individuals today.
Today, we welcome the First Lady of Wyoming, Nancy
Freudenthal, nominated to be a judge in the District of
Wyoming. If confirmed, Ms. Freudenthal will be Wyoming's first
female Federal judge.
Wyoming has a history of promoting equal rights for women.
I remember, when I went there, I learned that it first gave
women the right to vote in 1869, 21 years before achieving
statehood and 51 years before the ratification of the Ninth
Amendment. So it is especially fitting.
She will be introduced by her home state Senators, Mike
Enzi and John Barrasso.
I would also like to welcome the Honorable Denzil Price
Marshall, nominated to be a judge of the Eastern District of
Arkansas. Judge Marshall is currently a judge in the Arkansas
Court of Appeals.
He will be introduced from his home state by Senators
Blanche Lincoln and Mark Pryor.
We further welcome the Honorable Benita Pearson, nominated
to be the judge in the Northern District of Ohio. If confirmed,
Judge Pearson will be Ohio's first African-American female
Federal judge.
She will be introduced by her home state Senator, Sherrod
Brown.
We welcome, also, the Honorable Timothy Black, nominated to
be a judge for the Southern District of Ohio. Judge Black
currently serves the Southern District as a magistrate judge
and previously was a municipal court judge in Hamilton, Ohio.
Senator Brown will introduce him, too.
Finally, we welcome Dr. James Patrick Lynch, nominated to
be Director for the Bureau of Justice Statistics at the U.S.
Department of Justice. Over the last 30 years, Dr. Lynch has
been involved in major efforts to build and improve our crime
and criminal justice statistics systems. I look forward to
introducing him.
[The prepared statement of Senator Kaufman appears as a
submission for the record.]
Senator Kaufman. I am going to yield time for the Ranking
Member, Senator Sessions, when he arrives. What I would like to
do, I would like to thank all the Senators who have come to
speak on behalf of their home state nominees this afternoon. I
know you are incredibly busy, and I know you are incredibly
busy, but your presence and support speaks volumes about their
qualifications and your respect for their qualifications.
First, we will hear from the Senators from the State of
Wyoming to introduce Ms. Freudenthal. First, Senator Enzi.
PRESENTATION OF NANCY D. FREUDENTHAL, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF WYOMING BY HON. MICHAEL B.
ENZI, A U.S. SENATOR FROM THE STATE OF WYOMING
Senator Enzi. Thank you, Mr. Chairman. I am pleased to have
the opportunity to introduce Nancy Freudenthal, who has been
nominated by President Obama to serve as a judge of the United
States District Court for the District of Wyoming.
I want to thank the Chairman and Senator Sessions and your
staff for moving quickly on scheduling this hearing.
Nancy is a Wyoming native, born in Cody, and received her
BA and her JD from the University of Wyoming. After being
admitted to the Wyoming State Bar in 1980, Nancy took a
position with Governor Ed Herschler, as his attorney for
intergovernmental affairs for 8 years. She then served in the
same position for Governor Mike Sullivan for 2 years.
In this capacity, Nancy served as the Governor's
representative on numerous boards, worked extensively with the
state legislature, taught at the University of Wyoming College
of Law, and served as acting Administrator of the Department of
Environmental Quality in the Land Quality Division.
In 1989, Nancy was appointed by Governor Sullivan to the
Wyoming Tax Commission and State Board of Equalization, where
she served as chairman for a 6-year term. While the State Board
of Equalization is taxed with the annual process of equalizing
value of property in Wyoming counties, the board has a main
function of listening to disputes between taxpayers and the
Department of Revenue and reviewing appeals. Nancy's experience
as chairman of this board will greatly enhance her abilities as
a judge.
Since joining Davis & Cannon in 1995, Nancy has handled a
wide variety of matters, including complex mineral litigation,
environmental and natural resource disputes, public utility
law, oil and gas litigation, employment litigation, and
commercial transactions.
She has experience at both the trial and appellate levels.
Nancy is well respected among her peers and judges in Wyoming.
I have followed some of the things that she has worked on and I
know that she is able to sort out the wheat from the
intentional chaff.
I also want to mention how important this judgeship is for
Wyoming. While Senators disagree at times about specific
nominees, we can all agree that without judges in place, our
legal system slows down and does a disservice to the people we
represent.
I am pleased that the Senate Judiciary Committee is moving
quickly and thoroughly on this nomination. I hope that we can
finish the whole confirmation process promptly.
Mr. Chairman, Nancy Freudenthal's experience as a private
attorney and in state government will serve her well as a
district court judge.
I, again, appreciate the Committee's time and I look
forward to the quick approval of this nomination.
Senator Kaufman. Thank you, Senator Enzi.
Senator Barrasso.
PRESENTATION OF NANCY D. FREUDENTHAL, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF WYOMING BY HON. JOHN
BARRASSO, A U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. Thank
you to the other members of the Committee for allowing me the
opportunity to be with you today.
I am pleased to join Senator Enzi to speak in support of
the nomination of Nancy Freudenthal to be a U.S. District Court
Judge for the District of Wyoming.
I have been a long-time admirer of Nancy Freudenthal. She
and I were classmates in the first ever Class of Leadership
Wyoming, long before either of us served in our current
positions, and Nancy played an integral and an influential role
in that program.
I have great respect for her public service. Much of her
career has been dedicated to working for the people of Wyoming.
As the First Lady of Wyoming, Nancy has championed causes with
significant focus on reducing childhood and underage drinking.
She is the national chair of the countrywide initiative called
Leadership to Keep Children Alcohol-Free.
She has been instrumental and played an instrumental role
on the Steering Committee on Underage Drinking Research and
Prevention nationally. As a doctor, Mr. Chairman, I understand
the importance of prevention and awareness.
I appreciate her energetic and enthusiastic work in
advocating for the health and safety of our children. Nancy
Freudenthal has the qualifications to be an effective member of
the Federal bench. If confirmed, Nancy will be just the seventh
Federal district court judge in the history of the district and
the first woman to sit on the Federal bench for Wyoming.
Mr. Chairman, Nancy has been a valued member of the Wyoming
State Bar for nearly 30 years and the American Bar Association
voted to give her a well qualified rating. Nancy has been a
mentor and an inspiration to Wyoming's next generation of legal
professionals through her work at the University of Wyoming's
College of Law.
Nancy Freudenthal has my full support, Mr. Chairman. I
would ask members of this Committee to support her nomination,
as well.
Thank you, Mr. Chairman.
Senator Kaufman. Thank you, Senator Barrasso. Now, the
Senators from Arkansas will introduce Judge Marshall.
Senator Lincoln.
PRESENTATION OF DENZIL PRICE MARSHALL, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON.
BLANCHE L. LINCOLN, A U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Lincoln. Thank you, Mr. Chairman and to the members
of the Judiciary Committee. I, too, appreciate the opportunity
to appear before you today to introduce Judge Price Marshall,
who has been nominated to fill a Federal judicial vacancy in
the Eastern District of Arkansas.
I first want to thank the Chairman, Chairman Leahy, for
granting my request, as well as the Committee, as was mentioned
by Senator Enzi, for receiving a hearing so timely so that the
Judiciary Committee could learn about Judge Marshall's
qualifications, abilities, and why he will make a terrific U.S.
district judge for the State of Arkansas.
Judge Price Marshall has enjoyed an impressive and lengthy
legal career in Arkansas, where he has served as a judge on the
Arkansas Court of Appeals since 2006 and as a reporter for the
Arkansas Supreme Court Committee on Civil Practice since 2004.
Previously, Judge Marshall practiced law in his hometown of
Jonesboro, Arkansas for 15 years as a principal at the firm of
Barrett & Deacon. Mr. Deacon is a long-time, established legal
figure in our state.
He also clerked for U.S. Circuit Judge Richard Arnold from
1989 to 1991, and I think Judge Arnold's widow was here earlier
or is not here today, Kay Kelly Arnold, as well as two of his
previous law partners, Robert Jones, who I know quite well, as
well as Jim Bradbury, who are here in the audience, and
grateful for that incredible support that they lend to him.
Judge Marshall graduated from Arkansas State University in
Jonesboro in 1985, where he currently serves as an adjunct
professor of political science. Judge Marshall also received a
degree from the London School of Economics and graduated with
honors from Harvard Law School in 1989.
I have heard from dozens of our Arkansans from across the
legal and the business community who support Judge Marshall's
nomination. He is well known in Arkansas as a gifted appellate
advocate, a brilliant legal mind, and a well respected man of
integrity.
In my judgment, Judge Marshall possesses the intellect, the
capabilities and the character to carry out the duties of the
U.S. district judge and would well represent the State of
Arkansas and our country in this capacity.
Not only is Judge Marshall a distinguished professional, he
is a dedicated family man. Like so many Arkansans, Judge
Marshall believes in our Arkansas values of family and
community. He and his wife, Polly Pickett Marshall, have been
married for 22 years and they have two daughters, Adison, who
is 15, and Lara Harden, who is 13, and who join us today. So we
are proud to have them, as well, here in the Committee.
Judge Marshall is a member and a deacon of the First
Baptist Church in Jonesboro. He is involved in the Eastern
Arkansas Council of the Boy Scouts of America and has received
a Golden Gavel Award for exemplary service by the Arkansas Bar
Association.
Mr. Chairman, as a U.S. Senator from the State of Arkansas,
I take the Senate's role of advice and consent on lifetime
judicial appointments very seriously. In fact, I interviewed,
either in person or, certainly, by phone, each and every
Arkansan who was interested in being nominated for a judicial
appointment in Arkansas.
I evaluate judicial nominees based on their skills, their
experience, and ability to understand and apply established
precedent, not only or on any particular point of view a
nominee may hold.
Fundamentally, I am interested in knowing that a nominee
can fulfill his responsibilities under the Constitution in a
court of law, and I am absolutely satisfied that Judge Price
Marshall has more than met that standard and that my colleagues
on the Judiciary Committee and the Senate will come to the same
conclusion.
So in closing, Mr. Chairman, I want to thank you and the
Ranking Member of the Judiciary Committee for allowing Judge
Price Marshall to receive a hearing and request your full
attention and careful consideration of his nomination and hope
that we can move it forward in an expeditious way.
Thank you, Mr. Chairman and to the Committee.
Senator Kaufman. Thank you, Senator Lincoln.
Senator Pryor.
PRESENTATION OF DENZIL PRICE MARSHALL, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS BY HON.
MARK L. PRYOR, A U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Pryor. Thank you, Mr. Chairman. As is the custom
around here, my staff wrote a very nice statement for the
Committee and I may just ask to have that submitted into the
record, because I have something--as wonderful the things that
Senator Lincoln has just said, and they're all true, and as
good a job as my staff did, they're all true, I would like to
say something just on a personal note.
I have known Price Marshall for 20-some-odd years now. I
knew him right when we both came out of law school and he is a
really fine person. He is exactly the kind of person we want on
the Federal bench deciding cases.
He is a great husband, a great father. He is very involved
in his community and in his church, as Senator Lincoln said. He
has been involved with the Arkansas Bar Association, but also
with the State Supreme Court, who regulates the practice of law
in Arkansas.
Since law school, Price Marshall has been the kind of
person that, when you see him in action, when lawyers practice
either with him or against him, they come away with the
impression, ``One day, this guy will make a great judge.''
He is a great judge. He is on the Arkansas Court of Appeals
right now. When he was in private practice for 15 or more years
up in Jonesboro, Arkansas, he had a statewide reputation for
being able to handle very complex litigation or very complex
legal matters, whatever they may be, and, also, had a statewide
reputation of being an excellent appellate lawyer and a great
brief-writer and a great arguer before the appellate courts in
Arkansas and in the Federal appellate courts, as well.
When you look at Price and when you have practiced with him
and been around him like I have, there are really, I think, two
words that come to mind for Price Marshall. The first is
integrity. He has it, an over-abundance of it. He is just known
to have integrity in everything he does and every part of his
life; second, impartiality.
That is the kind of judge that he has been on the Arkansas
Court of Appeals. That is the kind of judge he will be, if this
Committee approves him and sends him to the Senate floor and he
is confirmed, when he gets on the Federal district court.
For me and for many Arkansas lawyers, the fact that Price
Marshall is here today and is going through this process and
the fact that he has been nominated by President Obama is
really a dream come true, because he is exactly the kind of
person that I think we would all like to see in our Federal
judiciary.
Thank you, Mr. Chairman.
Senator Kaufman. Thank you, Senator Pryor.
Now, Senator Brown will introduce Judge Pearson and Judge
Black.
PRESENTATION OF TIMOTHY S. BLACK, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF OHIO, AND BENITA Y. PEARSON,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
OHIO BY HON. SHERROD BROWN, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator Brown. Thank you, Mr. Chairman. Senator Franken,
Senator Coburn, thank you. I echo, for the two nominees that I
have the privilege of introducing, the last words of Senator
Pryor in the kind of integrity they bring, the kind of
impartiality they bring.
I will speak about each nominee consecutively, if I could,
Mr. Chairman. My first, in alphabetical order, Tim Black, is
the nominee for the U.S. District Judge for the Southern
District of Ohio. Tim's wife and two daughters are here with
him today. We welcome them. They are friends/relatives of
people that are very close to both Senator Klobuchar and
Senator Franken.
Since 2004, Judge Black has served the Southern District of
Ohio as a magistrate judge. I have known Judge Black for over
10 years now.
Prior to his work as a magistrate, he was a municipal judge
in Hamilton County, in Cincinnati, for a decade, and a civil
litigator with one of the most prominent firms in southwest
Ohio, Graydon Head & Ritchey, also in Cincinnati.
As a Federal magistrate, Tim has issued opinions and
recommendations on numerous cases, with some of his most
noteworthy ones in the area of constitutional law and housing
rights. His broad experience also includes hearing many
criminal cases as a municipal judge and litigating civil and
commercial cases in private practice with the Cincinnati law
firm, Graydon Head.
Judge Pearson, prior to our formally sitting down now, said
that she would, as a magistrate in the Northern District,
always look--before she had met Tim Black--look at his
decisions as a magistrate and how well reasoned and well
thought-out they were.
Senator Voinovich and I--Senator Voinovich is supporting
both of these nominees. He was very intricately involved in the
selection process. He and I assembled a distinguished group of
17 Ohioans, about half Republicans. Actually, one of them in
the Southern District was more than half Republican. The other
one, in the Northern District, happened to be more than half
Democrat.
They conducted interviews with dozens of candidates. The
rule was at least 11 of them of the 17 had to support these
candidates to hand them over to me to make the final decision,
and then I interviewed each of the three candidates in both the
Northern and the Southern Districts.
Paul Harris, the chair of the event, a lawyer in Cleveland,
chair of the committee in Cleveland did a particularly
outstanding job in putting this together for the Southern
District, and we flipped the districts. In the Northern
District, Nancy Rogers, who was the Dean of the Ohio State Law
School and later appointed Attorney General of Ohio, chaired
that committee.
The nomination committee spent hours vetting and
interviewing these candidates and they were willing to devote
substantial amounts of time and energy to see who would serve
and who would serve and who would serve best.
The screening panel was more than impressed with Tim Black.
They recognized his leadership, his commitment to legal
excellence, his temperament, his qualities that made him well
suited to serve in this capacity.
Based on their recommendations, I had no reservation
whatsoever in suggesting Tim Black to President Obama for
nomination as U.S. District Judge in the Southern District,
and, as I said, Senator Voinovich concurred in that decision.
Beyond the major cases he has been involved with as a
litigator, a Federal magistrate or municipal judge, beyond the
long list of honors and awards he has received, one of the most
important things that you all should know in this Committee
about Tim Black is that he has dedicated his life to serving
others.
President Obama, in nominating him, stated that Tim has the
evenhandedness, intellect and spirit of service that Americans
expect and deserve from their Federal judges. Tim has
exemplified a commitment to service through his work as a co-
convener of the Round Table, a partnership between the Black
Lawyers Association of Cincinnati and the Cincinnati Bar to
improve diversity and inclusion in the legal profession.
He helped establish a Domestic Violence Coordinating
Council to increase communications, coordination and uniformity
within the criminal justice system and the community to reduce
domestic violence.
His yeoman's work as a member and vice president of Pro
Kids, an organization that represents abused and neglected
children, is one more example.
Tim is quoted as saying that he is ready for the work of
being a district judge in the Southern District. He absolutely
is.
I would also like to take the opportunity, Mr. Chairman, of
introducing the other nominee from Ohio, and that is Magistrate
Judge Benita Pearson to be the U.S. District Judge in the
Northern District. She will be in Youngstown, if she is
confirmed.
I am proud to introduce this native Ohioan to the
Committee. She has with her today her mother and four of her
five siblings, who are here, most of them; her very, very, very
proud mother and her pretty, pretty proud siblings, too. But
her mother is really, really proud of this.
She earned her JD from Cleveland State, her bachelor's
degree here in Washington from Georgetown. Before law school,
Judge Pearson spent several years as a certified public
accountant.
I asked her how that would help her as a judge in our
interview and she said, ``Being a CPA helps me tell stories
with numbers.''
Throughout her career, Judge Pearson has litigated and
presiding over a range of criminal and civil matters, housing,
public corruption cases. In addition to her work as a
magistrate judge, her legal experience includes serving as an
adjunct professor at Cleveland State's Law School, 8 years as
an Assistant U.S. Attorney in the Northern District, and
several years in private practice.
When one looks to Judge Pearson's life, it becomes evident
that she is someone who cares both about her profession and her
community. Last year, at the Akron Bar Association's annual
bench bar luncheon, she urged attorneys to be better prepared
and to be more civil to one another, something we in these
hallowed halls could benefit from, Mr. Chairman.
At the 2009 Youth in Excellence Performing Arts Workshop,
she shared her life story and accomplishments with a group of
50 middle and high school-aged students from at-risk
communities.
Her community service includes more than a decade of
ongoing work as a board member of the Eliza Bryant Village. The
Eliza Bryant Village is a multi-facility campus providing
services for impoverished elderly citizens, founded by and
named after the daughter of a freed slave.
The facility began simply as a nursing home built to serve
Eliza's mother and other African-Americans who had been turned
away from nursing homes because of their race.
Her background as a prosecutor, private practice attorney,
CPA and Federal magistrate make her uniquely qualified to serve
as a Federal district judge. When asked to describe the most
significant legal activity she has been engaged in, she
replied, ``My most significant legal activity has been my
steadfast commitment to administering equal justice for all,
the poor and the rich, the likeable and the unlikeable, the
first time offender and the repeat offender.''
Chief U.S. District Judge James Carr lauded Judge Pearson
as ``a splendid choice, imminently well qualified by
intelligence, experience and judicial temperament.''
Mr. Chairman and Ranking Member Sessions, both of these
nominees are brilliant, both of them have acute legal minds,
and both of them have terrific records of lifetime community
service.
Thank you.
Senator Kaufman. Thank you, Senator Brown.
I would like to, without objection, enter into the record a
letter from Senator Voinovich commending both of the nominees.
[The letter appears as a submission for the record.]
Senator Kaufman. Now, I would like to introduce Dr. Lynch.
The mission of the Bureau of Justice Statistics is to help
law enforcement by collecting, analyzing and disseminating
information on crime and the criminal justice system, and Dr.
Lynch is one of the foremost experts in all these areas.
He has a great deal of experience in working with the
Bureau. Recently, he served on a National Academy panel that
reviewed the Bureau's programs and recommended steps for their
improvement.
As a professor at John Jay College of Criminal Justice, the
City University of New York and at American University, Dr.
Lynch has taught courses on crime, criminal justice and
research methods. He is the author and coauthor of several
books and articles on crime statistics and victimization,
including Understanding Crime Incident Statistics, the
definitive work in the field.
Dr. Lynch, your credentials are truly impressive.
With that, I would like to give my colleagues the
opportunity to move on to the important things they are doing
and for us to swear in the nominees. Senators, thank you very
much for coming.
I would like the five nominees to step forward and remain
standing. Please raise your right hand and repeat after me.
[Nominees sworn.]
Senator Kaufman. Thank you. Let the record show that each
of the nominees has taken an oath. Please be seated.
Now, the nominees will have an opportunity to recognize
their family and friends and give an opening statement. We will
start with Ms. Freudenthal. Starting with you, I welcome you.
Acknowledge any family members or friends you have with you
here today and then give an opening statement, even if they are
Governor.
STATEMENT OF NANCY D. FREUDENTHAL, NOMINATED TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF WYOMING
Ms. Freudenthal. Thank you, Mr. Chairman. I am pleased to
be here with my family, Dave Freudenthal, my husband; my one
daughter out of a total of four children, Hillary Chen; my
brother, Neill Archer Roan; and, my guest and friend, Rob
Wallace.
I'd like to thank the Committee for being here today, for
your attention, and for your deliberations in this nomination
hearing. I'd like to particularly thank you, Mr. Chairman, for
convening and chairing this hearing.
I would like to extend my appreciation to my home Senators,
Mike Enzi and John Barrasso, for their kind remarks today in
support of my nomination.
Last, I would like to thank the President for the honor of
this nomination.
Thank you.
Senator Kaufman. Thank you.
Judge Marshall.
[The biographical information of Nancy D. Freudenthal
follows.]
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STATEMENT OF HON. DENZIL PRICE MARSHALL, JR., NOMINATED TO BE
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS
Judge Marshall. Good afternoon, Mr. Chairman, and thank
you. I echo what Ms. Freudenthal said. I appreciate the
Committee scheduling a hearing promptly and I know that
involves your work, as well as the Ranking Member.
I thank my friends, Senator Pryor and Senator Lincoln, for
those generous introductions, and the President for nominating
me. I appreciate the Committee's time, all of the members here,
for this important work.
I'm blessed to have my family and some dear friends with me
here today. My wife, Polly, is here and our two daughters,
Adison and Lara Harden. Two of my friends, my closest of
friends and former law partners, Robert Jones and Jim Bradbury
are here, as well as our dear friend, Kay Arnold.
Senator Kaufman. Thank you.
Judge Pearson.
[The biographical information of Denzil Price Marshall,
Jr., follows.]
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STATEMENT OF HON. BENITA Y. PEARSON, NOMINATED TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Judge Pearson. Thank you, Mr. Chairman. I thank you and the
Ranking Member and all of the members of the Committee for the
opportunity to appear before you here today. I also thank
Senator Brown for that gracious introduction and both Senators
Brown and Voinovich for their recommendations, and President
Obama for his nomination.
I'm privileged to be accompanied here today, sir, with
several friends and family members, all of whom have traveled
great distances to be in the presence of the Committee today.
I'm pleased to introduce my mother, Kay Spates, who is
here; my brothers, Wayne Dancie and Kevin Spates; my sisters,
Kassandra Spates and Tabitha Spates. My sister, Renee Dancie,
is home caring for all of the things that need to be done in
our absence.
I have several friends, Mr. Chairman, who are also here
today. Karen Hamilton, a great friend from law school; Diedre
Wolff. Mary Butler is here, as well; Daniel Katz. Phil and
Marilyn Carr are also present today, along with Jay Huntley
Palmer.
Thank you very much for the opportunity to be present and
to have those with me.
Senator Kaufman. Thank you.
Judge Black.
[The biographical information of Benita Y. Pearson
follows.]
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STATEMENT OF HON. TIMOTHY S. BLACK, NOMINATED TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO
Judge Black. Mr. Chairman, good afternoon. Ranking Member,
Senator Sessions, all Senators who are present, it's a high
honor and great privilege to appear before you and we
appreciate the opportunity.
I wish to express my appreciation to the President,
President Obama, for his nomination; to Senator Brown and
Senator Voinovich from Ohio for recommending both myself and
Judge Pearson to this body; and, to all Senators, Senator
Coburn and Senator Franken.
I, too, am pleased to have family with me present. I would
ask that they stand. Best decision I ever made in my life as a
judge or a human being, my wife of 33 years, Marnie Chapman
Black. The most important work we've been engaged in is raising
two daughters. They are both present, Abigail Chapman Black,
Emily Harrison Black; my cousin, who works on the Hill, Heidi
Black; long-time family friend, who lives in D.C., Caroline
Orrick.
Smaller turnout than Judge Pearson's, but we're just as
pleased and honored. Thank you.
[Laughter.]
Senator Kaufman. Thank you.
Mr. Lynch.
[The biographical information of Timothy S. Black follows.]
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STATEMENT OF JAMES P. LYNCH, NOMINATED TO BE DIRECTOR OF THE
BUREAU OF JUSTICE STATISTICS
Mr. Lynch. Senator, I want to thank you all for allowing me
to appear before you. I'd also like to thank President Obama
for this great honor, Attorney General Holder for his support,
and Assistant Attorney General Laurie Robinson for her support.
I would like to acknowledge members of my family. My wife
of 37-plus years, Carolyn DuPont Lynch, is here with me. My
children, Alex and Sarah, would love to be here, but they had
to return to classes and are probably watching me on some sort
of electronic medium; the kind, I'm not exactly sure.
I also have some friends and colleagues and students here
and I would like to tell them how grateful I am for their
support.
With that, I would welcome your questions. Thanks.
[The biographical information of Gerard Edmund Lynch
follows.]
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Senator Kaufman. Great. Now, we will get to questioning. I
am going to yield my first round of questioning to Senator
Franken.
Senator Franken. Thank you, Mr. Chairman. I thank you for
doing that, because I do have to go soon.
Judge Black, as Senator Brown indicated, you have done
significant work in the field of combating domestic violence
and have also been involved with one of my favorite
organizations, the Sheila Wellstone Institute.
Can you tell me how your work on domestic violence shaped
your view of the judicial system?
Judge Black. Thank you for the opportunity to respond to
that, Senator Franken. When I became a municipal court judge
some 16 years ago and served in that position for 10 years,
when I arrived in the busiest criminal court in Ohio, I didn't
know anything about domestic violence. But a third of my docket
dealt with it and I didn't understand.
