[Senate Hearing 111-695, Part 8]
[From the U.S. Government Publishing Office]

                                                 S. Hrg. 111-695, Pt. 8




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                  SEPTEMBER 29, and NOVEMBER 17, 2010


                                 PART 8


                           Serial No. J-111-4


         Printed for the use of the Committee on the Judiciary


                                                 S. Hrg. 111-695, Pt. 8



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                  SEPTEMBER 29, and NOVEMBER 17, 2010


                                 PART 8


                           Serial No. J-111-4


         Printed for the use of the Committee on the Judiciary

66-817                    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
              Matthew S. Miner, Republican Staff Director

                            C O N T E N T S


                     WEDNESDAY, SEPTEMBER 29, 2010

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   324
Franken, Hon. Al, a U.S. Senator from the State of Pennsylvania..     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   327
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2


Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi 
  presenting James E. Graves, Jr., Nominee to be U.S. Circuit 
  Judge for the Fifth Circuit....................................     7
Cornyn, Hon. John, a U.S. Senator from the State of Texas 
  presenting Diana Saldana, Nominee to be U.S. District Judge for 
  the Southern District of Texas.................................     5
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Diana Saldana, Nominee to be U.S. District 
  Judge for the Southern District of Texas.......................     4
Lincoln, Hon. Blanche, a U.S. Senator from the State of Alamaba 
  presenting Paul K. Holmes, III, Nominee to be U.S. District 
  Judge for the Western District of Arkansas.....................     3
Pryor, Hon. Mark, , a U.S. Senator from the State of Arkansas 
  presenting Paul K. Holmes III, Nominee to be U.S. District 
  Judge for the Western District of Arkansas.....................     8
Wicker, Hon. Roger, a U.S. Senator from the State of Mississippi 
  presenting James E. Graves, Jr., Nominee to be U.S. Circuit 
  Judge for the Fifth Circuit....................................     7

                       STATEMENTS OF THE NOMINEES

Battaglia, Anthony J., Nominee to be U.S. District Judge for the 
  Southern District of California................................   137
    Questionnaire................................................   138
Davila, Edward J., Nominee to be U.S. District Judge for the 
  Northern District of California................................   195
    Questionnaire................................................   196
Graves, James E., Jr., Nominee to be U.S. Circuit Judge for the 
  Fifth Circuit..................................................     9
    Questionnaire................................................    16
Holmes, Paul K., III, Nominee to be U.S. District Judge for the 
  Western District of Arkansas...................................    96
    Questionnaire................................................    97
Saldana, Diana, Nominee to be U.S. District Judge for the 
  Southern District of Texas.....................................   239
    Questionnaire................................................   241

                         QUESTIONS AND ANSWERS

Responses of Anthony J. Battaglia to questions submitted by 
  Senators Coburn and Sessions...................................   292
Responses of Edward J. Davila to questions submitted by Senators 
  Coburn and Sessions............................................   298
Responses of James E. Graves, Jr. to questions submitted by 
  Senators Coburn and Sessions...................................   304
Responses of Paul K. Holmes, III to questions submitted by 
  Senators Coburn and Sessions...................................   311
Responses of Diana Saldana to questions submitted by Senators 
  Coburn and Sessions............................................   316

                       SUBMISSION FOR THE RECORD

Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  prepared statement.............................................   321

                      WEDNESDAY, NOVEMBER 17, 2010

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   806
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota, 
  prepared statement.............................................   815
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   817
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   342
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................   331


Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Michele M. Leonhart, Nominee to be 
  Administrator of the Drug Enforcement, Department of Justice...   332
Franken, Hon. Al, a U.S. Senator from the State of Minnesota 
  presenting Michele M. Leonhart, Nominee to be Administrator of 
  Drug Enforcement, Department of Justice........................   334
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota 
  presenting Michele M. Leonhart, Nominee to be Administrator of 
  Drug Enforcement, Department of Justice........................   334
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon 
  presenting Marco A. Hernandez, Nominee to be U.S. District 
  Judge for the District of Oregon and Michael H. Simon, Nominee 
  to be U.S. District Judge for the District of Oregon...........   335
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia 
  presenting Steve Jones, Nominee to be U.S. District Judge for 
  the Northern District of Georgia...............................   337
Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina presenting Max O. Cogburn, Nominee to be U.S. District 
  Judge for the Western District of North Carolina...............   339
Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina 
  presenting Max O. Cogburn, Nominee to be U.S. District Judge 
  for the Western District of North Carolina.....................   340
Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon 
  presenting Marco A. Hernandez, Nominee to be U.S. District 
  Judge for the District of Oregon and Michael H. Simon, Nominee 
  to be U.S. District Judge for the District of Oregon...........   341

                       STATEMENTS OF THE NOMINEES

Cogburn, Max O., Nominee to be U.S. District Judge for the 
  Western District of North Carolina.............................   344
    Questionnaire................................................   345
Hernandez, Marco A., Nominee to be U.S. District Judge for the 
  District of Oregon.............................................   387
    Questionnaire................................................   388
Hylton, Stacia A., Nominee to be the Director of the U.S. 
  Marshals Service...............................................   652
    Questionnaire................................................   653
Jones, Judge Steve, Nominee to be United States District Judge 
  for the Northern District of Georgia...........................   477
    Questionnaire................................................   478
Leonhart, Michele M., Nominee to be Administrator of Drug 
  Enforcement, Department of Justice.............................   554
    Questionnaire................................................   555
Saris, Patti B., Nominee to be a Member and Chair of the U.S. 
  Sentencing Commission..........................................   612
    Questionnaire................................................   613
Simon, Michael, Nominee to be U.S. District Judge for the 
  District of Oregon.............................................   432
    Questionnaire................................................   433

                         QUESTIONS AND ANSWERS

Responses of Max O. Cogburn to questions submitted by Senators 
  Coburn and Sessions............................................   692
Responses of Marco A. Hernandez to questions submitted by 
  Senators Coburn and Sessions...................................   699
Responses of Stacia A. Hylton to questions submitted by Senator 
  Sessions.......................................................   705
Responses of Steve Jones to questions submitted by Senators 
  Coburn and Sessions............................................   707
Responses of Michele M. Leonhart to questions submitted by 
  Senators Grassley, Kohl, and Sessions..........................   713
Responses of Patti B. Saris to questions submitted by Senator 
  Sessions.......................................................   742
Responses of Michael H. Simon to questions submitted by Senators 
  Coburn and Sessions............................................   762

                       SUBMISSION FOR THE RECORD

American Bar Association, Kim J. Askew, Chair, Washington, DC, 
  July 15, 2010, letter..........................................   779
American Federation of Government Employees, AFL-CIO, John Gage, 
  National President, J. David, National Secretary-Treasurer and 
  Augusta Y. Thomas, National Vice President for Women and Fair 
  Practices, Washington, DC, November 16, 2010, joint letter.....   781
Americans for Safe Access, National Office, Washington, DC., 
  letter.........................................................   783
Aron, Nan, Alliance for Justice; Andrea Black, Detention Watch 
  Newtwork; Donna Red Wig, Grassroots Leadership; Paul Wright, 
  Human Rights Defense Center; Charlie Sullivan, International 
  CURE; Tracy Velazquez, Justice Policy Institute, Heidi 
  Boghosian, National Lawyers Guild; Ken Kopczynski, Private 
  Corrections Working Group and Craig Holman, Public Citizen, 
  November 30, 2010, joint letter................................   792
Aron, Nan, Alliance for Justice; Silky Shah, Detention Watch 
  Newtwork; Donna Red Wig, Grassroots Leadership; Paul Wright, 
  Human Rights Defense Center; Charlie Sullivan, International 
  CURE; Tracy Velazquez, Justice Policy Institute, Heidi 
  Boghosian, National Lawyers Guild; Ken Kopczynski, Private 
  Corrections Working Group and Craig Holman, Public Citizen, 
  November 15, 2010, joint letter................................   794
Bevier-Thiem, T. Alessandra, letter..............................   797
Brooks, Ronald E., President, National Narcotic Officers' 
  Associations Coalition, West Covina, California:
    October 1, 2010, letter......................................   798
    November 17, 2010, letter....................................   800
Brown, Hon. Scott P., a U.S. Senator from the State of 
  Massachusetts, November 17, 2010, letter.......................   801
Carpino, Louise, President, American Federation of State, County 
  and Municipal Employees (AFSCME), Local 810, Philadelphia, 
  Pennsylvania, November 16, 2010, letter........................   802
Epstein, Jerry, President, Drug Policy Forum of Texas, Dallas, 
  Texas, letter..................................................   803
Federal Law Enforcement Officers Association, J. Adler, National 
  President, Washington, DC, November 15, 2010, letter...........   805
Franklin, Major Neill, Law Enforcement Against Prohibition, 
  Medford, Massachusetts, statement..............................   808
Fox, Steve, Director of Government Relations, Marijuana Policy 
  Project, Washington, DC, November 16, 2010, letter.............   810
Health Professionals for Responsible Drug Scheduling, Sunil 
  Aggarwal, Founder, San Francisco, California, letter...........   811
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  November 17, 2010, letter......................................   813
Kerry, Hon. John F., a U.S. Senator from the State of 
  Massachusetts, statement.......................................   814
National Fraternal Order of Police, Chuck Canterbury, National 
  President, Washington, DC, November 17, 2010, letter...........   820
National Sheriffs' Association, Sheriff B. J. Roberts President, 
  Aaron D. Kennard, Executive Director, Alexandria, Virginia, 
  October 27, 2010, letter.......................................   821
Noorani, Ali, Executive Director, National Immigration Forum, 
  Washington, DC, November 17, 2010, letter......................   823
National Organization for the Reform of Marijuana Laws (NORML), 
  Allen F. St. Pierre, Executive Director, Washington, DC, 
  November 16, 2010, letter......................................   824
Private Corrections Working Group & Prison Legal News, November 
  9, 2010, article...............................................   827
Steenstra, Eric, President, Vote Hemp (VH), Brattleboro, Vermont, 
  July 23, 2010, letter..........................................   831
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   835
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon, 
  prepared statement.............................................   836


Battaglia, Anthony J., Nominee to be U.S. District Judge for the 
  Southern District of California................................   137
Davila, Edward J., Nominee to be U.S. District Judge for the 
  Northern District of California................................   195
Graves, James E., Jr., Nominee to be U.S. Circuit Judge for the 
  Fifth Circuit..................................................     9
Hernandez, Marco A., Nominee to be U.S. District Judge for the 
  District of Oregon.............................................   387
Holmes, Paul K., III, Nominee to be U.S. District Judge for the 
  Western District of Arkansas...................................    96
Hylton, Stacia A., Nominee to be the Director of the U.S. 
  Marshals Service...............................................   652
Jones, Judge Steve, Nominee to be United States District Judge 
  for the Northern District of Georgia...........................   477
Leonhart, Michele M., Nominee to be Administrator of Drug 
  Enforcement, Department of Justice.............................   554
Saldana, Diana, Nominee to be U.S. District Judge for the 
  Southern District of Texas.....................................   239
Saris, Patti B., Nominee to be a Member and Chair of the U.S. 
  Sentencing Commission..........................................   612
Simon, Michael, Nominee to be U.S. District Judge for the 
  District of Oregon.............................................   432

                       SOUTHERN DISTRICT OF TEXAS


              WEDNESDAY, SEPTEMBER 29, 2010
                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:03 p.m., SD-
Room 226, Dirksen Senate Office Building, Hon. Al Franken, 
    Present: Senators Whitehouse, Franken, Sessions, and 

                       STATE OF MINNESOTA

    Senator Franken. Good afternoon. This hearing will come to 
    Today we will consider five judicial nominations. First, we 
will hear from Justice James Graves, Jr., who is nominated for 
circuit judge for the fifth circuit.
    Our second panel will consist of district court nominees, 
Judge Diana Saldana of Texas, Paul Holmes of Arkansas, Judge 
Anthony Battaglia of California, and Judge Edward Davila, also 
of California.
    We are fortunate to have some of these nominees' home State 
Senators here to introduce them, and we will turn to them 
    Before we do, I will turn the floor over to my friend, the 
Ranking Member, Senator Sessions, for his opening remarks.

                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. It is good to be 
with you, and have enjoyed serving with you on the Committee. 
You have taken a great interest in these important matters, 
spend time on them, and that speaks well of your approach to 
law and justice in America; and, have had the good judgment to 
correct me on occasion when I have been wrong.
    Senator Franken. Very, very, very rarely.
    Senator Sessions. You are very, very nice and kind.
    Senator Franken. Thank you.
    Senator Sessions. We have had, I think, a good Committee 
and we try to do our job right. It is the only real opportunity 
the American people have in a public forum to have the nominees 
answer questions and discuss the issues.
    I have looked at the record of the nominees. I have some 
concerns. We will discuss some of those today. But we try to be 
supportive of good nominees, and I have voted for an 
overwhelming number of those. And most have received unanimous 
votes out of the Committee.
    I would like to take a moment to address the notion, that I 
think is mistaken, that district court nominees that the 
President has submitted have been treated unfairly or in an 
unprecedented manner. On average, Senators have had only 55 
days this year to prepare for hearings, that is, from 
nomination to hearing of district court nominees.
    By contrast, during the Bush Administration, Senators had 
an average of 120 days before the district court nominees had a 
    Last week, one of our colleagues raised the question of 
whether or not we are violating tradition when two home State 
Senators approve a nominee, and he felt that they should get a 
straight up or down vote without delay. But that has not been 
the tradition, as many have suggested.
    Fourteen of President Bush's district court nominees had 
the support of their home State Senators, but did not get an up 
or down vote, because they were delayed mostly in committee. 
Thomas Farr of North Carolina had the support of both Senators 
Burr and Dole and waited 757 days and never got a hearing. He 
was rated unanimously well qualified by the ABA, and no 
concerns were ever raised about his nomination.
    Richard Honaker of Wyoming had the support of both Senators 
Enzi and Barrasso and waited 655 days for an up or down vote in 
the Senate, but it never came. He was rated unanimously well 
qualified, the highest rating by the ABA. And the only concerns 
raised were his co- sponsorship of a pro-life bill in 1991, 
while serving as a Democratic member of the Wyoming House of 
    Gus Puryear of Tennessee had the support of Senators 
Alexander and Corker and waited 569 days for an up or down vote 
on the Senate floor, but never got it. The ABA rated him 
unanimously qualified, and none of the concerns raised were 
    Richard Barry of Mississippi had the support of Senators 
Wicker and Cochran and waited 155 days just for a hearing, but 
it never came. He was rated well qualified by the ABA, and no 
concerns were raised.
    So I just wanted to make that point. We are in a lot of 
give-and-take and fussing here. So we do have a responsibility, 
I think all of us in the Senate, to make sure the nominees are 
well treated and we do take seriously the support of home State 
    Thank you.
    Senator Franken. Thank you. Thank you, Mr. Ranking Member.
    Senator Cornyn, you are going to speak for your nominee. So 
I guess what we are going to do now is go to my colleagues, who 
are going to speak on behalf of the nominees from their state, 
and we will start with Senator Lincoln.


    Senator Lincoln. Well, thank you, Mr. Chairman and to the 
members of the Judiciary Committee. I certainly want you all to 
know I appreciate the opportunity to appear before you today to 
introduce an enormously well qualified candidate and nominee, 
Paul K.--we call him P.K.--Holmes, III, who has been nominated 
to serve on the U.S. District Court in the Western District of 
    First, I would also like to thank Chairman Leahy for 
granting my request that Mr. Holmes receive a hearing so that 
the Judiciary Committee can learn about P.K. and why he is such 
an outstanding candidate for the Federal bench.
    I would also like to recognize P.K.'s wife, Kay, who is 
also here with us today, and we appreciate always having family 
with our nominees when they come. It is a great opportunity for 
us to show that you get teamwork in Arkansas. And that is what 
you get out of the Holmes, that is for sure.
    P.K. is very well known and very well respected as a lawyer 
from Fort Smith, Arkansas, with a wealth of experience in both 
the public and the private sector. He is currently a partner at 
Warner, Smith & Harris in Fort Smith, where he also started out 
as an associate in 1978.
    From 1993 to 2001, P.K. left the firm when President Bill 
Clinton appointed him and the Senate confirmed him as the U.S. 
Attorney for the Western District of Arkansas. So he has got 
great experience and, again, very well qualified, and certainly 
well respected.
    P.K. is a 1973 graduate of Westminster College in Fulton, 
Missouri and received his J.D. from the University of Arkansas 
in Fayetteville in 1978. He is also known as a leader in his 
community. P.K. has been named Lawyer of the Year for the 
Arkansas Volunteer Lawyers for the Elderly.
    He is on the board of trustees for Lyon College in 
Batesville, which is one of our very esteemed liberal arts 
colleges in Arkansas. And he is an elder and trustee at the 
First Presbyterian Church of Fort Smith.
    Much of that is to tell you that I know P.K. not only as an 
incredibly professional lawyer, attorney, and certainly a great 
U.S. Attorney from the Western District, but, also, from a 
family standpoint, we have a tremendous connection.
    My brother-in-law and P.K. were undergraduates together. He 
served as an attorney for my husband's grandmother, who passed 
away a year ago, a year ago last week, a week shy of 112. So 
you not only know that he is a good lawyer, he has got great 
patience and stamina, as well.
    He received an outpouring of support for his candidacy from 
Arkansans, who know him both professionally and personally. And 
the dozens of letters and calls that we have received all 
expressed confidence that P.K. has the experience, the 
intelligence, the character, and fairness that qualify him for 
a Federal judgeship, and many other exemplary qualifies one 
would hope to find in a nominee, as well. I think you can see 
that from all of the activities that he is engaged with.
    In closing, I would like to thank, again, Chairman Leahy 
and the Judiciary Committee, all of the members here, for 
allowing P.K. Holmes to receive a hearing, and request your 
full attention, careful consideration of his nomination, and 
know that he has all of my confidence in terms of the 
incredible job that he can do serving on the Federal bench.
    So thank you, Mr. Chairman and Ranking Member Sessions. I 
appreciate your attention, and certainly want to welcome P.K. 
Holmes to the Judiciary Committee and tell him how proud we are 
in Arkansas of him.
    Thank you.
    Senator Franken. Thank you. I hope he can live up to that 
    After my distinguished colleagues make their introductions, 
feel free to go back to your other duties. All of us, I know, 
have very busy schedules.
    So, Senator Lincoln, if you would like to leave us now--you 
are welcome to stay, of course.
    I would now like to recognize the distinguished Senators 
from Texas. Senator Hutchison, thank you for joining us, and 
Senator Cornyn, to introduce Judge Saldana.


    Senator Hutchison. Thank you very much, Mr. Chairman. It is 
my pleasure to introduce Diana Saldana, who has been nominated 
to serve as a Federal judge for the Southern District in Texas, 
Laredo, to sit in Laredo.
    Judge Saldana received a B.A. in history and government 
from the University of Texas and then received her J.D. degree 
from the University of Texas Law School.
    Judge Saldana's career has given her a breadth of 
experience, and I believe she will serve well on the Federal 
    She was born in Carrizo Springs, Texas, only a stone's 
throw from where she is currently serving as U.S. Magistrate in 
Laredo. Prior to being selected to serve as a magistrate, Judge 
Saldana served 4 years as an assistant U.S. attorney. She 
handled as many as 350 active Federal criminal cases, ranging 
from immigration to narcotics to health care. It was in this 
capacity that she was selected court coordinator for Judge 
    Before her work in the U.S. Attorney's office, Judge 
Saldana spent time as a lawyer for the U.S. Department Justice 
in the Civil Rights Division and the U.S. Department of 
Agriculture in the General Counsel's office. She also served as 
a law clerk to Chief Judge George Kazen in the Southern 
District of Texas.
    Judge Saldana has a solid academic foundation, with 
impressive professional experience, and is very respected in 
the south Texas community. I believe she is well qualified and 
highly competent and would be an effective Federal district 
judge in south Texas.
    I recommend Judge Saldana to the Committee. Senator Cornyn 
and I interviewed her and we feel that she is the best 
qualified nominee for this bench.
    Thank you, Mr. Chairman.
    Senator Franken. Thank you very much, Senator Hutchison. 
And, again, feel free to--thank you for appearing and feel free 
to go back to your duties, unless you feel some obligation to 
listen to your junior Senator, which my senior Senator never 
seems to feel.
    Senator Franken. No, she sometimes enjoys listening to me.
    Senator Cornyn.


    Senator Cornyn. Mr. Chairman, I wondered how you were going 
to get your way out of that one, but you did very well.
    Senator Franken. Thank you.
    Senator Cornyn. Mr. Chairman, I am pleased to join Senator 
Hutchison in welcoming Judge Diana Saldana of Laredo, Texas, to 
the Senate and to the Judiciary Committee. We want to welcome 
her two sons, who I think are here, Thomas and Luke. Are they 
present? Would you mind if they stood? They are next door.
    As well as her mother, Blanca Hernandez Rodriguez. And 
there she is. Welcome. We are glad you are here.
    We also want to acknowledge Diana's husband, Robert. There 
is Robert. Thank you, Robert. Robert serves as a police officer 
in the city of Laredo, Texas. Robert, we thank you for your 
service, as well.
    Senator Hutchison has detailed why we believe Judge Saldana 
is the best qualified candidate for this position and why we 
recommended her to the President. And we are glad we have had a 
meeting of the minds with the President on that and he has 
nominated her.
    I want to take just a couple of minutes to talk about why 
she is such a remarkable person and why she is an inspiration 
and role model to so many people, because her story really 
represents the American dream.
    Throughout the selection process, the more I learned about 
Judge Saldana's story, the more I grew to admire not only what 
she has accomplished, but what she stands for and how she 
represents our Nation, which is a beacon of opportunity for 
    At the age of 10, she began traveling with her mother and 
siblings from their home in Carrizo Springs, Texas, to 
Minnesota and to North Dakota to work as migrant farmers in the 
soybean, sugar beet and potato fields. Because of the seasonal 
nature of that work, Diana and her siblings would often leave 
South Texas before school had ended and return after the next 
school year had begun, which, of course, made keeping up with 
school all the more difficult.
    She traveled the 1,500 miles north and worked with her 
family in the fields every summer through high school and 
college. She even worked in the fields during her first year of 
law school.
    Despite these challenges, she was the first in her 
immediate family to earn a college degree. She has recalled to 
others that while working in the fields, her mother had told 
her that an education was the only way of not being a farm 
worker and working in those fields anymore.
    Diana was once asked what person had the greatest impact on 
her life, and, not surprisingly, she answered, without 
hesitation, her mother. Diana explained, ``My mother has a 
third grade education, but she was able to raise six children 
by working hard and having a deep faith in God. I remember her 
working up to three jobs at one time, taking naps in the family 
car, when our finances were especially tight, to make ends 
meet. My mother instilled in us a strong work ethic and 
encouraged us to dream of a better life.''
    Today, Judge Saldana mentors young people using her own 
story as inspiration and stressing that anything is possible if 
you are willing to work hard and sacrifice and stay focused.
    Let me conclude with this, Mr. Chairman. Diana has been 
nominated to fill the vacancy left by her mentor, Judge George 
Kazen, who is taking senior status. Judge Kazen knows Diana 
well. She served as his law clerk, appeared before him as a 
Federal prosecutor, and presided over many of his cases as a 
Federal magistrate judge.
    He described Diana as, quote, ``One of the finest law 
clerks he ever had; a tough, no nonsense prosecutor, and a 
quintessential judge; intelligent, hardworking, honest, fair 
and decisive.''
    Finally, Judge Kazen told us that it would be his personal 
honor if Judge Saldana were confirmed as his successor. I 
cannot think of much higher praise.
    Mr. Chairman, I look forward to working with you and all of 
our colleagues on the Judiciary Committee to swiftly confirm 
Diana Saldana as United States District Judge for the Southern 
District of Texas and look for an expeditious consideration of 
her nomination on the floor and an affirmative vote.
    Thank you.
    Senator Franken. Thank you, Senator Cornyn, and thank you, 
Senator Hutchison, for the very eloquent introduction of Judge 
    I would now like to welcome my distinguished colleagues 
from Mississippi, Senator Cochran and Senator Wicker, to 
introduce Justice James Graves, Jr.
    Senators, thank you both for being here. We will start with 
Senator Cochran.


