[Senate Hearing 111-695, Part 7]
[From the U.S. Government Publishing Office]

                                                 S. Hrg. 111-695, Pt. 7




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                JULY 15, JULY 28, and SEPTEMBER 15, 2010


                                 PART 7


                           Serial No. J-111-4


         Printed for the use of the Committee on the Judiciary


                                                 S. Hrg. 111-695, Pt. 7



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                JULY 15, JULY 28, and SEPTEMBER 15, 2010


                                 PART 7


                           Serial No. J-111-4


         Printed for the use of the Committee on the Judiciary

66-720                    WASHINGTON : 2011
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
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


                        THURSDAY, JULY 15, 2010

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   328


Brown, Hon. Scott, a U.S. Senator from the State of Massachusetts 
  presenting Denise Jefferson Casper, a Nominee to be U.S. 
  District Judge for the District of Massachusetts...............     5
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi 
  presenting Carlton W. Reeves, Nominee to be U.S. District Judge 
  for the Southern District of Mississippi.......................     4
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois ppresenting Edmond E-Min Chang, a Nominee to be U.S. 
  District Judge for the Northern District of Illinois...........     6
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona 
  presenting Mary Helen Murguia, a Nominee to be U.S. Circuit 
  Judge for the Ninth Circuit....................................     7
Wicker, Hon. Roger F. a U.S. Senator from the State of 
  Mississippi presenting Carlton W. Reeves, Nominee to be U.S. 
  District Judge for the Southern District of Mississippi........     4

                       STATEMENTS OF THE NOMINEES

Casper, Denise Jefferson, a Nominee to be U.S. District Judge for 
  the District of Massachusetts..................................   159
    Questionnaire................................................   161
Chang, Edmond E-Min, a Nominee to be U.S. District Judge for the 
  Northern District of Illinois..................................    68
    Questionnaire................................................    70
Kobayashi, Leslie E., a Nominee to be U.S. District Judge for the 
  District of Hawaii.............................................   105
    Questionnaire................................................   106
Murguia, Mary Helen, a Nominee to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................     8
    Questionnaire................................................    11
Reeves, Carlton W., a Nominee to be U.S. District Judge for the 
  Southern District of Mississippi...............................   199
    Questionnaire................................................   200

                         QUESTIONS AND ANSWERS

Responses of Denise Jefferson Casper to questions submitted by 
  Senators Coburn and Sessions...................................   258
Responses of Edmond E-Min Chang to questions submitted by 
  Senators Coburn and Sessions...................................   263
Responses of Leslie E. Kobayashi to questions submitted by 
  Senators Sessions and Coburn...................................   268
Responses of Mary Helen Murguia to questions submitted by 
  Senators Session, Kyl and Coburn...............................   272
Responses of Carlton W. Reeves to questions submitted by Senators 
  Sessions and Coburn............................................   280

                       SUBMISSION FOR THE RECORD

Akaka, Hon. Daniel K., a U.S. Senator from the State of Hawaii, 
  statement......................................................   294
Asian American Bar Association of the Greater Chicago Area, 
  Sharon A. Hwang, President, Chicago, Illinois, May 10, 2009, 
  letter.........................................................   295
Asian American Justice Center, Karen K. Narasaki, President and 
  Executive Director, Washington, DC, July 13, 2010, letter......   298
Brown, Hon. Scott, a U.S. Senator from the State of 
  Massachusetts, statement.......................................   301
Carson, Ellen Godbey, Honolulu, Hawaii, June 1, 2010, letter.....   302
Collins, Patrick M., Perkins Coie, Chicago, Illinois, June 7, 
  2010, letter...................................................   304
Devens, Vladimir, Meheula and Devens LLP, Attorneys at Law, 
  Honolulu, Hawaii, May 5, 2010, letter..........................   306
Djou, Hon. Charles K., a U.S. House of Representative from the 
  State of Hawaii, statement.....................................   308
Filip, Mark, Kirkland & Ellis LLP and Affiliated Partnerships, 
  Chicago, Illinois, May 20, 2010, letter........................   309
Hawaii Women Lawyers, Joanne L. Grimes, President, Honolulu, 
  Hawaii, May 19, 2010, letter...................................   310
Hoffman, David H., Chicago, Illinois, May 24, 2010, letter.......   311
Iuouye, Hon. Daniel K., a U.S. Senator from the State of Hawaii, 
  statement......................................................   313
Kane, Micah A., Kaneohe, Hawaii, June 16, 2010, letter...........   316
Kaneshiro, Keith M., Attorney at Law, Honolulu, Hawaii, May 19, 
  2010, letter...................................................   318
Kerry, Hon. John F., a U.S. Senator from the State of 
  Massachusetts, statement.......................................   320
Kirimitsu, Walter S., Honolulu, Hawaii, June 16, 2010, letter....   322
Komeiji, John T., Senior Vice President & General Counsel, 
  Hawaiian Telcom, Honolulu, Hawaii, May 21, 2010, letter........   324
Lassar, Scott R., Sidley Austin LLP, Chicago, ILlinois, May 13, 
  2010, letter...................................................   326
National Asian Pacific American Bar Association, Joseph J. 
  Centeno, President; Tina R. Matsuoka, Executive Director; John 
  C. Yang, Co-Chair, Judiciary Committee and Wendy Wen Yun Chang, 
  Co-Chair, Judiciary Committee, Washington, DC, July 9, 2010, 
  joint letter...................................................   331
Price, Warren, III, Price Okamoto Himeno & Lum, Attorneys at Law, 
  Honolulu, Hawaii, April 27, 2010, letter.......................   336
Purpura, Michael M., Carlsmith Ball LLP, Honolulu, Hawaii, May 4, 
  2010, letter...................................................   338

                        WEDNESDAY, JULY 28, 2010

Leahy, Patrick J., a U.S. Senator from the State of Vermont......   341
    Prepared statement...........................................   553


Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
  presenting Kathleen M. O'Malley, Nominee to be U.S. Circuit 
  Judge for the Federal Circuit..................................   343
Norton, Hon. Eleanor Holmes, a Representative in Congress from 
  the District of Columbia, presenting Beryl A. Howell, Nominee 
  to be U.S. District Judge for the District of Columbia and 
  Robert L. Wilkins, Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   345

                       STATEMENTS OF THE NOMINEES

O'Malley, Kathleen M., Nominee to be U.S. Circuit Judge for the 
  Federal Circuit................................................   347
    Questionnaire................................................   349
Howell, Beryl A., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   413
    Questionnaire................................................   415
Wilkins, Robert L., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   472
    Questionnaire................................................   473

                         QUESTIONS AND ANSWERS

Responses of Beryl A. Howell to questions submitted by Senators 
  Sessions and Coburn............................................   523
Responses of Kathleen M. O'Malley to questions submitted by 
  Senator Sessions...............................................   531
Responses of Robert L. Wilkens to questions submitted by Senators 
  Sessions and Coburn............................................   540

                       SUBMISSION FOR THE RECORD

American Intellectual Property Law Association (AIPLA), Alan J. 
  Kasper, President, Arlington, Virginia, May 19, 2010, letter...   547
Intellectual Property Law Association of Chicago (IPLAC), James 
  R. Sobieraj, Appointments Committee, Olivia T. Luk, 
  Appointments Committee, and Edward D. Manzo, President, July 
  27, 2010, joint letter.........................................   549
Strauss, Hon. Paul, a U.S. Senator from the District of Columbia, 
  prepared statement.............................................   556
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio, 
  prepared statement.............................................   560

                     WEDNESDAY, SEPTEMBER 15, 2010

Durbin, Hon. Richard, a U.S. Senator from the State of Illinois..   561
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   913


Durbin, Hon. Richard, a U.S. Senator from the State of Illinois 
  presenting James E. Shadid, Nominee to be U.S. District Judge 
  for the Central District of Illinois and Sue E. Myerscough, 
  Nominee to be U.S. District Judge for the Central District of 
  Illinois.......................................................   567
Dodd, Hon. Christopher, a U.S. Senator from the State of 
  Connecticut presenting Susan L. Carney Nominee to be U.S. 
  Circuit Judge for the Second Circuit...........................   562
Schock, Hon. Aaron, a Representative in Congress from the State 
  of Illinois presenting Nominee to be U.S. District Judge for 
  the Central District of Illinois...............................   564
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia 
  presenting Amy Totenberg, Nominee to be U.S. District Judge for 
  the Northern District of Georgia...............................   565
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia 
  presenting Amy Totenberg, Nominee to be U.S. District Judge for 
  the Northern District of Georgia...............................   566
Norton, Hon. Eleanor Holmes, a Representative in Congress from 
  the District of Columbia presenting James E. Boasberg, Nominee 
  to be U.S. District Judge for the District of Columbia and Amy 
  B. Jackson, Nominee to be U.S. District Judge for the District 
  of Columbia....................................................   566

                       STATEMENTS OF THE NOMINEES

Boasberg, James E., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   664
    Questionnaire................................................   665
Carney, Susan L., Nominee to be U.S. Circuit Judge for the Second 
  Circuit........................................................   569
    Questionnaire................................................   577
Jackson, Amy B., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   707
    Questionnaire................................................   709
Myerscough, Sue E., Nominee to be U.S. District Judge for the 
  Central District of Illinois...................................   807
    Questionnaire................................................   808
Shadid, James E., Nominee to be U.S. District Judge for the 
  Central District of Illinois...................................   760
    Questionnaire................................................   761
Totenberg, Amy, Nominee to be U.S. District Judge for the 
  Northern District of Georgia...................................   619
    Questionnaire................................................   621

                         QUESTIONS AND ANSWERS

Responses of James E. Boasberg to questions submitted by Senators 
  Coburn and Sesssions...........................................   869
Responses of Susan L. Carney to questions submitted by Senators 
  Coburn and Sesssions...........................................   876
Responses of Amy B. Jackson to questions submitted by Senators 
  Coburn, Franken and Sesssions..................................   882
Responses of Sue E. Myerscough to questions submitted by Senators 
  Coburn and Sesssions...........................................   892
Responses of James E. Shadid to questions submitted by Senators 
  Coburn and Sesssions...........................................   899
Responses of Amy Totenberg to questions submitted by Senators 
  Coburn and Sesssions...........................................   905

                       SUBMISSION FOR THE RECORD

Brady, Francis J., President, Connecticut Bar Association, New 
  Britain, Connecticut, June 29, 2010, letter....................   912
Donoghue, Elizabeth, Chair, New York City Bar, New York, New 
  York, September 22, 2010, letter...............................   917
Lieberman, Hon. Joseph, a U.S. Senator from the State of 
  Connecticut, prepared statement................................   918
Schock, Congressman Aaron, a Representative in Congress from the 
  State of Illinois, prepared statement..........................   920


Boasberg, James E., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   664
Carney, Susan L., Nominee to be U.S. Circuit Judge for the Second 
  Circuit........................................................   569
Casper, Denise Jefferson, Nominee to be U.S. District Judge for 
  the District of Massachusetts..................................   159
Chang, Edmond E-Min, Nominee to be U.S. District Judge for the 
  Northern District of Illinois..................................    68
Howell, Beryl A., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   413
Jackson, Amy B., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   707
Kobayashi, Leslie E., Nominee to be U.S. District Judge for the 
  District of Hawaii.............................................   105
Murguia, Mary Helen, Nominee to be U.S. Circuit Judge for the 
  Ninth Circuit..................................................     8
Myerscough, Sue E., Nominee to be U.S. District Judge for the 
  Central District of Illinois...................................   807
O'Malley, Kathleen M., Nominee to be U.S. Circuit Judge for the 
  Federal Circuit................................................   347
Reeves, Carlton W., Nominee to be U.S. District Judge for the 
  Southern District of Mississippi...............................   199
Shadid, James E., Nominee to be U.S. District Judge for the 
  Central District of Illinois...................................   760
Totenberg, Amy, Nominee to be U.S. District Judge for the 
  Northern District of Georgia...................................   619
Wilkins, Robert L., Nominee to be U.S. District Judge for the 
  District of Columbia...........................................   472

                        DISTRICT OF MISSISSIPPI


                        THURSDAY, JULY 15, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 4 p.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 
Chairman of the Committee, presiding.
    Present: Senator Kyl.

                   FROM THE STATE OF ILLINOIS

    Senator Durbin. Good afternoon. I apologize for being a 
minute late. I was down at the Appropriations Committee.
    This is the first nominations hearing we have held since 
the Elena Kagan hearing, and I hope it will be a little 
    We have five outstanding nominees with us today and I 
commend the President for sending their names. All of today's 
nominees have the support of their home State Senators, a 
testament to the President's commitment to working with the 
Senate to identify talented and successful people for the 
Federal bench.
    The first panel will feature Mary Murguia--I hope I am 
pronouncing that correctly--a U.S. district court judge in 
Phoenix, who has been nominated to serve on the U.S. Court of 
Appeals for the Ninth Circuit.
    On the second panel, we will hear from four district court 
nominees: Edmond Chang, from my State of Illinois; Leslie 
Kobayashi of Hawaii; Denise Casper of Massachusetts; and 
Carlton Reeves of Mississippi.
    At the beginning of the hearing, it is traditional for 
Senators to introduce nominees to the Committee from their 
States, and I will begin by introducing Edmond Chang, after my 
colleagues have had their chance, because I know many of them 
have pressing schedules.
    So at this point, I would like to recognize Senator Kerry, 
if he would like to speak first before the committee, and 
please proceed.
    Senator Kerry. Well, thank you very much, Mr. Chairman and 
Senator Kyl. It is a privilege to be able to be here to make an 
introduction and to be before this committee. I am delighted to 
be here with my colleague, Senator Wicker, who is also here for 
the purpose of an introduction.
    It is my privilege today, Mr. Chairman, to be able to 
introduce to you Middlesex Deputy District Attorney Denise 
Jefferson Casper. And I want to thank Chairman Leahy, the 
Chairman of the whole committee, for scheduling the hearing so 
quickly on Denise's nomination.
    It is my privilege, also, Mr. Chairman, to welcome her 
mother, who is sitting in back of me here; her husband, Marc. 
And I do not know if her two sons have arrived. I think they 
were going to arrive and maybe they were not able to get here. 
But she has twin sons, Harry and Jacob. They are the guys. 
There they are. So we are delighted to welcome them.
    Mr. Chairman Senator Kyl, I can tell you, without 
reservation, that Denise is going to be just an outstanding 
judge, and she is a very worthy successor to her predecessor, 
the late Judge Reginald Lindsay, who passed away last year 
after a lengthy illness. He really was an inspiration to us 
    He rose from childhood in segregated Alabama to become the 
second black man ever appointed to the Federal bench in 
Massachusetts. And he loved the bench so much that, literally, 
just weeks before he passed away, he told a friend that he 
dreamed about returning to the bench every day. That is passion 
and dedication.
    I can guarantee you that Denise brings the same kind of 
commitment to the bench, the same love for public service and 
for the administration of justice. And it would not surprise 
anybody that Judge Lindsay was a great mentor to her and to 
many in our state; and, therefore, no surprise, Denise has 
become a great mentor herself through her involvement with the 
Big Sisters program.
    I am told by a number of people that anytime the Big 
Sisters has a gala or some other kind of fund-raiser, you will 
find her leading the charge, first to fill out one of the 
    Senator Kirk and I both recommended Denise to President 
Obama for nomination after a very rigorous examination of her 
record, and those, I might add, of many other qualified 
candidates. And it was conducted by a selection Committee of 
leading members of the legal community of Massachusetts. That 
was a tradition that our colleague, Senator Kennedy, began. We 
continued it, many of the same participants.
    And their conclusion was the same as mine, that she will 
prove to be a first-rate jurist, an important addition to the 
district court.
    I can tell you that everyone in the legal community raves 
about her work ethic, her drive, her exceptional management, 
and her brilliance. Kathy Weinman, former president of the 
Boston Bar Association, a lawyer on the council now, and a 
member of the selection committee, praised her respectful 
leadership qualities.
    Chief judge, Judge Mark Wolf, of the district court, under 
whom she will serve, if confirmed, has nothing but the best to 
say about her. I will just tell you, very quickly, he said--he 
wrote us a letter, in fact, and said ``Denise Casper is a 
distinguished lawyer with a demonstrated commitment to serving 
the public interest. My colleagues and I particularly recall 
her fine service as a Federal prosecutor. Her appointment would 
greatly contribute to our constant effort to give integrity to 
our Nation's promise of equal justice under law.''
    I do not know if this is relevant or not, Mr. Chairman, but 
in the district attorney's office, in which I previously 
served, it is reputed that she has a legendary laugh, is 
apparently not very subtle. You look at her and think she is 
very soft-spoken and if something funny were said, she would 
just kind of giggle at it. But I am told that throughout the 
office, everybody knows when she is there because of this 
    More importantly, she graduated from Harvard Law School. 
She is currently the second in command of the district 
attorney's office of Middlesex County, one of the largest in 
the country.
    She was a prosecutor in the U.S. Attorney's Office; for a 
time, was the Deputy Chief of the Organized Crime Drug 
Enforcement Task Force. She was a clerk for the Massachusetts 
appeals court, and a private attorney in the firm of Bingham 
McCutchen, and a teacher at Boston University School of Law. 
That is a remarkable collection of accomplishments in a short 
span of time.
    Middlesex District Attorney, my friend and somebody I have 
worked with closely, who is here, Gerry Leone, told me right 
away, when I called him for an opinion, that she will just be a 
star on the Federal bench.
    And I will tell you that I had the privilege of serving in 
that office in the same job that she has now from 1976 to 1981, 
and so I have a special affection for her, but also an 
understanding of the job she has done.
    So anyone who looks at her record, as I know you have, will 
understand her remarkable set of qualifications that she brings 
to this job, and I recommend that the Senate confirm her as 
quickly as possible.
    Senator Durbin. Senator Kerry, thank you very much.
    I see that Senator Cochran has arrived, the senior Senator 
from Mississippi, and I know that he is the ranking Republican 
on the Senate Appropriations Committee, which is currently in 
    Senator Wicker, do you have a recommendation on whom should 
speak first?
    Senator Wicker. Mr. Chairman, I believe we should proceed 
with the Ranking Member of the Appropriations Committee.
    Senator Durbin. Good judgment, Senator Wicker.
    Senator Cochran.
    Senator Kerry. Before he speaks, would the senior Senator 
and the Chair forgive me, could I be excused?
    Senator Durbin. We thank you very much for attending. We 
know your busy schedule. Thank you.
    Senator Kerry. Thank you very, very much. I just do not 
want the Appropriations people to think I am running out on 
    Senator Cochran. Thank you, Mr. Vice President.
    Senator Cochran. Mr. Chairman, thank you for your courtesy.


    I am pleased to introduce to the Committee Mr. Carlton 
Reeves, who has been nominated by the President to serve as 
United States District Court Judge for the Southern District of 
    Mr. Reeves practices law in Jackson, Mississippi, where I 
practiced law for several years before being elected to the 
U.S. Senate.
    He received his undergraduate degree from Jackson State 
University and his law degree from the University of Virginia. 
He has served as a clerk and staff attorney for the Mississippi 
Supreme Court and as the chief of the civil division in the 
U.S. Attorney's Office for the Southern District of 
    Mr. Reeves has been actively involved with Mississippi 
legal services and other community organizations in our state. 
He is well respected by his fellow lawyers and the general 
    Mr. Chairman, I am pleased to recommend this nominee for 
confirmation by the Senate.
    Senator Durbin. Thank you very much, Senator Cochran.
    Senator Wicker.


    Senator Wicker. Thank you, Mr. Chairman and Mr. 
Distinguished Ranking Member. I am very pleased to join my 
senior Senator, Senator Cochran, in wholeheartedly endorsing 
the nomination of Carlton Reeves for the position of U.S. 
district court judge.
    I might note that we are joined in the room today by 
Chairman Benny Thompson of Mississippi, who is here not as a 
witness, but to offer his support, also, and we appreciate the 
bipartisan nature in which our delegation is supporting this 
    Senator Cochran has mentioned the professional and 
scholastic achievements of Mr. Reeves. I think it is certainly 
important to the Senate that our nominees be qualified with 
regard to their scholastic background, their professional 
attainment, and, also, in their reputation for integrity.
    I might note that, in that regard, Mr. Chairman, our 
nominee today, Mr. Reeves, as a student at the University of 
Virginia Law School, was honored with the Mary Claiborne and 
Roy H. Ritter fellowship, which actually recognizes outstanding 
honor, character, and integrity.
    He is certainly qualified in state and Federal practice. He 
has an outstanding reputation. This is a popular nomination 
with the bar, with the State as a whole, and with this 
    I commend the President for working with State leadership 
in moving this nominee forward, and I am pleased and proud to 
support the nomination of Carlton Reeves and believe he will be 
a credit to our State, to the Federal bench, and to this 
    So thank you so very much.
    Senator Durbin. Thank you very much, Senator Wicker. And I 
thank both you and Senator Cochran. And, Congressman Thompson, 
thank you for coming over and joining us. It is good to see my 
colleague again.
    The Senators from Mississippi can stay, if they wish, but I 
know they have a busy schedule and if they need to leave, we 
understand it.
    We also have joining us at the table Senator Scott Brown of 
    Senator Brown, you may proceed.


