[Senate Hearing 111-695, Part 6]
[From the U.S. Government Publishing Office]
S. Hrg. 111-695, Pt. 6
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
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APRIL 22, APRIL 28, and MAY 13, 2010
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PART 6
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Serial No. J-111-4
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 111-695, Pt. 6
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
APRIL 22, APRIL 28, and MAY 13, 2010
__________
PART 6
__________
Serial No. J-111-4
__________
Printed for the use of the Committee on the Judiciary
----------
U.S. GOVERNMENT PRINTING OFFICE
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For sale by the Superintendent of Documents, U.S. Government Printing
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Brian A. Benzcowski, Republican Staff Director
C O N T E N T S
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THURSDAY, APRIL 22, 2010
STATEMENTS OF COMMITTEE MEMBERS
Kaufman, Hon. Edward E., a U.S. Senator from the State of
Delaware....................................................... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 114
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, prepared statement....................................... 117
PRESENTER
Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware
presenting Leonard Stark, Nominee to be U.S. District Judge for
the District of Delaware....................................... 2
Kaufman, Hon. Edward E., a U.S. Senator from the State of
Delaware for Senator Schumer presenting Raymond J. Lohier, Jr.,
Nominee to be U.S. Circuit Judge for the Second Circuit........ 5
STATEMENTS OF THE NOMINEES
Lohier, Raymond J., Jr., Nominee to be U.S. Circuit Judge for the
Second Circuit................................................. 6
Questionnaire................................................ 8
Stark, Leonard, Nominee to be U.S. District Judge for the
District of Delaware........................................... 49
Questionnaire................................................ 50
QUESTIONS AND ANSWERS
Responses of Raymond J. Lohier, Jr., to questions submitted by
Senators Coburn and Sessions................................... 98
Responses of Leonard Stark to questions submitted by Senators
Coburn and Sessions............................................ 104
SUBMISSION FOR THE RECORD
Cottrell, Frederick L., III, Richards Layton & Finger,
Wilmington, Delaware, March 23, 2010, letter................... 110
Dunne, Cafey R., Chair, New York City Bar, New York, New York,
May 26, 2010, letter........................................... 111
Gillibrand, Hon. Kristen E., a U.S. Senator from the State of New
York, prepared statement....................................... 112
----------
WEDNESDAY, APRIL 28, 2010
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 383
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 119
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 384
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 125
PRESENTERS
Dodd, Hon. Christopher J., a U.S. Senator from the State of
Connecticut presenting Robert N. Chatigny, Nominee to be U.S.
Circuit Judge for the Second Circuit........................... 119
Lieberman, Hon. Joseph I., a U.S. Senator from the State of
Connecticut presenting Robert N. Chatigny, Nominee to be U.S.
Circuit Judge for the Second Circuit........................... 121
Warner, Hon. Mark R., a U.S. Senator from the State of Virginia
presenting John A. Gibney, Nominee to be U.S. District Judge
for the Eastern District of Virginia........................... 124
Webb, Hon. Jim, a U.S. Senator from the State of Virginia
presenting John A. Gibney, Nominee to be U.S. District Judge
for the Eastern District of Virginia........................... 122
STATEMENTS OF THE NOMINEES
Chatigny, Robert N., Nominee to be U.S. Circuit Judge for the
Second Circuit
Questionnaire................................................ 153
Gibney, John A., Nominee to be U.S. District Judge for the
Eastern District of Virginia
Questionnaire................................................ 251
QUESTIONS AND ANSWERS
Responses of Robert N. Chatigny to questions submitted by
Senators Coburn, Cornyn, Grassley and Sessions................. 302
Responses of John A. Gibney to questions submitted by Senators
Coburn and Sessions............................................ 364
SUBMISSION FOR THE RECORD
Apter, Ronald S., Assistant U.S. Attorney, District of
Connecticut, Hartford Financial Services Group, Inc., Hartford,
Connecticut; Califano, Mark G., Assistant U.S. Attorney,
District of Connecticut, GE Capital Corp, Norwalk, Connecticut;
Michael G. Considine, Assistant U.S. Attorney, Eastern District
of New York, Day Pitney LLP, Stamford, Connecticut; Thomas V.
Daily, Assistant U.S. Attorney, District of Connecticut, Reid
and Riege, P.C., Hartford, Connecticut; James K. Filan, Jr.,
Assistant U.S. Attorney, District of Connecticut, Pepe & Hazard
LLP, Southport, Connecticut; Andrew P. Gaillard, Assistant U.S.
Attorney, District of Connecticut, Day Pitney LLP, Stamford,
Connecticut; Gates Garrity-Rokous, Assistant U.S. Attorney,
District of Connecticut, GE Capital Corporation, Norwalk,
Connecticut; Glasser, James I., Assistant U.S. Attorney,
District of Connecticut, Wiggin and Dana LLP, New Haven,
Connecticut; Marc J. Gottridge, Assistant U.S. Attorney,
Southern District of New York, Lovells LLP, New York; Ethan
Levin-Epstein, Assistant U.S. Attorney, Eastern District of New
York, First Assistant U.S. Attorney, District of Connecticut,
Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C.,
New Haven, Connecticut; Walter P. Loughlin, Assistant U.S.
Attorney, Southern District of New York, K&L Gates, New York;
Stephen V. Manning, Assistant U.S. Attorney, District of
Connecticut, O'Brien, Tanski & Young, LLP, Hartford
Connecticut; Joseph W. Martini, Assistant U.S. Attorney,
District of Connecticut, Wiggin and Dana LLP, New Haven,
Connecticut; Jeffrey A. Meyer, Assistant U.S. Attorney,
District of Connecticut, Associate Professor, Quinnipiac
University School of Law, Hamden, Connecticut; Alfred U.
Pavlis, Assistant U.S. Attorney, Southern District of New York,
Daly & Pavlis, Southport, Connecticut; H. James Pickerstein,
Assistant U.S. Attorney, District of Connecticut, U.S.
Attorney, District of Connecticut, Chief Assistant United
States Attorney, District of Connecticut, Pepe & Hazard LLP,
Southport, Connecticut; Brian E. Spears, Assistant U.S.
Attorney, District of Connecticut, Levett Rockwood P.C.,
Westport, Connecticut, April 27, 2010, joint letter............ 370
Connecticut Law Tribune, Douglas S. Malan, article,.............. 374
Golub, David S., Silver Golub & Teitell LLP, Stamford,
Connecticut, September 23, 2005, letter and Affidavit.......... 377
O'Hare, Michael E., Supervisory Assistant State's Attorney,
Office of the Chief State's Attorney, Rocky Holl, Connecticut,
March 5, 2010.................................................. 387
Nevas, Alan H., U.S. Attorney, District of Connecticut, U.S.
District Judge, District of Connecticut; Kevin J. O'Connor,
U.S. Attorney, District of Connecticut, U.S. Associate Attorney
General; Stanley A. Twardy, Jr., U.S. Attorney, District of
Connecticut, April 16, 2010, letter............................ 399
Stewart, Elizabeth J., Murtha Cullina LLP, Attorneys at Law, and
David N. Rosen, March 15, 2010, letter and attachment.......... 401
Webb, Hon. Jim, a U.S. Senator from the State of Virginia,
prepared statement............................................. 411
U.S. District Court, District of Connecticut, Hartford,
Connecticut, court report...................................... 413
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THURSDAY, MAY 13, 2010
STATEMENTS OF COMMITTEE MEMBERS
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 447
Prepared statement........................................... 1048
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1095
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 758
PRESENTERS
Feingold, Hon. Russ, a U.S. Senator from the State of Wisconsin,
presenting Scott M. Matheson, Jr., Nominee to be U.S. Circuit
Judge for the Tenth Circuit.................................... 457
Franken, Hon. Al, a U.S. Senator from the State of Minnesota,
presenting Susan Richard Nelson, Nominee to be U.S. Circuit
Judge for the District of Minnesota............................ 458
Hatch, Hon. Orrin, a U.S. Senator from the State of Utah,
presenting Scott M. Matheson, Jr., Nominee to be U.S. Circuit
Judge for the Tenth Circuit.................................... 449
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota,
presenting Susan Richard Nelson, Nominee to be U.S. District
Judge for the District of Minnesota............................ 455
Mikulski, Hon. Barbara, a U.S. Senator from the State of
Maryland, presenting Ellen Lipton Hollander, Nominee to be U.S.
District Judge for the District of Maryland and James K.
Bredar, Nominee to be U.S. District Judge for the District of
Maryland....................................................... 451
Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island,
presenting John J. McConnell, Jr., Nominee to be U.S. District
Judge for the District of Rhode Island......................... 452
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island, presenting John J. McConnell, Jr., Nominee to be U.S.
District Judge for the District of Rhode Island................ 454
STATEMENTS OF THE NOMINEES
Bredar, James K., Nominee to be U.S. District Judge for the
District of Maryland........................................... 584
Questionnaire................................................ 585
Hollander, Ellen Lipton, Nominee to be U.S. District Judge for
the District of Maryland....................................... 644
Questionnaire................................................ 646
Matheson, Scott M., Jr., Nominee to be U.S. Circuit Judge for the
Tenth Circuit.................................................. 460
Questionnaire................................................ 461
McConnell, John J., Jr., Nominee to be U.S. District Judge for
the District of Rhode Island................................... 529
Questionnaire................................................ 531
Nelson, Susan Richard, Nominee to be U.S. District Judge for the
District of Minnesota.......................................... 708
Questionnaire................................................ 709
QUESTIONS AND ANSWERS
Responses of James K. Bredar to questions submitted by Senators
Sessions, Grassley and Coburn.................................. 780
Responses of Ellen Lipton Hollander to questions submitted by
Senators Sessions, Grassley and Coburn......................... 790
Responses of Scott M. Matheson to questions submitted by Senators
Sessions, Grassley, Kyl and Coburn............................. 801
Responses of John J. McConnell, Jr., to questions submitted by
Senators Sessions, Grassley, Kyl, Cornyn and Coburn............ 828
Responses of Susan Richard Nelson to questions submitted by
Senators Sessions, Grassley and Coburn......................... 1034
SUBMISSION FOR THE RECORD
Avedisian, Scott, Mayor, City of Warwick, Warwick, Rhode Island,
May 7, 2010, letter............................................ 1043
Baldwin, Barbara F., Providence, Rhode Island, February 23, 2009,
letter......................................................... 1044
Bishop, Brian, Director of the Founders Project and Bill Felkner,
President and Founder, Ocean State Policy Research Institute,
Providence, Rhode Island, June 16, 2010........................ 1045
Chamness, Charles, President & CEO, National Association of
Mutual Insurance Companies, Washington, DC, December 17, 2010,
letter......................................................... 1057
Columbus, Curt, Artistic Director, Trinity Repertory Company,
Providence, Rhode Island, December 29, 2008, letter............ 1058
Corley, Richard K., Corley & Associates, Providence, Rhode
Island, March 3, 2009, letter.................................. 1060
DeRentis, James V., Executive Vice President & Chief Business
Officer, BankRI, January 25, 2009, letter...................... 1063
Diaz, Grace, Rhode Island State Representative District 11,
Providence, Rhode Island, January 13, 2009, letter............. 1064
Esserman, Colonel Dean M., Chief of Police, Providence Police
Department, Providence, Rhode Island, May 7, 2010, letter...... 1065
Fisher, D. Michael, Circuit Judge, U.S. Court of Appeals for the
Third Circuit, Pittsburgh, Pennsylvania, May 11, 2010, letter.. 1067
Foulkes, William G., Providence, Rhode Island, January 27, 2009,
letter......................................................... 1069
Gerhardt, Michael, and Doree Goodman, Warren, Rhode Island,
February 27, 2009, letter...................................... 1070
Grady, Meghan, MPA, and Kimberly Ahem, Providence, Rhode Island,
February 23, 2009, letter...................................... 1072
Greater Providence Chamber of Commerce, Providence, Rhode Island,
statement...................................................... 1073
Gregorie, Christine O., Governor, State of Washington, Olympia,
Washington, December 12, 2008, letter.......................... 1074
Gross, Teny Oded, Executive Director, Institute for the Study &
Practice of Nonviolence, Providence, Rhode Island, December 12,
2008, letter................................................... 1075
Hamblett, Adam, Vice President/General Manager, Cox Media, West
Warwick, Rhode Island, January 26, 2009, letter................ 1077
Harpootian, John M., Paster & Harpootian, Cranston, Rhode Island,
May 7, 2010, letter............................................ 1078
Hittner, Barry G., Warwick, Rhode Island, January 19, 2009,
letter......................................................... 1080
Hurst, Barbara, Deputy Public Defender, Providence, Rhode Island:
January 12, 2009, letters...................................... 1081
Israel, Richard J., Great Barrington, Massachusetts, May 7, 2010,
letter......................................................... 1084
Jaffe, Bob & Jill, Providence, Rhode Island, February 24, 2009,
letter......................................................... 1085
Jones, Scot A., President/CEO, Groov-Pin, Smithfield, Rhode
Island:
January 28, 2009, letter..................................... 1086
November 2 2010, letter...................................... 1087
Josten, R. Bruce, Executive Vice President, Chamber of Commerce,
Washington, DC, June 15, 2010, letter.......................... 1088
Keefe, Sister Ann, Saint Michael's Parish, Providence, Rhode
Island, May 6, 2010, letter.................................... 1089
Keeling, Beth, Supervisor of Southwick Drive Group Home, Lincoln,
Rhode Island, December 26, 2008, letter........................ 1090
Kelly, Neil F.X., Prosecutor, Criminal Division, Providence,
Rhode Island, February 12, 2009, letter........................ 1092
Lapides, Sally E., President & CEO, Residential Properties LTD,
Providence, Rhode Island, January 14, 2009, letter............. 1094
Magaziner, Suzanne McTigue, Bristol, Rhode Island, February 22,
2009, letter................................................... 1098
Mandell, Mark S., Attorney at Law, Mandell, Schwartz & Boisclair,
LTD, Providence, Rhode Island, January 28, 2009, letter........ 1099
Nolan, Annie M., President, Providence, Rhode Island, February 6,
2008, letter................................................... 1100
Pine, Jeffrey B., Jeffrey B. Pine Law Office, Wakefield, Rhode
Island, May 7, 2010, letter.................................... 1101
Providence Journal, by John E. Mulligan, April 26, 2010, article. 1103
Ruggiero, Deborah, State Representative, District 74, Jamestown,
Rhode Island, January 20, 2009, letter......................... 1108
Sampson, David A., President and Chief Executive Officer,
Property Casualty Insurers Association of America, Washington,
DC, December 14, 2010, letter.................................. 1110
Sullivan, Charles, Professor of English, Providence, Rhode
Island, January 27, 2009, letter............................... 1111
Symonds, Susan, Interior Design, LL, Providence Rhode Island,
February 20, 2009, letter...................................... 1112
U.S. Chamber Institute for Legal Reform, U.S. Chamber of
Commerce, American Insurance Association, American Tort Reform
Association, National Association of Mutual Insurance
Companies, Property and Casualty Insurers Association of
America, May 11, 2010, joint letter............................ 1113
Weisberger, Joseph R., Chief Justice (retired), Supreme Court of
Rhode Island, Providence, Rhode Island, February 9, 2009....... 1115
Whalen, David G., President and Chief Executive Officer, Lincoln,
Rhode Island:
January 22, 2009, letter..................................... 1117
May 6, 2009, letter.......................................... 1119
Wood, Cliff, Councilman, Providence, Rhode Island, April 1, 2009,
letter......................................................... 1121
ALPHABETICAL LIST OF NOMINEES
Bredar, James K., Nominee to be U.S. District Judge for the
District of Maryland........................................... 584
Chatigny, Robert N., Nominee to be U.S. Circuit Judge for the
Second Circuit................................................. 153
Gibney, John A., Nominee to be U.S. District Judge for the
Eastern District of Virginia................................... 251
Hollander, Ellen Lipton, Nominee to be U.S. District Judge for
the District of Maryland....................................... 644
Lohier, Raymond J., Jr., Nominee to be U.S. Circuit Judge for the
Second Circuit................................................. 6
Matheson, Scott M., Jr., Nominee to be U.S. Circuit Judge for the
Tenth Circuit.................................................. 460
McConnell, John J., Jr., Nominee to be U.S. District Judge for
the District of Rhode Island................................... 529
Nelson, Susan Richard, Nominee to be U.S. District Judge for the
District of Minnesota.......................................... 708
Stark, Leonard, Nominee to be U.S. District Judge for the
District of Delaware........................................... 49
NOMINATIONS OF RAYMOND J. LOHIER, JR., NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE SECOND CIRCUIT; LEONARD STARK, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF DELAWARE
----------
THURSDAY, APRIL 22, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 3 p.m., Room SD-
226, Dirksen Senate Office Building, Hon. Edward E. Kaufman
presiding.
OPENING STATEMENT OF HON. EDWARD KAUFMAN, A U.S. SENATOR FROM
THE STATE OF DELAWARE
Senator Kaufman. I am pleased, and I am pleased to call
this nomination's hearing of the Senate Committee on Judiciary
to order, and I want to thank Chairman Leahy for permitting me
to Chair this hearing.
I'd like to welcome both the nominees and their families
and friends, the U.S. Senate and congratulate them, genuinely
congratulate them on the nominations and to thank their family
and friends for letting them accept the nominations.
Today we welcome Raymond Lohier, Jr., nominated to be the
Judge on the Circuit Court, Second Circuit. Mr. Lohier has 13
years of experience as a Federal prosecutor and most recently
served as a Deputy Chief and Chief of the Securities and
Commodities Fraud Task Force in the U.S. Attorney's Office for
the Southern District of New York, a very quiet place to be.
As you may know, I have been a strong champion here in the
Senate of the Department of Justice efforts to root out the
fraud that contributed to our financial crisis and bring those
responsible to justice. Poor Mr. Lohier had to listen to me
yesterday talk about that. I really appreciate your efforts. I
really appreciate everything you've done and I really
appreciate your accepting this public service. I know public
service runs deeply to you and it is a wonderful thing you are
doing.
We'd also like to give a warm welcome, an especially warm
welcome to Hon. Leonard Stark from my state of Delaware,
nominated to be District Court Judge for the District of
Delaware. Congratulations.
Judge Stark currently serves the District as a Magistrate
Judge. He was a previous Assistant U.S. Attorney, a very well-
respected Assistant U.S. Attorney in Delaware. Delaware is a
small state, where everybody knows everybody. So when you're
respected in Delaware, you're respected.
I'm pleased to note that he's an active member of the
Delaware legal community and an active alumnus of the
University of Delaware. He will be introduced by my Senior
Senator, Tom Carper.
Welcome, Senator Carper, and thank you for being here. I
know you are scheduled at hearings, so we'll get to you very
soon. In fact, we'll get you right now.
PRESENATION OF LEONARD STARK, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE DISTRICT OF DELAWARE BY HON. THOMAS R. CARPER, A U.S.
SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Mr. Chairman, I think I'd like to start off
my hearing by singing a verse of Oh, Our Delaware.
Senator Kaufman. Proceed.
Senator Carper. I once had the misfortune of following Maya
Angelou as a commencement speaker at the University of Delaware
several years ago when I was Governor. She had written for the
entire graduating class of the University that year, written a
song, a poem and a song, and she sang it.
After she finished that and left 25,000 people standing on
their chairs cheering, I was introduced to follow her.
Senator Kaufman. I am sure you did just fine.
Senator Carper. I said, after David Roselle, the President,
introduced me, I said like Maya Angelou, I too will sing my
remarks.
While I am happy enough today to almost sing my remarks,
I'll spare all of you for that. I just want to say to Mr.
Chairman and to Pat Leahy and Jeff Sessions, the Chairman and
full Committee and the Ranking Republican and to your staffs
how much we appreciate the expedited consideration of this
nomination.
I also want to say here as we stand next to, sit next to
our other nominee, Raymond Lohier, that we wish you and your
family well and congratulations on your nomination.
Mr. Stark, Len Stark will I'm sure introduce his wife and
three children, his mom and sister in a little bit when he
speaks. Who knows, he may introduce the rest of the crowd that
is here today as well. But I just want to say we're glad that
you all are here and have our Chief Judge from the Federal
District Court in Delaware, Judge Sleet is here.
A fellow who is sitting almost right behind me over my
right shoulder is Jim Soles, legendary professor and Political
Science Professor Emeritus at the University of Delaware who
has mentored among others, Leonard Stark and me. That is just a
very small sampling of folks that he has mentioned over the
years.
He probably single handedly has sent more people off into
public service in the State of Delaware than anybody else.
Senator Kaufman. One of my personal heroes.
Senator Carper. He is a personal hero to all of us from
Delaware. It is great to be here with him on this special,
special day.
I just want to say how pleased and really honored I was to
present to the President the names of three superbly qualified
Delawareans for him to consider for this judicial appointment.
Any one of them would have been an excellent addition to the
court and all of them uphold the high regard in which this
court, our court, is held.
The President has made I think a very wise choice in
nominating our U.S. Magistrate, Leonard P. Stark, for a seat,
bar seat on the U.S. District Court in Delaware. I will candor,
he could not have made a bad choice from among the three names
that we sent him. They are all just superb.
Len Stark is a fellow University of Delaware graduate. So
likely he is a proud Blue Hen Not just any kind of Blue Hen,
but a Fighting Blue Hen. He couldn't decide what to major in at
the University of Delaware, whether to major in political
science or economics, so he majored in both. He couldn't decide
whether as an undergraduate, just an undergraduate degree with
a dual major and a masters degree, so he got both. Not
everybody does that as an undergraduate to also complete your
graduate work in history.
I think early on the folks at U of D realized that this is
an exceptional, exceptional person. He received as a student at
the University of Delaware a full scholarship as a Eugene
Dupont Memorial Distinguished Scholar.
Following graduation, he was twice honored by fellow
students and alumni by serving as commencement speaker. I don't
know about you, Len, but I love giving commencement addresses.
My guess is if they had you back twice, you must have been
pretty good. So for that, congratulations.
Right after graduating from the University of Delaware,
Leonard Stark was selected as a Rhodes Scholar. He studied at
Oxford University. He has authored numerous academic and
scholar publications including a book on British politics which
he wrote in his spare time in between classes at Oxford. After
Oxford, Leonard wanted to earn his law degree at Yale Law
School where he served as Senior Editor of the Yale Law
Journal.
Somehow through all of this he managed to meet Beth. Jim
Soles tells me, Dr. Soles tells me they met on their first day
as freshmen at the University of Delaware. So actually after he
kind of peaked on his first day, after that it was all
downhill. But he still managed to accomplish quite a bit in
what followed.
He finished up with Yale Law School. I think the next thing
for him to do was to take a judgeship with a very distinguished
jurist in our part of the country, Walter Stapleton on the
Third Circuit Court of Appeals, after which Len practiced as a
corporate litigator at a little bitty law firm called Skadden,
Arps.
He began his career in public service as an Assistant U.S.
Attorney for Delaware where from 2002 until 2007 he handled a
wide variety of Federal, criminal and civil matters. Currently
Leonard Stark serves as a U.S. District Court of Delaware in
the service of the U.S. District Court of Delaware as a
magistrate judge. In this position he already does a fair
amount of the same work as a District Court Judge. Not all, but
a good deal.
His docket largely consists of civil cases that are
referred to him by three active District Court judges. These
referral cases, a great many of which are patent infringement
actions, Judge Stark handles all types of pretrial matters, and
in certain cases even presides at trial just like we sometimes
get to preside as Chairs of subcommittees in hearings just like
this one.
Finally, I'll just say Len Stark is a humble and dedicated
public servant. In fact, if I were half as smart and half as
accomplished as he is, you would not want to be in the same
room with me. This is a guy, to be this good and be this smart
and to be this humble is a pretty remarkable combination.
A dedicated public servant, obviously good family man. He
is blessed with a wonderful wife and three terrific young
children who I've been able to spend some time here today. He
is joined today by his mom as well. I want to say to his mom,
Linda, I think his sister Danielle is here, brother, father-in-
law, James Brophee I believe also in attendance.
Particularly to Linda, to Len's mom, thank you so much for
all that you and others in your family did to raise this young
man. For him to turn out as well as he has, obviously somebody
was involved early on and you have been involved all of his
life, so great work. Maybe your sister Danielle gets an assist
as well.
I have already introduced Jim Soles. Let me just say he is
one of the all-time greats. The wind beneath my wings and I
know Len Stark's and that of so many others who are here today.
I would conclude by saying that I think in every facet of
his life, Len Stark has performed with distinction earning the
highest praise from his colleagues in many of the most
prestigious awards ever given to a legal scholar and to a
public servant.
I think I can sum it all up by saying simply that Len Stark
has the heart of a servant and his nomination, his position as
magistrate on the U.S. District Court clearly provides him with
the skills and preparation to be an outstanding District Court
judge.
His legal acumen, his tireless work ethic, his experience
as a Federal magistrate judge, as an Assistant U.S. Attorney,
as a litigator, has prepared him well for this seat on the U.S.
District Court in Delaware should this Committee and the Senate
see fit to confirm the nomination.
In fact, it is hard for me to imagine really finding anyone
in the country better prepared than he is to serve in this
position. I urge my colleagues to move quickly on his
confirmation and already you have moved very quickly.
Again, to you my colleague and friend, Senator Kaufman, Mr.
Chairman, it is great seeing you sitting there. To Senator
Leahy, our Chair and to Jeff Sessions, our ranking Republican,
all the staff who helped move this along, the seat has been
vacant for a long time and we are anxious to fill it and we
thank you for bringing us this much closer to that goal. Thank
you so much.
Senator Kaufman. Thank you for as you said, an excellent
process and clearly coming up with an excellent result. I want
to thank you. I know you have to leave to go to committee, but
I appreciate it.
Senator Carper. I'm going to go preside over a hearing of
my own.
Senator Kaufman. There you go.
Senator Carper. I know I leave this nomination in very good
hands.
Senator Kaufman. Thank you.
Senator Carper. Thank you.
PRESENTATION OF RAYMOND J. LOHIER JR., NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY EDWARD E. KAUFMAN, A
U.S. SENATOR FROM THE STATE OF DELAWARE FOR SENATOR SCHUMER
Senator Kaufman. Next I have the pleasure of introducing
Mr. Lohier. Senator Schumer told me that unfortunately he
couldn't be here, which is the Senate is crazy now, but he
sends his regret.
He has a statement here he wants to put in the record.
Chairman Leahy has a statement he wants to put in the record on
both the nominees. If there is no objection, I will put them in
the record. Hearing none.
[The prepared statement of Senator Schumer and Chairman
Leahy appears as a submisssion for the record.]
Mr. Lohier has had a distinguished career as a Federal
prosecutor. He served as a trial attorney in U.S. Department of
Justice Civil Rights Division and since 2000 has been an
Assistant U.S. Attorney in the Office of the U.S. Attorney for
the Southern District of New York where he is currently Special
Counsel for the U.S. Attorney.
In the Southern District of New York, he has held multiple
leadership positions. As Deputy Chief and Chief of the
Narcotics Unit, Mr. Lohier supervised the investigation and
prosecution of hundreds of cases involving large scale drug
distribution networks.
He has also served as Deputy Chief and Chief of the
Southern District of New York Securities and Commodities Fraud
Task Force. In these roles, he supervised or co-supervised all
of the District's securities fraud trials.
Most notably, Mr. Lohier oversaw the investigation and
prosecution of Bernie Madoff, one of the biggest fraud cases in
the country's history. His work led to Madoff's conviction, a
sentence of 150 years in prison and a forfeiture of more than
$70 billion.
Mr. Lohier also participated in the investigation and
prosecution of New York Attorney Marc Dreier for a $750 million
Ponzi scheme resulting in a 20-year prison sentence and
forfeiture of more than $740 million.
Mr. Lohier has received several honors and awards for his
outstanding work including the Attorney General's John Marshall
Award for Outstanding Legal Achievement and multiple Department
of Justice Special Achievement awards.
Mr. Lohier, your credentials are truly impressive and we
are deeply grateful for your public service.
With the agreement of the Ranking Member and in the
interest of efficiency, we are going to have both nominees on
the same panel. So if you'd come forward.
I'd like you both to please stand and raise your right
hands and repeat after me.
Do you affirm the testimony you are about to give before
the Committee will be the truth, the whole truth and nothing
but the truth so help you God?
Mr. Lohier. I do.
Judge Stark. I do.
Senator Kaufman. Thank you. Let the record show the
nominees have taken the oath.
Mr. Lohier, I welcome you and acknowledge any family
members or friends you have here today and then give an opening
statement.
STATEMENT OF RAYMOND LOHIER, TO BE U.S. CIRCUIT JUDGE FOR THE
SECOND CIRCUIT
Mr. Lohier. Thank you, Senator. I don't have a specific
opening statement, but I would like to thank the Committee and
you, Senator, for presiding over this hearing promptly. I would
also like to thank Senator Schumer for his unstinting support
throughout this process as well as Senator Gillibrand.
I'd like to thank the many members of the Department of
Justice, both my current colleagues and former colleagues who
have expressed their support and good wishes. Of course I'd
like to thank the President for nominating me. It is a great
privilege and a great honor.