I would see, typically, women on day one asking me to hold
the accused, saying that they were scared to death, and then
two or three weeks later, when they appeared before me for
trial, they either were not there or they were there telling me
the police got it all wrong.
It took me a long time to be fully educated as to the
dynamics of domestic violence and family violence and over
time, I came to understand that all of us have a responsibility
to confront family violence when we have the opportunity.
As a judge, I was bound by impartiality, but I took the
time to educate myself in the dynamics, became associated with
extraordinary institutions, such as the Sheila Wellstone
Institute, and the work I did in that busy criminal court in
the area of family violence is something I'm very proud of.
Senator Franken. Thank you.
Dr. Lynch, I want to talk to you about an issue that I have
discussed with you in the past, crime reporting in Indian
country. Right now, very few tribes report crime statistics
directly to the Uniform Crime Reporting Program and part of
this is due to lack of funding and the capacity problems.
Some of it is because some states, like Minnesota, actually
prohibit tribal participation in state-sponsored incident-based
crime reporting systems. What can you and will you do to
address the lack of information of crimes in Indian country?
Mr. Lynch. Thank you, Senator. This has been a longstanding
issue. I think when I first came to Washington in 1978, several
years later, there were a number of initiatives under the aegis
of the FBI to improve the collecting of data on the crime among
Native Americans and a number of other efforts have been
undertaken since then and there are some currently underway, as
you know.
As you say, collecting this information is complicated by
issues of sovereignty and jurisdiction and at this point--it's
a very complicated issue. At this point, all I can say is that,
if I were fortunate enough to be confirmed as the head of the
Bureau of Justice Statistics, I would work with other relevant
agencies to see that we have an institutionalized, routinized
set of data on crime among Native Americans.
Senator Franken. Thank you.
I would like to go to Judge Pearson. As you may--at a
luncheon in Mississippi this past month, Justice Scalia raised
a concern that the Supreme Court jurists do not have enough
diversity in their job experience, in their legal experience,
that they all actually are judges.
Moreover, social science confirms that a judge's background
does have an impact on how he or she judges, although not
necessarily on a straightforward manner. A judge's age, for
example, may have more impact on his or her ruling than race or
gender.
So my question to you is this. How do you think that we
should reconcile the fact that judges must follow the law and
treat everyone who comes before them in the court absolutely
equally and fairly, how do you reconcile that with the reality
that experience matters and the diversity of experience can be
a valuable thing on a court, like Justice Scalia?
Judge Pearson. Thank you, Senator Franken, for the
opportunity to speak to that important issue. Diversity
matters, but it's also always important to remember that
personal preferences and predilections have no role in judging.
When you merge those two concepts together, sir, what
happens is you realize that the process changes. The process is
enhanced if members of the bench have diverse backgrounds.
Diverse backgrounds can mean varying genders, races, varying
economic challenges and experiences, such as my accounting
background before pursuing a legal background.
What that allows is for a judge with a diverse range of
skills and background would be able to use a process that would
be different in judging, but not necessarily dictate a
different result; meaning all judges--my judging, in fact, is
based upon an application of the law to the facts. But the
experiences that I've had as an individual with diverse work
and personal experiences allows me to see those facts through a
lens that someone with other experiences may not see.
Therefore, my process may be different, but the result
should always be one that results in an evenhanded application
of the law. And I think by encouraging diversity on the bench,
that can be what the public is guaranteed, sir.
Senator Franken. Thank you. Thank you, Mr. Chairman. I am
afraid I must go now. Also, I have run out of time. I am afraid
I have run out of time, as well.
Senator Kaufman. Thank you.
Senator Sessions--before I introduce Senator Sessions--my
chief of staff went to the university that is in Tuscaloosa and
it would not be right for me not to do this and not
congratulate you on your big win of the national championship.
Senator Sessions. (Off microphone.) As a matter of fact,
the university is surging in its academic excellence and
reaching new levels of prominence, I think, and a great
president. Thank you.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. We are glad to have each of you here.
This is a process we just have to go through, you nominees for
judge.
Ms. Freudenthal, you have got a lot better job security
than your husband, if you get this job.
[Laughter.]
Senator Sessions. So this is the only time anybody ever
gets to ask you questions to make sure that you have the
qualities that are needed for the job, and I would say that to
all of you.
But it is not as if this is the only time. Our staff has
looked at your record. The Bar Association has reviewed your
record. A lot of work has gone into making sure that when this
hearing occurs, that you are asked relevant questions that are
important.
I am not aware of any serious criticisms of any of these
nominees for the bench, but that opportunity exists that
somebody could come forward and then we will just do that and
then we will have a vote.
We are moving the nominees, I think, faster than ever, but
I do not feel any obligation to see how fast we can move
nominees. I think it is a constitutional responsibility that we
do it in the right way.
I guess I would ask each of you if you would share some
thoughts about your mental approach to being a judge, how you
intend to treat the parties and maybe what you think are the
qualities a good judge should have.
I will just ask each one of you to share some thoughts, not
long, but just some general thoughts about that.
Ms. Freudenthal.
Ms. Freudenthal. Thank you, Senator. If I'm fortunate
enough to be confirmed as a district court judge, the
philosophy that I would bring to the bench is, first and
foremost, an allegiance to the law. The qualities, I believe,
that are important are integrity, respect and courtesy to all
the participants in the process, an ethic of hard work, and
impartiality.
The process that I would follow is a search for the law to
determine what does the law mean and then apply the law to the
established facts and reason to conclusions.
Thank you, sir.
Senator Sessions. I think that is a classical definition of
what a judge does. We have had some dispute and discussion
about your background and personalities and biases or whatever,
but I think the commitment that you take as a judge is to,
insofar as you are able, be objective and not be influenced by
personal matters.
Mr. Marshall.
Judge Marshall. Thank you, Senator Sessions. I would echo
what you just said, that the judge's first obligation is to be
impartial, and what Ms. Freudenthal said, as well. That is, we
have to work hard and go wherever the law and the facts take
us.
I think it's very important that everyone who comes in
contact with the court be treated fairly and with dignity and
courtesy and good manners. I would add, too, that it's
important, once a court reaches its decision, for the judge to
express himself or herself clearly so that the parties, both
those who won and the losing party, will understand that they
have been heard, but will hear the reasons why they didn't
prevail that day.
That's important, it seems to me, both for that day and
those litigants, but also so that a judge's ruling can be
reviewed on appeal and if it's wrong, it can be corrected.
Senator Sessions. Well, you had two years as law clerk to
Judge Arnold. Did that warp your brain in any way?
Judge Marshall. It warped my brain in a very good way,
Senator Sessions.
Senator Sessions. That is a good answer.
Judge Marshall. He's a fine man and a great judge and my
judicial role model.
Senator Sessions. Thank you. Ms. Pearson, Judge?
Judge Pearson. Thank you, Ranking Member Senator Sessions,
for the opportunity. I agree with your statement that integrity
is a key characteristic that judicial officers should have and,
if approved by this Committee and confirmed by the Senate and
ultimately appointed by the President, I would continue to
exercise that integrity.
Sir, I also think judicial temperament is of the utmost
importance and I think one of the measures of my judicial
temperament is my past judicial experience; and, as important,
knowledge of the law and a willingness to delve in and to
become expert in, to the extent necessary, areas of the law one
may not necessarily be as familiar with.
As my co-panelist, Judge Marshall, has just said, the
ability and willingness to articulate your decision both orally
and in writing, those are very important characteristics, sir.
Senator Sessions. Thank you. I think that is true and that
means that you have got to work hard at your job. It is not an
easy thing to summarize complexity in a fair way that every
party can recognize that you considered the serious questions
in the case and you addressed them effectively.
Judge Black.
Judge Black. Senator Sessions, thank you for the question.
As to the mental approach one brings to judging and the
qualities that are important, clearly, impartiality and
integrity are the twin bulwarks. Intellectual competence is an
absolute necessity. A commitment to hard work is critical.
There is no place for a lazy judge.
I think the important personal quality a judge needs is
patience, the ability to suspend judgment until you've heard
all of the evidence and all of the facts from all of the
parties.
Living in a home with my wife and two daughters, I've
learned to exercise patience in that regard. In the final
analysis, diligence; we are umpires, we call balls and strikes.
There is a defined strike zone and that is our job as an
impartial arbiter is to make a decision on this case on these
facts and the law that applies to it.
So thank you for the opportunity to speak to that.
Senator Sessions. Thank you.
Senator Kaufman. Dr. Lynch, what do you see as the biggest
challenges for the Bureau of Justice Statistics moving forward?
Mr. Lynch. I think the biggest challenges for the Bureau of
Justice Statistics moving forward are the perennial challenges
to a statistical agency; that is to say, to maintain its
credibility as an independent Federal statistical agency.
I think the way you do that is the same way you always do
that, which is to provide accurate, timely and useful data at
the same time that you're protecting the confidentiality and
maintaining access to the data.
So I think those things have always been key for any
statistical agency.
Senator Kaufman. Good. To follow-up on Senator Sessions, as
I look at the kind of philosophy of judging, can you talk a
little bit, each one of you, about your views on the role of
the court interpreting laws written and passed by elected
legislative bodies?
Why do we not start at the other end with Judge Black?
Judge Black. Thank you, Senator Sessions--excuse me--on
behalf of Senator Sessions, following-up, Mr. Chairman.
The role of the court is to apply the rule of law, to apply
evidence to the facts and the evidence to the law and make an
impartial, neutral decision.
As to the role of the courts in interpreting statutes
passed by Congress, both state and Federal, in the first
instance, there is a presumption that the laws passed by the
legislature are constitutional and if there is any
interpretation of the statute that can be deemed
constitutional, it is the court's role to enforce that statute.
Senator Kaufman. Thank you.
Judge Pearson.
Judge Pearson. Thank you, Mr. Chairman. I agree with what
Judge Black just said and to that, I would also add that the
recognition of precedent is of the utmost importance. Stare
decisis is a term frequently used. And in addition to the
presumption of constitutionality of statutes, the Supreme Court
has set out guidance in its case law that judges can look to in
order to determine if there is a way to judge that a statute is
constitutional and certain criteria that must be met before
determining that unconstitutionality is the only result that
can follow.
Senator Kaufman. Judge Marshall.
Judge Marshall. Thank you, Mr. Chairman. I think the
judge's job in interpreting a statute is, first and foremost,
to pay a lot of attention to the words, because this Congress
and the General Assembly in Arkansas, legislatures generally,
pay attention to the words and they are what are enacted into
law, signed by the executive.
Often, that's the end of the matter. The words are often
enough. Sometimes not the particular words, but the words
within the entire section, looking at the whole of the statute
and trying to figure out what the statute means. That's what I
try to do.
Senator Kaufman. Judge Freudenthal.
Ms. Freudenthal. Thank you. The overarching goal is to give
effect to the legislative enactment. If the statute is clear,
then you apply the law as written; and, if the statute is
ambiguous, there are recognized rules for statutory
construction and you would apply those rules consistent with
the precedent that has been established.
I would be very reluctant to overturn a legislative
enactment given the presumption of constitutionality and I
think, as has been said previously, if there is a construction
to give a statute that would result in its constitutionality,
then you would uphold that statute and apply it to the facts.
Senator Kaufman. Following on Judge Pearson's comment, how
do you see precedent affecting your decisions as a judge?
Ms. Freudenthal. Precedent plays a significant part in
terms of stare decisis. It creates consistency and stability in
the law and in the judicial process. So I would give effect a
precedent.
Senator Kaufman. Judge Marshall.
Judge Marshall. Mr. President, on the precedent point?
Senator Kaufman. Yes.
Judge Marshall. Well, a judge must be bound by precedent.
As a judge on the Arkansas Court of Appeals, for example, it's
much of my work to follow what our Supreme Court says and what
the United States Supreme Court says.
The system couldn't work if we reconsidered every rule of
law in every case. It seems to me it's particularly important
for a Federal district judge, a soldier in the trenches,
responsible both to the Court of Appeals and to the United
States Supreme Court to follow precedent, set his or her own
views aside, of course, but to pay particular attention to
precedent and be bound by it.
Senator Kaufman. Judge Pearson, is there anything you want
to add? You pretty well covered it earlier.
Judge Pearson. Thank you. I agree, sir. There is nothing
I'd like to add. I pretty well covered it earlier.
Senator Kaufman. Judge Black.
Judge Black. Thank you, Mr. Chairman. If I were to be
confirmed as a Federal district judge, I would continue what I
do in my work as a judge and that is to uphold precedent. I'm
bound, all judges are bound by the United States Supreme Court.
In my area, the Sixth Circuit Court of Appeals, they
instruct us in how to apply the law and we are bound by it.
Senator Kaufman. Thank you.
Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman. Welcome to you
all.
Part of the purpose of our hearing is to make sure we have
everything on the record that could be questioned. With the
exception of Mr. Lynch, you all are all lifetime appointments.
So I am going to go into some areas that may seem somewhat
controversial. That is not my intention.
It is my intention to allow you to answer questions that
may be raised so that nobody doubts that 10 years from now when
you are sitting and have had a great career on the bench. So
please take them in the spirit.
But, first, I will go to Mr. Lynch. The Bureau of Justice
Statistics has a very important role as the Justice
Department's primary statistical agency and its mission is to
collect, analyze, publish and disseminate information on crime,
criminal offenders, victims of crime, and the operation of the
justice system at all levels of the Federal Government.
As I am sure you are aware, state statistics can be and
often are manipulated to show what somebody wants those
statistics to show. The credibility of your bureau is going to
depend on the office being free from political influence to try
to massage that in a direction, and I am going to go further on
that.
If confirmed, will you commit to not let politics influence
the data produced by the bureau?
Mr. Lynch. If I am fortunate enough to be confirmed, I
would do that.
Senator Coburn. What steps do you plan to ensure that?
Mr. Lynch. I think there are some very clear guidelines set
out in the principles and practices for Federal statistical
agencies, especially point number two or practice number two,
where it lists a series of authorities that an independent
statistical agency should have in order to protect itself from
interference.
I think if I were so fortunate as to be confirmed, I would
pursue those authorities.
Senator Coburn. Last year, the National Resource Council on
the National Academies produced a report entitled Ensuring the
Quality, Credibility and Relevance of U.S. Justice Statistics.
Are you familiar with that?
Mr. Lynch. Yes, Senator, I am.
Senator Coburn. That report made several recommendations
and I would like to get your reaction. The first notes that
``The Bureau of Justice Statistics generally espouses the
expected principles and practices of a Federal statistical
agency, but it has sustained major challenges to its
independence as a national statistical resource in recent
years,'' and that is a quote.
One of those challenges even included attempts by the
Department of Justice officials to alter the content of
statistical press releases. What do you believe needs to be
changed within BJS to ensure its independence as a purely
statistical and analytical arm of the Office of Justice
Programs?
Mr. Lynch. Senator, I was on that National Academy panel
and I think I--we were not privy, as a panel, to all the
machinations around--I think you may be referring to the firing
of Larry Greenfeld, the former director, allegedly because of a
press release.
So we were not privy to all of that information about the
specifics of what actually happened to Larry and why and what
both sides were and so I can't speak to that.
I can speak to what I would do going forward and I think
what I would do is exactly what the principles and practices
tell us to do; and, that is to say, to have final authority
over the content and form and timing of releases from a Federal
statistical agency.
Senator Coburn. The report also stated that there are major
gaps in the substantive coverage of BJS data, such as white
collar crimes, civil justice, juvenile justice, and the
interaction between drugs and crime.
I am particularly interested in the areas of juvenile
justice and the drugs-crimes relationship. Do you believe that
this recommendation of that panel is justified and if so, how
do you propose to remedy those gaps?
Mr. Lynch. Senator, again, panel members--being a panel
member is quite different from being a director, I'd presume.
Senator Coburn. You are getting ready to find out.
Mr. Lynch. Yes, Senator, if you concur. I think that the
juvenile justice area is complicated, because there are a
number of people involved, the Office of Juvenile Justice and
Delinquency Prevention and other people have--so there is a
type of ambiguous authority.
But I think whatever one would do to address that and other
gaps in the statistical system, I really wouldn't want to
answer on the fly right now. I think I would like to review the
programs sitting as director as opposed to a panel member,
because we can't do all of them. We will have to pick and
choose and I would like to pick and choose those things, if I
were confirmed, with the advice and expertise of the staff.
Senator Coburn. I will look forward to hearing from you
about 3 months after you are into the job, then.
Mr. Lynch. Thank you, Senator.
Senator Coburn. If I may, Mr. Chairman, continue, because I
have similar questions for every--Ms. Pearson, I have only one
question. I have no doubt that you are qualified for this
position.
But as I was going through your information, I came to
something that I cannot come to grips with and I just want to
give you an opportunity to answer.
In your questionnaire, you noted that you are member of the
Animal Legal Defense Fund and according to ALDF's website, it
fights to advance the interests of animals through the legal
system and advocates the adoption of an animal bill of rights,
which provides that animals have the right to have their
interests represented in court and safeguarded by the law of
the land.
Do you adhere to what that group's message is and what is
the precedent therefor?
Judge Pearson. Thank you, Senator Coburn, for the
opportunity to speak to this issue. I am a member of the Animal
Legal Defense Fund. You may also note that my biography
includes that I teach animal law. And what that allows, sir, is
me to use animals and the intersection of animals and the law
to teach a course to law school students.
This circles back to the Animal Legal Defense Fund in that
the Animal Legal Defense Fund has a goal that is not my goal,
but it certainly overlaps with what I teach, and that is
broadening or creating animal rights.
Animal law, however, is much more expansive than that. It
includes animal welfare, but, also, every place where animals
intersect with the law. In estate planning, for instance, if
one wants to make sure that animals are cared for; in tort
situations, if an animal causes harm or if an animal is harmed;
in criminal law, similarly.
Also, you heard Judge Black speak about his work in
domestic relations. Well, there are other organizations that
I'm also a member of, sir, that act especially to allow
battered women a place to place their animals, because many
battered women will not leave a home and leave a dog there.
In fact, there are examples where----
Senator Coburn. I understand that. My question is really do
you really believe animals should have the right to have their
interests represented in a court of law.
Judge Pearson. In certain circumstances, sir, absolutely.
Senator Coburn. What would those be?
Judge Pearson. For instance, and it already happens, this
is not a new and novel idea. For example, in the industry of
food, agriculture, the interests of the animal, which
ostensibly is presented as an interest in doing what is best
and most healthy for individuals who eat animals, that is also
a way in which animal interest is represented.
I don't want to mislead you into thinking that I'm an
advocate for animal rights, because that is not the case. But I
am an advocate for doing what is in the best interest of
animals and, at times, that coincides with what is in the best
interest of animals and humans, which is an example that
agriculture and the representation of issues regarding
agriculture and health--for instance, the H1N1 virus and things
of that sort.
Senator Coburn. One final question on that and then I have
no more questions for you. Is it in the best interest of a
steer to be slaughtered?
Judge Pearson. Probably not in the best interest of the
steer, sir, but then you have to look beyond that. I mean, the
steer is going to lose its life. It's a painful situation and
steers, evidence has shown, through scientific testing, may
have some idea or an apprehension about the slaughter that's
impending.
But the next step is that is it necessary to slaughter the
steer in order to provide food for those who would otherwise go
hungry or perhaps be malnourished without the substance that
this steer's flesh and hide could provide in terms of clothing
and other matters necessary for the well being of animals.
Senator Coburn. I think I have a good understanding of what
you are on that. Thank you.
Judge Pearson. Thank you, Senator.
Senator Coburn. First Lady Freudenthal, thank you, number
one, for being here. I had a couple of questions about the
decision. In 2003, after your husband was elected Governor, you
pledged not to appear before boards and commissions appointed
by your husband and said you would build a Chinese wall between
your law practice and state government.
Why did you later change that policy?
Ms. Freudenthal. Thank you, Senator, for allowing me the
opportunity to respond to that question. The position that was
taken at that time was that I would move my practice away from
appearance before governmental entities that my husband
appointed. That was done in consultation with a professor at
the law school who advised me that there was no ethical
requirement to do so.
Over the course of his time in office, I concluded that
that approach was not in the best interest of my clients; that
the process of dealing with governmental agencies was not one
that needed to be constrained in that fashion.
Most of my practice still remained in Federal court, as
well as state court. But I did choose to move some of my
matters and accept some practice areas dealing with government
agencies.
Senator Coburn. You stated in your questionnaire that in
2001, you were hired by EchoStar Communications to review
legislative activities, speak to legislators and testify before
the House Revenue Committee on a bill under deliberation that
would have changed the definition of telecommunication.
After your husband was elected Governor in 2003, you
continued monitoring the legislation on behalf of EchoStar. Did
you have any ethical concerns about your work for them
considering your husband was the chief executive of the state?
Why or why not?
Ms. Freudenthal. Thank you, Senator. The involvement that I
chose to have at that time for that client was a monitoring one
only. I did not testify before any legislative committees in, I
believe it was 2006 or 2007, and I did not have any occasion to
address the issue with the executive branch.
It was just a matter of following the legislation in that
area so that were the law to be changed, my client would be
fully informed of what the new requirements were.
Senator Coburn. Having been born in Wyoming, that is a very
acceptable answer. Thank you.
Magistrate Black, a couple of questions. During your
campaign for the Ohio Supreme Court in 2000, you stated that
you view the law in the context of time and society. What did
you mean by that statement?
Judge Black. Thank you, Senator, for the opportunity to
respond to that. The law exists today and it existed in the
past and in approaching any legal question, a judge is called
upon typically to interpret the text of a statement and one
does that in statutory construction.
But in society, different issues arise as futuristic
developments occur that may never have been anticipated at the
time the law was written, but the analysis is still the same.
What does the law say? What does it mean?
What changes is merely the context and the time at which a
judge is called upon to interpret the language.
Senator Coburn. So I have a better understanding, do you
believe that judges should view the Constitution and the text
in the context of time and society or what you just said, here
is the application of the law, here is the written law, here is
the background on the written law, and here are the facts?
Judge Black. The former, Senator, the text. But, for
example, do you need a warrant to search somebody's cell phone?
That was an issue that the founding fathers never addressed.
But they wrote the law as to the protection against
unreasonable searches and seizures. So one reads that text and
applies it in a very different context than was originally
written.
Senator Coburn. Thank you. This is a question for all of
the judges and you can just ``yes'' or ``no'' it. I am a firm
believer that the Constitution does not allow judges to use
foreign law in the interpretation of our Constitution. Do you
agree with that or disagree with that?
Judge Black. Which judge did you want to start with,
Senator?
Senator Coburn. Whichever one wants to speak up first. See
who the leaders are.
Judge Black. If you would be willing, I would like to
respond to your inquiry at this time. And the question was
whether we can use foreign law to interpret the Constitution.
No.
Senator Coburn. Magistrate Pearson.
Judge Pearson. Thank you, Senator. No.
Judge Marshall. I don't know. I have not thought about it,
Senator Coburn.
Senator Coburn. Well, there is a document that puts out
fairly clearly what our judges are to use, and it is the
Constitution, the statutes and the treaties, and only the
treaties when they are involved in foreign debate.
So you have a question on whether or not we should use that
in that context?
Judge Marshall. Absolutely not. The Constitution is the
supreme law of the land.
Senator Coburn. The Constitution does spell out the
authority and role of judges and how they interpret law, would
you agree to that?
Judge Marshall. Absolutely.
Senator Coburn. It does say what we are to use to do that,
which is the statutes and the Constitution.
Judge Marshall. Absolutely, yes.
Senator Coburn. That is fine.
Judge Marshall. I'm sorry if I misunderstood.
Senator Coburn. That is fine.
Ms. Freudenthal. Senator, if I have the privilege of being
confirmed, I would look to the Constitution and the statutes
and the precedent that has been set under those.
Senator Coburn. One final question, Mr. Chairman. You all
have related, during your testimony today, the importance of
stare decisis. Can I just have an affirmative that you believe
that that is the ruling body of law that you will reference in
terms of your position as Federal district judges in terms of
the appellate division that you are in, as well as the Supreme
Court?
Judge Black. Senator Coburn, my answer is yes.
Judge Pearson. Senator Coburn, my answer is also yes.
Judge Black. Senator Coburn, my answer is also yes.
Ms. Freudenthal. Yes, Senator.
Senator Coburn. All right. Thank you very much. Thanks for
the indulgence.
Senator Kaufman. Senator Sessions.
Senator Sessions. Thank you. Ms. Freudenthal, with regard
to your experience, I note that you do not have any experience
litigating criminal cases and, actually, I think you have never
tried a case before a jury.
One of the things you will be required to do as a Federal
judge is to impose sentences. There is a congressionally-
established sentencing guideline procured that is pretty
complex. Actually, after a while, you can become real adept at
it; but at first, it is a bit intimidating.
It used to be that that was mandatory and Congress having
the power to set sentences, but somehow the Supreme Court felt
they knew better and they have given a good bit of discretion
now to the sentencing judge.
So I guess my question to you is do you understand that the
sentencing guideline was designed, supported by Senator Kennedy
and Senator Thurmond and Senator Biden and Senator Hatch, was
designed to ameliorate against this idea that your sentence
depended on what judge you were before; that similar crimes
with similar backgrounds and nature should get----
So I guess my question is, will you express how committed
you would be under the normal procedures to follow the
guidelines even if they are advisory today?
Ms. Freudenthal. Thank you, Senator, for the important
question on sentencing. I appreciate that sentencing is a
weighty matter that needs to be undertaken with careful and
sober consideration and that there is significant value to
consistency, as you've articulated that so well.
I want to assure you that I would give consideration to the
sentencing guidelines.
Senator Sessions. Well, I suppose consideration is one
thing, but can you tell us how much respect you would give to
it? You do not have a background in this. Do you come at it
with any views that you can express to us today?
Ms. Freudenthal. Thank you, sir. As you've indicated, I
definitely know that I have my work cut out for me. I plan on
taking advantage of the resources that are available to judges
and judicial education and, certainly, the knowledge and
advice, through consultation with my colleagues.
