[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

                               ----------                              

        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

             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




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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

                              ----------                              

                            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
                              ----------                              

                      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
                              ----------                              

                      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
                              ----------                              

                       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

                              ----------                              


                      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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