    Senator Cochran. Mr. Chairman, thank you very much. I am 
very pleased to introduce Justice James Graves to the Judiciary 
Committee. He has been nominated by the President to serve as a 
circuit court judge on the United States Court of Appeals for 
the Fifth Circuit.
    He received his undergraduate degree from Millsaps College 
in Jackson, Mississippi. He earned a law degree from Syracuse 
University College of Law, and he has a master's degree of 
public administration from Syracuse University.
    Justice Graves has served as legal counsel in the 
Mississippi Attorney General's office in the Divisions of Human 
Services and Health Law. He also served as director of the 
Child Support Enforcement Division at the Mississippi 
Department of Human Services.
    Justice Graves currently serves as a presiding justice on 
the Mississippi Supreme Court. Before his appointment to our 
State Supreme Court in 2001, he served as a Mississippi trial 
court judge for 10 years. His other experiences include working 
with the Mississippi Legal Services and other community 
organizations in our State.
    Soon after his graduation from law school, he served as an 
adjunct professor at several universities in our State. He has 
received many honors, and the Mississippi legal community is 
very proud to have joined in endorsing him and recommending his 
nomination to the Committee.
    So I am pleased to recommend his confirmation to the 
    Senator Franken. Thank you, Senator.
    Senator Wicker.


    Senator Wicker. Thank you, Mr. Chairman and members of the 
Committee. I am glad to join Senator Cochran here today, and I 
appreciate this opportunity to say a few enthusiastic words 
regarding the nomination of Mississippi Supreme Court Justice 
James Graves to serve on the United States Court of Appeals for 
the Fifth Circuit.
    Of course, Justice Graves will have an opportunity to 
introduce his wife, Betty, and his family. They are here with 
him today. I know that this is a significant moment of 
accomplishment for the family, as well, and I congratulate 
    I support this nomination for all of the reasons that 
Senator Cochran has already outlined--this candidate's 
education, his professional experience, and his life 
    I would add to the specifics mentioned by Senator Cochran 
the fact that Justice Graves has been recognized on numerous 
occasions with awards noting his true servant's spirit, which I 
believe is a testament to his dedication to his family and 
    Those who know him know that he is particularly committed 
to teaching, motivating and inspiring young people, 
particularly the young people of his native State of 
Mississippi. For example, he has coached high school, college 
and law school mock trial teams, including the Jackson Murrah 
High School mock trial team, which won the 2001 State 
championship. Also, in 2001, he was honored as the Jackson 
Public School District Parent of the Year.
    These are just some of the many examples that demonstrate 
his remarkable service to the public, in addition, of course, 
to the education and professional accomplishments that Senator 
Cochran mentioned.
    So in conclusion, let me say, Mr. Chairman, that I support 
this nomination and I congratulate Justice Graves and wish him 
all the best.
    Thank you to the members of the Committee for your hard 
work in this confirmation process. Thank you.
    Senator Franken. Thank you, Senator. I would like to thank 
both of my distinguished colleagues from Mississippi.
    I see now that Senator Pryor has joined us to introduce 
P.K. Holmes. I have learned now it is P.K., and not just Paul. 
Thank you for joining us.
    Senator Pryor.


    Senator Pryor. Thank you, Mr. Chairman. And thank you for 
having me here, and thank all the members of the Committee.
    I come here today to say a few words about P.K. Holmes. And 
let me tell you, when the vacancy arose in the Western District 
of Arkansas, typically, as you all know, there is a long line 
of people who want to be a Federal Judge. But as soon as P.K. 
Holmes' name arose, everybody else dropped off the list.
    Everybody defers to P.K. Holmes. The fact that he was an 
outstanding U.S. Attorney for the Western District for 8 years, 
from 1993 to 2001; the fact that he has practiced law in Fort 
Smith in the areas of commercial litigation and white collar 
criminal matters with Warner, Smith & Harris there for years 
and years; and, just the fact that he has built his reputation 
all over the State of Arkansas for outstanding character, for 
the right kind of hard work, the right kind of proper judicial 
temperament, just the right kind of commitment to the legal 
profession, and respect for the courts.
    Basically, everybody else just said, ``Hey, if P.K. wants 
it, then he would do a much better job than I could ever do,'' 
and one-by-one, they just dropped off the list.
    So it really is my privilege today to say a few kind words 
about P.K. I know Senator Lincoln was here a few moments ago.
    Just as a personal matter, I have known P.K. since I was 
probably about 12 years old or younger probably, and he has 
just always been an outstanding person and we have all watched 
and admired his legal career and how he handles himself with 
his family and in his profession and in his community, and he 
is just exactly the kind of person I think we would all want on 
the Federal bench and someone that we will all be very proud 
    Thank you for having me today.
    Senator Franken. Thank you, Senator Pryor. And, again, 
thank you for coming here, for that introduction, and feel free 
to get back to your duties.
    My colleagues, Senator Feinstein and Senator Boxer, 
unfortunately, cannot be here, but have submitted, of course, 
positive blue slips for both Judge Battaglia and Judge Davila. 
I have statements from both Senator Feinstein and Senator 
Boxer, which I will submit for the record.
    [The statements appear as a submission for the record.]
    Senator Franken. Let me just highlight just a part of 
Senator Boxer's statement. She writes, ``For the past 16 years, 
Judge Battaglia has served with distinction as a magistrate 
judge on the Southern District of California. He has a 
reputation as a judge's judge, hardworking, thoughtful and 
    When he was in high school, Judge Battaglia took a class 
trip to tour the San Diego Superior Court Building. He said he 
was awestruck by the solemnity and dignity of the proceedings 
and the judges he saw on that tour. He aspired 1 day to become 
a judge.
    Today, he says that he hopes that maybe, just maybe, he can 
give something back by inspiring a child the way he was 
    About Judge Davila, Senator Boxer said, ``For the past 8 
years, Judge Davila has served on the Santa Clara County 
Superior Court, where he has drawn praise from fellow judges 
and lawyers for his hard work, integrity and fairness.
    In a recent survey by the Santa Clara County Bar 
Association, Judge Davila's performance was rated excellent or 
very good by more than 80 percent of participants with respect 
to his work ethic, knowledge of the law, and procedure 
integrity, dispute resolution, and judicial temperament.''
    So for all the nominees who have been introduced, I thank 
you all for your service to our country and for offering 
yourselves up for this great responsibility.
    Justice Graves, will you take your seat on our panel, 
please? Actually, before you do, why do you not just stand and 
raise your hand, swear in the oath?
    [Nominee sworn.]
    Senator Franken. Please have a seat. Justice Graves, I 
understand some of your family and friends are here. So please 
feel free to introduce them on this proud day.


    Justice Graves. Thank you very much, Mr. Chairman. I'd like 
to first thank the President for nominating me to serve as a 
judge on the Fifth Circuit Court of Appeals. I want to thank 
Chairman Leahy for an opportunity to appear before this 
Committee. I want to thank Ranking Member Sessions. Thank you, 
Mr. Chairman. Thank all on the Senate Judiciary Committee for 
the opportunity to be here today to answer any questions the 
Committee may have.
    I appreciate the opportunity to introduce members of my 
family who are present here today, and I am asking them to 
stand when they are introduced.
    My wife, who has been married to me sometimes for longer 
than she cares to recall, is here and I am going to ask her to 
stand. My parents are here, both my mother and father.
    Senator Franken. Welcome, and congratulations.
    Justice Graves. I have three sons and, actually, I didn't 
look back to see if the third son had made it. But my three 
    Senator Franken. That is yes, I think.
    Justice Graves. Is that a yes? He is here.
    Senator Franken. Well, I see a hand up.
    Justice Graves. Very good. I am very happy, son.
    Justice Graves. That would be my son, Chris. And my son, 
James, and his wife, Tiffany. My son, Jeffrey, and his wife, 
Eyra. And someone should be holding my beautiful granddaughter.
    Senator Franken. Your daughter-in-law is holding your 
    Justice Graves. Wonderful. They told me not to look back. 
They said, ``Talk into the microphone, don't look back.''
    Senator Franken. You can look and then talk.
    Justice Graves. I can look and then talk.
    Senator Franken. Yes.
    Justice Graves. That's going to be hard.
    Senator Franken. Well, it is not a qualification for judge.
    Justice Graves. And I think that's all of the immediate 
family that's here. Well, my brother, Darrell, is here. He's 
only 6,6", so it's easy to understand how I might have 
overlooked him. Darrell is here.
    And then I have some of my chamber staff who are here, my 
clerk, Sherwood Colette is here. My assistant, Jackie Losset is 
here. My other clerk, Susan Huett, I am absolutely certain is 
watching the live Webcast. And I want to thank all those people 
for the support they have given me over the years. I thank them 
for being here.
    My three sisters, I am certain, are watching the live 
Webcast, as are my colleagues, I hope, or at least they're 
going to tell me they saw it, my colleagues at the Mississippi 
Supreme Court.
    But I really do appreciate this opportunity. I thank all my 
family and all the other friends who are here today.
    And having no formal remarks, Mr. Chairman, I'd be pleased 
now to answer any questions the Committee may have.
    Senator Franken. Absolutely. And I would like to welcome 
your family and your staff members who are here on this, which 
must be a very proud day for them.
    Justice Graves, we met yesterday.
    Justice Graves. Yes.
    Senator Franken. I must say I was very impressed during our 
conversation. You have served on Mississippi's highest court 
for nearly 10 years. If you are confirmed to the fifth circuit, 
more of your work will involve interpreting our work here; and 
by that, I mean, of course, Federal statutes.
    How will you make sure that you interpret Federal statutes 
in line with our intent in passing them?
    Justice Graves. Well, I think I would--with regard to my 
work as an appellate judge, if confirmed for the court of 
appeals, I would approach those cases the same as I've 
approached the handling of cases in the 9 years now that I've 
been a Mississippi Supreme Court justice.
    I would examine the record, look at the law that was 
applicable to the record, the facts of that particular case, 
apply the law to the facts, in trying to reach an appropriate 
result in whatever case is before me as a judge.
    Senator Franken. Well, is there any way you feel that your 
job would be different as a Federal appellate judge than as a 
Supreme Court justice in the State of Mississippi?
    Justice Graves. I'm certain it would be different to the 
extent that I would be dealing with Federal law. Now, as a 
Supreme Court justice in the State of Mississippi, obviously, I 
am, for the most part, dealing with cases that arise either 
under our constitution or under our state laws and the laws 
passed by our legislature.
    As a Federal judge, I know that I would be dealing 
primarily with Federal law and, as you stated, laws passed by 
the U.S. Congress, and it would be necessary for me to read--
study that law and apply it to the facts in the particular case 
that would be coming before the court of appeals.
    Senator Franken. As a Supreme Court justice, how did you 
determine the intent of the State legislators when they passed 
those laws? Would you just simply go by the text of the law? 
Would you go into the record that was made while the law was 
debated and passed?
    Justice Graves. I think on first approach, you look at the 
statute and try and determine what the language of the statute 
says, and that's the first place to look in determining what 
the statute means. Hopefully, it says what it means and it 
means what it says.
    And in the State of Mississippi, there is a dearth of 
legislative history. And so there's not a lot of that there in 
terms of recorded history with regard to debate that preceded 
legislation, those kinds of things.
    So typically, it's looking at the statute, trying to 
interpret what the statute means, if it means what it says. The 
next thing you'd do is look at whether or not there is any 
precedent, any case law, where there have been judicial 
interpretations of a particular statute, and you would look to 
that precedent for guidance in reaching a decision involving 
that statute, in the State of Mississippi.
    Now, I recognize that with the U.S. Congress, there could 
be some more extensive records, history regarding legislative 
    Senator Franken. Thank you. Justice Graves, I think it is 
remarkable that you have remained so active in your community, 
despite the rigors of your position as justice in the State 
Supreme Court.
    Can you tell me about your work on the board of Operation 
Shoestring and the Mississippi Children's Museum?
    Justice Graves. Operation Shoestring is an organization 
which started more than 40 years ago in an area of Jackson, 
which is now sort of a--it has been a blighted area, but the 
area is being revitalized.
    But Operation Shoestring promotes and sponsors after school 
programs to educate and involve the children in that community. 
They have programs for teaching children, which have resulted 
in improvement in their test scores, reading programs, literacy 
programs, and sometimes just feeding programs and daycare and 
after school programs for children in the community.
    And I've been serving on that board now for more than 3 
years, because I think Operation Shoestring does such important 
work in the community.
    Mississippi has no children's museum. And so several years 
ago, some members of the Junior League and a couple of other 
organizations got the idea to start a children's museum, and 
they asked me to serve on the advisory committee. And I just 
have a deep concern for children and education.
    And my vision was that a children's museum would be a great 
vehicle for educating children, and so I agreed to serve on the 
advisory committee, and then on the board. When the project 
began, it was determined that there was a need to raise about 
$25 million, and this was maybe 5 years ago, to get the museum 
    I, as a judge, obviously, can't be involved in fundraising, 
but every other aspect of the museum that I could be involved 
in, I have been involved in.
    I am pleased to report that the grand opening for the 
Mississippi Children's Museum--and they'll be happy I'm doing 
this now--the grand opening for the Mississippi Children's 
Museum will be this fall. It is the first children's museum in 
the State of Mississippi.
    Senator Franken. Thank you, Your Honor. And I will turn it 
over to the Ranking Member.
    Senator Sessions. Thank you. Justice Graves, it is a 
pleasure to be with you again. I enjoyed our opportunity to 
talk and appreciated your comments at that time, and I enjoyed 
that opportunity in dialogue.
    It is good that you have your home State Senators' support. 
And you have had a good bit of time now, 8 years, on the 
Mississippi Supreme Court. Well, by now, you have probably 
decided whether you like writing opinions or not.
    Do you like that work?
    Justice Graves. Yes, sir.
    Senator Sessions. The burden on judges is significant, and 
I think the caseload burden on our justices probably will 
remain high. There are several reasons I think that we should 
not add judges just to continue a certain fixed number of 
    I guess we are going to have to do better and keep the 
collegiality and smaller numbers, where possible. And I suppose 
you are willing to serve for the pay that has been offered. Do 
you know what the pay is?
    Justice Graves. I have a general idea, but I am certain I 
am willing to serve for that pay.
    Senator Sessions. And we hope 1 day judges can get pay 
raises, but we are in a tight budget. So it cannot be 
    Let me ask you about Doss v. State; your former colleague 
on the Supreme Court of Mississippi, Judge Diaz, wrote, in 
dissent, and you joined it, and stated the following: ``When 
our founding fathers ratified the Federal and State 
Constitutions in 1788 and 1890, they did not consider all forms 
of the death penalty to be violative of our bans on cruel and 
unusual punishment.'' And I certainly would agree with that.
    ''But just as we would disagree with our framers,'' he went 
on to say that, ``for example, the execution of a child, 
necessarily amounts to a violation of the Eighth Amendment, our 
society's notion of what is cruel and unusual changes with 
    Do you personally agree with that, that the cruel and 
unusual definition changes with time?
    Justice Graves. Senator, that Doss opinion, was handed down 
by the Mississippi Supreme Court, I believe, in 2008 and 
Justice Diaz did write a dissenting opinion in that case, which 
I joined.
    But I'd like to point out that there were two issues about 
which I was chiefly concerned in that case, and those two 
issues had to do with the ineffective assistance of counsel and 
the mental retardation issue.
    His dissenting opinion addressed, in part one, those two 
issues. And those were the only two issues raised by the 
defendant in that case. Those were the substantive issues. 
Those were the issues about which I was concerned, and I take 
responsibility for joining that opinion.
    But I have not now nor have I ever espoused any view that 
the death penalty was unconstitutional, and, in fact, that case 
was brought back on re-hearing before the Mississippi Supreme 
Court in 2009 and I had an opportunity to author a majority 
opinion in that case and I addressed in that majority opinion 
one of the chief issues which concerned me, and that was the 
ineffective assistance of counsel issue.
    I wrote a dissenting opinion in that case with regard to 
the mental retardation issue. But that case has been withdrawn. 
A new opinion has been handed down, and everything that I 
wanted to say about Doss and the issues involved in the Doss 
case I said and had every opportunity to say in the new opinion 
which was handed down in 2009, and I chose to address those two 
issues and nothing else.
    Senator Sessions. Well, I understand that, and cases come 
fast and furious to a court. But language does have meaning, I 
    Later on, one of the decisions Justice Diaz cited was the 
Supreme Court's opinion in Roper v. Simmons. In that decision, 
the Supreme Court relied on foreign law in holding that the 
execution of minors violated the Eighth Amendment.
    Do you think it is proper to look to foreign law to define 
the Eighth Amendment of the United States Constitution?
    Justice Graves. I think it's proper to look to the laws of 
the United States and the Constitution of the United States in 
making determinations about the Eighth Amendment to the United 
States Constitution.
    Senator Sessions. Well, I think I agree with what you said. 
Justice Diaz's dissent went on to conclude, quote, ``The death 
penalty is reduced to pointless and needless extinction of 
life, with only marginal contributions to any discernable 
social or public purpose. A penalty with such negligible 
returns to the State is patently excessive and cruel and 
unusual punishment, violative of the Eighth Amendment,'' close 
    That, I suppose, is the phrase that worried me the most. It 
seems that you went along with the opinion that he had written 
that the death penalty is pointless and needless extinction of 
life. That is a matter we can talk about and disagree.
    But I am more worried about the apparent statement that it 
is so negligible in returns to the State, that it is patently 
excessive and cruel and unusual punishment, violative of the 
Eighth Amendment.
    Is that your position today?
    Justice Graves. No, it is not, Senator. And all I can say 
is that when I read what he wrote, I viewed it as his plea for 
a dialog on the efficacy of the death penalty.
    In retrospect, I can see how it may not be clear, but I 
never intended to adopt his thoughts, his concerns with regard 
to the death penalty. My chief concern was the ineffective 
assistance of counsel issue, the mental retardation issue.
    Senator Sessions. Well, the Constitution deserves a fair 
interpretation, it seems to me, and what essentially the people 
who ratified it meant. And would you not agree that there are 
multiple references in the Constitution from the earliest draft 
through various amendments, the Fourteenth Amendment and others 
later, that refer to capital crimes? You cannot take life 
without due process, but you could take life with due process. 
I think there are six or eight such references.
    So it would be difficult to interpret the Eighth Amendment, 
cruel and unusual punishment, it seems to me, as the 
Constitution prohibiting all death penalty. Would you agree 
with that analysis?
    Justice Graves. Senator, I fully expect that if I am 
confirmed, I will take an oath and that oath will be to uphold 
the laws and the Constitution of the United States. And the 
United States Supreme Court has determined that the death 
penalty does not constitute cruel and unusual punishment, and I 
would follow the law as handed down by the United States 
Supreme Court.
    Senator Sessions. Well, we had two members of the Supreme 
Court that dissented in every case, Justices Marshall and 
Brennan, and they contended the death penalty was cruel and 
unusual and that it was unconstitutional.
    No longer are such dissents occurring. It seems to me that 
Judge Diaz and you signed an opinion that agreed with that 
view. But I hear you saying that that did not necessarily 
represent your carefully considered intellectual view of that 
particular issue. It was more a willingness to sign on to 
Justice Diaz's dissent as an expression of concern about this 
case. But it did say more than that, apparently. It seemed to 
say a good bit more.
    Would you just share once more your thoughts about this 
fundamental question about whether you could use the Eighth 
Amendment to declare all death penalties unconstitutional?
    Justice Graves. I think, Senator Sessions, that maybe the 
best evidence of how I would handle death penalty matters, if 
they came before me as a judge on the Fifth Circuit Court of 
Appeals, is the way I've handled them as a Mississippi Supreme 
Court justice.
    In the 9 years that I've been a Supreme Court justice in 
the State of Mississippi, I've had an opportunity to vote on at 
least a dozen death penalty cases, where I've voted to affirm 
both a conviction and a sentence of death.
    I've voted to affirm convictions and death sentences both 
before that Doss opinion and since the Doss opinion.
    Senator Sessions. I appreciate that. I guess I would go one 
more step here and say as you analyze the Constitution and laws 
of the United States that come before you, will you seek to 
enforce them as they are written, fairly interpreting them as 
best you are able, to carry out the will of the populous who 
elected them through their elected representatives, passed them 
through their elected representatives?
    And the fact that you may or may not agree that the death 
penalty is good policy--and I think people can disagree about 
that--do you think that the Constitution prohibits its 
implementation, if left to your judgment?
    Justice Graves. If left to my judgment, I'm going to follow 
the law as handed down by the United States Supreme Court, and 
it clearly is that the death penalty does not constitute cruel 
and unusual punishment.
    Senator Sessions. But you signed an opinion that seemed to 
say that you do not agree with that, that you believe that it 
is of negligible benefit to the State; therefore, it is 
unconstitutional. Is that what you meant to say?
    Justice Graves. It is not.
    Senator Sessions. Thank you.
    Senator Franken. Remember, you said the thing about----
    Senator Sessions. My time is over.
    Senator Franken.--my correcting you. Thank you.
    Senator Sessions. The Chairman has a right to bring the 
hammer down on elongated questioning.
    Senator Franken. Yes. Thank you. I would like to thank the 
Ranking Member. And thank you, Justice Graves. We will now 
proceed to the second panel.
    Justice Graves. Thank you.
    Senator Franken. Why do not you all come forward and 
instead of sitting, please remaining standing so that you can 
swear the oath.
    [Nominees sworn.]
    [The biographical information follows.]

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    Senator Franken. Thank you. Please be seated.
    I now invite you to introduce any members of your families 
that are here today. Why do we not start from my left?
    Mr. Holmes.