    Senator Brown. Thank you, Mr. Chairman and Ranking Member 
Kyl. It is good to be here and I appreciate, obviously, the 
opportunity to speak to the Judiciary Committee, and thank you 
for the opportunity to introduce Denise Jefferson Casper of 
Massachusetts, the nominee for the United States District Court 
for the District of Massachusetts.
    I offer my congratulations to her and her family and all of 
those who are here to share this special day with her.
    My dear friend, District Attorney Gerry Leone is here and 
it is good to see him.
    And I know that Ms. Casper has worked very hard to get to 
this point in her career. I have met with her. I have done my 
due diligence. I have spoken with many of my former colleagues 
and folks that I practiced with when I was a practicing member 
of the bar and they all spoke very highly of her.
    As a matter of fact, one of my dear friends actually tried 
to hire her on three separate occasions, and he is a tough 
person to please. And I can also say that in the 2008 article 
in the Massachusetts Lawyers Weekly, she was described as 
absolutely tireless. And I quote, the quote is ``being a 
courteous and humble woman, but also a zealous and effective 
advocate.'' And I certainly cannot ask for anything more in a 
judge than to be somebody who is fair and zealous and tireless.
    I, too, want to commend the President for moving this--it 
will probably be national news, but I do want to commend the 
President--that was a joke.
    Senator Brown. You have to have a sense of humor around 
here sometimes. I want to congratulate him for moving her 
    As you know, she is also very active in her community, 
volunteering and having served in leadership roles in the 
Women's Bar Association, Big Sister Association of Greater 
Boston, the American Bar, and many other noteworthy 
    She has trained the next generation of advocates and judges 
as an instructor at BU Law School, and a graduate of Wesleyan 
and Harvard Law School.
    Ms. Casper currently serves, as I mentioned, as a deputy 
district attorney for the Middlesex district attorney's office 
and she oversees very important work, working with witness 
bureau, the cyber protection program, the PACT unit, which 
investigates public corruption, organized crime and financial 
    She has a very long and storied career for somebody so 
young, and I wanted to make a point to come here and, with 
Senator Kerry, offer our bipartisan support for this nominee, 
and I am hopeful that we can move on this nomination very, very 
    So I thank you both for your courtesy in allowing me to 
speak, and I am certainly available if you have any questions.
    Senator Durbin. Thank you very much, Senator Brown. Senator 
Kerry spoke earlier and we will make sure that your entire 
statement will be made part of the record. Thank you for 
joining us today. The best parts will be made part of the 
record, we promise you that.
    [The statement of Senator Kerry appears as a submission for 
the record.]
    I also want to note that Senator Inouye and Senator Akaka 
had planned on attending. Senator Inouye, I know, is presiding 
one floor down over the Senate Appropriations Committee, where 
he chairs. It is an awesome responsibility and he, 
unfortunately, will not be able to join us. But his statement 
in support of the nominee from Hawaii will be made a part of 
the record.
    [The statement of Senator Inouye appears as a submission 
for the record.]


    Senator Durbin. At this point, I would like to take the 
prerogative of the chair to introduce one of the nominees who 
will be before us today.
    Ed Chang is an accomplished Federal prosecutor in the State 
of Illinois, chief of appeals in the criminal division of the 
U.S. attorney's office in Chicago. He works closely with our 
U.S. Attorney, Patrick Fitzgerald, who has written a strong 
letter of recommendation.
    As a Federal prosecutor for over a decade, Ed Chang has 
seen it all. He has prosecuted crimes involving guns, gangs, 
drugs, fraud, extortion, and child exploitation; supervised 
over 300 appeals; and, worked on major cases involving 
terrorism and public corruption.
    Mr. Chang is a native of New York City, but had the good 
sense to move to Chicago in 1991 to attend Northwestern 
University Law School, where he graduated Order of the Coif and 
served on the law review.
    He began his legal career as a judicial law clerk, first, 
for Sixth Circuit Judge James Ryan, nominated by President 
Reagan, and then for highly regarded Chicago District Court 
Judge Marvin Aspen, an appointee of President Jimmy Carter.
    Before joining the U.S. attorney's office in 1999, Mr. 
Chang worked for one of Chicago's most respected law firms, 
Sidley Austin, where he specialized in employment and labor 
law. Throughout his career, he has had a strong commitment to 
pro bono work and to bar association and mentoring activities.
    He has served as an adjunct law professor at Northwestern 
Law School since 1996, teaching a class on civil rights 
    Now, I have a bipartisan merit selection committee, which I 
set up last year, to consider applications for these vacancies. 
And I might add that Mr. Chang was chosen in a previous 
competition for an opening by a Republican nominating 
committee, and, in this case, was chosen again by a Democratic 
committee. It is quite a testament to the fact that he is not 
political and he does bring extraordinary credentials to this 
    It is an historic nomination. When he is confirmed, Mr. 
Chang will be the first Asian-American U.S. district court 
judge in Illinois, and only the second in the Nation between 
the east and west coasts.
    I now ask my colleagues--well, I will after I first 
recognize Senator Kyl, who I believe has a similar 
    Senator Kyl.

                   FROM THE STATE OF ARIZONA

    Senator Kyl. Thank you, Mr. Chairman. It is my pleasure to 
introduce to the Committee Mary Murguia. Judge Murguia is 
currently a Federal district judge in the State of Arizona. She 
has served on the bench there since the year 2000, and she has 
been nominated by the President to serve on the ninth circuit 
court of appeals.
    Senator McCain joins me in urging the committee's strong 
support for her nomination, but he could not be here today.
    Just a few words to introduce Judge Murguia to the 
committee, though, of course, her extensive resume is on file 
with us.
    In the 10 years that she has served on the bench in the 
State of Arizona, she has presided over nearly 4,000 cases to 
verdict or judgment; has presided over nearly 60 trials, 
including over 50 jury trials, to verdict.
    Mr. Chairman, I talked to her colleagues on the Federal 
district court bench in Arizona and litigants who appeared 
before her and asked whether they believed that she gave every 
litigant a fair chance in court; and, to her person, they all 
said that her reputation is one of fairness, of equity, of 
blind justice, of doing the best that she can in each case, 
and, in all cases, approached the job of judging with exactly 
that kind of spirit that we would ask for in the judges that we 
have before us.
    Her experience before being on the Federal district court 
was primarily in the area of service in the Department of 
Justice and in the office of the U.S. Attorney.
    But her most recent experience, from 1999 and 2000, was to 
serve as the director of the executive officer for United 
States attorneys. And as everyone here who is familiar with 
this knows, that is the individual responsible for the 
oversight and support of the 94 different offices of U.S. 
attorneys around the United States, about 5,000 people in all, 
plus another 5,000 support staff and administration and 
appropriation of about $1 billion.
    Prior to that time, as I said, she served in the United 
States attorney's office for the district of Arizona, among 
other things, arguing 15 cases and being involved in over 20 
appeals before the ninth circuit. She was deputy chief of the 
criminal section for 4 years, from 1994 to 1998, and had a 
variety of other experience in that office.
    I would note that her very first experience out of school 
was in the county attorney's office in Kansas, where she was, 
for 5 years, in there as the senior trial attorney in the sex 
crimes unit and trial attorney in the major crimes division.
    Just one other note of personal background, Mr. Chairman. 
Judge Murguia's brother, Carlos, is the first Latino to serve 
as a Federal district judge in the State of Kansas and the two 
Judge Murguias--Judge Murguia, I should also point out, Judge 
Mary Murguia, was the first Latina to be appointed to the 
Federal district court in Arizona, and she and her brother, 
Carlos, are the only brother and sister sitting as Federal 
judges in the United States.
    I do not think that she will be disqualified from that if 
she moves on up to the ninth circuit court of appeals. We will 
see that they retain that distinction.
    In any event, it is with great deal of pleasure that I urge 
her confirmation before this Committee and look forward to her 
    Senator Durbin. Thank you very much, Senator Kyl.
    Now, since we have a nominee for the U.S. District Court, 
Judge Murguia----
    Senator Kyl. Circuit Court.
    Senator Durbin. Pardon me. Circuit court--and then district 
court nominees, we will have two panels.
    The first panel will be Judge Murguia, and I ask her, if 
she would, please, approach the table. And we have a standard 
oath that is administered.
    [Nominee sworn.]
    Senator Durbin. Thank you. Please be seated. Let the record 
reflect that the nominee answered in the affirmative.
    The floor is yours.


    Judge Murguia. Thank you, Mr. Chairman. Thank you, Senator 
Kyl. I do not have any formal opening statement. There are some 
acknowledgments that I would like to make, if I can.
    First, I would like to thank President Obama for this 
honor, for his trust and confidence in me in nominating me to 
this position as judge on the ninth circuit court of appeals.
    Also, I would like to thank Senator Kyl for his extremely 
kind and generous remarks in his introduction of me here today. 
I would like to thank both Senator Kyl and Senator McCain for 
their support of me throughout this process. I am very grateful 
to them both.
    There are two people who are not here today that I would 
like to recognize. Those two people are my parents, Alfredo and 
Amalia Murguia. They were actually here 10 years ago almost to 
the day for my confirmation hearing for the district court 
    Unfortunately, my father has passed away and my mother 
suffers from Alzheimer's and could not be here. But both my 
parents came to this country from Mexico to pursue the American 
dream, and my father worked for over 35 years as a steel 
construction worker for the Kansas City, Kansas Structural 
Steel Company. My mom and my father raised seven kids in a very 
working class neighborhood of Kansas City, Kansas.
    And six of their seven children attended college. Four of 
us went on to graduate from law school. And my presence here 
today before this distinguished is really an honor to them and 
a tribute to them.
    I do have some family members that are here today, if I 
could introduce them. First, I guess I will start with the 
judge, my brother, Carlos Murguia. He is a district court judge 
in Kansas. His wife, Ann, who is a council member for the 
unified government in Kansas City could not be here. She is my 
sister-in-law. They have three children, Wyatt, Thomas and 
Isabella Grace, who also couldn't be here.
    My brother, Alfred, lives and works in Kansas City. He has 
three children who are a little bit older. In fact, Senator 
Durbin, his oldest child--I'll say his oldest kid--Ryan, who is 
my nephew, I think, is on his way here. He recently graduated 
from Northwestern Law School and is studying vigorously for the 
bar exam, which is in less than 2 weeks, and he will be 
starting with the DOJ honors program in the fall.
    His brother, Nick, lives and works in Kansas City. He 
graduated from Tulsa University. My niece, Kelly Murguia, just 
recently graduated from Brown University. She graduated from 
Brown in May and she is undergoing a very intense program for 
Teach for America as we speak and will be starting in that 
program this fall.
    I would also like to introduce my brother, Ramon, who is a 
lawyer in Kansas City. He is on the board of trustees for the 
Kellogg Foundation, and really the first in our community to 
graduate from Harvard Law School. His wife, Sally, who is a 
lawyer, could not be here today. He has two children, my 
nephew, Miguel, and his sister, my niece, Amalia, also could 
not be here today. But all the kids are here in spirit, and I 
appreciate their support.
    My sister, Janet, is president and CEO of an Hispanic civil 
rights organization based here in Washington, D.C., and she is 
my twin sister and I am glad that she is here supporting me, as 
    And there are two people who couldn't be here, my sister, 
Rosemary Murguia, my sister, Martha Hernandez. They care for my 
mother and, unfortunately, could not be here today.
    I have a number of friends here today who've traveled here. 
My friend, Bea Witzleben, who is an assistant U.S. attorney in 
Philadelphia. We worked at the Department of Justice together. 
My friend Margaret Epler, who works for the ninth circuit, is a 
lawyer for the ninth circuit court of appeals.
    My cousin, Lloyd Murguia, who is currently working for 
Congressman Gonzalez out of Texas. And I know that there are 
very--a number of former associates of mine with the Department 
of Justice, and a law school friend of mine here today, and 
there are numerous friends and family who are watching and I 
appreciate their support.
    Thank you for letting me make those acknowledgments. I'm 
ready to answer any questions that you all might have.
    [The biographical information follows.]

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    Senator Durbin. Thank you very much. And let me just say 
that the story of your family is an inspiration. It is not just 
an immigrant story. It is an American story, and the decision 
of your mother and father to come to this country has made this 
a better nation, as we can tell from your service and the 
contributions which all of your family have made, which you 
have alluded to in your introduction.
    So I am touched by it, being first generation American 
myself and presiding over this Judiciary Committee hearing. It 
is a reminder of who we are and, at times, we need that 
    I would like to, if I could----
    Judge Murguia. Thank you, Senator. Thank you.
    Senator Durbin. Of course. I would like to just ask a 
substantive question or two. When you reach the circuit court 
level, you have to expect some serious questions and I hope you 
will bear with me.
    Judge Murguia. Of course.
    Senator Durbin. In the 1980s, Congress passed a law to 
address the crack cocaine scourge in America. History shows 
that we may have gone too far.
    We established sentencing guidelines for crack cocaine that 
were 100 times the standard used for powder cocaine. It has 
resulted in what many consider to be unfortunate outcomes, many 
even unjust.
    Having voted for that legislation, at a time, I can tell 
you that we were in just mortal fear that this new narcotic 
would come in dirt cheap, highly addictive, destroying lives 
and the lives of children who were born by the addicts. And so 
we reacted with a 100-to-1 sentencing standard.
    Now, this committee, in an extraordinary bipartisan effort, 
has reduced the disparity in a bill that we passed from 100-to-
1 to 18-to-1. Some may argue it should be 1-to-1, which is my 
position, but it is the nature of a compromise that we have 
tried to come down to a level of 18-to-1, which has passed the 
    Can you share your views on the crack/powder disparity and 
can you tell me what Federal judges can do, if anything, to 
reduce the disparate impact that criminal laws such as this 
might have on the poor and minorities?
    Judge Murguia. Well, Senator, Mr. Chairman, thank you for 
your question. I think the current sentencing structure post 
Booker gives the judges a great deal of freedom in fashioning 
individualized sentences for each defendant based on their 
history, characteristics, and the facts and circumstances 
surrounding the case.
    And so I have found, in my experience, that the post Booker 
sentencing structure allows us to take into consideration all 
the aspects of everyone's background and their experience--I'm 
sorry--their background, their criminal history, and the facts 
and circumstances surrounding the case. And their history, we 
have to evaluate their personal, social, and criminal history 
when we sentence.
    Obviously, the guidelines, the United States sentencing 
guidelines are important and they need to be respected. They 
provide a very important framework and a fair process in 
evaluating each case and allow--they are an important tool to 
ensure fairness among similarly situated defendants.
    So I think our current sentencing structure, hopefully, 
takes all of that into account.
    Senator Durbin. Have you had any experience, any 
professional or legal experience with this sentencing 
    Judge Murguia. I have not.
    Senator Durbin. I will not pursue that any further, but I 
thank you for your response there.
    You did have a Fair Labor Standards Act case, called 
Stickle v. SCI Western Market Support Center, in which the 
plaintiffs alleged their employer failed to pay them adequate 
wages. The employer filed a motion to dismiss under the Twombly 
standard, but you denied the motion and ruled the case could go 
    What has been your experience applying the new standard set 
forth in the Twombly and Iqbal cases? Have you or your 
colleagues had any cases in which plaintiffs would have 
prevailed under the old standard, but had to be dismissed under 
this new Supreme Court standard?
    Judge Murguia. I don't--just based on my experience, 
Twombly, the effects of Twombly are still being set forth, I 
think, as time passes. It hasn't been into effect for a long 
time, that I know of any studies that have happened.
    But in my experience, I think it just allows the courts a 
good ability to determine whether or not the cases are 
meritorious, that they rise above a pure speculative level, if 
there's a plausible claim.
    The Stickle case is currently ongoing and I allowed it to 
go forward. I thought it was the right decision to do. So I 
think it also allows for a fair process.
    Senator Durbin. When the Supreme Court overturned the 50-
year precedent of Conley v. Gibson and raised the bar for 
filing such complaints in Federal court, many believe that it 
made it more difficult for some workers, consumers, and victims 
of discrimination to proceed with their lawsuit.
    Your decision in the Stickle case appears to have given 
that plaintiff another day in court, at least an opportunity to 
proceed. Do you feel that this new standard makes it more 
difficult for petitioners or plaintiffs to prevail in these 
types of cases?
    Judge Murguia. I don't know that it makes it more difficult 
at this point.
    Senator Kyl. Thank you, Mr. Chairman.
    I have selected four questions in disparate areas to ask 
you, and so let me just take them one at a time here.
    The first has to do with reassignment of a case, the 
controversial Arizona case of Chamber of Commerce v. 
Candelaria, the case involving the Arizona statute imposing 
sanctions on employers who hire illegal immigrants.
    According to an Associated Press article December 11, 2007, 
you had originally been assigned to that case and, according to 
the article, you reassigned the case back to Judge Wake.
    Can you tell us--and this case was controversial, I will 
tell my colleagues, and has now been taken by the U.S. Supreme 
Court after the lower court decision was unanimously upheld.
    Can you tell us why you reassigned the case, Judge?
    Judge Murguia. Certainly, Senator Kyl. That--I reassigned 
that case based on our local rules involving assignment of 
cases and transfer of cases. That case actually had a history 
in our court.
    Judge Wake had been presiding over the original version of 
that case for about 6 months. There were issues regarding a 
deadline. I think the law was going to go into effect in 
    But Judge Wake, in the 6 months that he had the original 
version, an almost identical version of the case that was later 
refiled, had a trial on the merits, due to the request for a 
preliminary injunction; had considered and had several days of 
hearings regarding the motions to dismiss; and, ultimately, I 
think with about 20 days left before the law was to go into 
place, made a ruling.
    He had to make a ruling on that case, and found that issues 
surrounding standing prevented him or you didn't need to go to 
the merits, because there was an issue regarding standing in 
that case. And so he issued his ruling and issued judgment.
    The parties, instead of appealing or filing a motion for 
reconsideration, simply seemed to take guidance from his order 
and refiled the case within 2 days.
    That case, which was almost identical to the original 
version of that case, was eventually assigned to me. When I saw 
the nature of the case and what was happening, I consulted the 
rules, which indicate that if a judge has a prior familiarity 
with the case and the issues and if it will avoid substantial 
duplication of proceedings and hearings, it should be 
    And so I simply was following the rules of assignment and 
transferring of cases.
    Senator Kyl. Thank you. The second question has to do with 
a matter of recusal. In July of 2009, you recused yourself from 
a case alleging racial profiling by the Maricopa County 
Sheriff's Office. That is the county in which Phoenix, Arizona 
is located.
    Immediately after you denied the defendant's motion to 
dismiss the case, there were allegations made that your 
sister's political beliefs might affect your judgment in the 
matter. You denied those allegations, but you still recused 
yourself from the case based on the remote possibility that 
there might be some appearance of bias.
    I think that is correct. Correct me if I am wrong. Would 
you say that you declined to serve in that case out of concern 
for the integrity of the judiciary, as a whole?
    Judge Murguia. Let me separate that out. Yes, I did 
ultimately recuse myself from that case. Always, when we review 
cases of recusal, a core concern is the integrity of the 
judiciary, and I think I referred to that in my order.
    I actually found that there was no actual bias, that I 
could have been fair; there was no conflict of interest; that I 
could have presided over their case. My reason for recusal was 
based on a very narrow basis, and that's whether or not someone 
could--might reasonably question my impartiality based on the 
specific and unique circumstances and facts surrounding that 
    That was the only basis. My sister, yes, is a president and 
CEO of an Hispanic civil rights organization. She has quite a 
different role than I do as a Federal judge, and I'm very 
cognizant of that.
    I guess I just want to be very clear that her views or 
opinions do not influence my decisions as a judge. Her views, 
my sister's, or any close sibling of mine or anyone else, 
including my own views, do not enter into my decisionmaking.
    I had to make a very careful review of the recusal statutes 
in that case and my code of conduct as a judge, and after 
careful review and because of the very unique circumstances and 
details surrounding that case, I entered a recusal.
    Senator Kyl. Thank you very much.
    Senator Durbin. I have no further questions. I do not know 
if you do, Senator Kyl.
    Senator Kyl. Let me just ask one more orally and then maybe 
just submit two for the record. They are both very brief.
    The one that I would just ask you orally here. In your 
questionnaire, you reported that 100 percent of your practice 
as an attorney was devoted to criminal law matters, both as 
state and Federal prosecutor, and that about 68 percent of your 
cases during your time on the district court bench have been 
criminal cases.
    One attorney, as a result of this, expressed concern that 
your legal ability is much stronger on the criminal side than 
the civil.
    Could you tell us, briefly, how your time on the district 
court will prepare you to handle appeals in civil matters, if 
you are confirmed to a seat on the ninth circuit court?
    Judge Murguia. Certainly, Senator Kyl. I've had a 
remarkable experience as a district court judge, presiding over 
a wide variety of civil cases, including tort and contract 
disputes, cases involving patent infringement, class action 
cases, and a variety of class action cases, securities fraud, 
Fair Labor Standards Act, consumer fraud.
    I have also been asked to preside over multi-district 
litigation cases, which, by their nature, are very complex. I 
think that experience of presiding over those cases gives me a 
very good understanding of what litigants face, of what trial 
lawyers at the district court level confront, and what trial 
judges, the decisions that they have to make and the issues 
that they have to resolve almost on a daily basis.
    And I think that that experience would be extremely 
beneficial to me as a circuit court judge in the ninth circuit, 
if I'm fortunate enough to be confirmed.
    Senator Kyl. Actually, the majority of cases that are 
considered by all of the judges in the district court are 
criminal rather than civil; are they not?
    Judge Murguia. That's correct. We're the number one 
district of handling criminal cases in the ninth circuit. I 
think we're the third overall in the country.
    Senator Kyl. Well, I will submit a couple other questions 
for the record. I really appreciate your testimony. Welcome, 
and we look forward to a speedy confirmation of your 
    Judge Murguia. Well, I thank you and the Chairman for all 
of your questions and for your help and support. Thank you very 
    Senator Durbin. Judge Murguia, there may be some written 
questions sent by Senator Kyl, myself, or other members of the 
committee, which I am sure you will be attentive to, which we 
would appreciate very much.
    We thank you very much for your joining us.
    Judge Murguia. Certainly.
    Senator Durbin. And thank your family, as well, for being 
part of this hearing.
    Judge Murguia. Thank you very much.
    Senator Durbin. Thank you.
    We will now take a minute to reset the table for the next 
panel, which includes four nominees to the district court: 
Edmond Chang from Illinois; Leslie Kobayashi of Hawaii; Denise 
Casper of Massachusetts; and Carlton Reeves of Mississippi.
    Senator Durbin. I would like to ask the four nominees, if 
they would, please, to stand, as you are, and raise your right 
    [Nominees sworn.]
    Senator Durbin. Let the record reflect that the four 
nominees all answered in the affirmative, which makes the next 
stage of this much easier.
    I would like to give each of you a chance to introduce your 
family members and say a few words.
    I do not know, I guess, if there is an order here that 
should be followed. I did not want to show favoritism, but Mr. 
Chang first.