I would be more than happy to answer the Committee's
questions, but before that if I may, I would like to introduce
and take advantage of your kind offer to introduce members of
my family.
Senator Kaufman. Great.
Mr. Lohier. I have here with me my lovely wife, Donna, who
I was fortunate enough to meet in my first year of law school
and everything went well since then.
I have also with me my two boys. William, who is eight, and
John, who is six. Senator, I don't want you to be alarmed if
you see them make a run for the door at any given time.
Senator Kaufman. I will not be alarmed.
Mr. Lohier. I also have with me my mother, Flocie Lohier,
who as much as anyone else, taught me the value of hard work
and integrity. I thank her for being here.
My father, who passed away approximately two and a half
years ago I'm sure is looking over me right now and is here in
spirit.
I'd also like to acknowledge the fact that both my father-
in-law and my mother-in-law, C.S. Lee and Nancy Lee, drove all
the way up here from Florida to be here, and I thank them very
much for that.
I have a very close family friend, Pat Taboe, who is also
here who came last night and I appreciate her presence. I'd
especially like to acknowledge the presence of someone who has
been my mentor and whom I had the privilege of serving as a law
clerk, and that's Judge Robert P. Patterson, Jr., of the United
States District Court for the Southern District of New York and
I truly have valued his mentorship over the course of the years
that I have known him and since I have clerked for him.
In addition, Senator, I have got several of my wife's
uncles and an aunt, Mee-Sang Skrajnowski and Wlodek Skrajnowski
and K.S. Lee as well as many, many friends from law school and
college and high school. I thank them all for being here. I
thank you again.
Senator Kaufman. And I thank them for letting you do this,
taking on this responsibility. I know it's a hardship on family
and friends, but I think it's so incredibly worthwhile and I
appreciate what you're doing.
Judge Stark, would you like to make an opening statement
and point out some of your family and friends?
[The biographical Information of Raymond Lohier follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF LEONARD STARK, TO BE U.S. DISTRICT JUDGE FOR THE
DISTRICT OF DELAWARE
Judge Stark. Yes. Thank you very much. Thank you, Mr.
Chairman, and thank you to the Committee for having this
hearing. I too want to thank Senator Carper for his very kind
and generous introduction and for taking time out of his
schedule to be here to do that.
I of course am very grateful to the President as well for
this great honor of his nomination of me. I don't have an
opening statement, but I would like to take the chance to
introduce some of the many family and friends that I have with
me starting first with my wife, Beth Stark.
We have our three children here with us. I think all three
are still in the room.
Senator Kaufman. Yes, they are.
Judge Stark. OK. That may not last. My son, my oldest son,
Brennan, is 11, my daughter Lucy is eight, and my son who I am
most concerned with at the moment, James, is 3 years old.
I am very pleased also that my mother, Linda Stark, is
here. She is here from St. Louis, and my sister Danielle
Gordman, came in from Omaha, Nebraska to be here as well.
My father-in-law had a shorter trip, James Brophy, he is
here from Maryland. There are family members and friends who
are watching on the webcast as well. I particularly would like
to note my mother-in-law Karen Brophy and my two brothers-in-
law, Neal Brophy and Jeff Gordman.
I have several friends here in the audience including
friend and colleague, our Chief Judge of the District Court,
Greg Sleet and I also want to note Dr. James Soles whom Senator
Carper mentioned, but I am truly blessed to have Dr. Soles as a
friend and a mentor and it is certainly, as you know, no
exaggeration to say that Dr. Soles at this point has been an
inspiration for several generations of Delaware judges, lawyers
and public servants and I'm very honored to be among them.
Finally I do want to mention my father who unfortunately
and sadly is not here. I too lost my father. For me it was in
2003. My dad was an attorney, of course the very first attorney
that I knew. I know that he watches over me every day including
today and I know that today he is especially proud and humbled,
as am I. I'd be happy to answer any questions the Committee may
have.
[The biographical information of Leonard P. Stark follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Kaufman. And again, thank your family for allowing
you to embark on this adventure. I tell you, you are honored by
having Judge Sleet and Professor Soles here with you two folks
who are among the most respected in Delaware. So it's an honor
for you to have them here and it's an honor for us that they
are here.
What I'd like to do is just ask some questions. Senator
Sessions is on his way, he should be here in a few minutes, but
I'm just going to start and proceed. What I'd like to do is
just ask a series of questions to both of you. We'll start with
Mr. Lohier.
Could you briefly describe your judicial philosophy?
Mr. Lohier. Yes, Senator. If I am fortunate enough to be
confirmed as a Circuit Court Judge, my judicial philosophy
would be very straightforward. That is that I would apply the
law either Supreme Court precedent, binding Supreme Court
precedent or binding Second Circuit Court precedent or the
plain text of a statute.
I would apply that law to the facts in the record of the
case and I would do so objectively, impartially and with an
open mind.
Senator Kaufman. Thank you. Judge Stark.
Judge Stark. Yes, Senator. As a magistrate judge now and if
fortunate enough to be confirmed as a District Court judge, my
approach is to carefully apply the precedent of the Supreme
Court and the Court of Appeals to the facts of the case as they
appear before me.
Senator Kaufman. Mr. Lohier, you have spent 13 years as a
Federal prosecutor. Can you kind of lay out what it is you
learned in that that would be helpful to be on the bench?
Mr. Lohier. I've learned a tremendous amount, Senator.
First and foremost, as a prosecutor in the Southern District of
New York, I had the great privilege of writing briefs and
submitting briefs, as well as arguing orally before the Second
Circuit Court of Appeals which is always a formidable
experience.
In addition, I learned what it takes to create a record
below the District level, what goes into a record and what the
potential pitfalls and appealable issues below may be.
In addition to that, as a supervisor I was blessed. I was
blessed to supervise some of the most outstanding, in my view,
prosecutors in the country on very difficult cases, some of
which you mentioned.
In the course of my supervision of those fine, fine,
prosecutors, I had the opportunity to review decisions, to
grapple with incredibly complex legal scenarios and legal
issues, as well as a very wide array of facts, very complex
facts both on the financial fraud front as well as the
narcotics front.
As a result of that, I have had a wide range of experience
that I think will serve me well.
Senator Kaufman. Thank you. Judge Stark, you worked as a
judicial law clerk, private practice and a prosecutor. What did
you learn from that that you think will help you be on the
District Court?
Judge Stark. Thank you, Senator. I have had the opportunity
to work with a number of truly phenomenal attorneys, both as a
litigator in private practice and as an AUSA. I have had the
opportunity to try cases, civil and criminal, in both state and
Federal court and I think through all that experience I have
learned just both how difficult but how important it is to put
together a case, to put together a record to vigorously
represent your client's interest and to pursue justice.
I have found all of that to be helpful as a magistrate
judge and I'm sure I would continue to find that helpful as
well if I'm fortunate enough to be confirmed.
Senator Kaufman. Both of you have been prosecutors. Can you
just spend a few minutes and talk about what you've learned as
prosecutors and what you think of the effect of deterrents for
white collar crime?
Mr. Lohier.
Mr. Lohier. With respect to white collar crime, Senator,
and I know that you have worked incredibly hard in this area. I
believe that the fight against financial fraud and the fight
against financial crimes is a critical fight that our Nation
faces.
Certainly as a judge, I will abide by the Supreme Court
precedent and abide by and comply with any Second Circuit Court
precedent in the area of financial crimes, but it means a lot
to me and I have learned how critical that fight is to the
integrity of our markets.
Senator Kaufman. Judge Stark.
Judge Stark. And I would certainly echo what Mr. Lohier has
said. From my experience as a prosecutor, I believe prosecuting
white collar offenses is just as important as prosecuting other
types of offenses. There certainly is a deterrent effect from
prosecutions, and that's very important.
Senator Kaufman. And how much of it do you think is stiffer
sentences or surety of longer prison sentences? I mean, is
there any one thing that you think really is more helpful than
another as a deterrent?
Mr. Lohier. I think stiffer sentences do have a deterrent
effect, Senator. I also think that the regulation in place that
is in place to make sure that the defendants know what the line
is are critical, and those bright line rules that we have in
place are also critical to combat financial crime.
Senator Kaufman. Great. I want to thank you both for this
hearing. Judge Sessions is held up in his meeting, so what I
would like to do is thank you both for being here today,
congratulate you on your nominations. I think it is easy to see
that you are both truly qualified and we are grateful, as I
said before, grateful to you but even more grateful to your
spouses and friends and family that you answered the Federal
services call and are willing to serve in the positions that
you have.
I wish you the very best of luck. I have no doubt you're
going to have wonderful careers and I'm looking forward to
seeing you confirmed out of the Senate and onto your posts. So
with that, I'll adjourn.
I'd like to keep the record open in case anyone has
anything to add until noon tomorrow. We stand in recess.
[Whereupon, at 3:30 p.m., the Committee was adjourned.]
[Questions and answers and submissions follow.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF ROBERT N. CHATIGNY, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR
THE SECOND CIRCUIT; AND JOHN A. GIBNEY, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA
----------
WEDNESDAY, APRIL 28, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:35 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar
presiding.
Present: Senators Sessions, Grassley, Kyl, and Coburn.
OPENING STATEMENT OF HON. AMY KLOBUCHAR A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Senator Klobuchar. All right. I'm pleased to call this
nominations hearing of the Senate Judiciary Committee to order.
I want to give a warm welcome to both of our nominees. I
can tell you, the last nomination hearing that I chaired--I
think Senator Sessions was there--was in the middle of the snow
blizzard and our nominees were stranded in a hotel room with
their babies for 6 days, so they were really happy to come out
and be here.
So, it is great to be here with our judicial nominees,
Robert Chatigny, as well as the second one, who is Mr. Gibney.
So, thank you very much, both of you, for being here. We have
many Senators, seven Senators, here for this great event. So
we'll start here with Senator Dodd, who was here first. I know
that he is going to speak and introduce Robert Chatigny, as is
Senator Lieberman.
Senator Dodd.
PRESENTATION OF ROBERT N. CHATIGNY, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE SECOND CIRCUIT BY HON. CHRISTOPHER J. DODD, A
U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Dodd. Thank you very much, Madam Chairman, Senator
Sessions, Senator Grassley. Of course, I am delighted to be
talking about anything but financial reform at this point.
[Laughter.]
Senator Dodd. So I may stay here and filibuster the rest of
the afternoon on this matter so I don't have to go back to
these other issues. But I'm delighted to be here this afternoon
and to introduce, along with obviously Joe, my great pal and
friend here, an individual that I not only respect immensely,
but is my great, great friend for many, many years, and his
family as well.
He's here, Madam Chairman, with his wife Stacy in the back.
He'll want to introduce these people himself, probably. Stacy
and two sons, John and Peter, who are here, and sister-in-law
Sugar, his mother-in-law Elaine is back there as well, sister-
in-law Barb, brother Vic, are all the family kind of gathered
around as well. So we're delighted to recommend or to introduce
them as well, so I thank you for having this hearing.
Judge Chatigny's outstanding resume, Madam Chairman, I
think makes it clear that he's tremendously well-qualified to
serve on the Second Circuit of the Court of Appeals. I want to
congratulate President Obama for this excellent nomination.
In 1994, President Clinton nominated Judge Chatigny, Bob,
to serve on the District Court and Judge Chatigny was confirmed
unanimously by the U.S. Senate in 1994. For nearly 16 years he
has been a Federal judge in Connecticut, serving as chief judge
for the District of Connecticut from 2003 to 2009. In addition
to ruling on a wide variety of cases, Judge Chatigny has earned
a reputation of integrity, intelligence, and strict adherence
to the rule of law.
So I am pleased that Judge Chatigny has received the
support of numerous former Federal prosecutors in Connecticut
who understand the importance of upholding the rule of law and
vouch for his character and his qualifications.
Allow me to quote from a letter that I think was sent to
the Committee, Madam Chairman, from three former U.S.
Attorneys, each of whom happened to be appointed by Republican
Presidents at the time who served well and with great
distinction in our State. In their letter to you and to the
members of the Committee, they said this about Judge Bob
Chatigny: ``We believe that he is a fair-minded and impartial
judge who has the appropriate fitness and temperament for the
appellate court.''
In addition, Madam Chairman, the Committee has also
received a letter signed by nearly 20 Assistant U.S. Attorneys
currently practicing in Connecticut in which they express their
confidence as well that Judge Bob Chatigny would be ``unbiased,
compassionate, and temperate''. Clearly, Madam Chairman, Bob
has the confidence and the support of the Connecticut legal and
law enforcement communities in our State.
Judge Chatigny's legal experience prior to his appointment
reveals a very rich understanding of, and a very deep, deep
commitment to, the American legal system. After graduating from
Brown University and Georgetown University Law Center, he
served as clerk to three Federal judges, including Judges John
Newman and Jose Cabranas. Prior to his service on the court,
Bob built an excellent reputation in private practice, first as
an associate at Williams & Connolly here in Washington, then
returning to private practice in Hartford, Connecticut for a
decade.
In addition, Judge Chatigny has devoted substantial time
and effort to improving the legal profession. When the Governor
of Connecticut sought experienced and knowledgeable public
servants to help make up better public policy, Judge Chatigny
was the easy choice, serving on both the State Judicial
Selection Commission and the State Commission on Prison and
Jail Overcrowding.
In addition, he has served various roles with the
Connecticut Bar Association, as well as being an advisor to the
congressionally created Federal Court's Study Committee. There
can be very little doubt--no doubt whatsoever then--that this
man's talents, his temperament are tremendous well-suited for
service on the Second Circuit Court of Appeals.
On a personal note, Madam Chairman, I have had the
privilege of getting to know Bob for many, many years. His wife
Stacy and her parents I knew even before I knew Bob and we go
back a long time. They're very, very close, wonderful friends
of my parents as well. As a friend of Bob's and someone who
recognizes his tremendous accomplishments, I am grateful that
he has agreed to continue his service to our country by
allowing his name to be put forward for this very, very
important position. As a Senator, I am proud to recommend to
you one of the State's finest jurists, Bob Chatigny, as the
next member of the U.S. Court of Appeals for the Second
Circuit.
I would say on a side note, not part of these remarks, in
terms of a full disclosure, that 11 years ago this June, Bob
also married me and my wife Jackie. Jackie is not here to
testify, I believe, on his behalf after 11 years, but I believe
she would as well. So I know that's not part of the remarks and
no reason for his name to be forward for you to consider voting
for him, but I would be remiss if I didn't thank him publicly
as well for performing those duties on that day.
Senator Sessions. Well, that was a good act.
Senator Dodd. Yes, it was.
[Laughter.]
Senator Dodd. He was impartial, too. Showed good
temperament, Jeff.
Senator Klobuchar. And thank you, Senator Dodd, for
revealing that conflict of interest.
Senator Dodd. That is a conflict.
[Laughter.]
Senator Klobuchar. That was very, very smart.
Judge, I see you also have half of the independent caucus
of the U.S. Senate here in your other Connecticut Senator.
Senator Lieberman, welcome.
PRESENTATION OF ROBERT N. CHATIGNY, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE SECOND CIRCUIT BY HON. JOSEPH LIEBERMAN, A U.S.
SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thanks, Madam Chair, Senator Sessions,
members of the Committee. I thank you for giving me this
opportunity to join my dear colleague and friend, Senator Dodd,
in support of Judge Robert Chatigny's nomination to serve on
the U.S. Court of Appeals for the Second Circuit.
I am proud to be here to support the nomination. I'm
delighted to see his family. I want to mention, his late
father-in-law, Peter Savin, who was a great friend to Senator
Dodd and me, a wonderful citizen in Connecticut, very
charitable, just a lot of fun to be with, passed away some
years ago so he's not here in person. But I actually felt that
he called me when I was in a conference committee a while ago
and said, now, get up and get over to give your statement for
Bob. That's important.
Senator Dodd and I, together, recommended Judge Chatigny to
President Clinton in 1994 for a vacancy that then existed on
the District Court in Connecticut, and he was, I am happy to
say, nominated and confirmed by the Senate unanimously. In
fact, from 2003 to 2009, Judge Chatigny was the chief judge for
the District of Connecticut.
Throughout his tenure on the court he has demonstrated a
surpassing commitment to thoughtful, hardworking rulings
upholding the rule of law. He's shown real impressive legal
knowledge and capabilities. I hear from both those who have
appeared before him, but also from his colleagues, that he has
that magical, mysterious ingredient known as a fine judicial
temperament and has worked very effectively with his colleagues
on the bench to fashion opinions, to keep the court moving in
exactly the direction it should be moving.
I'm not going to repeat all the facts of his personal and
legal career which Senator Dodd did, except to say that I think
that in his years on the District bench he has clearly earned
the respect of his peers on the bench and in the Connecticut
bar. He's rendered admirable service for the past 15 years as a
district judge, which makes him eminently capable to sit on
this very important Circuit Court.
It is why I am so grateful that President Obama responded
favorably to our recommendation and that of many others that he
give Bob Chatigny the chance to serve on the Second Circuit
Court, and why I feel that he is so clearly ready to assume
this responsibility. So I thank you and the members of the
Committee for proceeding forward with the confirmation process
here and I look forward to working with you and the rest of our
Senate colleagues to see to it that Judge Chatigny is confirmed
to serve on the Second Circuit Court of Appeals.
Thank you very much.
Senator Klobuchar. Well, thank you very much, Senators Dodd
and Lieberman. Of course you are welcome to stay to hear your
colleagues, but if you have other things to do, we understand
that as well and we really thank you for coming to our
Committee today. Thank you.
All right. Senator Webb, thank you for being here.
PRESENTATION OF JOHN A. GIBNEY, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. JIM WEBB, A
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Webb. Thank you, Madam Chairman, Senator Sessions,
Senator Grassley. I am pleased to join my colleague from
Virginia, Senator Mark Warner, for the purpose of introducing
to this Committee an outstanding attorney from Virginia, John
Gibney, whom the President has nominated for a seat on the U.S.
District Court for the Eastern District of Virginia.
I have a longer statement. I would ask it be submitted for
the record and summarize, with your consent.
First of all, I have to say that when I found out that
Judge Chatigny was an alumnus of Georgetown Law Center the same
era that I was, it brought back a saying that they used to have
at Georgetown. That was that the A students became professors
and judges, the B students practiced law, the C students went
into business, and the D students became politicians.
[Laughter.]
Senator Webb. So here we both are, Judge.
I'd like to recognize Mr. Gibney's son, John Gibney, III,
who joined us today, along with Mr. Gibney's future daughter-
in-law, Jesse Telhorster, both of whom are with us and are
sitting right behind me today.
I believe President Obama has made an extraordinary choice
in nominating John Gibney. As I have met with candidates for
Federal judicial vacancies in Virginia, an exhaustive process
that Senator John Warner and I began and Senator Mark Warner
and I have continued, I continue to be impressed by the caliber
of the candidates that the Virginia bar has been putting
forward, and the pool from which Senator Warner and I had to
choose from for this position was extraordinary. It included
judges, legal scholars, and skilled trial attorneys.
From this very competitive field, Senator Warner and I
recommended Mr. Gibney because of the overwhelming endorsement
that he received from his peers across the State, and also
because of his professional dedication. We recommended him to
the President for nomination in June of last year.
Mr. Gibney is not only known as an excellent trial attorney
who has tried hundreds of cases, but also is a stand-out
example of professionalism in the practice of law. He has been
repeatedly asked to speak at the Virginia State Bar Young
Lawyers Conference Professionalism Program for New Lawyers.
He has devoted countless hours toward teaching ethics,
continuing legal education classes to his fellow members of the
bar. He has devoted his time to serving his community and
helping fellow members of the bar throughout his career. I am
proud to note that Mr. Gibney is a product of Virginia's
educational institutions. He is a 1973 graduate of the College
of William and Mary, and a 1976 graduate of the UVA Law School.
His legal career has included time spent as an Assistant
Attorney General of Virginia, as a law clerk to Hon. Harry L.
Carrico, former chief justice and current senior justice of the
Supreme Court of Virginia. So I am pleased to give my strongest
endorsement, and I would now invite my colleague, Senator Mark
Warner, to offer some comments.
Senator Klobuchar. Thank you very much, Senator Webb. Your
full statement will be put on the record.
[The prepared statement of Senator Webb appears as a
submission for the record.]
Senator Klobuchar. Senator Warner, welcome to our
Committee.
PRESENTATION OF JOHN A. GIBNEY, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. MARK WARNER,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Madam Chair. Thank you, Senator
Klobuchar, Senator Sessions, Senator Grassley, Senator Coburn,
for this opportunity.
Again, I won't reiterate all of the comments that my
colleague Senator Webb made. I would like to thank the
Committee for acting quickly on this nomination. We nominated
John Gibney last June. The President actually, I guess,
formally nominated him just earlier this month. The fact that
this hearing is already being held, we are grateful for the
speedy, expeditious manner in which you are addressing this
issue.
I also was going to point out the fact that John Gibney
went to both William and Mary and UVA. Judge Carrico, the long-
term chief of our State Supreme Court, now senior status, is
somebody who is extraordinarily well-regarded, and the fact
that John Gibney clerked for Judge Carrico went a long way in
my mind.
As Senator Webb indicated, John Gibney was highly regarded
or highly qualified by the State bar, and John has been active
in a whole series of legal activities around the Commonwealth
and around Richmond.
But I want to follow up as well, kind of off my comments,
on why I think we made this choice. We've been blessed with
extraordinary candidates in Virginia who Senator Webb and I had
to work through, and I thank my senior Senator again for the
process that he and John Warner established as we screen and
try to make sure that we get all the input needed to make these
kind of recommendations to the President.
But in John Gibney we found somebody who, I think--I'm not
sure how much of his life story he will relay to the Committee,
but it's an interesting life story. It's one that's had some
success, it's had some failure, it's had some challenges.
In his law practice, I think he has represented a variety
of clients and a variety of intersections in the legal system
that will bring a perspective, should you decide to move
forward and if the Senate, as I hope, will confirm him, that
sometimes could be absent from the bench.
I think sometimes it's great, as I think Senator Webb said,
that we get the Law Review candidates, and as at least a lawyer
by training, never by practice, I think it's important that we
get the legal scholars represented on the bench. I also think
it is important that we get people who have really practiced
law day in and day out, seeing the challenges that everyday
Americans have to confront as they face the sometimes complex
and challenging judicial system we have in this country. In
John Gibney, we've got somebody who I think is a lawyer's
lawyer, somebody who understands those challenges, and someone
I will echo with my colleague Senator Webb, I give my full-
fledged endorsement to. I appreciate the Committee's actions on
his nomination today and I look forward to voting for his
confirmation on the floor of the Senate.
So, thank you, Madam Chairman.
Senator Klobuchar. Thank you very much. Thank you, both of
you, for being here. Have a good day. We're going to have a lot
of fun here, I can tell you that much.
Senator Sessions is going to give his opening statement.
Before I do that, I wanted to put the opening statement of
Chairman Leahy on the record in support of both of our
nominees, Judge Chatigny as well as Mr. Gibney.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Klobuchar. Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sesions. Thank you, Madam Chairman. I look forward
to the hearing today. The nominees have all been looked at
through our staff and through the President and his staff, and
undergone background evaluations by the FBI, and the American
Bar Association, and anyone else who wants to comment on their
nomination. So even though the hearings are important, also
much of this is in the record and we have the ability to review
it.
Looking at the nomination of Judge Chatigny, I think we'll
ask a number of questions today about that. He presided over
several last-minute motions to stay the execution of perhaps
Connecticut's most notorious serial killer, Michael Ross, who
had been convicted and sentenced to death nearly 20 years
earlier for kidnapping, rape, and murder of six women, and he
confessed to the murder of eight.
After multiple appeals, State court proceedings, and in
Federal court, the defendant explicitly instructed his attorney
not to appeal anymore. From there, we had a number of actions
by the judge to really frustrate what appeared to be the lawful
decision of the State of Connecticut, and I have concerns about
it. We've talked earlier, and I appreciate that.
Judge, I enjoyed our opportunity to meet. I'm not in any
way questioning your integrity and intentions. I appreciate the
strong support that Senator Dodd has given to your nomination.
I also got a call from former Attorney General Mukasey, who
believes in you and supports your confirmation.
But seven Assistant State's Attorneys General have filed an
ethics complaint concerning the conduct in that case, and we
have a letter from the attorney, the prosecutor who handled the
habeas case in your court who opposes your nomination. So it is
a matter that I take very seriously and I believe judges have
roles. Federal judges, in review of State court convictions
that have been confirmed by the State Supreme Court, have
limited responsibilities to interfere in the execution of that
and we'll discuss those issues as we go forward. Thank you.
Senator Klobuchar. All right. I'm going to ask the first
questions, then we'll go down the row here. I think I'll start
with a general question about how you would characterize your
own judicial philosophy and what makes you want to be a judge.
Judge Chatigny. I appreciate the Committee's interest in
learning how I approach cases and I do my best to decide each
case on its merits, taking each case one at a time, examining
the facts with care, applying the relevant precedent, and
avoiding injecting my own personal policy preferences into the
matter.
I've tried to do that throughout my 15 years as a district
judge, and if I am fortunate enough to be confirmed, I would do
that as a judge of the Court of Appeals.
Senator Klobuchar. Senator Dodd and Senator Lieberman
mentioned your family, but there may be relatives they didn't
mention. So if you want to introduce them to us, we'd love to
meet them.
Judge Chatigny. Actually, Senator Dodd, as usual, was very
good to introduce everybody, I believe. My wife Stacy is with
us, my sons Peter and John are seated here in the front row,
and my good friend Peter Kahn from the law firm of Williams &
Connolly. Behind them, my brother Vic and his wife Barb, and my
mother-in-law, Elaine Savin, and my sister-in-law Sugar. We
appreciate very much this opportunity to appear before the
Committee today.
Senator Klobuchar. Well, thank you.
You talked about your judicial philosophy. I appreciated
that answer. Has your being a judge for the last 16 years
changed at all your view of what a judge does?
Judge Chatigny. It has impressed me with the importance of
treating each case with care, extending to all people who come
before the court an opportunity to be fully heard and it has
left me with a strong conviction about the importance of the
facts of each case and the need to examine the facts of each
case with particular care.
Senator Klobuchar. Thank you. I'd like to explore that
more, but I was listening to Senator Sessions' opening
statement and I know he wants to focus on one of your cases. I
thought I would give you an opportunity, just right here, to
talk about that. I know this is the Michael Ross case involving
horrific murder. I guess my first question as a threshold
matter would be: do you have any problems applying the death
penalty or upholding capital sentences?
Judge Chatigny. None at all.
Senator Klobuchar. And the death penalty is, of course, the
ultimate punishment. We have to be very careful when it's
applied. For example, individuals have to be competent to stand
trial. According to a 2002 Supreme Court ruling--that would be
Atkins v. Virginia--executing mentally incompetent individuals
is a violation of the Eighth Amendment ban on cruel and unusual
punishment. And so I know from cases that I read throughout my
life and work as a prosecutor, whether it's a death penalty or
a non-death penalty case, that judges are very conscious that
these procedures be followed with any case. Is that correct?
Judge Chatigny. Yes.
Senator Klobuchar. And in this case, Michael Ross, the
defendant, indicated that he wanted to waive further appeals
and be put to death. So when you hear that and you know about
the murder, if you're a guy on the street you think, OK, it's
over. Could you explain to me what made you question whether he
was legally competent to waive his appeal and just make that
decision on his own?
Judge Chatigny. Yes. Thank you for the question. I
understand and appreciate why people are concerned about what
happened in this difficult case. The litigation came before me
on a Friday afternoon and I was asked to conduct an emergency
hearing on the question whether this defendant was competent to
waive legal challenges to the death sentence.
I had no reason to question the good faith of the people
who came before me. They did not appear to be death penalty
abolitionists, interested in using the court to pursue their
own agenda. I thought that they were urgently concerned about
the question of his competence.
I looked at the case over the weekend and presided at an
emergency hearing on Monday. Based on my review of the facts
and the law, I concluded that a stay should enter so that a
hearing could be conducted on the issue of his competence to
waive challenges to his death sentence. It was a very difficult
week for all concerned. The Court of Appeals upheld the stay,
but a closely divided Supreme Court vacated the stay.
Senator Klobuchar. And there was a 6-day evidentiary
hearing, is that right?
Judge Chatigny. As a result of the events that occurred
during that week, the defendant's own counsel moved in the
State court for a stay so that a full hearing could be held on
the issue. A hearing was conducted. A determination was made
that the defendant was competent, and he was executed.
Senator Klobuchar. And do you have any issues with the
Superior Court's determination?
Judge Chatigny. No.
Senator Klobuchar. So I just want to be clear before we
embark on this journey to talk to you more about this case,
that the whole episode here wasn't about the death penalty. You
were ready to actually give that out as a sentence. The issue
to you was whether or not the defendant was competent to make
certain decisions.
Judge Chatigny. That's correct.