    Mr. Holmes. Thank you. First, let me thank the Chairman of 
the Committee and the Ranking Member for scheduling this 
hearing today and this opportunity to be heard, and thank you, 
Senator Franken, for chairing the Committee.
    I'm really appreciative of the nomination by the President 
of the United States to be United States District Judge for the 
Western District of Arkansas. And I'm also appreciative of the 
support of Senators Blanche Lincoln and Mark Pryor in 
recommending my nomination to the President.
    I would like to introduce my family here. I would like for 
my wife of 31 years, Kay, to please stand. And we have two sons 
who could not be here today, because they cannot miss college 
classes. Our son, Christopher Holmes, is in Batesville, 
Arkansas, watching on the Webcast; and, our son, Stephen 
Holmes, is in Fort Smith, Arkansas, watching on the Webcast.
    And with that, I will be glad to answer any questions the 
Committee may have. Thank you.
    Senator Franken. Well, thank you.
    [The biographical information follows.]

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    Judge Battaglia--I did say Battaglia at the first pass by 
your name, I apologize. Any Battaglias here today?

                     DISTRICT OF CALIFORNIA

    Judge Battaglia. There are, Senator. And thank you for 
chairing today's hearing. I'd like to thank Chairman Leahy for 
scheduling this and Ranking Member, Senator Sessions, as well. 
And let me thank, also, the President for the nomination; 
Senator Boxer for recommending to the President for 
consideration; and, Senator Feinstein, for her tremendous 
support in this process.
    I'd like to introduce my wife of 33 years, Carol Battaglia, 
who is behind me, and I'd like her to stand.
    Senator Franken. Welcome.
    Judge Battaglia. Also, Carly Battaglia, now Nardin, my 
daughter, and her husband, Brandon Nardin, late of the U.S. 
Marine Corps, who are here with me. And my son, A.J., Anthony 
James Battaglia, who is here, as well.
    Also, joining me from San Diego, I'd like to introduce, if 
I may, Russell Block, who is a professor at San Diego State and 
the husband of Judith N. Keep, who left us far too young. She 
was the chief judge that appointed me in 1993, a mentor, an 
inspiration, and I'm just so thrilled to have Rusty, as we call 
him here, on her behalf and his, to support me.
    Our clerk of court, Sam Hamrick, from San Diego, who was in 
town and chose to come. The Honorable Mary Schroeder, former 
chief of the Ninth Circuit Court of Appeal, who has been a 
long-time friend, mentor and inspiration, as well. And I would 
be remiss if I didn't thank Tom Hnatowski, the chief of the 
Magistrate Judges Division of the Administrative Office; and, 
Margaret Irving, the chief of the Article III Division of the 
Administrative Office, who have attended today.
    At home, I do have my 88-year-old mother watching on the 
Webcast, along with my brother, who is there caring for her. 
And I do have all of my magistrate judge colleagues, who are 
now in their noon meeting, watching me instead of attending to 
business, which I appreciate very much, and our district 
judges, who have supported me so faithfully throughout this 
    So thank you, Senator, for allowing me to recognize these 
very important folks.
    Senator Franken. Thank you very much, Judge Battaglia, and 
welcome to all of you.
    Judge Davila.
    [The biographical information follows.]

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    Judge Davila. Thank you. Thank you, Mr. Chairman. And I 
would also like to thank the President for my nomination. I 
feel humbled and privileged to be here to discuss issues with 
the Chairman and the Ranking Member. And thank Chairman Leahy 
for arranging this hearing for all of us here this afternoon.
    I do have family members here that I'd like to introduce. 
But I'd also like to thank my home State Senator, Senator 
Boxer, for her nominating me to the President; and, my other 
State Senator Feinstein, for her continued support.
    I would like to introduce my wonderful wife, Mary 
Greenwood, who is present.
    Senator Franken. Welcome.
    Judge Davila. And our fantastic 13-year-old daughter, 
Chela, who is also present. She's missing a few days of her 
rigorous middle school to be here on this wonderful educational 
experience, and she'll return shortly.
    Our dear family friend, Mary Maben, is also here. She works 
in San Jose and in Washington, DC, and I'm happy to have her 
here to support me, as well.
    Senator Franken. Welcome.
    Judge Davila. Thank you. There are others who are not here, 
and, Senator, if I may for just a moment, tell you I was very 
privileged to be raised in a matriarchal family; a single 
mother, and there were three other women who were of great 
significance in my life--my grandmother, who has passed away 
now, and my Aunt Trini, is 90-years-young, and, of course, my 
mother. They could not be here. Their health situation 
precludes them from being here, but all three of those people, 
I've learned so much from them and all there of them continue 
to be with me here and I'm happy to have their support in 
spirit, if it not in flesh.
    I should also recognize and thank my two sisters, Celia and 
Linda, who I believe are watching the Webcast, as well. And, of 
course, I need to thank my wonderful court staff, Maggie and 
Mary Lou, who I am convinced are the best in the business. No 
disrespect to my colleagues and their staff. But I'm grateful 
for all their support.
    Thank you very much.
    [The biographical information follows.]

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    Senator Franken. Thank you, Judge. And for all the women 
that you have mentioned watching on the Webcast, welcome. Hi, 
welcome to you, too.
    Judge Saldana, thank you for being with us. 
Congratulations. And please feel free to introduce any members 
of your family or staff or friends who are here today.


    Judge Saldana. Thank you, Senator. I want to start off by 
thanking President Obama for the nomination. It is truly an 
honor to be here today with you and with Ranking Member 
    I want to thank Senator Cornyn and Senator Hutchison for 
their very kind words and their introduction to me. I want to 
thank them for establishing a bipartisan Committee in the State 
of Texas to review applications, and for their support 
throughout this process. I also want to thank Congressmen Henry 
Cuellar, my home Congressman from Laredo, Texas.
    I am here because of the support of family and friends. I 
would like to recognize individuals who are here with me today 
and, also, some who were not able to travel with me to 
Washington, DC.
    I want to start off by introducing my husband, Robert 
Arredondo, who stood up earlier today when Senator Cornyn was 
introducing me. He is a proud member, as he indicated, of the 
Laredo Police Department and a wonderful husband. He and I just 
became the proud parents of two boys, Thomas and Luke, who are 
seated next door. They are ages 4 and 5, and we were worried 
that they would not be able to sit through the hearing. So they 
are next door with my niece, Adriana Perez, who is here and 
volunteered to watch them for us.
    My mother, Blanca Hernandez Rodriguez, is here with me. As 
Senator Cornyn indicated earlier, she is my inspiration. She 
taught me to be a very hard worker and really gave me the 
opportunity to dream of being here someday. She worked very 
hard for all of her six children. All six received high school 
diplomas and four of them college degrees. I am fortunate that 
two of my sisters were able to be here today, my sister, Rose 
Pearson, and her son, Daniel Kenneth Pearson, Jr., and then my 
sister, Blanca Saldana. Her daughter, Adriana, is the one who 
is watching our two boys right now.
    I have two other sisters who were not able to be here with 
me today, Linda Garcia, who was like a second mother to me. 
She's older than I am, but she is like a second mother to me. 
And she's an accountant and was not able to get away from work, 
unfortunately. But I know that she is here with me in spirit. 
And her children, Samantha and Brandon, and her husband, 
    My other sister, Beatrice Saldana, was not able to be with 
me either, but I know that she's watching the Webcast. And my 
brother, Rudy Saldana, and his sons, Joseph, Emanuel, Abraham 
and Jeremiah. I have 11 nieces and nephews, so I have to make 
sure I introduce all of them. And Elijah.
    Senator Franken. I am not sure we have time.
    Judge Saldana. And Elijah Pearson, who was not able to be 
here with me. My mother-in-law, Laura Arredondo; my sister-in-
law, Linda Arredondo----
    Senator Franken. Welcome.
    Judge Saldana.--traveled from Laredo and from Austin to be 
here. My college roommates, Ronnie, Veronica Ruiz, and Lila 
Michele Garza, Sarah Martinez traveled here.
    Senator Franken. Welcome.
    Judge Saldana. My only other college roommate, who was not 
able to be here, is Christy Isom (ph), but I know that she is 
watching with her kindergarten class in Austin, Texas.
    My wonderful staff in Laredo, Margie, Irene and Yamil, all 
of the staff at the Federal courthouse in Laredo, Texas, my 
colleagues at the Federal courthouse, Judge Alvarez, Judge 
Hacker, Judge Garcia.
    And I would like to conclude by thanking Judge Kazen, who 
is my mentor. I clerked for him when I graduated from law 
school and I, if confirmed, will succeed him. He has been an 
inspiration to me. He has a tremendous work ethic. For over 20 
years, he served the Laredo division as the only Federal 
district judge in Laredo, with an overwhelming criminal docket, 
on the border. And I want to thank him for all of his support, 
and his beautiful wife, Barbara Kazen, as well.
    And I welcome any questions from the Committee. Thank you.
    [The biographical information follows.]

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    Senator Franken. Thank you. I want to just welcome 
everyone, all these family members and significant folks who 
came here today. This must be a very proud moment for all of 
you. Congratulations.
    Well, why do I not start the questioning here? I will start 
with Judge Davila. Before you became a judge in 2001, you 
stated that you would need to leave the role of an advocate 
behind and become an objective listener.
    Can you tell us the difference that you see between being a 
judge and being an advocate and how you took on that 
    Judge Davila. Thank you, Mr. Chairman. Yes. And it is a 
transition that I'm certain all my colleagues here have had to 
make from their practices, from their days as a lawyer, where 
we represented a cause, a client, and argued cases in front of 
judges. And in those situations, we were not unbiased. We were 
very biased, because we were, of course, pursuing the goal of 
our client's best interest. And I did that for 20 years as a 
    Of course, making the transition to the bench, one leaves 
that behind, as I indicated, and you no longer are an advocate. 
You become a neutral and impartial fact-finder and you must 
make decisions accordingly.
    Senator Franken. Thank you, Judge.
    Senator Whitehouse, my colleague from Rhode Island, has 
just stepped in and was a Federal attorney--is that right?
    Senator Whitehouse. Correct.
    Senator Franken. With P.K. Holmes--or United States 
    Senator Sessions. The United States attorney.
    Senator Whitehouse. The United States attorney. Let me 
thank the Chairman and the Ranking Member for letting me 
interrupt the proceedings just for a second on a small point of 
personal privilege.
    I had the great pleasure of serving with P.K. Holmes as 
United States attorney, me for the District of Rhode Island, 
him for the District of, if I recall, Arkansas, during the 
Clinton Administration, and I am delighted to see that he is 
now a candidate for judicial office.
    I wanted to extend him my best wishes for a swift and 
uneventful confirmation.
    Mr. Holmes. Thank you, Senator.
    Senator Whitehouse. Welcome. Welcome to all the candidates, 
but in particular, thank you and best wishes to you, Candidate 
Holmes, Nominee Holmes.
    Mr. Holmes. Many thanks for your kind remarks.
    Senator Franken. Well, that is the greatest wish that any 
member of this panel can give you. So congratulations, former 
U.S. attorney.
    Let me go to Judge Saldana. I will say that the 
introduction you were given by both Senators was very eloquent, 
and you do have a truly remarkable background. I congratulate 
your mother.
    You have overcome more, I would submit, than most of your 
future colleagues on the Federal bench. How has that shaped you 
and how do you think that has shaped your judging, if it has at 
    Judge Saldana. Thank you, Senator. Growing up as a farm 
worker, traveling throughout the country, I was able to see 
what different persons experienced from different backgrounds. 
Actually, going to the great State of Minnesota and meeting the 
people there and lots of people who are watching, I think, on 
the Webcast from Minnesota who I still keep in touch with, it 
really gave me a wide breadth of experience, I believe, and has 
made me a well rounded person.
    And it really drove--not drove, but it helped to create my 
very strong work ethic. And because I serve on a border court, 
that is something that will serve me very well.
    Senator Franken. Well, thank you. I just want to make the 
point that I think that experience and a broad breadth of 
experience is a good thing. And that does not necessarily mean 
that you become biased in one way or the other, but it just 
means that you bring an understanding of how your rulings 
affect all kinds of people.
    Would that be a correct statement?
    Judge Saldana. Yes, it is, Senator. Thank you.
    Senator Franken. Thank you so much.
    Judge Battaglia, I see that you have helped manage the 
Volunteer Lawyers Domestic Violence Clinic. I am going to a 
Sheila Wellstone Institute event tonight, and she was a 
champion in this field.
    What is your role in this program, in the Volunteer Lawyers 
Domestic Violence Clinic, and how has your volunteer work 
influenced your career?
    Judge Battaglia. Thank you, Senator, for that question. I 
was a board member for the San Diego Volunteer Lawyer Project 
in the early 1990s, helping manage or govern the organization, 
implement programs, including the domestic violence program and 
others, to ensure that members of the public that needed 
assistance had lawyers available to confront the needs that 
they were dealing with in the tragic circumstances particularly 
in domestic violence that people were caught up in.
    So the role was to make sure the organization worked 
soundly, fairly, and lawyers were available for people in need.
    Senator Franken. Thank you.
    Judge Battaglia. As far as shaping my views, my concern 
about access to justice has always been very strong and I 
believe firmly in the system, and it was just a supplement to 
that deep feeling.
    Senator Franken. Thank you. Thank you for working in that 
    Mr. Holmes, since my colleague recommended you so highly, I 
am going to give you a pass.
    Mr. Holmes. Thank you, Senator.
    Senator Franken. And my time is up anyway. So I will go to 
the Ranking Member.
    Senator Sessions.
    Senator Sessions. Thank you. We do not want to pass over 
the U.S. attorney too lightly. But I did have a call from a 
friend who served for many administrations in the Department of 
Justice and also served for quite a while as director of the 
executive office of United States attorneys. So he knew United 
States attorneys all over the country, and I think was a former 
U.S. attorney and prosecutor himself. And he said you were 
topnotch. So I think that is a good compliment, and appreciate 
the comments of our colleagues who are high on your 
    Mr. Holmes, with regard to the sentencing guidelines, the 
Supreme Court has weakened the authority of those guidelines 
somewhat. How have you felt the guidelines have worked in terms 
of attempting to have uniformity of sentencing, as a Federal 
prosecutor? And to what degree do you believe that as a judge, 
you will seek to be consistent with the guidelines in your 
    Mr. Holmes. Thank you, Senator Sessions, for the question. 
Of course, during my tenure as U.S. attorney, the guidelines 
were mandatory, and, since the Booker decision, they're 
    I think there's a presumption that the sentencing 
guidelines are reasonable. I believe that they should be 
followed, and my experience in the field of criminal defense 
has been that they have been followed. And I would continue to 
use the sentencing guidelines, because they do avoid disparity 
in sentencing, and I, if I'm fortunate to be confirmed as 
district court judge, would follow those.
    Senator Sessions. Thank you.
    Judge Saldana, you were a Federal prosecutor for a number 
of years and a United States magistrate judge, I guess 5 or 6 
years as a Federal prosecutor and, since 2006, a magistrate 
judge in Federal court.
    What would you say about the guidelines and how you would 
see them?
    Judge Saldana. Thank you, Senator. I recognize and 
understand the importance of the sentencing guidelines and why 
they were implemented, the importance of uniformity in 
sentencing throughout the country. And I also recognize the 
state of the law and that they are presumptively reasonable.
    And so I would look to the sentencing guidelines when I am 
determining the appropriate sentence for a person who is 
standing before me, if confirmed as a United States district 
    Senator Sessions. Thank you. I think that would be good 
advice as meant? Judge Battaglia, you are a magistrate judge. 
You have worked with them, also. What would be your comment?
    Judge Battaglia. My comment, Senator--and thank you for 
asking me--is that there is a presumption of reasonableness for 
the guidelines. I have utilized those in misdemeanor 
sentencing, Class A misdemeanors, where the guidelines are 
    As the Supreme Court has directed us, I consider those 
first off and use those, give them great deference, because 
they have regularized sentencing. Despite the change in the 
law, I think they still give us a great pattern to follow for 
consistency in sentencing everyone fairly.
    Senator Sessions. I could not agree more.
    Judge Davila, I think you will find that to be true, 
although you may not have had a lot of direct experience with 
them. I think that is the right thing. Otherwise, we go back 
to, well, it depends on which judge you have. You are in one 
courtroom and you get hammered; in another courtroom, you get 
probation for the very same offense, and it becomes pretty 
indefensible really to explain to family or victims why one 
person got one sentence and one person got another.
    That is what led to the passage. Senator Kennedy, Senator 
Thurmond, Senator Biden, Senator Hatch all worked on that and 
passed those guidelines. I do not think the Supreme Court was 
precisely correct in their ruling, but we are stuck with it. So 
that is where we are.
    I do believe that justice in America will suffer if judges 
move away from following the guidelines, which represent, I 
think, the studied opinion of judges and other experts in 
    Judge Battaglia, you had a situation with a student who 
allegedly said to a counselor, ``If you do not give me this 
schedule change, I'm going to shoot you.'' The student 
apparently said ``I'm so angry, I could just shoot somebody,'' 
closed quote.
    You were reversed eventually, on that case, although upheld 
initially, for saying the school did not have the authority to 
suspend the student.
    Would you, briefly, we just have a moment, share your 
thoughts about that? And do you feel like you properly 
respected the burdens that fall on school administrators, the 
principal, to make sure that teachers are not threatened or 
harassed in a classroom?
    Judge Battaglia. Thank you, Senator, for that question. 
That was one of my early cases and one that I am happy to talk 
    At the time, the evidence was in dispute about the precise 
nature of the statement, and I found that under either 
characterization, it was protected speech, under the ninth 
circuit authority existing at the time. I followed the law, the 
precedent that was in place, the precedent of the ninth 
circuit, based upon United States Supreme Court precedent.
    And I faithfully adhered to the precedent, found the facts 
to be, irrespective of which statement, the necessary concern 
of an imminent threat was absent. So the speech was protected.
    The ninth circuit initially affirmed me and then, on 
reconsideration, several months later, decided to go a 
different way, which would be the province of the appellate 
court to overrule the district court decision I made. So yes.
    Senator Sessions. Are you thinking free speech? Well, what 
would be your evaluation as to which would be the correct 
ruling, the first one or did they reverse their prior authority 
when they ruled against you? And do you suggest that the 
phrase, ``If you don't give me this schedule change, I'm going 
to shoot you,'' that under existing case law, was such that a 
school cannot discipline a student for it?
    Judge Battaglia. At the time of the decision, it was. It is 
no longer. My decision was overruled. The appellate court, the 
ninth circuit, changed its prior precedent in overruling my 
    The development of case law since has made it clear that 
that would not be protected speech and that there was a serious 
threat, and the courts, I think, would approach that.
    Were I to have that case again today, the outcome would be 
different. If I were to look back and criticize my opinion, it 
would be probably that I should have found that the statement 
asserted by the school district was the correct one. Since the 
plaintiff had the burden of proof and failed to make it, it 
was, in effect, a dead heat.
    But either way, if this case were happening today, the 
ruling would be totally different from the district court 
    Senator Sessions. Well, I will just tell all of you, I 
think the American people and I have the view that schools have 
got to be given some latitude in running the school and 
maintaining order. And you cannot make a Federal case out of 
every suspension over some hot kid who runs their mouth, it 
would strike me.
    But I think there has been some authority in the past that 
could well have led you to follow that authority, and I do not 
dispute it.
    Judge Battaglia. And I don't disagree with you.
    Senator Sessions. But if so, it was not very good authority 
and I am glad the court has moved away from it.
    Judge Battaglia. Right. And as you know, Senator, we are 
bound by precedent at the district court level. A magistrate 
judge, as I was in this case, it's not our role to invoke 
policy, to make law, but we are bound by the applicable 
authority and follow that, notwithstanding how we might feel 
personally. That is our job. But thank you for asking.
    Senator Sessions. Well, I do not think the Constitution 
ever would have--normally, it would not have been interpreted 
in that fashion, and the ninth circuit has rendered some 
opinions that I certainly would not support.
    Judge Davila, you were active in La Raza, which is a group 
that I understand emphasizes and affirms the Hispanic ethnic 
heritage, and that is fine, and you said a few things that I 
think are OK, but close for a judge.
    You said you hope to see increasing diversity of 
experiences, ideas, race, ethnicity and culture on the bench, 
and I think that is fine, and we do not leave our life 
experiences behind, do we? We bring those to the bench, I 
suppose, and that's what's good about a diverse bench.
    You go on to be quoted in this piece, saying, ``Justices 
will be better able to relate to the experiences of those that 
come before them.'' I think that is a careful, pretty careful 
    Some have gone beyond that and suggested that if you have a 
person of my ethnic, religious, racial background on the bench, 
they are more likely to rule for me than if not.
    Do you not think that the oath that a judge takes that they 
must be impartial, they should not be a respector of persons, 
and do equal justice to the poor and the rich sets up an ideal 
vision of a judge who, no matter what their ethnicity is, that 
they will give everybody before them a fair shake, no matter 
what the party's ethnicity is?
    Judge Davila. Well, thank you, Senator. And I appreciate 
your eloquence and I agree with your statement. Justice is 
blind. There is only one rule of law, and that article that you 
reference was an article from our local town newspaper, I 
believe, upon my appointment. And I think the title of that, as 
I recall, was local--it might have been ``Local Boy.'' I just 
don't remember now. But it was ``Local Attorney Moves to the 
    Senator Sessions. And you do not vouch for the perfect 
accuracy of the quotes. Is that what you are suggesting, that 
it was not your word, it was what the newspaper said you said?
    Judge Davila. Well, no, sir, Senator. What I'm saying is I 
agree with your statement. There is one rule of law, Senator, 
and we do bring our backgrounds to our employments, our 
careers, our jobs, and those backgrounds serve us well as a 
    I can tell you, Senator, my background has helped me to 
develop a character that has assisted me in establishing a 
courtroom that affords dignity to victims, to witnesses, to 
litigants, all litigants who come in my courtroom, and I'm 
proud of that.
    I should tell you, Senator, that when it comes, however, to 
making a decision on a case, the background that was referenced 
perhaps, that is separate and apart, because as judges, we make 
our decisions without bias, impartially, and we look at the 
law, including precedent, and apply it to the facts. And we, 
therefore, continue the system of justice that is blind, as 
I've indicated.
    Senator Sessions. And your commitment is to provide that 
equal justice to each and every party before you, regardless of 
their ethnicity, race, education, or religion.
    Judge Davila. It is. And if I am fortunate enough to be 
confirmed, I would do that, Senator.
    Senator Sessions. I think that is the ideal of American 
justice, I really do, and why people come here from all over 
the world, because they feel like that no matter who they are, 
if they own some property, nobody can come and take it from 
them; they cannot be incarcerated without the proper rules 
applying, they get a fair day in court, and that applies across 
the board.
    And the whole strength of the American system is to find 
the truth and to apply it fairly to the parties before you. 
Some, I think, get to believing there is no truth and that it 
is just a matter of perspective, but I think that is contrary 
to the ideal of the American legal system.
    Thank you very much. Judge Saldana, you made a comment back 
when you were in law school that indicated a very strong belief 
in affirmative action and that because--and you say, quote, 
``It offends me that an Anglo can take my seat, because the 
admissions Committee is unwilling to consider my background.''
    To what extent do you think objective criteria for deciding 
admissions to universities is legitimate and to what extent do 
you think they should look beyond that to provide preferences 
or, inevitably, adversities to people of different ethnic 
    Judge Saldana. Thank you, Senator, for that question. I was 
representing the Hispanic Law Students Association at the time 
that I made that statement and it was after a ruling by the 
firth circuit, I believe.
    The Supreme Court has spoken on affirmative action and has 
held that race is a factor that can be considered, but it must 
be rationally based. And if I am confirmed, I can assure you, 
Senator, that I will apply the existing law in that area and 
apply it to the facts of the cases before me.
    Senator Sessions. The Supreme Court expressed a very clear 
view that in America, preferences should not be provided to one 
ethnic group or racial group over another, basically, except 
under certain circumstances. Would you agree with that?
    Judge Saldana. Yes, I do, Senator.
    Senator Sessions. And that strict scrutiny should be 
applied, which means a very careful review of any situation in 
which we give one ethnic group or racial group or religious 
group an advantage over another.
    Judge Saldana. Yes, Senator, and that is what I would 
follow. That is the state of the law. It is very clear, and I 
will follow that, if confirmed.
    Senator Sessions. Thank you. Well, I appreciate the 
opportunity to have this hearing, Mr. Chairman, to ask these 
questions. Follow-up questions will be submitted to you. Your 
backgrounds have been evaluated. The FBI has done backgrounds. 
The White House has done backgrounds. Your Senators who support 
your nomination have checked you out.
    And those are all good things, because you are asking to be 
given a lifetime appointment, launched forth from the Federal 
bench without an opportunity to be second-guessed pretty much, 
except at the appellate court.
    So it is an important office you are seeking. We try to do 
our duty, and I appreciate the comments that you have given us 
    Senator Franken. Thank you. I would like to thank my 
friend, the Ranking Member. And, yes, these are lifetime 
appointments. So that is why I let you go for as long as you 
    Senator Franken. And the Ranking Member is correct. The 
hearing record will be held open and it will be held open for a 
    In closing, I just want to thank the Ranking Member and I 
want to thank each of you for your testimony today and for all 
of your public service. You are all very impressive in your 
life stories and your accomplishments.
    I just want to say something, because the Ranking Member 
started to get on this, sort of the theme, we talked about your 
experience as a migrant worker, as the daughter of a migrant 
worker, and your statements for La Raza.
    I think that every American and every person intuitively 
knows that a judge brings his or her experience to the court. I 
do not think anyone can doubt that. And Oliver Wendell Holmes, 
I believe, said--it was he who said something to the effect of 
that the law is experience, and I do not think there is any 
contradiction between that and the ability of judges to use 
their experience in a way that is consistent with exercising 
the rule of law.
    So I value the diversity that people of different 
backgrounds, as the Senator said, is what makes our country 
different, as the people from all over the world come, and I 
think it is valuable to have people from all over the world sit 
as judges on our courts. We have a Holmes, a Battaglia, Davila 
and Saldana.
    So we will hold the record open for 1 week for submission 
of questions for the nominees and other materials.
    This hearing is now adjourned.
    [Whereupon, at 3:30 p.m., the hearing was concluded.]
    [Questions and answers and submissions for the record.]