    Mr. Chang. Thank you, Senator. First, I want to thank you, 
Senator Durbin and Senator Kyl, for holding this hearing. I 
very much appreciate that.
    I also want to express gratitude to President Obama for the 
deep privilege of this nomination.
    I would also like to thank you specifically, Senator 
Durbin, for your support and the warm words of introduction. I 
very much appreciate that.
    I'd like to acknowledge and thank my family and friends who 
were able to attend the hearing in person. And so I have with 
me--and I hope they will stand and get my thanks--my mother, 
Esther Chang; my wife, Jeannie Chang; and my lovely daughters, 
Emily and Claire. Also, a great college friend of mine, 
Lawrence Wu, is here from Michigan. I have known him for over 
20 years.
    If I could also take a moment to acknowledge and thank some 
of my family who were not able to attend in person because of 
scheduling and other travel conflicts, the first of which is my 
father, Lawrence Chang, who is overseas in Taiwan. I want to 
thank him very much. And my older sister, Elizabeth, and her 
husband, Scott, and my nephews, Matthew and Michael. I know 
they're watching the Webcast.
    Also, my younger sister, Elaine; her husband, Henry; and, 
their girls, Chloe and Elise, are watching. And I want to thank 
my in-laws, as well, Shun-Yu Tiao and Chen-Kun Tiao; and my 
brother-in-law, Andy Tiao, his wife, Michelle, and their kids, 
Alex, Katie and Chris.
    Thank you for the opportunity to make those remarks.
    Senator Durbin. Thank you very much, Mr. Chang.
    Nominee Kobayashi? Have I pronounced that correctly?
    [The biographical information follows.]

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    Judge Kobayashi. You have, and congratulations on doing 
    Senator Durbin. Please proceed.
    Judge Kobayashi. Thank you very much, Mr. Chairman, Ranking 
Member Senator Kyl. My deepest appreciation for scheduling this 
hearing. It's been a long road from Hawaii. So I appreciate it 
very much that you've scheduled this.
    I'd also like to extend my deepest appreciation and 
gratitude to President Obama for this nomination and for the 
great privilege of being his first nominee from the district of 
    My sincere thanks, also, to Senators Inouye and Akaka. 
Great mahalo nui loa to them for their support and 
encouragement throughout this process.
    If I may have your permission, Mr. Chairman, I'd like to 
introduce my family members. From Hawaii, my husband, Judge 
Clarence Pacarro. Our sons, Cody, age 11, and Luke, age 7.
    Also, I'd like to recognize some friends that are here in 
the D.C. area, my good friend from college, Patricia Sulser and 
her husband, David. Our good family friends, Dr. Freddy Chen, 
Michelle Chen, and their children, Chelsea and Theodore.
    Not with us physically today, but in spirit, back in 
Hawaii, our parents, my father and mother, Herbert and Ruth 
Kobayashi; my mother-in-law, Jean Pacarro; my sisters, Anne 
Miyashiro, her husband, Charlie, their son Travis; my sister, 
Robin Kobayashi, and her husband, Dr. Kenny Fink, and their 
children, Ellie and Jack.
    Many family and friends that are supporting us through the 
Nation and in Hawaii, as well as my brothers-in-law, Rudy and 
Dij Pacarro, Bill and Penny Pacarro, and Randy and Norma 
Pacarro and their families.
    And, of course, my court family, I'd like to very much 
thank my support staff, Star Quon (ph), Donna Odani (ph), and 
Warren Nakimora (ph), as well as all of the fellow judges in 
the district of Hawaii; our court clerk staff and the court 
clerk, the pretrial, probation, the U.S. Marshals, court 
security staff, and Federal defenders and U.S. attorneys, whose 
daily encouragement and support have been most meaningful.
    Thank you.
    Senator Durbin. Thank you very much, Judge.
    Ms. Casper.
    [The biographical information follows.]

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    Ms. Casper. Thank you, Mr. Chairman. Thank you to you, 
Senator Kyl, and all the members of the Committee for 
scheduling this hearing today and allowing me to appear before 
you. It's an honor for me, it's an honor for my family, and I 
greatly appreciate the opportunity.
    I'd also like to thank Senator Kerry for his kind 
introduction today and for recommending me to the President for 
this judicial seat. I am deeply grateful for his confidence in 
me for this position.
    I'd also like to thank Senator Brown for his warm 
introduction, his willingness to speak to me about my interest 
in becoming a Federal district court judge, and for his 
    I'd also like to acknowledge and thank Paul Kirk, the 
previous Senator from Massachusetts, who joined in Senator 
Kerry's recommendation to the President.
    Finally, I would like to thank President Obama for this 
nomination. I am honored and deeply humbled by it, and I'm very 
excited and happy to appear before you today.
    Mr. Chairman, I'd also like to take the opportunity to 
introduce my family who are here and my friends and colleagues 
who have been able to join me, as well.
    First and foremost, my husband of 16 years, Marc Casper. 
Marc's love, support and encouragement over the years have 
meant the world to me. We're very excited that our two sons, 
Harry and Jacob, are here. I think they're trying very hard to 
remain quiet during these proceedings, and I am sure they will 
continue to do so during all of the nominees' remarks.
    Ms. Casper. They are both 6 years old, and they're headed 
to first grade in the fall. They're very excited about this, 
their second trip to the Capitol. They didn't remember that 
much about their first trip, since they were too young, but I'm 
hoping this trip will be as memorable for them as I know it 
will always be for me.
    I'd also like to introduce my mother, Marcia Jefferson, who 
has traveled here from the State of New York, my original home 
state. There is no doubt that the lessons that my mother has 
taught me about hard work, humility and respect for others have 
made this moment possible.
    I'm very happy that my brother, Darryl Jefferson, and my 
sister-in-law, Kristy Kershaw Jefferson, are here. We're very 
excited for them, because they're expecting their first child 
in the fall, my mother's first granddaughter. So we're very 
excited they're here.
    There are a number of members of my extended family who are 
here, as well, and I'd like to acknowledge them. My cousin, 
Louise Dyer, and her husband, Filon, of the capital here in 
D.C. My uncle, Charles Dyer, of Maryland; my cousin, Hakim Dyer 
of Maryland, his wife, Marilyn, their son, Faheem.
    The Jefferson branch of the family is also well 
represented. My uncle, Bernie Jefferson, my aunt, Beverly 
Jefferson, and their grandson, Genis Guzman, are here, as well. 
And they're also all from New York.
    I'm also pleased to be joined by good friends today; my 
dear, dear, friend, Julia Frost-Davies, who also happens to be 
the mother of my goddaughter, Gillian, is here. A good family 
friend of ours, Meredith Smith, is here. And I'm also happy to 
say that a number of my sorority sisters and friends of over 20 
years from Delta Sigma Theta sorority are here, including 
Reverend Joy Challenger, Dr. Judith Absalon, and Janice 
Williams Thomas.
    I'm also very happy that a number of my current and former 
colleagues are here from the U.S. attorney's office, Jim 
Farmer, Cynthia Young, and Theo Chuang. My current colleagues 
from the DA's office, Marian Ryan and Jeff Shapiro.
    I'm particularly pleased that my good friend and current 
boss, the Middlesex District Attorney, Gerry Leone, is here, 
despite all the demands on his time back in the commonwealth.
    I am part of a rich legacy, I think, of excellence in 
public service to come out of the Middlesex District Attorney's 
office, a legacy that the senior Senator from Massachusetts is 
very much a part and which Gerry's leadership exemplifies.
    I'd like to say a brief word about some people who could 
not be here today. I understand that a number of my friends and 
colleagues back in the DA's office are watching the Webcast. I 
want to thank them for their support and goodwill during the 
selection process and all the best wishes they've been sending 
me for today's hearing.
    Finally, although certainly he's foremost in my mind today, 
I'd like to say a word about my late father, Eugene Jefferson. 
As it is for me, this would have been a huge day for him. He 
spent part of the early part of his career as a probation 
officer, and he believed deeply in the importance of the 
judicial system in our society.
    In many ways, his influence on my life has propelled me to 
this opportunity. He's very much in my thoughts.
    Thank you.
    Senator Durbin. Thank you very much.
    Mr. Reeves.
    [The biographical information follows.]

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    Mr. Reeves. Thank you, Mr. Chairman and Ranking Member Mr. 
    On behalf of me and my family, I want to thank the 
President for nominating me for this job. This is his first 
nomination for the State of Mississippi.
    I do thank Senator Cochran and Senator Wicker for their 
kind words and the bipartisan nature in which they have come 
together with Congressman Thompson, whom I have known for more 
than 25 years as a student at Jackson State University, 
interning in his office, and he, obviously, saw something in me 
and has stuck with him from that day to this one.
    If I may, Senator, I'd like to introduce my family here 
    Senator Durbin. Please.
    Mr. Reeves. I have my wife, Lora Reeves, and my daughter, 
Chanda Reeves. My mother is here today, Wilhelmina Reeves. My 
sisters are here, Terri Reeves Hansberry and Christy Reeves. 
And Terri has brought her daughters, DeAnna Parker, Paige 
Reeves, and Hope Reeves.
    And my mother's friend of over 60 years, from Yazoo City, 
Mississippi, is also here, Ms. Winnie Stanton, who lives in the 
area now.
    I have siblings who, unfortunately, were not able to be 
here, Carolyn Reeves and her husband, Ernest, Tony Reeves, and 
Calvin Reeves. They've all supported me.
    Now, those who are at home, I know, who are watching the 
Webcast and for the old ladies who probably are not watching 
the Webcast, but are hearing about it, my aunt, Hannah, who is 
approaching her 94th birthday, I believe, great aunt; and, my 
aunt, Mug, who we call Modest Paige, who was like our 
    I have dozens and dozens of nieces and nephews. I have in-
laws who are supporting me, Catherine Singleton, and my law 
partners. We have a three-man law firm back home; Brad Pigott, 
former U.S. attorney. His son is here representing his family, 
Chris Pigott. And Cliff Johnson, who is working hard today.
    There are others in my family who could not be here, but 
they're watching over me. My father, a retired military man of 
over 30 years, First Sergeant Jesse W. Reeves. My uncle, Pete, 
who was like my grandfather, he's not here. And I have 
brothers, Andrew Taylor and Jesse Reeves, Jr.
    It's special, because when I got the call on January the 
21st that the Department of Justice thought that I might be 
considered, that was 10 days after Jesse was buried, and 
tomorrow would be Jesse's 55th birthday. So this is his 
birthday present.
    And I thank the Senate. And there's one other person who I 
know is watching over me, and that's my mother-in-law, Annie 
Brown Moseley, who is no longer with us, as well.
    As I looked around the room when I walked in and when I 
came up, I saw several people from Yazoo City, Mississippi who 
are also here, and I certainly appreciate their support.
    Thank you for your time and I appreciate it.
    [The biographical information follows.]