Senator Klobuchar. And after this Ross episode was over,
there were complaints filed against you alleging judicial
misconduct for how you handled the case. A special Committee
comprised of then-Second Circuit Chief Judge John Walker,
Second Circuit Judge Pierre LaValle, and then-Chief District
Judge Michael Mukasey of the Southern District of New York
exhaustively investigated the facts and the allegations against
you, and this panel absolved you of any wrongdoing and cleared
you of all the allegations against you. Is that correct?
Judge Chatigny. Yes.
Senator Klobuchar. And then the findings of this special
panel were adopted by the Judicial Council for the Second
Circuit. Is that right?
Judge Chatigny. Yes.
Senator Klobuchar. All right. Very well. I have gone
slightly over my time, so Senator Sessions, if you want an
extra minute and a half, please, it's yours.
Senator Sessions. Thank you.
Senator Klobuchar. Thank you.
Senator Sessions. But I see my colleague is here. Senator
Grassley is here, Senators Coburn and Kyl. I'd be pleased to
yield to Senator Coburn at this time.
Senator Coburn. Welcome, Judge Chatigny. I want to go
directly to the Ross case, but before I ask you questions I
want to make sure that everybody understands that are not
familiar with the case of the Roadside Strangler, Michael Ross.
I'd like to describe a few of the details before I ask you
questions.
While in prison, Michael Ross participated in the creation
of a documentary on serial killers entitled, ``The Serial
Killers,'' during which he described in great detail how he
raped and murdered eight women and girls. In the video, he
explained, ``Serial killers like me like to strangle their
victims, and that is I guess the most common form of killing
because there's more of a connection, it's more real, it's not
as quick.'' Ross murdered all of his victims by strangling
them.
He later describes how he tied up Leslie Shelly, age 14,
and put her in the trunk of his car and then took the other
girl, April Brunias, age 14, and ``raped her and killed her,
and I put her in the front seat.'' Then he pulled Leslie
Shelley out of the trunk and brutally raped and killed her. In
describing his last victim, Wendy Baribeault, he said, ``I
raped her and I killed her. It wasn't as pleasant. It wasn't a
nice rape.''
Judge Chatigny, this is the man you described in your
testimony and in your discussions on this case as ``the least
culpable of people on death row'' and said, ``he should never
have been convicted, or if convicted, he never should have been
sentenced to death,'' and that ``when Mr. Ross says that I feel
I'm the victim of a miscarriage of justice because they didn't
treat it as a mitigating factor, I can well understand where
he's coming from.''
Judge, this serial murderer is the man you did everything
possible to prevent the execution of. I think the record shows
that. You believed in your position. I just wonder why you
think your behavior in this case, which is pretty
extraordinary--I've only sat on this Committee for 5 years--why
that behavior would warrant a promotion to a much more senior
court.
Judge Chatigny. Senator, thank you for your question. I
appreciate your concern. And of course, I found these horrible
crimes to be unimaginably and unspeakably abhorrent. I believed
that under the law, I was obliged to give careful consideration
to the claim that he was not competent to waive legal
challenges to this death sentence.
Senator Coburn. Was he not found out to be competent and
ruled competent?
Judge Chatigny. Ultimately, yes. After a full adversarial
hearing he was determined to be competent, and on that basis he
was executed. I believe that the law required such a hearing to
be held and that was my sole concern. I regret very much using
words that make it appear that I was concerned about the issue
of his guilt. In fact, I had no such concern.
Senator Coburn. But you did, in fact, agree that there were
mitigating circumstances. I think you pronounced him with a
diagnosis of sexual sadism. Is that correct?
Judge Chatigny. Senator, I wish I could----
Senator Coburn. I have the record here. Those are your
words.
Judge Chatigny. Yes. And read out of context, I can
appreciate that the reader could think that I had an opinion. I
addressed those issues in connection with the issue of
competence. The defendant had a long history of mental illness,
several disorders, including the one you mentioned. These were
relevant to the question of his competence to waive legal
rights.
Senator Coburn. What was the name of the psychiatrist who
diagnosed him with sexual sadism?
Judge Chatigny. He was evaluated by a psychiatrist named
Michael Norko, and Dr. Norko testified in the State proceeding
that preceded my involvement that the defendant was competent.
Part of the difficulty in this unusual case was that there was
no adversary proceeding at that stage and his opinion was not
tested in any way. After the events that occurred before me, he
contacted the defendant's lawyer and said, now that I have
looked at material I had not seen before, I realize my opinion
could change. And it was on that----
Senator Coburn. Could change or did change?
Judge Chatigny. Could change.
Senator Coburn. OK.
Judge Chatigny. And on that basis, the defendant's lawyer
sought a stay so that the issue could be adequately
investigated and reliability determined.
Again, I apologize for using words that call into question
my character as a judge in that case. In life, we----
Senator Coburn. I'm not challenging your character. Your
record shows that you have great character. That's not what I'm
challenging. I'm worried about a standard that's outside the
law, an empathy standard where you become too identified with a
case to make a sound judgment. As a matter of fact, multiple
courts before yours had found him competent. You were not the
only one.
The other question that I have is that you were actually
involved in this case prior to it coming to you as an attorney,
is that correct?
Judge Chatigny. Technically, perhaps. But----
Senator Coburn. Was that made evident to the people who
were on both sides of the trial in this case? Was it disclosed?
Judge Chatigny. It was not, for the simple reason that I
had forgotten my prior involvement.
Senator Coburn. In a serial murder case of eight people?
Judge Chatigny. I was not involved in the case. Thirteen
years before the matter came to me I was contacted by a friend
who asked me if I would file, on behalf of the Connecticut
Criminal Defense Lawyers Association, a motion in the State
Supreme Court for leave to file an amicus brief on an
evidentiary issue. I agreed to do so. I reviewed the motion
that he prepared and I saw to it that it was filed, and that
was the end of my involvement in the matter.
Senator Coburn. I think my records are correct, that's the
only death penalty case you were involved in in 25 and you
forgot it?
Judge Chatigny. Senator, the simple truth is that---
Senator Coburn. The rape and murder of eight young women?
Judge Chatigny. Well, I never represented Michael Ross and
my involvement didn't extend beyond essentially acting as local
counsel for my friend for the purpose of filing an application
to file a motion, and that----
Senator Coburn. But you actually did research on that case
on mitigating factors. Is that correct?
Judge Chatigny. I did some very limited research before
concluding that there was no need for me to be involved
anymore, and I told my friend that this was the case and I had
no further involvement.
Senator Coburn. I'm sorry. My time is up. I'll have to wait
till the second round.
Senator Klobuchar. Thank you very much.
Just to clarify the record, Judge Chatigny, the issue last
raised by Senator Coburn about your recollection of filing a
motion, you didn't actually represent the defendant, is that
correct?
Judge Chatigny. That's correct.
Senator Klobuchar. And in the Mukasey report when they
reviewed the conduct from this case, they in fact found that
this was innocent and not misconduct. Is that correct?
Judge Chatigny. They found that it was an innocent lapse of
memory, which it was.
Senator Klobuchar. OK.
Judge Chatigny. When I realized that I had a prior
involvement I was stunned, as was my former partner when he
learned about it. It had been 13 years. It may seem to
reasonable people that my involvement was in some way
significant, but it wasn't.
Senator Coburn. Madam Chairman, I'd just like to add, prior
to you joining our Committee there was a judge, a Circuit judge
by the name of Jim Payne who disclosed he owned 100 shares of
Wal-Mart to the litigants in a trial and we castigated him as a
Committee.
I didn't, but the Chairman did, saying how unethical it
was, even though he disclosed it. So we're talking about two
different standards now, one that says it's fine not to
disclose and one that says somebody is not on the appellate
bench today because they did disclose. I'd add that to the
record.
Senator Klobuchar. OK. Well, I wasn't there for that case.
I just know what the finding of Judge Mukasey was in this case,
and that was that there was no misconduct.
Senator Coburn. But our job is not on the findings of Judge
Mukasey. It is our job to see if somebody is suitable for a
Circuit judge position, not the finding of an appeal in terms
of lawyers.
Senator Klobuchar. That's correct.
Senator Sessions.
Senator Sessions. Senator Kyl, I'll yield.
Senator Kyl. Thank you very much, Judge. Welcome. Maybe
that's not the right terminology here, but obviously this Ross
case is something that's been well-publicized. It's something
that I'm sure you appreciate we have an obligation to look
into.
Judge Chatigny. Yes.
Senator Kyl. Part of the concern that I have about the case
relates to the issue of judicial temperament. You consider
judicial temperament to be a key factor in our evaluation of a
nominee for the court, I presume. I guess the thrust of the
questions that I have go to a conference you held with some of
the lawyers and some of the terminology that you used during
that conference. This was on January 28, according to the notes
that I have here, with the defendant's lawyer, whose name is
Paulding.
Here are some of the things that my notes reflect that you
said during that. First of all, do you remember that
teleconference?
Judge Chatigny. Yes.
Senator Kyl. At least now you do.
Judge Chatigny. I do.
Senator Kyl. You told him that he was ``facilitating the
execution of his client'', that ``we are not in this profession
to help people get killed'', and third, ``and I tell you that,
Mr. Paulding, because it is true. What you're doing is
terribly, terribly wrong, and so I don't know how anybody in
your position honestly, Mr. Paulding--I do not know how anybody
in your position could be accepting of this responsibility to
proceed in the face of this record to be the proximate cause of
this man's death.''
Do you remember those statements?
Judge Chatigny. I do.
Senator Kyl. You then went on to warn him of the
consequences of his not reversing course. You said, ``So I warn
you, Mr. Paulding, between now and whatever happens Sunday
night, you'd better be prepared to live with yourself for the
rest of your life and you'd better be prepared to deal with me
if an investigation is conducted and it turns out that what
Lopez says and what this former program director says is true,
because I'll have your law license.'' Do you remember saying
that?
Judge Chatigny. Yes.
Senator Kyl. And then when Mr. Paulding told you that he
had spoken to his client as you had previously instructed him
to do, you responded, ``Then you better make a clear record of
it. You better have a court reporter there taking down the
advice you're giving him, because believe me, if--you're going
to need it. You're going to need it.''
Do you remember saying that?
Judge Chatigny. I do.
Senator Kyl. Do you think that the way that you expressed
yourself in that hearing was appropriate and do you believe
that it might raise a legitimate question in our mind as to
your judicial temperament?
Judge Chatigny. Senator, thank you for asking me this
question because I can well understand why you would be
concerned. I regard judicial temperament as vitally important,
indispensable. And one of the difficulties that I have with the
Ross case is the way I spoke to Mr. Paulding. I used words that
were excessive, words that were harsh. I regretted them
immediately and I undertook to apologize to him at the earliest
opportunity and he was very gracious to say to me that no
apology was necessary. But, yes, I do acknowledge that my
choice of words was terrible. It's a situation in which I
believed then, and I believe now, that I did the right thing,
but I went about it the wrong way.
Senator Kyl. Do you recall now what caused that to occur?
Did you lose your temper? Were you simply really uptight about
this particular case? Were you mad at Ross? What was your state
of mind that caused you to do something that you've
acknowledged was inappropriate?
Judge Chatigny. This telephone conference took place at the
end of a grueling week, with hours remaining before the
execution. I believed that I had a duty to point out to this
lawyer----
Senator Kyl. Was it pressure? I'm trying to--because of the
time here, trying to----
Judge Chatigny. I'm sorry.
Senator Kyl. Was it--your explanation would be that you
were under a lot of pressure, or what? I'm not trying to put
words in your mouth, I'm just looking for an explanation
because that is unacceptable behavior for a judge.
Judge Chatigny. I agree that the words I used were wrong
and the pressure was intense. I would like to think that, even
under intense pressure, I would now display calm detachment,
which I surely did not display at the time. But it was a
learning experience for me, to be sure.
Senator Kyl. Judge, because of our timing rules our
questioning is really chopped up here, so my first round of 5
minutes has now expired. I'll just carry on then where I left
off next time I have a chance to query you.
Thank you.
Senator Klobuchar. Thank you. And just since the topic of
your temperament came up, I just want to put in the record that
the Committee has received a joint letter from three former
Republican-appointed U.S. Attorneys for the District of
Connecticut: Kevin O'Connor, U.S. Attorney from 2002 to 2008;
Alan Nevis, U.S. Attorney from 1981 to 1985; and a U.S.
district judge for that same district from 1985 to 1989; and
Stanley Twardy, Jr., U.S. Attorney from 1985 to 1991, who wrote
that they ``support without any reservation the nomination of
Judge Robert Chatigny to the U.S. Court of Appeals for the
Second Circuit''.
In a letter dated April 16th, 2010, they wrote that they,
``Have found him to be even-tempered, thorough, and without
agenda'', as well as ``a fair-minded and impartial judge''
whose record in sentencing Federal criminal defendants shows
that he is appropriately sensitive to the facts of the person
before him and the rights of the victims of the crimes that
have been committed. So I will include this letter in the
record.
[The letter appears as a submission for the record.]
Senator Klobuchar. I would also note just one more
clarification of the record, that in the Mukasey findings, that
this was not found to be a reason for misconduct. I think they
call it unusual, but they understood the circumstances. Is that
correct?
Judge Chatigny. Yes.
Senator Sessions. Madam Chairman, are you----
Senator Klobuchar. I'm just clarifying the record since----
Senator Sessions. Well, are you going to respond to each
witness' testimony? Is that the way we're going to do it?
Senator Klobuchar. Senator Sessions, it's your time to
question and I'll go after that. Your turn.
Senator Sessions. Well, I would offer for the record the
letter from Mr. Michael E. O'Hare, the supervising Assistant
State's Attorney who represented the State in this case, who
questions the wisdom of this appointment and the fitness of the
nominee to serve who was there, participated, and saw what
happened. I don't think this is a matter that is going to
lightly go away, Judge. I wish it was, but it's just not going
to be dismissed.
I have been a prosecutor and I have seen judges go beyond
their proper role in hearings, and I believe you did in this
case. I believe Mr. Paulding, the attorney for the defendant,
conducted himself in a way he should have and that you did not.
And so that's a problem for me. You have a good record. People
like you. In other cases--there are some concerns in other
cases. But I just have to tell you, I've seen the transcript
and I didn't--not so much--I think it evidenced a lack of a
proper understanding of your role in the matter.
So with regard to the competency hearing you testified to
that occurred before the death penalty was carried out, this
matter had been tried in the State courts of Connecticut, had
been appealed to the Connecticut Supreme Court, and a
competency hearing had been held and the death penalty had been
affirmed by the highest court in the State of Connecticut, had
it not?
Judge Chatigny. Yes.
Senator Sessions. And so what occurred, as I understand it,
is that a letter came in from a prisoner at the last minute
saying that the defendant may have been brainwashed and that
somehow this caused a second competency hearing to occur. Is
that correct?
Judge Chatigny. It was one of a number of things that
happened to contribute to that result.
Senator Sessions. Now, with regard to that letter, when did
that letter come in? Did that come in before the Friday
teleconference?
Judge Chatigny. Yes. I believe it arrived 2 days before--
two or 3 days before. I don't recall----
Senator Sessions. And Mr. Paulding had been in constant
contact with his client, and as it turned out that letter was
insubstantial and not proven to be dispositive of the issue of
his competency.
And apparently, is it not true, that the client, Mr. Ross,
the murderer, had decided he didn't want to appeal anymore? He
felt that the judgment of execution was due to be carried out
and he was prepared to accept it.
Judge Chatigny. Yes. And the issue before me was whether he
was competent to waive legal remedies.
Senator Sessions. And the attorney who has been working
with him and been defending him that he chose--is that correct,
or was he appointed?
Judge Chatigny. Senator, let me take this opportunity to
clarify. His long-time defense counsel who had defended him
over the course of the many years were the ones who came to the
Federal court, claiming that he was not competent to waive
legal remedies. The lawyer who was representing him at the
time, Mr. Paulding, had been hired to advocate that he was
competent.
Senator Sessions. By the defendant or his----
Judge Chatigny. By the defendant.
Senator Sessions. So the defendant wanted a lawyer to make
clear that he didn't think he was incompetent and that he was
prepared to accept his fate.
Judge Chatigny. Yes.
Senator Sessions. Which is consistent with what the
competency hearing in the State had found, and consistent with
what the appellate courts and the Supreme Court of Connecticut
had found.
Now, tell me again. I have to ask this. Senator Coburn
asked you about the letter that you wrote from your friend. Did
you know--did you sign the letter?
Judge Chatigny. I signed an application for leave to file a
brief, yes.
Senator Sessions. And was a brief--was it the brief that
was filed?
Judge Chatigny. No brief was ever filed. My involvement was
limited to filing that application for permission to file a
brief, looking briefly at an issue and then informing my friend
that I didn't think it was necessary or appropriate for me to
be briefing that issue, that others could do it, and so my
involvement ended.
Senator Sessions. So he did give you some indication of
what the issue was apparently.
Judge Chatigny. Not really.
Senator Sessions. Well, you say you told him it wasn't
appropriate for you to respond, or something to that effect.
Surely you had some basis to make an evaluation of the merits
of the case.
Judge Chatigny. Please understand that this was one issue
of many and I was not involved in considering all the other
issues. My consideration of this one particular issue was very
limited. As I said before, I was not involved in the Ross
litigation, except for that very brief involvement, which I
unfortunately forgot. Had I remembered, I would have recused
myself to avoid even a possible appearance of bias. But
regrettable as it is, I forgot.
Senator Sessions. Well, my time has run at this point. You
know, we want to be fair to you and we're going to do that. You
need to have an opportunity to explain, and I've learned a few
things in talking with you already I didn't fully understand.
But we do have some more. Madam Chairman, I think we'll need to
have some more time.
Senator Klobuchar. Of course. Whatever time you need.
I just had some follow-up questions, Judge Chatigny.
Now, so what happened here is, you have this case, he's
going to be executed, and then you get some information that
the guy that had found him, the medical expert who had found
him competent to stand trial, was now doubting his opinion. Is
that right? Or wasn't sure if that was correct, or he might
make a different opinion?
Judge Chatigny. The sequence needs to be clarified The
psychiatrist who evaluated this defendant in the State court
competency proceeding contacted the defendant's lawyer soon
after the telephone conference that we've discussed and told
the lawyer that he had come into possession of material,
actually writings, by this defendant that caused him to think
that his opinion about the defendant's competence could change.
That, together with other information that emerged, caused Mr.
Ross's lawyer to move to stay the execution so that the issue
of the defendant's competence could be reevaluated.
Senator Klobuchar. And so you then had to make a decision.
So the lawyer gets this information that the expert who had
said his client was competent now isn't sure if he's competent,
so he gives him that. So the lawyer--I just, as a lawyer
myself, you would have an obligation to bring that before a
judge.
So, now you look at this competency issue. I just remember,
as a prosecutor, we would have these cases come up. I will be
honest, as a prosecutor, we'd always want them to be found
competent to stand trial even if they were like talking to
tomatoes or whatever cases that we had. We did have one like
that.
And sometimes we would concede it because it was so
obvious, and sometimes it was a murky area, but a lot of times
as a prosecutor we would fight to have someone declared
competent. I'm sure you've seen that. But your obligation as a
judge--let's say that you had just dismissed this and didn't
even look at it and said, you know what? He's competent and I
don't even want to give a chance to have a hearing on this.
Then what if he was executed then and then someone had found
that the lawyer--that this lawyer hadn't brought it up or
hadn't done anything about. What would have happened to that
lawyer?
Judge Chatigny. Well, that was my concern. I undertook to
warn Mr. Paulding of the potential consequences if he failed to
act and his client was executed in violation of his
constitutional rights. I was trying to do the right thing to
protect the integrity of the system. If we were going to have
an execution we should do it right. This was the first one in
45 years, and I thought it was important that it be done
carefully.
Senator Klobuchar. So it wasn't your belief that somehow he
shouldn't be executed or----
Judge Chatigny. No.
Senator Klobuchar. Even that he didn't do the deeds. It was
that--and the horrific crime. It was that the procedure at
hand, you felt especially if it was this landmark execution,
horrific case, public focus, and you wanted it to be handled in
the right way, is that what you're talking about?
Judge Chatigny. Yes. And as it happened, Mr. Paulding
prepared a motion for a stay of the execution for filing in
Federal court, and recognizing that these unusual events of the
past week had created an unfortunate situation, I urged him to
file the motion in State court, out of respect for the State
court, to give the State court an opportunity to act on that,
and he did. The State court granted the motion, held the
competency hearing, made the finding that the defendant was
competent, and in the end that's how it turned out.
Senator Klobuchar. And then one other clarification. During
this three-judge panel, looking back at this case with all of
its facts and evidence, Michael Ross's lawyer, who is J.R.
Paulding, testified that he did not feel pressured, but sought
a postponement of the execution based on his own view of the
evidence and his duties as a lawyer. Is that correct?
Judge Chatigny. Yes.
Senator Klobuchar. OK.
Judge Chatigny. And I feel particularly badly about what
occurred because I think that Mr. Paulding did his
conscientious best in the circumstances.
Senator Klobuchar. And then after that happened, when the
three-judge panel issued its decision, it actually said that,
``while the judge used strong language, there was no
misconduct. Under the proper circumstances, a judge may deliver
a warning that threatens a misbehaving attorney with
disciplinary action or contempt citation by the judge, or
referral to another disciplinary authority without necessarily
interfering with any legitimate right of the attorney or the
attorney's client.''
Again, these were three judges: Second Circuit Chief Judge
Walker, who was nominated by President George H.W. Bush; Judge
Pierre LaValle; and then Southern District of New York Chief
Judge Michael Mukasey, who as we know later went on to serve as
the U.S. Attorney General under George W. Bush.
And I understand that Mr. Mukasey is publicly supporting
your nomination. As we know from Senator Sessions' statement,
that he had called him. Is that correct?
Judge Chatigny. Yes.
Senator Klobuchar. All right.
So again, I want to thank you. I would love to talk to you.
I think you've had like 450 opinions. Is that correct?
Judge Chatigny. Yes.
Senator Klobuchar. And only 16 of them have been reversed.
Who's counting? I don't know.
[Laughter.]
Senator Klobuchar. Something like that. Or been maybe taken
up to be reconsidered broader, than reversed.
But I want to thank you for your patience. I know my
colleagues have some other questions. Thank you very much.
Judge Chatigny. Thank you.
Senator Kyl. Madam Chairman, Senator Coburn has graciously
agreed to let me go ahead.
Senator Klobuchar. Senator Kyl.
Senator Kyl. Let me go ahead. As is the case sometimes,
things interfere with this hearing, and I apologize, but I only
have a minute before I have to go to another commitment.
I've got two questions, each with a subpart. Let me go back
to this conference that we talked about before. You, in this
conference, cited your own personal experience in an unrelated
matter, touring the prison where Mr. Ross was held. I gather
this was not a part of the record in the case before you. Was
that an appropriate thing under those circumstances?
And I guess, second, you also referenced abundant
literature that you had read on the issue, noting that most
European countries would refuse to extradite prisoners if a
prisoner was going to end up ``in that setting.'' I think you
were referring to that particular prison.
I guess the second part of this question is: how does that
inform, or do you believe that this is an appropriate reference
for you to inform interpretation of U.S. case law?
Judge Chatigny. Senator, dealing with the first part of the
question, I had toured the facility in connection with another
case and I wanted to put that on the record so that Mr.
Paulding and others would know what was in my mind. In the
ordinary case, a judge would not take into consideration things
outside the record, but this was an emergency proceeding and I
felt I had an obligation to disclose that, partly because I
wanted to do my best to focus Mr. Paulding's attention on what
was going on. And I----
Senator Kyl. I'm sorry. Because of the time--I appreciate
that.
Judge Chatigny. I'm sorry.
Senator Kyl. Can you get to the second part of the question
regarding the foreign law?
Judge Chatigny. Yes.
Senator Kyl. This is a matter of great concern to those of
us who don't think it appropriate to resolve U.S. cases on the
basis of foreign law.
Judge Chatigny. I understand. And I have never used foreign
law to decide an issue before me and I can't envision a
circumstance in which I would. My point here was to impress
upon Mr. Paulding that the conditions of the defendant's
confinement could exacerbate his mental illness, as alleged. As
it turned out, after the full evidentiary hearing in State
court, that proved not to be so. But at the time I spoke, I had
an allegation that it was so and I went forward for that reason
only.
Senator Kyl. Well, what did European extradition experience
have to do with that?
Judge Chatigny. Only insofar as they relied upon empirical
evidence regarding the effect of long-term solitary confinement
on inmates, and for no other reason.
Senator Kyl. Let me switch to a second subject. After the
teleconference and after the Supreme Court affirmed the Second
Circuit's reversal of the temporary restraining order and there
were no additional impediments to his execution, which was then
set to occur at 2 a.m. on the following morning, about 3 hours
before the scheduled execution you directed the clerk of your
court to call the Execution Command Center and request the
number of Judge Patrick Clifford, who was the State trial court
judge in the case. Is that correct?
Judge Chatigny. Yes.
Senator Kyl. Now, given the fact that there was no longer
any matter pending before you, and I gather there was no motion
on the part of any party, why did you do that?
Judge Chatigny. I wanted the judge to know that I was
available in case he wanted to speak with me. I thought there
was a chance he might hear from Mr. Paulding and he might want
to seek clarification from me.
Senator Kyl. Did you speak with him, with the judge?
Judge Chatigny. No.
Senator Kyl. Did you also try to contact the chief justice
of the Supreme Court, Justice Sullivan?
Judge Chatigny. No.
Senator Kyl. Do you believe now that it was appropriate for
you to call to volunteer that if they had any questions, that
you'd be happy to try to answer them?
Judge Chatigny. I do.
Senator Kyl. The thing that is in my mind in this line of
inquiry is that it appears to me that you believe that anybody
who could commit such a heinous crime must be mentally unfit,
and it appears to me that you take an undue interest--even
though I appreciate the fact that you said if there's going to
be an execution you want to make sure it's done right--and were
very exercised about the way you discussed this with counsel.
Would you care to comment on my--on this perception that I
have?
Judge Chatigny. Yes. Thank you for giving me the
opportunity. I can well understand why you would have that
perception. It's unfortunate that the Ross case gets in the way
of the record of my work day-to-day in all kinds of cases over
the course of 15 years. It is not a reliable indication of my
character as a judge or my work as a judge. Again, I believe I
did the right thing, but I went about it the wrong way. For
that, I'm sorry.
Senator Kyl. I appreciate that. There were some other
questions that I wanted to ask concerning some other decisions
that you were involved in and I think we'll have the
opportunity to put those questions on the record for you. I
would appreciate that.
[The questions appear under Questions and Answers.]
Senator Kyl. And for those family or friends who are here,
I wasn't here at the beginning so I don't know exactly who
everybody in the audience is. I hope that everyone appreciates
that the Senate has an obligation, a very serious obligation to
the U.S. Constitution, to provide advice and consent to the
President on his nominations. Just as your responsibilities
require rigorous investigation, Judge, I am sure that those who
are representing you here today can appreciate that our
responsibility requires the same.
I appreciate your responsiveness and I apologize for having
to leave now.
Judge Chatigny. Thank you.
Senator Klobuchar. Thank you very much, Senator Kyl. Thank
you for being here.
Senator Coburn.
Senator Coburn. Let me go back. I think I heard you, and
you need to clarify this for me. What was the reason you did
not file an amicus brief on the Ross case?
Judge Chatigny. The issue that was suggested for briefing
seemed to me to not warrant a brief on behalf of the Criminal
Defense Lawyers Association.
Senator Coburn. Is it not true that you were written by Mr.
Ross after you'd filed a motion to file an amicus brief, and
that you wrote him back saying your involvement was when the
case was over?
Judge Chatigny. Yes.
Senator Coburn. OK. Thank you.
And you didn't have any recollection of that prior to this
case?
Judge Chatigny. I did not.
Senator Coburn. All right. Thank you.
I want to go back to the interaction with Counselor
Paulding and just clarify for the record a little bit. Paulding
only filed a stay after he had what he believed at that time
was an implied threat. Would you agree with that?
Judge Chatigny. Senator, I believe Mr. Paulding has stated
that he did not feel threatened and that he sought the stay
based mainly on his conversation with Dr. Norko and his duty to
the courts to bring to their attention new information or
evidence bearing on the issue of his client's competence.
Senator Coburn. Then why would Mr. Ross testify in front of
you that the only reason he agreed to go along with the filing
of the stay is to ``protect Paulding's law license'' ?
Judge Chatigny. There was no such testimony by anyone
before me.
Senator Coburn. It was in the Supreme Court, in the State
Supreme Court.
Judge Chatigny. That was not the position he took.
Senator Coburn. That's a direct quote: ``protect Paulding's
law license,'' from the State Supreme Court.
Let me move on, if I may. Do you believe that there is a
mitigating factor in all death penalty cases?
Judge Chatigny. No.
Senator Coburn. Do you believe that in sexually related
crimes such as Ross's, that there usually is a mitigating
factor?
Judge Chatigny. No.
Senator Coburn. How much time did you spend researching
mitigating factors when you were first asked to look at Mr.
Ross's record by the--I think it was the Connecticut trial bar,
benevolent----
Judge Chatigny. I don't recall doing any research into
mitigating factors.
Senator Coburn. Thank you.
Judge Chatigny. I think it was an evidentiary issue, but I
don't recall.