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               WEDNESDAY, NOVEMBER 17, 2010
                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., Room SD-
226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, 
    Present: Senators Kohl, Feinstein, Whitehouse, Klobuchar, 
Franken, and Sessions.


    Senator Whitehouse. The hearing will come to order. And I 
welcome everyone here. Our Ranking Member, Senator Sessions, is 
on his way, but I've been given clearance to get underway while 
he makes his way over here.
    The order of proceeding is that I will make a brief opening 
statement, followed by that of Ranking Member Sessions. And if 
anybody else cares to make an opening statement, we will do 
that, and then we will turn to the Senators who would like to 
make introductions of the nominees from their States, and we 
will take that in order of seniority. Then we will have two 
panels. The first will be the four nominees to the district 
courts and the second will be the three nominees to the 
executive agencies. Each nominee will have the chance at that 
time to introduce any guests they may have with them, family 
members. And I welcome all of you here today.
    The seven nominations that we will consider are Max 
Cogburn, nominated to the United States District Court for the 
Western District of North Carolina; Judge Marco Hernandez and 
Michael Simon, nominated to the U.S. District Court for the 
District of Oregon; Judge Steve Jones, nominated to the U.S. 
District Court for the Northern District of Georgia; Michele 
Leonhart, nominated to be Administrator of Drug Enforcement at 
the Department of Justice; Judge Patti Saris has been nominated 
to be a member and chair of the U.S. Sentencing Commission; 
and, Stacia Hylton has been nominated to be the Director of the 
United States Marshals Service.
    We welcome each of these nominees and their families and 
their friends here to the U.S. Senate.
    We have a full slate and a busy floor schedule this 
morning. So in the interest of efficiency, we will get straight 
to the order of business.
    In the absence of Senator Sessions, why do I not turn to 
Senator Feinstein for any opening statement she might care to 


    Senator Feinstein. Thank you very much, Mr. Chairman. The 
only statement I wanted to make is one on behalf of Michele 
Leonhart. Would it be appropriate for me to do it at this time?
    Senator Whitehouse. Of course.
    Senator Feinstein. Thank you very much. I am very pleased 
to introduce her. She has been nominated to serve as 
Administrator of the DEA. She has had a very distinguished 
career with that organization, which includes several critical 
roles in my home State of California.
    In 1997, she became the first woman to head a DEA Field 
Division when she was named Special Agent in Charge for San 
Francisco. She managed DEA operations in San Francisco until 
September 1998, when she became Special Agent in Charge of the 
Los Angeles Field Division, one of DEA's largest. She continued 
in that position until March of 2004, when she was confirmed as 
Deputy Administrator.
    She and her family continue to maintain a residence in 
California, and we are very proud to call her one of our own.
    Ms. Leonhart has served as the Acting Administrator for the 
DEA since November of 2007, for 3 years. She was unanimously 
confirmed by the Senate to be Deputy Administrator in 2004.
    So the members of this Committee are already familiar with 
her outstanding qualifications and excellent work in enforcing 
the Nation's controlled substances laws, but I would like to 
briefly just highlight some of her accomplishments.
    Under her leadership, DEA has reached record-breaking 
levels of extraditions, drug and asset seizures, and revenue 
denied to drug trafficking organizations. She realigned 
resources to expand DEA's foreign presence to combat emerging 
threats and enhanced intelligence-sharing with foreign 
countries, to include Mexico and Colombia.
    She implemented a plan to deploy the first team of DEA 
agents to conduct counter-narcotics operations in Afghanistan 
post-9/11, leading to the investigation and prosecution of 
Afghan drug lords.
    Under her leadership as Acting Administrator, the DEA 
recently completed one of its most successful joint 
international drug operations in history, Operation 
Xcellerator. This 21-month effort, terminating in February of 
2009, dealt a severe blow to the violent Sinaloa Cartel in 
Mexico, resulting in more than 750 arrests and $59 million 
    She has worked with law enforcement, community and school 
leaders. She has educated children, parents and teachers about 
drug prevention. She explained the importance of these efforts 
at the 18th annual Drug Abuse Resistance Education Conference, 
when she said, ``Every child you get through to is one less 
member of a dealer's customer base.''
    Over the years, she has received numerous honors for her 
achievements, including awards for meritorious service from 
both Presidents Clinton and Bush.
    There are, and will continue to be, serious challenges 
confronting the DEA, as violent drug trafficking organizations 
and gangs continue to threaten not just our Nation, but 
countries around the world. And the DEA needs a leader who has 
the talent, experience, and commitment to fight these ruthless 
    With her nearly 30 years of dedicated service and 
longstanding record of success, Acting Administrator Leonhart 
will continue to provide strong leadership as the DEA fulfills 
its vital mission.
    I urge my colleagues to support her nomination. Thank you 
very much, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Feinstein.
    Our wonderful Ranking Member has arrived. I do not know if 
you would care to make an opening statement of any kind at this 
    Senator Sessions. I think it is great to have these 
Senators here and would be delighted to hear from them before I 
make any comments.
    Thank you all for coming and expressing your views on these 
important nominations.
    Senator Whitehouse. Let me then turn to the last member 
present from the Committee, Senator Franken, who may have a 
word or two about somebody perhaps from White Bear Lake.


    Senator Franken. Well, actually, Michele Leonhart is from 
White Bear, but I will make it quick, because Senator Feinstein 
covered her terrific career. But I do want to make that 
Minnesota connection, thank you.
    We have a number of remarkable individuals here today, and 
each of you should be very proud of your work and your 
achievement, and congratulations on your nominations.
    I would like to talk about two nominees here today. First 
is Michele Leonhart, who President Obama has nominated to be 
Administrator of the Drug Enforcement Administration, a 
position, as Senator Feinstein said, she has exercised in an 
acting capacity since November 2007.
    Ms. Leonhart grew up in White Bear Lake, Minnesota. As the 
Chairman said, her first posting at the DEA was in Minneapolis, 
where she was the first woman to serve as a special agent. She 
has served for 30 years at the DEA.
    Ms. Leonhart may have moved from Minnesota and I heard 
Senator Feinstein claim her as their own, as well, which I 
resented. But Minnesota has not forgotten Michele. In fact, 
every time a representative from the Minnesota Police and Peace 
Officers Association visits my office, the first thing they say 
is, ``When are you going to confirm Michele Leonhart,'' and my 
answer is, ``Hopefully, very, very soon,'' and I am happy to 
see you here.
    Mr. Chairman, let me also say hello to Judge Saris. I have 
known Judge Saris and her husband, Arthur, for a long time. And 
aside from being a brilliant jurist and a dear friend, Judge 
Saris has one distinction that no one else on this panel has. 
Her wonderful daughter, Celia Segal, worked for me as a staff 
assistant in my office, and Celia is an absolute gem.
    Everyone in our office loved her and our staff and our 
constituents--and I actually chose her to give a tour of the 
Senate to Garrison Keillor when he was visiting town a few 
months later, and he remarked on how wonderful she was.
    So thank you so much, Judge Saris, for your daughter, and 
it is good to see you.
    Senator Whitehouse. Senator Klobuchar.


    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
    So, Ms. Leonhart, you get not one, not two, but three 
Senators introducing you. So I suppose it is like how many 
Senators do you need to screw in a light bulb or something.
    But I am just honored to be here to be one of the many 
voices supporting you to lead the Drug Enforcement 
    As was mentioned, Michele grew up in White Bear Lake, 
Minnesota and attended Bemidji State University in Bemidji, 
Minnesota. And when you look at her career, it is full of 
firsts. She graduated first in her class from the Baltimore 
Police Academy in 1978; first in her class at the DEA Training 
Academy in 1981; first female agent ever to serve in the DEA's 
Minneapolis field office; and, in 1997, she became the first 
woman to head a DEA field division when she was appointed as 
special agent in charge in San Francisco.
    In fact, the only time the word ``second'' is used 
regarding Michele Leonhart is in this context. If confirmed by 
the Senate, she will become the second woman ever to serve as 
administrator of the DEA.
    We are very excited about this nomination. I was in law 
enforcement in Minnesota for 8 years as the county attorney for 
Minnesota's largest county, and I have repeatedly heard from my 
friends in law enforcement many compliments about Michele's 
work; that she has an absolutely tireless work ethic that 
inspires everyone around her; that she embodies the principle 
of leading by example; that she works across jurisdictional 
lines, Federal, State and local, and I think we all know crooks 
do not care about those jurisdictional lines and the people 
that we are supposed to protect do not care who enforces the 
law, whether it is local, State or Federal. They just want us 
to get the job done. And that she also has earned the respect 
and the trust of all the people that she has worked with at 
different levels of law enforcement.
    So I am very proud to support her nomination and believe 
that she is the right woman, the right Minnesotan, the right 
person for the job.
    Thank you.
    Senator Whitehouse. As I indicated earlier, we will now go 
by order of seniority of the Senators who are here with 
nominees to introduce, and we will lead with Senator Ron Wyden 
of Oregon, who has not one, but two nominees before us.
    Senator Wyden.


    Senator Wyden. Thank you very much, Mr. Chairman. And let 
me spare you the filibuster. I would ask unanimous consent to 
make my prepared remarks a part of the record.
    Senator Whitehouse. Without objection.
    Senator Wyden. Thank you very much, Mr. Chairman. This is a 
great thrill to be here to nominate two exceptional 
individuals, Judge Marco Hernandez and Michael Simon, to serve 
as U.S. district court judges for the district of Oregon.
    I have known both of them for many years and it is 
wonderful to be here to introduce them.
    I would also like to be able to introduce the family 
members and honored guests that are here with both nominees.
    Judge Hernandez is joined by his wife, Mary Beth; daughter, 
Alicia; son, Daniel; and, his parents, Frank and Rosa 
Hernandez. Oregon's Chief Judge Paul De Muniz and his wife, 
Mary, are also here.
    Mr. Simon is joined by his wife, Oregon State Senator 
Suzanne Bonamici, and his daughter, Sara. Michael's son, 
Andrew, who was also an intern in my office, is overseas, but I 
can tell you, your hearing is being streamed live on the 
Internet, and I am sure it is not the only household where that 
is being done.
    A couple of comments about both of the individuals, because 
they are both exceptional people. With respect to Judge 
Hernandez, Marco Hernandez, Chairman Whitehouse, what is 
striking is I urged two Presidents of different political 
parties to nominate Judge Hernandez, because he is such an 
exceptional individual.
    Without going through all of this, when my friend, Gordon 
Smith, led the nomination process, Judge Hernandez was 
nominated for the district court by George Bush, and I 
supported that recommendation vigorously. Unfortunately, the 
110th Congress was unable to act on his nomination.
    So in the 111th Congress, I recommended Judge Hernandez 
once more, this time with the strong support of Senator 
Merkley. So we are very pleased that President Obama has chosen 
Judge Hernandez to be nominated for the bench.
    Now, it is not exactly hard to decipher why leaders of both 
political parties are such strong supporters of Judge 
Hernandez, because his life is essentially a billboard for the 
American dream. It is an exceptional story. At age 17, he moved 
to Oregon by himself. He had to support himself.
    He took a job as a dishwasher, found his way to a better 
job as a janitor, and eventually became a teacher's aide. At 
that point, he began taking night classes at a local community 
college, with the dream of one day being able to go to a 4-year 
    Finally, he was able to enroll at Western Oregon State 
College and quickly showed his ability to excel there. He 
earned the Dewey award as the outstanding male student in his 
    He has a demonstrated commitment to public service. He 
worked at Oregon Legal Services, representing farm workers, and 
he was a deputy district attorney.
    What I like especially about him is his interest, and there 
is sure going to be a premium on this in the years ahead, at 
looking for creative solutions. He pioneered an innovative 
domestic violence program to aggressively pursue offenders and 
created a new program for those with mental illness.
    So Judge Hernandez, an individual with resounding support 
from both sides of the aisle, additionally, has the support of 
a broad range of legal organizations, and I give him my 
strongest possible support as one of the two judges that Oregon 
Senators would like to see on the bench.
    With respect to our other outstanding nominee, Michael 
Simon, he, too, has a diverse and distinguished record of 
public service. He has been a litigator, a professor, and a 
judge pro tem, just to scratch the surface.
    He graduated summa cum laude from UCLA and then graduated 
from Harvard Law School, as well. He has been a trial judge and 
a special U.S. assistant attorney. Throughout his work in both 
the public and private sectors, he has stepped up to be a 
volunteer with many legal and civic groups.
    There is virtually no organization in our State, Mr. 
Chairman, that does not seek out the services of Michael Simon. 
When you see materials for various groups to sign up for civic 
causes, Michael's name is invariably one of them, because he 
has such an extensive participation in local nonprofit 
    He is a pillar of the community, an exemplary member of the 
bar, and outstanding nominee for the Federal bench.
    Finally, these two Federal judicial vacancies must be 
filled promptly. And one of the seats, the seat has been open 
for 656 days, Mr. Chairman and colleagues, and is classified as 
a judicial emergency.
    We all understand that justice delayed is justice denied, 
and the people of my home State deserve a full Federal bench.
    So I am very pleased, Mr. Chairman, to be able to present 
these two extraordinary lawyers for confirmation to the bench.
    I am going to be in and out, as there is a hearing in the 
Senate Finance Committee on Health Care, and suffice it to say, 
Senator Merkley has my proxy this morning, because he and I 
share the view, as I did with Senator Smith, on Judge 
Hernandez, that these are exceptional individuals.
    We are grateful for your time and your consideration this 
    [The prepared statement of Senator Wyden appears as a 
submission for the record.]
    Senator Whitehouse. Thank you, Senator Wyden. It is 
important to the Committee to hear the views of our colleagues 
who know these candidates so well. And with respect to Senators 
who depart after their remarks, it is actually our expectation 
that Senators will depart after their remarks, knowing how busy 
everybody is around here.
    So, Senator Wyden, thank you.
    Senator Chambliss, welcome.


    Senator Chambliss. Thank you very much, Senator Whitehouse, 
Senator Sessions, members of the Committee. I appreciate very 
much the opportunity to come visit with you this morning and to 
introduce an outstanding Georgian, Superior Court Judge Steve 
C. Jones, who has been nominated to serve as United States 
District Court Judge for the Northern District of Georgia.
    I would, first of all, like to ask unanimous consent that a 
letter from my colleague, Senator Isakson, be entered into the 
    Senator Whitehouse. Without objection.
    [The letter appears as a submission for the record.]
    Senator Chambliss. This letter is, obviously, in strong 
support of Judge Jones. And Johnny could not be here, as he 
has, just like Ron, a Commerce Committee meeting that he is 
obligated to attend.
    Steve Jones is a native of Athens, Georgia, where he has 
lived, worked, demonstrated his commitment to the community, 
and offered his time and leadership to various organizations.
    Like Senator Isakson and myself, he is a graduate of the 
University of Georgia, both undergrad and law school; and, like 
Johnny and me, he is not particularly happy with our football 
season. So I would appreciate questions today about that when 
he comes before you. But we all know we will be back.
    Judge Jones began his legal career as an assistant district 
attorney before becoming a municipal judge in Athens. Since 
1995, he has served on the bench as a superior court judge of 
the Western Judicial Circuit, which covers Clark County and 
Oconee County.
    In this capacity, Judge Jones has presided over both civil 
and criminal cases. He has also supervised the circuit's felony 
drug court for 6 years.
    Judge Jones' list of honors and awards are truly too 
numerous to mention here. They are a testament to the high 
esteem in which his peers and his neighbors now hold him. But I 
do want to mention a very few of them.
    They include the Georgia State Bar's Distinguished Judicial 
Service Award; the Georgia Legal Services Program's Georgia 
Justice Builder Award; the University of Georgia Presidents 
Fulfilling the Dream Award; the Boy Scouts of America's 
Distinguished Citizen Award; the Chief Justice Robert Benham 
Award for Community Service Beyond Official Work; and, the 
Julian Bond Humanitarian Award.
    In addition to his various legal memberships, Judge Jones 
serves on the board of directors of the University of Georgia 
Alumni Association, the Athens Area Community Foundation, Hope 
Haven and Bread for Life, and is a member of the National 
Football Foundation College Hall of Fame, the A. Philip 
Randolph Institute, and the Athens Rotary Club.
    Steve is married to his lovely wife, Lillian, and I will 
let him introduce his family that is here with him this 
    In addition to juggling his legal and community duties, he 
is a deacon at Ebenezer Baptist Church West in Athens.
    I have had the privilege of introducing any number of 
individuals to this distinguished Committee over the years and 
whether it was during the Bush administration or now during the 
Obama administration, I have had Democrats and Republicans who 
have complemented President Bush's nominees, but I will have to 
say I have never had any more support shown in a bipartisan way 
for the nomination of Judge Steve Jones.
    He is that well respected by all political party members in 
our State. They know him well. They know he has served his 
community well on the bench as a superior court judge, and he 
is going to make an outstanding Federal district judge.
    So I am very pleased, Mr. Chairman, to be here today to put 
in nomination and recommendation the nomination of Judge Steve 
    Thank you very much.
    Senator Whitehouse. Thank you, Senator Chambliss. We 
appreciate very much your being here and we know that your and 
Senator Isakson's support of this nominee will be very helpful 
to moving him rapidly through the process and into the office 
that he seeks. Thank you.
    Next, Senator Richard Burr.


    Senator Burr. Senator Whitehouse, Senator Sessions, members 
of the Committee, it is an honor to be asked to be here to 
introduce one of our nominees, Max Cogburn, of Asheville, North 
    Married, two children, a daughter who has followed in his 
legal footsteps and has been admitted to the bar in North 
Carolina, and I am sure Max will have an opportunity to 
introduce any family members that he has brought with him 
    President Obama has nominated Max to the Federal bench in 
North Carolina's western district. He is an excellent choice 
and I believe will be a great addition to the court.
    Max is a longtime resident of Buncombe County and his 
family roots in the western North Carolina mountains run very 
deep. While his family's history in western North Carolina is 
impressive, Max has not rested on that history.
    He was admitted to the bar in 1976 and has made a name for 
himself, with a strong record in his legal career and in public 
service; an assistant U.S. attorney; a chief assistant U.S. 
attorney; magistrate judge; and, currently, a partner at 
Cogburn & Brazil.
    During his 12 years as a Federal prosecutor, he was also 
the lead attorney on the Organized Crime and Drug Enforcement 
Task Force. As an assistant U.S. attorney, he was responsible 
for prosecuting murder cases, drug trafficking, voter fraud, 
among other Federal crimes.
    His service in the U.S. attorney's office brought with it a 
host of honors and awards for his service from the U.S. 
Marshals Service, the Park Service, and the FBI, among others.
    He has a law degree from Samford and did his undergraduate 
work at UNC-Chapel Hill. Typically, for me, UNC-Chapel Hill 
would be a disqualifier, but given that I have now had two 
children graduate from Chapel Hill, it is now perceived as an 
asset for any nominee.
    Despite coming down from the mountains for school, the 
mountains have always been home for Max Cogburn and it is clear 
that they mean a great deal to him and to his family. I believe 
he brings with him a perspective that will serve the court and 
western North Carolina extremely well.
    In addition to his legal career, which certainly qualifies 
him for the bench in its own rights, for 4 years, he served as 
president of the Cogburn's other family businesses, a dude 
ranch outside of Asheville, North Carolina; time spent others 
how to herd cattle and shoot straight has got to be a useful 
    Another selling point at the ranch, if I have read the 
sales pitch correctly, just one television, something that many 
of us would welcome the opportunity after coming off of 
campaign, to limit people to the number of TVs they have, it 
might make it a little bit easier.
    Mr. Chairman, out of all the qualifications that Max 
Cogburn brings to this nomination, let me say this. He is a 
good man and we need good individuals to serve on our bench.
    I highly recommend to the Committee that we move as 
expeditiously this nominee as we can.
    I thank the chair.
    Senator Whitehouse. Thank you, Senator Burr.
    Your colleague, Senator Hagan.


