[Senate Hearing 112-72, Part 1]
[From the U.S. Government Publishing Office]




                                                   S. Hrg. 112-72, Pt.1
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               ----------                              

              FEBRUARY 2, FEBRUARY 16, and MARCH 16, 2011

                               ----------                              

                           Serial No. J-112-4

                               ----------                              

                                 PART 1

                               ----------                              

         Printed for the use of the Committee on the Judiciary















                                                   S. Hrg. 112-72, Pt.1

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

              FEBRUARY 2, FEBRUARY 16, and MARCH 16, 2011

                               __________

                           Serial No. J-112-4

                               __________

                                 PART 1

                               __________

         Printed for the use of the Committee on the Judiciary













                  U.S. GOVERNMENT PRINTING OFFICE
  67-905 PDF                WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001






                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director














                            C O N T E N T S

                              ----------                              

                            FEBRUARY 2, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coons, Hon. Christopher, a U.S. Senator from the State of 
  Delaware.......................................................     1
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   367

                               PRESENTERS

Nelson, Hon. Bill, a U.S. Senator from the State of Florida 
  presenting Kathleen M. Williams, Nominee to be U.S. District 
  Judge for the Southern District of Florida.....................     5
Rubio, Marco a U.S. Senator from the State of Florida presenting 
  Kathleen M. Williams, Nominee to be U.S. District Judge for the 
  Southern District of Florida...................................     6
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Maw D'Agostino, Nominee to be District Judge 
  for the Northern District of New York; Timothy J. Feighery, 
  Nominee to be Chairman of the Foreign Claims Settlement 
  Commission, and Caitlin Joan Halligan, Nominee to be U.S. 
  Circuit Judge for the District of Columbia Circuit.............     7

                                NOMINEES

D'Agostino, Mae, Nominee to be U.S. District Judge for the 
  Northern District of New York..................................   108
Questionnaire....................................................   109
Feighery, Timothy J., Nominee to be Chairman of the Foreign 
  Claims Settlement Commission...................................   251
Questionnaire....................................................   253
Halligan, Caitlin Joan, Nominee to be U.S. Circuit Judge for the 
  District of Columbia Circuit...................................    11
Questionnaire....................................................    25
Williams, Kathleen M., Nominee to be U.S. District Judge for the 
  Southern District of Florida...................................   154
Questionnaire....................................................   155

                         QUESTIONS AND ANSWERS

Responses of Mae D'Agostino to questions submitted by Senator 
  Grassley.......................................................   287
Responses of Timothy J. Feighery to questions submitted by 
  Senator Grassley...............................................   290
Responses of Caitlin Joan Halligan to questions submitted by 
  Senators Coburn, Graham, Grassley, Kyl, Lee and Sessions.......   291
Responses of Kathleen M. Williams to questions submitted by 
  Senators Coburn, Grassley and Sessions.........................   354

                       SUBMISSIONS FOR THE RECORD

Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New 
  York, prepared statement.......................................   364
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  November 15, 2010, letter......................................   366
                              ----------                              

                           FEBRUARY 16, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................   371
Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland, prepared statement...................................   739
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.   373
    prepared statement...........................................   751
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   755
Schumer, Charles E., a U.S. Senator from the State of New York, 
  prepared statement.............................................   760

                               PRESENTERS

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland presenting Jimmie V. Reyna, Nominee to be U.S. Circuit 
  Court for the Federal Circuit..................................   376
Cornyn, Hon. John, a U.S. Senator from the State of Texas 
  presenting Jimmie V. Reyna, Nominee to be U.S. Circuit Court 
  for the Federal Circuit........................................   375
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting John A. Kronstadt, Nominee to be U.S. 
  District Judge for the Central District of California..........   373
Warner, Hon. Mark, a U.S. Senator from the State of Virginia 
  presenting Arenda L. Wright-Allen, Nominee to be U.S. District 
  Judge for the Eastern District of Virginia and Michael Francis 
  Urbanski, Nominee to be U.S. District Judge for the Western 
  District of Virginia...........................................   380
Webb, Hon. Jim, a U.S. Senator from the State of Virginia 
  presenting Arenda L. Wright-Allen, Nominee to be U.S. District 
  Judge for the Eastern District of Virginia and Michael Francis 
  Urbanski, Nominee to be U.S. District Judge for the Western 
  District of Virginia...........................................   378