Senator Coburn. It should be noted for the record, at the
time of your conversation with Mr. Paulding, you were a member
of the Grievance Committee of the U.S. District Court for the
District of Columbia. Is that correct? Would your statements to
Mr. Paulding carry more weight considering you were on the
Grievance Committee versus a judge who was not on the Grievance
Committee? Would you, as a reasonable man, tend to think that
it might carry more weight?
Judge Chatigny. Senator, I'm not sure. And I'm trying to
recall if I was a member of the Grievance Committee at that
time. I don't recall. But certainly, you're right. A forceful
statement to a lawyer will tend to have an impression, and I do
regret that my words to Mr. Paulding were harsh.
I would want to be clear. You referred to Mr. Ross's
testimony. I believe he gave that testimony in the subsequent
State court proceeding.
Senator Coburn. Yes, he did.
Judge Chatigny. I don't want to leave you with the
impression that I doubt that he did that.
Senator Coburn. No, no. No. I understand that. Thank you.
Let's move off that for a minute. I'll bet you'd like to move
off of it, and so would I. Thank you for being so cooperative.
In Doe v. Lee, you held that the Connecticut Sex Offender
Registration Act was unconstitutional. The U.S. Supreme Court
unanimously reversed your decision. Specifically, the court
rejected your conclusion that a violation of a liberty interest
occurred because the law implied that all registrants are
currently dangerous and imposed onerous registration
obligations, relying on its previous precedent established in
Paul v. Davis, that mere injury to reputation, even if
defamatory, does not constitute the deprivation of a liberty
interest.
Why did you disregard prior Supreme Court precedent in that
ruling?
Judge Chatigny. Senator, as in every case, I did my best to
faithfully apply the law. In that case, a procedural issue was
presented. I studied the relevant precedents of the Second
Circuit, did my best to follow them. I concluded that due
process did require that a hearing be held in a circumstance
where a----
Senator Coburn. I'm out of time. Let me just ask one other
question. You're not responsible just for the precedents of the
Second Circuit, you're responsible for the precedents of the
Supreme Court as well, correct?
Judge Chatigny. Yes.
Senator Coburn. Thank you. I'll yield back and I'll wait
for the next round.
Senator Klobuchar. Okay. Thank you.
And just to clarify that issue, you did not actually strike
down Megan's Law, is that correct?
Judge Chatigny. No. I ruled that due process required a
hearing. The Second Circuit affirmed. The Supreme Court----
Senator Klobuchar. And they unanimously affirmed?
Judge Chatigny. They did. The Supreme Court unanimously
reversed. I, of course, accept their ruling as the law of the
land and have no difficulty whatsoever following it. But I did
my best to apply the law as I understood it.
Senator Klobuchar. And again, you didn't strike it down. It
was a procedural issue, that you felt that there should be--you
felt that there should be an additional procedure.
Judge Chatigny. To be clear, under Connecticut's registry,
non-dangerous registrants and dangerous registrants were lumped
together. There was no differentiation. The plaintiff claimed
to be non-dangerous and he wanted an opportunity to prove that
at a hearing before he was listed on the registry. Under
applicable precedent, Supreme Court and Second Circuit, I
concluded that he was right, and on that basis I said you can't
put these people on the registry without giving them a hearing.
The Court of Appeals agreed. The Supreme Court unanimously
disagreed and the registry is in effect.
Senator Klobuchar. Okay. Thank you.
Senator Sessions.
Senator Sessions. Judge, as a trial judge you have the
authority on motion, if contempt is executed in your presence,
to discipline lawyers, do you not?
Judge Chatigny. Yes.
Senator Sessions. And lawyers know that and they respect
the power of a judge. I have to say that your comments--really,
threats--to Mr. Paulding were inappropriate. Would you agree?
Judge Chatigny. I would agree that the words I used were
excessive, yes.
Senator Sessions. And you also said at that time, ``We're
not in this profession to help people get killed.'' A lawful
execution does not meet my definition of killing. Do you think
that's a bad choice of words?
Judge Chatigny. Very much so.
Senator Sessions. And then when you said to the lawyer,
``what you're doing is terribly, terribly wrong'', and you went
on to say, ``I do not know how anybody in your position could
be accepting of this responsibility and proceed in the face of
this record to be the proximate cause of this man's death.''
Then you, I think, went on to basically threaten him. You
said, ``Then you better make a clear record of it. You better
have a court reporter there taking down the advice you're
giving him, because believe me, you're going to need it. You're
going to need it.''
Do you feel like--it seems to me the lawyer was
representing a client who had had a full panoply of appeals and
was ready to accept his fate, and it seems to be a mentality
among some in our legal system that the death penalty must be
resisted at virtually all costs, and we go to every possible
effort to delay its coming.
Do you agree that you have a right, when the time is ready,
that the defendant is ready to be executed, that he should be
executed?
Judge Chatigny. Yes, if he's competent, then that's his
choice.
Senator Sessions. Now, during this call you said this that
worries me: ``Looking at the record in light most favorable to
Mr. Ross, he never should have been convicted.'' How could you
say that?
Judge Chatigny. Here again, Senator, I appreciate the
question because it gives me an opportunity to clarify and to
address your understandable concern. I was trying to explain to
Mr. Paulding that the significant evidence casting doubt on his
client's competence pervaded the case.
The issue of guilt was not before me. That issue had been
determined, but the issue of competence was before me and his
history of mental illness was clearly relevant to that issue.
His prior counsel had defended the case based on an insanity
defense, later based on his mental disorders. And I regret that
I used words that suggested I had an opinion about this
defendant's guilt or that I was concerned about his guilt. I
was not. I--my sole concern was whether he was competent to
waive legal remedies. It was a learning experience, as I said.
If I had it to do again I would certainly do it differently.
Senator Sessions. Well, you said ``he should never have
been convicted'' and then went on to say ``or if convicted, he
never should have been sentenced to death because sexual sadism
is clearly a mitigating factor.'' Can you cite any authority in
which sexual sadism has been defined as a mitigating factor?
Judge Chatigny. No.
Senator Sessions. Well, I don't think there is any. I'm
rather--it seems to me that would be, if anything, an
aggravating factor.
Judge Chatigny. My intention was to call Mr. Paulding's
attention to the record of the defendant's disorders, including
that one, solely to impress upon him the need to reassess the
issue of his competence to waive legal remedies.
Senator Sessions. Well, you said that there was significant
evidence raising questions about his competency. I don't know
that there was a scintilla of evidence. I guess this letter, if
you chose to see it as something of value, could have been seen
as some minor possibility of a competency question.
But really, the attorney, Mr. Paulding, was in contact with
his client who had been--and didn't take this seriously. All it
was was a letter from a person in jail, maybe trying to help
out a fellow prisoner, if he could frustrate the system, it
sounded like to me. There was no real credible facts stated in
that letter that would make me think that there was a real
significant question of competency. Wouldn't you agree?
Judge Chatigny. I do agree. I realize now that there's an
important point that needs to be clarified. At the emergency
hearing on the application for the stay, the plaintiffs
proffered evidence on the subject of the defendant's
competence, including expert testimony, which had not been
considered by the State court.
It was against the background of that evidence that we
subsequently saw new evidence emerge, but the evidence that
concerned me at the very beginning was this evidence proffered
at the emergency hearing, including expert psychiatric
evidence, which had not been part of the competency hearing in
the State court. I am sorry I didn't clarify that earlier.
Senator Sessions. Well----
Judge Chatigny. When the competency hearing was reconvened
in State court, there were expert witnesses on both sides who
testified on that issue. The trial-type proceeding took
approximately a week, with two experts on both sides of the
question, and then the State judge wrote a careful, thoughtful
opinion, finding that the defendant was competent.
Senator Sessions. But the Connecticut Supreme Court had
also reviewed it previously in the record of the previous
competency hearing and found him adequate, did it not? So you
were just second-guessing their decision based on a letter from
a prisoner. Excuse me. He should be able to answer that and
I'll give you more time. I've gone beyond my time.
Judge Chatigny. I believe strongly that a district judge
should defer to the State court, and I do that. In this unusual
case, I believed that the allegations that were made and the
evidence that was presented to me in support of those
allegations raised a sufficient issue about competence to
require a further review, in no small part because there had
been no adversarial hearing in the State court where the issue
could be tested, as we test issues in our system.
Senator Klobuchar. OK. Thank you.
Judge Chatigny, I just want to go back over this, your sort
of exacerbation at the hearing and why you felt that way and
used that language that you now regret. And I was actually
listening to it, thinking about times that I've been before
judges who get mad, even in civil cases, about things. Some of
the words you used remind me of other words I've heard, so it
didn't really surprise me, but they don't usually get litigated
because it never comes out. But I've heard judges use very
strong language at lawyers, and that's no excusing it, I just
have.
And so, but one of the things I found interesting was just
this succinct statement by the panel, the Second Circuit
conclusion, about some of the things you had said in exchange
with the lawyer, who as we know has already said that he didn't
feel pressured, and I'll get to that in a minute.
But they said, ``The words cannot be read in isolation. The
proceeding colloquy clearly shows Judge Chatigny's growing
exasperation with the fact that Ross was about to be executed
based on his waiver of legal remedies in the face of a
reasonable possibility'', and you've already told Senator
Sessions that if you felt that he was firmly competent, had no
questions about that, the fact that he waived his remedies and
was going to be executed, that wouldn't be a problem for you.
Is that correct?
Judge Chatigny. That's correct.
Senator Klobuchar. So you said that--what they say is that
``in the face of a reasonable possibility that he was not
competent to give such a waiver'', so you have this situation
where this new evidence has come before you from his lawyer, so
you're concerned that he may not be competent, and at the same
time you have a lawyer--the Second Circuit stated, ``his lawyer
was refusing to take steps to examine new evidence casting
doubt on his client's competence. The judge was clearly
concerned that Paulding's'', that's the lawyer, ``reluctance to
engage the court in the question of Ross's competence, based on
Paulding's sense that he was bound by his client's
instructions, might cause an unconstitutional execution.'' So
once again, your concern was not that you didn't want to do the
death penalty or you had a problem with it, it was that you
were concerned that this could be found to be unconstitutional
and you wanted to have it done right.
Judge Chatigny. That's true.
Senator Klobuchar. And the lawyer--and I can understand
where the lawyer is coming from--feels lawyers should do what
their client says. But from your standpoint, and the case law
shows, the first question the lawyer has to ask is, is my
client competent or not.
Judge Chatigny. That's correct.
Senator Klobuchar. And that's why I can understand you got
a little heated, whether it was right or not, in trying to make
sure that lawyer understood that, that, yes, you're bound by
what your client says but you've got to make sure he's
competent. OK.
So, the other piece of this is just some of the things that
we heard about your feelings on the case itself, and what you
were trying to do here was to make sure the procedures were
followed. That's right?
Judge Chatigny. Yes.
Senator Klobuchar. OK. And I'd just note that again, in the
Second Circuit decision, that it says--they say, ``There is no
indication that Judge Chatigny sought to nullify Ross's death
sentence. Rather, the transcript clearly reflects his focus on
insuring that a proper competency determination be made.''
Then one other thing I wanted to put on the record here was
that 17 former Federal prosecutors who worked with or appeared
before you wrote to this Committee about their ``conviction in
his integrity and fitness to serve on the Court of Appeals''.
In an April 27, 2010 letter, they describe you as ``unfailingly
respectful of others and their views with no axe to grind'',
and asserted that, ``in criminal as well as civil matters,
Judge Chatigny has proven himself over the course of 15 years
on the bench to be unbiased, compassionate, and temperate.''
So I'd like to put that letter on the record as well in
addition to the ones that we heard from the chief U.S.
Attorneys that were included in the record.
[The letter appears as a submission for the record.]
Senator Klobuchar. Just one other follow-up. You've had how
many cases? Do you remember how many cases you've had in your
career as judge?
Judge Chatigny. Thousands.
Senator Klobuchar. I think someone told me you had 4,000
cases.
Judge Chatigny. That sounds right.
Senator Klobuchar. OK. And you've issued 450 decisions.
Judge Chatigny. I thought perhaps more. I think I've had
approximately 450 criminal defendants come before me for
sentencing. That's an estimate. The number of opinions, I'm not
sure.
Senator Klobuchar. And most of those--we discussed almost
all of those cases have been upheld. I think I had the number,
16 cases had been reversed. Is that right?
Judge Chatigny. I believe so. I'm not sure.
Senator Klobuchar. And have you had other cases where you
had to deal with competence and make sure that the defendant
was competent to stand trial?
Judge Chatigny. Yes.
Senator Klobuchar. Is it something that you are acutely
aware of when you go into these cases?
Judge Chatigny. Yes.
Senator Klobuchar. Do you think other judges are concerned
about that as well?
Judge Chatigny. I do.
Senator Klobuchar. OK. I was thinking your son is over
there. Oh, one has left. It's just too much. I'll talk to him
later. When you think about all of these cases you had, the
4,000 cases and all of the work you've done as a judge, what
are you most proud of? It might not be one case, but just of
the work and your judicial philosophy, what you've done as a
judge that you would want them to know.
Judge Chatigny. Well, thank you for that question. I would
say that I'm proud of doing a fair and honest job of it day in
and day out and trying to do my part to maintain public
confidence in a system of justice that I revere.
Senator Klobuchar. OK. Thank you very much.
I think Senator Coburn is next.
Senator Coburn. Thank you. I'd like to enter into the
record an affidavit submitted by Mr. Golub of the Connecticut
Criminal Defense Lawyers Association which states that in fact
the particular issue you agreed to research related to
establishing mitigating factors for death penalty cases.
[The affidavit appears as a submission for the record.]
Senator Coburn. The other thing I wanted to raise with you
is, are you aware of Federal statute 28 U.S.C. 2254(e)?
Judge Chatigny. I believe so.
Senator Coburn. OK. It states that in Federal habeas corpus
proceedings, factual determinations of State courts shall be
presumed to be correct.
Judge Chatigny. Yes.
Senator Coburn. And as I understand it, the Connecticut
courts considered and rejected the allegation that Mr. Ross was
not competent when he decided not to pursue further appeals,
and that in the hearing on the public defender's habeas corpus
petition, however, you said that this finding was ``not binding
on me, it can't be''. Is that accurate?
Judge Chatigny. Yes.
Senator Coburn. And why is it not binding on you?
Judge Chatigny. Because the procedure that was followed was
limited and I was presented with evidence raising a substantial
issue on a matter of life and death.
Senator Coburn. Thank you.
I want to go back to one other area and then I'll finish,
and I'll have some questions for the record.
You gave a speech at the American Constitution Society at
the University of Connecticut Law School in which you
criticized mandatory minimums because ``empathy for individuals
in a case inevitably comes into play, as it should''. Does
empathy factor in your decisions in a courtroom?
Judge Chatigny. No.
Senator Coburn. Just in sentencing?
Judge Chatigny. Not in sentencing.
Senator Coburn. Well, explain that statement to me then.
You criticized mandatory minimums in that speech, and your
following statement was, ``empathy for individuals involved in
a case inevitably comes into play, as it should''.
Judge Chatigny. Well, I recall the speech. I don't recall
the comment.
Senator Coburn. Well, that's a quote exactly.
Judge Chatigny. Yes. I don't doubt that I made the comment.
I believe I was referring to not just the defendant, but also
the victims, as well as witnesses when I referred to the
individuals, plural, in a case. I think that it is important,
in a criminal case at sentencing, for a judge to be conscious
of the interests of all concerned, but the decision needs to be
based on the facts and the law.
Senator Coburn. In the same speech you said, ``We shouldn't
try to drastically reduce departures. Departures are essential.
The purpose of the Federal Sentencing Guidelines is to provide
consistency and uniformity.'' I agree with that. ``That way the
sentences imposed for the same crimes do not vary widely
depending on the judge the defendant happens to draw on.''
What factors do you consider in deciding whether or not
downward departure is appropriate?
Judge Chatigny. I consider the presentation made by the
parties, I look at the guidelines with care, and I ask whether,
on the facts before me, a departure under the guidelines is
warranted. I recognize----
Senator Coburn. You're not out of line with all the rest of
the judges, so I don't want to make that point. I think you've
followed that fairly well. I do have some questions, however,
on six child pornography prosecutions and one sexual tourism
case. You've departed on those cases.
The reason I'm asking the question is, we have a sexual
sadism case which looks like you're sympathetic towards, we
have Megan's Law, which you're trying to give a greater
constitutional right than what the Supreme Court ultimately
said was there, and then we have this instance of child
pornography in which you're going against the Sentencing
Guidelines. And I may have as well, but the reason for the
question is, you put all these together, it creates a story
that would appear that you're soft on sexual crimes, sexual
pornography, and abuse of children. I know you're not and I'm
not saying that, but you can understand why those questions
should be asked.
Judge Chatigny. Yes. Absolutely. I recognize that a
narrative has developed here that depicts me in this way, and I
can assure you that child pornography is abhorrent to me, and
if I have departed it is only because the facts and the law
seem to demand it.
Senator Coburn. Thank you very much. You've been very
cooperative. Appreciate it.
Judge Chatigny. Thank you.
Senator Klobuchar. Senator Sessions.
Senator Sessions. Thank you. I know you've handled a lot of
cases, some 4,000 cases. But can you think of any case in which
you've injected yourself more personally into than this case
involving a sexual predator who murdered, admittedly, eight
women?
Judge Chatigny. I cannot. I have spent years working on
other cases. This case took about a week, actually, just a
week. I've given a lot of thought to other cases, and in that
way invested myself heavily in them. But you're right, this
case is unique.
Senator Sessions. I know this judicial panel ruled that you
shouldn't be disciplined, but there are statements read by our
distinguished chairman, who's a good prosecutor and knows the
law, but this was basically not an affirmation of your conduct
in that hearing, but a finding, according to your fellow
judges, that you had not violated the Code of Judicial Conduct.
Would that be right?
Judge Chatigny. Yes.
Senator Sessions. I don't think we should overstate that.
When you said in your sentence--you said he shouldn't have
been sentenced--``shouldn't have been convicted'', then you
said ``he shouldn't have been sentenced to death because sexual
sadism is a mitigating factor--clearly, a mitigating factor'',
which is finding of major proportions without any record to
back it up, I would suggest, but you also said, I think, in
that hearing that Ross was ``the least culpable, the least of
people on death row''. Did you say that? What did you mean by
that?
Judge Chatigny. Thank you for the question, Senator,
because again I recognize that there is a valid basis for
concern and it gives me an opportunity to explain. I was
terribly concerned that an execution was about to occur when
the issue of mental competence had not been properly evaluated.
In trying to impress that upon Mr. Paulding, I pointed out
to him that if you looked at the record in the light most
favorable to the defendant, all of these things could be said.
Why was that relevant? Because they all pertain to his mental
illness. His previous counsel had said that he was so ill that
he was not guilty, that he was so ill he was not eligible for
the death penalty. Mental illness pervaded the case and I was
trying to focus attention on that so that the lawyer would
reassess his position before it was too late.
Senator Sessions. Well, it wasn't any question about his
guilt. He had confessed to that and the evidence was
overwhelming. So a defense lawyer has got to have some defense
and insanity is the only one left, I suppose. So just because
defense counsel pleaded guilty and urged that his client was
incompetent in a case like this, I think he was probably making
the only argument or plea that could be made. But you gave that
great weight, his personal statement that he thought he was--
did you take a personal statement from the counsel or did you
just review the record of the State court process by which they
pled mental competency?
Judge Chatigny. I reviewed the record, such as it was, in
the very limited time available to me. And I must say----
Senator Sessions. How would this make him the ``least
culpable of people on death row''? What did you mean by that?
Judge Chatigny. If, as has had been claimed, he was in fact
severely mentally ill, and given the clear relevance of his
history of severe mental illness to the issue of his competence
to waive legal remedies, I felt that this was a way of
addressing the matter with Mr. Paulding's lawyer that might
cause him to reassess his position, as I believed he had an
ethical obligation to do.
Again, I regret my choice of words. I did the best I could
in the circumstances to follow the law and discharge my
responsibility. I fell short of doing it as I would have
wished, in retrospect. I treat it as a learning experience.
Senator Sessions. Well, I understand that.
Let me just ask one more thing. Now, in the first hearing
before we had this teleconference and this occurred, you found
that the State should--you stayed the execution and you found
that he was entitled to another hearing on competency. The
Second Circuit went along with that. They tried to give--all
judges are given some deference. But the Supreme Court, by a
5:4 majority, said even giving deference to the trial judge's
decision processes, there was insufficient evidence to order a
delay. At that point you didn't have this letter from the
prisoner, is that right?
Judge Chatigny. I can't recall the timing exactly, but that
letter cropped up while the case was on appeal, as I recall.
Senator Sessions. Well, Madam Chairman, you know these are
tough hearings and we take a person with thousands of cases.
You know that story about the law, as the cloud comes over the
city and the lightening bolt comes out of the sky and says
you're negligent?
Senator Klobuchar. That's us.
Senator Sessions. It's one person and he's declared
negligent, or you're declared to be in error. You have a lot of
friends, Judge, and you've obviously done good work on the
bench. I don't think your integrity has been questioned. So
we'll be glad to look at this.
I have a strong feeling that our Federal courts have
forgotten their role in these cases. Until the last 50 or so
years, cases weren't retried in Federal court. When you got an
affirmance by the Supreme Court of a State, it was presumed to
be final.
Now we have Federal judges that think they want to review
everything, second-guess State courts, cost thousands of
dollars, delay executions, and the Supreme Court, in the
reversal of your case, I think, was a statement: judges, you've
got to be careful, you're overreaching here. This does not call
for another hearing based on the record that they went up to.
They see them from all over the place.
So my fundamental concern is along that line, not with you
in any personal way. I appreciate your testimony. I think
you've been patient with us and I think you've endeavored to be
honest and fair in answering the questions.
Thank you very much.
Judge Chatigny. Thank you.
Senator Klobuchar. I appreciate your closing comments
there, Senator Sessions. Again, Judge Chatigny, I mean, despite
that people may have disagreements on what the role of a
Federal court judge should be here, but do you feel, based on
the Constitution, based on cases handled by Circuit Courts in
the past, that you had a duty to look at that competency issue
and make sure that this defendant, however horrific he was, was
competent before an execution, a decision before he could waive
his rights and be executed?
Judge Chatigny. Yes.
Senator Klobuchar. All right.
Senator Sessions. Madam Chairman, I'll offer Senator
Grassley's statement for the record.
Senator Klobuchar. OK.
Senator Sessions. He wished to be here and expressed his
interest in the issues of the case, but had to be at another
matter.
Senator Klobuchar. Well, thank you very much, Senator
Sessions. We'll include that.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Klobuchar. I also just want to include the--you
know, we've been--I loved Senator Sessions's reference to the
lightening bolt coming down on one case. But just to clarify
here, put on the record, that in more than 15 years as a
Federal judge, the government has never appealed a single one
of your sentences. As Senator Coburn noted, your downward
departure rate was completely in the range of other judges, and
he acknowledged that, even though he touched on a few cases
with which he disagreed.
And as much as he may have mentioned cases where you had
downward departed again in the range with other judges, you've
also had some cases where you've given out maximum sentences.
In 2001, a cocaine dealer, 20 years, maximum sentence allowed
by law. There you had the dealer's defense attorney publicly
attacking you for imposing such a harsh sentence. Those were
not the cases were brought up today. They were not brought up,
but there are cases like that and we acknowledge that as we
look at your record of 4,000 cases.
So I just want to thank you for appearing before us. As the
other Senators have noted, you showed much patience, as did
your family. Your other son did return, but now he's gone, and
they have been standing by your side at every moment. I can
tell that, and they care very much about you. We look forward
to working with you in the weeks to come here.
Thank you very much.
Judge Chatigny. Thank you so much. Thank you.
Senator Klobuchar. All right. We'll take 1 minute and then
we'll have our next nominee up.
OK. Are we ready to go, everyone? Thank you. OK.
Mr. Gibney, will you please stand to be sworn? You are
standing.
[Whereupon, the witness was duly sworn.]
Senator Klobuchar. Thank you.
Now the numbers are a little more even here, Mr. Gibney. We
won't be three to one, and I don't even think we'll need that
here. But I want to thank you for being here. You certainly had
a nice testament to you from Senator Webb and Senator Warner,
both of whom are very well-respected in this body.
Do you have your family members or friends you'd like to
introduce?
Mr. Gibney. I do, your Honor--Senator. Thank you, first,
Madam Chairman, for the opportunity, and Mr. Sessions for the
opportunity, to appear before you. I'd also like to thank
Senators Warner and Webb for their kind remarks, and of course
President Obama for his kindness in nominating me.
With me today are my son, John Gibney, III, my future
daughter-in-law, Jesse Telhorster, and my assistant, Kelly
Arnett. I'm very proud to have them with me today as well.
Senator Klobuchar. Well, thank you very much.
I think I'll start out with the question that I asked of
Judge Chatigny. That is, as someone who has spent many years in
private practice with a vast array of cases, how do you
characterize what you believe will be your judicial philosophy?
How are you going to look at cases having made that transition
from private attorney to being a judge, from being an advocate
to being someone who is a trier of the facts?
Mr. Gibney. My role as a judge and my judicial philosophy,
if I'm fortunate enough to be confirmed, would be that I
believe that a judge's role--a district court judge's role is
to find the law from examining the text of the Constitution,
the text of statutes, the relevant Supreme Court decisions, and
the relevant decisions of the Fourth Circuit Court of Appeals,
to find the facts exclusively from the evidence that comes
before me, and to apply the law to the facts.
Senator Klobuchar. And listening to Judge Chatigny talk
about what he'd learned in his 16 years as a judge, what do you
think is the most important quality a Federal judge should
have?
Mr. Gibney. I think the most important quality any kind of
judge should have, Federal judge included, is humility. I think
that humility--and by humility I don't mean the quality of
being abased or meek or put down in some way, but rather the
quality of knowing your place in the world, knowing that it's
not the center of the world, knowing that everybody in that
courtroom is just as important as you are, that they have their
own concerns that are important to them, and that each one of
them deserves the same respect that you would give to a fellow
member of the bench.
Senator Klobuchar. Very good.
You worked as an Assistant Attorney General in the Virginia
Attorney General's Office. Can you tell us about your time in
that office and what skills you learned that will be helpful?
Mr. Gibney. My time in that office was--thank you for
asking that question, Senator. My time in that office was--was
very rewarding and it was there that I honed my skills that
have allowed me to, in my legal career, represent a lot of
local governments. I think that what I learned best in the
Attorney General's Office was the need for hard work at all
times and the need to--and of course, the need to have the--the
delight I took in judges who treated all the litigants fairly.
Senator Klobuchar. Well, you don't have these 4,000
decisions that we have to examine.
Mr. Gibney. I don't.
Senator Klobuchar. I'm sure you're very disappointed about
that.
[Laughter.]
Senator Klobuchar. But you come from the private practice.
Generally, Federal judges have great discretion to decide
whether to sit on a case when possible conflicts of interest
arise. It's therefore important that judicial nominees have a
well thought out view of when recusal is appropriate.
Former Chief Justice Rehnquist made clear on many occasions
that he understood that the standard of recusal was not
subjective, but rather objective. It was whether there might be
any appearance of impropriety. How do you interpret the recusal
standard for Federal judges, and in what types of cases do you
plan to recuse yourself? I don't need specific examples of
clients or cases, but just a statement that you will follow the
applicable law.
Mr. Gibney. Thank you, Senator. I will, of course, follow
the applicable law and all the precedents in that area and will
examine each case closely to see if there's any potential
conflict that needs to be addressed by me, or even if I think
there's no possibility of it, to point it out to counsel if
there's any remote way that anyone could think there was a
possible conflict.
Senator Klobuchar. Just one last question. As a lawyer
who's practiced for so long and is well-known in your
community, what do you think some of the greater challenges are
now that are facing the Federal judiciary?
Mr. Gibney. I think that the--thanks for asking that
question. I think that the greatest challenge facing the
Federal judiciary at this time is probably the difference in
the quality of defense among various defendants. Of course,
it's not the judge's job to go in and try the case for the
lawyers, but as we've seen in a number of high-profile cases,
wealthy people seem to be able to get a different caliber of
representation than the ordinary folk, and I think that is a
very difficult question and poses a dilemma to our system.
Senator Klobuchar. Thank you very much.
Senator Sessions.
Senator Sessions. Well, Mr. Gibney, you have a good record
of trying a lot of cases. I think it indicated some 500 or more
trials, 90 percent of which you were the sole attorney on.
Mr. Gibney. That's correct.
Senator Sessions. Which is indicative of a deep experience
with the system and should put you in a position to be able to
handle the decision-making processes that come before a judge,
recognizing maybe when a lawyer really does need a continuance
and maybe they don't, or when they've made an honest mess-up in
their preparation, or whether they're consistently unprepared
and need to be disciplined, or whatever.
Do you feel that the experience you have will help you make
those kind of decisions that make the system work a little
better?
Mr. Gibney. Senator, yes. Thank you very much for that
question. I do feel that way. I've been down in the trenches.