    Senator Hagan. Thank you, Mr. Chairman and Ranking Member 
    I, too, join my colleague, Senator Burr, in welcoming Judge 
Cogburn, and thank him for being here today. As you can see, 
this is a bipartisan recommendation. It is extremely important 
to me that North Carolina have highly capable representation on 
the Federal courts.
    Judge Cogburn is exactly the type of legal mind that we 
need as a judge on North Carolina's western district court.
    Mr. Chairman, I appreciate you holding this confirmation 
hearing today. It is my hope that hearings like these will 
allow the Senate to move exceptional nominees along faster and 
confirm them in a more timely manner.
    I recommend Judge Cogburn because of his distinguished 
record as a jurist and attorney in both the public and private 
sectors. After earning degrees from Samford University 
Cumberland School of Law, and UNC-Chapel Hill, he entered 
private practice. Judge Cogburn has worked in private practice 
on and off since 1976, handling criminal felonies, 
misdemeanors, civil torts, domestic cases, and corporate work.
    Judge Cogburn also served as an assistant United States 
attorney from 1980 to 1992, where he prosecuted murder cases on 
the Cherokee Indian Reservation. He also prosecuted drug 
trafficking, voter fraud, and a wide variety of Federal crimes.
    During his time with the U.S. attorney's office, Judge 
Cogburn served as the lead attorney on the Organized Crime and 
Drug Task Force, as well as the chief assistant U.S. attorney. 
And from 1995 to 2004, Judge Cogburn served as a magistrate 
judge on the United States District Court for the Western 
District of North Carolina.
    As a magistrate judge, he ruled on cases involving sexual 
harassment, racial discrimination in employment, fraud, age 
discrimination, products liability, and medical malpractice.
    Judge Cogburn is a good steward of the law. He received the 
American Bar Association's highest rating of well qualified. He 
has the skills and the expertise that this position requires, 
and I am thrilled to be here today to discuss Judge Cogburn's 
outstanding qualifications to serve on the district court for 
the Western District of North Carolina.
    Judge Cogburn brings decades of legal and judicial 
experience to the bench, and I am confident that Judge Cogburn 
will serve on the bench with distinction. He comes today with 
his wife, Fran, and his daughter, Casey, who is practicing law 
in Huntsville, Alabama. His mother, Mrs. Cogburn, of Asheville, 
North Carolina, also is joining him today.
    I want to thank the Judiciary Committee for holding this 
hearing, and thank you, Mr. Chairman.
    Senator Whitehouse. Well, we thank both of you, Senator 
Burr and Senator Hagan, for coming here to support your 
    As I said, it is extremely important when the two Senators 
from the home State who know these candidates firsthand express 
their strong support.
    I think when that support is bipartisan, as it is in your 
case, it highlights once again the institutional value in this 
body of deferring to and giving great weight to the 
recommendations of the home State Senators when they are in 
accord as to the district judge nominee who is appropriate for 
their State.
    So thank you very much for being here.
    We turn to our final presenter, Senator Jeff Merkley of 


    Senator Merkley. Thank you very much, Mr. Chairman, Ranking 
Member Sessions, and Senator Franken. It is a pleasure for me 
to join Senator Wyden in introducing Oregon's two nominees for 
the district court.
    It is terrific that their families were able to join them 
and that our own Oregon Chief Justice Paul De Muniz and his 
wife, Mary, were able to come, as well.
    Judge Marco Hernandez has served Oregon's legal community 
with great distinction in a variety of roles, from representing 
underserved communities as a Legal Aid attorney to his 
experience as a deputy district attorney to his 15 years as a 
State court judge.
    He has devoted his life to a fair and just legal system, 
and his diverse experience will serve him very well in the 
capacity as a district judge.
    Judge Hernandez is imminently qualified for this nomination 
and would be a terrific addition to the bench.
    Turning to Michael Simon, whether it be his extensive pro 
bono legal work or his substantial involvement in civic 
organizations, like the Classroom Law Project, Michael has made 
his mark as an outstanding citizen of the Oregon legal 
    He is respected as a top lawyer in commercial litigation, 
appellate law, and constitutional law, and is respected well 
outside his northwest roots and is imminently qualified to set 
the standard for what it means to be a good judge.
    The U.S. District Court of Oregon has had a reputation as a 
place--as a well run and even-handed court led by outstanding 
professional jurists. Both of these nominees exemplify the 
spirit of public service and excellence, have been the hallmark 
of the Oregon bar, and will add to the Oregon judicial legacy.
    Thank you so much for scheduling this hearing and 
expediting consideration of these nominees as we seek to fill 
these positions so that, indeed, the system can function on 
behalf of better justice for our citizens.
    Thank you.
    Senator Whitehouse. Thank you, Senator Merkley. We very 
much appreciate your and Senator Wyden's expressions of support 
for these two nominees, and, certainly, as busy as everybody is 
right now in the Senate, the fact that both of you are here is 
significant. We appreciate it immensely.
    We will now take about a 2-minute break while the table is 
reset and the four judicial nominees come forward and take 
their places.
    Senator Whitehouse. The way that we will proceed is that 
our Ranking Member will give his statement. He was very 
courteous in deferring to the other Senators who had other 
business to get their statements into the record. So we will 
turn to him, and we will then introduce the nominees and give 
them each a chance to introduced any guests or family or 
friends who are here with them.
    Then at the conclusions of all those introductions, there 
will be a period of questioning for the entire panel, with each 
Senator to have 5 minutes for the panel.
    So without further ado, Ranking Member Sessions.

                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. And I would like 
to thank all the people who have worked to move these 
nominations forward, and congratulate the nominees on receiving 
the nomination of the President of the United States to a very 
August and important position of Federal judge.
    I understand this will be the last nomination hearing for 
the 111th Congress and with today's hearing, the Committee has 
held hearings for 110 nominees, including two nominees to the 
Supreme Court, which was a pretty good spectacle and effort. A 
lot of effort and work had to go into that. Eighty nominees to 
the Federal circuit and district courts, and 28 nominees to 
positions within the executive branch, a pretty big and 
significant number.
    I would just note, about the nomination, most of you, I 
believe, have been nominated in July. Judge Hernandez was 
nominated by President Bush in July of 2008 and did not clear 
before the Congress recessed, and that is the reason we have a 
600-day vacancy rate, really, I guess, in his nomination.
    So I am glad that you are back and I appreciate President 
Obama re-nominating you. I think that was a nice gesture and it 
is one that maybe will be positive for all of us here.
    The nominees, of course, have been nominated for a lifetime 
appointment. This hearing is the only opportunity we have to 
help our Senate to develop the information necessary to advise 
and consent on a nomination.
    It seems to me that we do have divergent views in the 
Committee and in the Senate on the philosophy and approach to 
judging. Judicial activism is something most all of us, I 
think, believe is not a healthy thing for a judge to display, 
but we disagree sometimes what activism is.
    I think it is when a judge fails to adhere to the rule of 
law or fails to recognize the Constitution as the supreme law 
of the land, and, instead, substitutes his or her own views or 
policy preferences in place of the law. I could say even 
empathy or politics or ideology could interfere with the 
ability of a judge to be the dispassionate and neutral arbiter 
that I believe they should be.
    Those are some of the things that have been discussed at 
some length in this process of nominations, but it is not 
unimportant. It is a big deal, because a judge who is not bound 
by the law is really not adjudicating. It is something else 
akin to politics or advocacy or something else.
    As you take this lifetime appointment, I have had some of 
my Federal judge friends that say you give up your 
constitutional rights. Well, in some ways, you do give up 
things that you would be free to do in the private sector you 
cannot do as a Federal judge.
    Also, I would say to you that you give up the advocacy role 
and become the arbiter, and a fair arbiter is what you are paid 
to do and I hope and pray that you will all be able to do that.
    We have on the second panel a number of nominees for the 
important administrator for the Drug Enforcement 
Administration, director of the Marshals Service, another very 
important office, and the chair of the Sentencing Commission, 
another very important nomination.
    All of these nominees have had their records reviewed in 
depth by staff and Senators, and I will have some questions as 
we go forward. You might think, out of all my life, why do you 
not find the one thing you want to complain about. Well, I 
think it is an opportunity to ask that.
    Obviously, the good things are there and have been part of 
the record or you would not have been nominated.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Sessions.
    Now, I will turn to the nominees. We are delighted to have 
Max Cogburn with us, currently a partner at Cogburn & Brazil. 
He has a distinguished career of service as a United States 
magistrate judge.
    For those of us who practiced in Federal court, we know how 
important and valuable that experience is for a nominee. You 
are before a panel that is chaired and ranked by two former 
United States attorneys.
    Senator Sessions and I have both had the opportunity to 
witness firsthand the dedication and the competence and the 
esprit de corps and the determination to produce justice that 
AUSAs bring and we are particularly pleased that not only were 
you an AUSA, but you were also, what I would call in my office, 
the first assistant; I gather, in your office, it was 
appropriate to call it the chief assistant, and that you led 
the OCDETF task force, which requires you not only to be an 
excellent prosecutor, but, also, quite a good diplomat and 
negotiator among all of the elements of the Federal Government.
    I am particularly pleased, as a New Englander, to see that 
you were born in New England. We welcome you for any opening 
statement or introductions you would care to make.


    Mr. Cogburn. Thank you very much, Senator. If I might, 
first, just thank Senator Hagan and Senator Burr for the 
generous remarks that they made. I am very, very much honored 
that they took the time out of their busy schedules to come 
here and introduce me.
    I, first, would like to thank President Obama for his 
confidence in me by nominating me to the Federal bench; Senator 
Leahy for allowing me to come to this Committee meeting; and, 
Senator Sessions, for the same reason.
    Senator Whitehouse, I appreciate you chairing this meeting 
today. And, Senator Franken, I thank you for coming today and 
spending time here to consider my nomination.
    I would like to introduce some of the members of my family 
who are here today. I have my mother, Mary Cogburn, who is 
seated back here, and she is originally from Charleston, South 
Carolina, and has come here to be with me today.
    My wife, Fran Cogburn, who is originally from Decatur, 
Alabama. I met her when I was in law school there at the 
Cumberland School of Law at Samford and she was a student at 
Samford University there in Alabama. And she still has family 
there. She has three sisters who are living currently in 
Decatur, Alabama, and another sister who is living in Texas at 
the present time. The three are living there.
    My daughter, Casey Cogburn, who is an attorney currently 
practicing in Huntsville, Alabama. She also went to the 
Cumberland School of Law and she is licensed to practice law in 
both Alabama and North Carolina.
    I have other members of my family who could not be here due 
to other commitments. My son, Tripp Cogburn, is watching this 
on the Webcast, along with his wife, Stacy, and my 5-year-old 
grandson, Oliver. So they are watching this on the Webcast.
    I have a number of colleagues that I work with that are 
watching this, as well as extended friends and family both in 
North Carolina, South Carolina, and Alabama.
    Thank you very much.
    [The biographical information follows.]

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    Senator Whitehouse. Thank you, Mr. Cogburn.
    We are delighted, also, to be joined by Judge Hernandez. I 
guess we could call him a repeat offender before this 
Committee. But we are delighted to have him back and look 
forward to a more successful trip through confirmation at this 
    Your service on the district court and on the circuit court 
provides excellent background and qualifications for this 
position, and your service to Oregon, legal services over the 
years, shows a keen sense of duty to your community and 
particularly to those who are less favored than others, and we 
appreciate that very much.
    So welcome, and, please, proceed with any statement or 
introductions that you would care to make, Judge Hernandez.


    Judge Hernandez. Thank you very much. I want to thank the 
Committee for having me, Chairman Whitehouse, Senator Sessions, 
Senator Franken. Thank you for conducting this hearing and 
allowing me to appear before you.
    I want to thank President Obama, President Bush before, 
Senators Wyden and Merkley for their kind remarks and support 
throughout the process, Senator Wyden, in particular, for a 
process that has now taken years and he has been a supporter of 
mine throughout all of that time.
    There are some people behind me that I would like to 
introduce to you. My mom and dad are here, Frank and Rosa 
Hernandez. My wife, Mary Beth is here; my daughter, Alicia; my 
son, Daniel is here.
    Chief Justice De Muniz, from the Oregon Supreme Court, and 
his wife, Mary, are here and have been longtime supporters.
    I appreciate all of their support and that they are having 
my back and here with me in Washington, DC. And, again, I 
appreciate the opportunity to be here before you. I welcome 
your questions.
    Thank you.
    [The biographical information follows.]

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    Senator Whitehouse. Thank you, Judge Hernandez. We are 
delighted to have you.
    Michael Simon comes to us, he is a partner at a major 
national firm and leads its Portland office. I do not know if 
you were actually an AUSA, but you were a trial attorney in the 
Department of Justice, what we used to refer to as main 
Justice. And very pleased that you, too, have a New England 
connection as a Rhode Islander and welcome you, welcome any 
statement or introductions you would care to make.


    Mr. Simon. Thank you, Mr. Chairman. I have no formal 
statement, but I would like to begin by thanking the President 
of the United States for his nomination. And if I am fortunate 
enough to be confirmed, I thank him and the Committee and the 
Senate as a whole for the opportunity to serve the public as a 
United States district judge in the district of Oregon.
    I also thank you, Mr. Chairman, and Ranking Member Sessions 
for convening this hearing and for listening to our testimony 
and for asking us questions. I also express appreciation to 
Senator Franken for being here.
    I also very much appreciate the very kind words from 
Oregon's senior Senator, Ron Wyden, and his support and 
encouragement throughout this process. And I also appreciate 
the very kind words and the presence of Oregon Senator Jeff 
Merkley, also, for his support and encouragement throughout 
this process.
    I very briefly would like to introduce two of my family 
members who are here today and to acknowledge two family 
members who could not join us today in person. I, first, would 
like to introduce and ask to rise my wife, Suzanne Bonamici. 
And we have been married now for 25 years and for 25 years, a 
little more than 25 years, she has been my very best friend. 
Thank you.
    I also have two wonderful children. My daughter, Sara 
Simon. Thank you.
    Senator Whitehouse. You thought you would get off easy, 
    Mr. Simon. Sara is a college sophomore. And my other child, 
my son, Andrew, graduated from college a few months ago and is 
now off in graduate school at a far distance. He is watching on 
the Webcast, at least that is what I have been told. And I also 
understand that my mother, Arlene Simon, is going to be 
watching on the Webcast, as well, and I thank her for beginning 
my education and for instilling character and value traits in 
me and for which I am much appreciative.
    I look forward to answering the questions from the 
Committee. Thank you very much.
    [The biographical information follows.]

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    Senator Whitehouse. Thank you very much.
    Our last nominee on this panel is Judge Jones, who serves 
with distinction on the superior court of the State and is the 
presiding judge on the felony drug court.
    Like Judge Hernandez, he is also a former assistant 
district attorney in his home State. So we have the 
prosecutors' offices, Federal and State, well represented in 
this panel.
    As a graduate of the University of Georgia, I promised that 
I will follow Senator Chambliss' injunction and not discuss 
    Judge Jones. Thank you.
    Senator Whitehouse. You are welcome here for any statement 
or introductions you would care to make, sir.


    Judge Jones. Thank you, Senator Whitehouse. I would like to 
thank Chairman Leahy, Ranking Member Sessions, and the 
Committee for your consideration of my nomination and 
scheduling of this hearing today.
    I would also especially like to thank President Obama for 
the nomination. I feel honored and privileged to be here today.
    I would also like to thank Senator Chambliss for being here 
today and for his introduction, and Senator Isakson for his 
letter of support and introduction. Senators Chambliss and 
Isakson have been really helpful to me and I really appreciate 
and honor to have their support and the support their staffs 
have given me through this entire process.
    I would not be here today without the support of my family 
and friends, and I would like to recognize the ones that are 
here today and two that could not be here today, but are here 
in spirit.
    I would like to start off, first, by introducing my 
beautiful wife of 20 years, Lillian Kincey. I have made a lot 
of decisions as a judge, but the best decision I ever made was 
asking her to marry me.
    I would also like to introduce my sister, Deloris Ford, and 
my niece, Donna Ford. They both have also played an important 
part in me being here today.
    There are two ladies that cannot be here today, but they 
are here with me in spirit, and, because of their health, they 
cannot be here. And one is my mother, Katie Jones, and the 
other is my mother-in-law, Mrs. Stella Kincey, and they both 
have been very supportive and I know they are watching and are 
here with me in spirit today.
    I would also like to acknowledge the remainder of my family 
and friends and my colleagues who could not make the trip, as 
well as my office staff, who are watching via Webcast today. 
And I would also like to thank them.
    And, Senator Sessions, I understand that Auburn beat us 
last week, but it was a great game.
    I will be glad to answer any questions the Committee may 
have. Thank you, Senator Whitehouse.
    [The biographical information follows.]