In that context, I would give consideration to the
sentencing guidelines. I do want to assure you that I
appreciate that sentencing is done on a individual case-by-case
basis.
So in the consideration of consistency, I feel reluctant to
say that I would be committed to those, because I do believe
sentencing is a weighty and individual matter.
Senator Sessions. Well, it is an individual matter and that
is how we end up with two judges, one giving somebody probation
and another one giving them 20 years for the same, because they
think it is a dangerous philosophy.
I suggest, if you lack experience in sentencing, you
scrupulously follow the guidelines, because they were
established through a lot of hard work, how many convictions
the individual has, whether there was violence in the case, how
much was at stake and those kinds of things.
I think, essentially, they are very good. There are some
cases perhaps that they are not appropriate or do not fit
perfectly. But in the long run, I would be inclined to think we
would be better following them than abandoning them.
Judge Marshall and Judge Pearson, you both dealt with the
guidelines, at least to some degree. Could you express your
basic philosophy and how you expect to handle or request from a
defendant to depart from the guidelines perhaps and give a
lesser sentence and maybe have their momma there and their
preacher there, their children there? It can be a tough thing.
Judge Marshall. Thank you, Senator Sessions. I have not
done anything like that in my judicial career and I echo what--
--
Senator Sessions. Well, you have handled plea bargains.
Judge Marshall. No, sir. On the court of appeals, all of
that is done. My experience with the guidelines is soon after
they were adopted, when I was a clerk with Judge Arnold, and we
were struggling with implementing them.
I think there is great wisdom in those guidelines. I think
that I would use the word respect, that they are entitled to
respect from the district courts. There is, I understand, a
long history on this issue of Congress struggling with trying
to achieve some uniformity on sentencing at the same time that,
as Ms. Freudenthal said, we don't lose sight of the individual
in a particular case.
I would not want to prejudge any particular case or issue
and, as I have said before, I would follow the Supreme Court's
precedent on the point, which, as I understand it, has the
guidelines as important and entitled to respect, but advisory
rather than mandatory. As their name implies, they are
guidelines.
Senator Sessions. Judge Pearson.
Judge Pearson. Thank you, Senator Sessions. You are
correct, sir, when you say that sentencing is tough and,
indeed, it should be. It's a very individual decision, but also
one that's likely to have an impact beyond the individual
defendant being sentenced and the advisory nature of the
guidelines does not militate against the value the guidelines
add in ensuring consistency in sentencing.
In fact, now we have two tools. Before there was the
ability to depart upward or downward, which the guidelines
itself permitted, but now we also have the opportunity for
variance to employ that when the guidelines sentence, such as a
probation, is not the appropriate sentence in this individual
case, but perhaps a more lengthy term of incarceration is
important.
So I can assure you that, if confirmed, in my judging, the
sentencing guidelines would play a great and consistent role
and allowing me to be sure that each individual defendant is
given the most appropriate sentence, determined by the facts
and the law.
There is also, as you well know, Senator Sessions, the
codifications of the guidelines, to some extent, in the
statute, 18 USC 3553, which I would also give consideration to.
Senator Sessions. Well, this is not a little matter. If we
do not watch it, we are going to drift back into what courtroom
you appear in and I have seen it in great judges, too, in my
district. One could give probation for the same offense another
would give 20 years for, just which court did you draw.
The sentencing guidelines consider so many things and it is
a little bit complex and some people did not like it at first,
but I think judges came to like it, because without it, you are
faced with pleas on the prosecutor asking for a big sentence
and the criminal and his family asking for leniency. Where do
you go?
So I would just strongly urge you to----
Senator Kaufman. I just want to say this is one where
Senator Sessions and I agree. When Senator Biden was first
considering the sentencing guidelines, we got a letter in 1 day
from a large prisoners group in Attica Prison in New York
hoping that we were going to put sentencing guidelines, because
all too often, to follow-up what Senator Sessions said,
literally, there were two prisoners in the same cell for the
same crime, one for 5 years and one for 15.
It is pretty compelling, the same time for the same crime
is the most humane, fair, just way to go about doing it, again,
taking into account individual judges faced with individual
cases.
But I think Senator Sessions and I both say the guideline
are put together, they have been in place for quite a while and
what we are trying to do is have people feel that they are all
treated uniformly before the law.
Senator Sessions. I believe you were here when all that
occurred, working with Senator Biden.
Senator Kaufman. I was a staff person.
Senator Sessions. I am sure he did what you told him. We
all do.
[Laughter.]
Senator Sessions. Judge Black, you were asked about the
idea that you view the law in the context of time and society.
Justice Scalia once pointed out that the problem with that is--
now, you have got a good way, I think, going to the nub of it--
is that there is an, quote, ``impossibility of achieving any
consensus on what precisely is to replace original meaning once
that is abandoned.''
So I think it is a dangerous thing and a serious matter,
indeed, if you replace the original meaning by what a judge
today might devine he or she thinks it ought to say today. Do
you see that danger?
Judge Black. Thank you for the opportunity to comment on
this, Senator. I see that danger and when I approach statutory
construction or constitutional interpretation, first and
foremost, I read the text, what does it say and what does it
mean. And if it's clear and unambiguous, the analysis is over.
Senator Sessions. Well, unambiguous in terms of--all right.
We could go round and round on this.
Judge Black. We could.
Senator Sessions. Scalia and others have for years and
years.
Judge Black. Indeed. But if I'm confirmed as a district
judge and have that high honor, great privilege, my work is not
going to be extraordinarily lofty constitutional statutory
interpretation, in large part. It's going to be the bread-and-
butter of the Federal district courts doing things like
applying the sentencing guideline.
Having been a sentencing judge for 16 years, I will afford
the sentencing guidelines substantial deference and respect. I
appreciate them. I'll tell you, in the Sixth Circuit, if you
depart, you better have a specific, substantial, reasonable
reason or you'll get reversed. So perhaps the Sixth Circuit's
work may bring you some confidence.
Senator Sessions. Well, I think Judge Black, based on his
experience, has given just good advice. I think, in the long
run, unless you have come to know something special, you would
be better off following the guidelines, because you can get off
base.
Dr. Lynch, I think the Bureau of Justice Statistics is a
very important office and I think it is very important that it
preserve its, I think, pretty solid reputation as being
independent and objective in its work.
I have never seen a President or an Attorney General yet
that did not have beliefs and a philosophy about how they think
the office should be conducted. If they did not have that, they
are not fit for the job, in my opinion. It is a job that
requires leadership and belief and conviction and a philosophy.
But you guys are supposed to give us the right data. If the
Attorney General went out and made a big speech last week and
your data does not support it, what is your view about how you
should conduct your office?
Mr. Lynch. Senator, I think there is some very good
guidance to be taken from the principles and practices of
Federal statistical agencies and I think, if I were fortunate
enough to be confirmed, it would be that guidance that I would
adhere to in conducting myself in the office.
Senator Sessions. Well, Senator Coburn, I think, asked you
some questions along that line, but I would just say that your
group, when you were part of that study reviewing BJS programs,
you recommended that BJS be moved out of Justice Programs and
instead to report to the Attorney General and Deputy Attorney
General directly, the idea that it would make it more
prominent.
I am inclined to think that the more you get prominent, the
more you get politicized and the danger that it is. When I was
United States Attorney for 12 years, I always read those
reports. I thought they were just full of insight, just so many
things that actual objective data would convince you that your
original thought was wrong, the facts do not bear it out.
So I would just say, first of all, I doubt that you should
move the office. Second, I would charge you that you have got
to protect the integrity of that office. You have said you will
and I would have to take you at your word on that.
I know, in 2005, a dispute arose between the director of
BJS and the Assistant Attorney General regarding the content of
a press release. Did you talk about that with Senator Coburn?
Mr. Lynch. Senator Coburn didn't bring it up. I referred to
it indirectly.
Senator Sessions. Well, your panel recommended the
Department of Justice not be permitted to make changes to the
content or timing of the release of BJS work product, and I
think that was probably a good approach. It is one that a good
Attorney General should follow.
Senator Kennedy and I supported and were responsible for
the passage of the Prison Rape Elimination Act of 2003. I
understand you have criticized that or at least the part that
required a review panel.
Mr. Lynch. Are you referring to the panel report, Senator?
Senator Sessions. Right. The panel report, when you were
part of that panel.
Mr. Lynch. The panel did make comment on that, yes.
Senator Sessions. Do you recall what it is you did not like
about that report?
Mr. Lynch. When you're saying ``you,'' again, it's the
panel that you're referring to, Senator?
Senator Sessions. Well, you are stuck with it, unless you
disavow it.
Mr. Lynch. No. It's just I didn't write it. I didn't have
authorship, but I was a panel member. I think that during--what
the panel, I think, felt uneasy about with respect to PREA, I
think, was the commingling of statistical functions with
enforcement functions.
If you look at the principles and practices, they make a
big point of that, that those should be kept distinct, if at
all possible.
Senator Sessions. That has got some validity to it and I
would agree.
You have written a book about immigration and written an
article for Casa de Maryland, which is a fairly controversial
group, taking some pretty aggressive pro-immigration issues.
You wrote that ``Empirical research generally does not
support the allegation that immigrants are involved in criminal
activity to a greater degree than the native population,''
close quote.
Well, we certainly--I totally agree that most immigrants of
this country, even those that have entered unlawfully, abide by
most of the laws of this country, except for immigration. So I
do not dispute that.
But this was a serious argument you made. It is a matter of
some national discussion and you make that fairly firm
statement. But it has been estimated that illegal immigrants
make up 27 percent of the Federal prison population, and that
is a stunning number to me.
That is not people being held waiting to be deported. These
are people who have been convicted of other crimes, such as
assaults, thefts, drugs and that kind of thing.
Is that still your view on that subject?
Mr. Lynch. Senator, let me correct one thing. You referred
to a group, La Casa, I don't recall writing an article for
them. I recall them taking excerpts from an article that I did
or quoting it.
Senator Sessions. You are right. My staff just gave me a
note. I did not understand it, but that is correcting me. You
are correct. I apologize. It was they who quoted your article,
which is quite different.
Mr. Lynch. Trust me, Senator, every academic has cited
every letter from his mother. So I remember that. So with
respect to my--I did that research.
Interestingly enough, I started my interest in immigration
with my interest in sentencing, comparative sentencing, and I
was trying to figure out why the Germans could have such a low
incarceration rate and I assumed what they were doing was
deporting summarily foreigners who were engaging in crime, and
that's how I started to tug at this particular thread.
So I had looked at it in a variety of contexts across
national comparisons, as well as just domestically, and I
stopped looking at it intently around 2003 or 2004. And I
think, at that time, that's what the data led us to believe.
Senator Sessions. Well, thank you. I really feel like that
Office of Justice Programs and BJS, OJP, all of these things
have the potential, we have talked about this before, Senator
Kaufman and I have, to really provide us some leadership in how
to make criminal justice in America better; other parts, too,
but particularly the criminal justice area.
That is a big job you have got. It requires independence
and rigorous analysis. But if we can provide leadership and
good data to states and localities who are wrestling with how
to improve their law enforcement, I think we can reduce crime
or reduce prison populations and make the system work better.
I do think we have an appointment to talk some more about
that. But I would like to say I would be willing to hear from
you if, in the course of your work, you conclude that, pretty
clearly, if we did A and B instead of C and D, we would get a
better result. I would love to hear you come forward and say,
``Senator, you ought to consider this policy change,'' and I
would appreciate it if you would feel free to do that.
Thank you.
Senator Kaufman. I agree with Senator Sessions and I think
when you look at the big change in terms of how we dealt with
crime, positive things about how we dealt with crime the last
20-some years, it has been primarily around the use of
statistics and new ways of doing it, using statistics in order
to solve problems and deal with them. So I want to thank you
for that.
If we do not have anymore questions, we will hold the
record open for a week for members of the Committee who wish to
submit questions.
Chairman Leahy has a letter, without objection, I would
like to put into the record.
[The letter appears as a submission for the record.]
Senator Kaufman. Again, I want to thank the nominees for
being here and I want to thank their families. It is a great
sacrifice you are making, it is a great sacrifice your family
is making. But I will tell you what. When you look back on life
from where I am, the fact that you were there helping your
country when your country needed it is something that just
cannot be topped in terms of satisfaction.
So I want to thank you. You are qualified. We are grateful
you are doing this service.
With that, we stand in recess.
[Whereupon, at 4 p.m., the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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THE NOMINATIONS OF GLORIA M. NAVARRO, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE DISTRICT OF NEVADA; AUDREY G. FLEISSIG, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI; LUCY H. KOH,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
CALIFORNIA; JON E. DEGUILIO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF INDIANA; TANYA WALTON PRATT, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA; JANE E. MAGNUS-
STINSON, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
INDIANA
----------
THURSDAY, FEBRUARY 11, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 11:28 a.m., Room
SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar,
presiding.
Present: Senator Sessions.
OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM
THE STATE OF MINNESOTA
Senator Klobuchar. I am pleased to call the nominations
hearing of the Senate Judiciary Committee to order.
Senator Sessions and myself are here. We are even starting
a few minutes early, in light of how many days our nominees
have been waiting. We are very sorry about this, and I know you
had your families in, you dealt with canceled flights and
blizzard conditions. Of course, in Minnesota, we call this
weather ``fair to partly cloudy''.
[Laughter.]
Senator Klobuchar. We do welcome your friends and family. I
know we're considering six distinguished nominees today from
Indiana and Missouri, Nevada and California. I can tell you,
I've had all week to prepare for this hearing, so I know all
your biographies in great detail.
We're also excited to welcome several home State Senators
to introduce our compelling nominees, including our
distinguished Majority Leader, Senator Harry Reid. I would say
more about them, but Senator Reid has a very busy schedule
today. I know that he is here to introduce Gloria Navarro, and
I understand that, if she is confirmed, she will be the only
woman and the only Latina on the Federal District Court in
Nevada.
Before I begin, Senator Sessions, before Senator Reid
begins, would you like to say a few words?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Well, I look forward to a good hearing.
We are having hearings, I believe, on six today. That is a good
case. I am glad to have the Majority Leader here. I know he has
an incredible burden of people like yourself, who are always
trying to get him to do things.
[Laughter.]
Senator Sessions. So, Senator Reid, we would be glad to
hear from you at this time.
Senator Klobuchar. Senator Reid. Senator Reid, want to turn
on your microphone there.
PRESENTATION OF GLORIA M. NAVARRO, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA BY HON. HARRY REID, A U.S.
SENATOR FROM THE STATE OF NEVADA, SENATE MAJORITY LEADER
Senator Reid. First, I want to read a statement by Senator
Ensign. He asked me to do this:
``The snow in Washington, DC has canceled yet another
flight so I am unable to appear before the Judiciary Committee
today to join Senator Reid in introducing a distinguished
Nevadan. I wish I could be there in person to tell you that I
believe Gloria Navarro has the relevant experience and
qualifications and respect for the law that is required of a
District Court judge.
Gloria has been a dedicated public servant, and Nevadans
should be proud to have this honorable individual on the bench.
As a first-generation Cuban-American, Gloria embodies the
spirit of America. I am glad for this opportunity to introduce
the proud mother, wife, and public servant to my Senate
colleagues. Thank you, John Ensign.''
Let me say to this distinguished Judiciary Committee, I am
terribly impressed with this Nevadan's professional record and
commitment to public service in virtually every area of her
life. Getting to know her has been a good experience for me.
She is very personable and professional and is devoted to
justice and the rule of law.
We have talked about our families, shared respect for the
law, and our experience growing up in Nevada. She is yet
another example of the American story. As Senator Ensign
mentioned, daughter of an immigrant family from Cuba, and of
course she speaks Spanish fluently. She's learned English and
her ABC's watching ``Sesame Street''. Today, she is an
outstanding attorney who chose to serve her community.
She will be the first Hispanic, as Senator Klobuchar
mentioned, to sit on the bench in the District of Nevada, the
first Hispanic woman. It is clear that she is well--prepared to
do this job. She is currently the Chief Deputy District
Attorney in the Office of County Counsel, Clark County, Nevada,
the Las Vegas area.
You have her resume; it speaks for itself. But I want to
just say this: I have the ability to appear before different
groups, and a lot of times I speak to entities that I have to
kind of get a good background first before I speak to them
because I think sometimes they know more than I know.
In this instance, I feel very comfortable talking about a
trial and what they mean. I've had the good fortune to try over
100 cases to juries, and I know how important a judge is in the
judicial system we have in America today.
Gloria is not rated as high as she should be rated. Why?
The ABA says she hasn't had judicial experience. That is
upsetting to me. If they based their ratings on people having
judicial experience, that would mean that, according to them,
every person that seeks a seat on the bench has to have
judicial experience, maybe a municipal court judge, maybe a
justice of the peace.
I just cannot accept that and I think the ABA should get a
new life and start looking at people for how they're qualified
and not whether they've had judicial experience. I think one of
the problems we have in our Federal judiciary, is we have too
many people who have never seen the outside world.
I think the present make-up of our Supreme Court speaks of
that. I asked President Obama, let's get somebody on the court
that has not been a judge. They need to do more than think of
themselves as these people that walk around in these robes,
with these fancy chambers they have.
I think we need people on the bench who have been out
there, like Gloria, who has had to go to court to get a corrupt
public official removed from office. She did that. Somebody who
has defended somebody who has been convicted of murder and was
sentenced to death; she's done that. Somebody who's been in the
private practice of law and had to ask somebody for money for
their fees, to pay their bills.
So, this woman will be a terrific judge. She has had
experience in the real world of government, the real world of
the law. Again, I hope the ABA stops rating people based on
whether or not they've had judicial experience. I think that's
fine if they have that part of it, but don't rate somebody not
as qualified because they haven't been a judge before.
Senator Klobuchar. Thank you very much, Senator Reid. And
thank you for those thoughtful comments. Certainly, you would
be someone who would know what it's like to come somewhere with
different experience, as you started your career in the Capitol
working as a police officer right in this building. So, thank
you very much. We are excited to hear from your nominee.
Senator Bayh is here from Indiana, and I know that you have
three excellent nominees to introduce. I will tell you, my
favorite one was the woman judge, Tanya Walton Pratt, who is
currently in a private law firm with her father, husband, and
brother. Is that correct? No, it's not? It was correct. You
were at a private law firm with your husband, father and
brother. So, I thought that would be very good evidence of a
patient temperament. So, very good.
Senator Bayh, to introduce the three nominees.
Senator Bayh. We not only talk about family values in
Indiana, we practice them, Senator.
Senator Klobuchar. Very good.
PRESENTATION OF TANYA WALTON PRATT, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA; JON E. DEGUILIO,
NOMINEE TO BE DISTRICT JUDGE FOR THE NOTHERN DISTRICT OF
INDIANA, AND JANE E. MAGNUS-STINSON, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA BY HON.
EVAN BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA
Senator Bayh. Thank you very much, both Senator Sessions,
Senator Klobuchar. I appreciate this opportunity. I also want
to thank our nominees for their perseverance here in the face
of Snowapalooza, or Snowmaggedon, whatever we're calling it
these days.
Senator Klobuchar. We are calling it the Snowmination here.
[Laughter.]
Senator Bayh. I thought this was just weather as usual in
Minnesota. But in any event, we're a hardy breed in Indiana,
just as you are. I'm grateful to them for sticking it out here,
because they were scheduled to go forward yesterday.
So, Senator Klobuchar, Ranking Member Sessions and other
distinguished members of the Committee who could not be with us
but are represented by their able staff here today, I want to
thank you for the opportunity today to introduce three
outstanding Hoosiers who have been nominated to serve as U.S.
District judges.
I was proud to join with Senator Lugar to recommend these
exemplary individuals to the White House and I am confident
that each will be an excellent addition to the Federal bench.
Before I introduce these three nominees, I would like to
comment briefly on the state of the judicial confirmation
process, generally. In my view, this process has too often been
consumed by ideological conflict and partisan acrimony. This is
not, I believe, how the framers intended us to exercise our
responsibility to advise and consent.
During the last Congress, I was proud to work with Senator
Lugar to recommend Judge John Tinder as a bipartisan consensus
nominee for the Seventh Circuit Court of Appeals. Judge Tinder
was nominated by President Bush and unanimously confirmed by
the U.S. Senate by a vote of 93:0. It was my hope that Judge
Tinder's confirmation would serve as an example of the benefits
of nominating qualified, non-ideological jurists to the Federal
bench.
In selecting the three qualified individuals sitting before
you today, President Obama has demonstrated that he also
appreciates the benefits of this approach. I was proud to once
again join with Senator Lugar to recommend these nominees to
President Obama, and I hope that, going forward, other Senators
will adopt what I call ``the Hoosier approach'' of working
across party lines to select consensus nominees.
I would also like to personally thank Senator Lugar for his
extraordinary leadership and for the consultative and
cooperative approach he has taken to judicial nominations.
During my time in Congress, it has been my privilege to forge a
close working relationship with Senator Lugar on many issues.
This has been especially true on the issue of nominations.
When a judicial nominee from Indiana comes before this
Committee, our colleagues can be confident that the name being
put forward enjoys bipartisan support, regardless of which
political party is in the White House or controls a majority in
the U.S. Senate.
I also want to briefly note the historic nature of the
nominees seated before you today. In particular, if confirmed,
Judge Tanya Walton Pratt would be our State's first African-
American Federal judge. If Judge Jane Magnus-Stinson were to
join her on the Federal bench, it would double the number of
female Federal judges in the State of Indiana.
I hope that both will be confirmed and that their
appointments as Federal judges will inspire Hoosier children of
all backgrounds to pursue their dreams and will show them that,
in America, anything is possible if you study hard and play by
the rules.
On the merits, these three talented nominees share many
common attributes that make them well-qualified for lifetime
appointments to the Federal judiciary. All three have been
recognized as leaders in the Indiana legal community and all
have the experience, insight, background, and temperament that
Hoosiers expect and deserve from their judges.
These nominees have shown themselves to be deserving of the
public trust. They have demonstrated the highest ethical
standards and a firm commitment to applying our country's laws
fairly and faithfully. In so doing, they have earned the
respect and support of Indiana's judges, lawyers, elected
officials, and community leaders.
In addition to their good judgment and impressive knowledge
of the law, I am confident that each of the nominees
appreciates the limited role of the Federal judiciary. They
understand that in our constitutional system of government, the
appropriate role for the judge, is to interpret our laws, not
to write them.
Along with being accomplished attorneys, all of these
nominees are outstanding citizens. They are role models in
their respective communities, not only because of their
considerable professional accomplishments, but because of their
civic involvement and their commitment to improving the lives
of their fellow Hoosiers.
Most importantly, in their professional and civic work,
each of these nominees has shown themselves to be dedicated to
the pursuit of the bedrock ideal of our American judicial
system: equal justice under the law.
I am confident that this group of nominees will serve the
people of Indiana and the United States with great distinction
and will help ensure the speedy and efficient administration of
justice for all of our citizens.
I would like to, first, introduce Jon DeGuilio, who has
been nominated to serve in the Northern District of our State.
If confirmed, Mr. DeGuilio would fill the seat once held by
Hon. Judge Allen Sharp, who passed away last year after a long
and distinguished career serving our State.
Mr. DeGuilio has extensive experience in Federal court and
has earned a well-deserved reputation as a tough prosecutor.
From 1993 to 1999, he served as the U.S. Attorney for the
Northern District of Indiana, during which time he led efforts
to aggressively crack down on crime and drugs and to make our
streets safer.
Prior to his service as U.S. Attorney, Mr. DeGuilio served
as the prosecuting attorney for Lake County, as well as the
public defender in that county. He is the former president of
the Hammond City Council and a former legal advisor to the Lake
County Sheriff's Office. A graduate of Notre Dame and
Valparaiso University School of Law, next year Jon will
celebrate his 30th wedding anniversary with his wonderful wife,
Barbara. Together, they have two children, Suzanne and
Christopher.
I would next like to introduce Judge Jane Magnus-Stinson,
who has been nominated to fill one of two vacancies in our
Southern District. The Southern District has a special place in
my heart because I once clerked there shortly after graduating
from law school, so I saw the internal workings of our court
system in that district firsthand; it was a formative
experience for me.
Judge Jane Magnus-Stinson is extremely well-qualified to
serve on the Federal bench. She has extensive trial experience,
having served as a judge on the Mirren County Superior Court
from 1995 to 2007. During this time, she was recognized as a
leader among Indiana jurists, serving on the board of directors
of the Indiana Judicial Conference and the Board of Managers of
the Indiana Judges Association.
Judge Magnus-Stinson also has valuable experience presiding
in Federal court, having served as a Federal magistrate judge
in the Southern District since 2007. Judge Magnus-Stinson's
devotion to the fair and efficient administration of justice
has been recognized by her fellow Hoosiers. She has been
honored as the ``Judge of the Year'' by the Indiana Coalition
Against Sexual Assault, and as an ``Outstanding Judge'' by the
Indiana Coalition Against Domestic Violence.
In recommending Judge Magnus-Stinson, I have the benefit of
being able to speak from personal experience, as she served as
my counsel while I was Governor of the State of Indiana. She is
a cum laude graduate of Butler University and Indiana
University School of Law.
Judge Magnus-Stinson is married to Bill Stinson, and they
have two wonderful daughters, Jill and Grace.
The final nominee I would like to introduce today is Judge
Tanya Walton Pratt, who has also been nominated to serve in the
Southern District of our State. Judge Walton Pratt is highly
qualified to serve as a U.S. District Judge. She has extensive
trial experience, having served as a judge in the Marion
Superior Court since January 1997. For the vast majority of
this time, she presided over Major Felonies in the Criminal
Division and was responsible for managing dozens of jury trials
every year.
Judge Walton Pratt has been recognized as a leader among
Indiana jurists and currently serves on the Executive Committee
of the Marion Superior Court system, and as supervising judge
of the Marion County Juvenile Detention Center, and on the
board of directors of the Marion County Bar Association.