I've been yelled at by judges, I've lost a lot of cases, I've
won a lot of cases. I think I understand the difficulties that
lawyers face in real life in preparing for court and coming to
court and representing clients, and representing difficult
clients.
Senator Sessions. And do you believe that a judge, when
they put on the robe and take the oath to serve under the
Constitution and the laws of the United States, that that means
that you must put aside your personal views, policy concepts,
political or ideological values and objectively find the facts
and apply them fairly to the law as written?
Mr. Gibney. Thank you, Senator Sessions. Absolutely, I do.
Senator Sessions. Let me ask you this question. In March of
2000, you told the Greensboro News & Record you did not favor
mandatory dispute resolution programs, even though the law
supports them. You stated, ``I think they are grossly unfair to
the worker'' because employers in non-union settings have
leverage over an employee, I think in essence you said.
The arbitrators are not representative of the peer group of
those who would make up a jury. I understand that you could
make those points. They're not matters that ought to be--you
shouldn't be criticized for expressing those views. But my
question is, with regard to mandatory resolution programs, even
though you may not support them, will you require them when
they are required pursuant to contract and case law and
statutory authority?
Mr. Gibney. Yes, I will, Senator.
Senator Sessions. Well, in criminal cases, a lot of these
powerful defendants are outgunning the prosecutors, so maybe--I
don't know about it in civil cases, but a lot of individual
plaintiffs had you for their attorney. I figure you could stand
up against any of them.
Mr. Gibney. Well, I've tried to do my best throughout my
career when the odds are long and when the odds are short.
Senator Sessions. Well, it is a great legal system we have.
Mr. Gibney. It is, and I'm very honored.
Senator Sessions. Individual attorney, individual clients
can go to someone like you who has great skill and probably can
contend with any lawyer in the country and sue the biggest,
fattest corporation, and every now and then get a $100 million
verdict, whether they deserve it or not, sometimes. So I think
the system works pretty well.
I think it is appropriate for a judge in a case to not--to
not allow a poorer client to be taken advantage of. How would
you evaluate that process about what you might do if an
outgunned young lawyer is maybe being taken advantage of a bit?
What do you think the responsibility of a judge is when you see
something like that occur in your courtroom?
Mr. Gibney. Senator, thanks for that question. That's a
very difficult question. When do you jump in when someone is
ineffectively assisting a client in a criminal matter.
Senator Sessions. Or civil.
Mr. Gibney. Well, civil is a little different.
Senator Sessions. It's a little different. But----
Mr. Gibney. But I would try, to the best of my ability, to
make sure that the ground rules are fair for everybody and that
both lawyers have an equal opportunity to put on their case. If
I sensed that in a criminal case we were reaching a stage where
there was ineffective assistance of counsel as defined by the
relevant Supreme Court decisions, which is a pretty stiff
standard, in that case I would probably step in in some way--
and I'm not sure how at this time--and try to make sure that
whatever process we went through was fair to the defendant.
Senator Sessions. Well, you're right, it's not an easy
thing. I've seen judges avoid error sometimes in an appropriate
way without, I think, being unfair to any party. But thank you
so much. I'm impressed with your experience. I think the kind
of experience you bring to the bench is valuable and it should
stand you in good stead.
Mr. Gibney. Thank you, Senator Sessions. I've been very
fortunate to be a lawyer as long as I have, in what you denoted
is a great profession and a great system.
Senator Klobuchar. Well, thank you very much, Senator
Sessions. Thank you, Mr. Gibney. Now, we could just hang out
and see if our colleagues return to ask you questions or we
could adjourn the hearing.
So I want to let everyone know that the record will remain
open for 1 week, and we wish you good luck, Mr. Gibney. We're
all impressed by your credentials. I don't want to speak for
everyone, but we're impressed--I'm impressed by your
credentials, as well as Judge Chatigny's. I want to thank you
for this civil hearing and that we're able to complete it, and
having your family here I'm sure is special as well.
Thank you. The hearing is adjourned.
Mr. Gibney. Thank you, Senator.
[Whereupon, at 4:30 p.m. the Committee was adjourned.]
[The biographical information follows.]
[Questions and answers and submissions for the record
fellow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF SCOTT M. MATHESON, JR., NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE TENTH CIRCUIT; JOHN J. MCCONNELL, JR., NOMINEE TO
BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND; JAMES
K. BREDAR, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT
OF MARYLAND; ELLEN LIPTON HOLLANDER, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND; AND, SUSAN RICHARD NELSON,
NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF
MINNESOTA
----------
THURSDAY, MAY 13, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:30 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senators Feingold, Whitehouse, Klobuchar, Franken,
Sessions, Hatch, and Kyl.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Cardin. The Judiciary Committee will come to order.
I am going to acknowledge in the beginning that we may get
interrupted with a vote on the floor of the U.S. Senate. So we
are going to try to expedite this hearing as quickly as we can,
from the point of view that we have a lot of our Senators that
want to be heard in introducing their nominees.
Today, the Committee will consider five judicial
nominations. I want to thank Senator Leahy for giving me the
opportunity to chair this hearing.
Panel one will consist of Scott Matheson of Utah to be U.S.
Circuit Judge for the Tenth Circuit. Panel two consists of four
district court nominees; John McConnell of Rhode Island, Susan
Nelson of Minnesota, Ellen Hollander of Maryland, and James
Bredar of Maryland.
Let me take this opportunity to particularly talk about,
with pride, the two Maryland nominees that are before us. I
want to commend and congratulate Senator Mikulski for the
process that she initiated in the State of Maryland for making
recommendations to the President on our nominees to the bench.
I believe the process that she established brought forward
the best possible candidates for judicial appointment, and I
think the Committee is going to be very pleased by the two that
are before us today.
I look forward to Senator Mikulski formally introducing our
two nominees, Judges Hollander and Bredar.
Judge Ellen Hollander currently serves as judge on the
Maryland Court of Special Appeals, which is our second highest
court, that hears mandatory appeals from the state courts of
Maryland. She has served as a judge on that court since 1994.
She has broad experience on the bench, and she would be
replacing Judge Andre Davis, who was recently appointed to the
Court of Appeals for the Fouth Circuit.
I was pleased to attend last month's investiture with
Senator Mikulski for Judge Davis, and we now are bringing
forward Judge Hollander for that position.
She has been an active member of the bar since 1974 and has
received the highest possible rating from the American Bar
Association.
I also want to comment that she is extremely active in our
community, served on Goucher Board. I served on Goucher Board,
had a chance to personally observe her activism in our
community. She is very active in the Jewish charity issues, and
will make a great addition, I believe, to the Maryland District
Court.
Judge Jim Bredar comes to this Committee with a wide range
of courtroom and litigation experience. He served as a Federal
prosecutor in Colorado for 4 years before coming to Maryland
and serving as a Federal public defender for 6 years. And since
1998, he has served as a U.S. magistrate judge for the U.S.
District Court for the District of Maryland. So he is very
familiar with the workload of our Federal bench.
He would be replacing Judge J. Frederick Motz from
Baltimore. Judge Motz has taken senior status. Let me thank
Judge Motz for his 15 years of service on the bench,
particularly as our chief judge from 1994 to 2001. I would also
like to mention that Judge Motz's wife continues to serve with
great distinction on the Fourth Circuit, and it is fitting,
indeed, that Judge Motz was the official that swore in Judge
Bredar as a U.S. magistrate judge in 1998.
Judge Bredar also comes with a great deal of experience in
helping our community and has been well recognized for that,
and we very much, again, appreciate his background and
willingness to continue to serve.
I need to point out, if you look at his background, I am
particularly impressed that he worked as a park ranger and ski
patroller in Colorado. That makes me very jealous.
Let me also mention the three nominees that are before us
that will be introduced formally by their home state Senators.
Scott Matheson of Utah comes to this Committee with experience
of being a prosecutor, a law firm attorney, professor of law,
and dean of a law school. And he comes from a very
distinguished family of public servants, and I have had the
opportunity of serving with his brother, Jim, who has been a
member of the House of Representatives.
John McConnell of Rhode Island is a distinguished lawyer
with more than 25 years of private practice in Rhode Island. He
has focused on complex litigation and comes to this Committee
with a broad background for the district court.
Our final nominee is Susan Nelson of Minnesota. Judge
Nelson has served as a U.S. magistrate judge for the District
of Minnesota for the past 10 years. As a magistrate judge, she
has handled hundreds of cases and is very well familiar with
the workload of our district court.
So I want to welcome all five of our nominees. I want to
thank them and their families, because I know this is a team
effort, for their willingness to, in most cases, continue to
serve in a public position of trust on behalf of the people of
our country.
At this point, I am going to turn to the members of the
Senate to introduce their nominees, starting with Senator
Hatch, who has been a very active member of this Committee, a
leader of this Committee, and a great friend of all.
Senator Hatch.
PRESENTATION OF SCOTT M. MATHESON, JR., NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY HON. ORRIN HATCH, A U.S.
SENATOR FROM THE STATE OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman, and thank you
for your kind remarks. I am quite thrilled here today to be
able to present our nominee for the Tenth Circuit Court of
Appeals, Scott Matheson.
Scott Matheson is nominated by President Obama to the U.S.
Court of Appeals for the Tenth Circuit. He continues his
family's dedicated service to our State of Utah and its
educational institutions. His father was Governor of Utah, one
of the great Governors that we had, and had had great
experience in his prior work.
Scott brings to this nomination both personal qualities of
character and integrity and a variety of relevant experiences.
He has degrees from Stanford, Oxford, and Yale.
His three decades of legal experience includes private
practice with the distinguished law firm of Williams and Conley
here in Washington; public service as a deputy county attorney,
and as U.S. Attorney for Utah, and long-time experience as a
very thoughtful scholar.
He has been on the faculty of the S.J. Quinney College of
Law at the University of Utah since 1985, where he is currently
the Hugh B. Brown Presidential Endowed Chair in law, and he
holds that chair.
Over the years, he has taught civil procedure,
constitutional law, evidence, First Amendment, and intellectual
property. In addition to being in the classroom, Scott also
serves the law school as an associate dean for academic affairs
and for 8 years as dean of the law school.
He also served on the advisory and governing boards of the
Hinkley Institute of Politics at the University of Utah, and
the selection committees for different fellowships and prizes
granted by the university.
He also served for 7 years on the Committee overseeing the
Tanner Lecture on Human Values, one of several nationally and
internationally renowned forums sponsored by the Tanner
Humanity Centers at the University of Utah.
The Tanner Lectures are given several times a year at
renowned institutions, including Oxford and Cambridge, Harvard,
Yale and Princeton, and the Universities of Michigan,
California and, most importantly, of course, Utah.
The range of lecturers is breathtaking, including Richard
Dawkins, Marion Wright-Edelman, and Solomon Ruschke, to Charles
Freid, Judge Richard Posner, and Supreme Court Justices Stephen
Breyer and, one of all of our favorites, I am sure, Anthony
Scalia; and I have to say Breyer is certainly in that category,
as well. Utahns are all very proud of this fine institution.
Scott has received a number of awards for his service in
this and other capacities, including the faculty achievement
and services award from the university and awards for his
service to the Federal Bar Association and the Utah Minority
Bar Association.
Scott is not the first of President Obama's judicial
nominees to come from the world of academia. Scott, however,
has as greater variety of experience, including the real world
practice of law, especially his service as a Federal
prosecutor. He is a man of integrity, ability and dedication,
and I personally know him very, very well and have nothing but
the highest opinion of him. He is a person who will distinguish
himself on the court, as he has in every other endeavor of his
life.
By the way, I am happy to see his wonderful mother here
today. It was not long ago she went through some trying times
and we were all praying for her. She is a wonderful leader in
Utah, one of the great women that we have out in our state;
and, also, his beautiful wife and other members of the family.
Above all, I am really happy to have his brother here. Jim
Matheson has been a Congressman in the House of Representatives
for a decade, and I think he is one of the finest people I know
and he is just a good person and a hard worker and a very good
Member of Congress.
So I am pleased to introduce this man of integrity and
ability and dedication as a nominee to the Tenth Circuit Court
of Appeals.
Mr. Chairman, I want to thank you for your kind courtesy to
me and I naturally expect kind courtesies to all these nominees
here today, and I know you are the type that will make sure
that happens.
Thanks so much.
Senator Cardin. Senator Hatch, thank you. You are always
very cordial in your introductions, and I do acknowledge
Congressman Matheson, who is here, who I had the opportunity to
serve with in the House.
We will now turn to Senator Mikulski.
PRESENTATION OF ELLEN LIPTON HOLLANDER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND AND JAMES K.
BREDAR, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF
MARYLAND BY HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE
STATE OF MARYLAND
Senator Mikulski. Thank you very much, Mr. Acting Chairman.
It is with a great deal of pride and enthusiasm that I
present, along with you, two outstanding Marylanders to be
nominated to the District Court of Maryland. I am proud to be
here today to introduce Judge Ellen Hollander and Judge James
Bredar.
It is a great honor that both you and I recommended these
two outstanding people to President Obama and we thank him for
their nomination.
I also wish to thank Senators Leahy and Sessions for
agreeing to such a prompt hearing on this matter.
Mr. Chairman, as you know, I take my advice and consent
responsibilities very seriously and the opportunity to
recommend to a President of the United States a nominee for the
Federal bench is indeed a great honor, but it is a great
responsibility.
My criteria are that any nominee must have absolute
integrity, judicial competence and temperament, a commitment to
core constitutional principles, and a history of civic
engagement in our own State of Maryland.
I am happy to report to the Committee that Judges Hollander
and Bredar meet these standards and they meet them in an
extraordinary way.
I want to also bring to the Committee's attention that it
is not just my opinion or even your opinion, Mr. Chair, but the
opinion of the American Bar Association. The ABA gave them a
unanimous--both of them--a unanimous well qualified
recommendation.
One looks at their background and sees that they bring
unquestionable competence and preparedness and a deep
understanding of how ordinary Americans live. They bring
seasoning in the law and sensibility in the application of the
law.
Judge Ellen Hollander, who was elevated in November--Judge
Hollander has the experience that makes her a top-notch
nominee. She has served Maryland state courts at both the trial
and the appellate level for more than 20 years.
She has served in a leadership role on the Maryland Court
of Appeals' Rules Committee and as a chair of the Appellate
Rules Committee.
Prior to taking the bench, Judge Hollander practiced law in
both the public and private sectors, including 4 years as a
prosecutor. She is a graduate of Georgetown Law, where she was
the editor of the American Criminal Law Review. She has
received her Bachelor of Arts from Goucher.
I know both of you are on the Goucher board. I have an
honorary degree from Goucher. I do not know if that counts, but
I will tell you, what Hollander does--Judge Hollander--really
does count.
Judge Hollander has received numerous community awards. I
will not list them, but what I want to bring to the Committee,
it is not the number of awards, it is the number of things that
she has done to get the awards; a strong advocate of women and
children; on the board of the Jewish Council, Community
Relations Council; making sure that we do many things to
advocate for the poor, the disenfranchised, and the
marginalized. She is, again, a very top nominee.
Judge Bredar, if confirmed, will fill the seat of Judge
Motz, as you have indicated. In him, we have a highly qualified
nominee, who has served the justice system from both sides, a
defense attorney and a prosecutor.
But he brings some unique background in the sense that he
was a Federal public defender for 6 years, where he revitalized
and expanded the office; and, before that, he was a prosecutor.
He would be the first Federal public defender to serve on the
Maryland Federal bench.
He also brings 12 years of judicial experience as a Federal
magistrate, and Chief Justice Roberts recently appointed him to
the Committee on Federal-State Jurisdiction.
He, too, is a graduate of Georgetown Law Center. He has got
a bachelor's degree from Harvard. I am sure he will get an
honorary degree from Goucher, as well.
[Laughter.]
Senator Mikulski. And he has himself been active in the
community, whether it is volunteering at children's schools,
being at PTA, he has been a soccer dad, and he has been an
advocate for keeping the courthouse door open for everyone.
Again, both bring the characteristics that one expects in a
judge, but I think, again, I will say they are so well
seasoned, but they are so sensible in the application of the
law, and that is what we are looking for in judges.
So I hope that the Committee unanimously reports them out,
and I hope that we can confirm them expeditiously.
Thank you very much.
Senator Cardin. Senator Mikulski, thank you very much. As
the Senator from Maryland, I just want to concur in Senator
Mikulski's comments about Judge Hollander and Judge Bredar. We
are very proud to submit our recommendations to the President.
We think we have brought forward two of the most talented
people we have in our state and the Nation to serve on our
Federal bench and we are very proud that they are willing to
step forward in public service.
With that, I want to recognize Senator Jack Reed.
PRESENTATION OF JOHN J. MCCONNELL, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND BY HON. JACK
REED, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Reed. Thank you very much, Mr. Chairman and Senator
Hatch and my colleagues on the Committee. I also want to thank
Senator Leahy and Senator Sessions for their prompt attention
to this nomination by the President of Jack McConnell to be
Rhode Island's next U.S. District Court Judge.
Senator Whitehouse and I are extraordinarily proud that the
President accepted our recommendation. And this is a proud day
for Jack's family, also, and his colleagues. More than 20 of
them are here today.
Rhode Island is vastly underpopulated, but it is worth the
effort.
[Laughter.]
Senator Reed. They all have reason to be proud. Jack's
mother, Jane, is here; his father-in-law and mother-in-law,
Justice Donald and Ursula Shea. I might say that Justice Shea
is a retired member of our Rhode Island Supreme Court, one of
the most distinguished members of our Rhode Island Supreme
Court, whose example of integrity and intelligence continues to
resonate through the legal chambers of Rhode Island.
Jack himself matches that sense of integrity and
intellectual excellence. He is extraordinarily qualified as an
attorney. He is perhaps one of the handful of attorneys in
Rhode Island who have ranked among the very best in the United
States.
There is no doubt, in my mind, about his ability to be a
district judge. He has exceptional skills, impartiality, and
professionalism, and I fully expect Jack to be an outstanding
jurist.
Indeed, a broad array of Rhode Islanders, clergy, business
people, Republicans, Democrats, corporate attorneys, defense
attorneys, have come forth voluntarily and recognized and
expressed their support for Jack.
They support him because he is an outstanding attorney. He
has represented a variety of clients. He has done so with
great, great legal skill and great integrity, and he will do
that as a district court judge, represent the people of the
United States with skill and integrity.
You can read his resume and find out all the cases and all
the professional data, but I want to talk about Jack McConnell
as a person. He is someone who is deeply committed to helping
his community, not simply by donating and attending social
events and charitable events.
You will find Jack in the community. He, every Monday,
serves breakfast at Amos House, our soup kitchen, our biggest
soup kitchen. We have something in common. I started out as the
pro bono lawyer for Amos House about 25 years ago.
It is not attention-getting. It is just innately decent and
caring of his community, and that is Jack.
He has learned his lessons from his father and mother. His
father was a Marine in Korea, came home, built a strong family,
and gave Jack, along with his mother, Jane, the inspiration to
work hard, but not simply for his own ambition, but for a
better community.
He has done this. He has juggled his family life. He has
made time to be a big brother for about a decade to a young man
in the poorer part of our capital city of Providence. He has
taught First Communion classes. He has been a volunteer at the
homeless legal clinics in Providence and Pawtucket.
He has served as a key member of the board of Crossroads,
which is our largest homeless organization in the state. He has
been a chair of the Providence Tourism Council. He has worked
tirelessly not only as an attorney, but as a citizen. And these
are the type of contributions that give him the perspective to
sit on a court, to be a judge who understands the people who
are before them; not just the wealthy, but every person who
stands before him.
His innate sense of fairness, his innate sense of decency
will make him a superb judge, and I am very enthusiastic in my
support.
I join my colleague, Senator Whitehouse. I thank him for
his excellent work here and his collaboration in this
nomination. Senator Whitehouse, thank you.
Today, we are here proudly to ask this Committee for its
consideration of a great lawyer and a great man.
Thank you, Mr. Chairman.
Senator Cardin. Thank you, Senator Reed. And, Senator Reed,
you are certainly excused to leave.
The remaining introductions will be done from the dais,
since they are members of the Judiciary Committee, starting
with Senator Whitehouse.
PRESENTATION OF JOHN J. McCONNELL, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND BY HON. SHELDON
WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Mr. Chairman. I am very
proud to join my senior Senator, Jack Reed, in introducing Jack
McConnell to the Committee.
As was the case with Judge Rogeiree Thompson, who was
confirmed in March to a seat on the First Circuit Court of
Appeals, it was a great pleasure for me to participate in
Senator Reed's process to identify the best candidate for a
judgeship on the U.S. District Court for the District of Rhode
Island.
I was proud to join him in recommending Jack McConnell to
President Obama, and thank the President for recognizing in
Jack McConnell the qualities that will make him a tremendous
addition to the Federal bench in our state.
Jack McConnell's life has been a classic American story of
success through hard work. As Senator Reed mentioned, Jack was
born in Providence, grew up in Warwick, Rhode Island, graduated
from Brown University, and, after college, earned his J.D. from
Case Western Reserve University School of Law, before returning
to Rhode Island in 1983 to clerk for Associate Justice Donald
F. Shea of the Supreme Court of Rhode Island.
This clerkship was more eventful than Jack expected, as he
later married Justice Shea's daughter in 1986. Jack has since
become a leading light in Rhode Island's bar and a leader
within our community. He has generously supported and served on
countless boards of educational, charitable, and artistic
institutions across our state, including Save the Bay, the
Genesis Center, the Providence Tourism Council, Crossroads
Rhode Island, the Trinity Repertory Theater, and Roger Williams
University. Our state has benefited greatly from that public
service.
Jack now is nominated to undertake another type of service
for which he is impeccably qualified. There is no question that
he has the legal expertise and experience necessary for service
as a district court judge.
He has tried scores of cases nationwide, an ideal
qualification for a district court nominee. He understands
motion practice. He has experience in criminal and civil cases,
and he quickly grasps the most complex and novel legal issues.
I know Jack's qualifications are first rate, because I
worked with him when I served the people of Rhode Island as
their attorney general. At the time, Rhode Island faced a
public health crisis from lead poisoning. Providence was
described by our lead newspaper as the ``lead paint capital of
America.'' This was attributed to high levels of lead in paint
in older homes.
As attorney general, I sought relief from lead paint
manufacturers to help Rhode Island families whose children bore
the brunt of this scourge.
When I worked with Jack in a case where I was deeply
involved as leader of the litigation team, I saw a capable
attorney of the highest integrity and character, who
understands and follows the highest principles of our legal
profession.
Jack also has been active for years in Rhode Island
democratic politics. Over the years, he has been with me and he
has been against me. He understands now that those days of
politics are over. He understands very closely, from his
father-in-law's experience, also a Democrat-turned-judge, how
important it is that he put aside those things as he enters
this higher calling.
It is this principled understanding of the role of our
courts that particularly recommends Jack to the Committee's
consideration and that has called forth such extensive and
remarkable support from the Republican community in Rhode
Island.
I have no doubt that Jack will be an impartial judge and
that he will uphold the law and apply it conscientiously to the
facts of each case.
The touchstone of our legal system is equal justice under
law. I am confident that Jack McConnell will meet that standard
as a judge.
In sum, Jack is an exceptionally qualified nominee who will
make a fair, talented, and honorable judge.
I thank the Committee for holding this hearing. I thank the
Chairman. And I look forward to Jack's ultimate confirmation
and service on our local district court.
PRESENTATION OF SUSAN RICHARD NELSON, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA BY HON. AMY
KLOBUCHAR, A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. [Presiding.] Thank you very much,
Senator Whitehouse. Senator Cardin went to vote, and so we are
all going to be rotating in and out here, as a vote has been
called.
But it is my distinct pleasure to introduce and endorse
Susan Richard Nelson as the President's nominee to become a
Federal district court judge for the district of Minnesota.
She is here with her husband, Tom, way back there behind
all the people from Rhode Island, Sheldon, I think, right
there.
I always like to tease Senator Whitehouse that the State of
Rhode Island is always used for comparative purposes, like the
iceberg that let loose was the size of Rhode Island. Now we can
say there are enough people in here to fill the State of Rhode
Island.
She is also here with her oldest son, Rob, and her younger
son, Michael, who I understand is a junior at St. Olaf College
in Minnesota, who should be studying for his finals. So I was
picturing the two of them last night, he is studying for his
finals, while his mom is studying for this hearing. So I do not
know what would be harder.
Susan Richard Nelson has been a magistrate judge in the
district of Minnesota for the last 10 years, where she has
earned the respect of litigants, lawyers, and judicial
colleagues alike.
I can say unequivocally that she has the judicial
temperament, the personal integrity, and the keen legal mind
that are absolute prerequisites for being a great judge.
Judge Nelson was born in Buffalo, New York and graduated
from Oberlin College with high honors in 1974. She received her
law degree from the University of Pittsburgh, where, by the
way, Senator Hatch attended. She received her law degree in
1978, where she was a member of the esteemed Order of the
Barristers.
Prior to becoming a magistrate judge in 2000, Judge Nelson
was a civil litigator in private practice for 22 years. Judge
Nelson is extremely qualified to be a district court judge in
Minnesota. She has more than three decades of legal experience,
though, of course, the last 25 were really the best, because
they occurred in Minnesota.
Her decade of experience as a magistrate judge has given
her excellent preparation for the role of district court judge.
In addition to conducting hearings, ruling on motions, and
conducting settlement negotiations, she has also presided over
multiple trials.
In essence, she will be ready to fill her position her
first day on the job.
Throughout her tenure as a magistrate judge, Judge Nelson
has gained a reputation as a fair, but stern judge, one who is
thorough and prepared. She has been described as a judge who
favors neither plaintiffs nor defendants, who listens carefully
to both sides of every matter she hears, and who can be relied
upon to give articulate, well reasoned explanations for her
decisions.
Judge Nelson was highly recommended to this Committee. She
was initially recommended by a judicial selection committee,
consisting of Minnesota attorneys, judges, and members of law
schools. That judicial selection Committee received countless
letters and e-mails in support of Judge Nelson.
Moreover, the ABA standing Committee on the Federal
Judiciary unanimously rated Judge Nelson as well qualified.
This is the highest rating that the Committee awards.
Judge Nelson is also involved in a variety of civic and bar
activities. She is currently a member of the Minnesota Women's
Lawyers Advisory Board and served as the group's president. She
often represents the organization at speaking engagements and
has written a column for the group's monthly newsletter for
quite a while.
In addition to her work with the Minnesota Women's Advisory
Board, Judge Nelson has served as a mentor for disadvantaged
kids.
I also wanted to mention the importance of this nomination
to the district of Minnesota generally. Our district's caseload
has increased significantly in recent years. From 2008 to 2009,
the district saw a 54 percent jump in the number of civil cases
filed.
With over 5,000 civil cases currently pending and only six
judges on full-time status to deal with those cases, not to
mention the docket of criminal cases on top of that, our
district really needs Judge Nelson to be confirmed quickly.
I believe that Susan Richard Nelson will make a fine
Federal district court judge for the district of Minnesota. It
is my honor to introduce her to the Committee, and I urge her
swift confirmation.
At this point, because of the vote and because I need to
vote, we are going to recess the hearing for a few minutes for
Senator Cardin to return, and then I know that Senator Franken
is also going to give an introduction for Judge Nelson.
So I recess this hearing, subject to the call of the chair.
I am missing a gavel, so I guess I will use Senator Specter's
name thing. There we are.
[Whereupon, at 3 p.m., the hearing was recessed.]
PRESENTATION OF SCOTT M. MATHESON, JR., NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY THE HON. RUSS FEINGOLD,
A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Feingold. [Presiding.] Call the Committee back to
order.
When Senators come back from vote, we will start the
hearing again. I am Senator Feingold from Wisconsin, and it is
my pleasure to speak in support of Scott Matheson, Jr., who
President Obama has nominated to fill a vacancy on the U.S.
Court of Appeals for the Tenth Circuit.
I have known Scott as a close friend for many, many years.
We first met as students together at Oxford. Scott has a rare
combination of intellect, legal knowledge, experience, and
probity that makes him perfect for an appellate court
judgeship.
I could not possibly recommend anybody more strongly. From
1993 to 1997, Scott served as U.S. Attorney for the District of
Utah. Faced with challenging cases, he developed legal
positions that revealed his extensive knowledge of the law and
unwavering fair-mindedness.
A particularly revealing example is when a U.S. Supreme
Court decision, Hagen v. Utah, in 1994, threatened the
viability of Federal criminal convictions for crimes committed
on the Indian reservation in eastern Utah. The Court found that
the reservation was a patchwork of mixed state, private and
Federal land.
So the issue facing the courts after Hagen was whether the
Federal Government had jurisdiction when the crimes were
committed. Scott recognized that it would have been legally
improper to sustain convictions rendered by a court without
subject matter jurisdiction, but it also would have been
manifestly unfair to void otherwise valid convictions and force
victims to go through new trials.