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    Senator Whitehouse. Thank you, Judge Jones. I cannot 
guarantee that the Ranking Member will follow Senator 
Chambliss' injunction and show mercy for this nominee.
    Senator Sessions. No.
    Senator Whitehouse. It is a very solemn thing for members 
of the U.S. Senate to consider nominees for the United States 
district court. It is very important that you have the support 
of your colleagues from your home State, who know you better 
than anyone, but each Senator also has their own responsibility 
to inform themselves so they can vote, as their duty in their 
best lights, requires them to vote.
    And as we do that, we are keenly aware that we are voting 
on lifetime appointments; that long after we are gone, you may 
very well still be serving on these district courts, we hope, 
with great distinction. But I think we do bring a perspective 
about the appropriate role of a judge to our duties, and I 
would like to share that perspective with you and then ask each 
of you to comment briefly on your agreement or disagreement 
with that perspective.
    It is my belief that judges must do a number of things. One 
is to respect the role of Congress as the
    duly elected representatives of the American people in our 
system of American democracy. Two is to decide cases based on 
the facts and the law, nothing else. Three is to not prejudge 
any case, but listen to every party that comes before you, 
powerful or weak, rich or poor, irrespective of station or 
position; to respect the precedent that the Supreme Court and 
the circuit courts for your districts have laid down and the 
precedent that exists within your own district; and, finally, 
to limit yourself in your decisions to the issues that the 
court must decide that are properly presented before it.
    It is my belief that those disciplines, which must be self-
imposed by judges, are key to the successful operation of the 
carefully balanced system of government that the Founding 
Fathers created and that we all honor and enjoy the fruits of.
    So if I could ask each of you for a comment on that, and I 
will then turn to Senator Sessions for his questioning.
    Mr. Cogburn. Senator, I agree with everything you said, 
absolutely. That is what a judge is--that is exactly what a 
judge has to do, be impartial, be fair, and follow the law.
    Senator Whitehouse. Judge Hernandez.
    Judge Hernandez. I agree, as well. I think that I would add 
to the mixture that it is important for judges to do all of 
those things with a great deal of judicial temperament and 
evenness so that the parties that are appearing before you 
trust that you are judging these cases in a fair and just way.
    Mr. Simon. Chairman Whitehouse, I, too, agree with 
everything that you have just described as the qualities and 
character of judging.
    Judge Jones. Senator Whitehouse, I agree with what you said 
and it is important, because if we fail to do that, then the 
communities we serve or preside over lose confidence in our 
courts and, as judges, we will not have credibility.
    Senator Whitehouse. Yes. And as we know, for judges, 
credibility is the coin of the realm and it is the confidence 
of the American people and the judiciary that allows judicial 
orders to be followed and it is an important concern, because 
you do not have an army to go and enforce your opinions.
    The opinions and the orders that come down from our courts 
have the weight that they do because the American people 
accepts them and accepts the rigor and the discipline and the 
fairness that you bring to your task.
    So I appreciate that very much and I look forward to your 
successful process through the confirmation process; I might 
even hazard to say successful and rapid process.
    Senator Sessions. Well said, Mr. Chairman. I think you did 
set forth good standards for judges, and you answered well in 
affirming that, I think.
    Mr. Cogburn, my daughter went to Cumberland and that is 
good. It is a very fine law school. I am very proud of it. The 
dean, Dean John Carroll is a former magistrate, United States 
magistrate, and does as great job there, and it is a large and 
fine law school.
    You have been a Federal prosecutor. You started, it looks 
like, before the sentencing guidelines became law, and you 
prosecuted and sent a lot of people to the bastille as a 
prosecutor, it looks like, over a number of years after the 
guidelines, also.
    How would you share to your colleagues here the impact of 
the sentencing guidelines and to what extent do you believe a 
judge should give respect and deference to those guidelines?
    Mr. Cogburn. Senator Sessions, the sentencing guidelines 
were brought into being in order to get rid of any kind of 
meaningless disparity in sentencing; that is, to try to have 
most people who commit the exact same crime receive generally 
the same sentence and to try to have some uniformity across the 
board, depending on where you were sentenced, in what court you 
were sentenced in and what state you might be sentenced in, 
wherever that might occur.
    A great deal of effort was put into the sentencing 
guidelines and into getting them established and deciding where 
those particular guideline ranges fall.
    Under 18 United States Code Section 3553, which is the 
sentencing statute, the first thing that a judge is to do is to 
determine what those sentencing guidelines are before going 
into the rest of the sentencing process.
    They are to be given substantial weight in determining what 
these sentences are. They are a very important part of the 
sentencing process.
    Senator Sessions. Before the guidelines, in my district, 
you would see dramatic differences in sentencing for very 
similar offenses. I am not sure how that played out in every 
district. I think it did happen all over the country.
    Did you perceive there was more uniformity and more 
coherence in the sentencing process post-sentencing guidelines?
    Mr. Cogburn. There was more uniformity post--sentencing 
guidelines than there had been before. There had been some 
back-and-forth differences in sentences before. Depending on 
cooperation and that sort of thing, you could get some very, 
very strong differences in sentences.
    But cooperation is still taken into consideration and 
people are able to get some relief for cooperation. So the 
sentencing guidelines, generally, have brought a great deal 
more uniformity to the sentencing process.
    Senator Sessions. In general, do you think they reflect a 
considered consensus of where sentences should fall?
    Mr. Cogburn. Those who have prepared the sentencing 
guidelines have given a great deal of time and effort into 
placing those sentences into various categories and they are--
the majority of sentences that I am observing have been falling 
within the sentencing guideline range; that most of the judges 
have been tending to sentence within the guideline range rather 
than departing from that.
    Senator Sessions. Well, we could talk about it a good bit 
more, but I would just say to you that the guidelines were 
developed by judges and the Sentencing Commission, but it was, 
in large part, based on the tendency of judges to sentence in a 
mainstream way around the country. They examined what the 
sentences were and they considered other areas.
    So I think it reflects a fairly good consensus of where 
sentencing should be. It may not be perfect.
    I would ask each of you to state to what extent you feel 
that you would desire or you would seek to be in harmony with 
those guidelines, recognizing that a judge, once he is given a 
lifetime appointment, can ignore them pretty regularly under 
some of the more recent case law.
    Judge Hernandez, would you share with us your thoughts?
    Judge Hernandez. Thank you for the question, Senator 
    I am accustomed to guidelines. Oregon has sentencing 
guidelines. I use them all the time. I am very comfortable with 
    On the Federal side, it is my opinion that the guidelines 
need to be given a great deal of deference as we approach 
cases. Those guidelines were well thought out. A lot of time 
was invested in determining whether and what appropriate 
sentences should be, and, again, they should be given a great 
deal of deference.
    Senator Sessions. Thank you.
    Mr. Simon.
    Mr. Simon. Senator Sessions, I, too, would give the 
guidelines a great deal of deference, and I recognize their 
importance in providing consistency and uniformity in 
sentencing throughout the Nation. I also recognize that they 
were the result of a bipartisan consensus from this body, that 
they are the result of a great deal of input and expertise from 
a wide variety of people.
    I will note that in response to Chairman Whitehouse's 
comment at the beginning, it has been a number of years since I 
was a Federal prosecutor. I did begin at main Justice, in the 
antitrust division, prosecuting antitrust defenses, but I was 
designated on a special detail as a special assistant U.S. 
attorney in Alexandria, Virginia, where I prosecuted both white 
collar fraud trials and armed bank robbery.
    I will also admit that that was before the sentencing 
guidelines came out. And so to acquaint myself with those, I 
started reading these. I note that about 2 weeks ago, the 2010 
guidelines manual was just issued. I have begun reading that.
    But I do agree with the values and the policies behind it 
and I would give them great deference.
    Senator Sessions. Thank you.
    Judge Jones.
    Judge Jones. Senator Sessions, I also believe that the 
guideline should be given substantial and great deference, 
because uniformity and consistency in sentencing brings about 
confidence in our courts and, also, helps us reach a reasonable 
    Senator Sessions. It was a dramatic, historic event, 
really, when Congress, in the early 1980s, made some of these 
decisions. Senator Kennedy and Senator Thurman and Senator 
Biden and Senator Hatch and all, Leahy and others, all worked 
together to bring it about, and I do think there has been more 
integrity in the process.
    It is easier to defend the sentences intellectually and 
morally to anybody who challenges them. Any guidelines sentence 
is backed up by quite a good bit of research, debate, 
discussion. And I worry that there may be a belief that judges 
are now free to sentence like they would like, but I believe 
you will sleep better at night if you follow the guidelines, 
because when you have the momma and the minister and the 
brother and the children before you at sentencing time, it is 
no fun and at least you have got an objective fallback that I 
am trying to operate within what a consensus is for the 
    Mr. Simon, you have been a member for some years with the 
ACLU. I see one thing conservatives would like. I see you filed 
a lawsuit defending the free speech of anti-abortion 
protestors, and ACLU does take sides that are not always 
liberal, if you would call it that.
    But it also is an institution that has taken quite a few 
positions that are troubling to me, such as legalization of 
drugs. Does that reflect your views?
    Mr. Simon. Senator Sessions, I have been involved as a 
volunteer lawyer for the ACLU for a number of years and it 
certainly is true. In my case, as well as, frankly, in almost 
everyone's that I have interacted with, that we do not 
necessarily agree with all of the positions taken by the 
American Civil Liberties Union.
    And to answer your question, what I have primarily been 
focusing on in my activities for the American Civil Liberties 
Union of Oregon has been involved in First Amendment issues.
    Senator Sessions. Well, we have had a big debate about 
legalization of drugs, and you would be a judge that will have 
to impose some rather stiff sentences for violation of drug 
    Have you taken a position personally on that?
    Mr. Simon. I have not, Senator, and I would have no 
difficulty at all enforcing all of our laws.
    Senator Sessions. I notice the Oregon Website said that the 
ACLU supports a moratorium on the death penalty. Would you 
personally agree with that and have you advocated for that?
    Mr. Simon. I have not taken any positions on that issue, 
Senator, but I do observe that the Fifth Amendment to the 
United States Constitution does refer to capital crimes. It 
does refer to not putting anyone in double jeopardy for life or 
limb, and, also, that no one shall be deprived of life without 
due process of law.
    And so I do think that the United States Supreme Court, 
using those references, among others, has quite clearly said 
that the death penalty does not violate the Eighth Amendment's 
prohibition on cruel and unusual punishment, and I am fully 
prepared to follow all of the precedent from the United States 
Supreme Court and the applicable courts of appeal, including 
    Senator Sessions. Well, I agree with that constitutional 
analysis, very clearly, although we had two members on the 
Supreme Court for quite a number of years that dissented in 
every death penalty case, saying it did violate the 
    Within the Constitution itself, there are a host of 
references, more than you just made, to the death penalty and 
implicit in the document is an affirmation of the death 
penalty. But the ACLU Website in Oregon posted a white paper, 
eight objections to the death penalty, and one of those was, 
quote, ``Capital punishment is cruel and unusual'' and that it, 
quote, ``denies due process of law.''
    So are you saying that it is not cruel, that you do not 
share that view, or what would be your comment?
    Mr. Simon. I played no role in the preparation of that 
particular white paper to which you refer nor have I ever taken 
any public positions on that question.
    I am prepared to commit to you that I will follow all of 
the precedent from the United States Supreme Court and from the 
courts of appeal, and I do recognize the constitutional 
references that you have highlighted for us.
    Senator Sessions. What do they mean it would deny due 
process of law? Do you know what the ACLU could be referring to 
with that?
    Mr. Simon. I do not know specifically what you are 
referring to, Senator. I did not play a role in the preparation 
of that document at all.
    Senator Sessions. We have had quite a number of cases--
judges, nominees, recently that have not followed the 
sentencing guidelines with regard to child pornography, and 
some of that is legitimate and some of that was troubling to 
me, in their decisionmaking processes.
    ACLU has opposed any laws that limit pornography, including 
child pornography. Do you agree with that policy of the ACLU 
and will you enforce the law and follow the guidelines, as 
    Mr. Simon. I most certainly will enforce the law and, as I 
expressed earlier, I do anticipate giving great deference to 
the guidelines, including all aspects of the guidelines. I have 
not spoken or written with respect to the issue of child 
pornography, but I do fully anticipate having no difficulty in 
supporting and enforcing all of our laws and in giving great 
deference to all aspects of the sentencing guidelines.
    Senator Sessions. And if confirmed, would you have any 
reservation in applying the death penalty, if it were 
appropriately consistent with the law?
    Mr. Simon. In the appropriate circumstances, I would have 
no difficulty enforcing the law in all of its aspects, 
including that.
    Senator Sessions. Thank you. Well, we have got Senator 
Franken here. I am sorry. I am past my time. But we do have a 
number of nominees on the panel and it takes a little more time 
than normal.
    Thank you.
    Senator Whitehouse. We can happily do a second round.
    Senator Sessions. Thank you.
    Senator Whitehouse. We will happily do a second round to 
accommodate any further questions Senator Sessions may have, 
but I think it is appropriate for Senator Franken to have his 
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. Thank you, 
Ranking Member Sessions. And a second round would be great, 
because I know Senator Sessions has a lot of questions.
    Judge Jones, you served as presiding judge on the felony 
drug court.
    Judge Jones. Yes, sir.
    Senator Franken. For the Western Judicial District of 
Georgia since 2004. Can you tell me about that? What is a drug 
court? Who do you deal with? Obviously, it is drug felony 
    But I think that we have a lot of people in prison for drug 
offenses that maybe could be better served by having treatment. 
What do you do in the felony drug court?
    Judge Jones. Well, thank you, Senator Franken. Felony drug 
court is a court in which after an individual has entered a 
plea of guilty, they are charged, a drug charge. The prosecutor 
works out a negotiated plea with the defense counsel. And in 
the program, the felony drug is a 17- to 24-month program, in 
which the individuals go through five phases.
    In the first phase, they are drug tested randomly anywhere 
between three to four times a week. They may receive a call as 
early as 6:00 in the morning for a drug test and as late as 
10:00 at night for a drug test.
    They meet biweekly with me and we discuss matters. They go 
through classes weekly. And as they move through the phases, 
the amount of contact somewhat reduces, but the requirements 
are still the same.
    The mission of the felony drug court is to provide 
treatment for individuals so they will not become repeat 
offenders or recidivists. We have found that sentencing one to 
jail with a drug offense, when they get out of jail, they still 
have a drug addiction or substance abuse problem.
    So what we are trying to do is stop the substance abuse 
problem so they will not become recidivists. And the program 
has been very successful, in my opinion. But we try to keep in 
contact with individuals after they graduate, as much as 2 
years later, and we have a number of individuals come back. It 
is probably one of the most successful and most rewarding 
things I get to do as judge, and I look forward to meeting the 
individuals biweekly in the felony drug court.
    Senator Franken. And do you have any sort of longitudinal 
studies? I know you have been there for 6 years. But is the 
evidence that this works, that there is less recidivism, that 
this actually saves not just society money by not having to 
incarcerate people, but that the treatment has a return on 
    Judge Jones. The State of Georgia, Senator, conducted an 
audit on all the felony drug courts in the State recently and 
it showed that the felony drug courts were less expensive and 
they were probably one of the most successful aspects of the 
    For my particular drug court, I can say we have less than 
20 percent of the individuals that graduate from felony drug 
court commit a crime within 2 years after graduating from the 
felony drug court. So an 80 percent success rate, I feel, is 
showing that they are successful and the court does work.
    Senator Franken. So would it be too bold to say that if we 
are interested in long-term deficits in this country, that 
maybe it would be a smart approach to have drug courts all over 
the country and make sure that we are not incarcerating people 
in a way that actually is more expensive for society in all 
kinds of ways?
    Judge Jones. Yes, sir. I would agree with that statement 
    Senator Franken. Thank you. And I know that your job is not 
to talk about deficits, it is to be a judge, but my job is.
    I would like to know, on the sentencing guidelines--and it 
sounds like all of you said that they deserve great deference 
and sounds like that you are talking about the consistency and 
uniformity of sentencing gives credibility to the court, which 
I find very important.
    Can any of you speak to when you kind of make exceptions to 
or when your deference to the guidelines is also colored by 
other factors? Is there anyone who would like to speak to that?
    Mr. Cogburn. Senator, it would certainly depend on the 
facts of the case, but 18 USC 3553 has all of those factors and 
after you determine the sentencing guideline, the proper 
guideline range, you look at all those other factors.
    Normally, those factors probably would determine just where 
within that guideline range you would go.
    Senator Franken. So the guidelines themselves have within 
them the factors that you would consider.
    Mr. Cogburn. They have some factors, too, but, also, in the 
statute itself, there are things that you look at and consider. 
After you get the sentencing guideline range determined, there 
are other factors that you look at and some of those would 
implicate where within this guideline range you would go.
    And on occasion, and I would not know without what 
particular fact situation it would be, you might--so there 
might be one of those other factors that you are looking at 
under 3553 that would cause you to go outside the guideline 
    Senator Franken. Well, thank you. My time is up and I have 
to go vote.
    Senator Whitehouse. We will return to Senator Sessions. It 
appears that Chairman Leahy will be coming to chair for a 
period to allow me to go and vote on the two votes that we 
have. So we will continue forward and back for a second round 
to Senator Sessions.
    Senator Sessions. Thank you. Judge Jones, I do think that 
drug courts have great merit and have advocated for them since 
the early 1980s, and, well managed and properly handled, it can 
be effective.
    But I do believe, do you not, that the ultimate authority 
of a judge to adjudicate a person guilty and sentence them to 
custody provides a kind of opportunity or the environment to 
get the attention of the offender and perhaps give them a 
chance to alter their lifestyle?
    Judge Jones. Yes, sir. I agree with that totally. I think 
that, as judge, it is my job to listen to the facts in the case 
and follow the law in rendering a reasonable sentence on one. 
And if you fail to do that, then you are not doing your job as 
    Senator Sessions. I just wonder, in this day and age, that 
some are discussing legalization of drugs and California has 
had votes on that. It seems to me that a low level offender can 
be given a second chance and it ought to be done in a way that 
has good supervision, as drug court does.
    But, also, would you be concerned about a legalization of 
drugs in the country?
    Judge Jones. Well, sir, what I believe is that right now, 
the law that I have to recognize is what is put forth by the 
Supreme Court and the 11th Circuit Court of Appeals and the 
Congress of the United States, and I will follow that law as 
far as drugs.
    I agree with you that the supervision of individuals on 
drugs helps them tremendously.
    Senator Sessions. The Athens Banner-Herald quoted you as 
saying, ``Sentencing does not deter crime. The only thing I see 
sentencing doing is taking a person off the street so they 
can't do it for a while.''
    Well, that is true. It does take the person off. The 
incapacitation is one of the factors in it. But are you saying 
you truly do not believe that consistently enforced laws do not 
deter other people from violating the law?
    Judge Jones. No, sir. Senator Sessions, when you are 
sentencing one to a sentence for being convicted for the law, 
that not only sends a message to that individual, but to other 
individuals that there is a punishment for violating the laws.
    So I definitely believe that sentencing does deter crime.
    Senator Sessions. Well, good. I think about the squeegee 
crackdowns, the street crimes in New York that New York cracked 
down on, and all crime plummeted when they did that.
    Judge Jones. Yes, sir.
    Senator Sessions. And it was consistent prosecutions that 
ended it. And if you do not prosecute it, you do not get 
deterrence. The same, I think, about at the border with 
Operation Streamline, where, when people are apprehended at the 
border are actually prosecuted and serve some time in jail, 
they come back less often than if they are not prosecuted. And 
I think of public corruption.
    I do believe there is real deterrence. If a community 
allows corruption to continue without prosecuting, it does do 
that. And I just was troubled by your statement. I am glad to 
see that you clarified that.
    And Senator Chambliss did not have the gumption to show up 
at the Auburn-Georgia game, but Senator Isakson was there 
sitting one row away from me with his Georgia shirt on, that 
sea of orange. I thought it was a courageous act. And after you 
guys had whipped us 4 years in a row, I think it was good to 
have a little different outcome. The SEC football is a lot of 
    Judge Jones. Yes, sir.
    Senator Sessions. A fabulous thing. I thank all of you for 
being willing to undergo this scrutiny. I will say I know that 
Chairman Leahy knows that more of it is done behind closed 
doors than in the open meeting and if anything bad had shown 
up, we would have been asking you about it.
    So to some degree, you can certify that you have been 
checked out clean.
    Judge Hernandez, it is great to see you and I am glad that 
after 600 days, we are finally being able to see you confirmed.
    Judge Hernandez. Thank you very much, Senator.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. [presiding] Thank you, Senator Sessions. I 
voted on this first one, so I will let you go. And I know the 
questions have been asked of all of you, and I congratulate 
each one of you, congratulate you on the jobs you have been 
nominated for, or offer condolences, depending upon how much of 
a backlog there may be in the district.
    But as one who has practiced in state court, Federal Court, 
all the appellate courts, I know how hard judges work. And I am 
not going to ask questions, so we can bring up the next panel, 
but I would remind you of just one thing.
    We had a judge who was here, a very, very good judge, and 
she had made some comment about the fact that she always 
worried because she was quite short. And I said, ``You have to 
remember, when you go in the courtroom, you are the tallest 
person there.''
    Everybody in the courtroom stands and looks up at you. Do 
not let it go to your head. You are there to do justice to 
everybody and for everybody. You all have legal careers. You 
are used to walking into the court. I mean, there are days you 
could do it on some motions and some proceedings are so easy, 
it is almost a matter of rogue.
    A lot of the people, when they are in the case before you, 
it is the only time that litigant has ever been in a Federal 
court. It is the only time probably they ever will be. And 
everything they know or think or feel about the judicial system 
will depend upon how a Judge Cogburn or a Judge Hernandez or a 
Judge Simon or a Judge Jones treats them while they are there.
    They will not see any other judges. They probably will not 
ever be in another court, and they do know whether we have a 
good court system and a good judiciary, based upon how you are, 
not on how anybody else is.
    So that is an awesome responsibility. I felt that 
responsibility even when I was a prosecutor. How you treated 
defendants or, as we call them, respondents in Vermont or a 
victim, because for many of them, it is the only time they ever 
saw the criminal justice system.
    Now, I have read your backgrounds, each one of you, and 
impressed by it. Senator Sessions and I always meet privately 
if there are questions that need to be resolved before, both 
the Republican and Democratic side. We look at that very 
carefully and openly with each other. I agree with him, there 
is nothing to worry us there.
    So I thank you all for being here, and I will not ask 
questions. And I know you have all been introduced, and thank 
you for taking the time.
    Did you all get to introduce your family, too, earlier?
    Judge Jones. Yes, we did.
    Chairman Leahy. Because someday, that will be in your 
archives and everybody says, ``Now, who was there?'' Thank you.
    Mr. Simon. Thank you, Senator.
    Mr. Cogburn. Thank you, Senator.
    Chairman Leahy. Before we begin this panel, Michele 
Leonhart, Patti Saris, Stacia Hylton, if you would all raise 
your right hand.
    [Nominees sworn.]
    Chairman Leahy. Thank you. And I am not Sheldon Whitehouse. 
I am Patrick Leahy. Somehow we have to get those in there.
    I understand, Ms. Leonhart, you have already been 
introduced; is that correct?
    Ms. Leonhart. That's correct.
    Chairman Leahy. And Judge Patti Saris has served as U.S. 
district court judge for the district of Massachusetts since 
1993. Before that, she was an associate justice of the 
Massachusetts superior court; magistrate judge in the district 
of Massachusetts; worked in the U.S. attorney's office for the 
district of Massachusetts, where she was chief of the civil 
    She served as counsel to our dear friend, Senator Kennedy, 
on this Committee from 1979 to 1981; became counsel a little 
bit after I became a member of the Committee.
    Born in Boston, BA from Radcliffe, JD from Harvard Law 
School. And I should note for the record that Senator Kerry has 
submitted a statement of support for you.
    And Stacia Hylton is a 24-year veteran of the U.S. Marshals 
Service. She has posts, including acting deputy director and 
the assistant director for prisoner operations.
    From 2004 to February this year, she served as Federal 
detention trustee in the Department of Justice, where she 
managed thousands of prisoners in Federal custody awaiting 
trial or deportation.
    She currently operates her own consulting company, Hylton, 
Kirk & Associates. She was born in Red Bank, New Jersey. She is 
a graduate of Northeastern University.
    I will include for the record a statement in support for 
Ms. Hylton--I apologize for the voice--from Senator Webb of 
    [The statement appears as a submission for the record.]
    Chairman Leahy. Now, Ms. Leonhart, have you had a chance to 
introduce any family members who are here?
    Ms. Leonhart. I have not, Chairman. Thank you.
    Chairman Leahy. Please go ahead, so it can be part of the 


    Ms. Leonhart. Thank you very much. I am proud to introduce 
my better half, my partner, Gene Johns, my husband, who today 
celebrates his 28th year with the Los Angeles County Sheriff's 
Department. He is currently a narcotics detective in Los 
    And also with me is Hon. Peter Bensinger, who was the DEA 
administrator from 1976 to 1981. He has been a mentor for me 
and, in fact, was the administrator that swore me in as a DEA 
agent and presented me with my badge and credentials.
    And I would also like to note three people that are not 
here today. My oldest son got married on Saturday and I didn't 
want to take him away from a honeymoon. And my youngest son is 
a deputy sheriff in Los Angeles and had to work. And then my 
mother earlier this year suffered a stroke and she is 
recovering or would be here.
    So thank you very much.
    Chairman Leahy. Please give her our best.
    Ms. Leonhart. Thank you, Chairman.
    Chairman Leahy. And, Ms. Saris, do you have family members 
    [The biographical information follows.]

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    Judge Saris. I do. Thank you very much for holding this 
hearing today. I would like to introduce my husband, Arthur 
Segal. We will celebrate our 34th wedding anniversary next 
    Chairman Leahy. Now, Judge, that is an accomplishment, and 
he is obviously aware that he married up. My wife and I 
celebrated our 48th this year.
    Judge Saris. I hope to go there. And I'd like to introduce 
my daughter, Celia. Senator Franken introduced her, as well, as 
being a gem. She used to work for him.
    And as well, I'd like to mention my other three kids who 
couldn't be here today, my daughter, Marissa, who is teaching 
in a charter school in Boston; my son, Eddy, who is on the west 
coast and couldn't make it; and, my baby, who actually fell 
asleep in my lap when I went through my confirmation hearing 
is, believe it or not, a freshman. So I'm newly an empty-
    I'd like to introduce my friend, Wendy Gray, who is here; 
my brother-in-law, Jim Segal; and, a whole lot of other friends 
and staff who have come down to be with me today.
    I'd also like to thank the Judicial Conference for 
suggesting my name; to President Obama for nominating me; and, 
to this whole Committee for hearing me today, because this was 
the Committee that I first started in as a staff member, as you 
noted. And, in fact, in 1981, I learned about sentencing policy 
by being a staff member on this Committee when I was very 
    Thank you.
    Chairman Leahy. And I am sure you are going to get a lot of 
good advice from the outgoing chair, Judge William Sessions of 
    Judge Saris. I consider him a good friend and we've talked 
a lot. I should also mention, or she'll kill me, my mom, who 
couldn't make it here today and I'm sure is going to be 
watching this from Boston.
    Chairman Leahy. Well, I hope she will and please give my 
best to Judge Sessions. He is a wonderful friend.
    About the only time I have been in Federal court since I 
became a Senator was to appear before him to move the admission 
of one of his law clerks to the Federal court.
    The law clerk was my oldest son. I went through and made 
the usual motions. Judge Sessions looked at him and he goes, 
``Hmm.'' And we had joked about that. He quickly made up his 
mind and admitted him.
    Ms. Hylton, do you have any friends or family members here?
    [The biographical information follows.]

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    Ms. Hylton. I do, Mr. Chairman. First, thank you for your 
introduction and the opportunity to appear here today to 
address your questions.
    I would also like to thank President Obama and the attorney 
general for their confidence in me through this nomination.
    If I could, I'd like to introduce my husband of almost 25 
years, Ike Hylton, who is here with me today. And I regret that 
your son, who is in a very rigid academic program, much to our 
pleasure, is unable to be here today due to some exams, but he 
has assured me that he will use his technical skills gained 
through video gaming to watch it on Webcast tonight with the 
rest of our family. So I look forward to that.
    Chairman Leahy. We have a similar thing that we say when a 
fellow Senator is about to give a long and important--all 
speeches being important, of course--on the floor of the Senate 
as we are leaving. We say, do not worry, we will read it in the 
Congressional Record. But I imagine in your son's case, he 
probably will actually watch it.
    Ms. Hylton. Yes. It would be a good opportunity for him. 
And I'd also like to thank both Senator Webb and Senator Warner 
for their support and their letter for the record today.
    Chairman Leahy. Thank you. Let me ask, Ms. Leonhart, you 
spent almost 30 years in the Drug Enforcement Administration, 
including as deputy administrator. You were nominated to that 
position by President Bush.
    I have always felt that being in law enforcement was a very 
special calling. I know I enjoyed my time there. But what did 
you learn from your experience at DEA that you think will stand 
you in the best stand, if you are confirmed to be the agency's 
administrator? I am sure you must have given it a lot of 
    [The biographical information follows.]