In addition to her work as a judge, Tanya Walton Pratt has
also been recognized as a leader in her community. She has also
been honored with numerous awards, including the Career
Achievement Award from the Indianapolis Archdiocese, and the
Key to the City of Muncie. She is a graduate of Spelman College
and Howard University School of Law.
I also understand, Judge Pratt, that back in the day--my
colleagues might be interested in this. Back in the day, my
father and her father served in the Indiana General Assembly
together. There are some wonderful black-and-white photographs
in the State legislature commemorating their service together.
It is my pleasure to introduce her today as a worthy and
historic nominee to the Federal bench.
In closing, I would like to emphasize my personal belief
that each of these nominees before you today possesses the
temperament, intellect, and even-handedness necessary to serve
as a Federal judge. I have high confidence that, if confirmed,
they will be superb additions to the Federal bench, and I am
pleased to give each of them my highest recommendation.
Madam Chairman, Ranking Member Sessions, it is my distinct
pleasure to present to this Committee for your consideration
Jon DeGuilio, Judge Jane Magnus-Stinson, and Judge Tanya Walton
Pratt.
Thank you for your courtesy today. It's always good to come
before this Committee. My father served on this Committee for
years, his entire tenure in the Senate, so the Judiciary
Committee has a fond spot in the Bayh family heart.
Senator Sessions. Thank you.
Senator Klobuchar. Thank you very much, Senator Bayh. We
really appreciate it.
And now we have Senator Boxer. Before that, I just wanted
to put, Senator Bayh, the statement from Senator Lugar in
support of these nominees in the record. Thank you.
[The prepared statement of Senator Lugar appears as a
submission for the record.]
Senator Klobuchar. Senator Boxer is going to be introducing
Judge Lucy Koh. If she's confirmed, she will be the first
Korean-American woman to be a Federal judge in the entire
country.
Senator Boxer.
PRESENTATION OF LUCY H. KOH, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF CALIFORNIA BY HON. BARBARA BOXER,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. That's right, Senator.
Senator Klobuchar, Senator Sessions, I just personally want
to thank you so much for not allowing the weather to interfere
with your work and ours in filling these crucial posts. I know
it was very special to my particular nominee here today that
I'm going to introduce, Judge Lucy Koh, who came here with a
large contingent of her family, through the snows, and 3,000
miles traveled. So, it meant quite a bit.
I would ask if Judge Lucy Koh, who has been nominated to
the Northern District Court, would stand at this time. I would
ask if she would have her family stand so we could see who came
with her. It's quite a contingent. Well, we're just so happy
that they were all here. I want to congratulate all of you on
this very important day.
Lucy Koh is very well-respected by her colleagues in the
California legal community and she'll make an outstanding
addition to the Federal bench. Judge Koh is the daughter of two
proud parents who risked much to come to America and provide
for their families. Her mother escaped from North Korea at the
age of 10 by walking for two weeks into South Korea, a
dangerous trek that required her to hide from North Korean
soldiers along the way. Her father fought against the
Communists in the Korean War, and later emigrated to the United
States. He worked as a busboy and a waiter in Maryland while
attending Johns Hopkins University, later bringing the rest of
the family here.
Judge Koh is the first member of her family to be born in
the United States of America. Then her family moved to
Mississippi, where her mother taught at Alcorn State
University, the Nation's first historically African-American
land grant college. During this time, Judge Koh was bussed to a
predominantly African-American public school, where many of her
classmates lived in poverty. Her childhood experiences provided
inspiration for her to pursue a career in the law and work for
the NAACP Legal Defense Fund during law school.
Judge Koh attended Harvard Ratcliffe Colleges as a Harry S.
Truman Scholar, graduating magna cum laude. After college, she
attended Harvard Law School, where she was awarded ``Best
Brief'' in the school's Moot Court competition.
Judge Koh has had a diverse career in the practice of law
that makes her uniquely qualified to serve as a Federal judge.
She has worked in policy, serving as a fellow for a
Subcommittee of the Senate Judiciary Committee and in policy
positions at the Justice Department. She served as a Federal
prosecutor in Los Angeles, where she handled financial fraud,
narcotics, public corruption, and violent crime cases.
She has received awards and recognition for her work as a
prosecutor, including a sustained ``Superior Performance''
award and an award from then-FBI Director Louis Freeh for her
prosecution of the $54 million securities fraud case. She was a
litigator in private practice prior to becoming a State court
judge.
During her time in private practice, Judge Koh worked on
complex litigation matters involving security and intellectual
property, primarily appearing in Federal court. She led the
trial and the appellate team in the landmark patent case, In
Re: Seagate, where a new standard for wilful patent
infringement was established for the first time in years.
With these credentials, it is easy to see why Governor
Arnold Schwarzenegger appointed her to the California Superior
Court in 2008, where she once again excelled as a judge,
handling a docket of both criminal and civil cases. Governor
Schwarzenegger said, ``Simply put, Judge Koh exemplifies the
very best of the legal profession and will be an excellent
Federal judge''. Here are the words of Judge Katherine
Gallagher, who was the presiding judge of the Santa Clara
County Superior Court when Judge Koh was appointed: ``Judge Koh
is universally held in high esteem, and well-liked. She has a
reputation for being prepared, thoughtful, intellectually
honest, and fair. She has demonstrated exemplary judicial
temperament.''
And here are the words of Santa Clara District Attorney
Delores Carr: ``Prosecutors appear regularly before Judge Koh.
Judge Koh has an excellent reputation for being fair and
impartial to both sides. She is respectful to victims of crime,
defendants, witnesses, and lawyers, and is careful and
deliberate in her decisions.
Like her career, the support for Judge Koh is diverse. I
already mentioned the bipartisan support she has. In addition,
she is endorsed by a wide group of supporters, such as former
Massachusetts Republican Governor William Weld, Santa Clara
County Sheriff Laurie Smith, former Bush Office of Legal Policy
Director Via Dinn, the National Asian-Pacific Bar Association,
and the Asian-American Justice Center.
I would like to submit a group of the letters of
recommendation we have received in support of Judge Koh for the
record, if I might. May I introduce those letters for the
record?
Senator Klobuchar. Yes, you may.
[The letters appear as a submission for the record.]
Senator Boxer. So, in conclusion, as Senator Klobuchar has
stated, Judge Koh's nomination is historic. If confirmed, she
would be the first Korean-American in United States history to
serve as a Federal District Court Judge.
I am so proud to be here today with Judge Koh, her family,
and also the other outstanding nominees that will appear before
you. I close by congratulating Judge Koh and the other nominees
and their families, and I urge my colleagues in the Senate to
move swiftly to confirm these nominees to the Federal bench. I
thank you so very much for your indulgence.
Senator Klobuchar. Thank you very much, Senator Boxer. We
look forward to hearing from the nominee. Now we have Senator
McCaskill, who I know is going to introduce Judge Audrey
Fleissig, who is obviously a very qualified nominee, Senator
McCaskill, because she attended Carlton College in Minnesota,
which you should know, Senator Sessions, in Northfield,
Minnesota, is called the ``hometown of cows, colleges, and
contentment''. True story.
Senator McCaskill.
PRESENTATION OF AUDREY G. FLEISSIG, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF MISSOURI HON. CLAIRE
MCCASKILL, A U.S. SENATOR FROM THE STATE OF MISSOURI
Senator McCaskill. Well, I was going to thank you, Madam
Chairwoman and Senator Sessions, for continuing to have this
hearing today. I think it would have been easy to say, well,
let's just wait. I appreciate the fact that you all are making
this happen.
There are a lot of people who came to Washington for their
hearing and they have had an unexpected several-day vacation in
Washington. I'm glad that we're going to be able to get this
done, especially for Judge Fleissig, who has a lot of work back
in St. Louis she continues to do, and needs to continue to do,
as a magistrate of the Federal court there.
Yes, she graduated from Carlton College magna cum laude and
Order of the Coif at Washington University Law School. Clearly,
this woman has the brains. Really, what we're looking for here
is intellect, attitude, and character. Those are the three legs
of the stool for a lifetime appointment to the Federal bench.
The brains. There is not a problem here. This is a very
smart woman who respects the law and has the right attitude
about the law because she continues to teach. Even though she
runs an incredibly busy docket as a magistrate, she has
continued to teach, especially in the area of trial practice,
as an adjunct professor during her time on the bench.
Now, attitude. Audrey Fleissig has a very simple idea, that
she owes the litigants her hard work and her respect. That's
what you want. I know both of you have been in front of many
judges, trial judges, in your careers, as have I. Really, at
the end of the day, you just want a judge that is working as
hard at it as you are and is respectful, not just to the
lawyers, but importantly, to the clients. That is the kind of
reputation Judge Fleissig has, incredibly hard-working, very
fair, and very respectful of the litigants in her court.
Character. You know, it's so easy once you get a black robe
to focus on your family and your work, judge. You've got a
great excuse to do nothing else. No one would ever think you
were a slacker. As a mother of two children and being active in
her children's schools and being on the bench, no one would
ever really raise an eyebrow that you weren't out there doing
things in the community. So when you have a judge that not only
takes off the robe for her family, but takes off the robe for
her community, it should tell you a lot about her character. It
should tell you about the kind of person she is.
Even though her children are grown now, she continues to
work in a community program, helping young children get excited
about reading, three- to-five-year-olds that need role models,
that need that extra spark. She continues to work in a not-for-
profit capacity in a charitable capacity for these young people
so that they can have the advantages she had, after going to
public school, of getting a first-rate higher education and a
career that is full of the challenges and rewards of public
service.
I think she's going to be an excellent Federal judge. When
I first realized I was going to have some kind of role in this,
I remembered all the times I looked down my nose about Federal
judges: lifetime appointments, they aren't accountable to
anybody, they think they know everything, they think the people
that work in the State system are stupid. I really have had
some comments in my career that were not kind to Federal
judges.
So this is my first time to have a role in trying to help
select a Federal judge, and my biggest concern was that I find
a person who would never take that lifetime appointment as
anything other than a challenge to do the very best for the
public. I am confident we found that person in Audrey Fleissig
and I'm proud to have a chance to introduce her this morning. I
thank the Chair and the Ranking Member for their indulgence and
their time this morning.
Senator Klobuchar. Thank you very much, Senator McCaskill.
The nominees can now come up. We're looking forward to
hearing from you.
Okay. Will you raise your right hand?
[Whereupon, the witnesses were duly sworn.]
Senator Klobuchar. All right. We are looking forward to
meeting your families. I was thinking, as Senator Boxer
introduced you, Judge Koh, of having those two little kids in a
hotel room for 4 days. If that's what happened, that must have
been a lot of fun. So, I think it would be very fitting that
you introduce your family, and friends or family that are here,
as well as we'd like to hear from all of you. So, maybe we'll
start with Ms. Navarro. Thank you.
STATEMENT OF GLORIA M. NAVARRO, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA
Ms. Navarro. Thank you very much, Madam Chair and Ranking
Member. I'd like to begin, first, by thanking the Lord my God
for the opportunity to be here today. Unfortunately, my family
and friends could not be here. They had many flights canceled,
rescheduled, and canceled.
Senator Klobuchar. Well, we'll send them a DVD.
Ms. Navarro. Yes. I know that they are here in spirit with
me, and I would like to take a moment to acknowledge them and
their attempts to be here: my husband, Chief Deputy District
Attorney Brian Rutledge; my oldest son, Scott Joseph Rutledge,
who is 11; my middle son, Matthew Ryan Rutledge, who is 9; and
my youngest son, Wyatt Luke Rutledge, who is 6; my mother,
Gloria Dee Navarro, who has always been the wind beneath my
wings; and my friends who could not be here today but who had
planned to be here, including Nahed Nabih Abdou, Shauna Brandt,
Kathy JoAnne Kelly, and her daughter Erin Thompson and her
husband Bobby Thompson.
Also, my father could not be here. He has passed away. But
it is important for me to take a moment to acknowledge him
because he dropped out of school in sixth grade so that he
would be able to provide for his family financially, and he
never forgot the value of the education that he lost. He
sacrificed his life so that I would be able to enjoy that
education that he did not, and that is very special to me.
I also would like to thank Senator Ensign, who I know was
trying to be here today and did attempt to be here. I'd also
like to thank Senator Harry Reid, the Majority Leader, for very
generous words and for his recommendation and support in this
process.
Most importantly, I'd like to thank President Obama for
nominating me to a position that is very meaningful to me
because it is a nomination to the same Federal bench where my
own parents, my grandparents, and family members were
naturalized and became proud American citizens. It's quite an
honor. Thank you.
Senator Klobuchar. Thank you very much.
Judge Fleissig.
[The biographical information follows.]
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STATEMENT OF AUDREY G. FLEISSIG, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF MISSOURI
Judge Fleissig. I would like to thank Senator McCaskill for
coming here today and for the faith that she has placed in me
in recommending me to the President, and of course to the
President for this honor that he has given me in nominating me
for this position. I especially want to thank the Committee and
the Chair and Ranking Member Sessions for holding this hearing
here today. It is something that is very special to all of us,
but it is also special to our family members and friends, some
of whom were able to be here today and some are not. But I do
have my husband here of 31 years, my husband Bruce.
Senator Klobuchar. Where is he? There he is. Very good.
Judge Fleissig. And my son, Matthew, is also here today.
They have both come here from St. Louis and were able to get
out on one of the last flights that made it out. My daughter,
Rachel Fleissig, had to return to college and was not able to
be here today, but she is very sorry that she could not attend.
My mother is not well enough to travel and my sisters are
home with her. My mother-in-law, unfortunately, broke her
pelvis just about a week ago and Bruce's family is home with
her. But they are very, very special people to me as well.
I am very graced to have two other friends here with me
today. My dear friend Sedgwick Mead, Jr. has come here from St.
Louis, and also Professor Jane Aiken, who is now a professor at
Georgetown Law School, who previously was a professor at
Washington University. I am so pleased that she was able to
come here today. Two other dear friends, Professor Karen Tokarz
and Judge Susan Block, were to come here with me today, but
their flights were canceled and they were unable to be here.
But I do want to thank you.
My Father passed away the year after I graduated from law
school, but he was certainly my inspiration to head in this
direction. Although he was not a lawyer himself, he did love
and debate the law and he would have been very, very proud here
today.
Senator Klobuchar. Thank you very much, Judge.
Judge Koh.
[The biographical information follows.]
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STATEMENT OF LUCY H. KOH, NOMINEE TO BE U.S. DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF CALIFORNIA
Judge Koh. Thank you very much, Madam Chairwoman and
Ranking Member Sessions, for holding this hearing, despite the
inclement weather. It's truly an honor to be here. I would also
like to thank the Committee for considering my nomination, and
thank Senator Boxer for her very kind introduction, as well as
thank my other home State Senator, Senator Feinstein, for her
support. I also would like to thank President Obama for
nominating me.
Today, I am very happy to have with my husband--if they
would please stand--Mariano-Florentino Cuellar, and our two
children, Ria, who is almost six, and Mateo, who is three. We
have an evacuation plan in place in case there are
disturbances.
[Laughter.]
Senator Klobuchar. There have been a lot of evacuation
plans this week, but this is the first one I've heard at our
hearing. So, thank you.
Judge Koh. We have already had to execute it briefly at the
beginning of the hearing. I also have my parents; Jay and
Eunsook Koh are here. I'm sorry that Senator Coburn is not
here, because my mother was a professor at the University of
Oklahoma for 20 years, 12 of which she was at the Health
Sciences Center.
I also have my brother, Kyung, here, and my nephew, Kyle.
My husband's cousin and his wife, Surya and Melissa Sen are
here. People who have been sort of mentors for me since my
freshman year of college are Charles and Cynthia Field. They
are also here as well.
I have many other family members who had intended to come
today, and friends, but unfortunately were not able to make it
here. But I thank them for their support as well.
Senator Klobuchar. Thank you very much.
Mr. DeGuilio.
[The biographical information follows.]
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STATEMENT OF JON E. DEGUILIO, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Mr. DeGuilio. Thank you, Chairwoman Klobuchar, Ranking
Member Sessions. I am honored and humbled to be here today. I
want to thank you and your staffs for conducting this hearing
so promptly after my nomination and for having this hearing,
despite the weather challenges that we faced in the last week.
Senator Klobuchar. Well, they get a lot of snow in Alabama.
I know he's used to this.
[Laughter.]
Mr. DeGuilio. I do want to thank the President for his
nomination of myself. I also would like to thank Senator Bayh
and Senator Lugar for their support of my nomination.
Unfortunately, I'm not joined today by family; they could not
make it out of Chicago because of flight cancellations.
But I would like to acknowledge my wife, Barb. Senator Bayh
indicated, we've been married many, many years, and she's been
one of the greatest things in my life. I'd also like to
acknowledge my children, Suzanne, who is 27, and a lawyer, and
my son Christopher, who is 20, and a junior at Valparaiso
University, studying political science.
I look forward to this hearing. Thank you, Madam
Chairwoman.
Senator Klobuchar. Thank you very much.
Judge Pratt.
[The biographical information follows.]
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STATEMENT OF TANYA WALTON PRATT, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA
Judge Pratt. Thank you. Senator Klobuchar, Madam Chair,
thank you very much for the hearing today. I'd like to also
thank Ranking Senator Sessions for being here today.
I would like to thank President Obama for the nomination,
my Senators, Evan Bayh and Senator Richard Lugar for
recommending me to the President. I'd like to thank my husband
of 25 years, Marcel Pratt, who flew out with me to Washington,
DC in the storm on Monday night; my daughter, Lena Pratt, who
luckily is here in Washington, DC. She's a freshman at Howard
University. My mother, Joan Walton, was snowed in and did not
get to make it in from Indianapolis. She's been crying all
week, but I told her, thank God we have been told that it is
being broadcast on webcast today.
My very good friend from law school, Robert Warren, and
another friend, George Williams, who live in the Maryland area,
but unfortunately they're snowed in their subdivisions. My
brother, Charles Walton, Jr., who is an attorney practicing in
Atlanta, Georgia, was not able to make it in, and my father,
Charles Walton, who passed away in 1996.
Senator Klobuchar. Thank you very much, Judge. And Judge
Magnus-Stinson.
[The biographical information follows.]
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STATEMENT OF JANE F. MAGNUS-STINSON, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA
Judge Magnus-Stinson. Thank you, Madam Chairwoman. Thank
you, Ranking Member Sessions. My extreme gratitude to the
Committee for conducting this hearing today, such that we could
have our families in attendance for the hearing.
I would like to thank President Obama for the nomination. I
would like to thank Senators Bayh and Lugar for their
bipartisan recommendation of myself and my colleagues who are
here today. I also want to, as Judge Pratt and I were texting
this morning, thank God that our families were able to leapfrog
the storm and get here on the last flights out of Indianapolis
and Chicago, and I would like to introduce them now.
With me today is my husband of 16 years, Bill Stinson, who
represents the best decision I ever made; and our daughters,
Jill and Grace Stinson, who are the best work we've ever done.
[Laughter.]
Judge Magnus-Stinson. Also with me is my father, Bob
Magnus, who came from Chicago. My mom got the stomach flu and
missed the last flight, and like Judge Pratt, we had a tearful
conversation this morning. So to my mom, Holly Magnus, I gave
her the link on the web and I hope she's watching.
I'd like to acknowledge my siblings who could not be here
today: my sister Carrie Magnus, who lives in Barrington Hills,
Illinois, outside of Chicago, and my brothers, Bob Magnus and
his wife Cathy, who are in California--wisely choosing to stay
in Southern California--and my brother John, who was going to
make it, but made the executive decision not to try to risk the
storm. John is the business manager at the Marine Corps base in
Camp Pendleton in Southern California, and made a good choice,
I think, to stay where he is.
I'd also like to introduce my baby brother, who is here,
Mike Magnus, and his and our dear friend, Darin Greenwalt, who
made the trip from Chicago. Also, to introduce Tim Tutton. Tim
works for the Department of Education here in Washington, and
his wife Katie has been my neighbor since I was probably about
eight. Katie was intending to come, but couldn't make it
because of the weather as well.
I'd also like to thank my staff, who have been a great
support, and my Federal family in Indianapolis.
If I might just say, it's a particular pleasure for me to
be here with an old friend such as Jon DeGuilio, a dear friend
such as Tanya Pratt, with whom I served for 12 years in Marion
County, and thanks to our close quarters in the hotel over the
weekend, some new friends--or during the week, Judge Koh, Ms.
Navarro, and Judge Fleissig. Thank you very much.
[The biographical information follows.]
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Senator Klobuchar. Very good. So, that's how we build
relations on the Federal bench. Very good. I thought I'd start
out by asking the four of you who have served as judges just if
you could comment about how your judicial experience has
changed your view of the role of a judge and what you expect,
really, to be the biggest difference between your role as a
judge now and being elevated to the Federal District Court.
Maybe we'll start with you, Judge Magnus-Stinson.
Judge Magnus-Stinson. Thank you, Senator. I believe that
the experience I've had, nearly 15 years now as a judge, has
prepared me to understand that the role of a judge is one of a
learning process. You learn something new every day, not only
about the law, but about the excellent preparation of cases,
about witnesses, about credibility, and about the hard work
that goes into being a judge.
I consider the position of being a judge to be one of
absolute public trust. Since I'm fortunate enough to serve as a
magistrate judge at this time, I know I could continue in
public service, at least for the next five years during my
term. It is my commitment to public service that brings me here
and I look forward, if confirmed, to continuing, perhaps in a
more full role, of public service as an Article 3 judge.
Thank you.
Judge Pratt. Thank you, Senator. I believe the main thing
I've learned from my 13 years as a trial judge is the fact that
we do make very difficult decisions that have a huge impact,
not only on the litigants, but also the entire community. I
believe that it is important to prepare in advance for your
cases, to listen carefully and clearly to the arguments of
counsel, to research before you make decisions, to make sure
that your decisions follow precedent and respect the doctrine
of stare decisis.
I think one of the biggest transitions from State court to
Federal court will be that I will have the benefit of law
clerks. In the State court, we don't have law clerks. We do all
of our own research. It's very important to be fair, impartial,
and patient.
Senator Klobuchar. Very good. I've never heard that answer
before about the law clerks, but I think that's a very honest
one. So, thank you.
Judge Koh.
Judge Koh. I believe the role of a judge is to be open-
minded, not to prejudge any case, to apply the law fairly, to
be prepared, to let people have their day in court, let them be
heard, to treat them with respect and dignity.
One of the bigger differences that I think I'll see between
being a State court judge and a Federal judge, if confirmed, is
that as an Assistant U.S. Attorney I engaged in plea
negotiations directly with counsel for the defendant and there
was no involvement by the judge until we submitted the plea
agreement to the court, whereas, in my current role as a State
court judge, we have a very high volume, often over 500 cases a
week.
The judge has a slightly different role. The ethical roles
of judges are slightly different in that the parties often, in
criminal cases, in State court will ask the judge to get
involved in plea negotiations. So, that's a very different role
in Federal court than in State court.
Senator Klobuchar. Very good. Thank you.
Judge Fleissig.
Judge Fleissig. Thank you, Madam Chairwoman.
I think the biggest surprise to me on taking the bench was
what a tremendous challenge it is to do the job well every
single day. It's a very, very difficult job, and you never know
where the challenges are going to come from. They may come from
procedural issues, they may come from encountering a
substantive area that I've never dealt with before, or the
lawyers sometimes present unique challenges for us as well.
It's also been a tremendous surprise to me how weighty the
job has felt. It is a very awesome responsibility and it
humbles me every single day, and every day I wake up and just
hope that I am equal to the task that is expected of me. I
didn't expect to feel that so intensely every day, even though
that has been happening now. I've been honored to be a member
of a--a working member of our Federal bench as a Federal
magistrate judge for eight and a half years now. It is a
tremendous, intelligent, hard-working, and dedicated bench and,
if I am given the honor of being confirmed by the Senate, I
would look forward to being able to play a more significant
role on that bench and to help our court handle its caseload by
playing my role.
Thank you.
Senator Klobuchar. Thank you very much.
Ms. Navarro, you had a background that I think a lot about
as being a former county attorney in Minnesota. You're the
chief deputy district attorney for the Civil Division. I think
not everyone realizes how much civil work goes on in the county
attorney's office, that has both jurisdiction over criminal and
civil, and you also have served as a public defender. Could you
talk about how those experiences, you think, will make you a
good judge and how they've shaped the work that you plan to do
as a judge?
Ms. Navarro. I believe I do have a broad range of
experience that I can bring to the bench. I have practiced both
in criminal law and in civil law, both in State court and in
Federal court, both representing plaintiffs and representing
defendants, and both as a private practitioner, as well as a
public servant.
Those experiences have given me the opportunity to appear
in front of many different judges, with many different styles.
I have also had an opportunity to become familiar with many
different rules and procedures in different courts.
I am already familiar with the Federal rules of evidence,
with the rules of criminal procedure in Federal court, the
Federal rules of civil procedure, the sentencing guidelines, as
well as the local rules. I think that having that broad range
of experience definitely will build a solid foundation for a
successful judicial career.
Senator Klobuchar. Thank you very much. Appreciate that.
And then Mr. DeGuilio, our only man.
[Laughter.]
Senator Klobuchar. You've broken the gender ceiling.
[Laughter.]
Senator Klobuchar. Could you talk a little bit about your
experience as a Federal prosecutor, is that correct?
Mr. DeGuilio. Yes. Yes.
Senator Klobuchar. And how you think that's going to shape
your judicial philosophy or the work that you do on the bench.
Mr. DeGuilio. Thank you, Madam Chairwoman. In the five and
a half years that I was a U.S. Attorney, I believe I gained a
greater respect for the rule of law and the importance of law
in our society. Being a public servant carries with it great
responsibility and I am continually honored and humbled and
understand the great important of having that responsibility. I
have come to cherish fairness and justice in our system.