Scott was able to find an answer that honored the Supreme
Court decision, but protected all of the otherwise valid
convictions, stretching back decades. So in the words of
Scott's first assistant, David Schwendiman, with whom my staff
communicated, quote, ``It was brilliant legal work, but typical
of Scott. Scott's excellence was well recognized among his
colleagues.'' According to David Schwendiman, ``When it came
down to it, Scott was the finest lawyer in the office and, in
my view, probably the best tenth circuit advocate. When we were
in the courtroom in the trial that we did together in the tenth
circuit, he was truly the person who knew more than anyone else
in the courtroom both about the law and the facts. It will be
the same if he is appointed to the bench.''
There are many judges in the Federal Court of Appeals with
excellent academic credentials, and Scott's match up with the
best of them. I know Senator Hatch has already reviewed those,
so I will not go over that again. But I am, of course, very
aware of his accomplishments.
Scott has been deeply involved, as well, in Utah politics,
and, in my opinion, he was born to be a judge. Beyond his
outstanding intellect and experience, his fair-mindedness and
probity make him perfect for the role.
Scott never hesitates to do the right thing, even when it
is unpopular. I believe Scott Matheson is an outstanding
nominee and will be an outstanding judge, and so I am very
pleased that the President has nominated him and I am proud to
support him today.
Thank you, Mr. Chairman.
Senator Hatch. Mr. Chairman.
Senator Cardin. [Presiding.] Senator Hatch.
Senator Hatch. After listening to Senator Feingold, I am
starting to have some doubts here.
[Laughter.]
Senator Feingold. That was my only hesitation.
Senator Hatch. No. That is great praise and I am very
grateful that you would take time to come and talk about our
great nominee.
Senator Cardin. Senator Franken.
PRESENTATION OF SUSAN RICHARD NELSON, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA BY THE HON. AL
FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Franken. I told you to finish before he got here.
[Laughter.]
Senator Franken. Mr. Chairman, I am just very proud in
joining my senior Senator, Senator Klobuchar, in introducing
Judge Susan Richard Nelson, the nominee for the U.S. District
Court for the District of Minnesota.
I would like to thank Chairman Leahy and Senator Sessions
for moving quickly to schedule this hearing. I would also like
to congratulate all the nominees here today on this great
honor, and thank you and your families for being with us today.
Judge Nelson, I am just so pleased that you can be with us
today. You are an extraordinarily qualified nominee and you
make our state proud. I also want to welcome your husband, Tom,
and your sons, Rob and Michael, to this hearing today.
Judge Nelson graduated from Oberlin College, and I missed
Senator Klobuchar's introduction. I hope I am not covering a
lot of the same territory, but this is the day this is
happening, so why not hear that you graduated with high honors
twice, and went on to the University of Pittsburgh Law School.
She practiced law for more than 20 years, gaining
experiences in many areas of the law during her time as a
partner at Robins, Kaplan, Miller and Ciresi in Minneapolis.
Judge Nelson was named a Super Lawyer, one of Minnesota's
leading lawyers, for five consecutive lawyers. For the past 10
years, she has served as a U.S. magistrate judge in the
Minnesota district court. Judge Nelson's decisions while
serving as a magistrate judge illustrate her strong commitment
to justice and to the rule of law.
She has decided a wide range of cases on topics ranging
from employment discrimination to deceptive trade practices.
She conducts settlement conferences nearly every week, and has
presided over several cases to verdict.
Minnesota has a strong tradition of fighting for access to
justice and Judge Nelson has upheld this principle during her
time as magistrate judge. In 2005, the Hennepin County Bar
Association gave her the judicial professionalism award, which
is given to the judge who, quote, ``best exemplifies the
pursuit of the practice of law as a profession, including the
spirit of public service and promotion of the highest level of
competence, integrity, and ethical conduct.''
Are you still with us, Senator Hatch? That is good, right?
Senator Hatch. I have to admit, you have been stultifying
me a wee bit here.
Senator Franken. All right. I am sorry.
Senator Hatch. But I want you to know I am all ready for
your nominee, because she----
Senator Franken. Then why am I even continuing?
Senator Hatch. Wait, wait, wait. She graduated from the
University of Pittsburgh and I think Senator Cardin might very
well be, too.
Senator Cardin. We sort of have a bias toward University of
Pittsburgh up here.
[Laughter.]
Senator Franken. Well, I do not feel one way or the other
about it, frankly.
[Laughter.]
Senator Hatch. That is typical. I understand that.
Senator Cardin. The Senator's time has expired.
[Laughter.]
Senator Franken. I ask for another 2 minutes.
Judge Nelson is also a former president of Minnesota Women
Lawyers and deeply involved in her community. She has supported
a wonderful organization that I have worked closely with,
Minnesota Advocates for Human Rights. She is also involved with
the Bloomington, Minnesota American Legion, the Minneapolis
Jewish Community Center, and the Bloomington Classic Baseball
League, among other civic organizations.
This diversity of experiences has helped her understand law
and the community from many different perspectives, a quality
that will serve her well as a district court judge.
As a district court judge, Judge Nelson will continue to
have many of the responsibilities she has performed so
admirably for the past decade. Judge Nelson has been rated,
quote, ``unanimously well qualified'' by the American Bar
Association, the highest rating possible.
I urge my colleagues on the Committee to support her
nomination, and I look forward to quick action both in
Committee and in the full Senate.
Thank you, again, Judge Nelson, for being here. And thank
you, Mr. Chairman, for the opportunity to introduce her.
Senator Cardin. Thank you, Senator Franken.
We now will proceed to our first panel, which will be Scott
Matheson.
[Witness sworn.]
Senator Cardin. Mr. Matheson, you may proceed. But as is
the tradition of our Committee, if you have family members that
are with you, it would be appropriate to introduce your family.
We know this is a family effort.
STATEMENT OF SCOTT MATHESON, NOMINEE TO BE UNITED STATES
CIRCUIT COURT JUDGE FOR THE TENTH CIRCUIT
Mr. Matheson. Well, thank you very much, Mr. Chairman. And
it's an honor to be here and I'm delighted to introduce family
members who are with me this afternoon.
I will start with my wife, Robyn, who is seated directly
behind me. And to her left is my daughter, Heather. My son,
Briggs, is here in spirit, but he's a first year law student at
Stanford and I told him he had to stay in California and go to
class. And I hope I can get some Committee support on that
decision, because he wasn't happy about that.
My mother is here. She's been mentioned several times
during the course of these proceedings. She arrived in
Washington last night, promptly slipped at the Metro and
dislocated her finger. But she's OK. I just hope that isn't an
omen for the hearing. But I'm pleased that she could join us.
I'd like to mention my father. We lost my father almost 20
years ago. We think about him and we miss him every day and
especially on this day.
My brother, Jim, was here earlier. He was introduced. He
had to ask to be excused. And I'd like to mention my brother,
Tom, who lives in Tucson, Arizona, and my sister, Lu, who lives
in Salt Lake City.
Also joining us today are many friends, colleagues, former
colleagues, students, former students, and, via online, many
colleagues and friends out in the State of Utah, and I
appreciate their interest and support.
I'd also like to thank and acknowledge the introductions on
my behalf by Senator Hatch. That's the kind of introduction
that would make anybody's mother blush, and I think she did,
and then Senator Feingold did the same thing.
So I appreciate very much what both of them had to say, and
especially the bipartisan support that those statements
represent.
With that, Mr. Chairman, I'll turn it back to you and I
look forward to answering the Committee's questions.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Well, thank you. And we certainly do
appreciate the introductions and support that has already been
shown on this Committee.
Let me start with a question I think is relevant,
considering that the President recently nominated Elena Kagan
to the Supreme Court and then she would be coming to the
Supreme Court without judicial experience; that your nomination
is to the court of appeals, the appellate court, and you have
not served in a judicial capacity.
One is very impressed with your background and your
experience in the positions that you have held in the legal
community.
Do you think it is a concern that you have not served on
the district court or in a circuit court going to the court of
appeals?
Mr. Matheson. Well, thank you, Mr. Chairman. I am pleased
to be able to address that question.
I would start out by saying that I feel that I have been
extremely fortunate in my career to have some extraordinary
opportunities, ranging from private practice at a leading law
firm to prosecuting in our State courts in Utah, to serving as
the U.S. attorney, serving as dean of a law school, and
participating in a multitude of law reform efforts.
I couldn't have asked for better opportunities than that.
It's been a very satisfying career up to this point, and I
think that that blend of experience and those opportunities to
make judgments and to work hard on legal issues and to work
with others on a variety of law-related projects will serve me
well on the bench.
And I think that those experiences will serve as a
substitute, I suppose, for having served as a judge. I
understand that that's very good and relevant experience
leading into a position of this nature.
Senator Cardin. As a judge, you have to decide cases based
upon the law. But the oath that you take indicates that you
will execute justice to the poor and to the wealthy, that there
be no distinction.
The fairness of our system sometimes is skewed when someone
does not have the ability to pursue their case in court. How do
you interpret your position as a judge carrying out the oath
that you would take to dispense justice equally to the poor?
Mr. Matheson. Well, I think, Senator, that the oath
requires a critical quality, and that quality is impartiality.
And it also means that a judge has to have a full commitment to
the rule of law, to impartial application of law to the
evidence that has been admitted in the particular case, a
commitment to procedural due process, and to open mindedness.
And I think it also requires deference to the other
branches of government and, also, I think, constant vigilance
to ensure that the law is applied and that the judge's personal
and political views are not involved in the application of the
law to a particular case.
I think if the judge follows those principles, that equal
justice and meeting a judge's responsibilities and, most
importantly, as you started out, meeting the oath will be
fulfilled.
Senator Cardin. I am not familiar with Utah, I am with
Maryland, as to the responsibilities of lawyers to participate
in pro bono and to provide help to those who otherwise would be
denied access to our courts.
Do you see a role that the courts can play in promoting
adequate representation for all people in our system?
Mr. Matheson. I think there is, Mr. Chairman. First, let me
say that the Utah Bar has a strong record in this area and the
legal community in my State has stepped up and fulfilled the
responsibility that you just described in many, many ways.
I've had the privilege to participate in a number of those
activities, such as the And Justice for All campaign in our
community that supports our legal services agencies. As dean of
the law school, I was involved in developing a pro bono
initiative, which matches up students with practicing lawyers
to meet under-served legal needs of our community. And our
judges in the State have stepped forward and encouraged
programs and lawyers to participate in these activities.
And I feel that I've been part of that tradition and to the
extent that it is consistent with the judicial role, would like
to continue in that respect.
Senator Cardin. Thank you.
Senator Hatch.
Senator Hatch. Let me just ask one question, and it is an
important one, certainly, and we are welcoming you to the
Judiciary Committee of the U.S. Senate. And I want to thank you
and your family for your commitment to service to our State and
to our country, as well.
Let me just ask you a question concerning judicial
philosophy, because I know that this has to be asked. I
understand that to mean your understanding of the power and
proper role of judges in our system of government involves
judicial philosophy.
Now, in 1991, for the 200th anniversary of the Bill or
Rights, you wrote a piece for the Salt Lake Tribune arguing
that, quote, ``There is an unmistakable link between our
established constitutional values and basic human needs,''
unquote.
Because you referred to, underlined, constitutional values,
that naturally raises this question--whether judges, as opposed
to legislators, may act to help meet those needs.
For example, one scholar has argued that constitutional
provisions, such as the guarantee of equal citizenship, make
the Constitution literally a generative source of substantive
rights. Now, that sounds as if judges can recognize new rights
that they think will meet human needs.
Would you care to comment on that?
Mr. Matheson. Yes. Thank you, Senator Hatch, for that
question, and I think it raises a very important issue.
I would say, first of all, that I have never taken the
position that you just described and that the provision of
opportunity mentioned in the article that you just described is
a responsibility for the legislature to address.
I've always viewed the Constitution as providing for
protection for individual rights against government
interference as opposed to providing affirmative rights, and
that has been my consistent position as a constitutional law
teacher and scholar.
I think you put it well last week in the speech that you
gave to the Cato Institute, where you said that it's important
to recognize the principle that it isn't judges who control the
Constitution, it's the Constitution that controls the judges,
and that resonated with me. I believe in that principle and
it's one that I would take to the bench.
Senator Hatch. Well, thank you. If we have any other
questions, we will submit them in writing.
Mr. Matheson. Thank you.
Senator Cardin. Thank you.
Senator Feingold.
Senator Feingold. Nothing.
Senator Cardin. Senator Kyl.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Let me first begin by asking you a question about your
book, Presidential Constitutionalism in Perilous Times. You
argued, and I am quoting here, ``The Presidency requires a
constitutional conscientiousness that was lacking in the George
W. Bush administration that must be inculcated in the future.''
Could you give me some examples?
Mr. Matheson. Well, my concern that was expressed in that
statement, Senator, is a separation of powers concern and the
relationship between separation of powers and individual
rights.
The book, by the way, is a book about several Presidents
that faced security and liberty interests in times of war and
national security threat.
Senator Kyl. Let me just get to the point here. You are
accusing them of not caring about the Constitution.
Constitutional conscientious, a lack of consciousness about or
thought about or concern about. That is kind of a tough charge
against people who tried very hard to be good public servants.
Can you give me an example?
Mr. Matheson. Well, the examples talked about in the book
occurred during the first--mostly during the first term of the
Administration and had to do with the lack of collaborative
policymaking effort in the areas of torture, national security
surveillance, and detention.
And the analysis speaks mostly to the question of why the
Administration didn't work more closely with Congress in
developing those policies.
Senator Kyl. With all due respect, though, if the President
has constitutional authority to execute a war, it may not be a
good idea or good policy not to communicate more robustly with
the Congress, but that doesn't mean that it lacks
constitutional conscientiousness or, in other words, that it is
overriding its powers.
Let me just give you an example of what I thought you were
getting at. You wrote that when President Bush issued his
November 13, 2001 military commission order, he claimed
lawmaking, adjudicating, and prosecuting authority, conflating
separation of powers under the commander-in-chief mantel.
Historically, this planting of executive, legislative, and
judicial powers in one person or, even in one branch of
government is ordinarily regarded as the very acme of
absolutism.
Now, are you contending or did you contend in that book
that the President, in the exercise of his authority as
commander-in-chief of our armed forces in the middle of a
military conflict, must require Congress' approval when dealing
with foreign enemy combatants on enemy soil?
Mr. Matheson. Senator, let me try to clarify that point a
little bit more. What I was trying to get at with respect to
military commissions, which eventually was recognized by the
Supreme Court in 2006 in the Hamdan case, is that the President
ended up acting unilaterally in establishing the commissions
and, as it turned out, under the Uniform Code of Military
Justice, there was a Congressional limitation on how those
commissions could or should be established.
And that was challenged and then, of course, several years
later, the Supreme Court struck down the commissions----
Senator Kyl. But the Supreme Court did not strike down the
President's authority to establish a military commission.
Mr. Matheson. Well, they left that question open.
Senator Kyl. Right. But that is what you were criticizing
him of doing here, of setting it up. Now, there may have been
some infirmities in it, and it may have been a better idea for
him to--and, in fact, ultimately, Congress did work with him
and modify it somewhat and this Administration currently
believes that we can operate under that authority.
So, part of what you wrote here suggests that he does not
have the authority to do it. That is the thing that I am
wondering about. It is not maybe that it was not a great idea,
it is exactly how he did it or that he should have consulted
with Congress.
Mr. Matheson. Well, Senator, I think what I was trying to
suggest is that, as the Court explained in Hamdan, we didn't
have a situation where Congress had not spoken. Congress had
spoken.
And if we were in the hypothetical situation where Congress
had said nothing on this issue, it's in that context that the
Court left the question open whether the President could act.
But even in that context, Justice Kennedy was very careful
to point out that an executive establishment of a court and the
rules of that court and the sanctions of that court should
raise issues of constitutional concern concerning separation of
powers. That's the point I was trying to make.
Senator Kyl. You argued, from the same source, ``The
executives claimed that it could arrest and lock up individuals
suspected of terrorist ties without charge, without counsel,
without due process, and without any prospect of release until
the war on terror is over evaded the rule of law in a war that
is supposed to preserve the rule of law.''
Did it turn out that the Supreme Court agreed with you?
Mr. Matheson. Well, they did, actually, up to a point in
the Hamdee case.
Senator Kyl. Did not the Hamdee court say that you could
hold a prisoner until the end of the conflict?
Mr. Matheson. They did, but not without the provision of a
due process hearing to challenge the validity of the detention.
Senator Kyl. So what you are saying is they are only
without due process, as later the Hamdee court ruled--in other
words, you do not deny that the President has the authority to
hold and to arrest, to lock up, as you put it, terrorists
without charge.
Mr. Matheson. Well, I would include the issue of charge and
the validity of detention as part of the due process
consideration.
Senator Kyl. So you think a person has to be charged, that
a terrorist who is captured on a battlefield has to be charged
with a crime?
Mr. Matheson. No. What I was trying to explain is that a
person in Hamdee's position--of course, he was a citizen, we
know.
Senator Kyl. Right.
Mr. Matheson. Would have an opportunity to contest the
detention and, as part of contesting the detention, the reason
for the detention would, I think, be part of that discussion.
Senator Kyl. Well, that is different from what you said.
They do have the right to contest and there is a review even
under the original authority that the President exercised with
respect to terrorists held at Guantanamo on status.
But what you are saying here is that the executive's claim
that it could arrest and lock up individuals suspected of
terrorist ties without charge and without counsel--now, you say
without due process, that later got interpreted--and without
any prospect of release until the war is over evaded the rule
of law.
But the Court says that all three of those things are
appropriate.
Mr. Matheson. Well, I suppose that, Senator, I'm trying to
put those concepts together and I see a due process interest
maybe a little more broadly that you're suggesting.
But I would cite to the Hamdee case as validating that
point.
Senator Kyl. I would cite to the Hamdee case as contesting
it. I am over my time. I just had one other series of
questions, but I am happy to yield.
Senator Cardin. Senator Whitehouse.
Senator Whitehouse. First of all, welcome, Dean Matheson.
It is good to have you with us. You served as United States
attorney. We have, obviously, confirmed you before for
positions of significant responsibility, and I welcome you
back.
Could you describe a little bit the nature and extent of
your appellate court practice during the course of your career?
Mr. Matheson. Well, I'd be happy to do that, Senator. And
it's good to see you again. We overlapped as U.S. attorneys,
and Senator Whitehouse was clearly one of the leaders of our
U.S. attorney group. So it's good to be back with you this
afternoon.
Senator Whitehouse. He only says that now.
Mr. Matheson. As to your question about appellate practice,
as the U.S. attorney, I argued a number of cases before the
Tenth Circuit. Senator Feingold described one of the more
significant cases involving the preservation of a multitude of
convictions against collateral attack that were being
challenged as the result of a Supreme Court case. And we worked
very closely with the Justice Department, because it was a
challenging issue.
I argued other cases before the Tenth Circuit, including an
en banc case involving a Fourth Amendment issue, and I argued a
case that I was also involved as the trial lawyer. It was a
homicide case that we tried in Federal district court in Salt
Lake City. And what made the case particularly interesting is
it was the first case in the history of our state where we used
two juries, because of an evidentiary issue.
There was a problem under the Supreme Court decision of
U.S. v. Boutin, and rather than severing the cases, we tried
them together, and that was an interesting experience and we
took that case up on appeal to the tenth circuit.
I have to say that my practice experience before that court
has been some of the most professionally satisfying of my
career. I thoroughly enjoyed it. It's how I've gotten to know
that court and come to respect it so much and why it's such an
honor to be nominated to serve on that court.
Senator Whitehouse. Well, you have magnificent
accomplishments and I am delighted that you are here. I wish
you well.
My last question is how many of you there are who are sixth
generation Utahans.
Mr. Matheson. Well, you'd be surprised how many there are.
[Laughter.]
Senator Whitehouse. I will leave it at that.
Senator Cardin. Senator Franken.
Senator Franken. Thank you, Dean. I am very impressed that
you have taken time from your work as a professor and a dean to
serve both as a local prosecutor and a U.S. attorney, as
Senator Whitehouse mentioned.
What impact do those experiences have on your understanding
of the criminal justice system and how will that impact or
influence you, if you are confirmed, at the appellate court?
Mr. Matheson. Well, I've learned a great deal from those
experiences and I think I'll mention just a few of the lessons
learned. But I think one of the most important is that I have
great confidence in our system of criminal justice in this
country at both the state and Federal levels.
For one thing, we have such a strong bench in our state, as
Senator Hatch knows, in the state courts and the Federal
courts, just outstanding judges.
But perhaps most important is a sense, a very deep sense of
how conscientious and how committed all the participants in the
process almost always are, very professional, take their roles
very seriously, whether it's a prosecutor, a defense attorney,
a clerk, jurors.
I think that there's a seriousness that is needed in the
criminal justice system and I've seen it in action, and I have
a lot of respect for each and every person who is involved in
that process, because they come to it each day and they come to
it to do as good a job as possible, because they recognize that
whatever their role is, if they do it well, that contributes to
how effective the system is.
So I came away from experience as a prosecutor and as a
U.S. attorney with that lesson in mind.
Senator Franken. As Senator Cardin referenced, you have
written about the importance of responding to the legal needs
of low income and middle class people in our society. How did
you develop your commitment to access to justice? Is there any
one series of events or is this something that you observed or
a value that you got from your parents?
Mr. Matheson. Well, thank you, Senator. I think I'd start
out by saying all of the above. I think growing up in my
family, we were always taught about commitment to service. That
was inculcated early on, but that continued through law school
and during the early years of practice and it's just always
been a part of my commitment, my priority, and what I've wanted
to do.
And I've had some terrific opportunities to participate in
that area, going back quite a few years, when I was actually
quite a young lawyer. I was asked to serve on the Legal Aid
Society of Salt Lake City and became the president of their
aboard.
And during the time I served with them, we developed a
domestic violence program for our community that I think is a
model to this day and I'm very proud of having been involved in
programs like that.
Senator Franken. Well, thank you. I have heard enough. No
more questions. And you are very impressive, sir. Thank you.
Mr. Matheson. Thank you, Senator.
Senator Cardin. Just as a follow-up to Senator Kyl's point,
the book that Senator Kyl was referring to, Presidential
Constitutionalism in Perilous Times, you analyzed Presidents,
if I understand it, Lincoln, Wilson, Franklin Roosevelt,
Truman, and George W. Bush. That was all five, I guess, that
you were comparing.
And then you draw a conclusion, which is very similar to
the
9/11 Commission's report, that I just really want to put in the
record, because I agree with it and there might be some
interest in that, that Presidents generally have focused on
national security in times of crisis and not on civil
liberties, and they need to focus on both, which is exactly
some of the findings of the 9/11 Commission.
I would hope that I will find the time to be able to read
that book. It sounds very interesting.
Mr. Matheson. Thank you.
Senator Cardin. Senator Kyl, did you want a second round?
Senator Kyl. Yes, I do, Mr. Chairman. I have a set of
questions. Just as a final point, and maybe since I asked you
if you could give me some examples, that might have caught you
just a little bit unawares, I will just ask a question for the
record and you are free to take time and provide a written
answer, if you would like to do that.
But the final point on this question, the little debate you
and I were having about Hamdee and so on. Assume that there is
an initial determination of status and that there is an at
least one time habeas review, which the Court said would exist.
Do you believe that criminal charges, provision of counsel,
and some other prospect of relief is required for due process
or required by due process for foreign terrorists who are
captured on the battlefield and detained in place like
Guantanamo?
Mr. Matheson. Well, Senator, as you'll recall, Justice
O'Connor addressed, in part, what she thought due process might
require, but didn't go into great detail on that issue and I
think that issue may still be with us up to a point in terms of
how detainees--and, again, the distinction in that case was
drawn between a citizen detainee as opposed to a non-citizen
detainee.
So I think my answer, Senator, would, as so often happens
in these matters, depend on a combination of facts and
circumstances and if asked to confront it in a judicial
capacity, would do so with an open mind.
And these are difficult issues, as you know. They've been
debated back and forth now for quite a number of years and it
has continued into this administration.
Senator Kyl. Did the habeas or the resulting requirement
for habeas depend upon citizenship status?
Mr. Matheson. Well, as you know, after Hamdee, there were
other cases and there was the Rasoul case, which recognized a
habeas opportunity for the Guantanamo detainees, but under the
Federal habeas statute.
Then we had legislation that stripped jurisdiction for
habeas review, but the administration did institute the combat
status review tribunals. But then we moved up to the Boumediene
case, which has resolved some issues, but raised several
others.
So we're talking about a fluid situation in this area.
Senator Kyl. But further established the habeas right.
Mr. Matheson. In Boumediene.
Senator Kyl. Right.
Mr. Matheson. Yes.
Senator Kyl. Let me just switch total subjects. This book
Professor Carlin co-authored, I am just going to quote from it,
argued that interpreting--I am quoting now--``Interpreting the
Constitution requires adaptation of its broad principles to the
conditions and challenges faced by successive generations. The
question is not how the Constitution would have been applied at
the founding, but rather how it should be applied today in
light of changing needs, conditions, and understandings of our
society.''
Are you generally familiar with that?
Mr. Matheson. Well, I haven't read that book, Senator, or
what she wrote.
Senator Kyl. Well, I would just ask you what you think
about it, then, or do I need to repeat it?
Mr. Matheson. No. I think I understand the question and I
hope I can be helpful with a response.
I view the Constitution as establishing, in its text, and
everything, I think, starts with the text, but establishing a
structure of government and a set of relationships within and
between governments and between the government and individuals.
I think those principles were established at the beginning
and that the framers intended that document and those
principles to endure and to serve us in addressing situations
that would be new and unanticipated, and I think that that
document has served us well in that respect.
I don't see the structure or principles changing. I see
circumstances that have to be confronted as changing. I
recently was reading the Second Amendment case, the majority
opinion in Heller, and Justice Scalia was responding to a claim
that the Second Amendment should only apply to those arms that
were in existence in the 18th century. And, of course, he
rejected that claim and pointed out that the First Amendment
has been applied to modern forms of communication and the
Fourth Amendment has had to be applied to modern forms of
search, and the Second Amendment, likewise, has to be
interpreted in light of new forms of arms, and I think that
that approach is a sensible approach.
Senator Kyl. Creative lawyers, of course, will come up with
an infinite number of new circumstances. I agree with you that
circumstances change and, also, even if they do not, lawyers
will think of new ways of presenting cases on behalf of their
clients.
But the word, also, ``needs'' was in here, in light of
changing needs, and I was just thinking, for example, of the
free exercise of religion clause and was wondering if you could
maybe just give me an idea about how you think there might be a
changing need that would require a different interpretation
than how the Constitution would have been applied at the
founding.
And, again, that may be unfair just to put you on the spot.
Mr. Matheson. Well, no, Senator. It's a great question. I
suppose my initial reaction to it is that I understand what
changed circumstances are, but I'm not sure I understand what a
changed need is.
Senator Kyl. I kind of was thinking the same thing. Maybe
that is something you and I might agree on.
Mr. Matheson. Well, I'll take it then.
Senator Kyl. Thank you very much.
Mr. Matheson. Thank you, Senator.
Senator Cardin. Does any other member of the Committee wish
to inquire?
[No response.]
Senator Cardin. If not, thank you very much and that will
complete your testimony and questioning.
Mr. Matheson. Thank you, Mr. Chairman. Thank you to the
Committee. It's been an honor to be with you today. And thank
you, again, Senator Hatch, for your kind words.
Senator Cardin. We also, again, express our appreciation to
you and your entire family.
We will now move to our second panel, which will consist of
John McConnell for U.S. District Judge for the District of
Rhode Island; Susan Nelson to be U.S. District Judge for the
District of Minnesota; Ellen Hollander to be U.S. District
Judge for the District of Maryland; James Bredar to be U.S.
District Judge for the District of Maryland.
If you all would, remain standing to be sworn.
[Witnesses sworn.]
Senator Cardin. Thank you. Please have a seat.
As I pointed out with the previous panel, that the
tradition of our Committee, if you would take the time to
introduce your family members or other guests that are here, we
would certainly appreciate that. And I will start off with John
McConnell.
STATEMENT OF JOHN J. MCCONNELL, JR., NOMINATED TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND
Mr. McDonnell. Thank you, Mr. Chairman. I am truly blessed
with a large family and friends and supporters, many of whom
are actually here today. My wife, Sara; my daughter, Catherine,
who next weekend graduates from Brandeis University and was
just accepted to teach in the D.C. Public Schools with Teach
for America, and she'll start there this fall; my daughter,
Margaret, ``Maggie,'' who is a sophomore at George Washington
University here in the District; and, my son, John, who is a
seventh grader at the Gordon School in East Providence.
My mom, Jane McConnell, is here with me. My in-laws,
retired Rhode Island Supreme Court Justice Donald Shea and my
mother-in-law, Ursula Shea, are here with me. And I have the
privilege of having grown up with five brothers, four of whom
are here with me. My brother, Tom, and his wife, Amy Matthews;
my brother, Bob; my brother, Paul; and, my brother, Joe. My
brother, Pete, I think is watching at home, unable to make it
down here today.
A few of my nieces and nephews are here, Will and Robbie
and Brendon McConnell, and my niece, Jessica Reinhardt. A
couple of my law partners are here, Aileen Sprague, Don
Migliori, Vin Greene, Fidelma Fitzpatrick, and some very
excellent friends who always are there to support me, Donna
D'Aloia, Rita Pratt, who is actually celebrating her birthday
with us here today, Jacky Beshar, and Dan Roacha.