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    Senator Durbin. Thank you so much, Mr. Reeves.
    Now, we would like to go slightly out of order, because I 
know that Senator Inouye, who is the President Pro Tempore of 
the U.S. Senate and Chairman of the Senate Appropriations 
Committee was working diligently downstairs in an 
Appropriations Committee hearing and was unable to be at the 
beginning of this session, but I'd like to give him a chance 
now, if he would like to take the opportunity to say a few 
words on behalf of a nominee.
    Senator Inouye. I thank you very much, Mr. Chairman.
    I would like to warmly welcome the honorable Magistrate 
Judge Leslie Kobayashi and her family. Her husband, Clarence 
Pacarro, and their sons, Cody and Luke.
    I am here to express my full support for Judge Kobayashi's 
nomination to the district court of Hawaii. Judge Kobayashi's 
maternal great-grandparents emigrated from Fikolka (ph). My 
grandparents came from there, also, to work in the sugar fields 
of Hawaii. Her paternal grandparents immigrated from Hiroshima 
to work as night watchmen and run a small family business.
    You will have to excuse my voice. That is what 
appropriations does to you.
    Senator Inouye. Judge Kobayashi's father was the first in 
his family to attend college and dental school, and, following 
his graduation, he served in the U.S. Army during the Korean 
War and was posted at Fort Dix, New Jersey, where Judge 
Kobayashi was born.
    The family returned to Hawaii, where her father started a 
dental practice and her mother worked as an elementary school 
teacher in Hawaii's school system.
    Judge Kobayashi excelled in her studies, attended Wesleyan 
College and Boston College School of Law.
    Judge Kobayashi is an experienced lawyer, with over 25 
years of experience in Hawaii in both civil and criminal law. 
She has served as a Federal magistrate judge for over 10 years 
on the court to which she has been nominated.
    Judge Kobayashi is admired and respected by her colleagues 
on the Federal bench. She is well versed in the legal processes 
as a sitting magistrate and I am confident that she will be 
able to take the bench in a seamless and swift transition.
    Judge Kobayashi is also well respected by both the 
plaintiff and defense bars. She is known for her fair and 
evenhanded manner, her knowledge of the law, and her commitment 
to the principle that every person has their day in court.
    Despite her busy schedule, Judge Kobayashi continues to be 
active in bar association activities and community service. She 
lectures at the William S. Richardson School of Law at the 
University of Hawaii, served on the Hawaii State Bar 
Association board of directors, and served as vice chair for 
the magistrate judges executive committee for the ninth 
    Her community involvement includes being on the board of 
directors for the Friends of Judicial History Center, and 
serving on the board of directors for the Volunteer Legal 
Services of Hawaii.
    Judge Kobayashi's application was reviewed by a merit 
selection panel that Senator Akaka and I established. She was 
deemed well qualified for the position.
    Judge Kobayashi is the American dream and like so many 
others, hers is the story of hard work, perseverance and 
success, and I'm proud to support the nomination of Judge 
Leslie Kobayashi for the United States District Judge, District 
of Hawaii.
    She is well qualified for the position and would bring 
honor to the court. I urge your swift confirmation.
    Senator Durbin. Thank you very much, Senator Inouye. We are 
honored that you would come join us at this committee, and I am 
certain that Judge Kobayashi is honored by your kind words.
    Without objection, I am going to enter into the record a 
statement from Senator Inouye's colleague, Senator Akaka, 
strongly in support of your nomination, as well. You could not 
have two better or stronger friends in the U.S. Senate.
    [The statement appears as a submission for the record.]
    Senator Inouye. Mr. Chairman, may I be excused?
    Senator Durbin. You are excused, and I know you have plenty 
to do. So thank you so much for being here, Senator Inouye.
    Senator Kyl and I will ask a few questions. Most of you 
have gone through extensive interviews and reviews of your 
background. So if the questions do not go on for a great period 
of time, it is not a reflection on our interest. Many things 
have already been asked and we have that record, and some 
questions will be sent later, which we hope that you will 
attend to in a timely way.
    Senator Kyl. Besides, it is really hot.
    Senator Durbin. Senator Kyl has some problems with the heat 
from the lights here. So we are going to try to move this 
along, if we can.
    Mr. Reeves, yours is an historic nomination. You are the 
first African-American nominated for a Federal judgeship in the 
State of Mississippi in 25 years, since Judge Henry Wingate was 
nominated by President Reagan in 1985.
    Mississippi, as many know, has the highest percentage of 
African-Americans of any state in the Nation. So your 
nomination says a lot.
    Can you talk to us about the importance of racial diversity 
on the Federal bench in Mississippi, given your personal 
experience growing up in Mississippi and your knowledge of how 
far your state has come?
    Mr. Reeves. Thank you for the question, Senator Durbin. It 
is extraordinarily important that the judiciary reflects the 
population in the states. Judges serve several functions, role 
models to other lawyers, role models to students, role models 
to the people who come before the court.
    People need to see that they have a chance; that they, too, 
can one day come to the great hall of the Senate and be 
nominated by a President to be a judge.
    As past president of the Magnolia Bar Association, we 
trumpeted that notion. We spoke about the need for diversity 
throughout the State of Mississippi and actually throughout the 
country, because equal justice under the law, people need to 
believe that a cross-section of the community can serve as 
judges and that they can administer justice and that they will 
obey and respect the rule of law.
    And those are just some of my thoughts, sir.
    Senator Durbin. I thank you for that. I have a question for 
the other three nominees, because you all share a background as 
prosecutors. And occasionally, Senator Kyl, I will have a 
request for visitation in Chicago from a group of criminal 
defense lawyers and they will say to me, ``Durbin, you are a 
pretty good guy, but it seems like everybody you put on the 
bench is a former prosecutor. So when are you going to start 
looking for criminal defense lawyers so we can have a little 
balance on that bench?''
    So I would like to ask you, Ms. Casper, when the criminal 
defense bar takes a look at your background, are they going to 
feel like it is an uphill battle when they go into your court?
    Ms. Casper. I don't believe so, Senator. Thank you for the 
question. Although I've spent a significant part of my career 
as a prosecutor, I think I certainly have a reputation of being 
a straight shooter who is fair and impartial and can be fair 
and impartial, if I'm so lucky as to be confirmed.
    I would also say that the role of a prosecutor is to do 
justice and in order to properly discharge my duties as a 
prosecutor, I necessarily had to look across the--at the other 
side and the obligations of discovery disclosures and 
appropriate recommendations for disposition are things that I 
had to consider in my role as a prosecutor.
    I would also say that I've spent a fair amount of my time 
working with criminal defense attorneys in Massachusetts, most 
recently on a cross-section of bar leaders, both criminal 
defense attorneys, prosecutors and law enforcement, on a 
wrongful conviction task force, where we worked cooperatively 
to look at ways to improve the judicial system so that we can 
avoid even the possibility of wrongful convictions.
    So I think based on all of that, both my experience, as 
well as my reputation and commitment with working with folks on 
both sides of the aisle, I think I would be a fair and 
impartial judge.
    Senator Durbin. Ms. Kobayashi, as magistrate, have you 
dealt with many criminal cases and sentencing questions?
    Judge Kobayashi. Thank you for that question. Yes, I have. 
And we have trials up to full misdemeanors as magistrate judges 
and handle all of the pretrial matters in felony cases.
    So I think that experience serves me well in terms of 
dealing with both sides, in terms of prosecution and defense. 
And in the role of a judge, you quickly learn that you are 
nonpartisan; that you do need to look at both sides equally and 
with a keen eye to make sure that both sides follow the rules 
and are head fairly.
    So I don't believe that will be a problem, but I appreciate 
the question.
    Senator Durbin. Mr. Chang, I do not know if you heard--you 
may have heard my earlier question to Judge Murguia about the 
crack/powder sentencing disparity, and this has been an issue 
which this Committee has addressed and we have considered for 
some time.
    What experience have you had involving that type of 
sentencing or anything similar to it?
    Mr. Chang. Thank you for that question, Senator. I have 
prosecuted many crack cases, as well as powder cocaine cases. 
And so I have operated under this sentencing framework.
    Senator Durbin. And what is your experience? The notion is 
that it is particularly punitive, and if it is punitive, 
Congress wrote the law, the President signed it, and it is a 
law that, as a prosecutor, you would face.
    But we have had, for instance, Federal judges come before 
the Judiciary Committee and talk about the problem it has 
created, particularly within the African-American community. 
They just feel that this disparate sentencing for this 
particular narcotic raises a serious question about whether 
there is justice in the system.
    Have you felt that in the course of trials or prosecutions 
you have been involved in?
    Mr. Chang. Well, Senator, thank you for that question. In 
my experience, when the sentencing regime--the sentencing 
guidelines are mandatory, there was very little wiggle room. 
And I think as you stated, some Federal judges have expressed 
concern over that.
    Now, of course, the sentencing guidelines are advisory and 
the Supreme Court ruled in a case, Kimbrough v. United States, 
that judges may indeed consider individual circumstances and 
deviate from that crack/powder disparity that you spoke of.
    And if I'm fortunate enough to be confirmed, then I would 
operate under that framework, as well, where the guidelines, 
while important, are advice and not mandatary.
    Senator Durbin. Thank you.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    First, let me just comment generally that I was really 
moved by each of the nominees' introduction of members of their 
family, and it is very clear and I think it says something 
about the nominees themselves that they feel great inspiration 
from their families, their friends, those who cannot be here, 
those who have passed on, but who you remember fondly, and it 
is meaningful to us here.
    I would also echo what Senator Durbin said, the lack of a 
3-hour grilling here does not suggest that we do not care about 
your nominations. We have a lot of information in front of us. 
I know you want that grilling here until 8 tonight, but I just 
want to assure the members of the family that the fact that we 
do not spend as much time as we did on a nomination, for 
example, like Solicitor General Kagan, who has been nominated 
to the Supreme Court, certainly does not suggest lack of 
    I, too, will be relatively brief, perhaps having a question 
or two for the record.
    Senator Durbin raised a matter, and, Mr. Reeves, going back 
a little bit in time here, you mentioned your chairmanship of 
the Magnolia Bar Association, and I wanted to ask you a couple 
questions about a letter that you wrote at that time relative 
to the Southwick nomination.
    Leslie Southwick was nominated to serve on the fifth 
circuit court of appeals, as you know, was confirmed, sits on 
that court today, in a bipartisan vote. But you wrote a pretty 
stern letter in opposition to his nomination, if I could quote 
just from a couple pieces of that and then ask you some 
questions about that, and this was in 2007.
    First of all, you talked about President Bush, and I will 
just quote this. You said, ``President Bush has demonstrated an 
absolute disdain for appointing African-Americans to the 
Federal judiciary, particularly within the states representing 
the fifth circuit. Leslie Southwick's nomination continues a 
stark pattern of racial discrimination and racial exclusion in 
appointments by President Bush to the fifth circuit and to the 
Federal judiciary from Mississippi.''
    Now, do you still stand by that accusation made back in 
    Mr. Reeves. I'm sorry, sir. Yes. In 2007, I was the 
president of the Magnolia Bar Association and we represent--the 
Magnolia Bar Association was founded in 1955, because the 
African-American lawyers who were lawyers back then were 
precluded from being members of the Mississippi Bar 
    So the Magnolia Bar Association has always been 
extraordinarily inclusive. It is bi-racial now and at all 
    In 2007, we were advocating the need for diversity in the 
Federal judiciary in Mississippi. That was one of the main 
things that the Magnolia Bar Association itself was advocating, 
because in the 200 years that the fifth circuit has been in 
existence, there had only been two African-Americans who had 
been appointed to the fifth circuit.
    In the time that the State of Mississippi had been into the 
Union, since 1817, there had been only one African-American 
appointed to the Federal judiciary. And in the last 20 years or 
so, there have been appointments, nominations to the Federal 
judiciary in Mississippi. I think the number had exceeded 15 or 
17, if you include all the Federal judges there in Mississippi 
in 2007, and not--and there had only been one African-American 
appointed and he was appointed in 1985, which was over 20 years 
    So as an advocate on behalf of the legal system, as an 
advocate on behalf of the Magnolia Bar Association, that's why 
those--those represent the comments that were made as my 
presidency of the Magnolia Bar Association.
    Senator Kyl. And I can appreciate that. My question really 
goes to a matter of judicial temperament, the way in which a 
person acts as a judge when--in fact, you made the point that a 
judge can be a role model; that both lawyers and others, 
litigants, who come before a court want to know they are 
treated fairly and, in that respect, if they see in the judges 
a reflection of the community, I think that is a good thing. I 
totally agree with your comment on that.
    But would it not have been more judicious to say--if this 
was your opinion, and I will ask you whether it was. Judge 
Southwick is a fine man, a good lawyer, and would make a good 
judge. However, it is time that an African-American or some 
other minority member be appointed to the fifth circuit court 
of appeals.
    Would that not have been a better way to approach this than 
opposing the nomination and, in fact, using pretty harsh 
language regarding Leslie Southwick himself?
    Mr. Reeves. Well, thank you for the question. I know Judge 
Southwick. We worked together on some things with the American 
Inns of Court. We just disagreed, as president of the Magnolia 
Bar Association at the time, we just disagreed with the nature 
of the appointments that had been made throughout the fifth 
circuit, throughout the country at the time.
    There had been a dearth of black or any minority candidates 
nominated by the President during the years of 2000 to 2008, 
and the Magnolia Bar made that one of its critical issues over 
the last several years.
    I think the full context of my letter, I do think that in 
that context of the letter, I don't criticize Judge Southwick's 
abilities or anything of that nature.
    And while the President had the prerogative to nominate a 
person of his choice, we thought, as the Magnolia Bar 
Association, that the Senate had an equal duty to make sure 
that it looked at the scope of the land and tried to encourage 
some diversity throughout the judiciary.
    Senator Kyl. Mr. Chairman, do you mind if I just do a 
follow-up question or two here, and then that will be it?
    And I can understand. That is why I am asking, and, again, 
I ask this as a question that goes to your judicial 
temperament, how you will conduct yourself on the bench, and I 
think it is important.
    It would have been one thing to say it is time that an 
African-American is nominated and confirmed for the fifth 
circuit court of appeals. But with regard to Leslie Southwick 
himself, and I will just quote another thing from the letter, 
you expressed concern that Judge Southwick's nomination could 
lead--and this is a quote--``could lead to an improperly narrow 
interpretation of the Constitution and the civil rights laws,'' 
which suggests to me that it--well, it is not just a 
    You said that his nomination could lead to an improperly 
narrow interpretation of the Constitution and civil rights 
laws, meaning that he would interpret the laws in that way.
    Was that really your view about him as an individual and do 
you still view him in that way, as a member of the fifth 
    Mr. Reeves. Thank you. I appreciate the question. The full 
context of that quote, I believe, that you're quoting from 
derives from a decision that Judge Southwick endorsed on the 
Mississippi court of appeals, wherein there was a fact dispute 
and some evidence that a supervisor at the Department of Human 
Services in the State of Mississippi referred to an employee, 
subordinate, as a ``good old nigger.'' And we thought that 
the--we thought, as Magnolia Bar Association and others, that 
the constraints on which Judge Southwick and others placed on 
that evidence, where the employee appeals board did not 
recommend the termination of the supervisor, because they 
believed that the ``good old nigger'' quote that was used was 
not bad enough, because ``good'' and ``old'' modified the word 
    And where I'm from, there is very little that can modify 
that word, and I do note that Judge Leslie Southwick--excuse 
me--Judge Leslie King, who is the African-American chief of the 
court of appeals, disagreed and wrote a strenuous dissent in 
that matter.
    And ultimately, the decision that Judge Southwick ruled in 
favor of was overturned by the Mississippi Supreme Court. And 
again, the African-American judge on the Supreme Court wrote a 
concurring opinion, Fred Banks, someone whom I deeply admire 
and respect, really went through the why that word is so 
offensive for that particular agency and the fact that that 
supervisor was speaking for the agency itself, and that agency 
represents all of Mississippi.
    Senator Kyl. Mr. Chairman, if I could just ask one other 
question. You were on the board--or were on the board of the 
Mississippi Workers Center for Human Rights, its treasurer 
since 2008.
    Are you still on the board of that organization?
    Mr. Reeves. No, sir. I've since resigned.
    Senator Kyl. In 2001, there was a statement, called 
``statement of solidarity with migrants,'' and I wonder if you 
are familiar with that statement and if you had anything to do 
with that statement.
    Mr. Reeves. I'm not familiar. I'm not familiar.
    Senator Kyl. Well, then I will not ask you a question here. 
What I might do is put some information about that in a 
question and then take a look at it. And if you knew anything 
about it, then you can answer the question; if not, then, 
obviously, you do not need to do that.
    Mr. Reeves. Thank you, Mr. Senator.
    Senator Kyl. Mr. Chairman, in view of the time, that is all 
the questions I have of the nominees. Again, I congratulate all 
of you for your nominations and hope that we can move forward 
with the consideration of the nominations as soon as possible.
    Senator Durbin. Senator Kyl, thank you so much for being 
here. It is a session day when most people are heading out to 
another location, and thank you for your indulgence to be here 
at this moment.
    I just want to put in the record that I had a chance to 
read the letter that Mr. Reeves sent on behalf of the Magnolia 
Bar Association and it refreshed my memory about the 
controversy associated with Leslie Southwick's nomination, not 
just the racial composition of the courts in Mississippi, but, 
also, that particular case, which was very controversial.
    The only exceptions I would have in your letter are, in two 
different places, you refer to me in a positive way and----
    Senator Durbin. That may destroy your credibility with 
some. It is going to help you with me.
    So I thank all of you for being here today, and 
particularly to the family and friends who have joined in this 
historic occasion for each one of the nominees.
    The Senate Judiciary Committee is a Committee that Senator 
Kyl and I have been honored to serve on for quite a few years 
and the men and women who pass through this Committee hall, sit 
at this table, answer these questions are ultimately, in the 
vast majority of cases, then given an awesome responsibility to 
serve for life in the Federal judiciary and to make decisions 
relative to our laws and justice every single day.
    So we take this very seriously and we certainly acknowledge 
each of you brings a wealth of experience to this, personal and 
legal experience, and we accept you at your word that, if given 
the chance to serve in the Federal judiciary, you will continue 
to use your very best judgment, consistent with the laws of our 
country and our Constitution.
    At this point, I am going to ask that the Judiciary 
Committee stand in adjournment. If written questions are sent, 
if you will attend to them in a timely manner, we would 
appreciate it very much.
    Thanks for being here, and thanks to all your family and 
    [Whereupon, at 5:26 p.m., the meeting was adjourned.]
    [Questions and answers and submissions follow.]

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                              OF COLUMBIA


                        WEDNESDAY, JULY 28, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:33 p.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Whitehouse, Franken, and Sessions.

                      THE STATE OF VERMONT

    Chairman Leahy. It may look like musical chairs. Senator 
Whitehouse, who has filled in twice as chair already--this will 
be the second time today--while we have been doing these 
things, also had to balance his other assignments.
    So I want to begin the hearing, and we will let him take 
over when he gets here.
    I might say that one of the people who has been nominated 
and will be before the Committee is Beryl Howell. And I feel 
strange, in a way, introducing her to the committee, because 
those who served here from 1993 to 2002 will remember her as my 
general counsel; one of the most effective members of our 
Judiciary Committee staff, with a background as a highly 
decorated Federal prosecutor.
    Senator Sessions will remember her work on many criminal 
justice and national security issues. Senator Hatch will, no 
doubt, remember her work on the Digital Millennium Copyright 
Act or Anti-Cyber Squatting Consumer Protection Act and our No 
Electronic Theft Act.
    And then to also remind some of my other colleagues on the 
other side, Senator Kyl and Senator Grassley, recall her work 
on the National Information Infrastructure Protection Act, our 
Computer Fraud and Abuse statute, and on important oversight 
matters, including the bipartisan hearing we had on Ruby Ridge, 
which led to some much overdue improvements at the FBI.
    Senator Cornyn, of course, will be interested in her work 
on the electronic freedom of information initiatives. In that 
regard, I think she is the only nominee I can recall who has 
been inducted into the Freedom of Information Act Hall of Fame.
    What some of you may not know is her background before she 
joined the Senate staff. She grew up in a proud military 
    And, Colonel, we are glad to have you here.
    She was awarded an undergraduate degree with honors in 
philosophy from Bryn Mawr College in Pennsylvania. She earned 
her law degree at Columbia University School of Law, where she 
was a Harlan Fiske Stone scholar. She clerked for Judge 
Dickinson Debevoise in the United States District Court for the 
District of New Jersey. And having worked as a student 
assistant in the U.S. Attorney's Office, she joined the U.S. 
Attorney's Office for the Eastern District of New York in 1987. 
She worked there for almost 6 years, and rose to be deputy 
chief of the narcotics section.
    Her grand jury investigations and prosecutions included 
complex public corruption, narcotics, and money laundering 
cases involving the leadership of the Chinatown Flying Dragons 
gang, the Cali drug cartel and others.
    Descriptions of her cases read like crime novels. She 
successfully prosecuted the leadership of a Chinatown gang, 
called the Flying Dragons, for heroin trafficking and 
extradited the head of the gang after he fled to Hong Kong; a 
case of you can run, but you cannot hide.
    She successfully prosecuted a group of Colombian drug 
dealers and arrested the gang members just as they were packing 
almost $20 million in cash from narcotics proceeds into a 
hidden compartment of a truck to smuggle it out of the country.
    Incidentally, your son is listening to this very carefully, 
hearing about some of the things his mom did.
    Then some of these defendants attempted a prison escape by 
bribing officials and she successfully prosecuted the 
perpetrators of the escape plan.
    She handled the successful investigation and prosecution of 
over 20 corrupt New York City building inspectors involved in 
extortion. Her work was recognized by twice being awarded the 
U.S. Attorney's Special Achievement Award for Sustained 
Superior Performance; by commendations from the FBI, DEA, the 
New York City Department of Investigation, and ultimately by 
the prestigious Attorney General's Director's Award for 
Superior Performance.
    I always felt lucky to have hired her and that she was 
willing to come work here. She left us in 2003 to help 
establish the Washington, D.C. office of a consulting and 
technical services firm specializing in digital forensics.
    And her work in the private sector assisted in a government 
cyber extortion investigation. She received the FBI Director's 
Award; and she was a member of the Commission on Cyber Security 
and of the Center for Strategic International Studies; Ms. 
Howell taught legal ethics as an adjunct professor at 
American's University's, Washington College of Law, and she has 
twice been confirmed by the Senate to serve as a member of the 
bipartisan U.S. Sentencing Commission, to which she was 
appointed by President Bush; and, on and on.
    I will put the whole statement in the record.
    But one of the things that I like very much is she and her 
husband, Michael, have raised three children in the District, 
and they are long-time citizens here, and I am proud of them.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. Then because I know that both Senator Brown 
and Representative Norton have to leave, let me turn to you for 
the introductions you want to make, and then we can begin the 


    Senator Brown. Thank you very much, Mr. Chairman, Senator 
Sessions, Senator Whitehouse, Senator Franken. Thank you for 
your attention and your service.
    It is my pleasure to introduce Judge Kathleen McDonald 
O'Malley, a brilliant, dedicated, and trail-blazing jurist. She 
was raised in Richmond Heights, a Cleveland suburb, supported 
and nurtured by a typical large Irish Catholic family, many of 
whom are here today.
    Judge O'Malley said that her parents, Thomas and Mildred, 
whom we call Billie McDonald, in particular, have been the 
greatest influence in her life.
    I want to extend my greetings to Kate's mother, Billie 
McDonald, who is proudly watching the hearing via Webcast. So, 
Billie, thank you for joining us.
    As a father of three daughters, I know our children's 
successes are sweeter than our own, and congratulations to her 
    I would also like to recognize Kate's other family members 
who are here. Her husband, George Pappas, over my left 
shoulder; daughter, Nora, and son, Jack, who celebrated his 
21st birthday on Monday. Kate's brothers, Kevin and Brian 
McDonald, are also here, along with numerous cousins and nieces 
and friends.
    Many of Judge O'Malley's current and former clerks have 
traveled from around the Nation to be here today, she told me 
seven of them, and that speaks volumes, seven of them are in 
the audience today.
    Today is a little bittersweet. Should this Committee and 
the Senate concur, the people of Ohio will lose one of our 
finest judges. But it is a proud day for me to speak about her 
accomplishments and to share her story with this Committee and 
with the Nation.
    As a child, Kate was blessed with wisdom beyond her years. 
It was clear what she wanted to do with her life. At the age of 
12, she was asked what she wanted to be when she grew up. She 
replied that she wanted to be a Federal judge.
    As she excelled, not--centerfield for the Cleveland Indians 
for me, Federal judge for her. As she excelled--and she has, 
obviously, done better than I have, too.
    As she excelled in school, high school, college and law 
school, in her words, ``It never occurred to me that I 
    She graduated phi beta kappa from Kenyon College in 
Gambier, Ohio, not far from where I grew up, in 1979. She was 
first in her class, with one of the Nation's finest law 
schools, Case Western Reserve Law School near Cleveland.
    After law school, Kate clerked for the Sixth Circuit Court 
of Appeals, for the very distinguished Judge Nathaniel R. 
Jones, who was one of her major influences and considers Kate 
to be like family.
    The Cleveland Plain Dealer wrote in 1994 that her clerkship 
with Judge Jones taught her that as a judge, quote, ``You have 
to be true to the law, you have to be intellectually honest.''
    After her clerkship with Judge Jones, Kate spent several 
years in private practice, she gained invaluable experience 
representing numerous large corporations, in addition to 
medium-sized and small businesses.
    She became an expert in complex corporate litigation, 
patent and intellectual property cases, experience that will 
serve her well as a circuit judge in the Federal circuit.
    She translated her private sector experience into a 
distinguished career in public service as chief counsel and 
chief of staff for then Ohio Attorney General Lee Fisher. Kate 
used her brilliant mind and incredible work ethic to litigate 
major state and Federal constitutional cases at both the trial 
and appellate levels. Her responsibility that employs intellect 
and temperament required in the Attorney General's office has 
served her well through her career, and people on this 
Committee are certainly familiar with that.
    Recognizing her brilliance, her good legal mind, her 
superior work ethic, Ohio Senators Howard Metzenbaum and John 
Glenn recommended Kate's name to President Clinton for a place 
on the Federal bench on September 20, 1994.
    President Clinton nominated her to serve on the Federal 
bench as a U.S. District Judge for the Northern District of 
Ohio. When Judge O'Malley began her service on the northern 
district bench, she was among the youngest judges serving on 
the Federal bench. And for the last 15 years, Judge Kate 
O'Malley, still one of the youngest, has served the northern 
district of Ohio with distinction.
    In case there is any doubt as to her experience, she has 
handled approximately 4,000 civil cases, 800 criminal cases, 
three major multi-district litigation cases, including one with 
20,000 claimants and another with 12,000 separate cases.
    And she is an innovator. She has spearheaded national 
efforts to integrate cutting-edge technologies into courtrooms, 
ensuring that the administration of justice is equal and fair 
and open to all who seek it.
    As an educator, Judge O'Malley has generously given back to 
her alma mater, Case Western, to teach the next generation of 
patent lawyers and advocates. And as a strong believer in pro 
bono service, she encourages students and clerks, lawyers and 
educators alike to provide legal services to those who clearly 
need them.
    She will make an outstanding judge in the U.S. Court of 
Appeals for the Federal Circuit. Her distinguished career 
pursuing justice based on merits and devoid of ideology or 
hidden agenda will bring an important new voice to the 
    In closing, what maybe amuses me the most about Kate is 
when asked what is the one thing that people would not know 
about her, she replies, ``Most people don't know that I'm a 
Federal judge,'' the way that she carries herself and acts, 
because to most people, she is a wife, mother, daughter, 
sister, friend, Lacrosse coach, soccer coach.
    She is all those things in the community and all those 
things as a human being. That is what makes me proud to 
introduce and to support Judge Kate O'Malley.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    And, Judge, you should know that he says these nice things 
about you when you are not here, too, and has.
    Chairman Leahy. And if you ever watch the Senate during a 
vote, you see the various Senators huddling, Republicans, 
Democrats. Senator Sessions and I get more work done in this 
Committee between votes, huddling off in a corner, but you see 
Senator Brown whispering--and he cannot whisper.
    Senator Brown. I do not whisper, Mr. Chairman.
    Chairman Leahy. In my ear.
    Senator Brown. I try to whisper, but it just carries too 
    Chairman Leahy. Senator Brown, I know you are supposed to 
be elsewhere, and feel free to do it.
    Senator Franken.
    Senator Franken. Do we get questions?
    Chairman Leahy. Of Senator Brown, no.
    Chairman Leahy. I thought about it, but we would all have 
too many and we would be here all afternoon.