As a prosecutor, I strived every day to try to do the right
thing, mindful of the victims who we represented, mindful of
the rights of defendants, mindful, as the often-quoted opinion
from Justice Sutherland, ``to strike hard blows, but to strike
fair blows''. I've always tried to treat people with respect
and courtesy, and to demonstrate the kind of temperament that
brings respect to the position that I've held. I hope to bring
all those qualities, if confirmed, to the District Court bench.
Thank you.
Senator Klobuchar. Thank you very much.
Senator Sessions.
Senator Sessions. Thank you, Madam Chairman. It is quite a
ladies' day.
[Laughter.]
Senator Sessions. If we've got some activists out there,
maybe they don't like being called ladies. I suspect that's all
right, at least in Alabama, still.
Senator Klobuchar. It's a Southern phrase.
Senator Sessions. It's a Southern thing.
You know, I was just thinking, under President Bush, all
three U.S. Attorneys in Alabama were women, and four of the
first five, I believe--maybe four of the first six--Federal
judge nominations that Senator Shelby and I recommended, of
course, all of those were women. They're doing fabulous jobs on
the bench. I think it is a good thing to see women take a
larger role in the Federal judiciary.
Senator Leahy wanted to have this hearing, and he called me
about it. You've come from out of town, and we're glad to do
that. I know some of our members might have been here if they
could have been, but are not able to. But it's not difficult
for me, I'm nearby. So, we're glad to have the hearing and go
forward with it.
This is our only opportunity, really the only opportunity
the American people have, even, to see the nominees and ask
questions of them. Of course, what a lot of people don't know,
is you filled out quite a lot of written questions and provided
answers. The FBI has done background work on your nominations
and you've passed that. The American Bar Association has made
their reports to us. All those are helpful as we analyze who
should be confirmed. That is a Senate responsibility.
So this moment, I guess, is the only time publicly you can
be held accountable. For the rest of your time, if you are
confirmed, you will not have to answer to any politicians. You
get to follow the law.
I hope you have that firmly in your mind, that great power,
that great independence that we bestow on the Federal bench,
which I support--my experience says that we have had--I've
practiced before great Federal judges. Some not so great, but I
had great Federal judges to practice before. I hope that you
will understand, as Judge Fleissig said, the awesome
responsibility that you have, and you will work very hard to be
worthy of the trust that would be given to you if you hold that
office.
First, I would note that another thing that you go through,
and was evidenced by the Senators who spoke on your behalf
today, is that it is important that your home State Senators
review your nomination and that they affirm your nomination.
That has been done in each of your cases and it means much to
us. In fact, if they do not, you are not likely to be moving
forward. So, you've had a good report on that.
Let me ask two U.S. magistrate judges, having been a U.S.
Attorney for a long time and observed our courtrooms and how
they operate, I'm very impressed with the trust and
responsibility provided and given to the magistrates in our
districts. I understand some districts do not give as much
trust and responsibility to the magistrate. What's your
philosophy about that, and what might you share to your other
judges who never had the experience in Federal court that
you've had as a magistrate judge?
Judge Fleissig. Well, thank you for that question, Senator
Sessions. I think a lot of the country doesn't know what a
magistrate judge does in our system and what an important role
that they fill in every district. Every district uses their
magistrate judges differently, and sometimes it is a function
of what their caseload looks like, which, as you know, can vary
tremendously from district to district.
The caseload in a border State certainly looks very, very
different from the caseload that we would have in the Eastern
district of Missouri. I've been very blessed, in the Eastern
district of Missouri, that our district judges determined very
early on to give to magistrate judges as much responsibility as
the Federal law really allows magistrate judges to have.
Senator Sessions. Do you believe that's a good philosophy?
Judge Fleissig. Well, it works well in our district. It was
the result of a study that was done on the efficient use of how
we could more efficiently move our cases for the members of the
public in our district. In our district, magistrate judges are
on the wheel. Cases--direct civil cases--are directly assigned
to us and we handle those cases from beginning to end, but only
with the consent of the parties.
So, any party who wishes to have their case heard before an
Article judge may do so without any aspersions being cast on
their choice. Yet, those who do consent to have a magistrate
judge hear their case, we will handle their case from beginning
to end. We also handle all of the pre-trial phase of criminal
cases, including the suppression motions.
So, I've been blessed with a very rich and diverse
experience in my district. It was part of the attraction of the
position for me when I left the position of being U.S.
Attorney. So, our district judges believe that it helps them
move our caseload most efficiently. We have found the legal
community to be very supportive of that role and we as
magistrate judges welcome it because it gets us such a diverse
experience.
Senator Sessions. Judge Magnus-Stinson, what are your
thoughts on that?
Judge Magnus-Stinson. Thank you, Ranking Member Sessions.
Senator Sessions. What advice would you give to your
colleagues-to-be?
Judge Magnus-Stinson. I give lawyers advice always to
respect staff, and I think I would tell district judges to
always respect the magistrate judges, Senator. Our district
operates a little bit differently than the district in which
Judge Fleissig is located.
In our district, the magistrate judges are assigned the
responsibility for managing the discovery process, and through
that process then our goal is to provide the lawyers and
parties enough information so that they can fairly evaluate
their cases and civil cases. It's then our responsibility to
serve as facilitators in settlement conferences, and we do them
in virtually every case that comes before our district. That is
a very successful program. We resolve probably 60 to 70 percent
of our cases at the settlement conference.
Our district judges are completely grateful for our work
and treat us with the ultimate respect, and as colleagues,
really. I would, if fortunate enough to be confirmed, so
collaborate with the magistrate judges in our district who are
my friends right now and my colleagues.
I have had the good fortune of having the parties' consent
in my jurisdiction in a variety of cases, including insurance
disputes, contract disputes, personal injury cases, employment
law cases, and Social Security cases.
Senator Sessions. And you've presided over those trials all
the way to verdict?
Judge Magnus-Stinson. That's correct.
Senator Sessions. Jury and non-jury?
Judge Magnus-Stinson. Yes. This year, I've had two trials.
I miss trial work, having been on a major felony court for a
long time. But I had a trial in an insurance coverage dispute,
and then just 3 weeks ago our chief judge had a scheduling
conflict and the parties consented and I presided over a jury
trial in a Copyright Lanham Act, Digital Millennium Copyright
Act, and then a State Computer Trespass, and one other cause of
action I can't remember. But we had a 2-day jury trial, and
probably the biggest challenge was the jury instructions.
Senator Sessions. I suspect he was glad you took that case,
knowing how----
Judge Magnus-Stinson. We reached a verdict, and that was--
--
Senator Sessions. Well, I would say that I do think that
the magistrate judges in general should be given full
responsibility and utilized fully. Some have gifts that are
different: some may be better at research, and some better at
courtroom work. I guess the ultimate responsibility falls on
the Article judge to decide that. But I suspect both of you
have an interest in doing the right thing with your
magistrates, having had that experience.
Let me run a few questions. I believe people can have
different personal views about the death penalty. I do not
believe that's something we all have to agree on. I believe
it's an effective penalty, and most Americans do. Most
jurisdictions have it, and the Federal court system has it.
Ms. Navarro, you worked on the Nevada Appellate and would
keep you from fairly deciding cases, even if it resulted,
through the proper legal process, in a judgment of death on the
defendant before you?
Ms. Navarro. Thank you, Senator Sessions, for the
opportunity to address that question. I am aware that the U.S.
Supreme Court has held that the death penalty is a
constitutional punishment, and I am prepared to apply and
follow that law.
During the time that I worked on both death penalty appeals
and at the Special Public Defender's Office on murder cases and
other cases that also had issues that were before the court, I
learned that there is a wide array of personalities and, as you
said, a lot of different views on the death penalty. But at the
end of the day, the most important thing was that it is a
punishment that is available that the courts can use, and that
the juries are the individuals who have to decide and pass
judgment.
Senator Sessions. Do you have a view that the death penalty
violates the Constitution as being ``cruel and unusual'' ? Have
you ever expressed an opinion on that?
Ms. Navarro. I have not expressed an opinion on that. I'm
not sure that I have a particular opinion on that. There's a
case-by-case basis that, in my personal view, if I was sitting
on a jury, I would have to decide.
However, I have sat on a jury. Not a death penalty case
jury, but I have sat on a jury before and I have litigated many
cases and have observed juries, and can see the tension and the
pain that it causes to them to sit through one of these cases.
I would not set aside a jury verdict lightly unless there was
an error that was not harmless, but rather significant enough
and important enough that the law would require the death
penalty.
Senator Sessions. Do you think that a juror should sit on a
case if they express the view that they oppose the death
penalty and will not impose it?
Ms. Navarro. In my jurisdiction, that is not allowed. It is
called the Death Qualified Panel. The individuals who sit on
the jury must attest that they will be fair and open-minded,
and are willing and able to pass a verdict of a death penalty
if necessary.
Senator Sessions. You would affirm that law, if you were a
judge? You would follow that?
Ms. Navarro. Yes, I would follow that law, of course.
Senator Sessions. I want to ask a little something of
everybody, you know.
Judge Fleissig, according to your questionnaire, you've
been a member of Common Cause, which is a respected
organization and you certainly have every right to participate
in it. But it does take some positions on issues that, I think,
raise questions, and I'd just like to ask you about it and see
what your personal views are.
Common Cause called for the appointment of a special
prosecutor to investigate members of our intelligence community
for their efforts to obtain intelligence vital to the security
of the Nation. They also call for the impeachment of Ninth
Circuit Judge Jay Bybee for his actions when he was at Office
of Legal Counsel, advocating for the creation of a Federal
rule, a burdensome rule of net neutrality, and criticizing the
recent decision of the United States v. Citizens United, and
called that ``putting our democracy up for sale to the highest
bidder''.
I know you're not a member of that now. How do you feel
about those issues? Do you think the Supreme Court decision--I
think--followed the First Amendment in the Citizen United case.
I predicted, on the floor of the Senate, that much of that
legislation that passed was not going to withstand
constitutional muster, and I think it didn't. But how do you
feel about, let's say, Citizens United? Is that ``putting
democracy up for sale to the highest bidder'' ?
Judge Fleissig. Thank you, Senator, for the opportunity to
address that. I have not, I admit, read the Citizens United
case. So, I have not read it. I have only read some of the
press summaries of that case. It is the law of the land, and I
would certainly follow it. I have to say that I have not paid
the small amount of dues that I ever paid to Common Cause in,
oh, goodness, probably 15 years. At that time, I had been
interested in it because of the position that it took on
consumer protection issues.
Senator Sessions. That was its original intent, you're
right.
Judge Fleissig. And I honestly, Senator, have not followed
the organization since that time. When I had paid dues for
several years to Common Cause, its focus was on consumer
protection, things like the Truth in Lending law and issues of
that sort. I was interested in those issues at that time and
supportive of what the organization was doing. I have not
followed it in 15 years, if I even followed it back then.
Senator Sessions. Judge Koh, you have written and expressed
opinion about the need for diversity on the bench and advocated
for those ideas. Do you think that a lack of proportionality or
diversity on the bench that may occur is in itself evidence of
an invidious discrimination? How should we think about that?
Judge Koh. I do believe, Senator Sessions, that diversity
on the bench is important. I think it helps instill confidence
in the justice system. I believe it also reaffirms that this is
the land of opportunity; anyone can grow up and become a judge.
So, I think to that extent it is important. I have not ever
written that I believe there should be proportionality on the
bench, so I'm not sure what you were referring to, sir.
Senator Sessions. Well, it's just an issue. We talk about
the importance of diversity. At some point does that mean that
we should have some sort of balance, and have a balance
affecting all the different backgrounds and genders? Is that,
in itself, proof that discrimination is occurring?
Judge Koh. Let me preface my statement, first of all, by
saying there could be issues regarding whether that's disparate
impact, discrimination cases that come before me. So if I were
confirmed, it would be not proper for me to comment on that
issue now and sort of hypothetically say how I would rule on
some type of disparate treatment or disparate impact case.
Other than saying that I do believe that diversity on the
bench is a good thing, I certainly have not advocated for
proportionality in any of my writings or anything I've done or
said.
Having said that, I do want to emphasize, Senator Sessions,
that if you look at my record as a judge and as a lawyer, that
I have faithfully followed the law and do not believe that
there should be any kind of prejudice or bias in judicial
decision making.
Senator Sessions. Well, I think that kind of gets to the
core of the matter. I was going to ask you, do you think you
can give fair justice to an Irish-Catholic man? I hope that you
can; I expect that you will. Likewise, an Irish-Catholic male
judge can do justice to a Korean, or a minority. We've got to
be careful as we make comments.
You said in an article, ``Even when there is more diversity
on the bench, minority judges still need to maintain the
disguise of objectivity or else face challenges to their
decisions''. Well, I remember Justice Sotomayer, in something
that was troubling to me, quoted favorably a comment that said,
``There is no objectivity, just a series of perspectives''.
That still makes the hair stand up on my neck. I think that's a
dangerous philosophy.
What did you mean, that minority judges need to ``maintain
a disguise of objectivity or else face challenges to their
decisions'' ?
Judge Koh. Senator, thank you for giving me the opportunity
to address that. I participated in that discussion review of a
book journal two decades ago as a student, and I frankly had
not even read that in the last two decades. In preparing for
this process, I became reacquainted with things I had done as a
student and I was frankly quite amazed that I had even made
that statement.
I completely disagree that there is no objectivity.
Absolutely, our system of justice requires it. Litigants,
parties, counsel are entitled to objectivity, and I think our
rule of law would simply break down if everyone were to just
insert their own personal biases. I mean, our system of
justice, and this great country exists, because there is a rule
of law which we all respect.
And I can assure you, Senator Sessions, that in what I've
done as an officer of the court, as a corporate litigator, and
what I've done as an Assistant U.S. Attorney, as a Department
of Justice attorney, and as a judge, I have faithfully followed
the rule of law and I would not let bias or prejudice in any
way influence my decisions.
Senator Sessions. Well, I think some of these speeches we
have, and I think the zeal to have more diversity on the bench,
has led to some rhetoric from a lot of our nominees. I've seen
a lot of it, actually, that I think go beyond what is
contemplated in the American system of justice, which is that a
judge takes that oath not to be a respecter of persons and to
impartially follow the law and the facts of the case. That's
the oath that they take, and it's a deep thing.
If a person appearing before the bench feels that the
judge's personal experiences, their ethnic background, their
religion, or their political philosophy causes them to not
listen fairly to their case, not to fairly find the facts in
their case, wouldn't you agree that the whole system is in
jeopardy? Actually, you just said the system would be in
jeopardy.
Judge Koh. I agree with you.
Senator Sessions. Thank you. The whole American legal
system--I guess, Judge Pratt, the whole cross examination idea,
things we were taught in law school, is to me based on a belief
that truth is ascertainable, there is some objectivity, and the
process is to try to bring the truth out, and judges rule to
allow this process to occur in a fair and objective way, and
then to honestly and objectively apply those truthfully found
facts to the law. Would you agree with that?
Judge Pratt. Yes, Senator Sessions, I agree wholeheartedly,
100 percent, with that.
Senator Sessions. In a 2007 speech, you talked about
probation and you were encouraged when you can discharge an
offender from probation or modify a sentence to allow a
defendant to pursue education. In one case, you approved the
transfer of a convict from prison to a low-security program,
over the prosecutor's objection on the grounds that the convict
continued to pose a threat to the community. That's what the
prosecutor said, and that transferring him would diminish the
seriousness of his crime.
You, I guess, allowed that to happen and the convict
escaped from the low-security program and went on to be an
accomplice in the murder of a 68-year-old man. He was later
convicted of felony murder. Would you share with us your
thinking on that case, and what you've learned from it?
Judge Pratt. Yes, Senator Sessions. Thank you for the
opportunity to speak on this--on this matter. It was a huge
learning experience for me as a State court judge and an
example of the difficult decisions that we have to make as
judges. We have a statute in Indiana that was enacted by our
State legislature for a community transition program.
This is a program where the department--the Indiana
Department of Corrections would make a recommendation to the
State court judges as to those inmates who they believed, in
the last 60 days of their sentence in prison, would be good
candidates to go into a lower security program.
While in the community transition program, the idea is that
these persons would participate in work-release programs and be
allowed to make an easier transition back into the community.
This particular defendant was convicted of a burglary.
There was a recommendation from the Department of
Corrections to allow him into the lower security program. I
also had a recommendation from the program itself, who screens
each of the applicants in our court system, and recommended to
the judge whether or not this person would be a good prospect
for this--this legal opportunity. Unfortunately--Mr. Price was
the gentleman's name--he absconded from the program. He did
participate in a murder as an accomplice to someone who
actually killed someone.
It was a heart-breaking, horrible experience and I just--
and I think it just goes to show the huge impact that the
decisions we make have on the community and the very difficult
decisions that we make, and I do regret-in this particular case
I could not predict, but I do regret that Mr. Price was
released into that program.
Senator Sessions. I think I heard, it was on NPR--as I went
by a radio was playing this morning--about an individual that
was released, and the same day he was released committed a rape
as part of a California program to reduce prison population in
California.
Having been a prosecutor, and I know Senator Klobuchar has,
some people don't realize that a lot of the individuals that
are prosecuted are dangerous people. The number of people who
commit murders is small. The number of people who would ever
commit a murder is very, very small, or a serious violent
crime, or some other serious crimes.
When you capture one of them, you have to see that this is
not the same kind of person; if they've committed one crime,
there is a much higher mathematical percentage that they'll
commit another crime. We just have to be careful about that.
You will all be faced with the sentencing guidelines, and the
sentencing guidelines have been adjudicated, I guess, as more
advisory than they were, although I think most judges pretty
faithfully follow them.
I will ask magistrate judges, since you're familiar with
that, first. Do you feel that the sentencing guidelines should
be given respect and deference as you decide the appropriate
sentence of a person appearing before you? Maybe, what
deference should it be given?
Judge Fleissig. As a magistrate judge, I actually don't
have much occasion to use the sentencing guidelines because we
are not involved in giving sentences on felony cases. But I was
very familiar with the sentencing guidelines in my 10 years as
an Assistant U.S. Attorney and as U.S. Attorney in my district.
Now, at that time the guidelines were mandatory, and I am
aware that the Supreme Court has held otherwise since that
time. However, I gained great respect for the sentencing
guidelines when I was serving as a prosecutor. I think they
perform an important function in assuring that the sentences
nationwide have some amount of uniformity. I think, from
participating in plea negotiations for many years, I think the
predictability that it afforded to defendants was also very
important as well in terms of their decisionmaking.
Senator Sessions. I know that many of our Senators--Leahy,
Senator Biden, Senator Kennedy--all worked with Republican
members, Senator Hatch, Thurmond, and others, and they reached
an agreement about this because there were too many examples of
people going before one judge and committing the same crime and
getting long sentences and this one getting probation. Dramatic
differences. It was an equal justice approach. I think it has
worked. I support the guidelines. I am working, and I have
offered for some time, to reduce the sentencing guidelines'
mandatories for crack cocaine. Maybe we can get that done
before long. I proposed significant change in that, and I think
we should do it.
But Judge Magnus-Stinson, what do you think is an
appropriate role for a Federal judge to take with regard to the
deference given to the sentencing guidelines?
Judge Magnus-Stinson. Thank you, Senator. In the Seventh
Circuit, which is the circuit that governs our district, a
guidelines sentence enjoys a presumption of reasonableness. It
has always been my goal in sentencing. I have not sentenced
anyone in Federal court, but in State court, certainly, to
impose only reasonable sentences.
I would give both great respect to the guidelines as a
means of guiding the discretion that I have, as well as the
sentencing statute itself, which I think affords the
opportunity for the court to consider some of the disparities
that you've just addressed to ensure that there's no sentence
that's being imposed disparately on one individual versus
another.
Senator Sessions. It's a remarkable system. Everybody had
doubts about it. They thought people would not plead guilty to
the rather severe sentences, but the guilty pleas continue to
increase. I think we're at, 99 percent of criminal cases are
disposed of with some sort of guilty plea.
Judge Navarro, what respect would you give to the
sentencing guidelines?
Ms. Navarro. Senator, I did have an opportunity to work
with the sentencing guidelines, like my colleague, when they
were mandatory, before they became discretionary. I was an
attorney under the Criminal Justice Act, so I was in court
representing defendants. Most of the time that we spent with
the guidelines was in reading the Committee notes and trying to
figure out how to apply them. I grew to be very comfortable
with them.
I am aware of the collective wisdom of the individuals that
came together, and appreciate the intention of trying to make
sure that there's conformity and consistency in the sentencing
procedure. I agree with you, it was easier to negotiate a plea
agreement when there was a sentencing guideline that we could
all rely upon and be comfortable with that was going to be
applied.
I believe that great deference should be given to the
sentencing guidelines and I believe that I would probably only
depart from them on very rare occasions when the facts required
that to be the case.
Senator Sessions. It is a challenging thing at first. It's
kind of intimidating. When you see those charts and numbers, we
think, this is a computer process and not a human process. But
they do a nice job, the commission does, of how many prior
convictions, and how much drugs were involved, or did they
carry a gun, or did they assault the person in the course of
the crime. It has enhancements and reductions based on all
that.
I think it does have, as you said, quite a bit of logic.
Maybe the ranges were too tight. If you like the defendant
you'd give him 8 years, if you didn't like him he got nine and
a half; that's about all the range the judge had. So, maybe a
little bigger range would have been helpful. But I think they
followed a pattern of sentencing that most judges consider to
be the gold standard of sentencing.
Judge Koh.
Judge Koh. Senator Sessions, the sentencing guidelines were
mandatory when I was an Assistant U.S. Attorney, and I would
give them great deference.
Senator Sessions. Mr. DeGuilio.
Mr. DeGuilio. Thank you for that question, Senator. I did
become very familiar with the guidelines during my tenure as
U.S. Attorney, and actually briefed and argued several cases
through the Seventh Circuit Court of Appeals on guidelines
issues. I would also give them great deference, should I be
fortunate enough to be confirmed as a District Court judge.
I do believe they provide a comprehensive framework by
which all relevant factors can be taken into consideration and
do help to ensure consistency in sentencing.
Senator Sessions. Judge Pratt.
Judge Pratt. Thank you,
Senator Sessions. I'm aware of the history of the
sentencing guidelines and the hard work and wisdom that went
into creating the guidelines. I also would give substantial
deference and great respect to the guidelines.
Senator Sessions. Judge Magnus-Stinson, you asked, at some
point in your career, I understand, not to be assigned cases
where the death penalty was involved. Would you share with us
your thought about the death penalty and why you made that
request, and the impact of it, and the situation?
Judge Magnus-Stinson. Thank you, Senator. At the time that
issue arose, I sought counsel from the counsel to the Indiana
Commission on Judicial Qualifications, which is the
disciplinary entity that regulates judicial behavior, and at
that time was advised to make no public statement about the
issue, as to do so would implicate the Code of Judicial
Conduct.
I continue to believe that the Code of Conduct that applies
to my work now precludes me from making a public statement, but
I can say, Senator, that the issue that arose in that
circumstance would not prevent me from enforcing Federal law,
including the death penalty, if I am fortunate enough to be
confirmed.
Senator Sessions. Well, that's an important matter. For a
while, at the apex of judicial activism, we had two judges on
the Supreme Court who dissented in every death penalty case,
saying that they thought it was a violation of the ``cruel and
unusual'' provision, whereas, in truth, there are, I think, six
specific references in the Constitution for capital crimes,
taking a life with due process.
Every State, colony, had death penalties, including the
Federal Government. It's inconceivable that they could have
interpreted the Constitution in that fashion, in my view. It
was an arrogant personal effort to abrogate the subtle law of
the American people and the history of the Constitution.
Forgive me. I feel strongly about that. But I want to know, did
that have anything to do with your approach to it and your
unwillingness to participate in these cases?
Judge Magnus-Stinson. Senator, I will answer it this way: I
am fully cognizant that the death penalty is the law of the
land. I am under oath to uphold it at this time, as well as
uphold the United States Constitution as it's been interpreted
by a majority of our Supreme Court, which has held that the
death penalty is constitutional in our country.
Senator Sessions. Well, it's more than a majority now. I
don't think a single member of the court would adhere to that
extreme view that two members adhered to. But do you personally
think--and I've already tipped my hand to my philosophy. But do
you personally agree with the view that the Constitution,
fairly interpreted, would inhibit the imposition of the death
penalty? Have you ever expressed such a view?
Judge Magnus-Stinson. I have never expressed such a view,
Senator, and will continue to refrain from expressing views on
the issue, as it may be an issue that appears before me. I do
understand, as a trial judge, my role is to enforce existing
law and follow it.
Senator Sessions. All right. Well, this is a big deal. Some
States have added the death penalty in recent years, some
States have taken it away. We've got a Federal death penalty
and we've upheld it in recent statutes in recent years. It may
not be the rule in France, but I suspect it probably is there.
But somehow there's this impression that only the enlightened
world favors the death penalty, and I don't think that's
accurate.
Madam Chairman, we may submit some written questions. I
enjoyed this. I feel like, since I'm the lone member in the
Minority Party present, that I should ask these questions. It's
the one and only opportunity that we have to see you in person
and to ask questions, and therefore have a record on which we
can make a decision about your confirmation. I hear good things
about all of you. You will certainly get a fair hearing.
I responded a few days ago to a complaint from two of our
Senators who said their nominee didn't move forward fast
enough. Madam Chairman, one of them waited, I think, 4 months
before sending the blue slip back and the nominee moved right
through the Committee as soon as Chairman Leahy called it up
and nobody objected to the nominee moving on the floor of the
Senate.
But they contended that, I guess, the Republicans were
surreptitiously blocking the nominees. I believe good nominees
ought to move forward. We need to do our homework, do our
background, see what the Bar Association says, see what the FBI
says, see what your answers to the questionnaires are, see how
you handle yourself today, and at some point, without any rush
or panic, we ought to move you forward and give you an up-or-
down vote, unless there's a controversy, unless there's some
serious problem.