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    Ms. Leonhart. Thank you, Chairman, for that question. It's 
a great question. It all comes down to serving the public. 
You're a public servant and you've got to put the public first.
    It's about public safety and it's about everything that you 
do remembering your impact on communities, your impact on this 
country, and, with DEA, actually, your impact on the world.
    Chairman Leahy. Well, I have held Senate Judiciary 
Committee hearings, I have had them here, of course, but I have 
also gone into cities like Rutland and St. Albans and Perry, 
Vermont. Now, these are small cities, a lot of blue collar, 
very hardworking cities where people tend to know each other.
    Up to a few years ago, I do not think anybody locked their 
doors. You never worried about anything. But we heard about not 
only the scourge of drugs, but prescription drug abuse in each 
one of these places and the devastating effect it has on 
communities. A lot of it was prescription drug abuse, more and 
more people becoming addicted to prescription pain killers, 
such as OxyContin.
    What I found most interesting in these hearings is that the 
whole community came together. You had law enforcement, 
educators, clergy, physicians, parents.
    It was also quite an eyeopener to some of the parents 
there. It is obvious there was no automatic answer. You cannot 
do it just by education or just by law enforcement. You are not 
going to do it just in the schools.
    Do you see that kind of a growing problem nationwide on the 
abuse of prescription drugs, and what would you suggest?
    Ms. Leonhart. Absolutely, Chairman. And I know that 
recently you were at or helped sponsor a summit there in 
Vermont on prescription drugs.
    It is a growing problem. It's an epidemic in this country, 
and it concerns me and the DEA very much. About 7 million 
Americans are abusing prescription drugs and what really 
concerns me is that every day, about 2,500 teenagers abuse 
prescription drugs for the first time.
    And we all have something to do about it, because it 
affects all of our families and all of our communities. One is 
education, and DEA has done a good job, especially this year 
with the Take Back program in September, of getting the word 
    We have talked to kids. We have looked at every survey 
there is to find out where are they getting these prescription 
drugs, and over 60 percent of these teens will tell you that 
they get it from a family member, a friend, or from the family 
medicine cabinet.
    So education is key, but enforcement, especially 
enforcement by our State, local and Federal agencies, is also 
very important and oftentimes it's the only way to get some of 
these abusers of prescription drugs to seek treatment.
    So it's a whole of government approach. It's a community 
approach. It concerns me. And if I have the privilege of being 
confirmed, it is one of my three focus points for the Drug 
Enforcement Administration.
    Chairman Leahy. But you also have people who have actually 
gone into the business of supplying this, are looking for--it 
is one thing that you have a kid in high school break in the 
neighbor's home, steal the drugs. I am not excusing that, but 
it is a little bit different than somebody who comes into town 
and it is almost a stereotype of, ``Hey, kid, guess what I've 
got here in my briefcase.''
    Are these two different things?
    Ms. Leonhart. Well, we are traditionally involved in 
cocaine and heroin and methamphetamine trafficking 
organizations and what we have found is that some of the 
organizations that are behind the supply of pharmaceutical 
drugs not only to teens, but adults, as well, are organized 
crime groups, are in it to make money, and we attack those 
organizations the same way we attack those trafficking groups.
    So you are correct. The problem is the teen user, the young 
drug user, the first-time abuser, but there is also organized 
crime and organizations that are peddling this poison. They 
make money off of it, and they often will peddle pills 
alongside peddling cocaine or marijuana.
    Chairman Leahy. They have got to be stopped. And they have 
to be stopped.
    Ms. Leonhart. That's correct.
    Chairman Leahy. I am not leaving because of your response, 
which I happen to agree with, but there is a roll call vote on 
and we are playing tag-team here.
    Senator Whitehouse [presiding]. I very much appreciate the 
Chairman coming back to allow this so that the hearing can go 
on uninterrupted. When you do two votes side-by-side, you have 
to do rather an elaborate back-and-forth hallway race in order 
to keep that going, and I appreciate very much that Chairman 
Leahy was willing to do that. And I am delighted that Senator 
Kohl has joined us, as well as Senator Franken.
    Since I am likely to be here until the end, why do I not 
defer to--who is in order? Senator Franken?
    Senator Franken. Yes.
    Senator Whitehouse. You have 5 minutes, sir.
    Senator Franken. Thank you. Judge Saris, welcome. We were 
talking--I noticed you were sitting back there when we had the 
nominees for the Federal judgeships, and we were talking about 
sentencing guidelines. And you have spoken about them and how 
they are valuable tools, but that they are not infallible.
    Can you tell me your basic approach to sentencing 
guidelines, after 24 years on the bench, and both how valuable 
they are and when they are not infallible? Speak to that.
    Judge Saris. Yes. Well, I was on the Senate--a staff member 
on the Judiciary Committee when the guidelines first started 
getting considered, and, at the time, the big policy was why 
should a bank robber in Texas get a different sentence from a 
bank robber in California; why should it matter what judge that 
you get.
    And so the underpinning policy of the guidelines is still 
very important today, which is to avoid unwarranted disparities 
between similarly situated defendants.
    So essentially, that pervasive theme is still very 
important today. However, as many people know, the Supreme 
Court has issued, I think, as many as five opinions recently 
talking about the guidelines and the importance of the fact 
that you also need to consider all of the statutory factors 
under 3553(a).
    So you start with the guidelines as your benchmark, as your 
anchor, if you will. And then sometimes, though, the individual 
characteristics of a defendant may be worth considering, aren't 
properly considered in just doing a mathematical calculation, 
and you are permitted to consider those factors in calculating 
a sentence.
    Senator Franken. So those factors were the ones that one of 
the nominees referred to that that is the law.
    Judge Saris. Yes. The 3553(a) factors, yes.
    Senator Franken. I got it, I got it, I think.
    Ms. Leonhart, a lot of people from Minnesota are proud of 
you and your nomination. And your first posting was in 
Minneapolis and you never had to deal with me, right?
    Ms. Leonhart. No.
    Senator Franken. I just wanted to make that clear. Can you 
tell us what you learned on the job in Minneapolis?
    Ms. Leonhart. Thank you for that question, Senator. I want 
to, first, thank you for the very kind introduction. That was 
actually unexpected this morning. So thank you very much.
    My first 5.5 years on the job were in Minnesota. I had a 
choice. I was being assigned to Miami, but I graduated No. 1 in 
my agent class and you get to pick where you want to go, and it 
was my only chance to go back home. So I picked Minneapolis 
and, for that 5.5 years, felt I made a difference and I cleaned 
up my neighborhood and I cleaned up the community.
    I learned the basics of the job. I learned that it's all 
about working with your State and local counterparts. And I 
learned from working the small cases up to the big cases that 
at the end of the day, it is about identifying those most 
responsible, those organizations that are peddling the poison 
on our streets and putting them in jail.
    My partners, we go back 30 years and they were five 
Minneapolis police sergeants that really taught me the streets.
    Senator Franken. Ms. Hylton, several human rights groups 
have expressed concern with your nomination on the grounds that 
you may face a conflict of interest in your new position. You 
set up a consulting company while you were the Federal 
detention trustee and the head of the office that awards 
contracts to private correctional facilities.
    Once you left your position, your company received a 
$112,000 contract from one of the Nation's largest for--profit 
prison companies.
    These groups say that you may face a conflict of interest 
in your new position in matters that affect your consulting 
company or the company who received the contract from the GEO 
    Now, I understand you worked with the ethics officials both 
before and after this work to make sure you acted 
appropriately, but I think it is important to get this out in 
the open so that you have an opportunity to address it.
    So could you please speak to these allegations?
    Ms. Hylton. Yes. Thank you, Senator Franken, for that 
question. I welcome that opportunity. I'd like to assure the 
entire members of the Committee that I did follow all ethics 
requirements and regulations and worked closely with the ethics 
office both before retirement and subsequently after.
    I incorporated the consulting business about a month before 
I retired just simply so I could begin the paperwork and begin 
to set up the office; so that when I did retire February 28, I 
could--the company would no longer be dormant and it could 
stand up and operate March 1, and I followed within those 
guidance that were provided by the ethics office.
    While serving in the capacity of the Federal detention 
trustee, the contract awards actually happen at the assistant 
trustee level for procurement, and so, therefore, I had no 
direct involvement with contract awards. I had recused myself 
early on in even any conversations about private industry.
    My focus was in the best interest of the government always, 
to ensure that hundreds of State and local intergovernmental 
agreements would be in place, along with the Federal detention 
centers, along with private prisons.
    Senator Franken. Well, thank you. Thank you, Mr. Chairman.
    Senator Whitehouse. Senator Kohl?
    Senator Kohl. Thank you very much. I would like to talk 
with you, Ms. Leonhart. I would like to thank you for appearing 
before the Committee today and I would like to commend you for 
the success of the National Drug Take--Back Day that allowed 
people to safely dispose of their unwanted prescription drugs.
    In my home State of Wisconsin, 84 law enforcement agencies 
collected nearly 4,500 pounds of prescription drugs. We made 
great progress, but I believe that more could be done to 
facilitate additional take-back programs and prevent excess 
medication from being prescribed in the first place, and I am 
looking forward to working with you on this issue.
    However, Ms. Leonhart, I am disappointed with the DEA's 
lack of progress on an issue that was the subject of an Aging 
Committee hearing earlier this year. At that hearing, we heard 
serious concerns about the effects of changes to DEA's 
enforcement policies for controlled substances in long-term 
care settings.
    The changes have resulted in nursing homes being unable to 
administer pain medications to ailing residents in a timely 
manner. The time that it takes for a nursing home to comply 
with the new DEA enforcement policy can be an eternity to an 
elderly patient who is agonizing pain.
    At that hearing, the deputy assistant administrator of the 
DEA assured me that your agency would act quickly to solve this 
problem. And when I met with you in early May, you assured me 
that this was a priority and that you, also, would address the 
problem swiftly.
    In August, I requested joint comments from DEA and HHS on 
draft legislation that I prepared and submitted to you that 
would facilitate more timely access to pain medication for 
ailing nursing home residents, and I received no response.
    Now, I do appreciate the DEA's statement of policy issued 
last month, which clarifies how nurses at long--term care 
facilities can administer some controlled substances. However, 
that fails to provide a solution for Schedule II drugs, such as 
morphine, which are also necessary in certain situations.
    From the vantage point of nursing homes, there are 
practical problems with implementing the policy in its current 
form. So while it is a step in the right direction, more needs 
to be done.
    As I explained, it appears that the DEA is putting 
paperwork before pain relief. I would like to see much more 
progress made on this issue before you are confirmed.
    When will DEA provide comments on my draft legislation?
    Ms. Leonhart. Thank you, Senator Kohl, first, for your 
leadership on that issue, and I know we have worked with you 
and the Committee on those very serious issues.
    I do want you to know that it is of utmost importance to me 
and the DEA that we do have resolution to those issues. We 
don't take lightly our responsibility to not only prevent 
diversion and do our regulatory business, but we are very 
concerned about those patients in need, and that's why, in the 
interim, while we're finding long-term solutions, we have come 
up with a couple of short-term changes, short-term policy 
statements, clarifications that, in many ways, have helped, but 
we need to do more.
    And I agree with you, it is a serious issue and, if 
confirmed, I will tell you that we will continue to work 
through the process with the Department of Justice and with HHS 
and I am quite confident that we will be able to get back to 
you with some dialogue and with some solutions that will be 
favorable to you and the Committee.
    It does take time to do that. I can't put a timeframe on 
it, but know that we are taking that very, very seriously.
    Senator Kohl. Well, I said in my statement that I would 
like to see much more progress made on this issue before you 
are confirmed. As I indicated, I did submit some legislation to 
you and I have not heard back from you or your department.
    Now, I know, in the best of all worlds, you would like to 
take care of it and take care of it immediately, but things are 
not all that simple. On the other hand, this legislation that I 
submitted to you is not all that complicated.
    So I would like to repeat that it is an issue that has been 
out there now for quite a long time. It is not all that 
complicated. How we are going to see to it that patients in 
long-term care settings get the medicine that they need at the 
time that they need it, I think we agree on that principle. And 
how to get it to them is not all that complicated, and that is 
what my legislation addresses.
    So in the most gentle but clear way, I would like you to 
know that I intend to insist that we see some progress on this 
issue as a condition of your confirmation. And I know we can do 
it. I mean, I am not trying to put some impossible roadblocks, 
because I think we have discussed this now, and your department 
and my office are aware of what we can do and should do and 
need to do, and it can be done in a timely way.
    So I am here to request of you that we work a little harder 
together to try and get some progress. Is that reasonable?
    Ms. Leonhart. Thank you, Senator. I will bring that back to 
the Department of Justice and let them know your concern, and 
I'm hoping that we are able to get back to you.
    Senator Kohl. I do appreciate that very much. Thank you.
    Senator Whitehouse. Let me chime in and thank Senator Kohl 
for his leadership on this issue. Let me first say, Ms. 
Leonhart, that I am very supportive of your candidacy. I am 
very proud of the way you have served our country in this 
    As you know, we have a common friend who is a DEA agent, 
who I worked with very closely when I was U.S. attorney, 
somebody who I am extremely proud of, who was willing to put 
herself into harm's way in very significant ways in very 
important circumstances, and she speaks very highly of you and 
your record speaks very highly of you.
    I do not think I should use her name, because she is 
undercover frequently, but we understand what we are talking 
about here.
    So I am extremely favorably disposed toward your 
nomination, but there are these institutional problems that 
need to be addressed. And I could not echo Senator Kohl more 
clearly than to say that the purpose of medicine is to take 
care of the sick and when that purpose is not being met because 
the safety regime to keep the medicine from being abused is 
interfering with it, then a secondary purpose is interfering 
with a primary purpose.
    We cannot have elderly people lying alone, racked with 
pain, when medicine to cure that and to solve that is at hand, 
because of bureaucracy.
    So I will back Senator Kohl in whatever he chooses to do to 
get a resolution to that point. We are backwards on that issue. 
I am a former U.S. attorney. I am a former attorney general. I 
have prosecuted drug dealers, I have prosecuted diversion 
cases, I get that. It is a priority. But it cannot be a 
priority that bureaucratically interferes with the ability of 
an elderly, lonely patient in grave, grave pain to have access 
to the relief that she may need.
    So I emphasize there, and I would have another concern that 
we are working our way through, but I would like to see more 
progress on, and that is in the area of e-prescribing.
    You and I have talked about this before, but I very deeply 
believe that the only way that America avoids a true 
catastrophe in health care, which is coming at us, because the 
costs are out of control, is to make a delivery system that 
improves the quality of care and lowers the cost of care in 
ways that makes the system more accessible to Americans, that 
makes it more intelligent, that eliminates waste, that provides 
for better prevention, and avoids medical errors.
    All of that will stand on a better health information 
technology infrastructure. That is the sort of gateway into 
what is a vital primary national mission and, very often, the 
gateway to health information technology is electronic 
    And it makes absolutely no sense for a doctor to engage in 
electronic prescribing unless they can go to an electronic 
prescribing system. And for a long time, DEA was insisting that 
they go to an electronic prescribing system; for any scheduled 
pharmaceuticals, they had to stay with the paper system, which, 
from a prosecutor's point of view, I thought was nonsense, 
because there is so much investigative advantage to having the 
electronic data to cull through, to look for anomalies, to see 
where investigative resources should be dedicated, but that was 
your position.
    Senator Coburn, who agrees with me on very little, and I 
had a very tough hearing with representatives of your 
administration more than 2 years ago on this subject, and we 
are still watching this drag on and on and on.
    It is a matter of the president's priority to get this 
built out. He has put $20 billion behind it. It is the 
Department of Health and Human Services' priority to get this 
built out. And why, for the life of me, DEA cannot get out of 
the way when it has, to my opinion, no legitimate stake in 
interfering with this, because from my law enforcement 
perspective, we advance the cause by moving to e-prescribing 
for schedule narcotics. We do not hold it back.
    Clearly, there are some issues that need to be resolved, 
but on balance, I think it is a huge plus, step forward from a 
pure drug diversion and investigation point of view.
    So I know I have spoken with some enthusiasm and passion 
about these subjects, but I feel very strongly about them. And 
as strongly as I feel about your capabilities, we simply have 
to get a message into your organization that status quo on 
these issues and the progress that we have seen on them just is 
not good enough.
    Ms. Leonhart. Thank you for your leadership, Senator, on e-
prescribing. And I would like to note that I did sign, in 
March, e-prescribing interim rule. It did go into effect in 
June, and we have done a lot of outreach and are continuing to 
talk to industry about it. We have been promoting it.
    We share your concerns and we think that that interim rule 
was our way of moving forward with what we believe, for all the 
same reasons you have mentioned, will help. And I will do, if 
    Senator Whitehouse. And admittedly, it will. It was a step 
in the right direction.
    Ms. Leonhart. It is a step and, if confirmed, I tell you, I 
will continue to prioritize e-prescribing and make sure that we 
continue to do what we can do at DEA to move that along.
    Senator Whitehouse. We believe that--at least I believe 
that the urgency of getting the United States of America onto a 
robust and secure health information infrastructure so that we 
can provide Americans with the health care system of the future 
is a primary national goal and of real urgency.
    And we are very eager to work with you to work through any 
problems, but I appreciate very much your sentiment that you 
will make sure that your organization, in turn, works with a 
keen awareness not just for its own concerns in this process, 
but for the larger concerns of the country, and I appreciate 
    Judge Saris, I just want to very briefly let you know that 
both a former boss of mine when I was U.S. attorney, Jamie 
Gorelick, and the chief judge of my district--Ms. Gorelick is a 
former boss, so she does not have much sway with me any longer. 
But Judge Lisi is our chief judge on our United States District 
Court and we came through the Committee together and we were 
both appointees or recommended by Claiborne Pell and appointed 
by President Clinton, and they speak very, very highly of you 
and of the work that you have done.
    And I just wanted to have it be a matter of record that the 
former deputy attorney general of the United States and a chief 
United States district judge, who has the occasion to work with 
you very closely from a neighboring state, both feel that the 
quality of your work, the quality of your scholarship, the 
quality of your leadership all merit that kind of commendation.
    So I am delighted that you are here and look forward, I 
hope, to a speedy confirmation for you.
    Judge Saris. Thank you.
    Senator Whitehouse. And wish you well in your job of 
keeping the sentencing guidelines current and appropriate.
    And, finally, Ms. Hylton, I look forward to working with 
you. As you may know, we have a detention facility in Rhode 
Island that has experienced some setbacks. It is a matter of 
great importance to the Rhode Island delegation that that be 
all set right and that we work with you to make sure that to 
the extent that the facility is properly complying with all of 
the various laws and administrative requirements of the 
Marshals Service, that it continues to be seen by you as a 
valuable resource.
    I want to also take a moment to recognize Marshal 
O'Donnell, who I worked with for many, many years as a state 
police officer. I knew him first when he was an undercover 
officer and I was prosecuting cases that he was the primary 
agent and witness in. He went on to become the No. 2 in the 
Rhode Island State Police and run it as the top administrator.
    So he combines both great courage and initiative in the 
field, great experience in putting cases together for 
successful prosecution, and considerable administrative skills 
in law enforcement, and I am delighted that you will be working 
with him.
    So thank you very much for being here. We wish you well.
    Ms. Hylton. Thank you, Senator. I look forward to working 
with you and the district of Rhode Island and the office of the 
Federal detention trustee on that detention facility in your 
area. As you know, it's critical for that district to have 
housing within a reasonable distance from the court. So I look 
forward to working with you.
    Senator Whitehouse. All right. At this point, Senator 
Sessions is not present, but I do believe that he wishes to 
have a chance to ask questions of the witnesses. So we will not 
adjourn the hearing at this point. We will recess the hearing 
until 3 p.m. so that he has the chance at 3 to return and re-
engage with you, and I think that is an important courtesy, 
since Senator Sessions is extremely busy, and I am very pleased 
that he has the interest in this panel to come back and ask 
these questions.
    So we are eager and delighted to have the chance to do 
that. I hope that it does not disturb your schedules too much, 
but I think it is important.
    So without further ado, the hearing will recess until 3 
    Senator Sessions. [presiding] We will return to session. I 
used to have a show called ``In Session with Jeff Sessions.'' 
It did not break any rating record numbers, you can be sure of 
    It is great to have each of you. We thank you for your 
willingness to serve. I appreciate so very much Chairman Leahy 
allowing me to have an opportunity to ask some questions. We 
have just had so many conflicts here at this late part of the 
year with so many things happening.
    Let me get onto the right page here. Is it Leonhart?
    Ms. Leonhart. Leonhart.
    Senator Sessions. Leonhart. Very good. I am a big fan of 
the DEA, having spent much of my 2.5 years as an Assistant 
United States Attorney prosecuting their cases, and then, 
later, being United States Attorney for 12 years, and we worked 
with some of the big international smuggling cases to other 
kinds of cases.
    And I do believe that law enforcement does make a 
difference in the safety of our streets and the health of our 
children, and would first ask you, do you have a view and have 
you expressed one with regard to legalization of marijuana and 
some of these latest ideas of that nature that have been 
floating up in states and cities, and what is that position?
    Ms. Leonhart. Thank you, Senator. A 30-year veteran DEA 
agent, I have seen what marijuana use has done to young people. 
I've seen the addiction. I've seen the family breakups. I've 
seen the bad.
    I am extremely concerned about legalization of any drugs. 
We already have problems with the other--with prescription 
drugs which are legal. And it is of concern and it's of concern 
to DEA and we enforce Federal drug laws. So if confirmed as 
administrator of the DEA, we would continue to enforce the 
laws, the Federal drug laws.
    Senator Sessions. In previous years, DEA administrators 
have spoken out against the legalization measures. Have you 
done so and do you expect to do so if these referenda continue 
to be afoot?
    Ms. Leonhart. DEA and I have spoken out. DEA will enforce 
Federal drug laws. Right now, in all 50 states, marijuana is 
illegal. In all 50 states, we have DEA agents that bring cases 
and we focus on resources on major traffickers and the 
organizations who are supplying drugs, no matter which drugs, 
marijuana, meth, cocaine, heroin.
    Senator Sessions. Well, I know you have the responsibility 
to enforce the law, but chiefs of police, state directors of 
public safety, and heads of the Drug Enforcement Administration 
many times, in my experience, have understood the danger of 
these legalization efforts. And it sounds good to people. It 
sounds like, well, we can just end the problem of drugs if we 
just make it legal, which any country that has tried that, 
Alaska and other places have tried it, it does not work and it 
is a very dangerous failed policy, and we need mature, 
effective public officials who are willing to say that.
    Ms. Leonhart. You are absolutely----
    Senator Sessions. Are you willing to say that?
    Ms. Leonhart. Yes. I've said that, Senator. You're 
absolutely correct. The social costs from drug abuse in all of 
the--especially from marijuana, all of the recent reasons that 
legalizers say it should be legalized, it will help the Mexican 
cartel situation, it won't. It will allow states to balance 
budgets, it won't.
    Nobody is looking at the social costs to society when we 
are talking about legalizing drugs. And what worries me the 
most is we have seen, after years of stabilization of drug use, 
especially among teens, we have seen a spike, and I believe 
that that spike is directly related to all the conversation we 
are now hearing about the legalization of drugs.
    Senator Sessions. I would have no doubt of that. In fact, 
having been involved as United States Attorney in the early 
1980s and the spontaneous grassroots effort, the Reagan 
Administration effort to crack down on drugs, drug use did go 