    Representative Norton and I have served together for a lot 
of years. She stays young, I grow old, but we still serve 
together, and we both had enduring interest in the District of 
    Representative Norton, I am proud to have you here.
    Representative Norton. Thank you very much, Mr. Chairman. 
And I want to thank you, Senator--right here--I worked with you 
before on Federal judges, U.S. attorney, when President Clinton 
gave me senatorial courtesy. It is a pleasure to still be able 
to work with you as you sit once again as chair.
    And I want to thank you and Ranking Member Sessions for 
inviting me to introduce the two nominees for United States 
District Court for the District of Columbia. Both of them are 
Washingtonians that I am proud to represent and to introduce, 
Beryl Howell and Robert Wilkins.
    Robert Wilkins graduated in chemical engineering from Rose-
Hulman Institute of Technology in 1986 and from Harvard Law 
School in 1989, where he served as executive editor and common 
editor of one of the law reviews.
    He clerked for Judge Earl B. Gilliam of United States 
District Court for the Southern District of California. Mr. 
Wilkins is currently a partner in the Washington, D.C. law firm 
of Venable, LLP, where he practices primarily in corporate 
defense, white collar technology and commercial litigation.
    He previously has worked as an attorney for the Public 
Defenders Service for the District of Columbia, where he was 
chief of special litigation from 1996 to 2000.
    Beryl Howell received her J.D. from Columbia University 
School of Law in 1983, and her BA from Bryn Mawr College in 
1978. After law school, Ms. Howell was a law clerk to U.S. 
District Court Judge Dickinson B. Debevoise of the District 
Court of New Jersey, and worked in private practice as an 
associate of the law firm of Schulte Roth & Zabel.
    She then was an assistant United States attorney for the 
Eastern District of New York, where she became deputy chief of 
the narcotics section. And as you have, I think, perhaps, most 
authoritatively, Mr. Chairman, outlined in great detail, in 
much greater detail than I would ever know. She has served in a 
number of different posts, but perhaps particularly notably, 
your own staff and as your own general counsel of this Senate 
Subcommittee on the Judiciary, and as your own senior adviser. 
So she comes well recommended before this committee, to say the 
very least.
    Robert Wilkins and Beryl Howell have both enjoyed a full 
range of the experience and intellectual background that has 
helped them earn reputations as excellent lawyers and makes 
them ideal candidates for the U.S. District Court for the 
District of Columbia.
    I am pleased to represent them and to recommend them both 
to you.
    Chairman Leahy. Thank you very, very much.
    What I am going to do, and this is no lack of respect for 
any of the nominees, I am going to slip out. Senator Sessions 
is going to handle the hearing for me.
    I thank Representative Norton especially for coming over, 
because she has to cross the whole campus to get here, and I 
appreciate that.
    Senator Sessions. I appreciate you delegating the 
chairmanship to me for a change. You are getting nicer and 
nicer as election coronation gets closer.
    Chairman Leahy. I hope you have enjoyed it. I just took it 
    Senator Sessions. Brief though it is. Mr. Chairman, before 
you leave, I think you probably heard that the House has just 
passed the crack cocaine/powder bill, the Senate version. It 
will be sent to the President for signature, which I have 
enjoyed working with you on and Senator Durbin and others.
    I believe we made a good step to improve justice and I know 
you agree.
    Chairman Leahy. I think we did. There was a lot of back-
and-forth and compromise, and, Senator Sessions, I applaud what 
you did on that, and Senator Durbin, what he did.
    The crack and powder cocaine disparity has bothered me 
greatly. Ms. Howell has had experience with that on the 
Sentencing Commission. And I have never been able to understand 
why somebody who is in the highest levels of society, or their 
business, whatnot, can pay $200 for cocaine in one form and if 
they are caught, they are probably going to do some community 
service. A black kid in the inner city paid $200 for another 
kind of cocaine and ended up going to prison and their life 
    I think it is unfair. So I am delighted to see this. I know 
the President is going to sign it.
    Senator Whitehouse. [Presiding.] All right. We will now 
have Judge O'Malley come forward.
    [Nominee sworn.]
    Senator Whitehouse. Thank you. Please be seated. Welcome. 
Why don't I give you a chance to introduce for the record all 
of your family who are here with you or who may be watching? I 
gather your mom is watching over the Webcast.


    Judge O'Malley. Yes, my mom is watching on the Webcast.
    First, I would like to thank Chairman Leahy and Ranking 
Member Sessions for scheduling this hearing. I truly appreciate 
it. And thank you, Senator Whitehouse, for agreeing to chair 
    I also want to thank President Obama for the faith in me 
that this nomination shows. I want to thank Senator Brown, who 
is always charming, and I want to thank him for his kind words. 
And I would like to thank Senator Voinovich, who couldn't be 
here, but did write to the President on my behalf and has 
agreed and told me that he is going to submit a statement for 
the record in support.
    Thank you, Senator Franken, for being here.
    I won't introduce all of my family and friends that are 
here, because we would be here all day, but I will introduce a 
few, if that's okay with you.
    Senator Whitehouse. Of course.
    Judge O'Malley. First, of course, my husband, who has 
already been introduced, is George Pappas. My children, Nora 
and Jack O'Malley. My brother, Kevin McDonald and his wife, 
Marybeth, and his daughters, Megan and Molly. My brother, Brian 
McDonald, and his wife, Chris, and his daughter, Claire.
    And I also have here two other nieces and nephews, Eleni 
and George Alafoginis, from the Greek side of the family.
    There are lots of friends. I have friends that have come 
from Ohio for me, I have friends from Massachusetts. I have 
Judge Marvin Garvis, who came from Maryland to support me. And 
I also have seven of my current and former law clerks, who I am 
thrilled came all the way to be here.
    So there are lots of other friends and family that are 
watching. I do want to say hello to my mother, and I want to 
say that my dad and my brother, Tom, were both with me 16 years 
ago and, unfortunately, have passed away, but they would have 
loved this.
    So thank you, Senator.
    [The biographical information follows.]

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    Senator Whitehouse. Thank you. We are delighted to have you 
with us. I am conscious, as I chair these hearings, of how 
significant they are, as we consider some of America's finest 
individuals, really our best and our brightest, our most 
committed and dedicated for lifelong positions on the Federal 
    You have already crossed the first hurdle and are now going 
from the trial to the appellate level, and we are very proud to 
have you here.
    We are very conscious on this Committee that every day, 
Federal judges make decisions that affect the lives of everyday 
Americans; not only the everyday Americans right before them in 
that case, but others whose lives are affected by the holdings 
that they deliver.
    So it is important to us, and I usually ask of judges to 
assure me that they will, first, respect the role of Congress 
as the representative branch of government of the American 
public policy; and, second, that they will decide cases based 
on the law and the facts; third, that they will not prejudge 
any case, but listen to every part that comes before them; 
fourth, that they will respect precedent, like it or not; and, 
finally, that they will limit themselves to the issues that the 
court is called upon to decide.
    I am sure that question will come as no challenge to you, 
after your 16 years of distinguished service on the district 
court. But if you do not mind, may I ask you if you agree with 
those propositions?
    Judge O'Malley. Those are easy commitments for me to make 
and I think that my 16 years on the bench and my record has 
proven that I have adhered to all of them.
    Senator Whitehouse. Well, I appreciate that very much, and 
I am delighted to have you here.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Judge O'Malley, it is a pleasure to see you. You have got a 
good long history in judicial work. I think it will stand you 
in good stead.
    Let me ask a question or two, because it goes to maybe what 
I think the role of a judge should be.
    There have been some criticisms of Justice Roberts' 
metaphor that a judge should be a neutral umpire. But I like 
it. I mean, a judge does not take sides in the game, does not 
decide who he would like to win before the game starts, and 
fairly calls the plays as best they can, maybe not perfectly, 
but do their best in an intellectually honest way, and that is 
the closest we can get to justice, I think.
    I do believe that there is objective truth and our entire 
justice system, we have been taught since our earliest days, is 
to find the truth and then render opinions based on that.
    You, in an interview discussing your appointment to the 
bench in 1994 and the impact Judge Nathaniel Jones, for whom 
you clerked, had on you, you stated this, ``You have to be true 
to the law, you have to be intellectually honest,'' A-double-
plus, triple-plus, for that.
    And you went on to say, ``You can't say I want a certain 
result and set out to achieve that result, regardless of where 
the law really takes you. Jones' attempt to strike a balance 
between those two ultimate goals is something that stayed with 
me throughout my career.''
    But what two goals were you talking about, the striking a 
balance between two goals? Do you recall that? If you do not, 
do not let me bother you with it.
    Judge O'Malley. I think what was said about Judge Jones the 
first time that I spoke about that is that Judge Jones said 
that judges can play an important role in the world and in 
society. For instance, it's because of judicial rulings that 
everyone has a right to counsel ultimately, and that conclusion 
has been reached. But he said judges should never seek to play 
a role in society that goes beyond applying the facts to the 
law that is before them.
    So what he was saying is that you can play a very important 
role, but only within the bounds of what the framers intended 
for that branch of government.
    Senator Sessions. I think that is a fair answer. I am not 
sure exactly how you balance that, but there is--I call it the 
Siren's Song of Activism. Some judges seem to get a little 
bored on the bench and like to make a little history.
    I think it is a temptation you should normally reject, 
although sometimes you are thrust into a situation where you 
have to make a decision not fully understanding.
    You have two death penalty cases that you have been 
reversed on; one where the defendant failed to object to a jury 
instruction because the defendant's lawyer said, ``Well, I 
didn't object because I thought it would be futile,'' and you 
overturned the death penalty part of it, not the conviction, as 
I understand it.
    But the Supreme Court has rejected this futility standard. 
It said you cannot not object and then later complain and come 
before the court and say, ``Well, I didn't think you would rule 
with me, anyway, Judge,'' and still preserve error.
    How do you evaluate the way you handle that in life?
    Judge O'Malley. At the time that was decided, which was 
very early in my career, so almost 15 years ago, the Supreme 
court had not been as clear at that point with respect to that 
issue. And in my original opinion, I actually stated at some 
length that the issue of exhaustion and the issue as to whether 
or not procedural default would apply was a very close call.
    Ultimately, the sixth circuit disagreed with me on that 
narrow question. Out of a 180-page opinion, that is the only 
thing they disagreed with.
    But even at the time, I acknowledged that it was a close 
issue and that the law was not fully developed as it would 
apply to those particular facts.
    Senator Sessions. And the sixth circuit affirmed you in the 
Esparza v. Mitchell case. However, they were reversed by the 
Supreme Court, an occasion on which you, again, upheld an 
objection to a death penalty case.
    Would you want to comment on that briefly?
    Judge O'Malley. Again, the sixth circuit did affirm me in a 
unanimous opinion with respect to the Esparza case. There were 
a number of issues in that case particularly having to do with 
the fact that the jury was never told about frontal lobe damage 
to the defendant.
    I think, actually, given the development of case law out of 
the Supreme Court since then, if the Court were to get the 
Esparza decision today, it might actually reach a different 
    Senator Sessions. Let me ask you to just make an 
affirmation, if you will, that you will--that you are prepared 
to give the government, the state prosecutors and the Federal 
prosecutors a fair shake and follow the law with regard to 
death penalty cases and that you have no personal feelings 
about the death penalty that would impair your ability to 
objectively and fairy adjudicate those cases.
    Judge O'Malley. Absolutely, Senator. If you look at my 
record, you will see that I have affirmed more death penalties 
than I have set aside throughout the course of my career.
    Senator Sessions. Well, I appreciate that and I think those 
cases both were close cases and good people could disagree on 
    I would just say you have got the kind of experience that 
would appear to warrant elevation to the court of appeals and I 
look forward to--at this point, I am not aware of anything that 
would cause me to have serious concern about your nomination.
    Judge O'Malley. Thank you, Senator.
    Senator Sessions. Mr. Chairman I am--well, I have a few 
more minutes before I will have to leave.
    Senator Whitehouse. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Judge O'Malley, Senator Brown gave a great introduction to 
you and I congratulate you and the minions behind you.
    Senator Franken. You are Irish Catholic. Is that right?
    Judge O'Malley. How did you guess?
    Senator Franken. My wife is Irish Catholic. Also, you are 
named O'Malley.
    Senator Franken. If you are confirmed, you will start to 
consistently hear a lot of intellectual property cases and in 
those cases, you are very often going to have to weigh the 
public's interest in then the free flow of information against 
proprietary interests or protecting investments.
    This is coming up a lot in the net neutrality debate, where 
a lot of us in the government want to ensure a free and open 
Internet, and where we also want to guard against piracy.
    Can you tell me how you are going to go about weighing 
those interests?
    Judge O'Malley. Well, Senator, thank you. Those interests 
or, actually, the balance with respect to those interests are 
actually spelled out in the statutes that we would need to 
    So the Patent Act, the trademark laws, the laws that I 
would have to apply actually contain the very balances that you 
are talking about.
    They were Congressional decisions and my job is to apply 
that balance as Congress has dictated it.
    Senator Franken. Well, I am glad to hear you say that, as 
if I was doubting that you would do that. But we were talking 
here about activism and judicial modesty, and I do have a 
concern myself about--what did you call it--the Silent Song of 
Activism, I think the Ranking Member called it.
    Senator Sessions. Siren's Song.
    Senator Franken. Oh, the Siren's Song. Oh, I see. Much 
better than Silent Song.
    Senator Sessions. Some songs are better silent.
    Senator Franken. Well, anyway, that was my real question, 
which is, is it Silent or Siren's Song and the Ranking Member 
answered it.
    But thank you and congratulations again.
    Judge O'Malley. Thank you, Senator.
    Senator Whitehouse. Thank you very much, Judge O'Malley. We 
are pleased that you are here. It is always a pleasure and an 
honor when the Ranking Member is here for these and his 
assurances that he sees nothing to inhibit your going forward 
is always pleasant news and the fact that there is not a whole 
wall of people on that side with questions is also usually a 
pleasant sight.
    So I will excuse you and we look forward to the Committee 
taking up your nomination in short order. And then I am going 
to assume it will be taken to the floor, where, along with a 
great number of other judges who cleared the Committee 
unanimously or with microscopic dissenting votes, we will 
descend into political quicksand for a while.
    Regrettably, that is the current situation. I hope that we 
can clear judges through, but I must say that there are judges 
who have cleared the Committee unanimously who have sat for 
months and months and months and months on the Senate floor 
awaiting a vote.
    Judge O'Malley. I have ultimate faith that won't happen.
    Senator Whitehouse. It is always good to have faith, Judge 
    Judge O'Malley. Thank you very much, Senator, and my whole 
family thanks you, as well.
    Senator Whitehouse. Congratulations to you and to your 
family. We are proud to have you with us.
    We will take just a 2-minute recess while the next panel 
comes forward.
    Senator Whitehouse. Will you please stand and be sworn?
    [Nominees sworn.]
    Senator Whitehouse. Thank you very much. Please be seated.
    If you would like to each take a moment to introduce your 
family and friends who are here, we would welcome that. And it 
is good to have that on the record of these proceedings for 

                    THE DISTRICT OF COLUMBIA

    Ms. Howell. Thank you very much, Chairman Whitehouse. I 
want to take the opportunity, first, to thank the committee, 
Chairman Leahy for his very gracious and kind remarks this 
morning, as well as Representative Norton. Thank you, Chairman 
Whitehouse, for chairing the hearing, and, Senator Franken, for 
being here. I really appreciate all the work that goes in on 
preparing for hearings and for the Committee giving me the 
opportunity to be here today.
    I also want to thank President Obama. I am profoundly 
humbled and honored by his nomination of me and for the 
opportunity to be considered by this Committee and the Senate 
to give its consent to my appointment to the bench for the 
district court for the District of Columbia.
    I with your forbearance, I do want to take the opportunity 
to introduce some of my family and friends who are here.
    Senator Whitehouse. We would like that.
    Ms. Howell. Starting with my husband, Michael Rosenfeld, 
who has been my unwavering support since we met in college. My 
parents, Colonel Howell and Ruth Howell. My father has spent a 
career in the military, doing public service, and instilled in 
both my siblings and me the ethic that you should always leave 
a place better than you found it, including picking up litter 
that you didn't leave, and I think that that is a public 
service commitment that all of us have endeavored to fulfill.
    Senator Whitehouse. We thank him for his service and wise 
    Ms. Howell. Yes. And my son, George Rosenfeld, is here. He 
is a rising junior at Columbia University and has taken time 
off from his two summer jobs in New York to come down for the 
    My two daughters, whose names I did want to mention, Alina 
Rosenfeld. She can't be here because she is volunteering in an 
orphanage in Nicaragua. And my other daughter, my 12-year-old 
daughter, Calla Rosenfeld, has decided this would be a little 
boring and decided to stay in camp in Vermont.
    Senator Whitehouse. The chairman, I know, would appreciate 
that choice.
    Ms. Howell. I do want to take the opportunity, also, to 
thank my mother-in-law, Judy Rosenfeld, who is also in Vermont, 
for her loving support for the past 30 years.
    I also have a friend, Kirby Heller, who is here. She is a 
dear friend from when we were prosecutors together.
    Thank you very much for the opportunity to do that.
    [The biographical information follows.]

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    Senator Whitehouse. Mr. Wilkins, would you like to do the 


    Mr. Wilkins. Thank you, Mr. Chairman. Thank you for the 
opportunity to appear before you. And I would like to thank 
Senator Leahy and Ranking Member Sessions, as well. And, 
Senator Franken, thank you for also appearing here.
    It's an honor for me to be here, and it is an honor for me 
to have been nominated by President Obama, and that's an honor 
that I will take and consider and seek to uphold as faithfully 
as I possibly can.
    I would like to take this opportunity to introduce my 
family, asking them to please stand. First of all, of course, 
my beloved wife, Amy ``Amina'' Wilkins; my sons, Bakari James 
Wilkins and Alim Russell Wilkins; my mother, Joyce Wilkins. My 
mother-in-law and father-in-law, Ernesteen and James Long. 
Unfortunately, there are two very special family members of 
mine who were not able to be here with me, my brother, Larry 
Wilkins and my dear grandmother, Marcella Hayes.
    I would like to take this opportunity to thank all of my 
family members and colleagues, past and present, who have 
supported me.
    Two very special people are here today that I'd like to 
acknowledge, dear friends of mine, Melvin Elvin Williams and 
Carl Racine.
    I am a 20-year resident of the District of Columbia and 
very proud of that, but I would be remiss if I didn't also 
advise this Committee that I was born and raised in Muncie, 
Indiana. And therefore, it is a distinct honor and pleasure for 
me to have with me my law partner, but, more importantly, my 
former Senator who has served this body so honorably for many 
years, including on this committee, and that's Senator Birch 
    [The biographical information follows.]

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    Senator Whitehouse. We are delighted to have Senator Bayh 
with us and back in this chamber again and we will be very sad 
when his son, Evan, goes on to other accomplishments and leaves 
us at the end of this term.
    I have been very honored to serve with Evan. We serve on 
the Intelligence Committee together. And the Bayh family, 
father and son, have left a very distinguished record in this 
body and we are honored that he is here.
    Senator Bayh. Thank you, Senator.
    Senator Whitehouse. Now, I gave you a preview of the 
previous nominee's testimony.
    I think that it is an important step when people move from 
their private lives to wear the robes and as we wear the robes 
and assume the responsibilities, the lifetime responsibilities 
of a United States district court judge.
    We have a certain amount of jousting back and forth on this 
Committee about activism and who does it, but I do think that 
underneath the jousting about an important constraint around 
the activities of a lifetime appointed judge, and it's a useful 
part of the hearing process to reflect that and to give you an 
opportunity to comment on it.
    The way that I say it is that judges must respect the role 
of Congress, the elected representatives of the American 
people; that they must decide cases based on the law and the 
facts and nothing else; that they not prejudge any case, but 
make sure that any person coming before them, gets a full and 
complete hearing, irrespective of their wealth or lack of it, 
power or lack of it; that they must respect precedent, like it 
or not; and that they must limit themselves to the question the 
court has fairly presented.
    Those are constraints that help define and protect the 
judicial function in this country, and I hope that you will 
both agree that they are ones that you will abide by as United 
States district court judges.
    Ms. Howell. Yes, Chairman Whitehouse. I can unequivocally 
say that those are principalities that I would abide by, would 
I be lucky enough to be affirmed as a district court judge.
    Senator Whitehouse. Mr. Wilkins.
    Mr. Wilkins. Thank you, Senator. I think that those are all 
excellent guideposts that I would certainly also affirm that I 
would try to maintain and abide by during my tenure, if I am so 
fortunate as to be confirmed.
    Senator Whitehouse. Very good. I appreciate that.
    Senator Franken.
    Senator Franken. I probably would not be a good judge 
because I do not agree with any of that.
    No. I actually completely agree with it. It was a joke from 
my last thing I used to do.
    Ms. Howell, you got a pretty decent intro from our 
    Ms. Howell. I would agree with that.
    Senator Franken. That was really pretty amazing. So I 
really do not have much to ask you, other than I am really 
curious about the corrupt building inspectors you prosecuted. 
Could you tell me how they were corrupt and exactly what they 
were doing? How many were there?
    Ms. Howell. I successfully convicted about 20 of them 
across different boroughs in the metropolitan New York City 
area, and their MO, modus operandi, was to extort payoffs 
before they would issue a certificate of occupancy to people 
who usually were quite desperate for their C-of-Os, 
certificates of occupancy, in order to move into their 
    Senator Franken. So what does that mean? Why did they--a 
certificate of occupancy means they could not move in until 
they got it.
    Ms. Howell. Owners of the buildings could not actually 
start using and occupying their building until they were issued 
a certificate of occupancy by the New York City building 
    Senator Franken. And the building inspector basically was 
saying this building is sound enough to be occupied; is that 
what the certificate of occupancy is?
    Ms. Howell. Essentially, yes. And the building inspectors 
would not issue the certificate of occupancy unless they had 
received a payoff.
    Senator Franken. And how long did they go to jail for?
    Ms. Howell. Approximately 3 years.
    Senator Franken. Seems fair. Mr. Wilkins, you have worked 
with indigent clients as a public defender and you have served 
on the D.C. Access to Justice Commission to expand access to 
legal services for poor people.
    I think that equal access to justice is absolutely 
necessary for a fair justice system. What will you do as a 
judge to ensure that everyone who comes in your courtroom has 
equal access to justice?
    Mr. Wilkins. Thank you, Senator. I think that as a judge on 
the U.S. district court, you have to be mindful of your 
obligation to make sure that justice is blind and that justice 
is equal and that a person who perhaps doesn't have all of the 
resources isn't affected unfairly on the merits because of 
that. And so I would try to be mindful of those issue as I was 
issuing my--as I would rule on particular matters.
    And I note that in the District of Columbia, there is a 
process by which judges can appoint counsel to the pro se 
matters, where the plaintiffs may have meritorious cases or 
potentially meritorious cases that need to be explored with 
competent counsel and that the judges often times work with the 
legal community to get them to take those cases, and I would 
certainly applaud and support that effort.
    Senator Franken. So that is the judge appointing a lawyer 
for a plaintiff.
    Mr. Wilkins. I believe that there is a process by which the 
court can refer a matter and seek to encourage counsel to take 
the case. He can't actually, I don't believe, appoint counsel. 
But firms sign up and agree to take cases as they are referred.
    Senator Franken. Well, I applaud the work that you have 
done and I congratulate you both on these nominations. 
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Franken.
    I join Senator Franken in congratulating you on the worthy 
academic and service careers that have prompted President Obama 
to nominate you for this extraordinary office, and I wish you 
every success as we go forward.
    As I said earlier, there is an unfortunate situation on the 
Senate floor right now; that people who come out of this 
Committee with unanimous support of the Committee nevertheless 
seem to fall into months of quicksand, but without prejudging 
how the Committee hearing will go, I hope and expect that it 
will be uneventful and that we will be able to get you through 
the floor and on to what I hope will be very distinguished 
careers at the bench.
    I congratulate both of you, I congratulate your families.
    The hearing will remain open for an additional week, the 
record of it will, if anyone wishes to add any further 
    But with no more business before the committee, the hearing 
is adjourned.
    [Whereupon, at 3:23 p.m., the hearing was concluded.]
    [Questions and answers and submissions for the record 







































                          DISTRICT OF ILLINOIS


                     WEDNESDAY, SEPTEMBER 15, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Richard J. Durbin 
    Present: Senators Franken and Sessions.