                       STATEMENT OF THE NOMINEES

Briccetti, Vincent L., Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   524
    Questionnaire................................................   526
Kronstadt, John A., Nominee to be U.S. District Judge for the 
  Central District of California.................................   454
    Questionnaire................................................   456
Reyna, Jimmie V., Nominee to be U.S. Circuit Court for the 
  Federal Circuit................................................   382
    Questionnaire................................................   389
Urbanski, Micheal Francis, Nominee to be U.S. Judge for the 
  Western District of Virginia...................................   612
    Questionnaire................................................   614
Wright-Allen, Arenda L., Nominee to be U.S. District Judge for 
  the Eastern District of Virginia...............................   574
    Questionnaire................................................   576

                         QUESTIONS AND ANSWERS

Responses of Vincent Briccetti to questions submitted by Senators 
  Grassley and Sessions..........................................   706
Responses of John A. Kronstadt to questions submitted by Senator 
  Grassley.......................................................   714
Responses of Jimmie V. Reyna to questions submitted by Senators 
  Grassley and Sessions..........................................   718
Responses of Michael F. Urbanski to questions submitted by 
  Senator Grassley...............................................   728
Responses of Arenda Wright-Allen to questions submitted by 
  Senator Grassley...............................................   700

                       SUBMISSIONS FOR THE RECORD

AIDS United, Alliance for Justice, American Association of People 
  with Disabilities, etc; February 15, 2011, letter..............   733
American Bar Association, Section of International Law, James R. 
  Silkenat, Don S. DeAmicis, A. Joshua Markus, Deborah Enix-Ross, 
  Prof. Robert E. Lutz II, Aaron Schildhaus, Kenneth B. 
  Reisenfeld, Michael H. Byowitz and Glenn P. Hendrix, New York, 
  New York, November 1, 2010, letter.............................   736
Citba.org, Michael S. O'Rourke, President, New York, New York, 
  November 30, 2010, letter......................................   742
DiFiore, Janet, District Attorney, Westchester County, White 
  Plains, New York, February 15, 2011, letter....................   749
Donoghue, Elizabeth, Chairman, New York City Bar, New York, New 
  York, February 10, 2010, letter................................   750
Mikulski, Hon. Barbara, a U.S. Senator from the State of 
  Maryland, prepared statement...................................   758
Robinson, Stephen C., Skadden, Arps, Slate, Meagher & Flom LLP, 
  February 16, 2011, letter......................................   762
Schwartz, Bart M., Counselor, New York, New York, Febrary 16, 
  2011, letter...................................................   764
Van Hollen, Hon. Chris, a Representatives in Congress from the 
  State of Maryland, prepared statement..........................   765
Warner, Hon. Mark R., a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   766
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   768
                              ----------                              

                             MARCH 16, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, 
  prepared statement.............................................  1408
Leahy, Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1411
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................   771

                               PRESENTERS

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee 
  presenting Bernice Bouie Donald, Nominee to be U.S. Circuit 
  Judge for the Sixth Circuit....................................   772
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa 
  presenting J. Paul Oetken, Nominee to be U.S. District Judge 
  for the Southern District of New York..........................   772
Sablan, Hon. Gregorio, a Representative in Congress from the 
  Northern Mariana Islands presenting Ramona Villagomez Manglona, 
  Nominee to be Judge for the District Court for the Northern 
  Mariana Islands................................................   773
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting J. Paul Oetken, Nominee to be U.S. District 
  Judge for the Southern District of New York....................   775

                       STATEMENTS OF THE NOMINEES

Donald, Bernice Bouie, Nominee to be U.S. Circuit Judge for the 
  Sixth Circuit..................................................   777
    Questionnaire................................................   779
Engelmayer, Paul A., Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   905
    Questionnaire................................................   906
Manglona, Ramona Villagomez, Nominee to be Judge for the District 
  Court for the Northern Mariana Islands.........................   983
    Questionnaire................................................   985
Oetken, J. Paul, Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   873
    Questionnaire................................................   875