I think I voted for 90 percent-plus of Presiden Clinton's
nominees, and hope to be able to do the same with President
Obama's. I think the system is working pretty well, and I would
just note that you should be glad that the situation we face is
not the one President Bush's nominees faced when the Democrats
had a majority in Congress and the Senate, since many of those
nominees took years to move, and some never moved. We're doing
a lot better and going a lot faster now.
Thank you, Madam Chairman.
Senator Klobuchar. Well, thank you very much, Senator
Sessions. Thank you for taking that opportunity to ask some
important questions to clarify things. I think you all did a
good job of answering them. I just wanted, just to clarify
again with you, Judge Magnus-Stinson, that you would in fact
enforce the laws and apply the laws fairly, including the laws
about the death penalty?
Judge Magnus-Stinson. Yes, Senator, I would.
Senator Klobuchar. Okay.
Judge Magnus-Stinson. I'm currently under oath to do that
and I take that oath very seriously.
Senator Klobuchar. Thank you. I had the same--we didn't
have the death penalty. We don't have the death penalty in
Minnesota, but I was asked this a lot as a prosecutor. You have
to think about that and answer those questions and apply the
laws and enforce them, which I always believed I would have,
and said I would.
The same with you, Ms. Navarro. Is that correct?
Ms. Navarro. Yes.
Senator Klobuchar. Okay. Very good.
And then Ms. Fleissig, just one follow-up. So you were a
member of Common Cause, or paid dues to it, the last time, I
think, was in 1996, is that right?
Judge Fleissig. Somewhere--somewhere in the mid-90s.
Senator Klobuchar. Okay.
And then, Ms. Koh, I just wanted to follow up on one thing
with you, and that is I know Senator Sessions was right to ask
questions about some of your prior speeches and statements. I
think everything should be open when you are, as you noted, up
for such an important job as a Federal judge. But those things
were written when you were a law student, is that correct?
Judge Koh. That's correct.
Senator Klobuchar. And since then, I just was noting that
Governor Schwarzenegger, in his letter for you, said, in fact,
``I appointed Judge Koh to the Superior Court of Santa Clara
County 2 years ago, and since that time have never had cause to
regret my decision. Her approach has always been careful and
balanced''. It sounds like the Fox News thing.
[Laughter.]
Senator Klobuchar. Of ``fine and fair''. Very nice and
poetic from Governor Schwarzenegger. ``In fact, she had
presided over thousands of criminal and civil matters and has
seen only one partial reversal in all those cases. Her career
as a judge builds on the reputation for talent and integrity
she rightfully earned as a Federal prosecutor and intellectual
property litigator after several positions in the U.S.
Department of Justice.'' So, I just thought I'd include that
for the record, as well as we have statements for the record
from Senator Leahy on these nominees, and we also have a
statement from Senator Feinstein on your nomination, Judge Koh.
[The prepared statements of Senator Leahy and Senator
Feinstein appear as a submission for the record.]
Senator Klobuchar. Are there any other statements that we
are forgetting here? The record is going to remain open for 7
days for any of my colleagues that wish to submit questions
that were not as hardy as the Senator from Alabama and were
unable or held back because of planes or anything else. I just
wanted to thank all of you. I think this has been a very good
hearing.
Do you want to add anything, Senator?
Senator Sessions. Just to thank you for allowing me to
spend more time than normal asking questions, and you and
Senator Leahy have been good on that and allowed the
questioning to go as long as appropriate. Thank you for that.
Senator Klobuchar. Well, that's very good because I have
the Norwegian ambassador out in the hallway and we are doing a
call-in to Minnesota because we couldn't make it there for an
event for Vice President Mondale. I will tell you, we believe
there are more Norwegians in Minnesota than there are in
Norway.
[Laughter.]
Senator Klobuchar. I'm sure he's going to disagree with me
on that fact. So, I'm not going to be able to meet all your
families, but I want to thank you very much for the time you
spent today.
The hearing is adjourned.
[Whereupon, at p.m. the Committee was adjourned.]
[Questions and answers and submission follow.]
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NOMINATIONS OF BRIAN A. JACKSON, NOMINEE TO BE U.S. DISTRICT JUDGE FOR
THE MIDDLE DISTRICT OF LOUISIANA; ELIZABETH E. FOOTE, NOMINEE TO BE
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA; MARC T.
TREADWELL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
GEORGIA; JOSEPHINE S. TUCKER, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE
CENTRAL DISTRICT OF CALIFORNIA; MARK A. GOLDSMITH, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN
----------
WEDNESDAY, FEBRUARY 24, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:05 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Al Franken
presiding.
Present: Senators 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 five District
Court nominees, two from Louisiana, one from Georgia, one from
California, and one from Michigan.
I would like to extend a special welcome to my
distinguished colleagues who are here to introduce their home
State nominees: Senator Feinstein will be here shortly, Senator
Landrieu, and Senator Chambliss. Thanks for being here today.
The nominees being considered are: Brian Jackson, to sit on
the U.S. District Court for the Middle District of Louisiana;
Elizabeth Foote, to sit on the U.S. District Court for the
Western District of Louisiana; Marc Treadwell, to sit on the
U.S. District Court for the Middle District of Georgia;
California Superior Court Judge Josephine Tucker, to sit on the
U.S. District Court for the Central District of California; and
Oakland County Circuit Court Judge, Mark Goldsmith, to sit on
the U.S. District Court for the Eastern District of Michigan.
The experience and talent of today's nominees is
extraordinary. We have two sitting judges, lawyers who have
served as both defense and plaintiff attorneys. I am welcoming
the Ranking Member right now. Welcome.
Senator Sessions. A meteoric rise you have achieved.
Senator Franken. Thank you. And well deserved.
[Laughter.]
Senator Franken. As I was saying, we have an incredibly
talented group here today. We have two sitting judges, lawyers
who have served as both defense and plaintiff attorneys, a
nominee who has served in several different roles in the
executive branch, and nominees who have engaged in extremely
impressive pro bono work.
We also have nominees who are breaking barriers. One of our
nominees, Elizabeth Foote, was only the fourth woman to
practice law in Alexandria, Louisiana. Moreover, if confirmed,
Brian Jackson would be only the second African-American judge
to serve on the District Court in the Middle District of
Louisiana.
I would like to thank all the nominees for being here
today. It is an honor to be in the presence of such talented
men and women. I look forward to hearing your testimony and
hope that we can confirm you promptly so you can start the
important work of administering justice. I have faith that with
the U.S. Federal judges, all participants in our legal system
will be better off.
In closing, I would like to outline how the hearing will
proceed. After the Ranking Member, Senator Sessions, makes his
introductory remarks, the home State Senators will introduce
their nominees. Then each Senator on the Committee will have 5
minutes to ask questions of the nominees.
Now I will turn it over to the Ranking Member, Senator
Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Senator Franken. Welcome to
all the nominees. We appreciate you agreeing to serve. Each of
you have had significant accomplishments in your career.
After today, our Committee will have held hearings on all
but two of President Obama's judicial nominees, 95 percent to
date. At this point under President Bush, more than half of his
nominees still had not had an initial hearing in the Judiciary
Committee.
I just would share those numbers because people grumble
that we're going slow. Four of today's nominees were nominated
only 20 days ago and the Committee received their records just
2 weeks ago, so we're moving rapidly. I mention this because
every nomination the Senate must consider carefully; we are
talking about a lifetime appointment.
In that respect, these hearings are an important part of
the process. They are the Senate's only opportunity to publicly
review the record. We do try to do a pretty good staff review
of their record and backgrounds, as well as Senators'
involvement. We consider very much the home State Senators and
their evaluations.
A nominee's views on the role of a judge and the importance
of the adherence to rule of law are also crucial to this
vetting process. Those who sit on our Nation's judiciary must
be totally committed to impartial and blind justice and put
aside any personal experiences or opinions that could influence
their decision on anything other than the facts and the law.
So, I look forward to hearing the views of today's
nominees. We want judges who have the ability, the integrity,
the experience to make good decisions and the personal
discipline to ensure that their own views, biases, and
prejudices do not influence their decision--making.
I am glad to see these excellent Senators, and we look
forward to your comments. Thank you.
Senator Franken. Thank you, Senator.
I would like to welcome my colleagues again and invite you
to introduce your home State nominees. Senator Feinstein, would
you like to start?
PRESENTATION OF JOSEPHINE STATON TUCKER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA BY HON.
DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
very much appreciate this. I would like to introduce Orange
County Superior Court Judge Josephine Tucker. She's been
nominated for the U.S. District Court of the Central District
of California, to the court-house located in Santa Ana, and
that's where she would be sitting. She has been recommended by
a bipartisan Judicial Advisory Committee that I have and she
comes primarily from a rural background. She was raised in St.
Louis, Missouri by parents who had never been to high school,
but encouraged her passion for reading, as well as her love of
the outdoors.
She graduated summa cum laude from William Jewell College,
and gained admission in her final year to Harvard Law School.
In 1986, she graduated from Harvard, and then worked for 1 year
as a law clerk to Hon. John Gibson on the U.S. Court of Appeals
for the Eighth Circuit.
At the age of 26, she moved to California, became a member
of the California Bar, practiced in the San Francisco office of
Morrison & Foerster for 7 years, and then moved with her
husband and family to Orange County. She became a partner at
the law firm, and later the head of the firm's employment law
practice. While in private practice, she litigated numerous
multi-million--dollar employment cases on both the plaintiff
and the defense side.
She wrote prolifically. Her publications include the
California Employer's Guide to Employee Handbooks and Personnel
Policy Manuals--that's a widely used reference book in this
area of the law--three articles, and over 50 case critiques for
the California Employment Law Reporter, and 60 discussions of
the law confronting employers and employees in the Los Angeles
Times Sunday edition.
Finally, she has devoted herself to a lot of pro bono work,
providing volunteer legal services to the Make A Wish
Foundation, the Inter-Community Child Guidance Center, the AIDS
Foundation, the Orange Coast Inter-Faith Shelter.
In 2001, the Orange County Trial Lawyers Association
recognized her overall work by naming her their Employment
Lawyer of the Year. The next year, Governor Gray Davis
appointed Judge Tucker to the Superior Court for Orange County.
That was in 2002.
In that capacity, she's handled a judicial calendar
comprising up to 500 cases at a time. She's presided over
trials involving commercial contracts, tort claims, felony
crimes, and family law. She has overseen case management
conferences, settlement conferences, and ex parte applications,
and she has been specially appointed by the Chief Justice of
California to 2 years on the Appellate Division of the court,
giving her experience with appeals as well as trials. So she
has 15 years experience as a litigator and 8 years of
experience as a judge.
In 2006, the Orange County Lawyer Magazine published an
article entitled, ``Judge Josephine Tucker: A True Role Model
for Today's Women in the Law''. In that article, she explained
her judicial philosophy and it was: look at the facts, look at
the law, make a decision.
So I happen to believe this straightforward approach will
serve her well and that she will be a fine addition to the
Federal bench of Orange County, and I thank you very much, Mr.
Chairman, for being able to introduce her.
Thank you.
Senator Franken. Thank you, Senator Feinstein.
Now I am going to turn to the Senators from Michigan.
First, my colleague, Senator Levin.
PRESENTATION OF MARK A. GOLDSMITH, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN BY HON. CARL LEVIN,
A U.S. SENATOR FROM THE STATE OF MICHIGAN
Senator Levin. Thank you very much, Senator Franken, for
holding these hearings. I want to commend this Committee on the
expeditious way in which you do handle nominations. I wish I
could make the same kind of claim for the Committee that I
chair, the Armed Services Committee. We don't move quite as
quickly; Senator Sessions probably would bear witness to that
with me.
Debbie Stabenow and I are here to introduce to this
Committee and to recommend to this Committee Mark Goldsmith,
for the Eastern District Court, Federal court, in Michigan.
We've known him for a long time. He was a litigator for, I
think, 25 years or so before he was appointed to our highest
trial court, which is the Circuit Court in Michigan, where he's
been a judge for approximately 6 years.
Before that, he was active with State Bar functions,
including his own private practice. He was special counsel to
the State Bar Committee on Unauthorized Practice of the Law,
active in the Attorney Discipline Board. He is a graduate of
the University of Michigan, where he graduated with high
honors--high distinction and honors from the School of
Economics at the University of Michigan in 1974. He is a
graduate of the law school at Harvard Law School in 1977.
Chairman mentioned that some of the witnesses are breaking
barriers here today. I can only tell you that Mark and his wife
Judy had some barriers broken for them a few days ago, when
their daughter-in-law presented them with their first
grandchild.
[Laughter.]
Senator Levin. I don't know of any more important barrier
to break than that one, being a proud grandfather. But that's
the reason that their son and daughter-in-law are not here
today to be with them.
We're very proud of the process that we use in Michigan to
make these recommendations. Senator Stabenow and I appoint a
bipartisan board to make recommendations to us, and forward it
then to the President. Judge Goldsmith got the highest marks
that you could possibly get, the kudos that we want to hear
about anybody that we would recommend to the President. So
we're proud to be here today to make that recommendation to you
and hope that you are able to put your stamp of approval on
him.
Thank you, Mr. Chairman.
Senator Franken. Thank you, Senator Levin.
Senator Stabenow.
PRESENTATION OF MARK A. GOLDSMITH, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MICHIGAN HON. DEBBIE STABENOW, A
U.S. SENATOR FROM THE STATE OF MICHIGAN
Senator Stabenow. Well, thank you very much, Mr. Chairman
and Senator Sessions.
It is my great pleasure to join with Senator Levin. As he
indicated, we have both known Judge Mark Goldsmith for many
years. I cannot think of a person that I would be more
enthusiastic or excited to introduce and endorse in front of
this Committee. As you know, he has been nominated by the
President to be a judge of the U.S. District Court for the
Eastern District of Michigan, and I am absolutely convinced
that he will serve with great distinction.
Senator Sessions, as you were talking about what you look
for in a judge, I thought you were describing Mark Goldsmith.
So, I am very pleased to be here to join in supporting him. As
Senator Levin said, he joined the Oakland County Circuit bench
in 2004. He has proven to be a highly respected judge, known
for his integrity and his fairness.
You have also heard about his degrees from the University
of Michigan and from Harvard University. He has served as a
partner with Connington Lowe in Detroit, and as an Adjunct
Professor of Law at Wayne State University's Law School.
I think it's also important to note that he's well--known
in the community, where he has served on the boards of several
nonprofit organizations, helping those in need in the Detroit
area. He has been recognized for his pro bono involvement, his
community work, most notably at B'nai B'rith Anti-Defamation
League and Forgotten Harvest, a very significant organization
that uses surpluses of perishable foods from grocery stores,
restaurants and caterers and provides them to emergency food
providers. We are very appreciative of his efforts as a
community leader.
It is also wonderful to recognize and welcome Judy here
today. Do I understand--I think that your brother Merwin is
here as well? Down at the end. Welcome. It's good to have you
here as well. I am pleased to join with Senator Levin in
congratulating you on the new title of grandfather. It's a very
exciting title.
Mr. Chairman, let me just say again that Judge Goldsmith is
the kind of nominee that I know that we will all be very proud
of, and we would ask for your support.
Senator Franken. Thank you, Senator.
Senator Landrieu, you have two nominees today.
PRESENTATION OF BRIAN A. JACKSON, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA, AND ELIZABETH E.
FOOTE, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
LOUISIANA BY HON. MARY LANDRIEU, A U.S. SENATOR FROM THE STATE
OF LOUISIANA
Senator Landrieu. Yes, Mr. Chairman, I do. I'm pleased to
present both of them to you and to Senator Sessions. Thank you
so much for your work on this Committee. It is my privilege to
introduce two outstanding attorneys in the State of Louisiana
to be Federal judges. It is without hesitation that I say that
many, many people in our State would think that these two
individuals are two of the finest that we have to offer. You
will see from my brief presentation, and all the paperwork that
I've submitted on their behalf, their exceptional professional
experience and outstanding records as public servants.
First, Brian Jackson. Brian comes from a very distinguished
family of public servants and I know that he is proud, and I am
pleased, that his father, Harold, and his mother, Andree--
Harold, a retired U.S. Postal Service worker, and Andree, a
retired school teacher--are here with him today, as well as his
brother Kevin, who is retired from the U.S. Marine Corps and
president of the Blinded Americans Association, and he works in
Austin, Texas. His family is proud of him, but so are many,
many members of the community.
As his Senator, I am extremely proud of him. He served for
over 16 years with the Justice Department already, fully
immersed in everything the Justice Department has done in the
State of Louisiana and nationally. He served as U.S. Attorney
briefly, waiting for the nominee of President Bush and the
prior administration. He served from 1992 to 2002 as First
Assistant. Besides his work already in that venue, in that
position, here is a shareholder and leader on the board of
directors for one of the premier firms in our State, Misco and
Lewis. He has recently chaired their Committee on Diversity and
on the board of directors.
In addition to his extremely exemplary professional
experience, may I also say that he's been active with Catholic
Charities, the Metropolitan Crime Commission, and Teach for
America, all organizations that I have the highest respect for,
and has served on the board of directors of the Federal Bar
Association, the New Orleans Chapter.
He has graduated from some of our most outstanding
universities, Xavier University for his undergraduate, Southern
Law School in Baton Rouge, where he served as editor-in-chief
of the Law Review there, and master's as well at Georgetown
University. So, he is well--credentialed, well-experienced, and
I know he's anxious to serve, Mr. Chairman. You will find all
of his paperwork in order.
Elizabeth Erny Foote, I am honored to present to the
Committee this morning to nominate her for judge in Louisiana's
Western District. Beth is joined by her husband of 33 years,
and her law partner, Ross Sith. She's also joined by her son
David, who is a student at Mayberry College; her older son Paul
is working abroad and couldn't be here. An extraordinary
family.
She also comes from a family of great public servants. Her
husband and brother are both retired State judges. Her father-
in-law is a retired City Court judge. So, it looks like she was
destined to be a judge, like it or not. But I am so pleased to
recommend Beth. For 30 years, I have known her and can attest
personally to her passion for justice and equality,
particularly on behalf of women. She has been a tremendous
advocate.
Besides a partner in the law firm, she was the immediate
past president of the Louisiana Bar Association, in which she's
been actively involved for 25 years. She was the first woman to
be elected to a position serving on the Louisiana Bar, and has
come recommended to me through a variety of different venues,
but most importantly and impressive, 19 past presidents of the
Bar Association have recommended her to me for this position.
I'm sorry, 13 past presidents.
In addition, she has great academic credentials: a JD from
LSU Law and a master's from Duke University. Her paperwork is
also in order.
Mr. Chairman, let me just conclude by saying it is without
hesitation that I recommended these two candidates to the
President of the United States and I'm so pleased that he has
chosen to nominate them and for them to be presented to this
Committee for your approval.
Senator Franken. Thank you, Senator Landrieu.
Senator Chambliss.
PRESENTATION OF MARC T. TREADWELL, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA BY HON. SAXBY
CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Chambliss. Thank you very much, Senator Franken,
Senator Sessions. I am very pleased to be here today to
introduce to the Committee Marc Treadwell, who has been
nominated by the President to be a U.S. District Court judge
for the Middle District of Georgia. It is a particular pleasure
because that is my home district that I practiced in for 6
years when I practiced law in Georgia.
Senator Isakson joins me in this introduction in support of
Marc Treadwell; he unfortunately had a conflict today, but
asked me to especially let the Committee know that he is very
supportive of his candidacy.
Marc Treadwell grew up in rural South Georgia, down in
Blackshear, Georgia. He was a graduate of Valdosta State
University, a university from which my daughter graduated. He
was also a graduate of Mercer University Law School, the law
school from which my son graduated. So I not only know how
well-educated he is, but I know how expensive his education
was.
Mark is just one of those individuals who has really
developed into an outstanding lawyer in our State. He comes
highly recommended by his peers. He's a member of the American
Trial Lawyers Association, American College of Trial Lawyers,
and has practiced law in Macon for a number of years. You know,
as lawyers you tend to scrutinize maybe more closely the folks
who are nominated up here, and I just can't say enough good
things about the background and the preparation of Marc
Treadwell to go to the bench.
He teaches now in addition to practicing, teaches at Mercer
part-time as he practices there in Macon. He's written over 50
articles for publication in Law Reviews and other periodicals.
He is recognized as an expert in Georgia evidence law and is
just truly so well-respected by his peers that we received
nothing but positive comments about Marc as we went through
this process.
Marc and his wife Wimberly have two sons, Thomas and John.
In addition to being an outstanding lawyer, he is a great
citizen of Macon, Georgia, a member of Danville United
Methodist Church, and it's just a privilege for Senator Isakson
and I to recommend the nomination by President Obama of Marc
Treadwell to the U.S. District Court, and I thank you for
letting me be here today.
Senator Franken. Thank you, Senator Chambliss.
Now I'd like to ask the nominees to all come to the table
for the administration of the oath. OK. Could you all stand? We
have Jackson, Foote, Treadwell, Tucker, and Judge Goldsmith.
All right. Please raise your right hands.
[Whereupon, the witnesses were duly sworn.]
Senator Franken. Thank you. You may be seated.
Mr. Jackson, you are free to give any opening remarks, and
if you'd like to introduce any members of your family that are
here today.
STATEMENT OF BRIAN A. JACKSON, TO BE U.S. DISTRICT JUDGE FOR
THE MIDDLE DISTRICT OF LOUISIANA
Mr. Jackson. Well, thank you very much, Senator, for
holding this hearing and for presiding over this hearing. I am
privileged to be joined today by several people who are very,
very special to me. As Senator Landrieu noted, I am joined by
my father, Harold Jackson, my mother, Andree Jackson, my
brother, Kevin Jackson, a retired Marine who has served his
Nation honorably. I am deeply grateful that they're here today.
I'm also joined today by two of my very dear friends, Tim
Francis, who has been a friend since high school, and Iden
Martyn, who served with me in the Justice Department for
several years and who is also now in private practice. My
sister, Helene Dobeny, could not be here today, unfortunately,
nor could any of my nieces and nephews. Nonetheless, I know
they're with me in spirit and I am deeply, deeply grateful for
their support as well.
And finally, I'd like to, of course, thank Senator
Landrieu, not only for her kind remarks, but also for her
support of my nomination. I'd also like to thank Senator Vitter
for his support of my nomination. Finally, of course, I'm
deeply indebted to the President for considering me for this
position.
Thank you.
Senator Franken. Thank you.
[The biographical information of Brian A. Jackson follows.]
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Now to Elizabeth Foote.
Ms. Foote.
Ms. Foote. Thank you, Senator.
Senator Franken. And by the way, welcome to all members of
Mr. Jackson's family.
Mr. Jackson. Thank you.
STATEMENT OF ELIZABETH E. FOOTE, TO BE U.S. DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF LOUISIANA
Ms. Foote. Thank you, Senator. I, too, would like to thank
the President. I would like to thank this Committee for the
courtesy and promptness of the hearing. I'd like to thank
Senator Landrieu for her lovely introduction and recommendation
for this job, and Senator Vitter for his support as well.
With the Committee's indulgence, I would like to introduce
my family. My husband Ross is a retired District Court judge
for 33--he's my husband for 33 years, he was a judge for 14. My
son David, who's in his last semester at Middlebury College in
Vermont. My son Paul lives and works in London and is watching
via webcast. My brothers, Paul and Jay, could not be here but
they have sent in their stead as their representative my niece,
Margo Elizabeth Erny, who is my namesake, and her husband, John
Holliday.
My in-laws, Toni and George Foote, who are 87 and 90 years
old, are likewise watching this webcast in their spare bedroom.
They have sent as their representatives my brother-in-laws
George Foote and Ray Foote. Representing the 27 Foote
grandchildren and 21 great-grandchildren is my niece Caroline
Marriott, and I'm so glad that she could come and be with us
today.
I also have two friends who have joined me today. One of my
oldest friends, Betty Owens, who reminded me this morning that
I encouraged her to go to law school, and one of my youngest
friends, Lauren Torbett, who I taught at Mock Trial in high
school and now is waiting admission to the New York Bar.
Thank you so much for that opportunity.
Senator Franken. Well, thank you, Foote soldiers.
[Laughter.]
Senator Franken. Then, Mr. Treadwell, tread well.
[The biographical information of Elizabeth E. Foote
follows.]
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STATEMENT OF MARC T. TREADWELL, TO BE U.S. DISTRICT JUDGE FOR
THE MIDDLE DISTRICT OF GEORGIA
Mr. Treadwell. Thank you, Mr. Chairman. I, too, appreciate
the Committee allowing us to appear here so quickly today. I'd
like to thank Senator Chambliss for his kind introduction and
the support that he's shown, and I certainly am thankful to the
President for giving me this opportunity to potentially serve
the residents of the Middle District of Georgia.
My wife Wemberly is here with me today. My older son Thomas
is a student at Auburn, Auburn University, and he's in mid-term
exams so he cannot be here. My younger son John is a high
school senior, and he's here with me. He'll be going to either
Auburn or the University of Alabama in the fall.
Thank you.
Senator Franken. Thank you.
Now we'll go to Judge Tucker.
The biographical information of Marc T. Treadwell follows.]
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STATEMENT OF HON. JOSEPHINE S. TUCKER, TO BE U.S. DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
Judge Tucker. Thank you, Senator.
First, I would like to thank President Obama for the
confidence of his nomination and I would like to thank my home
State Senators, Senator Boxer and Senator Feinstein, for their
support. I would particularly like to thank Senator Feinstein
for her warm and generous introduction as well. I'd like to
thank you, Senator Franken, for chairing this hearing and
participating in it.
I would like to introduce my family, if I may. I have with
me today my wonderful husband of over 21 years, Steven Tucker,
my eldest son, Zachary Tucker, my son Abram Tucker, who is--my
oldest son is 19, and Abram is 16. My daughter, Laura Tucker,
who is 10 but will tell you she's almost 11, and I also have
with me my oldest brother, the trailblazer of the family who
first attended college, was the first one in our family to
attend college, is Gary Staton. My sister, who is a well-known
trial attorney in Arizona, Georgia Staton. My sister-in-law,
Gary's wife, Victoria Staton. I believe those are all who are
present here today.