                   FROM THE STATE OF ILLINOIS

    Senator Durbin. If I could ask everyone to please be 
seated. Good afternoon. This hearing of the Judiciary Committee 
will come to order.
    Today, we have before us six outstanding judicial nominees 
to the Federal bench, and I commend President Obama for sending 
their names to the Senate. I would like to welcome each of our 
nominees, as well as their family members and friends who are 
in attendance.
    Our first nominee panel today--excuse me just a second.
    Thank you. I am just getting my signals straight here.
    First, we are going to welcome members of the House and 
Senate who are here to introduce those nominees who will be 
before the Judiciary Committee today. I see Senator Chris Dodd 
is in attendance. Senator Chambliss we hope will arrive very 
shortly. Senator Isakson from Georgia, also, welcome. 
Representative Eleanor Holmes Norton from the District of 
Columbia, fresh from her victory yesterday, welcome back. And 
Congressman Aaron Schock.
    So at this point, because of their own schedules, I am 
going to allow my colleagues to speak. I will tell those in 
attendance that on the first nominee panel today, we will have 
Susan Carney, nominated to serve on the U.S. Court of Appeals 
for the Second Circuit.
    On the second panel, we will hear from five district court 
nominees. Amy Totenberg, who has been nominated to serve in the 
Northern District of Georgia; James Boasberg and Amy Jackson, 
nominated to serve on the U.S. District Court for the District 
of Columbia; and, James Shadid and Susan Myerscough, who have 
been nominated to serve in the Central District of Illinois.
    Each of the nominees has the support of their home state 
Senators and in the case of the two District of Columbia 
nominees, they have the support of D.C. Delegate Eleanor Holmes 
    At these nominations hearings, it is traditional for 
nominees to be introduced to the Committee by members from 
their home states. The Ranking Member is on his way and will be 
here shortly, and he has given me permission to go forward with 
the hearing.
    I would note that at 3 p.m., we have a ceremony on the 
steps of the Capitol in remembrance of the victims of September 
11. We may be able to conclude this entire hearing by then; but 
if not, it is likely that we will take a short recess so that 
all members will have a chance to participate in that important 
    So before I introduce my nominees, I am going to defer to 
my colleagues who are here. And I believe the most senior in 
attendance would be the Senator from Connecticut, Senator Chris 


    Senator Dodd. Thank you, Mr. Chairman. That was not always 
the case, I want you to know, I was senior. But I thank you, 
Mr. Chairman, very much. And I know the Ranking Member will be 
along soon, as well.
    So I thank you for providing me this opportunity this 
afternoon to present to you and to the members of the Committee 
for your consideration the pending judicial nomination for the 
second circuit. And as you mentioned already, I have the honor 
of introducing you to Susan Carney, an extremely well respected 
member of Connecticut's legal community, nominated by the 
President in May to serve on the court of appeals for the 
second circuit.
    I would also like to take this opportunity to introduce 
some of her family. I am hesitant, because it is a--I do not 
know if the whole crowd made it or not, but I went down the 
potential list and it could fill this room, I think, 
potentially. But her husband, who is here, Lincoln Caplan; her 
daughter, Molly, who I met a moment ago, a student at Columbia 
    Her mother, Mrs. Carney, who is a veteran of the United 
States Navy, and delighted that she made the trip to be with 
us. Mrs. Carney, thank you and thank you for your service to 
our country, as well, too, and glad to have you with us today.
    Birch Bayh is here, former colleague, member of this 
Committee, and a great friend of the Carney family, the 
nominee's family, and was willing to come along and be here 
with us today, as well. Birch, it is great to see you as part 
of this confirmation process.
    The Senate's constitutionally mandated duty to provide 
advice and consent on nominees to the Federal bench is, in my 
view, one of the body's most important functions. It is our 
obligation, as members of the U.S. Senate, to carefully examine 
judicial nominees and determine for ourselves whether they are 
qualified for the positions that they have been nominated for.
    While I realize that my colleagues approach this process 
with different criteria, I firmly believe that Susan Carney is, 
by any measure and any criteria, imminently qualified to serve 
on this most important circuit court.
    Since her graduation from Harvard Law School in 1977, Susan 
has enjoyed a diverse and illustrious legal career that has 
taken her from government service to private practice to the 
halls of some of the most prestigious education and research 
institutions in the world.
    Having graduated magna cum laude, Susan clerked for Judge 
Levin Campbell on the first circuit court of appeals, following 
a distinguished career in the private sector, where she 
represented large nonprofit organizations on behalf of a 
variety of firms in Washington, DC, Los Angeles and Boston.
    Susan Carney was hired as the associate general counsel for 
the Peace Corps in 1996 and after 2 years of performing 
important legal work for that agency, Susan joined the office 
of general counsel at Yale University in New Haven, 
    Since 2001, Susan has served as Yale's deputy general 
counsel and done so with great distinction, I might add, Mr. 
Chairman. It is the second highest ranking legal position at 
the university. In her capacity, Susan has worked on a broad 
array of legal matters that come before the university, from 
international affiliations and transactions to research, 
intellectual property, technology transfer, and compliance 
    Throughout her career, Susan Carney has developed a 
professional versatility and breadth of legal knowledge well 
suited to serve on the second circuit court of appeals. And 
perhaps even more important, I believe she has exhibited the 
kind of temperament and unflinching respect for the rule of law 
that are absolutely critical components, in my view, of serving 
on the Federal courts.
    Last fall, before she was nominated by President Obama, I 
had the wonderful opportunity to spend time with Susan in my 
office in Hartford, Connecticut. Among the many topics, 
including, obviously, the Peace Corps--I served as a volunteer 
and she served as legal counsel--it came up during that 
    We talked about my father's service at the Nuremberg trials 
in 1945 and 1946 and how the Nuremberg trials are a powerful 
example of our Nation's commitment to the rule of law. And 
during that meeting, Susan reiterated her commitment to that 
ideal. I have no doubt whatsoever that, if confirmed, that 
commitment to the rule of law will define her service as a 
Federal judge on the second circuit court of appeals.
    So, Chairman Durbin and Senator Sessions, Senator Franken, 
as well, has joined you on the Committee here, I am certain 
that during the course of this afternoon's hearing, Susan's 
excellent qualifications will be closely and fairly 
scrutinized. It is my hope and confidence that following the 
Committee's consideration, the full Senate will be able to move 
forward expeditiously in confirming this superb nominee to 
serve on this most important circuit court.
    I thank the Committee.
    Senator Durbin. Thank you, Senator Dodd.
    I received a note here, and I would ask the indulgence of 
the other members. Congressman Schock, I believe, has a roll 
call vote that ends very shortly and I would like to give him 
an opportunity to say a few words before he has to depart.


    Representative Schock. Thank you very much, Senator Durbin. 
I appreciate that. And to my fellow panelists, I appreciate you 
indulging me.
    Once again, thank you, Senator Durbin and members of the 
Committee, for allowing me to share with you my reasons for 
enthusiastically supporting President Obama's nomination of 
State Circuit Court Judge James Shadid as a Federal district 
court judge.
    Jim Shadid is from my hometown of Peoria, Illinois. But 
that is not why I am here to support his nomination. I want to 
make clear that my support is not perfunctory support for 
someone who is simply from my district. I am here because State 
Circuit Court Judge James Shadid has been an outstanding 
circuit court judge, by every measure.
    In fact, I believe he is a role model for what it takes to 
clear backlogged cases and efficiently running the courts; and, 
more importantly, he is also a role model for fairness, 
justice, and protecting the public.
    James Shadid has the perfect temperament to serve the 
public as a judge. He comes to trials with no preconceived 
notions and is abundantly fair, has deep insights into the law, 
and has always ensured criminal defendants a fair trial. If and 
when those defendants have been found guilty, Judge Shadid's 
sentencing for violent criminals has been consistent. He is a 
tough, no nonsense, clear-headed judge, who has handed down 
thoughtful, but tough sentences.
    In a well known case in my hometown of Peoria, a defendant 
was on trial for shooting a gun into a crowd at one of Peoria's 
high schools. The defendant was found guilty. Judge Shadid 
sentenced him to 24 years in prison.
    The sentence was appealed and the appellate court found 
that Judge Shadid placed an undue emphasis on the fact that the 
shooting took place in a school, reversed the sentence, and 
remanded the case back to Judge Shadid for re-sentencing.
    The appearance of the appellate court pressing Judge Shadid 
to go easier on the defendant's sentence was plain for all to 
see in our community. Yet, Judge Shadid carefully considered 
the appellate court's ruling, clarified the legal basis on the 
sentence, and once again came down with a sentence of 24 years 
in prison for the defendant.
    Our circuit court, misdemeanor court, was notoriously 
backlogged with cases for a very long time. The average 
turnaround time was 8 months. Though he was in a position to 
focus on other sometimes more interesting types of cases, Judge 
Shadid volunteered to step up and take on the mess. He swiftly 
eliminated the backlog and put in place a more efficient 
process that has radically improved the functioning of our 
misdemeanor court.
    Judge Shadid goes above and beyond the call of duty, even 
in his judgeship, by holding mock trials in partnership with 
local high schools. This has given students invaluable insight 
into the criminal justice system, and I personally know of many 
young people whose lives have been turned around by Judge 
Shadid's admirable efforts to help at-risk youth.
    All in all, I do not believe it is possible to find a 
better person to serve as a Federal court judge. I commend 
Senator Durbin for his recommendation of Judge Shadid and 
President Obama for nominating James Shadid to serve the public 
as a Federal district court judge in Illinois.
    Once again, I thank the Committee for your consideration.
    Senator Durbin. Thank you, Congressman Schock, and I know 
you have to leave. We understand that.
    Representative Schock. Thank you.
    Senator Durbin. I would now like to recognize Senator 
Chambliss from Georgia.


    Senator Chambliss. Thank you very much, Mr. Chairman and 
Senator Sessions, Senator Franken, and other members of the 
    I am very pleased to be here today to introduce to the 
Committee Amy Totenberg, who has been nominated to serve as a 
district court judge for the Northern District of Georgia. My 
colleague, Senator Isakson, joins me here, obviously.
    This must be the day for Harvard graduates, as Ms. 
Totenberg is a graduate of Radcliffe College at Harvard, as 
well as Harvard Law School. She came to Atlanta in 1977, after 
attending Harvard Law School, began working at the Law Project 
in Atlanta, where she concentrated on constitutional rights 
    She has been a solo practitioner in Atlanta for some 20 
years and in addition to specializing in constitutional law, 
Ms. Totenberg has become a well known arbitrator and mediator, 
particularly in employment and civil rights cases. She served 
as a court-appointed monitor and mediator for the U.S. district 
court here in the District of Columbia and has also served as a 
special master for the U.S. district court in Maryland on an 
institutional education reform case, an area of the law where 
she has an awful lot of expertise, as she served as general 
counsel to the City of Atlanta's Board of Education from 1994 
to 1998.
    She also has a background in academia, having taught at 
Emory University, one of our great law schools, as an adjunct 
professor from 2004 through 2007. She has also been deeply 
involved in our community. Ms. Totenberg has sat on the State 
Personnel Board, chaired a special advisory education committee 
to the Georgia State Board of Education, served as a member of 
the Governor's Educational Reform Commission, presided over the 
Georgia Center for Law and Public Interest, and given her time 
to Hands-On Atlanta, the city's largest volunteer service 
    She has a wealth of experience both inside the courtroom, 
as well as outside the courtroom, and I am very pleased to be 
here to recommend her today.
    Thank you.
    Senator Durbin. Thank you, Senator Chambliss.
    Senator Isakson.


    Senator Isakson. Thank you very much, Senator Durbin. And I 
want to thank the Ranking Member and Chairman Leahy for 
offering us the opportunity to be here today to introduce Ms. 
    I am not an attorney and I am certainly not going to repeat 
the resume introduction of Senator Chambliss, but I would add 
that the Senator and I chair a six-member judicial review 
committee that reviews all the nominees presented in Georgia, 
and they recommended that Ms. Totenberg be presented to you for 
consideration for the Northern District of Georgia.
    I do, however, have one bit of knowledge or expertise in an 
area where Ms. Totenberg has been eminently qualified, and that 
is in the area of public education. And I would note that today 
in the audience are two district court judges from the District 
of Columbia who have often called on Ms. Totenberg to serve 
them both in arbitration and mediation, as well as opinion on 
education law.
    So I am pleased to join Senator Chambliss today to commend 
Ms. Totenberg to the Committee for their consideration, and I 
thank you for your time.
    Senator Durbin. Thank you, Senator Isakson.
    Delegate Eleanor Holmes Norton.

                          OF COLUMBIA

    Representative Holmes Norton. Thank you very much, Chairman 
Durbin, Ranking Member Sessions.
    I am pleased to introduce two exceptionally well qualified 
nominees for the U.S. District Court for the District of 
    As you know, we do not have Senators in the District of 
Columbia, but I have appreciated that President Obama has 
granted me the courtesy to recommend the U.S. attorney, the 
district court judges, and similar Federal law enforcement 
officials. In turn, I have sought to empower the residents of 
the District of Columbia by forming a 17-member commission of 
lawyers and laymen to investigate and vet and recommend to me 
candidates, and I consider only candidates who have come 
through my judicial nominating commission.
    I am particularly proud of the two nominees before you 
today. Judge James Boasberg now serves as an associate judge 
for the District of Columbia Superior Court. Before that, he 
was an assistant attorney for the District of Columbia for some 
years and in private practice.
    He clerked for Dorothy Nelson of the United States Court of 
Appeals for the Ninth Circuit, has his degrees from Yale 
College, Yale Law School, and Oxford University.
    Amy Berman Jackson is a top practitioner in one of the 
District's top law firms, where she specializes in complex 
criminal and civil trials, litigation and appeals. Ms. Jackson 
also served as an assistant United States attorney for the 
District of Columbia, winning a number of awards from the 
Department of Justice while she was there.
    Ms. Jackson is a cum laude graduate both of Harvard College 
and Harvard Law School.
    The District of Columbia is the home of a plethora of 
highly qualified lawyers. Mr. Chairman, I believe that the two 
nominees I introduce today would be rated among the best by 
their own peers.
    Thank you very much.
    Senator Durbin. Thank you, Delegate Norton. I appreciate 
that very much.

                   FROM THE STATE OF ILLINOIS

    Senator Durbin. I would like to say a few words about the 
two nominees from Illinois, Jim Shadid and Susan Myerscough, 
who have been nominated to fill judgeships in the U.S. District 
Court for the Central District of Illinois.
    I am going to appeal to Senator Sessions after this 
hearing, assuming a favorable outcome, because we only have one 
active status district court judge in the Central District of 
Illinois. The remaining three judgeships are currently vacant. 
It is a large district and one judge just cannot handle it.
    The Administrative Office of the U.S. Courts has determined 
that the Central District vacancies are a judicial emergency. 
So we are hoping for a timely consideration, if the nominees 
are approved by the Judiciary Committee.
    A word about Jim Shadid. As Congressman Schock has said, he 
is highly regarded in the Peoria community for his service on 
the state bench. He is seeking the seat that was vacated when 
Judge Michael Mihm took senior status.
    Jim Shadid is a leading figure in the Peoria legal 
community. He was born in Peoria and many believe he got his 
start in life in a favorable way because he knew how to play 
ball. Specifically, he was quite a baseball player for the 
Bradley University Braves. He was a two-time team MVP and 
inducted into the Bradley Athletics Hall of Fame.
    After graduation, he played a season of minor league 
baseball, and then turned his talents to the law. He was first 
appointed as circuit judge in 2001; won retention elections, 
which require 60 percent of the vote, I might add, in 2002 and 
2008; presided over 300 trials and thousands of pleas and 
    Prior to his service on the state bench, he worked as an 
attorney in private practice, public defender, commissioner on 
the Illinois Court of Claims, and assistant attorney general.
    In addition to his broad experience on the bench and in the 
law office, he has an impressive record in the Peoria 
community, tenure as president of the Boys and Girls Club, and 
has service on the boards of numerous other organizations.
    Finally, I will note that Judge Shadid was the first Arab-
American to serve as a state judge in Illinois. Upon his 
confirmation, if the Committee gives approval, he will be the 
only Arab-American Federal judge in our state.
    There is a large Arab-American community in Peoria, 
including my friend, former colleague, and current Secretary of 
the Department of Transportation, Ray LaHood. So I know this 
community is very proud of Judge Shadid.
    A word about Sue Myerscough. She has been nominated to fill 
the Springfield-based seat vacated by the retirement of Judge 
Jeanne Scott, who has long been a prominent figure herself on 
the Springfield legal landscape.
    Sue Myerscough has over 23 years of judicial experience, 
currently serves as an elected justice of the Illinois Fourth 
District Appellate Court.
    A native of Springfield, she earned her BA and law degree 
from Southern Illinois University and began her career as a law 
clerk for Judge Harold Baker of the Central District. Following 
that, she was in private practice for 6 years. She was 
appointed as associate judge in 1987, elected full circuit 
judge in 1990; and, during her 11 years as trial judge, she 
presided over thousands of bench and jury trials, including the 
most complex civil litigation and murder trials.
    In 1998, Justice Myerscough was elected to her current seat 
on the Illinois appellate court; in 2008, won her retention 
election; and, during her 12 years on that court, has authored 
over 1,200 decisions on a wide range of issues.
    She has worked actively to promote legal education for 
school children and, since 2001, has served on the board of 
visitors for the SIU Law School. Since 1994, she has served as 
adjunct professor at the SIU School of Medicine, an institution 
where I also had the privilege of a non-paid teaching job.
    Justice Myerscough was first nominated to serve as Federal 
district court judge 15 years ago, but never reached the point 
of a hearing.
    Today is an important step, Judge Myerscough, and thanks 
for your patience. You have waited a long time, and it is my 
pleasure to welcome you and your family here today.
    If there are no further introductions from my colleagues 
and others, I thank those who did come to introduce the 
nominees, and they will be excused to return to their important 
duties. Thank you all.
    Now, first, we will consider Circuit Court nominee Susan 
Carney, and she will be brought to the table individually and 
questions will be asked, and then we will bring the other 
nominees forward.
    Before she is seated, it is the custom of the Committee to 
administer an oath before testimony. So if you would please 
repeat after me.
    [Nominee sworn.]
    Senator Durbin. Thank you. Let the record reflect that the 
nominee has answered in the affirmative.
    So, first, I would like to give you, Ms. Carney, an 
opportunity to introduce family and friends who may be in 