Thank you, Mr. Chairman.
Senator Cardin. Thank you.
Judge Bredar.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF JAMES K. BREDAR, NOMINATED TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND
Judge Bredar. Thank you, Mr. Chairman. And if the Committee
will permit, I'm going to ask my family members to stand, since
they're in the back of the room and I think they should be
recognized, given the labor that they have committed to this
endeavor.
First, I'd like to introduce my wife, Stacey Sewell Bredar,
who teaches fifth grade in the Baltimore County Public Schools;
my son, Thomas, who is a sophomore at Northwestern University
in Evanston, Illinois. Next, my son, Daniel, who in 2 weeks
will graduate from McDonough School and is headed to Harvard in
the fall; and, then, my daughter, Sophie, who is five and is
headed to kindergarten in the fall.
We are also joined today by my brother, John, who lives
here in the District, and my nephew, Henry, who is 13 and in
the seventh grade at St. Alban's School. My mother-in-law, Ann
R. Sewell, is here, as is my career law clerk, Beverly Peyton
Griffith.
My parents are not able to be with us. I'm sure they're
watching with great interest from Denver, where they still
live.
Thank you, Mr. Chairman.
Senator Cardin. Judge Hollander.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF ELLEN LIPTON HOLLANDER, NOMINATED TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND
Judge Hollander. Thank you, Senator. First, if I may, I'd
like to thank the Committee for the opportunity to appear
today. I would also like to express my gratitude to you and to
Senator Mikulski for the confidence you've expressed in me in
recommending me to the President.
I'm also grateful to Senator Mikulski and to you for your
kind introduction.
I particularly want to express my profound appreciation to
President Obama for the enormous honor that he has bestowed
upon me.
I'm especially grateful that my family and so many friends
and colleagues are able to share this milestone in my
professional life. I do, too, have quite a crew here. They got
here early, so they have good seats.
[Laughter.]
Judge Hollander. But nonetheless, I would like to ask them
to stand as I introduce them.
I am joined by my husband of almost 38 years--I know I look
very young, but I was very----
[Laughter.]
Judge Hollander. Rich Hollander. And those who know Rich
will readily agree that in choosing him as my life partner, I
have demonstrated my ability for very sound decisionmaking.
We are especially proud of our children. They are surely
our greatest accomplishment. Our daughter, Hillary, is a
clinical social worker in New York. Our son-in-law, Zachary
Shankman, might be the most excited member of our family to be
here, as he clerked for a Federal judge in New York City, where
he now practices law.
Our son, Craig, is a Ph.D. student at Johns Hopkins, and I
think today it might be worth noting that he is the recipient
of a Congressional research award from the Dirksen Center. His
fiance, Jenifer Steinhardt, is here, as well. She works in
finance in New York.
Our youngest, Brett, is a sports broadcaster in Baltimore,
and I'm proud to admit that in several news reports announcing
my nomination, I was identified as the mother of Brett
Hollander.
[Laughter.]
Judge Hollander. I'm also thrilled to be joined by my
brother, Dr. Andrew Lipton, and my sister-in-law, Dr. Helene
Lipton, who traveled from San Francisco to attend these
proceedings.
I'm also delighted by the presence of Shondell Spiegel, a
lifelong family friend, who flew in from Los Angeles to be
here, as well.
I'm very sorry my sister, Rhoda Lipton, could not be here.
She is watching the Webcast, but she was unable to attend, as
it's the last day of classes for the students she teaches at
Columbia University.
I also wish to acknowledge Karen Warren, my invaluable
administrative assistant of 25 years. And I'm deeply honored by
the presence of so many wonderful friends, colleagues, and
current and former law clerks, and I have several judicial
colleagues, as well. I hope they are standing. I think they
didn't follow the instructions very well.
[Laughter.]
Judge Hollander. So I would ask them to stand. They deserve
to know that I so very much appreciate how much they have
supported me through this very long endeavor.
And, finally, if you'll permit me, Senator Cardin, I do
want to mention those whose presence I sorely miss, especially
on a day like today. My devoted in-laws, Joseph and Vita
Hollander, and my beloved parents, Harold and Hilda Lipton.
And I hope you'll permit a special note about my father.
The son of emigrants, he graduated from Harvard Law School and
was regarded as a lawyer's lawyer. I was just 17 when he died,
but in the brief time that I enjoyed with him, he instilled in
me the importance of hard work, integrity, and, most important,
I believe, for today, the value of public service.
He also encouraged me to believe that I, too, could be a
lawyer, despite the fact that there were not many women
attorneys during my youth. The enormous pride he felt for the
legal profession has remained with me and has brought me to
this day.
Thank you.
Senator Cardin. Thank you, Judge Hollander.
Judge Nelson.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF SUSAN RICHARD NELSON, NOMINATED TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA
Judge Nelson. Thank you, Mr. Chairman, Ranking Member
Sessions, Senators Franken and Klobuchar, and members of the
Committee. I want to start by saying it is a profound honor and
privilege to be here today. I am deeply humbled by this
process.
I want to thank this Committee for convening this meeting
so quickly after my nomination. I appreciate the hard work that
went into doing so.
I also want to thank Senator Klobuchar, although she's not
here for a moment, for her warm and generous remarks in
introducing me today. I want to thank Senator Franken for his
unwavering support of my nomination. And perhaps most
importantly, I'd like to thank President Obama for his trust
and confidence in me. I take that very seriously and hope to
make him proud.
I, too, am very proud to introduce some members of my
family and friends who have been so kind to come here to
support me today. I'd like to start with my husband of nearly
27 years, my dearest friend, and I'd ask him to stand, Tom
Nelson.
And our pride and joy, our two boys are here today, our
oldest, Rob Nelson, lives and works here in the District for
the Council on Foreign Relations, and our youngest son, Michael
Nelson, who is a junior at St. Olaf College. And unlike Scott
Matheson, I allowed him to miss finals and come here today.
[Laughter.]
Judge Nelson. We'll see whose judgment was--also, on behalf
of the Richard family, my family, my sister, Barbara Richard,
is here with her youngest child, Jake. The Richards live far
and wide across the globe and I know they're all here in
spirit.
I'd also like to thank my dearest friend, Annamarie Daley,
my best friend in Minneapolis for many decades. She flew here
to be here today. And my dearest friend from college, Jan
Heininger, who is here.
Also, for those of you watching on the Webcast, I am truly
thankful for your support.
And finally, I'd like to acknowledge my in-laws, Tom's
parents, Ed and Fern Nelson, who are 89 and 88 years young. And
they couldn't be here today, but they have truly provided me
for love and support for the years and deserve the greatest
recognition for that.
Thank you, Mr. Chairman.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Well, let me thank all four of you for
being willing to continue service in the public, and I
particularly want to thank your families, because as I said
earlier, this is a family effort. I know it is not easy on your
families the amount of time and commitment it takes to serve on
the Federal bench, and we very much appreciate their
willingness to join in this effort.
Before starting the questioning, I want to acknowledge that
the reason we were able to get this hearing scheduled so
promptly was the help we received from Senator Sessions in
scheduling this, and I would yield to Senator Sessions if he
wanted to make any opening comments.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Well, thank you, Mr. Chairman. These are
important positions and teams of staffers and lawyers have
checked into the backgrounds of the nominees and have looked at
that. FBI have done background checks and ABA and others. And
so I look forward to participating in the discussion this
morning.
Thank you.
Senator Cardin. I want to start off with the question that
I asked Mr. Matheson dealing with the oath of office that you
would take on becoming a judge, and, that is, to--so we get the
exact language, it's to--equal justice to the poor and to the
rich.
I say that because at the trial court level, it becomes
more pronounced if someone does not have adequate legal
representation and in civil proceedings, the ability to get
adequate legal representation many times depends upon having
adequate resources in order to be able to pursue a case.
And I understand the role of a judge, but I also understand
that as a judge, you are in the upper pinnacle of our judicial
system in trying to make sure that equal justice is dispensed
and your oath requires you to do that without regards to
wealth.
So I guess my question to you is how do you see your role
as a district court judge in carrying out the oath of office to
make sure that justice is dispensed equally to the poor and to
the rich.
We will start with Mr. McConnell and then we will reverse
it next.
Mr. McConnell. Thank you, Senator Cardin. It would be my
commitment, if I were fortunate enough to be confirmed by the
U.S. Senate to serve in the district court of Rhode Island, it
would be my commitment to ensure total and complete
impartiality and to ensure that whether the poor or the rich
came before me, that they would be treated fairly, that they
would be treated with respect, and that they would be treated
impartially, and that would be my commitment in my courtroom.
My background has included a long history of pro bono
service in many areas, from time sitting at a homeless legal
clinic, dealing with very practical problems of people perhaps
who have lost their license, all the way to litigation on
behalf of folks in Rhode Island that were develop mentally
disabled and lost their home.
So I would bring that desire for fairness and impartiality
to the bench with me.
Senator Cardin. Judge Bredar.
Judge Bredar. Thank you, Senator. Thanks for the
opportunity to discuss this very important issue. And if I were
confirmed, I would, I hope, uphold the commitment that I made
early in my career to make sure that the poor and those who
live in the shadows of our society do truly have equal access
to our courtrooms.
My work as a public defender, I think, was completely
involved with that. You're right that it becomes a more tricky
proposition when one is a judge, because you're not there, of
course, to advocate on behalf of anyone, whether they are rich,
poor or otherwise.
But I do think it's appropriate for judges to do what they
can to ensure that all parties, including those who are
impoverished, have access to the courts. I think in the Federal
court system, we do quite well with respect to the criminal
side; and, due to the Congress' wisdom in passing the Criminal
Justice Act in 1974, we make available public defenders and
panel lawyers to perform that service.
On the civil side, it's more problematic. I think that
judges have a responsibility to encourage the bar generally to
undertake their responsibility, when able to represent the
indigent on a pro bono basis, to ensure that they have an equal
opportunity to be heard in court.
Senator Cardin. Judge Hollander.
Judge Hollander. Thank you, Senator Cardin, for that
question. I have, as my record reflects, 21 years of judicial
service. Part of that time, I was a trial judge, more recently,
of course, on the Court of Special Appeals of Maryland.
In that time, I have had numerous occasions to work with
pro se litigants and I think my record would reflect that
regardless of whether they were represented or not, everyone
has an opportunity to be heard fairly and impartially without
bias or prejudice.
And I think my colleagues will attest, who are present
today, that there are many times when we do have pro se
litigants in the appellate court. The court is not able to
appoint counsel at our level. But those pro se litigants, their
submissions, which are often very difficult to decipher,
receive extremely careful consideration and attention; and, in
fact, maybe it takes an extra effort, which I've always
expended, to try to figure out exactly what the argument is
that is being presented.
And so I feel very proud of the fact that I have worked
very hard to make sure that whether someone has counsel or
doesn't, they, too, have their day in court.
Senator Cardin. Thank you.
Judge Nelson.
Judge Nelson. Yes. Chairman Cardin, if you could indulge me
just one moment, I forgot one of my dear friends.
Senator Cardin. You better get that in the record.
Judge Nelson. I will worry about it the rest of the
hearing. Our dear friend, Anna Fogel, is here and I want to
recognize her for being here.
Senator Cardin. Absolutely.
Judge Nelson. You know, in the district of Minnesota, we
have spent a lot of time as a bar and a bench focused on the
issue of equal access to justice. And as a magistrate judge for
the past 10 years, on a daily basis, I see people come into my
courtroom who are probably experiencing the worst day of their
lives, whether they've been charged with a crime, whether
they've suffered a terrible physical injury, and many of them
have had very difficult lives.
Many of them are pro se. And both on the civil side and the
criminal side, we have attempted in Minnesota to address this
and we've recently implemented a wonderful pro se program,
which includes access to our clerk's office. We give them
samples of complaints and other pleadings so they understand
how to access the court. We have a very sophisticated system of
assigning counsel to represent them.
But I think in the end, what's critically important for a
district court judge and the best way to deliver equal access
to justice is through impartiality, through fair and just
administration of the law to all.
Thank you.
Senator Cardin. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. Let me ask each
one of you--let me get exactly where we are here. Each one of
you will be required to impose sentences.
And having been a prosecutor for some time, I might be
accused of having a bias, but I have had the personal
experience to see the damage that criminals can do to human
beings and to society. We have sentencing guidelines that,
until recently, were mandatory, with a few exceptions.
Sometimes judges think they know better than the sentencing
guidelines, but in my view, they are pretty good. They were
consistent with the view of most judges about how sentences
should be imposed.
So I guess I'll just run down a list. Briefly, if you
would, share with me to what extent you feel committed to the
sentencing guidelines and to what extent do you have any
hesitation to provide significant severe sentences, if that's
called for under the guidelines.
Do you have any personal feelings that would make it
difficult for you to impose a harsh sentence where appropriate?
Mr. McConnell.
Mr. McConnell. Thank you, Senator Sessions. I think the
sentencing guidelines are--one of the best aspects and the
greatest aspects of the sentencing guidelines is that they
offer consistency and I think consistency in criminal
sentencing is key.
I think people charged with crimes and victims deserve to
know that there will be consistent punishment meted out. I
think the guidelines should be given great deference. I think
the guidelines, as a product of bipartisan work, deserve that
deference by people in the know, and I think that I would
follow the Supreme Court precedent on how to use them.
But in my own personal circumstance, they would
particularly be given great deference in sentencing, Senator.
Senator Sessions. Thank you. I think that's the view of
most judges.
Magistrate Bredar, you have criticized the guidelines
partially, saying that ``offenders and their criminal acts are
inherently unique and, if justice is to be served, sentences
must be imposed on a case-by-case basis'' and that the
``interests of justice are best served when discretion is left
with the judge.''
And you said in response to the Court's ruling in the
Booker case, ``I hope Congress will not act precipitously to
curtail judicial discretion.''
I would note to you that the Nation went through a national
discussion on that issue of case-by-case basis and judge-by-
judge basis, which is what that really means. And Senator
Kennedy and Senator Hatch and Senator Biden and Senator Thurman
all came forward with the sentencing guidelines that I utilized
as a prosecutor.
So I am concerned about that. Do you see any problem with
the fact that two judges on the same hall, one gets--they get
exactly the same cases and one sentence gets probation and one
gets 15 years in jail, as used to happen quite often?
Judge Bredar. Senator, I hope I look like a young man, but
the fact is that I was actually working as a Federal prosecutor
when the guidelines came into place back when they were held
constitutional in United States v. Mastretta in 1987.
And I will agree with you wholeheartedly that there were
problems in the country and in the Federal courts with respect
to disparity in sentencing and that the guidelines, the genesis
of the guidelines was that disparity, and it was a very
important step forward in terms of advancing justice in this
country.
I not just know of stories, I lived the experience you've
described of getting one sentence in one courtroom and a quite
different one down the hallway for virtually identical
offenses.
So there clearly was a problem. The guidelines were put in
place to address that. I think like many prosecutors and
defense attorneys during the time when the guidelines were
first in place, there was a feeling in myself that they were,
at times, a bit confining; that in a just system of sentencing,
there needed to be some room for greater flexibility.
Certainly, not a return to the bad old days where there was
really no guidance.
Senator Sessions. Well, your advocacy here is that
sentences must be imposed on a case-by-case basis. That's
exactly what we had previously, and, basically, that says each
judge decides, does it not, if you do not give deference to the
guidelines?
Judge Bredar. I think the first principle I want to
enunciate is that as a magistrate judge, I have been sentencing
under the guidelines for the last 12 years and I think the
record shows that my sentencing practice has been right down
the middle of the road and that I have faithfully applied the
guidelines, first and foremost, because they're the law of the
land and that's the judge's responsibility, regardless of what
views he may or may not have advocated before he became a
judicial officer.
I want to be crystal clear that, if confirmed as a district
judge, that would remain my policy. I follow the law and if the
sentencing guidelines are on the books, as they still are, very
much, they are the first reference point in any sentence that
is imposed.
Senator Sessions. Well, that is what I guess I would like
to hear.
[Laughter.]
Senator Sessions. The guidelines are a first reference
point. They are not binding, however, and I guess my question
is if you truly believe what you said in that statement and you
are no longer bound, as you previously were, before Booker and
those cases, to what degree do you give deference today to
sentencing guidelines?
Judge Bredar. Well, I give the deference that the
guidelines themselves command and that the law of the United
States Court of Appeals for the Fourth Circuit requires that I
give, which is that they are the first place that a judge looks
when a judge is crafting a sentence.
And frankly, while the legal language is a bit more
technical than this, the bottom line is you need to have a darn
good reason why you are stepping away from the guidance of the
Sentencing Commission and the experience of so many others with
this category and class of offense, and I give great deference
to that.
Senator Sessions. Mr. Chairman, I have already run well
past my time and I do not want to ignore our other two people.
But I suppose I would be willing to give back my time. I doubt
they would be offended.
[Laughter.]
Senator Cardin. Thank you, Senator Sessions. I have got a
feeling that others will pick up on some of these points.
Senator Klobuchar.
Senator Klobuchar. He can go ahead. He was before me.
Senator Cardin. Senator Whitehouse.
Senator Whitehouse. Thank you. I had the chance earlier to
welcome Jack McConnell here. So I think my questions, if the
other nominees will forgive me, will focus on the Rhode Island
nominee.
You have had, clearly, a very strong political background.
You and I--you have been for me and you have been against me. I
would say, on balance, maybe a little bit more against than for
over the years.
But one of the interesting things about Rhode Island is
that people can have friendships and respect for one another
that transcends where you stand politically.
Senator Reed has great personal confidence that you will be
able to transcend your political experiences and background and
opinions of the past if you become a judge. I want to say I
very strongly share that point of view and that is why I so
strongly supported your nomination.
But not everyone here has had the chance to get to know you
in that way and to see that element of your character. Not
everyone here is familiar with the extent to which, in Rhode
Island, it is not uncommon for people of intensely political
backgrounds to become judges and how over and over and over
again our experience has been very successful with them able to
set aside that history and treat every person who comes before
them equally and fairly once they have done that.
Your father-in-law, Justice Shea, was one. On the
Republican side, Justice Weisberger was another. One of the
people who has indicated his personal belief in your capability
to make that transformation is Judge Selya of the First
Circuit, a Rhode Islander on the First Circuit, who has served
with great distinction for many years.
I have practiced before him. I have never had a moment's
hesitation about his fairness or concern about partiality, and
yet he came to that job intensely political, working for a
Republican Governor, working in politics, active in campaigns.
And as I said, a lot of people here aren't familiar with
that tradition in Rhode Island or with how successfully judges
are expected to and do make that leap. In Corinthians, it says,
``When I was a child, I spoke as a child, I understood as a
child, I thought as a child. But when I became a man, I put
away childish things.''
I do not want to make a firm equation of political things
with childish things. There are occasions when politics is not
childish.
[Laughter.]
Senator Whitehouse. There are occasions when it is. But I
do think that the Bible's presumption that there are turning
points in a person's life when they put away things of the past
and move into new responsibilities is something that is very
much a part of the human condition and very appropriate.
And I would ask you to make some remarks at this point to
assure us that every litigant who comes before you, no matter
their background, whether they be poor or rich, Democrat or
Republican, if they are individuals, to know that they will get
a fair shake against big corporations, that whoever they are,
when you are a judge, it no longer matters. You have taken a
solemn oath and obligation to do impartial justice and you will
honor that.
Mr. McConnell. Thank you, Senator Whitehouse, and thank you
for that kind introduction. If I could just say that I must
have been a child when I opposed you politically.
[Laughter.]
Mr. McConnell. I now am a man----
Senator Whitehouse. But a very effective one, a very
effective one.
Mr. McConnell. Sadly for you, yes.
[Laughter.]
Mr. McConnell. I do regret it, if I can say so. I am under
oath.
I appreciate that question, Senator. Politics has been an
avocation for me. It has been, ever since--I told you earlier I
have five brothers and I had a dad who politics was an
avocation for him. He was a local ward Committee person.
And we would oftentimes struggle to get dad's attention
individually, when you have such a large family as I do. And so
I picked up, when I was about 10, walking the ward with him and
distributing the leaflets and whatnot and as we say in Rhode
Island, I sort of caught the bug.
But that was my avocation. That was what I said, because I
believed in a cause or I believed in a particular candidate,
which we have been very fortunate in Rhode Island over time to
have.
My professional life has been as a litigator. For 25 years,
I've tried cases, and the politics has never gotten in the way.
I was telling someone the other day, while I have
contributed and supported and helped in campaigns, I don't
believe I've ever asked for anything. I don't ask for White
House tours. I don't ask for Senate gallery seats. I just don't
ask for anything. It is an avocation, because I truly believe
in the public service it's done.
And my dad taught me very early on that if you believe in
something, then you need to support it, and I've tried to do
that.
If I am fortunate enough to become--to be confirmed by the
Senate and become a judge, I commit to you and to the people of
the state and the country that I'd leave that behind.
I have been involved in politics and I have been a trial
lawyer. That was my job. I did it professionally, I did it
fairly, I did it ethically for many, many years.
Again, if I'm privileged enough to be confirmed, I make
that same commitment to impartiality, to fairness, and to the
rule of law, because that is what my job would be. And I make
that commitment to you and to the entire Committee and the
Senate.
Senator Whitehouse. Thank you. I have gone a moment over my
time, so I am not going to ask any further questions. But I do
want to make sure, Mr. Chairman, that the letter from Mayor
Scott Avedisian, who is the second senior ranking Republican
official in Rhode Island, the letter from Justice Weisberger,
who is a very distinguished Republican member of the Rhode
Island Supreme Court, now serving on senior status, that the
letter from my predecessor as attorney general and our last
Republican attorney general, Jeffrey Pine, are also in the
record; that my successor as the state director of business
regulation, Republican Barry Hittner, is in the record; that
the letter from John Harpootian, who is an extremely active
Republican political figure in Rhode Island, on the current
Republican Governor's sort of inner circle of advisers and very
important part of his political campaign, again, supporting
Jack McConnell is in the record; and, the statement from Judge
Selya in the Providence Journal, with his assurance that Jack
McConnell can make this transition; and, finally, a letter from
the former Republican attorney general and now member of the
United States Court of Appeals for the Third Circuit, Michael
Fisher.
I believe that they are all in the record, they are in my
package, but if not, I would ask unanimous consent that they be
put into the record.
Senator Cardin. Without objection, they will be included in
the record.
[The letters appear as a submission for the record.]
Senator Cardin. Do you have any Democrats that are
supporting him?
[Laughter.]
Senator Whitehouse. There may be one or two.
Senator Cardin. Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. Let me welcome all of
the panelists and all of the family members who are here.
I hope that, since I am going to concentrate, Mr.
McConnell, on questions to you, that the others will not feel
slighted or that the members of your family will feel slighted.
Believe me, the panelists are not--do not feel that way.
Let me ask you questions that will both follow-up on what
Senator Whitehouse was just talking about and then one other
line of inquiry.
Do you believe that health care is a right of citizenship?
Mr. McConnell. I have never studied the issue legally,
Senator Kyl, so I don't have an opinion on that.
Senator Kyl. Well, the reason I ask is that you were quoted
in 2003 in the Providence Journal Bulletin as saying, and I
quote, that ``affordable, accessible and quality health care
should be a right of citizenship.''
And that caught my attention, because I think it is hard to
find a place in the Constitution, a particular provision, which
would support that view. And so I was curious why you said it,
if you remember saying it.
Mr. McConnell. I do. I believe it was in an op-ed in 2002
concerning democratic principles and values in the state, if I
recall.
Senator Kyl. Correct. I have 2003, but----
Mr. McConnell. 2003, it was, after the 2002 election. I
think what I said in there, that were certain values that I
believed that the state Democratic Party should unite around,
education, work in the inner city, health care at the time,
perhaps inappropriately, perhaps I meant universal health care,
meaning that everyone should have health care for the system to
work, and certainly was not speaking in any legal fashion.
Senator Kyl. Well, when you say it should be a right of
citizenship, what else could you mean other than that the law
would require it?
Mr. McConnell. Well, what I think I meant, Senator Kyl, was
that as a party, that one of the values that we should profess
as a state party was that health care for all people was so
fundamental; that perhaps I took a little bit of liberty by
saying it rises to the level of citizenship.
Senator Kyl. All right. This then will be the lead-in to
the final question that Senator Whitehouse was about to ask
you, I am sure, which was, in effect, tell us how we can be
assured by you that views like the one I just expressed, a
strong political view that something should be the case, will
not creep into your decision-making.
I mean, I can interpret that as you saying this is the law
or the Constitution, it should be a right of citizenship. And
because you believe that, presumably, still as a political
matter, a case may come to you where the question is, well, is
that, in fact, the law and the tendency to wish that something
could be true could well color your view when you read the law.
What can you say to assure us that this will not be the
case?
Mr. McConnell. Senator Kyl, it would be inappropriate for
it to color my view, if I'm fortunate enough to be confirmed by
the Senate. I deeply understand that the role that I've played
as an advocate in the courtroom or as an advocate in the
political system for political beliefs are left behind.
Those, in fact, to follow on Senator Whitehouse's analogy,
those were the thoughts and actions at the time of an older
child. But the reality is that the duties--I have followed my
ethical and professional duties as an advocate in the courtroom
unblemished and I would bring that same commitment to follow
the law, a judge's responsibility of applying law to facts.
Senator Kyl. I appreciate your commitment to doing that and
you understand why it important to do it.
And another, you gave an interview in which you said, and I
quote, ``There are wrongs that need to be righted and that's
how I see the law.'' Well, most of us believe some version of
that.
But the question is when you are in a position to right
those wrongs, as a judge, would you tend to do so, even though
the law may be contrary to that particular result? And what I
am asking for, and I thought Senator Whitehouse kind of invited
the same thing, is what is it that would lead us to believe
that you can actually do that.
I am sure you want to assure us you can. I practiced law
for 20 years. I left politics out of the practice of law. It is
kind of hard to involve it. I mean, you have got a client and a
bunch of facts and politics does not have much to do with it.
But judging, you could actually right the wrong, you have
got the power to do it. The legislature just did not get the
job done, you might conclude. And by your ruling, you could
make it happen and you would like to see it happen, but the law
just does not seem to be that way.
So how can we be assured that you would not read the law to
right that wrong?
Mr. McConnell. Because I would have a different role,
Senator. My role as an advocate was to do that and a look at my
record will show an unblemished record of 25 years of
professional, ethical, fair conduct, never called into
question.
I would bring those same values with me to the bench. I
understand that the role of a judge is not to make law. There
are other branches of government or the legislature that does
that. The role is to apply the facts to the law and follow
precedent.
I'm a firm believer in following precedent. I believe, as I
said earlier to Senator Sessions, consistency in the law is
important, and that would be my goal as a judge, to be a fair
and impartial arbiter of the law by applying them to the facts
in the case before me.
Senator Kyl. Thank you. My time is up. I will have one
other round of questions, if I may.
Mr. McConnell. Thank you, Senator.
Senator Cardin. Senator Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
Thank you. I am sorry I was not here when you all sat down and
introduced your families. I was meeting with a nominee for
another court, one in Washington, DC., but I quickly ran over
here, ended the meeting actually to say that I had to be here
for our nominee.
But I wanted to just, first of all, Mr. McConnell, before I
address some questions to our two nominees at the end of the
table here--that quote that I was listening that Senator Kyl
read about the health care.
So even back then in your advocacy role, you were not
talking about a constitutional right. You were talking about
that something had to be done, like a law change. Is that what
you meant by that?
Mr. McConnell. I meant that the political system should
take up the issue to assure that people have health care, yes,
Senator, not in a legal or a rights sense at all.
Senator Klobuchar. All right. Thank you. Anyway, back over
here to the other end of the table. You both have served as
judges and I know you, Magistrate Nelson, as a magistrate. And
I wondered how that experience has changed your view about the
job that you seek now; how that experience being a judge, how
it has been different than you thought and how you think it
will make you a better judge.
I guess I will start with you, Magistrate Nelson.
Judge Nelson. Thank you, Senator Klobuchar, for the
opportunity to respond to that question. Over the past 10 years
as a magistrate judge, day in and day out, as I mentioned
before, I see folks come to court who are in desperate straits
and it has become clear to me that we need to provide good and
full access to everyone to our system of justice and that our
system of justice must be totally fair and impartial.
And we all, when we look at what happens around the world,
develop a deeper appreciation for the importance of the rule of
law. And as a judge for many years now, I revere the rule of
law, because it is so critical to the functioning of a good
society.
Senator Klobuchar. Judge Hollander.
Judge Hollander. Thank you, Senator, for the question. As I
know my record reflects, I have 21 years of judicial service, a
portion on the trial court and, more recently, a portion on the
appellate court.
And in the capacity of both trial court and appellate court
situations, I've had the opportunity to consider a wide array
of issues and multiple questions. I'm always amazed at how many
things seem to be new.
I suppose judges are the last remaining generalists. But
this has given me the confidence to believe that whatever the
issues might present in terms of Federal court, that I would be
well equipped to resolve them, because I have the basic tools
to use these skills to answer the questions.