                         QUESTIONS AND ANSWERS

Responses of Bernice Bouie Donald to questions submitted by 
  Senators Grassley, Coburn and Sessions.........................  1037
Responses of Paul A. Engelmayer to questions submitted by 
  Senators Coburn, Grassley and Sessions.........................  1072
Responses of J. Paul Oetken to questions submitted by Senators 
  Coburn, Grassley and Sessions..................................  1386
Responses of Ramona Villagomez Manglona to questions submitted by 
  Senator Grassley...............................................  1401

                       SUBMISSION FOR THE RECORD

Bordallo, Hon. Madeleine Z., a Representative in Congress from 
  Guam, prepared statement.......................................  1406
Donoghue, Elizabeth, Chair, New York City Bar, New York, New 
  York, March 8, 2011, letter....................................  1407
National Employment Lawyers Association (NELA), Patricia A. 
  Barasch, President, Washington, DC, March 16, 2011, letter.....  1415
Pierce, Richard W., Attorney at Law, Richard W. Pierce, LLC, 
  Saipan, MP, February 17, 2011, letter..........................  1417
Sablan, Gregori Kilili Camacho, a Representative in Congress from 
  Northern Mariana Islands, prepared statement...................  1419
White, Michael A., Esq., Attorney at Law, Law Offices of Michael 
  A. White, LLC, Saipan, Mariana Islands, February 10, 2011, 
  letter.........................................................  1421

                     ALPHABETICAL LIST OF NOMINEES

Briccetti, Vincent L., Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   524
D'Agostino, Mae, Nominee to be U.S. District Judge for the 
  Northern District of New York..................................   108
Donald, Bernice Bouie, Nominee to be U.S. Circuit Judge for the 
  Sixth Circuit..................................................   777
Engelmayer, Paul A., Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   905
Feighery, Timothy J., Nominee to be Chairman of the Foreign 
  Claims Settlement Commission...................................   251
Halligan, Caitlin Joan, Nominee to be U.S. Circuit Judge for the 
  District of Columbia Circuit...................................    11
Kronstadt, John A., Nominee to be U.S. District Judge for the 
  Central District of California.................................   454
Manglona, Ramona Villagomez, Nominee to be Judge for the District 
  Court for the Northern Mariana Islands.........................   983
Oetken, J. Paul, Nominee to be U.S. District Judge for the 
  Southern District of New York..................................   873
Reyna, Jimmie V., Nominee to be U.S. Circuit Court for the 
  Federal Circuit................................................   382
Urbanski, Micheal Francis, Nominee to be U.S. Judge for the 
  Western District of Virginia...................................   612
Williams, Kathleen M., Nominee to be U.S. District Judge for the 
  Southern District of Florida...................................   154
Wright-Allen, Arenda L., Nominee to be U.S. District Judge for 
  the Eastern District of Virginia...............................   574


   NOMINATIONS OF CAITLIN JOAN HALLIGAN, NOMINEE TO BE UNITED STATES 
    CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT; KATHLEEN M. 
 WILLIAMS, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN 
   DISTRICT OF FLORIDA; MAE D'AGOSTINO, NOMINEE TO BE UNITED STATES 
 DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK; AND, TIMOTHY J. 
   FEIGHERY, NOMINEE TO BE CHAIRMAN OF THE FOREIGN CLAIMS SETTLEMENT 
                               COMMISSION

                              ----------                              


                      WEDNESDAY, FEBRUARY 2, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:05 p.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Christopher Coons, 
presiding.
    Present: Senators Schumer, Whitehouse, Klobuchar, Coons, 
Blumenthal, Grassley, Kyl, and Lee.

  OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR 
                   FROM THE STATE OF DELAWARE