I would also like to, of course, mention my 86-year-old
mother who is in Arizona, unable to attend. I would like to say
viewing the webcast, but she and technology do not really get
along so I have a feeling that will come later. And my father,
who is departed, but with us in spirit, George Staton.
I would also like to introduce my brother who could not be
here today, and that is Danny Staton, and his wife, Mia
Balledinas-Staton.
Thank you very much.
Senator Franken. Thank you, Judge.
Judge Goldsmith.
[The biographical information of Josephine Staton Tucker
follows.]
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STATEMENT OF HON. MARK A. GOLDSMITH, TO BE U.S. DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MICHIGAN
Judge Goldsmith. Thank you, Mr. Chairman. I thank the
Ranking Member, Senator Sessions, and all members of the
Committee for allowing me to appear this afternoon at this
hearing. I'm very grateful to the President for his confidence
in me in making this nomination. I am very grateful also to
Senator Levin and Senator Stabenow for their support, for their
gracious remarks this afternoon.
I would like to introduce to you the love of my life, my
wife for the last, almost 21 years, Judy Goldsmith, and also
joining us this afternoon is my oldest brother, Merwin
Goldsmith, representing all my siblings, John, Steven, and
Barbara as well.
Our two children are not present for very good reasons. As
you already heard, our son Jared and his wife Stephanie were
working on a joint venture for the last 9 months that finally
brought fruit at about 2:23 p.m. this past Saturday, and they
brought into the world Alexis Caitlin Talia. So, they are
really busy with that very important work and couldn't join us
this afternoon, understandably. And our daughter Molly, who is
16 and an eleventh grader, is in Israel study for her winter
semester of eleventh grade, and she's going to be joining us by
way of the webcast.
Two people who are with us in spirit are my parents, Bessie
and Max Goldsmith. I am grateful to them for giving me the gift
of life and my core values of faith and family and community
and country. I know they're with us in spirit today.
Thank you, Mr. Chairman.
Senator Franken. Thank you, Your Honor.
[The biographical information of Mark A. Goldsmith
follows.]
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Well, I guess I'll start with some questions. First, Judge
Tucker, as Senator Feinstein mentioned, before you started
serving as a judge you were an employment lawyer for many
years, I believe were named the Employment Lawyer of the Year
at one point by some august organization. In fact, for 6 years
you even co-chaired your firm's employment law department. In
your capacity as an employment lawyer, you helped many
corporate clients draft employment agreements and other
employee documents.
Now, given your experience in employment law, I'm
interested in your opinion of mandatory arbitration as a
condition of employment contracts. When is mandatory
arbitration in employment contracts appropriate and when is it
not appropriate, in your opinion?
Judge Tucker. Thank you for that question, Senator.
Probably it is best answered by explaining, as a judge, now
that I'm a judge and have been for the last 7 years, how I
address mandatory employment arbitration agreements that come
before me.
They are treated very similar to other mandatory
arbitration agreements outside the employment context. What I
do as a judge, is I look to precedential decisions, to
decisions of higher courts, which tell me to determine whether
the agreement, for example, is substantively unconscionable or
procedurally unconscionable.
I look to issues of waiver, whether one party or the other
has waived the right to arbitration. And in some instances
under California law, I am required to hold an evidentiary
hearing to determine, for example, whether the agreement was--
is--is fair, in essence. That's what substantive,
unconscionability and procedural unconscionability address.
I apply the law, the contours of those doctrines to the
facts at hand, and in some instances enforce the arbitration
agreement and in other instances do not. But it all depends
upon the particular facts and how they relate to the governing
law.
Senator Franken. In your experience, are there some kinds
of cases where--you're talking about things that are
unconscionable, where it would simply be unconscionable to go
back to the mandatory arbitration agreement. Sometimes are you
taking into account that the plaintiff is at a disadvantage in
court or are you taking it that the complaint is outside the
scope of a normal employment situation that's covered by
arbitration?
Judge Tucker. I would take into account all of the relevant
facts. Sometimes the relevant facts have to do with how the
agreement was crafted. Sometimes they have to do with the scope
of the arbitration agreement, in which case I have to look
carefully at the language of the arbitration agreement.
But I am guided by precedent essentially when it comes to
determining whether a particular agreement would be
substantively unconscionable or procedurally unconscionable.
There is case law that would guide me in that determination.
Senator Franken. Thank you.
Ms. Foote, you were co-chair of the Louisiana State Bar
Association's Hurricane Katrina and Rita disaster relief
efforts. I want to commend you for your extremely valuable
work.
How has that experience of doing disaster-related legal
work shaped your view of the judicial system?
Ms. Foote. Thank you, Senator. Being Bar president and my
work with the disaster Committee gave me both a macro and micro
view of the judicial system--macro in the sense that you became
familiar with big-picture issues like access to justice. The
disaster relief Committee put together a call center that
handled over 14,000 distinct clients.
Since that time--since that time we have formed a nonprofit
corporation on which I serve on the board, and we have used
that call center to be a point of access for legal services
throughout the State of Louisiana. So, that's a big-picture
issue. Also, my experience with the Bar has given me the
perspective of the lawyers and what lawyers want out of the
judicial system.
Senator Franken. Thank you. It appears my time is up, and
I'll turn it over to the Ranking Member.
Senator Sessions. Thank you.
Mr. Jackson, I see you've been--I guess it's Judge Jackson.
Mr. Jackson. Well, not just yet.
Senator Sessions. Not yet?
Mr. Jackson. I believe that's an error.
Senator Sessions. That's an error. Premature.
Mr. Jackson. Right.
Senator Sessions. But you're looking good, I have to tell
you.
[Laughter.]
Senator Sessions. I wouldn't issue any opinions or
declaratory judgments yet, but I think you've got a good
background.
Mr. Jackson. Well, thank you.
Senator Sessions. I respect Assistant U.S. Attorneys that
do a lot of Federal court practice, and they're familiar with
it in some depth. You've been First Assistant, which indicates
people respect your leadership skills and judgment. First
Assistants are pretty solid people.
Mr. Jackson. Thank you, Judge. Senator.
Senator Sessions. They have the respect of their peers.
We've had--you've seen the law change with regard to sentencing
guidelines.
Mr. Jackson. Yes, Senator, I have.
Senator Sessions. We've got a number of people here that
have not dealt with the sentencing guidelines. I guess you've
seen them up close and personal. What kind of deference, in
light of the Supreme Court decision that eliminated, for the
most part, I guess, the mandatory nature of it--what--how do
you feel like a good judge should approach the guidelines and
what kind of deference should they be given in any decision you
might render?
Mr. Jackson. Well, Senator, as you know, I have served as
both a Federal prosecutor and a defense attorney, practicing in
the Federal system, so I am indeed very familiar with the
Federal sentencing guidelines. I appreciated the guidelines for
providing the kind of uniformity and certainty I think the
Congress was seeking when it--when it enacted the guidelines,
and that the Sentencing Commission has tried very hard to--to
promulgate over--over time.
I will tell you that I agree that the guidelines are
presumptively reasonable. I think they provide a great service,
not only to judges, but also to litigants, defendants. If I am
confirmed, I will tell you that I intend to give great
deference to the sentencing guidelines. Again, I realize that
that was a bipartisan product that was worked on for several
years by the Congress, and again, I think the guidelines have
served the defendants and certainly have served the Nation
well.
Senator Sessions. Yes, it was. I know you had Senator
Kennedy, Biden and Leahy, along with Thurmond and Hatch and
others on this side of the aisle. It was, from my experience, a
major change, but it did definitely eliminate the danger that
occurs when two judges, one in one hall of the courthouse and
another in another one, give dramatically different sentences
for the same offense.
I do think the Sentencing Commission invests a tremendous
amount of time in trying to identify what the ranges of
sentences should be and they essentially have been in the
median area of where good judges have sentenced over the years,
I think. So I would encourage you to think about this
experience as a prosecutor here.
I won't ask you now, but some people may think that they
are just free to, willy-nilly, ignore those guidelines. I think
that causes you starting down a slippery slope, Mr. Jackson,
because next you'll have a change and change and change, and
pretty soon you have no guiding principle on how to have
stability in sentencing.
Mr. Jackson. I couldn't agree more, Senator. Again, they
are absolutely essential to the system.
Senator Sessions. Do any of you have any opinions that you
might not--that you have this day on a concern about the
guidelines that would cause you to depart in a more regular way
than Mr. Jackson indicated?
[No response].
Senator Sessions. Let's see. Mr. Treadwell, you come highly
recommended. Senator Chambliss has assured me that you're a
capable, skilled attorney. I understand you've been a plaintiff
attorney a good bit in your life, which I think is legitimate;
I've filed plaintiff suits myself. I guess I would ask you--
well, first, I can see from your background you have respect
from your peers because you've held a lot of important offices
and been selected to do some important things by the Bar. But
do you feel like you can give both a corporation that's been
sued as well as a plaintiff who is sued, or any other party
that comes before the court, a fair and good day in court?
Mr. Treadwell. I absolutely do, Senator Sessions. In fact,
during my career I've represented defendant corporations,
appointed criminal defendants. Recently, my practice has
centered on representing plaintiffs. I have always been a
zealous advocate for whoever my client is. I think that, if
anything, that's given me a greater appreciation for the
absolute essential impartiality on the part of a judge.
Senator Sessions. Well said. My impression is--and see if
you agree--that judges that have been good, respected advocates
in the courtroom turn out to be pretty good judges on the
bench.
Mr. Treadwell. I would agree with that. I think judges--or
lawyers who have spent time in the courtroom like that come to
know what type judges they would like to see on the bench and
hopefully they can be that type judge.
Senator Sessions. I think so.
Judge Goldsmith, in your investiture remarks, in a speech,
you were talking about the formative years of the American
Republic. You said, ``It was the judiciary that viewed its
mission as searching for common ground, while the context was
constitutional decisionmaking, statutory interpretation,
weaving a fabric of common law.'' Then you go on to say,
``American judges have, in their finest moments, sought to
divine and apply the common values of our country to the
disputes before them.''
In one sense I think that is a statement that does not
trouble me, but I would like for you to share with me the
extent to which you think a judge's role is to divine the
common values and therefore apply them to the decisionmaking
process, and how might that conflict with the duty to simply
follow the statutory or constitutional mandates that are in
place?
Judge Goldsmith. Thank you, Senator, for that question.
I believe, as a trial judge, I am going to be bound by the
precedents of the Supreme Court of the United States and the
Sixth Circuit, if I am confirmed as a U.S. District Judge. I
don't think there's any room to be divining anything other than
to try to follow scrupulously what the higher courts require me
to do in a particular case.
The particular phrase that you were reporting from my
investiture remarks really were looking to questions of first
impression, where legal matters didn't have any clear guidance
from a higher court. That was the context in which I was
talking about trying to find common ground to try to build a
consensus.
Senator Sessions. Well, we have situations that are very
real. Sometimes they become cases of first impression, such as
two justices on the Supreme Court against the plain words of
the document, found that the death penalty was cruel and
unusual, when it had multiple references to the death penalty
within the document itself in an approving fashion.
We have judges that somehow thought they were finding, I
guess, common values when they found that the Constitution
guaranteed the right of abortion, or you have the judges who
have, in a case of first impression with regard to the EPA's
ability to rule on CO2, concluded that a 1970 Act,
when I guess if anything they probably thought the world was
cooling then, had no thought about Congress' Act and no thought
to eliminate CO2. But I guess they, for some reason,
thought that there was some value in giving--in treating it as
a pollutant at this point in time.
So I guess you see, all of you, the concerns some of us
have, that feel like a judge has to show discipline on these
issues and to be careful. But do your words suggest, and what
you say today suggest, that if it's a case of first impression
and the answer is not clear, that your goal is to divine the
common values, which I guess would be--and then use that to
decide the dispute?
Judge Goldsmith. Well, I would look to the traditional
tools that a judge should look to, which is the binding
precedents of the Supreme Court, and in my case it would be the
Sixth Circuit. I will try to get what the guidance is from
those decisions in making up my mind, even if it were a case of
first impression.
Senator Sessions. I think you're right. I think even in
cases of first impression, if a judge looks carefully, there is
some body of authority that can help them reach an objective
decision. I do think the danger is--one of our Senators--who is
now present, nominated you, of which I know you're
appreciative--indicated that in that case of first impression
you have a great more freedom than I think is accurate.
Mr. Chairman, our people have--my staff has looked over
these nominees' records. I think we feel good about them and
their background. We will have some time, but not a lot, before
your vote comes up. If people have complaints, they can make
them. That's the one opportunity that we have in this whole
process for the American people to at least register their
views. Then we'll move forward, I think, in each of your cases
without any undue delay to a final vote.
I appreciate the Senators who recommended you, and
appreciate and give deference to the President's choice. We
can't all second-guess the President, and each of you have some
very strong things in your background that I think speak well
of you.
Thank you.
Senator Franken. Thank you. I'd like to thank the Ranking
Member. Thank you for getting to Judge Goldsmith, because his
daughter is watching from Israel. So, I'm glad you gave him a
little bit of the once-over there.
I'd like to put Chairman Leahy's statement into the record,
without objection.
Senator Sessions. No objection.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Franken. Okay. Thank you.
And I'd like to thank you all for being here today, and for
your families. I want to thank you, each, for your statements
and testimony today. You are all very impressive and very
thoughtful individuals. It's really good that folks like you
are going to be serving our Nation's courts.
I will hold the hearing record open for 1 week.
The hearing is now adjourned. Thank you.
[Whereupon, at 2:57 p.m. the Committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
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NOMINATION OF SHARON J. COLEMAN, OF ILLINOIS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; GARY S. FEINERMAN, OF
ILLINOIS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
ILLINOIS; AND WILLIAM J. MARTINEZ, OF COLORADO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO
----------
WEDNESDAY, MARCH 10, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:50 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senators Whitehouse, Durbin, and Sessions.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE OF RHODE ISLAND
Senator Whitehouse. All right. We will call the hearing to
order. Senator Sessions has informed me through his staff that
he is on his way, but he is voting, and he does not wish to
delay the proceedings while we go through the introductions.
Today we will consider three nominations to the Federal
bench. Justice Sharon J. Coleman has been nominated to be
United States District Judge for the Northern District of
Illinois. Gary S. Feinerman has been nominated to be United
States District Judge for the Northern District of Illinois.
And William J. Martinez has been nominated to be United States
District Judge for the District of Colorado.
Each nominee brings a record of experience and achievement
in the law to this hearing today. I congratulate each of you on
your nominations.
In addition to welcoming today's nominees, I would also
like to welcome their families and friends to a happy day at
the U.S. Senate. I, of course, would also like to welcome my
colleagues who are here to introduce the nominees.
The way we will do this is that we will have the
introductions by the Senators here in their order of seniority,
and we will then proceed to the panel of nominees. Each nominee
at that point will have the opportunity to introduce his or her
family, and by then we should have a full complement of a
Chairman and Ranking Member here, and we will proceed to the
questions.
Let me just say that voting to confirm an individual to the
Federal bench is one of the most important and lasting
decisions that a Senator can make. Every day Federal judges
make decisions that affect the lives of Americans in all walks
of life. Their responsibilities are weighty and must be
fulfilled in keeping with a proper understanding of the
judicial function under the American system of government.
Judges must 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 them, popular or not; respect precedent; and limit
themselves to the issues that the court is called upon to
decide. I hope that each judicial nominee we hear from today
understands the importance of those principles.
The Ranking Member may wish to make a statement when he
comes, but in the meantime, why don't we proceed to the
distinguished Senator from Illinois, the senior Senator of the
State of Illinois, Senator Durbin.
PRESENTATION OF GARY S. FEINERMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ILLINOIS, AND SHARON J. COLEMAN,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
ILLINOIS, BY HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Senator Whitehouse,
for convening this hearing. It is great to be here today. We
have three excellent nominees, and I learned from Mr. Martinez
that he rounds it out by having a Chicago connection. So I
could not ask for a better panel of nominees from my selfish
and personal perspective.
But I am here particularly to introduce Justice Sharon
Coleman and Mr. Gary Feinerman. They have been nominated to
serve as U.S. District Court Judges in the Northern District of
Illinois. They have received the highest possible rating from
the American Bar Association. They were recommended to me by a
bipartisan merit selection Committee chaired by former
Congressman, former D.C. Circuit Judge, and former White House
Counsel Abner Mikva. I recommended these names to President
Obama, and we are fortunate that such outstanding individuals
are willing to serve on the Federal bench.
I would like to first introduce Sharon Coleman. And I do
not know if this is the appropriate time for her to introduce
her family. Would this be appropriate? Or do you want to wait
until----
Senator Whitehouse. We will wait on that until they are at
the panel, and then they can introduce their families.
Senator Durbin. OK. Since you have the gavel, I think it is
a great idea.
She was born in Chicago, spent much of her childhood in
Huntsville, Alabama, and I hope that when the Ranking Member
comes, Senator Sessions of Alabama, he will appreciate her
roots. Justice Coleman has devoted her legal career to public
service. She has been a State court judge in Cook County,
Illinois, for the past decade and a half, and presided over 600
cases to verdict. She was elected to be a Cook County trial
judge in 1996, won a retention election in 2002. In 2008, she
received a promotion, elected to a 10- year term on the
Illinois appellate court, and we are hoping that she will not
be able to serve out that term if she is considered favorably
by the Senate for this Federal appointment.
She has an excellent reputation for fairness and
impartiality. Before serving on the bench, for 4 years she was
an Assistant U.S. Attorney in Chicago, 8 years in the Cook
County State's Attorney's Office. A county prosecutor, she
handled a wide variety of cases from muggings to murders. She
was promoted to be the chief of the Public Interest Bureau
where she supervised 75 attorneys and created a special unit to
protect senior citizens from exploitation.
Justice Coleman has served on the boards of numerous bar
associations and organizations in Chicago, received many, many
awards, including the prestigious C.F. Stradford Award from the
Cook County State's Attorney's Office, the Esther Rothstein
Award from the Women's Bar Association of Illinois, and a Woman
of Excellence Award from the Chicago Defender newspaper.
Justice Coleman attended Northwestern University, Northern
Illinois University, and Washington University Law School,
where she received a full scholarship.
Gary Feinerman is another nominee before us today. He has
been a star of equal merit in the Chicago legal community. Mr.
Feinerman is a partner at one of Chicago's oldest and largest
law firms, Sidley Austin, and specializes in litigation and
appellate work. From 2003 to 2007, he was our State Solicitor
General representing Illinois in criminal and civil appeals. He
won five Best Brief Awards from the National Association of
Attorneys General, and he personally argued two cases before
the U.S. Supreme Court, a challenging assignment for any
lawyer. He also argued before the U.S. Court of Appeals for the
Seventh Circuit and the Illinois Supreme Court.
Early in his career, Mr. Feinerman worked at the Chicago
law firm of Mayer Brown and in the Justice Department's Office
of Policy Development. He served as a judicial law clerk for
Supreme Court Justice Anthony Kennedy and for Seventh Circuit
Judge Joel Flaum. He is a leader in the Chicago legal
community, president of the Appellate Lawyers Association of
Illinois, and serves on the boards of Chicago's Constitutional
Rights Foundation and the Midwest chapter of the Anti-
Defamation League. Mr. Feinerman has also had an active pro
bono practice which speaks well of his commitment to the legal
profession and to helping the disadvantaged.
His academic record is equally impressive. He graduated
from Yale University and Stanford Law School, where he finished
second in his class.
Mr. Chairman, I am going to do all I can to expedite these
nominations. The Northern District has more district court
vacancies--currently there are six--than any other district in
America. Yet the number of case filings is on the rise, so
there is more work to go around and fewer judges to do it. This
means that people who are looking for their day in court have
to wait longer. Too often justice delayed is justice denied. We
have an urgent need for additional judges in the Northern
District of Illinois. I hope my Senate colleagues will consider
and confirm Justice Coleman and Gary Feinerman as quickly as
possible.
Thank you.
Senator Whitehouse. Thank you very much, Senator Durbin.
Thank you for your statement. I know how busy you are as our
Majority Whip and Assistant Majority Leader, so the fact that
you have taken time out of your busy schedule to come here and
put your personal imprimatur on these two wonderful candidates
is a strong sign of your support for them and of their merit,
and I appreciate that very much.
I will now call on Senator Mark Udall of Colorado to make
an introduction of his nominee.
PRESENTATION OF WILLIAM J. MARTINEZ, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO, BY HON. MARK UDALL, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Udall. Thank you, Mr. Chairman, and let me start by
stating my thanks to you and Chairman Leahy and Ranking Member
Sessions and the Committee itself for providing me with some
time to introduce President Obama's nominee to be the next
Federal district court judge in Colorado, Bill Martinez.
Bill is an accomplished authority, Mr. Chairman, and a true
role model in our State. His personal story captures what is
inspirational about our great country, America, and highlights
what can be accomplished with focused discipline and
extraordinary hard work.
Bill was not born with great privilege. He came to the
United States as an immigrant child from Mexico City and
literally worked his way through college and toward a career in
the law. And as he told me last year when I had a chance to
spend some time with him, his experience with ethnic prejudice
and poverty instilled in him a lifelong passion for justice.
As a lawyer, as you can imagine given that background, he
has represented clients from many walks of life, but his focus
has really been on helping those with the least amount of power
in our society.
In one of his many pro bono cases, he represented low-rent
and Section 8 tenants. Mr. Chairman, you know from your
experience, there is no money and little glory in that kind of
practice, but it reflects what our justice system really should
be about, which is ensuring that everyone has their day in
court.
Mr. Chairman, I believe in strong, well-balanced courts
that serve the needs of our citizens. Bill Martinez brings that
sense of balance because of his broad legal background and
professionalism. He is, as the Denver Post, our statewide
newspaper, noted, considered an expert in employment and civil
rights law. I know also that Bill understands the
constitutional role of the judiciary, which you spoke to in
your initial remarks, and will fulfill his special
responsibility as an Article III judge, if confirmed.
Our judicial system is built on principles of trust and
integrity that make our country a beacon of justice around the
world. No matter how perfectly designed a judicial system may
be in theory, however, it will not long maintain the trust of
its citizens or the integrity they demand of it unless it has
judges who are people of strong character and who reflect the
community they serve.
Senator Bennet and I last year convened a bipartisan
advisory committee, which was ably chaired by Denver lawyer Hal
Hadden, well known and highly respected in Colorado, and former
Colorado Supreme Court Justice Rebecca Kourlis, who also has
that standing in the State of Colorado.
Bill Martinez's life experience, his record of legal
service, and his impressive abilities are what persuaded this
Committee to recommend him to Senator Bennet and myself for a
Federal judgeship.
So, Mr. Chairman, in closing, I am confident that, if
confirmed, Bill Martinez will undertake this solemn duty with a
passion to do justice. That is what has guided him in his life
from a very early age. And thank you for providing me with a
bit of time to introduce one of Colorado's great attorneys, and
I strongly urge this Committee to support him.
Thank you, Mr. Chairman.
Senator Whitehouse. Thank you, Senator Udall. It is a
pleasure to have you here, and it is a delight and also a
testament to the character and ability of the nominee that both
of Colorado's distinguished Senators are here. So, without
further ado, I will turn to Senator Bennet.
PRESENTATION OF WILLIAM J. MARTINEZ, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO, BY HON. MICHAEL F. BENNET,
A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Bennet. Thank you, Mr. Chairman, and I would like
to say first thank you to you for having both of us here.
I want to say thank you to my senior Senator, Mark Udall,
for running an extraordinary process to fill these vacancies.
We have vacancies all over the country, as you know, that need
to be filled because people are awaiting justice. And the
process that Mark Udall ran which ended up with Bill Martinez,
quite rightly, being recommended to you was one that I think
could be a model for the entire country. So it was a great
privilege for me to be part of that.
Part of the perils of being the junior Senator is that the
senior Senator says everything you were going to say, so I
would ask that my statement be put in the record, but just lend
my voice to Senator Udall's to say I am very proud to come
before this Committee and highlight the experience and
accomplishments of this superbly qualified nominee. Bill
Martinez will be an asset, a huge asset to the Federal bench.
I would like to thank the Committee for holding this
hearing today, and I look forward to supporting Bill Martinez's
nomination when it reaches the floor.
I would like to say congratulations to Bill and to his
family, and thanks for having me today.
Senator Whitehouse. Without objection, your full statement
will be added to the record, and the record of this proceeding
will actually stay open for a week from the conclusion of the
hearing for any statement that any other Senator or, frankly,
any other person or organization seeks to add.
[The prepared statement of Senator Bennet appears as a
submission for the record.]
Senator Whitehouse. I know that both of you are very busy,
and thank you so much for taking the time to be here to support
your candidate.
We will stand in recess for just a few moments to let the
room switch over for the nominees and to allow Senator Sessions
a few more moments to get here and join us.
[Recess from 3:03 p.m. to 3:08 p.m.]
Senator Whitehouse. The hearing will come back to order. I
want to welcome Senator Sessions, who is not only the Ranking
Member at this hearing, but the Ranking Member of the entire
Judiciary Committee. And so it is a great honor for us to have
him here, and before we call forward the nominees to be sworn,
I would recognize him for his opening statement. Senator
Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Well, thank you, Senator Whitehouse. I
appreciate that. These are important hearings, and I look
forward to participating in it. And I would just note, as you
know but for the record, how much work does go into a person's
nominating process. The FBI does background checks, the White
House checks, the Department of Justice checks, the local
Senators are inquired of, and a lot of things happen to ensure
that we are fulfilling our responsibility of advice and
consent.
Today's nominees have been nominated for a lifetime
appointment. This is the only time in a public forum they will
be asked any questions or held to account, so we need to do our
job on that. All were nominated just 14 days ago. That is
pretty fast. And so these hearings and follow-up written
questions will be the best way I think we have to be able to
fulfill our responsibility.