And I also believe that my service as an assistant U.S.
attorney and a Federal law clerk will come in very handy as I
return, I hope, with any good fortunate and, hopefully,
confirmation to the Federal system.
Senator Klobuchar. Thank you. Magistrate Nelson, I want to
touch specifically on the role of a magistrate here and I know
that you--we focus a lot on criminal cases and sentencing
guidelines in a lot of our questions, and, certainly, I think
like that as a prosecutor, former prosecutor.
But civil cases are such an important part of the Federal
workload and some of them are very complex. And I know that you
have a record of being able to bring parties together in
consensus and settle cases that are very complicated and you
have a reputation of bringing the most cases to settlement of
just about any magistrate judge.
Could you talk about how you do that and why you think that
can be a good way to resolve disputes?
Judge Nelson. Thank you, Senator, for that question. I
think in your opening remarks, you commented on the fact that
we have about 5,000 civil filings in the district of Minnesota
each year and we have seven active district court judges.
And so our district court has determined that its highest
and best use of its magistrate judges is to attempt to settle
cases. And two to three days a week, we bring parties together
in lengthy, complicated settlements.
You know, litigation is so costly these days, too, that in
many ways, that brings about justice earlier in a case in a way
that's cost-effective and it's an important opportunity for us
as a court to provide to the parties and lawyers.
I also think to be a good settlement judge, a magistrate
judge has to gain the respect and rapport of both sides,
because once you lose the respect and rapport of one side, they
won't engage in the settlement process. And by nature,
settlement is difficult. It's a compromise and it's difficult
not to win.
And so I think it requires certain skills, but most
importantly, that the parties do trust you and respect your
judgment on assessing the strength of their cases.
Senator Klobuchar. Very good. And you have also had trials,
is that right, that you have overseen trials, as well?
Judge Nelson. As a magistrate judge. Certainly, in my
private practice, I have been in many trials and as a
magistrate judge, I have had three trials to verdict.
Senator Klobuchar. All right. Well, very good. Thank you
very much. Thank you, all of you, and good luck.
Senator Cardin. Senator Franken.
Senator Franken. Just to start, Mr. McConnell, I believe
that people have a right to health care, but I know that it is
not in the Constitution and I do not think I would be confused,
and I am not even a lawyer.
[Laughter.]
Senator Franken. You talk about giving up childish things.
I talk about doing that.
[Laughter.]
Senator Franken. All right. Judge Nelson, I am really
impressed by your record of volunteering as a mentor to the
disadvantaged kids and disadvantaged students. What impact do
you think those experiences have had on your work as a
magistrate judge?
Judge Nelson. Thank you, Senator Franken. I appreciate the
opportunity to address that question. When I graduated from law
school in the late 1970s, I found myself in this new profession
with very few mentors. I didn't know any women judges, I didn't
know any women partners, and I didn't know any women
politicians.
I barely knew any women who worked outside the home. And I
always promised myself that if I enjoyed some success in this
profession, that I would turn around and provide mentorship to
those who also didn't have mentors in their lives, and I think
it's essential to do that.
I mentor at every level. We have a wonderful program that
came out of the seventh circuit, actually, which Judge Ann
Williams of the seventh circuit began the program, and that is
to provide mentorship to disadvantaged children in high
schools, and we've done that in Minneapolis and in many other
parts of the country.
I've also provided mentorship at the college level and at
the law school level. And I believe it gives everybody a sense
that they can do what they dream of.
Thank you.
Senator Franken. Thank you. Mr. McConnell, you engaged in a
wide variety of pro bono litigation, including on behalf of
immigrants and the homeless and persons with disabilities.
How do you make the decision? How do you decide where to
devote your pro bono time?
Mr. McConnell. Thank you, Senator. That's a good question.
I hadn't thought of it. In some cases, it knocks on your door.
In some cases, you volunteer time, as I have, with the homeless
legal clinic and you sit at a table where social services are
offered to homeless people, including time with an attorney,
and that's where the rubber really hits the road and you find
legal problems that--a man who lived in his car who needed his
car, but didn't have his driver's license, and needed to move
it and you work and try and get him his license back, which we
successfully did.
So sometimes you make yourself available to it, and that's
been--and sometimes they come back at you. I had an instance,
Senator, where I represented four developmentally disabled
adults who had spent most of their time in an institution, who
had lived successfully in the community in a residence, and the
state moved them out and wanted to put them back into another
institution and they landed on my door and we went to court and
got an injunction to stop it.
They left them alone for 12 years and then tried it again.
And they came back at my door and knocked again and we went
back to court the court reviewed it and issued an injunction to
stop it.
So they come in a variety of different ways and you always
can expect them.
Senator Franken. Sounds pretty haphazard.
Mr. McConnell. It is oftentimes, Senator.
Senator Franken. Judge Nelson, as Senator Klobuchar
mentioned, you have served as a magistrate judge for 10 years.
What are some of the most notable settlements that you have
had? Can you describe one? Most people think of magistrate
judges doing civil. Can you name one that is just sort of
memorable in a way that is illustrative of how you will be a
Federal judge?
Judge Nelson. Sure.
Senator Franken. That is a hard thing to put together. Do
your best.
Judge Nelson. Sure, Senator Franken. Thank you. I have had
many settlements that I have been very proud of. And so I don't
mean to slight anybody by selecting one, but one that I'm
especially proud of is a case known as Pagliolo v. Guidant.
Guidant, a very big company, of course, engaged in a
reduction in force and laid off hundreds and hundreds of
employees and in doing so, it was alleged, their decisions had
a disparate impact on older employees. That was the allegation
in the case.
So there were a class of the employees who had been fired
or laid off who sued and it was a very emotional case. Many of
those people had worked for 20 or 30 years for the company and
the company felt very strongly that they had carefully
considered their RIF to ensure that it would have no disparate
impact on age.
And it took us several long days to work through it, but we
were able to reach consensus on it, and I'm particularly proud
of it.
Senator Franken. Thank you. Thank you, Mr. Chairman.
Senator Cardin. We will have a second round, because I
believe that Senator Kyl does want to ask some questions, and
Senator Sessions.
Let me just ask, if I might, a couple questions, then I
will turn it to my colleagues.
Judge Bredar, you are in your second term as a magistrate
judge, having served there for over a decade. What experiences
do you take out of your being a magistrate judge that, if you
are confirmed, sir, as a district court judge, you would use to
try to improve the administration of justice in the Maryland
district using the district court judges and experiences that
you have had a magistrate judge to try to make the system more
efficient?
Judge Bredar. Thank you, Senator Cardin. Echoing some of
what Judge Nelson has said, a critical role that magistrate
judges play in the district of Maryland is in settling cases or
attempting to. And if there were a retail level of judicial
work in this country, I believe it is when judges are at the
settlement table face-to-face with the litigants and the
lawyers who represent them.
From that experience, a judge develops a deep sense of just
how extremely important the issues are involving ths litigants,
but not just how important it is to them that the case
ultimately be resolved, but also that it be done in a timely
manner; that there not be delays.
You, I think, have some distance as a district judge in a
way that a magistrate judge doesn't, so that when you grant a
postponement or you are unable, for whatever reasons, to get a
prompt decision or opinion out, you're maybe not quite as aware
of the impact that that has on people's lives and abilities to
run their businesses, to conduct their personal affairs and so
forth.
As a magistrate judge, you hear those stories, because you
sit with those litigants in settlement conferences. And I
firmly believe that while, certainly, a lot of what you're
hearing about is the substance of the case, you also hear a
great deal of their frustration with the process itself.
And a lot of that has to do with how discovery is
conducted, how long it takes for rulings to be made, why was my
trial postponed, and these sorts of things.
I will take with me that experience, if I'm so fortunate as
to be confirmed. These are real people. Our decisions, even our
administrative decisions, have real consequences in their lives
and in the operation of their businesses, and nothing is
unimportant that a United States district judge does.
Senator Cardin. Thank you. Thank you for that answer.
Judge Hollander, you would bring considerable State
judicial experience both at the circuit court level and at the
appellate court level.
As you know, I come from the a family of a circuit court
judge and a State judge and I know, at times, there is a view
that even though our Federal court and State court are only
located a couple blocks apart, that there is a real difference
as the way the pace of justice in the two courts.
How do you see taking the experience in the State court and
how will your adjustment be moving to the Federal bench?
Judge Hollander. Senator, thank you for the question. And I
hope it's appropriate to say that I knew your father. He was a
wonderful man and, obviously, the apple didn't fall far from
the tree, and I do feel compelled to say that, since you
mentioned him.
I think my service----
Senator Sessions. That is OK, you are under oath.
[Laughter.]
Judge Hollander. And every word was true. I was a young
lawyer when he was on the bench and he was very kind to me.
I think my State service will serve me enormously well, if
I am fortunate enough to be confirmed. Many of the issues that
come before the State courts often involve questions of Federal
law. Obviously, in the criminal arena, we see Fourth, Fifth,
Sixth Amendment issues, Eighth Amendment issues.
In the civil domain, we have cases from which we draw upon
Title VII, ADEA cases. We've had many cases involving issues
under both the civil rules of procedure and the criminal rules
of procedure. Our State rules are modeled on the Federal rules.
And I've had a number of cases over the years where we've
had to look by analogy to the State--in State law, drawing on
Federal cases to answer the questions.
So I feel very comfortable that my service as a State judge
will be enormously helpful, if I am fortunate enough to be
confirmed.
Senator Cardin. Senator Sessions.
Senator Sessions. Mr. McConnell, looking at a couple of
your statements that Senator Kyl asked you about, and I have a
lot of good friends who are good trial lawyers, this seemed to
fit a number of them.
''I am an emotional person about injustice at any level,
personal, societal or global. There are wrongs that need to be
righted, and that's how I see the law,'' closed quote. So I
think being passionate and zealous is a good quality for a
litigator, and it seems to be that way for people who are
highly successful in the plaintiff bar.
But I do think those qualities are somewhat different
cloistered halls of a courtroom, where you are reading briefs
and trying to be objective, and those emotions might start
running and you might see that there is a wrong there that I
need to right.
Do you feel like--I will just ask you again. Do you feel
that you can--that you are seeking the job as the kind of judge
I believe we need, one that calls the balls and strikes, does
not take sides in the ball game and fairly adjudicates the just
result of the case based on the law and the facts?
Mr. McConnell. I do, Senator Sessions. My job as an
advocate in the courtroom was my job to advocate. My ethical
responsibilities were to do it zealously and I believe, for 25
years, I did that.
I oftentimes, in some of the cases--the people that I
represented, you would develop relationships with and you would
advocate on their behalf. That was what I saw as my role.
But my role would definitely be different as a judge. I
have----
Senator Sessions. After you try a case--I am a little bit
taken aback by the op-ed criticizing the court that ruled
against you 4:0 on one of these cases. It seemed to me that was
a bit unusual. Most people that make sure they have calmed down
good after the case is over before they write an op-ed
criticizing the court that 4:0 ruled against them.
Do you have any second thoughts about that op-ed that you
wrote?
Mr. McConnell. Only, Senator Sessions, in that I've been
asked a lot about it during this process and if I hadn't
written it, I wouldn't have had to talk about it so often.
And are there word choices that perhaps you would choose
differently? Sure. We have a tradition in Rhode Island. We're
many years without a law school, and lawyers oftentimes would
be the ones that would need to critique the law.
I can recall back in 1983, when I was clerking, he went on
to become Justice Flanders on our Rhode Island Supreme Court,
wrote a very strident op-ed against an opinion that the Rhode
Island Supreme Court had written and that, since that time, has
sort of been our tradition to critique the law and----
Senator Sessions. Well, it is all right to point out why
you might think--I think it is a free country. It is not
normally done by most good lawyers I know. But I do think you
can speak out about litigation.
But you accused the court of letting, quote, ``wrongdoers
off the hook.'' That is the kind of results-oriented criticism
that makes me uneasy.
You understand what I am saying?
Mr. McConnell. I do, Senator.
Senator Sessions. A very important distinction, is it not?
Mr. McConnell. It is, Senator.
Senator Sessions. So you are accusing the court of
deliberately, the way I would look at that quote, as crafting a
result that let wrongdoers off the hook. And maybe they had no
choice under the law but to rule against you.
I could see you questioning their analysis of the law, but
that conclusion--would you explain how you felt comfortable
using those words?
Mr. McConnell. I will try, Senator. Thank you. Taken in
context, Senator, it was the State's belief that the public
nuisance law of Rhode Island that had been in existence for 200
years was the appropriate avenue for the State to choose, given
the fact some of the law of the State of Rhode Island at the
time, to bring this case.
That was done. It was tried before a jury. The jury
returned a verdict for the State. The trial judge affirmed the
verdict under that longstanding law. And it was appealed to the
Supreme Court.
The Supreme Court disagreed. They disagreed with the
State's analysis of the law, and the results of that were that
the law, as the State perceived it at the time and I, as their
counsel, was overturned, that had existed for centuries in our
State.
And the effect of that change of law were, according to the
allegations that the jury found, that wrongdoers were let go.
It was not----
Senator Sessions. Well, the judges of the court somehow
decided to let these wrongdoers go and change established law,
is that your testimony?
Mr. McConnell. I apologize, Senator, I missed the first
part of the question.
Senator Sessions. It is your testimony that all four of the
judges who reviewed this case changed the law so that they
could let wrongdoers off the hook.
Mr. McConnell. No, Senator, not so that they could, two
independent clauses. We believed--the State believed that the
law--that the Supreme Court overturned and changed longstanding
public nuisance law, period. That's----
Senator Sessions. Well, I will take a look at that, but I
am not so much concerned about whether or not you criticized
them for, quote, ``changing the law,'' if that is what they
did. I am more concerned by your characterization of it as
suggesting they had some desire to let wrongdoers off the hook.
Mr. McConnell. I did not intend to give that perception and
I believe in that op-ed, Senator, we referenced the
longstanding change in law that we--that the State alleged took
place because of the Supreme Court opinion.
Senator Sessions. My time is up. Thanks, Senator.
Senator Cardin. Senator Whitehouse.
Senator Whitehouse. Thank you. As the lead attorney in the
early parts of this case, I can add my two cents on that,
because I was probably even more disappointed and dismayed by
the Supreme Court's decision than Jack McConnell was.
I argued all of the early dispositive motions personally. I
was very familiar with the law. We had done extensive research;
I had done extensive research. The public nuisance theory was
one that I had brought forward. I had done previous public
nuisance cases. I thought it fit perfectly.
The trial judge in this case was a gentleman named Michael
Silverstein. He is a very tough, smart business judge. He ran
the business calendar on the Rhode Island Superior Court.
I do not think there is a judge on the Superior Court who
would not say that he is, if not the best, one of the very best
judges not only now on the Superior Court, but in its history.
This trial was the longest trial in Rhode Island history.
It spanned my tenure as attorney general and went into the next
attorney general's tenure. It was Attorney General Lynch who
ultimately won it at trial.
Judge Silverstein is an extraordinarily distinguished
person. I think that we--between the independent judgment that
we reached about where the law was, the confirmation we got
over and over through dispositive motions and rejection of
motions to dismiss and overturn the verdict and all that we got
from Judge Silverstein, that there was a very strong sense that
had actually gotten a conviction that should stand and that the
trial judge and the trial jury had both established that these
were indeed wrongdoers. Period.
And then when the Supreme Court changed the law, it did
have the effect of letting these defendants, who had been
determined to be wrongdoers both by a jury of their peers and
by the very, very capable, very no nonsense trial judge, and
they got off the hook.
So I actually can remember calling Jack when I saw the
piece and to say I thought you kind of let them off easy,
actually, but I am glad you did not consult with me on it.
So I just wanted to add that comment. I have some personal
experience with that.
Senator Sessions. (Off microphone) because I value your
experience and judgment on this matter.
Senator Whitehouse. The other thing I would add--and I have
got a little time remaining, I think. I just want to highlight
some of the things that some of our Republicans have said.
I know the letters are in the record. But Scott Avedisian
has said, ``As the Republican mayor of Rhode Island's second
largest community, I've always firmly believed that the ability
to reach consensus among people of different points of view is
critical for the well being of our residents and our state as a
whole. In the time I've come to know Jack, I've realized he
shares the same philosophy. I believe that Jack would be a
valuable asset to the bench and a good representative of Rhode
Island in the Federal court system. I am proud to offer this
recommendation.''
Justice Weisberger concludes his letter that ``Jack
McConnell would be superbly qualified to preside as a Federal
judge over the most challenging and complex cases. He is a man
of keen intelligence and impeccable integrity. He would be a
splendid addition to the distinguished bench of the United
States District Court of Rhode Island.''
Attorney General Pine concludes that ``There is no
question, in my mind, that Jack would be an honest, principled,
ethical and fair judge. He would be a credit to our state and
to our judiciary. He has earned this prestigious position for
his many years of hard work, legal experience and success as an
attorney, as well as his position in the community as a
respected civic leader and family man. I enthusiastically
support his candidacy for a position on the Federal bench.''
And then John Harpootian, who is actually an official--he
is vice Chairman of the state Republican Party. ``Time and
again, Jack has proven that he is a man of great principle and
integrity. While being a vigilant advocate for his clients in
the causes that he has taken up during his professional career,
Jack has always conducted himself in the most ethical and
professional manner. One of the greatest characteristics that I
admire about Jack so much is that despite political differences
of opinion, he never allowed those differences to become
personal or to cloud his judgment. These characteristics lead
me to unqualifiedly support Jack's confirmation to the United
States District Court of Rhode Island.''
Judge Fisher of the Third Circuit writes to most favorably
recommend Jack McConnell and to conclude that ``He is an
outstanding nominee to serve on the U.S. District Court for the
District of Rhode Island and I enthusiastically support his
nomination.''
The last thing I will mention, as my time runs out, is that
I know that the United States Chamber of Commerce has taken a
position, kind of extraordinarily for a trial judge, supported
by both Senators of the home state. The Greater Providence
Chamber of Commerce, which is the largest Chamber of Commerce
in Rhode Island, has distanced itself from that opinion and has
said, ``The Greater Providence Chamber of Commerce was not
consulted at any point in the process by the United States
Chamber of Commerce or its Institute for Legal Reform as to our
views relative to the nomination of Mr. McConnell. The Greater
Providence Chamber of Commerce has never endorsed nor opposed
nominees running for the Federal or state judiciary.'' And then
it concludes, ``We would point out that Mr. McConnell is a well
respected member of the local community, leading important
civic, charitable and economic development institutions.''
So the anxiety that seems to appear in some quarters is
really not shared in Rhode Island from the business community,
through our own Chamber of Commerce, through very significant
Republican leaders and officials, and certainly throughout the
legal community, and Senator Reed and myself.
Senator Cardin. Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. Since we are
discussing this lead paint litigation, let me ask you about
that.
The information I have is that you were awarded the no bid
contingency contract in 1999 by the State of Rhode Island to
bring suit against the former manufacturers of lead paint. Is
that correct?
Mr. McConnell. My law firm, along with another law firm,
was engaged by then Attorney General Whitehouse pursuant to his
powers, statutory powers to do so.
Senator Kyl. This is the litigation we were just talking
about. Right?
Mr. McConnell. Yes, Senator.
Senator Kyl. And the news reports, at least some of them,
suggest that it was you who approached the Rhode Island
attorney general. Did you?
Mr. McConnell. I did not.
Senator Kyl. You did not.
Mr. McConnell. No, Senator.
Senator Kyl. All right. Do you know how the representation
came about?
Mr. McConnell. I do, Senator.
Senator Kyl. Was it somebody else in your law firm that
approached the attorney general or did he approach them or how
did that come about? Do you know?
Mr. McConnell. No, Senator. The case came about when our
firm was engaged in certain cases on behalf of children that
had lead poisoning in the ordinary course of claims against
homeowners' insurance or against the landlord, and we had been
involved in that throughout the country.
When I represented the state in its tobacco lawsuit, then
Attorney General Pine, Republican Attorney General Pine was the
attorney general and I would sit and brief him on the
negotiations and ultimately the settlement, so that he could
make a decision whether to sign onto it or not.
He brought up the fact that he had started a task force
working on lead paint issues. We had a very, very--we had
thousands of children----
Senator Kyl. Let me just interrupt you. This is not that
big a deal as to who said what to whom here. I am just trying
to----
Mr. McConnell. It was actually Attorney General Pine who
asked me to put it together. I left a binder. He was on his way
out. He said, ``I can't saddle the next attorney general with
this,'' and he left the analysis for incoming Attorney General
Whitehouse.
Senator Kyl. Good. You are familiar with criticism in the
media about representation of your firm in some of this
litigation, are you not?
Mr. McConnell. I have seen it, yes, Senator.
Senator Kyl. And some of that may be relative to your--I
mean, after your nomination to serve on the court, obviously.
Would you say that either you or other partners at Motley
Rice did anything to encourage this particular kind of
litigation over lead paint?
Mr. McConnell. We were asked to analyze the law and the
facts in the case and we prepared an analysis and a binder and
turned it over to then Attorney General Pine and then to
Attorney General Whitehouse.
Senator Kyl. Well, let me ask it a little bit more broadly.
After you got the verdict in the case we are talking about, the
one that was overturned by the Rhode Island Supreme Court.
Mr. McConnell. Yes, Senator.
Senator Kyl. One newspaper described you, and this is a
quotation, as ``the lead lawyer in the Ohio lawsuits'' and
quoted you as saying, and I am quoting, ``The movement is
gaining steam. We have seen it in both the Rhode Island trial
and in three or four appellate court decisions, all of which
have ruled against the lead paint industry.''
Do you think it is right for lawyers to bring lawsuits as
part of a movement against an industry?
Mr. McConnell. No, I don't, Senator, and----
Senator Kyl. Do you think that quotation was inaccurate, as
quoting you--and I will say it again. Let me just figure out
the quotation here.
From the New York Times, January 6, 2007, quoting you as
saying, ``The movement is gaining steam. We have seen it in
both in the Rhode Island trial and three or four appellate
decisions, all of which have ruled against the lead paint
industry.''
Mr. McConnell. I think if--I don't particularly remember
the article, Senator. I apologize. I believe it was a general
story about the state of lawsuits nationwide against former
manufacturers of lead pigment in paint and I believe what I was
saying was after many years of rulings that went in favor of
the pigment industry, that there had been a series of rulings,
Rhode Island, Ohio, California, and others, that actually--it
had shifted----
Senator Kyl. Gone the other way.
Mr. McConnell. Right. It had shifted from sort of unanimous
one side to--after Attorney General Whitehouse brought the
Rhode Island case, it sort of shifted legally the other way. It
was sort of a----
Senator Kyl. So you are quoted as saying ``The movement is
gaining steam'' and then you referred to Rhode Island and three
or four other appellate decisions.
Mr. McConnell. There had been a period where more of the
law was being defined in favor of the government entities who
were bringing these cases, yes, Senator.
Senator Kyl. I am just curious then. You say it is not
right for lawyers to bring lawsuits as part of the movement
against an industry, but it sounds like that is exactly what
you were saying.
Mr. McConnell. No. What I was saying was that the legal
opinions that this--I believe--again, I don't recall the
article, exactly, but that the legal opinions that the courts
were issuing--the attempt to--the cases were being brought
against lead pigment companies back maybe into the 1970s. My
dates may be off a little bit. And there were a series of them
where courts had ruled that it wasn't applicable, for a variety
of reasons.
And then after an analysis in Rhode Island under the public
nuisance law and the judge's ruling there and in a few other
places, it had sort of shifted. It was sort of more of a
historic comment, Senator, than it was anything beyond that.
Senator Kyl. I understand. My 5 minutes is up. It is kind
of hard to have continuity in questioning when we have this
kind of limitation.
I understood the point you were originally trying to make,
but if I can--and I have a couple more minutes' worth of
questions just as a follow-up to this. My point really was not
only is it right to seek this as a movement, but whether you
actually encouraged these lawsuits in other states, you or your
law firm. Did you?
Mr. McConnell. No, Senator, we did not.
Senator Kyl. Are you aware of any role by the Association
of Community Organizers for Reform Now, that's ACORN, in how
those cases might have come to be filed?
Mr. McConnell. No. Neither I nor my firm have had any
relationship with ACORN.
Senator Kyl. Mr. Chairman, I have just two other quick
questions.
Senator Cardin. Without objection, Senator.
Senator Kyl. Thank you. I appreciate it. One has to do with
a letter that was written on June 4, 2009, the Public Nuisance
Fairness Coalition wrote a letter to Attorney General Holder
asking the Department of Justice to look into several
allegations of wrongdoing related to the Rhode Island lead
paint case that you handled.
Are you aware of that letter?
Mr. McConnell. I have seen it, yes, Senator.
Senator Kyl. All right. Has any----
Mr. McConnell. Not from them.
Senator Kyl. From some other source.
Mr. McConnell. Yes, Senator.
Senator Kyl. Did any law enforcement official contact you
regarding the allegations in it?
Mr. McConnell. No, Senator, they didn't.
Senator Kyl. All right. And so are you aware of whether any
investigation is ongoing or has been concluded?
Mr. McConnell. I have heard nothing of it other than when I
received that and I was sort of outraged by the false
accusations that were contained in there.
Senator Kyl. Thank you. My last question is just this, and
if you would like to, rather than taking time of the Committee,
reflect on this and provide a written answer, that is fine with
me.
It just is the general question of how you would view
recusal in cases of this kind given your substantial
involvement in whether it be lead paint or tobacco litigation.
And I do not know that I am even asking a specified question
here, other than as you look at how you would have to deal with
this as a judge, have you thought about it and if you would
think about it, how do you think you would come out on matters
of recusal?
And if you would like, as I said, given the time, the fact
that I am over time, I am happy to allow you to answer that
question on the record.
Mr. McConnell. I appreciate that, Senator. I will do that.
Senator Cardin. We expect there will likely be questions,
other questions, that will be offered in writing also.
Senator Kyl. That is fine. Thank you, and, again, I thank
the indulgence of all the members of the panel.
Senator Cardin. Senator Klobuchar.
Senator Klobuchar. I have no additional questions at this
time.
Senator Cardin. Senator Franken.
Senator Franken. I guess I do not have any questions for
the nominees. I do have a question--maybe a couple of questions
for Senator Whitehouse. Is that all right?
[Laughter.]
Senator Cardin. It is not all right.
Senator Franken. All right. Well, then, I will not--I will
just ask them out loud, which is I was wondering if those
letters that he read from were from people who knew Mr.
McConnell very well.
Senator Whitehouse. Yes. They were written by people who
actually knew Jack McConnell very well.
Senator Franken. And they are people from Rhode Island.
Senator Whitehouse. That is correct. You are two for two.
Senator Franken. And they must have been Democrats, I
guess, because they were so laudatory, is that right?
Senator Whitehouse. No. You are wrong there, I am sorry.
Senator Franken. I am wrong there? All right. So they were
Republicans?
Senator Whitehouse. Yes.
Senator Franken. But they were so laudatory and they know
him very well.
Senator Whitehouse. That is right.
Senator Franken. All right. I am confused. Thank you, Mr.
Chairman.
Senator Cardin. It just goes to show you should have gone
to law school.
[Laughter.]
Senator Cardin. The hearing record will remain open for one
week for additional statements and questions from Senators. I
ask the nominees to try to respond to those questions in a
timely manner, because we cannot schedule the--it is difficult
to schedule the action of the Committee until after the
material is made available to the Senators who request it.
So I would ask that you try to respond to that in a timely
way.
Senator Sessions. Mr. Chairman, thank you. Mr. McConnell, I
have enjoyed talking with you this morning. There has been some
complaints or controversy about your nomination. It is not
possible for us to run through all that today. So I may submit
some additional questions for the record.
These are important issues. There has been a lot of public
policy discussion about these kind of class action lawsuits,
whether they have been abused, how much money the lawyers have
made off the cases, and what is the best way to affect good
public policy.
So I know the Chamber of Commerce has spent a lot of time
studying the issues and they have some strong opinions on it.
So I value the fact that they are concerned about your
nomination and oppose it, and I give that some credibility.
I do not dismiss it lightly. But you are entitled to a fair
day to get your side out, and when you are involved in
litigation of this intensity, sometimes hard feelings can
occur. So I understand that. And we will look forward to
complete answers about that.
Otherwise, I do not think we would have fulfilled, Mr.
Chairman, the responsibility we have to clear the air on issues
of controversy.
Thank you.
I will say Senator Reed also spoke very highly of you. He
has talked to me more than once and I appreciate that.
Mr. McConnell. Thank you, Senator.
Senator Cardin. And as has been pointed out frequently, the
five nominees that we have before us today all are seeking
confirmation for lifetime appointments. So we consider the
confirmation process to be a very important responsibility of
the Senate.
I know that the hearing has gone on longer than we had
anticipated. I want to thank particularly those that are in the
room for their patience. And we had a lot of young people here
and they were very well behaved and didn't hear them at all. So
I want to compliment the audience, and, again, thank the
families and friends for their support, and our nominees for
being prepared to take on this responsibility.
With that, the Committee will stand adjourned.
[Whereupon, at 5:10 p.m., the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
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