    Ms. Carney. Thank you very much. I'd also like to thank the 
Chairman, the Ranking Member, yourself, Senator Durbin, Senator 
Dodd for his generous introduction, Senator Franken, with whom 
I met this morning, and the rest of the Committee for their 
time and consideration of my nomination. I would also like to 
thank Senator Birch Bayh, whose presence here today honors me.
    If I could introduce my family members who are here, they 
could stand up perhaps. My husband, Lincoln Caplan, my husband 
of 31 years; my daughter, Molly Caplan; my mother, Cleo Carney, 
a veteran and recently retired from her long-time work; my two 
aunts, Dr. Maria Olgas, a nurse and professor of medical 
surgical nursing in Richmond, Virginia; my Aunt Kassie Olgas, 
long-time operating room supervisor in the Veterans' 
Administration, including at Hines Memorial Hospital.
    My sister-in-law, Joanna Caplan; her husband, Bob Blaemire, 
worked for Birch Bayh. My brother, Scott Carney; my mother-in-
law, Kit Caplan. And I'd also like to acknowledge my four other 
brothers who are watching from other venues, my 14 nieces and 
nephews, my sisters-in-law, and my extended family.
    I'm very fortunate in having a large and wonderful family 
and wonderful colleagues at Yale and elsewhere, as well. So 
thank you very much.
    Senator Durbin. Thank you.
    Ms. Carney. One last thing. I did want to mention my 
father, who died 8 years ago. He was the first lawyer I knew 
and gave me my first lessons in the law, and he would have been 
very proud to be here today.
    Senator Durbin. Thank you very much for that recognition. I 
might also add that we will, without objection, include 
statements in the record relative to nominees by Senator Joe 
Lieberman on behalf of Susan Carney, before us now, and a 
statement also being made by the Chairman of the Committee, 
Senator Pat Leahy, will be entered, without objection.
    [The statements of Senator Lieberman and Chairman Leahy 
appears as a submission for the record.]
    Senator Durbin. I will ask first and then defer to my 
Ranking Member here, Senator Sessions.
    You have got an interesting background in the clients that 
you have had, the work that you have done in the legal field, 
general counsel's office at Yale University, associate general 
counsel of the Peace Corps. But sticking with the topic which I 
raised in relation to Judge Shadid, you provided representation 
for the Major League Baseball Players Association in the unfair 
labor practices action against the baseball owners during the 
1994-1995 baseball strike.
    To the relief of myself and baseball fans everywhere, the 
litigation ultimately resulted in the ending of the players' 
strike. Tell us about your role in that litigation.
    Ms. Carney. I had worked at the law firm of Bredhoff and 
Kaiser in those years with George Cohen, who is now the 
director of the Federal Mediation and Conciliation Service, and 
Virginia Seitz, in particular, on briefing issues to the 
National Labor Relations Board about whether a Section 10(j) 
injunction should issue to prevent the unilateral imposition of 
the salary cap that the owners were considering at the time.
    That effort, the briefing effort, I worked on researching 
and writing the briefs with my colleagues at Bredhoff and 
Kaiser. That resulted in an opinion by the National Labor 
Relations Board in favor of the injunction.
    The injunction was subsequently sought and granted by now 
Justice Sotomayor in New York.
    Senator Durbin. So you have friends in high places. And you 
also did a lot of work with intellectual property, which is 
something we discuss at length in the Judiciary Committee. It 
is a very difficult, complicated issue, but very important, as 
well. And you did a lot of work on intellectual property law, 
particularly when you were serving as general counsel at Yale.
    How would that experience in this complicated area of law 
enhance your perspective as a Federal judge?
    Ms. Carney. I served as acting general counsel for about 6 
months and in my--throughout the 12 years I've been at Yale, 
I've worked on intellectual property issues, including patent 
law and copyright law.
    With all the technological change that we have been 
experiencing, the law has been changing rapidly in those areas. 
And there are areas that are subject to consideration by this 
body that--the Patent Reform Act, for example--that I think the 
experience I have in licensing, working on licenses for the 
university, working on issues related to the Digital Millennium 
Copyright Act, for example, that experience would serve me in 
good stead, as those issues are presented to the second 
    Senator Durbin. I would like to ask you my last question, a 
general question, so that it will be part of the record.
    Tell us about the pro bono and civic work that you have 
done even as you pursued your legal career.
    Ms. Carney. I have focused--not having been a litigator in 
recent years, but more supervising litigation, although I 
started as a litigator, I have focused my pro bono work on 
community service through board memberships, largely, providing 
guidance and counsel, as I have participated in New Haven youth 
soccer and so on.
    I did work extensively on one pro bono matter here in the 
District of Columbia when I was a resident here, but by 
appointment of Judge Frank Burgess in the D.C. superior court.
    So I have kind of scattered my pro bono efforts in those 
ways. I think community service is very important and I've 
always tried to find ways to contribute.
    At the moment and last year, I've been serving as a reading 
tutor. So it hasn't been legal activity, but community 
involvement in that way.
    Senator Durbin. Thank you very much.
    I am going to recognize my colleague, Senator Sessions. And 
at the beginning of the hearing, I noted that if you had an 
opening statement, we would be happy to enter it as part of the 
record at the appropriate place.
    Senator Sessions. Well, I will do that and would just note 
that we are moving nominees through the Committee at a rather 
good rate, and I will definitely be amenable to your request 
for your judges. They both seem to have good backgrounds. So we 
will look at that.
    But President Obama's nominees to the district court have 
waited an average of 49 days for a hearing. President Bush's 
nominees to the district courts have waited 89 days, on 
average; 28 of those nominees had not received a hearing at 
this point in the process, and, likewise, we are moving at a 
pretty fast pace.
    So you and the Chairman are keeping us busy. We are keeping 
up. The President is taking somewhat of his time in making 
nominations. He should not rush. But of the 85 district court 
vacancies today, only 33 do we have nominees from. So we cannot 
confirm people when we do not have a nomination.
    But we should take the time to review them carefully 
because it is a lifetime appointment. It is not an election. It 
is the confirmation process and it is the only opportunity the 
American people have to make sure the nominees are well 
qualified before they are launched on the public, for good or 
    Judge Shadid, I see you are a good baseball player. The 
only thing better would be a good umpire. I think baseball is a 
good experience for a Federal judge. A neutral umpire would be 
pretty good, although I noticed some of my colleagues did not 
like the idea of a neutral umpire in the last confirmation 
hearings that we have had.
    Ms. Carney, you have had about 12 years now as Yale's 
lawyer and I understand that you have not tried or litigated 
any cases before the court. Have you ever tried a case yourself 
as lead counsel or actually been in the trial where you 
participated in examination of witnesses or arguments before a 
    Ms. Carney. I have been primarily an appellate lawyer, 
Senator Sessions. I have participated in one hearing in which I 
examined witnesses and I participated in several depositions, 
but I have not tried a case to conclusion.
    As I said, my focus has been on appellate lawyering.
    Senator Sessions. Have you argued before the court of 
appeals a case?
    Ms. Carney. I have not.
    Senator Sessions. Nor the Supreme Court.
    Ms. Carney. No, sir.
    Senator Sessions. Well, it is a lack. It is not a 
disqualifying lack. But to me, I think normally we would expect 
a judge to the United States Court of Appeals, one step below 
the Supreme Court, to have some experience in the courtroom or 
in the appellate arena.
    Do you think that is a handicap to you and do you have any 
plans as to how you might overcome that?
    Ms. Carney. Senator, I don't see it as a handicap. I would 
have preferred to have that experience given where I am at the 
moment, but I started out as a clerk for an esteemed Federal 
circuit judge, Levin H. Campbell, worked on many opinions with 
him, for him. Of course, the result was his.
    I worked on appellate briefs, including Supreme Court 
briefs, extensively in the first chapter of my career when I 
was a lawyer here in Washington. I have continued to be 
involved in litigation since then, more as a supervisor or a 
co-counsel, on activities for the Peace Corps and for Yale.
    And I believe that the breadth of experience that I have as 
a government lawyer, in private practice, and now as an in-
house counsel for a major research university gives me broad 
exposure to the legal issues that are likely to come before the 
court of appeals. And so I do feel that I'm qualified for this 
    Senator Sessions. I would just say I do believe you learn 
something from actual participation before a judge. If you want 
to be a judge, you normally like to have seen one in action. 
And I do think that we should--that is a factor that weighs in 
my evaluation of a nominee.
    I will not attempt to express the things that you can learn 
from that actual experience, but one of the things is that a 
lawyer who has practiced a lot or a judge who has been on the 
bench for a while, I think, understands that they are not 
policy-setting officials.
    They have to decide the discreet dispute before them and 
that is what the parties expect and when they get away from 
that, they are damaging the system and they are not as 
effective as they should be.
    You have had very little criminal experience. Are you 
familiar with the sentencing guidelines and describe your 
understanding of the sentencing guidelines, the importance that 
they play in the criminal judge system and Federal court, and 
the degree to which you feel guidelines should be followed.
    Ms. Carney. I am familiar with the sentencing guidelines. I 
believe that they brought an important consistency to Federal 
sentencing throughout the United States after years of great 
    I'm familiar with the Booker decision that held that they 
were--these guidelines were no longer mandatory, but were 
advisory, and I believe the second circuit has extensive case 
law with regard to the guidelines and requires its district 
court judges to apply and calculate the sentences and the 
sentencing range that would be applicable were the guidelines 
still mandatory and that the practice is of deferring and 
giving weight to the guidelines in sentencing.
    Senator Sessions. Have you formed an opinion about your 
personal view as to the respect the guidelines should be given?
    Ms. Carney. Well, if I were so fortunate as to be 
confirmed, Senator Sessions, I would follow the Supreme Court 
law and the court of appeals law in the second circuit about 
implementing the guidelines in the post-Booker environment.
    Senator Sessions. Well, I agree with you that they are 
valuable, too. There is no doubt it has reduced the disparity 
in sentencing and you have to know, which perhaps you have not 
had the experience to know, but judges in the very same 
courthouse, often on the same floor, were giving dramatically 
different sentences for the very same offenses. And it is like 
which judge you knew depended on whether you got probation or 
10 years in jail, and that is what this Committee, before I got 
on it, from Senator Kennedy to Senator Thurman and Senator 
Biden and others agreed was an untenable position.
    So we moved to the guidelines, but there is an erosion of 
their power by recent Supreme Court decisions. And I hope that 
as you wrestle with those issues that come before you, you will 
understand that there is a danger in deferring too readily to 
unsupported views of a trial judge who just may not be willing 
to--does not want to be consistent.
    Tell me about your view on the death penalty. Have you 
expressed any views on that and do you have an opinion as to 
its appropriateness?
    Ms. Carney. If I were to be confirmed, Senator Sessions, I 
would apply the law as it--as I read the law, the law of the 
second circuit and of the Supreme Court, and I feel comfortable 
doing that.
    Senator Sessions. Have you expressed an opinion on the 
death penalty as to whether or not you think it is an 
appropriate sentence and if the legislature should or should 
not pass it?
    Ms. Carney. I have not.
    Senator Sessions. And you are prepared to enforce it, 
regardless of your personal views, in a fair and effective way.
    Ms. Carney. Yes, Senator, I am.
    Senator Sessions. We have had a good bit of discussion 
about a judge allowing empathy or their feelings for how the 
law affects the daily lives of American people in their 
decisionmaking process.
    Do you believe a judge should allow their own personal, 
political, moral, religious or social values to influence their 
decisionmaking process?
    Ms. Carney. Senator, I believe the job of a judge is to 
objectively apply the--and neutrally apply the law to the fact 
as found before him or her, as presented.
    Senator Sessions. I know Justice Sotomayor rejected 
President Obama's empathy standard, as it came to be known, 
saying, quote, ``We apply the law to the facts. We don't apply 
feelings to facts,'' closed quote.
    Do you agree with that comment?
    Ms. Carney. Yes, Senator.
    Senator Sessions. Well, thank you for these comments. I 
will be submitting, I am sure, some additional questions for 
the record.
    I will note, for all of the nominees and for the people in 
the audience, that you have to go through a pretty rigorous 
examination before you get to this chair. You have to meet with 
Department of Justice, you meet with the White House lawyers, 
you are reviewed by the ABA, the FBI does a background check, 
all of which is available to us and we evaluate in our analysis 
of the nominees.
    So I would just say that we feel a responsibility, all of 
us do, I think, on the Committee to make sure that we fulfill 
that duty carefully before we cast our vote.
    Thank you very much.
    Ms. Carney. Thank you, Senator.
    Senator Durbin. Thank you, Senator Sessions.
    Senator Franken.
    Senator Franken. Ms. Carney, as Senator Sessions mentioned 
and as you acknowledged, you have never tried a case to 
verdict. But as you replied, you have had a pretty substantial 
appellate practice.
    How many Federal appeals have you worked on?
    Ms. Carney. Senator Franken, I'm not exactly sure. I 
haven't done the count. I've worked on some appeals at Yale. I 
have worked on appeals when I was in practice in Washington. 
Maybe it's 15 cases. I couldn't say.
    Some of those--that includes a Supreme Court case, which 
involves a petition for certiorari and so on.
    Senator Franken. But this is an appeals court and you have 
had somewhere in the ballpark of 15 appeals.
    Ms. Carney. I couldn't say for sure, but I think that would 
be--that doesn't include the experience I had when I was 
clerking for Judge Campbell and the other brief-writing that I 
participated in, which is a similar exercise.
    Senator Franken. How many Federal appellate briefs have you 
    Ms. Carney. I, again, would think it's around 15, but 
that's appellate brief. Similar would be motions for summary 
judgment, motions to dismiss, arguing legal standard and 
analyzing cases in the motions practice, which more 
characterizes the litigator's practice this day than a trial 
practice, which my father engaged in.
    Senator Franken. And this is an appellate court, obviously, 
that you----
    Ms. Carney. Yes, Senator.
    Senator Franken (Continuing). Have been nominated for. So 
that experience is very relevant, I would think.
    Ms. Carney. Yes, Senator.
    Senator Franken. Now, Senator Sessions was talking about 
the job of a circuit judge is to apply the law, and I would 
think that could well be described--since you are abiding by 
decisions that are made by the Supreme Court, that the 
appellate judge really is an umpire, more or less.
    Ms. Carney. Well, I think that the job is----
    Senator Franken (Continuing). Maybe more so than a Supreme 
Court justice.
    Ms. Carney. I think that the job is to apply the law to a 
record that's established in the district court and because the 
facts are found below and the Supreme Court is directive above 
and one is surrounded by precedent, there are fairly narrow 
margins for----
    Senator Franken. Interpretation.
    Ms. Carney (Continuing). Interpretation, exactly.
    Senator Franken. Right. So that, in a way, really is--it is 
narrow because it has really been defined by decisions that you 
adhere to. You are always going to be applying the decisions 
that have been made by the court, by the Supreme Court and by 
the appellate court, before you, right?
    Ms. Carney. Yes, Senator.
    Senator Franken. So in that way, very much like an umpire, 
and I think that Senator Sessions can take great solace in 
    On the Supreme Court, then, you do not have to answer this, 
but it seems to me that you are almost defining the strike zone 
and it is almost an entirely different job. I would not expect 
you to want to even get into that.
    But an important part of your work, if you are confirmed, 
is to interpret our work in the Congress. When you are 
interpreting a statute, what will you do to make sure that you 
are interpreting the law in line with our intent?
    Ms. Carney. I would start with the text of the statute. I 
would look to other judicial interpretations of the statute, 
starting with the Supreme Court, of course, and within the 
second circuit, as well as collegial circuits and, from the 
text and the interpretations that had already occurred, work to 
understand the Congressional intent and to apply it as Congress 
    Senator Franken. Well, let me ask one last one. In the 
1990's, mid 1990's, you represented a workers' union in 
Tennessee, after its members were exposed to depleted uranium, 
and I think you had an important victory there.
    Can you tell us about that case?
    Ms. Carney. That was a case in which workers had walked off 
the job because of a fear of imminent harm from their exposure 
to depleted uranium. They invoked a clause of the National 
Labor Relations Act, as I recall, that gave them the 
permission, if you will, under the statute to absent themselves 
in a non-strike situation.
    And there was a debate between the union and the employer 
about whether that clause applied or whether there was really 
something else going on. The firm I was with, Bredhoff and 
    After a very long history in the courts and before the 
National Labor Relations Board, the workers' position was 
vindicated that this was a potential harm to them and that they 
were justified in invoking this section of the statute that 
Congress had passed.
    Senator Franken. Thank you, Ms. Carney, and congratulations 
on your nomination.
    Ms. Carney. Thank you so much.
    Senator Durbin. Ms. Carney, thank you very much. And since 
there are no further questions for you at this time, we are 
going to excuse you. You probably will receive written 
questions from members who are here today and those who will 
look over the transcript of the record and your background 
before reaching their conclusions about your nomination.
    But thank you very much for being here, we really 
appreciate that, and for your family and friends for attending 
with you.
    Senator Bayh, it is always good to see you and I think that 
Ms. Carney has at least one Senator she might recommend that 
you speak to on her behalf.
    I would thank all those who are here and ask their 
consideration of the fact that we are going to stand in recess. 
At 3 p.m., there is a ceremony involving Members of Congress 
and the observance of the 9/11 anniversary that we just 
recently noted, I should say, and that will probably go until 
about 3:30 p.m.
    I will try to return promptly at that moment and bring in 
the second panel, put them under oath, and move forward as 
quickly as I can.
    So if there are no objections--I am not sure it would make 
any difference if there were--I am going to ask that this 
Committee stand in recess.
    Senator Sessions. Senator Bayh, it is great to see you. 
Thank you for being here.
    Senator Durbin. This Committee stands in recess.
    Senator Durbin. The Committee will resume consideration of 
the nominees. And if I could ask the district court nominees to 
stand behind your chairs while I administer the customary oath.
    [Nominees sworn.]
    Senator Durbin. Let the record indicate that all five 
nominees have answered in the affirmative.
    Senator Sessions has told me to start and he will try to 
return, as others will. As you can understand, things come and 
move about here.
    I would like to ask each of you to take a moment and 
introduce your family and friends who are in attendance today, 
and perhaps we will start with Ms. Totenberg of Georgia.
    [The biographical information follows.]

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    Ms. Totenberg. First of all, thank you very much, Senator 
and members of the Committee, in absentia, for your review and 
consideration of the application. I'm just deeply grateful, 
deeply grateful to the President, and, of course, to my Georgia 
Senators who appeared today for their very kind and generous 
introduction. It is a real privilege to be here today.
    I want to start off by, of course, introducing my family 
who is here, both in body and in spirit, and would like to 
start off by just speaking about my father, Roman Totenberg, 
who will be 100 on January 1 and who is not with us today, but 
who is actually living and working in Boston and teaching at 
Boston University and remains an extraordinary man.
    He first came to this country in 1935 to give his first 
concert here. He had been a concert violinist in Europe and he 
gave his debut concert in Washington, DC and fell in love with 
this country totally, and then with the shadow of Nazi power 
coming over Europe in the following years, he moved to the 
United States and married my mother.
    He embraced the freedom and democracy in our country, which 
has just really been sort of the hallmark of our experience of 
citizenship. And he has been a lifelong model of human 
independence, professional dedication, and personal wisdom, and 
I am deeply grateful for the role model he has provided, as 
well as his affection. And I know he will be watching the 
Webcast when there is somebody at home to manage the 
    And my mother, who is no longer alive, would love to be 
here and I honor her in principal, of course, but I've got a 
great gang who are here. And first and foremost, my husband, 
Ralph Green, a man for all seasons and my great support, 
married for 30 years; and, my three daughters, Naomi Green, 
Sonya Green, and Clara Green. And I would ask them all to stand 
    And my husband is hiding out, but that's all right. He's 
got the girls for protection. I also have a great daughter, 
Emily Green, in California and she couldn't join us, because 
she has a new job there.
    And I've got wonderful other supports here, as well. I've 
been incredibly fortunate in my life to have worked with Judge 
Marvin Garbis and Judge Paul Friedman from Maryland and from 
DC, and they are both here today, and they have given me an 
exceptional opportunity in life to work with both of their 
courts in very important cases that benefit the children of the 
city of Baltimore and Washington, DC and have been very 
difficult cases and complex ones. But it's been an 
extraordinary opportunity to work with them.
    And flowing out of that, I have a great crowd of people 
from Baltimore and Washington, DC. There are representatives, 
both council and representatives of the parties in the 
Baltimore case, from the State of Maryland, Baltimore City 
Schools, and the Maryland Disability Law Center are all here, 
and I would ask them to stand up, all that entire group of 
    And then we also have people from the Washington city 
schools and I am very appreciative of them, as well. And I have 
my very close former colleague from Baltimore, Erin Leff, and 
my very good friend from Atlanta, Midge Sweet, who has traveled 
up here today, and, of course, a host of people in Georgia who 
I have worked with.
    Thank you so very much, and thank you to all my friends and 
family who are here.
    Senator Durbin. Thank you.
    Judge Boasberg.
    [The biographical information follow.]

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    Ms. Totenberg. And I did forget my sister, Jill Totenberg, 
and that would be like I'm going to be really in trouble. But 
she's right there. I can hear her whispering.
    Senator Durbin. Judge Boasberg.


    Judge Boasberg. Thank you very much. I am also very honored 
to be here and would like to introduce my family. I'll start 
with my father, Tersh Boasberg, who is here. My mother, Sally 
Boasberg, would very much like to be here. She's, however, in 
the hospital recovering from cancer surgery, but the good news 
is she is watching on the Webcast, which is being engineered by 
my sister, Margaret, who is with her in the hospital. So 
they're watching now.
    My other sister, Melissa Boasberg, is here, and she is also 
representing my brother, Tom Boasberg, who now has the job that 
now Senator Michael Bennett from Colorado formerly had as the 
superintendent of the public schools in Denver.
    I'd also like to mention my wife, Liddy Manson, who is 
here, and also my children; my son, Daniel, and my twin 
daughters, Katharine and Anne. And as impressed as they are by 
this August proceeding, I think they're even more excited that 
they got out of school early.
    Senator Durbin. Thank you very much.
    Ms. Jackson.
    [The biographical information follow.]