    As a matter of fact, a University of Michigan study showed 
that half the high school seniors in 1980 admitted to having 
used an illegal drug and the numbers went well below 25 a 
decade later.
    So the effort that we undertook as a Nation to counsel 
young people, send clear messages about what is acceptable and 
what is not had a positive influence on the health and welfare 
of our country. The military's drug testing, for example, one 
of my United States attorney friends in Hawaii had a large 
portion of his office doing murders and assaults and thefts and 
burglaries from the military bases after they tested for drugs 
and eliminated drugs in the military, he said those all just 
plummeted; not just drug cases, but assaults and thefts and 
burglaries went down.
    So I hope that this administration will send a very clear 
message on this. I know that a lot of people, like you said, 
have the idea that drug cartels will be all nice if we just 
made it legal, and a lot of them think that.
    So I am glad to hear you say that and I encourage you to 
speak out on that. I may ask you some written questions about 
the Mexican situation.
    For my two cents' worth, the best way we can help the 
Mexican leadership, who is standing courageously against drug 
cartels, because their lives are on the line--as we know, those 
who stand up to them put their lives at risk--is to demolish 
the gangs in our country who are selling drugs, collecting the 
money, and taking it back to fund these entities of power and 
    Have you given any thought to enhancing our ability to 
focus on the Mexican drug cartels that are the primary 
distribution network for cocaine in America?
    Ms. Leonhart. Yes, Senator. A lot of the focus for DEA 
these days is on Mexico. And now that we have these courageous 
Mexican partners with President Calderone at the head, we have 
had great successes in Mexico in breaking the power and the 
impunity of these cartels.
    But we can do more and, if confirmed, what we will do is 
continue our partnership in Mexico and expand, because now 
we're collecting so much more intelligence that we're sharing 
with them and we've got that intelligence to share with our 
state and local partners here so that we can effectively go 
after those domestic cells that are working for those cartels, 
transporting, distributing drugs and collecting the money and 
bringing it back south.
    Senator Sessions. Well, if you look at it as the tree of 
the criminal enterprise in Mexico, the roots are the 
distribution networks in the United States that bring in the 
money and the wealth that goes up to do it. And as our 
responsibility in our country, we need to be after those folks, 
and they will be facing substantial prison sentences. But we 
need to work on that and, hopefully, DEA will continue to do 
    Judge Saris, it is good to have you.
    Judge Saris. Thank you.
    Senator Sessions. I was United States attorney when we did 
not have the sentencing guidelines and I was there when they 
were passed, and I was there when they were implemented. And 
they were implemented with clarity, without equivocation, and 
it, I think, was another one of the factors in the decline in 
drug use in America.
    The murder rate in America is half what it was in the late 
1970s, early 1980s, and a lot of good things have happened. And 
although we do not want anyone in jail a day longer than it is 
smart to have them there, I have no doubt that because we have 
a substantial prison population, that has reduced crime in 
    If you go out and did a survey of 100 people, how many of 
them are likely to be an armed robber, not many; or a burglar 
or a rapist. And the extent to which more of those are in jail, 
you have less armed robberies, murders and rapes. That is just 
a fact.
    A lot of people want to get out of it, they do not want to 
talk about that. They want to say that there are too many 
people in prison. So we have got to get them out of prison. So 
we need to be smart about it is what I would say to you.
    Yours is an August position. The sentencing guidelines have 
been damaged inexplicably for me by the Supreme Court 
decisions. But that is the Supreme Court and we are stuck with 
    So I wanted to ask a number of things. I would like to 
inquire about how you personally have dealt with the guidelines 
in your court and the judges with which you served in 
Massachusetts, because according to the Sentencing Commission, 
of which you would be the head, in 2009, 56.8 percent, 57 
percent, nationwide, sentences were rendered within the 
guideline range, but in Massachusetts, only 35 percent of the 
cases resulted in sentences within the guideline range.
    Nationwide, only 11.8 percent of the cases resulted in 
below range sentences and cited Booker, the Booker case to 
justify that decision. In Massachusetts, that same category 
accounted for 33 percent of all cases.
    Why do you think Massachusetts is that far out of the 
mainstream of the United States? Because you will be sentencing 
commissioner for the United States, not just for Massachusetts.
    Judge Saris. Thank you, Senator. It's a great question, and 
let me back up by saying I was here as a young staff person 
putting together the sentencing guidelines back in the early 
1980s. So I am firmly committed to the principle of eliminating 
unwarranted disparities.
    One of the big differences in Massachusetts is our high 
proportion of crack cases. And I want to thank the Congress for 
passing the Fair Sentencing Act. I think that makes a huge 
difference. I know approximately 66 percent of the drug cases 
that I personally sat on involved crack, in contrast to the 
Nation's about 19 percent, and it's been a high priority in our 
U.S. attorney's office to go into, let's say, the housing 
    Senator Sessions. Where do you get that number of 19 
percent nationwide?
    Judge Saris. Is crack? I asked somebody to calculate it and 
that's what someone told me.
    Senator Sessions. I do not think it is that low in the 
districts where I practiced and what is happening in Alabama 
today. I think it is higher.
    Judge Saris. I asked somebody to look it up and that is 
what they came up with.
    Senator Sessions. Well, we will check it. Maybe you are 
right, I do not know.
    Judge Saris. But in any event, I do know my personal 
caseload has had a high number of crack cases, and I believe 
that is true across the district of Massachusetts.
    Senator Sessions. Well, it was in Alabama when I was there, 
that is for sure. That is true.
    Judge Saris. So I believe that the concerns about the 
crack/powder ratio did actually cause a lot of disparity across 
the United States and I'm hoping now that you've fixed it 
through this new statute, which I fully support and I think is 
a wonderful compromise, I think a lot of that will go away.
    Senator Sessions. To what extent do you feel would be the 
responsibility of the Chairman to advocate that judges follow 
the guidelines, that this is important, that they not lose 
discipline, that every judge start more and more, year after 
year, less and less find any binding authority in the 
    Judge Saris. I think right now with the guidelines, it's a 
very important transitional moment for exactly the reason you 
just pinpointed, which is the chair of the Sentencing 
Commission--I think Judge Sessions has done it. I think Judge 
Hinajosa has done it--needs to go out, needs to make sure that 
the guidelines are persuasive and evidence-based, and they need 
to go out to the judges and really advocate and ensure that 
they understand how important it is and what an important 
Congressional principle it is to avoid unwarranted disparity, 
and it shouldn't just be within a district, whether is your 
luck of the judicial draw.
    It should be the differences between Texas and 
Massachusetts or between California and Georgia, let's say. It 
should be nationwide and it should be within a district.
    Senator Sessions. Well, that certainly was the idea, and I 
think it was followed pretty closely for quite a number of 
    With regard to your personal sentencing, which I think 
would reflect your approach to the guidelines, do you think 
your sentences would be the range of Massachusetts' sentences 
as far as departures are concerned or would be more in line 
with the national numbers?
    Judge Saris. Well, across the 5 years, averaging, I believe 
they're consistent nationally with the number within 
guidelines. It's gone up and down depending on the year, 
because of--largely because of the crack cases. Sometimes I was 
below Massachusetts. Once I think I was above Massachusetts.
    But primarily, I--we have 47 percent, I think, of our 
caseload is drug-driven, and I think that in those situations, 
as I said, on crack, most of us in the last couple of years 
departed down.
    Senator Sessions. Well, I do not think you should have. I 
think there are too many departures downward, and I do not 
think the Booker case really authorized or suggested that 
judges should break free and just impose their own personal 
    I know some judges have done that. So it worries me a 
little bit that we would have somebody named to be the Chairman 
of the commission who has one of the higher rates of 
departures, frankly, in that way. I may follow it up and give 
you a chance to respond to that some.
    Would you be willing to provide the Committee a list of 
cases in which you departed downward from the guidelines, with 
some sort of brief description of those cases?
    Judge Saris. Sure.
    Senator Sessions. I appreciate that. In a 2002 speech to 
the Massachusetts State Sentencing Committee, which is the 
important thing, the sentencing guidelines, the Federal 
experience, you said, ``I believe that a guideline system is 
better than one based on mandatory minimums and one that is 
purely discretion-based. However, the states should be careful 
to avoid the rigidity of the Federal system and preserve the 
discretion of the trial court judge to render a principled 
sentencing decision. When all is said and done, our system has 
not eliminated disparity in sentencing.''
    Well, it may well be your view, but I would hope it would 
not be the view of the Chairman of the United States Sentencing 
Commission, who should believe and strive to achieve 
consistency in sentencing to eliminate disparity.
    And the idea that a guideline system, you are talking in 
Massachusetts, is better than one based on mandatory minimums, 
is it not true that what you meant in that statement was that 
you would prefer a system that just had guidelines and had no 
mandatory requirement on a judge as opposed to one that has 
mandatory minimums or a mandatory sentence for certain crimes?
    Judge Saris. Yes. I testified before the legislature to 
urge them to adopt a guideline system.
    Senator Sessions. Guidelines as opposed to mandatory. We 
have a mixed guideline/mandatory system. And do you oppose 
that? Would you like to see Federal sentencing minimum 
mandatories eliminated?
    Judge Saris. I believe that the Sentencing Commission will 
be studying mandatory minimums as part of its mandate. I am 
not--I remember sitting over there as a staff member. I 
certainly understand why Congress wants mandatory minimums, 
because there are certain crimes they feel carry a certain 
    Senator Sessions. All right.
    Judge Saris. I believe the guidelines are the best 
approach. Once you've made sure that they are followed by the 
judges, that they're persuasive, that they're evidence-based, I 
think that gives judges the flexibility on those few 
    Senator Sessions. Well, but Massachusetts, at a much higher 
degree than anybody else, thought they knew better than the 
guidelines. They set these guidelines, but I know better; I do 
not have to follow them, because the guidelines are in error, 
    Judge Saris. I know that's not my practice. As I said, that 
is, as far as I'm concerned----
    Senator Sessions. Well, there is a little bit of that in 
all of this.
    Judge Saris. Well, no. I've actually followed the 
guidelines. I would say the one big exception was the crack 
guidelines and I think that now that that is fixed, I think 
that you're not going to see that anymore or certainly you 
won't with me.
    Senator Sessions. Because you did not like the crack 
sentences. Judges did not like them, so they did not want to 
follow them.
    Judge Saris. Now I like them. No. I think what happened is 
that the Supreme Court in two cases actually told us that we 
should--and the Sentencing Commission itself said. And so I 
think across the country, what was happening--as I said, I 
think it's the single greatest source of unwarranted disparity, 
is that once the Supreme Court spoke and said you should 
consider lower sentences, I think a lot of people, including 
myself, did.
    Senator Sessions. In a 2007 speech to the Federal Bar 
Association, you stated, ``Sentencing has become harder and 
more challenging now that judges can finally think again beyond 
the strict sentencing guidelines.'' Do you think there is a 
greater potential for disparate or erroneous sentences now that 
the sentencing has become harder and more challenging?
    Judge Saris. Absolutely, and that's why I think it's 
important. The Supreme Court has said, as you know, that you 
start with the guidelines. They're your benchmark, they're your 
anchor, but you must consider the individual characteristics of 
the offender and other of the factors in 3553(a). And so I 
think that's why the commission is all the more important right 
now; not only to make sure that the guidelines are persuasive, 
but to go out there and persuade judges to follow those 
    Senator Sessions. Well, I think the leadership from the 
commission should encourage and you should be confident that 
your guidelines consider the proper factors. As a matter of 
fact, they do. There are very few factors that I am aware of 
that are not included. If you carry a gun, if you had a 
previous offense, if you threaten the witnesses, how much drugs 
that you have, whether or not you took advantage of a child, or 
factors that all allow increase, and there are factors, such as 
cooperation and other factors that allow some reduction.
    We added a little more in this crack bill that I worked on 
for many years, essentially the same bill I offered in 2000, it 
finally got passed this year. But those numbers are--so I just 
think that you really need to have this in your head; that you 
are trying to craft guidelines that properly consider the 
circumstances of the case.
    Otherwise, you are back there just like we used to see when 
I first started prosecuting, the preacher there talking, the 
momma crying, the brother talking, the boss pleading, and the 
judge, with very little guidance, letting his conscience or 
empathy of the moment decide what a sentence should be, and 
they were very aberrational. Some judges were very aberrational 
themselves and some--and on the same floor, you get 
dramatically different sentences for the same offense.
    Do you agree that the leadership from your side needs to be 
clear that you believe the guidelines have inculcated as much 
of the relevant data as realistically achievable and that 
normally you would expect people to follow that?
    Judge Saris. I absolutely promise to do that and I also 
believe that. I was persuaded of it when I was back here 25 
years ago, and I still believe it.
    Senator Sessions. The commission listed 14 priorities for 
implementing the Fair Sentencing Act of 2010, which I 
cosponsored; continuing to study the impact of the Booker case; 
implementing portions of the health care bill, among others.
    On that same day, the commission published its proposed 
temporary emergency amendment to implement the Fair Sentencing 
Act of 2010--that is our bill--for public comment and that 
amendment took effect November 1.
    Do you agree that developing appropriate permanent rules to 
implement the Fair Sentencing Act should be a high priority for 
the commission?
    Judge Saris. Absolutely. I think it should be one of the 
first things we do is to make sure that everybody is heard from 
and that we get statistics and that we implement permanent 
    I was not involved, obviously, in the crafting of the 
temporary ones, but that's one of my first orders of priority.
    Senator Sessions. And would you agree that it would be 
important for the commission to allow this Fair Sentencing Act 
time to be implemented before it produces any additional policy 
recommendations or conclusions about the crack and powder 
cocaine issue?
    Judge Saris. Well, this may be something I'd have to check 
on. I had thought we were required to do a permanent amendment 
by May 1. I may be wrong about that, Senator. But I think that 
if that's not the case, the way you propose it makes the most 
sense of all.
    If, in fact, we have to do something by May 1, then I 
imagine we go with the data that we've got and then be open to 
changing it.
    Senator Sessions. The rules of the commission allow the 
chair a good bit of power to call meetings, to convene a public 
hearing, ``on any matter involving the promulgation of 
sentencing guidelines or any other matter affecting the 
commission's business.''
    If confirmed, what issue do you have, in your mind, that 
you might want to have hearings on?
    Judge Saris. Thank you. I was hoping to have the 
opportunity to do that. I think one of the big problems that 
I've been worried about is the high rate of recidivism after 
people get out of jail, either on supervised release or after 
they have left all together.
    Overall, the people on supervised release, about 30 percent 
of them end up in revocations. However, 30 percent doesn't 
really capture it, because that means all criminals across all 
    In contrast, about 60 percent of all people in the highest 
criminal history categories are getting revoked; high, high 
numbers. In our district in Massachusetts, we've been 
experimenting with a drug court program, as well as with 
reentry programs and various probation supervision techniques.
    What I'd really like to do is bring down that rate of 
recidivism. I think it's an important public safety issue and I 
believe that we should be much more aggressive in dealing with 
treatment, as well as being smarter, if you will, on trying to 
stop people from recidivating and then if they do, perhaps 
tougher, because at the end of it, this is both a 
rehabilitation issue, but, very importantly, a public safety 
issue, and I would like to hold hearings on that issue.
    Senator Sessions. Yes. But you do not need--you have been 
involved in this at least 25 years, apparently. I think I am 
probably a little longer, and tried to follow it, read writings 
and keep up with it over the years. It has just been an 
interest of mine.
    Ninety-nine percent, I was stunned to see recently, I think 
it is 99 percent of the criminal cases end in pleas.
    Judge Saris. Yes.
    Senator Sessions. Is that about right, Judge Saris?
    Judge Saris. I had sort of thought it was 92 or 93, but 
certainly over 90.
    Senator Sessions. The numbers were higher than that that I 
heard. But at any rate, if it is 90 percent, the point is 
overwhelmingly, the question is how much time or whether the 
person will serve time; if so, how much.
    So I do think it is worth spending a considerable amount of 
time in the system on trying to identify what kind of sentence 
ought to be imposed, and the system should be consistent, from 
a moral point of view, but it also should reflect reality.
    And I would just say to you that recidivism has been the 
big deal for a long time. And has there been any program that 
has dramatically reduced the recidivism rate, to your 
    Judge Saris. To my knowledge, at least preliminary 
statistics from our drug court is that we've started to reduce 
the recidivism, but I can't say that that's going to be a long-
term fix. I believe that we should be following offenders 
intensively. I believe we should be making sure they have job 
opportunities, and I think that we should be a hammer when they 
fail to comply.
    Senator Sessions. I agree with that and I would just say 
that that is true. But I want to make the point that ever since 
I have been in law enforcement, starting out in 1975, people 
have had all kinds of plans to fix the recidivist rate. And in 
the early 1980s, right after Miami started the first drug 
court, we invited the judge to Mobile, Alabama. I was at the 
meeting. And we started one there. And he was claiming this 
dramatic rate.
    Well, it is not that dramatic. Maybe it looked like it for 
a while. I think it was better, but we have just got to 
understand, mature people, that small incremental gains are 
significant; not that you are going to reduce by half or 60 
percent recidivist rates, I do not think it has ever been 
achieved anywhere, and every idea that has ever been thought 
    You have education in prisons, you have drug prisons, you 
can get them in physical condition in prison, you have them cut 
grass in prison, all these things have not been as effective as 
we wish they were or we would be glad to do them anywhere 
anytime, if we could prove it worked.
    So I am glad you are looking at that, and will not harass 
you with any more questions.
    Judge Saris. Thank you, sir.
    Senator Sessions. You answered well, I give you credit.
    Now, Ms. Hylton, you are going to run the U.S. Marshals 
    Ms. Hylton. Yes, sir.
    Senator Sessions. Back in the 1800s, they had this guy, 
kind of like David Koresh, I think, up in rural Alabama and he 
killed a bunch of people and they called the marshal. He had to 
get on a steamboat and a train to come up and catch the man. 
But that was the only Federal presence that existed. There was 
not any DEA, sorry, at the time, just the U.S. Marshals 
Service, and it has a great heritage and great history, and you 
have had a pretty long, professional career in service.
    But it is a very important job you are undertaking. Do you 
have any thoughts about what you would like to accomplish?
    Ms. Hylton. Yes, Senator, thank you. And thank you for the 
acknowledgment to the women and men in the Marshals Service 
that pride themselves in the long tradition of the agency and 
their accomplishments.
    I've been away from the Marshals Service now for about 7 
years and like many law enforcement nationwide, I'm sure they 
face significant challenges with the growing demands that are 
on them.
    I know that we share that our National security and the 
protection of our judicial process is at the center of our 
democracy, and, therefore, I would look forward, if confirmed, 
to take on those challenges so that we can ensure the 
protection of the integrity of the judicial process; that we 
address the issues on our border districts; that we keep our 
streets safe by apprehending dangerous fugitives; and, that we 
protect our children through the mandates in the Adam Walsh 
    So I look to, in order to achieve that, I look to ensure 
that our resources and the support of this Committee and 
Congress and through their appropriations are used wisely and 
effectively. I look to ensure that there's a sound and 
effective operating infrastructure for the employees of the 
Marshals Service to meet those mission requirements; and, I 
look to be innovative and creative in leveraging information 
technology and technical solutions in order to enhance our 
protective services and investigations.
    And I think, also, that it's important to always kind of 
look to the future in law enforcement as you know you need to 
stand ready and be prepared for the future, and, in law 
enforcement, the demands shift often on us.
    Senator Sessions. You will be the leader of this important 
service, and it is my observation that the FBI, the DEA, 
Customs, all the Federal agencies, including the Marshals 
Service, create organizational structure. You give people 
special duties that are critically important maybe at one time, 
but a decade later, they may not be so important.
    And make no mistake, you are going to be asked to do more 
for less, because this country does not have the money. We do 
not have the money to continue to spend like we have, and every 
agency--I just proposed to my Republican colleagues that we all 
reduce our expenditures 15 percent. I will assure you, the U.S. 
Senate will not fail if we reduced spending 15 percent and 
neither would the United States Marshals Service, if it had 
good leadership.
    But hopefully you will not be asked to take that kind of 
reduction. But I guess I am saying, are you prepared to 
rigorously examine all the positions that you have, the special 
duties that you have, the clerical positions that you have, and 
make sure that more personnel are focused on the actual 
responsibilities of the Marshals Service?
    For example, the Department of Defense did a good job of 
moving more people to be military deployable and less doing 
support positions, because the whole purpose of the military 
was to deploy and execute the policy of the Congress and the 
    Are you willing to do that, even if it shakes up and causes 
some people to complain that you are being mean to them?
    Ms. Hylton. Senator, I actually pride myself on my fiscal 
responsibility in my career. Certainly, I embraced it as 
Federal detention trustee. I believe that we can always look to 
ensure that we are meeting the demands that are in front of us 
by reassessing and realigning as necessary.
    Senator Sessions. I believe both sides of the aisle here 
would back you up on that, if you have done it in the right way 
and you have got good plans that make the service more 
    Gosh, you have got some talent, you have got good talent in 
the Marshals Service, and sometimes their duties are not as 
broad as they need to be to fully utilize their talents or 
sometimes within the agency itself, the service itself, the job 
descriptions contain the ability to be productive.
    So I hope you will look at that as you seek to be more 
productive for the service.
    Ms. Hylton. Yes, sir.
    Senator Sessions. Good luck.
    Ms. Hylton. Thank you very much.
    Senator Sessions. It is an important job.
    Thank all of you. I have enjoyed this exchange. Each one of 
you are being asked to head very important agencies of the 
United States, very important agencies, and we will be 
reviewing your record, background.
    Ms. Hylton, I did want to say that I do think there is a 
role for private prisons in the American system. I do not think 
you would have a blanket refusal to consider that and if 
anybody is critical of you for that, I do not think that would 
be justified.
    If you improperly made decisions about who to hire and how 
to manage a contract--but the idea that somehow this should 
never be contracted out, in ceratin circumstances, I think it 
would be wrong.
    What is your view about private prisons?
    Ms. Hylton. Thank you, Senator, for that question, because 
I think you know we took great pride at the office of the 
Federal detention trustee to meet the growing population, and 
always the first approach is--the best approach is always a 
balanced approach.
    And the first step in the process is Federal detention beds 
availability. That's the first assessment. That is done with 
keeping in mind the best interest of the government, but also 
the best interest of the detainee.
    We want to ensure that they are within a reasonable 
distance of their court proceedings, that they are supported by 
counsel, and that they have access to family.
    So if we cannot meet the Federal detention space, there are 
no beds available in the Federal detention centers, we then 
turn to our partners and state and local facilities. Because we 
have a need within the department, again, location close to the 
courthouses, we partner often with the state and local 
governments and actually enjoy 1,800 intergovernmental 
agreements nationwide.
    When sometimes there are pressing fiscal problems for the 
state, they are not able to share those beds. They have their 
own needs. And at those points is when, we've exhausted all 
alternatives, we then turn and have to rely on private 
    Done rarely, but it is done, and it's allowed us to provide 
housing for detainees within a reasonable distance to the 
court, and I think that's a good thing.
    Senator Sessions. I do, too. You stated that well.
    Thank you so much.
    Ms. Hylton. Thank you, Senator.
    Senator Sessions. Let me say that the record will remain 
open for additional questions and comments for one week. Thank 
you so much.
    [Whereupon, at 3:44 p.m., the hearing was concluded.]
    [Questions and answers and submissions for the record