I want to take a moment to thank the Chairman for working
with us on some nominees who have had extensive records to
allow more time to look at that, and I think we can work on
that.
So, Mr. Chairman, I would be delighted to hear from this
panel. I think that we are in a position to go forward on these
nominees today. It is a very short turnaround, and if in the
course of it we find things that indicate that the nominee--
there are other questions, I think they should be--we should
set up a mechanism where that can be asked, and we will be able
to fulfill our responsibility.
So thank you very much.
Senator Whitehouse. Thank you, Senator Sessions. I am sure
that Senators Durbin and Burris and Senators Udall and Bennet
are very appreciative of the minority's courtesy in allowing
these nominees to proceed.
Senator Sessions. And I would say it does mean a lot to us
that Senators, I think, take seriously their responsibility to
review nominees, and their positive evaluations are important
to us.
Senator Whitehouse. If the nominees could come forward and
stand to be sworn. Do you affirm that the testimony you are
about to give before this Committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Mr. Feinerman. I do.
Justice Coleman. I do.
Mr. Martinez. I do.
Senator Whitehouse. Thank you very much. Please be seated
and welcome. I think what I will do is follow the order of
precedence set by my colleagues, which would bring before us
Justice Coleman first, followed by Mr. Feinerman, followed by
Mr. Martinez.
Justice Coleman, you are recognized for any opening
statement you would care to make.
STATEMENT OF SHARON J. COLEMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ILLINOIS
Justice Coleman. Thank you very much, Senator Whitehouse
and Senator Sessions. I have no opening statement. I would like
to say, however, that I thank you, Mr. Chairman, and Senator
Sessions and the Committee for the hard work that they do in
this very important task. I also thank my senior Senator,
Senator Durbin, for putting forth my name to the President. I
also thank Senator Burris, who met with us this morning, for
his consideration, the Committee that worked so hard to reach
this result where we are here before you today; and also, last
but not least, the President for nominating me to this
position.
Senator Whitehouse. Would you like to take a moment to
recognize any family members?
Justice Coleman. Very much so. I have quite a crew here.
Thank you very much. If they can stand when I call their names.
My husband first, Wheeler Coleman, is here. Our children--
my son, James Coleman; my daughter, Kara Coleman--are here. I
am also happy to say that my father, Dr. James Johnson, who
recently relocated from Huntsville, Alabama, to be near me in
Chicago, is here.
And also I have with me several relatives, my three
sisters-in-law. The oldest one, Cynthia Mitchell and her
husband, Cecil Mitchell, they have come from North Carolina,
along with their son, my nephew, Brandon. Also we have extended
family and friends from North Carolina, if they could stand.
I also have my two sisters-in-law from Chicago, and they
are Deborah and Barbara Coleman, and if they could please
stand, from Chicago. And they also have brought friends with
them, if they could also stand.
We also have extended family from the area, the Jacksons,
if they could also stand.
I also would like to introduce someone who has been with me
throughout this week, my lifelong friend for over 30 years,
Ilene Slonoff, who came from Hinsdale, Illinois.
And I also would like to acknowledge my only sibling, Dr.
Jackie Johnson Minter, who is watching on the webcast which you
have provided in Houston, Texas, Sugarland, Texas, and also
family and friends throughout Alabama, Montana, Illinois,
Missouri, North Carolina, and California. So I would like to
recognize all of them.
Thank you very much for that opportunity.
Senator Whitehouse. Well, that is a very impressive as well
as geographically far-flung delegation.
[Laughter.]
Senator Whitehouse. And we are delighted to welcome them
all here today.
Justice Coleman. Excuse me, Senator. If I could also just
acknowledge, although they are not with me personally today, I
would like to recognize, make mention of my mother, Dr. Fran
Johnson, and my mother-in-law, Marie Coleman. They are watching
over the rails of heaven. My mother was an associate provost at
University of Alabama-Huntsville until 2006.
Thank you very much.
Senator Whitehouse. Indeed they are. Thank you.
Mr. Feinerman.
[The biographical information of Sharon Johnson Coleman
follows.]
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STATEMENT OF GARY S. FEINERMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ILLINOIS
Mr. Feinerman. Thank you, Mr. Chairman, Senator Sessions.
I, too, would like to thank the President for the nomination. I
would like to thank Senator Durbin for recommending me to the
President, and it was a pleasure meeting Senator Burris this
morning. And I would like to thank the Committee for convening
this hearing.
If I can introduce my family members who are here: my wife,
Beth Kohl; our three children, Sophia, Anna, and Lily. And I
also have a cousin here who did not travel from far, he came
from the Pentagon. He is a senior adviser for Net Assessment at
the Department of Defense, Adam Lovinger, who is in the back.
And anybody who happens to be watching on the webcast, I would
like to acknowledge them as well.
[Laughter.]
Senator Whitehouse. Good. Well, I particularly want to
welcome your young daughters here and thank them for their
patience with all of this ceremony and folderol.
And now Mr. Martinez.
[The biographical information of Gary S. Feinerman
follows.]
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STATEMENT OF WILLIAM J. MARTINEZ, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO
Mr. Martinez. Thank you, Mr. Chairman, Senator Sessions. I
would like to begin by thanking President Barack Obama for
having the trust and confidence to nominate me for this
position. I have been and continue to be deeply humbled by what
is truly the greatest honor of my lifetime.
I would also like to thank Senator Mark Udall for his very
generous and heartfelt and kind words of introduction, as well
as Senator Bennet for his kind comments.
I would like to thank you, Mr. Chairman, and Ranking Member
Senator Sessions for convening this hearing today to allow us
members of the nominee panel to have an opportunity to address
any questions members of the Committee might have.
I would also, if I may, like to take a few moments to
introduce my family.
Senator Whitehouse. I wish you would.
Mr. Martinez. OK. I would like to start with my wife, my
loving wife, Judy Shlay. We have been married 25 years. She has
been a great supporter and a loving companion for me for many
years, and I could not have done this without her.
I would like to introduce my father, Guillermo Martinez,
and my mother, Mary Martinez.
Mr. Chairman, it is literally true I would not be sitting
here today at this table had not my parents several years ago
left behind everything near and dear to them and, with their
three young sons in tow, came to this country from Mexico to
give us a better life. And I also would never be sitting here
today if it was also not true that my parents never allowed me
for a moment to ever doubt that I would 1 day grow up to be the
first member of our family to attend college.
I would like to now introduce my beautiful daughters,
beginning with my older daughter Erica--Erica is a sophomore at
Macalester College in St. Paul, Minnesota--and my younger
daughter Laura, who is a senior at Denver East High School.
Their love for and devotion to their Daddy is one of the
greatest treasures of my life.
Next I would like to introduce my brothers: my brother
Salvador, who is a horse and dog breeder in western
Pennsylvania; and my other brother, my youngest brother, Al,
who is an owner of a small mortgage brokerage company in
Chicago.
And, finally, I would like to introduce my sister-in-law,
Susan Bertolino, who is on the faculty of Temple University,
came down from Philadelphia to be here today with us.
Thank you.
Senator Whitehouse. Thank you, Mr. Martinez. We are
delighted by the presence of your family, and it must be very
special for each of you to have your family around you on this
day.
[ The biographical information of William Joseph Martinez
follows.]
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I wish to ask a few questions that I think will come as no
surprise to all of you. They are questions that I ask
customarily when we are presented with candidates for a
lifetime nomination to our United States courts. The first
relates to comments that I made in my opening statement.
Judges must respect the role of Congress as the duly
elected representatives of the American people. They must
decide cases based on the law and the facts. They must not
prejudge any case but listen to every party that comes before
the court, popular or not. They must respect precedent. And
they must limit themselves to the issues that the court is
called upon to decide in that case. Can each of you satisfy
that standard? Mr. Feinerman?
Mr. Feinerman. Yes, I can, Senator.
Senator Whitehouse. Justice Coleman.
Justice Coleman. Yes, I can, Senator Whitehouse.
Senator Whitehouse. Mr. Martinez.
Mr. Martinez. I assure you, Chairman, that I can.
Senator Whitehouse. Thank you.
In order to uphold the rule of law, judges must give every
party their fair day in court. What assurances can you give
that everybody coming into your courtroom will be treated
fairly regardless of race, gender, religion, political beliefs,
economic background, or any other consideration?
Mr. Feinerman. I have been representing clients in court
for many years now, and I view as a role model the many judges
I have appeared before who have done precisely, Mr. Chairman,
what you have said a judge ought to do: make decisions based
upon the law and the facts and not carry any predispositions
into the case. And, in particular, I clerked for a judge right
out of law school, Judge Flaum on the Seventh Circuit, and he
in particular is a model in terms of treating litigants with
the utmost respect and also ensuring that the case is decided
on the facts and on the law.
Senator Whitehouse. Justice Coleman.
Justice Coleman. Mr. Chairman, I would hope that for the
past 12 years I have set a record which shows that I have
adhered to the principles you have set forth. Treating
litigants fairly and with respect is the hallmark of what I
believe a good judge should--how they should comport
themselves.
In addition to being a judge in several different sectors
of Cook County, circuit court and now the appellate court, I
also have taught all of the new judges in Cook County for over
10 years on judicial ethics, judicial conduct, in which I,
again, set forth the same values that you have put forth. I
assure you I will be able to do that.
Senator Whitehouse. Mr. Martinez.
Mr. Martinez. Mr. Chairman, I, too, can assure you that I
will have no difficulty in fulfilling those goals, and I know
that my track record, if one were to look at it, would show
with deeds more than words that I have made decisions in my
life and in my career that reflect those very goals.
I have represented working-class indigent individuals. I
have represented executive vice presidents of Fortune 500
companies. I have represented plaintiffs and defendants in
civil litigation. I have represented debtors and creditors in
bankruptcy proceedings. All across the board. And I am
confident that, were you to ask any of the clients that I have
represented, they would assure you that I would have no trouble
in meeting those expectations.
Senator Whitehouse. Thank you, Mr. Martinez.
Can each of you assure me that, if confirmed, you would
respect precedent and act with judicial modesty and judicial
restraint in discharging your duties as a United States
district judge?
Mr. Feinerman.
Mr. Feinerman. Yes, I could, Mr. Chairman.
Justice Coleman. Yes, I will.
Mr. Martinez. Mr. Chairman, I have full knowledge of the
limited role that I would have a district trial judge, and I
know that under the doctrine of stare decisis I am--and my oath
of office, would be compelled to follow binding precedent.
Senator Whitehouse. And, finally, history has shown that
what is right and what is popular may from time to time
diverge, and United States district judges have been called
upon over time to make decisions that are unpopular, that may
disrupt social expectations or economic expectations, but are,
in fact, the right thing to do under the law.
Can you assure me that in such circumstances you will not
hesitate to show the courage that is necessary to make the
right decision?
Mr. Feinerman. I give you that assurance, Mr. Chairman.
Justice Coleman. Mr. Chairman, based on my record, which
includes directed verdicts in very sensitive cases and post-
trial rulings in very complex cases, I assure you that I would
continue to uphold that.
Senator Whitehouse. Mr. Martinez.
Mr. Martinez. Mr. Chairman, I assure you that I can meet
those expectations, and I commit myself fully to meeting those.
Senator Whitehouse. Well, I thank all of you. My time has
expired, and we turn now to the Ranking Member, Senator
Sessions.
Senator Sessions. Well, thank you, Mr. Chairman. It is a
pleasure to be with each of you, and I will ask a few
questions.
Senator Whitehouse. You did get that Justice Coleman is
from Alabama?
Senator Sessions. I am excited about that. We are proud of
our alums. And you have family there still?
Justice Coleman. My father just relocated. I have family
and friends there. I graduated from Johnson High School.
Senator Sessions. And at UAH, University of Alabama-
Huntsville, your sister was----
Justice Coleman. My mother was associate provost.
Senator Sessions. Your mother.
Justice Coleman. Right.
Senator Sessions. That is a great university, a big
university.
Justice Coleman. Yes, it is.
Senator Sessions. Mr. Feinerman, in 2007, you participated
in a roundtable discussion, ``Confessions of a Blue State
Solicitor,'' and I think those are good things to do. I think
lawyers ought to be open and having discussions. And I do not
want to suggest anything improper, but the website describing
it called it an open discussion between attendees and Mr.
Feinerman about shaping one's law career while maintaining
progressive legal values.
As I understand the progressive movement in the early
1900s, it was a pretty elitist group that believed that there
are expert answers to complex questions, and only a few people
were really smart enough to know those answers, and it
denigrated a bit popular democracy in terms of that kind of
approach to government and policy.
So I guess my question is: Do you consider yourself a
progressive? And how would you define a progressive if you do?
Mr. Feinerman. I do not consider myself a progressive in
the sense that you described it in the early 20th century
sense. I think what--I did not have a role in putting together
that description----
Senator Sessions. You are right. It was not your choice of
words.
Mr. Feinerman [continuing]. On the website. I think what--
if I had to guess, I think that the author of that posting was
using ``progressive'' in the more modern sense, and I think it
was an American Constitution Society event, and I think it was
meant the way it is meant in contemporary political discourse.
Senator Sessions. Well, in the contemporary political
environment, what is progressive legal values? And how would
that impact a judge's decisionmaking?
Mr. Feinerman. I do not think it would impact a judge's
decisionmaking. I think progressive--just in contemporary
discourse, there are people who consider themselves
conservative, people who consider themselves progressive or
liberal. But in terms of the job of a judge, those values do
not determine how a statute is interpreted or how a fact is
found. There are precedents that tell a judge how to go about
doing judicial business, particularly district judges. And I
would commit to you that I would follow those precedents and
follow those legal tools.
Senator Sessions. Well, you have got an excellent and broad
legal background and handled a lot of complex cases that
oftentimes fall to the lot of a Federal judge to deal with, and
I think that speaks well of your legal skills. And you have
expressed caution, I guess I would say, but not opposition to
the death penalty and indicated that you wrestle with that and
are prepared--in a previous case, you made a speech about it
and some notes about it. Do you feel--you referred to--the
question you asked yourself is: Should somebody like me be a
part of the machinery of death? That is Justice Blackmun's
word. ``From this day forward,'' he said, ``I shall no longer
tinker with the machinery of death.''
So I guess, obviously, you have thought about it. I think
your answer in your speech indicated that you feel like you are
able to proceed and enforce the law as written, even though it
might be difficult. Is that still your view? And are you
committed to fairly following the law even when it calls for
the death of the defendant?
Mr. Feinerman. Yes, absolutely, and the speech was part of
that ``Reflections of a Blue State Solicitor General.'' And
what I was speaking about at that part of the speech was when
you are in a position for a State Attorney General, as I was,
or when you are any kind of prosecutor, you have to follow the
law. And I spoke about the case People v. Cecil Sutherland, and
I think any prosecutor really should reflect in any case,
particularly a case as grave as a capital case. And when I was
Solicitor General of Illinois, I supervised a criminal appeals
division, and our division handled numerous capital cases, and
my name was on those briefs. I edited those briefs. I met with
the families of the victims before the arguments before the
Illinois Supreme Court, and I think at the end of the speech I
said, yes, I was comfortable in that role. And because I was
comfortable in the role as an advocate, I think I certainly
would be comfortable in the role as a judge.
Senator Sessions. Well, I think you have well stated that.
I firmly believe that persons can disagree with the death
penalty as a matter of policy, but as for a lifetime
appointment on the Federal bench, it is appropriate to ask are
you prepared to follow the law faithfully like other laws and
not treat it differently and undermine it, as I have seen
certain judges do, just systematically, it seems, find one
excuse after another not to allow the normal process to go
forward.
I think we have made some changes over the years. We are
more stable about our death penalty situation today.
Justice Coleman, you filled out a questionnaire when you
ran for the appellate court or sought an appellate court seat
to the independent voters of Illinois, and you talked about the
mandatory sentencing requirements in Illinois and that they
seek to provide for more uniform sentencing, and I think you
affirmed that view is of value and it is something that is
legitimate to enforce and follow.
Is that your view? And do you think that--and how would you
see the Federal Sentencing Guidelines, which are more
restrictive, I think, than Illinois'--how do approach that?
Justice Coleman. Well, first of all, yes, I agree, Senator
Sessions, that the reasoning behind the mandatory Sentencing
Guidelines, as I stated in that questionnaire, was appropriate.
For so long, the sentencing could be disparate, markedly
uneven, depending on what defendant showed up in what
courtroom. And I think the goal of uniformity was a laudable
one, and I think to some extent the mandatory sentencing
addresses that.
I think the guidelines that are set forth in the Federal
system, I have heard--I have not--when I was Assistant U.S.
Attorney, I was a civil Assistant U.S. Attorney, and so I just
came into the office about the time that the guidelines were
beginning to take effect, so I do not have personal experience
with them.
But even though they are somewhat advisatory or advisory at
this point, I would say that there would probably be a unique
situation or the rare situation where I would depart from those
guidelines based on what I know of the Federal system.
Senator Sessions. Well, I think they are very helpful, and
I think you answered that well. I have offered legislation for
10 years to modify the crack cocaine penalties that I think are
too harsh and need to be--now all of a sudden, we have got a
lot of people who want to do it, go further than I think we
probably should go. But we will have a hearing on that
tomorrow, and so we may well--but I think Congress, if we are
going to step in and authorize and, in effect, create
guidelines and sentences, we ought to monitor them. If they are
not working effectively, Congress should change the law on
them, and that is what we will be working on. And I think your
experience is correct that if we have good guidelines, they
generally are better off being followed because I have seen in
my personal experience dramatically different sentences,
depending on what judge you happen to appear before, and that
is hard to justify.
Mr. Martinez, I appreciate your background and
qualifications. I note that you have been a member of the Legal
Panel of the ACLU in Colorado since 2006. That is a legitimate
institution that participates in litigation. I do not always
agree with their views. I do not think I would join them based
on the positions they publicly take, but I would note, Mr.
Chairman, that the ACLU supported the majority opinion in the
Citizens United case that my liberal colleagues criticized
vigorously this morning.
So what were your responsibilities in that position? And
what did it call on you to do?
Mr. Martinez. Senator, 4 years ago, I was requested to join
the Legal Panel by the legal director of the Colorado chapter
of the ACLU. The Legal Panel is a group of about 20
practitioners in Colorado who have an interest in civil rights
and civil liberties.
The function of the committee--I am sorry, of the panel is
to review proposed litigation memos prepared by the staff
attorneys of the local ACLU chapter, and the Legal Panel
discusses them, analyzes the potential litigation, and votes
either to recommend or not to recommend to the board of the
local chapter whether to seek redress from settlement
negotiations through litigation.
Senator Sessions. Well, for example, on that website, the
ACLU says that they believe the death penalty inherently
violates the Constitution, the ban on cruel and unusual
punishment; also it violates the guarantees of due process and
equal product.
Do you agree with that?
Mr. Martinez. Well, what I would agree with as a district
judge is that the United States Supreme Court has ruled that
capital punishment does not violate the Eighth Amendment except
in narrow circumstances that have been carved out in recent
years. So I think what is material and important is what is my
view--what my view would be as a sitting Federal district
judge, something that would be quite different from my views as
a personal citizen or an advocate or litigant and member of the
ACLU.
Senator Sessions. Well, as we are aware in this body of
which we are a part as sort of a political institution, we have
to make judgments. Do you personally think that the death
penalty and have you ever expressed a view as to whether or not
the death penalty violates the constitutional ban on cruel and
unusual punishment?
Mr. Martinez. I have never expressed such a view.
Senator Sessions. And would you share with us your view on
it?
Mr. Martinez. My view now today as a citizen as opposed to
what I would do as a district judge. My view is that I think
that with time, I think the long arc of history shows that
there has been a progression in some nations, and I think in
time in this Nation that that day may come. But whether it is
50 years or 100 years from now, that is, in my mind, irrelevant
to the notion of what is the law today, what would I be bound
to apply today, and that law today is that, with the exception
of certain limited circumstances, capital punishment does not
violate the Eighth Amendment, and I would be----
Senator Sessions. Well, we have got to deal about the
Constitution. So you think it is somehow the meaning of the
words alters as time goes by based on----
Mr. Martinez. The meaning of the Constitution?
Senator Sessions. Yes.
Mr. Martinez. No. There are enduring terms and text in the
Constitution that remain firm and fixed for all time unless
amended pursuant to the provisions of the Constitution. What
can change is the Supreme Court's interpretation or reading of
certain terms. And unless and until the Supreme Court ever
changes its interpretation of those relevant terms, then the
current status would obtain.
Senator Sessions. Well, so you hold out the possibility
that a Supreme Court might legitimately conclude the death
penalty violates the Eighth Amendment prohibition on cruel and
unusual punishment?
Mr. Martinez. Senator, what I am saying is that that may
occur in the future. It is a hypothetical, and it could happen
in 50 years or 100 years. Again, I would stress that it would
be irrelevant to my duties as a district judge. I would be
duty-bound by my oath and by the doctrine of stare decisis to
apply the law. I am fully prepared if a jury under the Federal
statutes, applicable Federal statutes, if a jury recommends a
death sentence, which is the way it works currently, and it was
properly obtain, that jury verdict was proper in terms of
procedural and substantive aspects, I would not have a problem
with imposing that recommended penalty from the jury.
Senator Sessions. It is just a pretty big deal in the sense
that--and I believe the Supreme Court, two members of the
Supreme Court were deeply in error, in effect, by agreeing with
the ACLU and dissenting in every death penalty case, contending
that the death penalty case is unconstitutional as a violation
of the Eighth Amendment. But you would not dispute, would you,
that at the time the Constitution was adopted and the time of
the 14th Amendment and other portions of the Constitution were
adopted, it makes multiple references to capital crimes, that
the possibility of taking life with due process but not without
due process, and that it would seem pretty clear, would it not,
that it would be an abuse of the interpretive power of a judge
to say that that Constitution should be construed in a way that
would eviscerate those provisions?
Mr. Martinez. I agree with you, Senator. The text of the
Constitution is clear. And until the last decade, the Supreme
Court consistently interpreted the text as one as you are today
discussing it. Now through the Roper case and the Kennedy case,
the Supreme Court has chipped away at that view. And as a
district court judge, for example, with respect to Roper, the
Supreme Court newly interpreted the Eighth Amendment to
prohibit capital punishment of individuals who committed the
capital--the alleged capital crime when they were under 18.
Whether I agree with it, whether I was happy with that
result or dismayed by the result is irrelevant. If I were ever
faced with that case with that situation, I would have to
follow Roper unless and until it was reversed or changed by a
subsequent Supreme Court ruling.
Senator Sessions. Well, I think that is well said in the
sense which you are bound by superior authority and how those
cases are interpreted. Just as a long-time prosecutor, I used
to be flabbergasted that members of the court would take that
view that the Eighth Amendment in general prohibits the death
penalty when the Constitution clearly contemplates a death
penalty in any number of different places.
Mr. Chairman, thank you for this opportunity to ask these
questions. There may be some written questions we will submit.
And we have got positive statements on these nominees also, and
I appreciate the opportunity to ask you these questions.
Senator Whitehouse. Before we conclude the hearing, I would
like to add into the record of this proceeding the statement of
our distinguished Chairman, Senator Patrick Leahy, in favor of
these nominees, as well as letters of support for Mr. Martinez
from the Colorado Hispanic Bar Association and the National
Employment Lawyers Association, as well as a letter from the
Anti-Defamation League in support of Mr. Feinerman. I ask
unanimous consent that those may be added to the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.
[The letters appear as a submission for the record.]
Senator Whitehouse. And I would conclude with--one of the
nice things about being able to hold these hearings is you get
to make some observations in conclusion, and the observation
that I would like to offer to each of you is that, in my view,
there are powerful forces that are at work in this country to
deprecate the value of the judicial forum and its role in the
American system of government. We see it in attacks on
practitioners, trial lawyers. We see it in efforts to put caps
on damages. We see it in the description of juries as
``runaway'' juries. We see in the description of lawsuits as
``frivolous,'' even when they have survived judicial
determination that they are not frivolous under Rule 11, and
there is a strong procedure for protecting against those
lawsuits. We see juries mentioned not once but three times in
the Constitution and Bill of Rights. And at least from this
Senator's perspective, I have the concern that powerful forces
look at our political institutions and see them as amenable to
suggestion and control, whether it be elected officials in the
executive branch or elected officials in our legislative branch
of government. And as those institutions become more and more
malleable to influence, in particular to monied influence, the
jury box stands more and more starkly as an institution of
American government that is beyond their reach. Indeed, efforts
to tamper with a jury are illegal; whereas, efforts to tamper
with Governors and Presidents and members of legislature are
encouraged through organized systems of campaign contribution
and support.
So in that sense, I hope that as each of you take your
oath--and I hope you will, and I hope it will be soon--to
support and defend the Constitution of the United States, you
will bear in mind the importance of the courtrooms to which I
hope, after our concurrence here in the Senate, you will enter
as important establishments in the constitutional system of our
Government as in many cases the last refuge for people who are
unpopular or against whom massive and powerful forces are
arrayed and for whom justice cannot be obtained in executive
forums or in legislative chambers. And you may turn out to be
their last hope, and I think it was the Founding Fathers'
intention that judges and juries should be that last hope. And
I offer that as advice worth every penny that you paid for it
in this hearing.
As the distinguished Ranking Member has said, the hearing
will remain open for further questions, and, obviously, even if
this hearing's period is closed, I would encourage you to
answer any further questions that may come from any side so
that we can move expeditiously toward considering your
nominations in the Judiciary Committee, and from there I hope
quickly to the floor, so that you can get about the work of
performing the role of United States district court judges. And
I appreciate very much your participation today and thank very
much your families who took great trouble and traveled some
distance to attend. I know particularly for the younger ones
these are tedious, but I have to say young and old alike have
been very well behaved, and I appreciate it.
The hearing is concluded.
[Whereupon, at 3:48 p.m., the Committee was adjourned.]
[Questions and answers and submission for the record
follow.]
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