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    Ms. Jackson. Thank you, Senator. I would first like to 
thank you and the Committee for considering my nomination and 
for scheduling this hearing. I would like to thank President 
Obama for nominating me. It's an extraordinary honor and I will 
certainly dedicated myself, if confirmed, to living up to the 
confidence he has placed in me.
    I would like to also thank Congresswoman Norton not only 
for recommending me to the President, but for establishing a 
commission and a process that enabled anyone to fill out an 
application and be considered.
    I would like to introduce to you family members who are 
here and mention some who can't be here. It is very humbling to 
be in this room and realize that it was my grandparents who 
came here on a boat, all four of them, to this country, with 
nothing, to escape oppression. They valued education more than 
anything else and it is through their hard work and their 
dreams that I sit here today.
    They certainly paved the road for me and it--really 
carpeted, to tell you the truth--and it was their lifelong 
commitment to service and learning and family that has been 
instilled in me.
    My grandmother, Lena Sauber, who can't be here, is 
represented by the necklace that I'm wearing. I may be your 
first nominee to ever introduce her jewelry. But I wear that to 
remember the woman who came here, learned the language, became 
a citizen, was a suffragette, raised three daughters, and ran a 
business, and I know that she is connected to me and watching 
here today.
    With me here today is my mother, Mildred Berman. She is 
here today and I would say she's always been there. She was the 
welcoming presence every day when I came home from school to 
greet me and have the perfect snack and in her house, I grew up 
blissfully unaware that there was anything that I couldn't do 
when I grew up as long as I got off the phone and did my 
    I would like to introduce other members of my family who 
are here to support me. My cousin, Helen Schlossberg-Cohen, and 
my father's sister, Rose Abelson.
    I'm also supported here today by my husband, Darryl 
Jackson. We met in the U.S. attorney's office many years ago 
and we've always both been committed to returning to public 
service. He was able to do it when President Bush nominated him 
to an assistant secretary's position, and I'm very thankful 
that he has agreed that it's my turn, and that he has supported 
me every step of the way.
    I, unfortunately, am not joined today by my two handsome 
and brilliant sons, David and Matthew. They have recently been 
delivered to college and so they're unable to be here. But I 
hope that they're watching the Webcast and if not, I am sure it 
is because they are studying very hard.
    I have been blessed as a lawyer to have the good fortune to 
only work at places with people I loved and people I admired 
and respected. My colleagues--many of my colleagues from Trout 
Cacheris are here. And it's such a small firm, I think I can 
say that Trout Cacheris is here.
    I am so honored by the fact that Plato Cacheris and my 
other partners have all come. But I would like to especially 
mention Bob Trout and John Richards, who gave me the gift of a 
lifetime when they asked me to join their small firm. And my 
partner and friend, Gloria Solomon, who was the first person I 
told that I planned to fill out the application for 
Congresswoman Norton and who did not laugh and who has been 
thrilled and supporting me every step of the way, along with so 
many of the women that I count among my close friends who are 
here today, Jennifer Levy, Ruth Kassinger, Maureen Asterbody 
(ph), Susan Morrow, Melanie Ferrara, and my many friends who I 
hope have been able to watch.
    To conclude, I really want to talk the most about the two 
people who can't be here today; my late brother, Gordon Berman, 
and my father, Barnett Berman. I've always been touched by the 
line in the Memorial Prayer that says you honor your loves 
ones, your lost relatives, by standing up and pursuing the 
ideals that they stood for.
    My brother stood for using your law degree to pursue 
justice. And my father was not a lawyer. He was a doctor, but 
he was one of those old-fashioned kind of physicians who 
believed that you treat the patient who has the disease and not 
the disease who has the patient.
    He wrote me a letter on my last day of law school and he 
said to me that it was expected that I would use my law degree 
and the gifts that he thought I had for something larger than 
just private concerns. He said, ``Of you, more is expected.''
    I have that letter with me today. I know he is here with me 
today and I trust that he would say that this is what he had in 
    Thank you.
    Senator Durbin. Thank you very much.
    Judge Shadid.
    [The biographical information follow.]

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    Judge Shadid. Thank you, Senator Durbin and Chairman Leahy 
and Ranking Member Sessions and this Committee, for considering 
my nomination and everybody else's nomination. And on a 
personal note, Senator Durbin, thank you very much for the 
confidence that you placed in me by sending my name on to the 
President. I appreciate that confidence you have in me and I 
can assure you that that confidence will be well placed. Thank 
you very much.
    I'm proud to have present with me today my entire family. 
My wife, Jane; my sons, Jim and Joe; my daughter, Maggie. My 
parents are present, George and Lorraine Shadid. My niece is 
present, Lauren Shadid. Lauren is the daughter of my brother 
who passed from cancer 5 years ago. I'm glad that she was able 
to come with us today.
    My cousin, who lives in the DC area, Tim Unes. And I saw a 
friend, a family friend, who is attending George Mason Law 
School; and, how he got wind of this I don't know, but he 
appeared. So I'll introduce him, as well, David Rashid.
    Thank you.
    Senator Durbin. Thank you, Judge.
    Judge Myerscough.
    [The biographical information follow.]

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    Judge Myerscough. Thank you, Chairman. Thank you for 
presiding today and thank you for the recommendation for this 
position, as well as Senator Burris. I want to thank the 
Committee members for being here today and for their thorough 
consideration. I'd also like to thank their staff members, 
because I know they do quite a bit of work themselves.
    I'd especially like to thank the President for the 
nomination and the faith he's put in me and the faith that 
you've put in me for so many years.
    And at this time, I'd like to introduce my family and some 
of my friends who are attending. My parents were unable to 
attend, as was my father-in-law, due to health reasons, 
unfortunately. They send their regrets.
    My husband of 35 years is here, Bob Mueller; my two 
daughters, Sarah and Lauren; my older brother, Michael 
Myerscough; a colleague of yours from many years ago, John 
Keith; and, as well, Tom Lamont, who is the Assistant Secretary 
of the Army now; and, John Michelich, a long-time Springfield 
resident who has moved out here; and, Harry Metz.
    Thank you.
    [The biographical information follows.]

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    Senator Durbin. Thanks very much. Well, thank you all for 
the introductions of your family and friends who came with you 
today. I know that none of us come here by ourselves. There are 
many things that inspire us and those who stand alongside us on 
life's journey.
    I will ask a few questions of a pretty general nature, 
because as Senator Sessions mentioned earlier and for the 
record, you have been investigated inside and out. You have 
been asked the questions by many and you have faced a lot of 
briefings and other things that prepare you undoubtedly for 
this hearing.
    Some of the members who were not in attendance may have 
their own particular questions that they may ask.
    Ms. Totenberg, one of the most important things for a judge 
is to make certain that they focus on the facts in the 
courtroom and the law and are not influenced by outside 
    Can you give the assurance to this Committee that when you 
make your decisions, you will not be affected by anything said 
on NPR Radio?
    Ms. Totenberg. I am very proud of my sister, who is not in 
the country right now, and I can assure you that I will not be 
influenced by her. We have--I have had to operate in the same 
legal world, in a larger sense, for some time, but I am very 
used to being extremely independent and I think that that's 
the--obviously, I have absolutely complete commitment to 
implementing the role of a district court judge on an 
independent basis and hearing the facts and making my own 
conclusions based on applicable law and without regard to NPR.
    Senator Durbin. Since there are no Republicans present--
well, never mind.
    Senator Durbin. Now, you had an interesting case that you 
served on as a mediator involving a group of students who 
asserted a school district's prohibition of clothing depicting 
the Confederate flag violated their First Amendment rights. And 
I take it that this took place in Georgia, in Atlanta.
    Ms. Totenberg. In south Georgia.
    Senator Durbin. As the mediator, you had to try to balance 
the school district's legitimate educational policy interest 
against the constitutional interests of the students.
    Tell me what you took into consideration in that mediation 
and how it ended.
    Ms. Totenberg. Well, of course, at one level, you never 
know what happens after you think you've got the settlement 
done. But what you had to take into consideration was that the 
school district has a very strong interest in making all 
students feel comfortable and be prepared to focus on the 
central mission of schools, education, and not to feel that 
they are subject to humiliation because of what somebody else 
may be wearing on their tee shirt.
    And on the other hand, students have a real First Amendment 
right under Tinker to express their viewpoints. And so the 
question really was how to accommodate those interests so that 
it would not be an impossible situation for other students 
attending the school, for the school district to be in a 
position where it can say ``We care about all students and we 
want to make all students feel that they are learning and 
functioning in a nondiscriminatory, welcome educational 
    And I think the resolution ultimately was some degree of 
control over what the nature of the tee shirts were that the 
students found acceptable, where they could express themselves, 
but that there would be some limits on what would be worn on 
their tee shirts.
    Now, it's some years ago, so there may have been some other 
aspects of the resolution, as well. But I think that was really 
what we were trying to do and because it was a mediation as 
opposed to an arbitration, there was a real opportunity to work 
with people, to talk about what are these interests and how do 
you need to address these for the future.
    Senator Durbin. My background here does not say how it 
    Ms. Totenberg. Well, that's pretty much how it ended, was 
that there was a--I don't know what--there might have been 
attorney's fees or anything else, but they had this resolution 
where they were going to agree; as far as I understood, that 
there would be some policy from the school district that could, 
to some extent, restrict clothing, which is normally allowed, 
in fact, in school districts to have clothing policies; but at 
the same time, some amount of expressions allowed on the 
clothing, but it cannot be offensive.
    And so I think that really was the scope of what was going 
to be the expression on the tee shirts was the resolution.
    Senator Durbin. Judge Myerscough, you spent a number of 
years as a trial court judge, handling civil and criminal 
cases, and then on the appellate court for a number of years, 
as well, and now seeking to return to the trial level in the 
Federal courts.
    I know you have thought through how that would change your 
approach on the bench. But I would like to ask you the question 
that I will ask the others, as well.
    I had a gentleman named Scott Lassar, who was a U.S. 
attorney in Chicago, who was seeking reappointment and he came 
for an interview before me and Senator Carol Moseley Braun, and 
I asked him, in the Federal court system, in the criminal 
process, at what point are the scales balanced. At what point 
can the criminal defendant really believe that they have as 
much power as the prosecutor in terms of asserting their 
constitutional rights and asserting their innocence, which most 
    And he said to me, ``When the jury is picked. Until the 
jury is selected, the government has all the power with grand 
juries, with investigations, with the things that can be asked 
of potential criminal defendants and witnesses.'' He said, 
``The tables are not balanced at that point. The scales aren't 
balanced until the jury is chosen and at that point, there is 
balance in the process.''
    What is our observation, having been witness to and part of 
that process for so many years?
    Judge Myerscough. I disagree with him. I believe that the 
scales are balanced from the moment that party walks into my 
    I've been a former teacher. I taught French and English. I 
was a litigator. I defended police officers and I defended 
doctors, lawyers, and then I went on the bench and I held every 
position there is in every docket at the trial court, whether 
associate judge, criminal, civil. And the last 12 years I've 
spent observing what happens in the trial court.
    And I believe that what I can do in the courtroom is what I 
have done for the last 23 years, which is give every litigant 
my full attention, whether it's the government or it's the 
defendant, and apply the law to the facts and give that 
defendant--if it's a jury trial he wants, a jury trial. And 
then if he chooses to plead, which very often happens in 
Federal court, then I will apply, as instructed by the Supreme 
Court, the sentencing guidelines, the commentary to the 
guidelines, and then listen to the government and the defendant 
in imposing my sentence accordingly and explain the reasons for 
my sentence.
    Senator Durbin. I think the point he was driving at was 
before the courtroom, before the case comes to the courtroom, 
whether there is a balance or fairness in the process or 
whether there is more power on the government side.
    So before the courtroom, before anyone comes before you, 
what is your impression of the process leading up to that?
    Judge Myerscough. Well, there is substantially more 
manpower with the U.S. attorney's office. They're very talented 
prosecutors. They have a backup in their investigators that 
does not exist with the public defender's office.
    But I have to say, at least in the Central District, in 
Springfield, in the county court and the U.S. attorney's office 
and the public defender's office, we have exceptional 
representation for defendants.
    Senator Durbin. Judge Boasberg, what is your impression?
    Judge Boasberg. I think that I would agree that the scales 
are not imbalanced to the extent that there are many practices 
that enable a defendant to even the scales. The government, of 
course, has to obtain an indictment through a grand jury 
process. They can't simply arrest someone or file a complaint. 
They actually have to get him indicted.
    And as an assistant United States attorney who dealt with 
grand juries on a regular basis, I believe that many are 
skeptical, that many are interested, particularly in the 
District of Columbia, in hearing a great deal about the facts 
and the law before voting to indict.
    After indictment, there's broad discovery under Rule 16. 
There are Brady obligations the government must comply with, 
which, again, I took seriously as a prosecutor and, if 
confirmed, would enforce as a judge. And then, of course, there 
are motions to suppress, motions in limine, and other different 
pleadings that the defense can file.
    So that by the time the case is actually queued up for 
trial, a great deal has occurred and then if the playing field 
is not balanced at that point, it's the evidence that 
imbalances it rather than the procedures.
    Senator Durbin. Judge Shadid, you were a defense attorney 
before ascending to the bench. What is your impression?
    Judge Shadid. My impression, Senator, and thank you for the 
question, is that you have to always keep in mind that this is 
a process and that the founding fathers thought of this process 
and built into the Constitution safeguards for criminal 
defendants in the Fourth Amendment, the Fifth Amendment, and a 
number of others.
    And those safeguards although maybe don't stop initially 
from a grand jury indictment or an arrest, but they are built 
in so that when a competent lawyer is appointed to represent 
the defendant, that the rules and the responsibilities of the 
government are in place to protect that person's rights and 
address any wrongs that may have occurred.
    Senator Durbin. Ms. Jackson, along that same line, I had an 
opportunity--we have an interesting tradition that is about 6 
or 8 years old now that every 2 years, when a new Senate is 
elected, we have dinner with the Supreme Court.
    I do not know who--I think Senator Daschle actually came up 
with the original idea. But it is an interesting trek across 
the street to gather in the hallway of the Supreme Court and to 
actually sit down with a Supreme Court justice for an informal 
    I had an opportunity last year to sit with Justice Kennedy 
and I said to him at that point that I was going to be chair of 
the Crime Subcommittee of the Senate Judiciary Committee, which 
I chaired for a short time before Senator Specter took it over.
    I said to him, ``What do you think ought to be my priority? 
What should I look at when it comes to the criminal justice 
system in America, from your perspective?'' And he said, ``Look 
at our system of corrections, incarceration.'' He said, ``There 
won't be a single justice here, I don't believe, who wouldn't 
agree with me that something needs to be done.''
    We incarcerate so many people in America under 
circumstances which many have challenged, and, of course, hope 
that each one has gone through a just process, reaching that 
conclusion. But for some reason, America has such a high level 
of incarceration in our institutions and there are serious 
questions, in his mind.
    Now, I understand that a judge is not going to set the 
sentencing standards that the Congress is responsible for and 
is restricted in terms of evidence and the rules of evidence 
and the like. But what is your thought, as you reflect on your 
background as a prosecutor and a defense attorney, on those two 
    Ms. Jackson. I think my background leads me to a place 
where I see the role of the district court judge as ensuring 
that both sides get a completely full and fair hearing. I 
believe strongly in the importance of vigorous law enforcement, 
but I also believe strongly in the presumption of innocence and 
the rights of a defendant to be recognized at trial.
    And fortunately, the policy question of what should be done 
about the corrections system was properly placed in your lap 
and not mine, but I will certainly be attentive to my role to 
make sure that if anyone is committed to that system, it would 
be after a scrupulously fair trial.
    Senator Durbin. I would like to ask, Ms. Totenberg, you 
served as a monitor or in a special master capacity on two 
Federal district courts.
    Ms. Totenberg. Right.
    Senator Durbin. You were appointed by the DC district court 
to monitor a consent degree involving the city's special 
education system and you were appointed by the district court 
for the district of Maryland to serve as special master in 
connection with litigation over the special education system in 
    How has your experience working in these capacities 
prepared you or given you some background that would be helpful 
as a district judge?
    Ms. Totenberg. Thank you very much for the question. The 
experiences in total have given me a very deep understanding, 
in fact, of how to move cases, how to manage cases.
    The opportunity, as I said in my introduction, of working 
with both Judge Garbis and Judge Friedman has been 
extraordinarily educational. We've talked about all aspects of 
the case. They are complex cases which involve a variety of 
phases, and I think that that breadth of experience in complex 
litigation with multiple parties and, frankly, ever-changing 
proceedings will be extremely helpful in handling some of the 
more challenging cases that do come into the Federal courts, 
whether they be in the area of antitrust or in mass tort cases 
or in class actions.
    I think it's really invaluable experience and I feel I have 
been truly tutored by the best.
    Senator Durbin. Judge Boasberg, my staff had a question 
prepared here, which said you may or may not remember that I 
chaired your Senate nomination hearing a few years back, but 
you have already reminded me that you did and that I gave a 
book to one of your children at that time, and it is certainly 
a pleasure to see you here today.
    You were confirmed after my hearing by a vote of 98-0, and 
I wish you the same good luck in this undertaking. But I asked 
you at that time in 2002, in your nomination hearing before the 
Committee on Governmental Affairs, about your thoughts on 
judicial temperament.
    Well, here we are 8 years later and I would like to know 
what you think about what you have seen in a courtroom and how 
important the temperament issue is when it comes to the 
administration of justice.
    Judge Boasberg. Thank you, Senator. I do remember it well. 
In fact, the book that you gave my then 5-year-old son about 
Abraham Lincoln's top hat is in my briefcase today, although my 
now 14-year-old son, I think, is almost as tall as Abraham 
Lincoln without the hat.
    It's been something that's obviously been extremely 
important to me throughout my time. I can say that I've never 
flown off the handle and held anyone in criminal contempt in 
the 8-plus years I've been a judge, and I think that judges who 
are best able to control their courtrooms are ones who don't 
threaten contempt all the time. And I can say that I haven't 
threatened it or issued any order of holding someone in 
criminal contempt in my time.
    I think that it's not always easy for any of us, 
particularly those who have had young children, to be as 
patient as we would like to be all the time, but I have 
certainly endeavored to do so and have endeavored to cultivate 
such a reputation and would hope to continue that, if fortunate 
enough to be confirmed.
    Senator Durbin. Judge Myerscough, the issue of judicial 
temperament? You were a practicing attorney before you were on 
the bench.
    Judge Myerscough. I believe it's very important and I, 
luckily, walk in a long line of predecessors who have shown 
extreme judicial temperament. I would like to say I have 
followed in their footsteps with my own temperament. In the 
last 23 years, I have not held anyone in contempt.
    But I think what's most important in terms of patience is 
the need to move the case should not outweigh the need to 
listen to the parties and to listen to the evidence in the 
    We do have a backlog, a terrible backlog, and it will be 
taken care of. I will work the extra hours to do that, but I 
will not do that at the expense of shortening the evidence 
that's to be presented in my courtroom.
    Senator Durbin. Judge Shadid, you faced that, did you not, 
when you faced the backlog in your own court?
    Judge Shadid. I did. But if I may, I'm happy to hear 
Justice Myerscough offer to work the extra hours.
    I did face this. We did have a backlog, it was pointed out 
earlier, and the matter was resolved by just, I think, paying 
attention to detail.
    But more importantly or as importantly, I think there are a 
number of qualities that make a fine trial judge and 
temperament has to be one of them. I believe the trial courts 
are the gatekeeper for the public's first entry into the 
justice system or the judicial system and, as a result, they 
set the tone for the public's confidence in the system, and I 
think they do that best by even-handed, fair-minded 
disposition, with a level playing field.
    Thank you.
    Senator Durbin. Ms. Jackson, you have been in the courtroom 
and seen it from both tables in terms of the issue of judicial 
temperament. What would you say?
    Ms. Jackson. Well, I think, certainly, my trial experience 
has given me a good reason to understand the importance of 
judicial temperament. Obviously, I have not served as a judge, 
but I would hope that what my background investigation has 
revealed is that of all the many things that can be said about 
me, that I am a real person and I relate to other people from 
all walks of life.
    And I think that ability to connect and to understand will 
inform my judging, hopefully, inform my temperament and help me 
to achieve the goal that I have, which is to rule efficiently, 
because I think people are waiting for your rulings, and to 
rule clearly, because I think people need to understand them.
    Senator Durbin. Well, I thank you all for your patience and 
waiting while we recessed and returned. And I thank all the 
friends and family who have gathered today on your behalf.
    The record is going to remain open for 1 week for 
additional letters, statements and questions from Committee 
members and I would ask you, if you receive those questions, to 
try to respond promptly. The process in the Judiciary Committee 
will undoubtedly be explained to you about matters coming on 
the Committee calendar and then most likely held over a week. 
So the sooner we can complete the record, the better and more 
likely that if there is a positive vote from the Committee--and 
I hope for all of you there will be--that we can move it to the 
floor for consideration before the end of this calendar year.
    I thank everyone for being here today. And this Committee 
will stand adjourned.
    [Whereupon, at 4:07 p.m., the hearing was adjourned.]
    [Questions and answers and submissions for the record