    Senator Coons. Good afternoon, everyone. I am pleased to 
call this nominations hearing of the Senate Judiciary Committee 
to order.
    I want to specifically thank Chairman Leahy, who will be 
joining us momentarily, for this opportunity to chair my first 
Judiciary Committee hearing, which is an important one.
    As we are all aware, our Federal courts face a severe 
crisis today due to the high number of vacancies in the Federal 
bench. The caseloads facing them continue to grow, and, 
unfortunately, so do the number of judicial vacancies.
    Today, in what is close to an all-time high, more than 100 
Federal judgeships sit empty. And these vacancies not only 
strain our overburdened district and circuit courts, but 
unfairly deny American citizens access to timely judicial 
process.
    Chief Justice Roberts himself has recently characterized 
these vacancies as a persistent national problem and has called 
upon us in the Senate to find a long-term solution.
    The number of vacancies, though, tells only part of the 
story. In the last Congress, the Senate's average consideration 
of a district court judge took 104 days, the average circuit 
nominee, 163. This delay, as I mentioned, exacts a cost on the 
administration of justice and exacts a steep cost on individual 
nominees, and this is not, in my view, a partisan issue.
    Our judiciary relies upon our ability to attract the 
brightest, most decent, and most qualified to serve, in 
particular, on the Federal bench, and we ask these qualified 
judicial candidates to accept detailed and lengthy public 
scrutiny, long delay, relatively meager pay relative to their 
professional qualifications and opportunities, in exchange for 
a career in public service.
    I think we owe them a prompt public review consideration 
and not needless delay.
    In the 112th Congress, I look forward to working together 
with Chairman Leahy, with Ranking Member Grassley, and with all 
my fellow members of the Senate Judiciary Committee to fulfill 
our duty to advise and consent and work through these nominees 
in a thorough, yet reasonably expeditious manner.
    With that in mind, I'd like to welcome today each of the 
nominees, their families and their friends to the U.S. Senate, 
and congratulate them on their nomination.
    I would also like to welcome those of my colleagues who are 
here today to introduce the nominees.
    Today, we will first welcome Ms. Caitlin Halligan, 
nominated to be a judge on the D.C. Circuit. Ms. Halligan 
currently serves as general counsel for the New York County 
District Attorney's Office and as an adjunct faculty member at 
Columbia Law School. She will be introduced by her home State 
Senator, Senator Charles Schumer. And we also have a statement 
for the record from Senator Kirsten Gillibrand.
    [The statement appears as a submission for the record.]
    Senator Coons. We would also like to welcome Mae 
D'Agostino, nominated to be a judge in the Northern District of 
New York. If confirmed, Ms. D'Agostino will be only the second 
female judge ever to serve the Northern District of the State 
of New York, and she will also be introduced by the senior 
Senator from New York, Senator Schumer. And we also have a 
statement from Senator Gillibrand in support.
    [The statement appears as a submission for the record.]
    Senator Coons. We further welcome today Mr. Timothy 
Feighery, who has been nominated to be the Chairman of the 
Foreign Claims Settlement Commission. Since 2004, Mr. Feighery 
has served as an attorney advisor in the Office of the Legal 
Advisor in the State Department. He will also be introduced by 
Senator Schumer, the senior Senator from the State of New York.
    Finally, we welcome Kathleen Williams, who has been 
nominated to be a judge in the Southern District of Florida. 
Since 1995, Ms. Williams has served the southern district as 
its Federal public defender. She will be introduced by her home 
State Senators, both Senator Bill Nelson and Senator Marco 
Rubio. And we are pleased to have both of you with us today to 
provide support.
    I now yield to the Ranking Member to make his comments.
    Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. Obviously, as you have, I welcome our 
nominees and our colleagues who will introduce them, and, 
particularly, to families who are very proud of these nominees 
and could be here with us today.
    At last week's markup, I said I intended to work in a 
cooperative manner with the chairman. My approach will be to 
carefully review the qualifications and records of nominees 
referred to this committee. We can move forward with consensus 
nominees after that thorough review.
    I want to ensure that the men and women who are appointed 
to a lifetime position in our Federal judiciary are qualified 
to serve. Factors I consider important include intellectual 
ability, respect for the Constitution, fidelity to the law, 
personal integrity, appropriate judicial temperament, and 
professional competence.
    Above all, I believe judicial nominees need to understand 
the proper role of a judge and our system of checks and 
balances. Judges are to decide cases and controversies, not 
establish public policy or make law. Therefore, I will not be 
favorably disposed to nominees who might bring a personal 
agenda or political ideology to the bench.
    The Foreign Claims Settlement Commission is a small, but 
very important entity within the Department of Justice, 
established in 1954. This is a quasi-judicial independent 
agency within that department. It adjudicates claims of U.S. 
nationals against foreign governments, and I'll just give you 
one government as an example, like Libya.
    The former chairman's term of office expired nearly 1 year 
ago. No decisions have been made since then. As the result, 
there is a significant backlog that needs to be taken care of, 
and so it is important that we get that nominee out quickly.
    The President' first nominated Mr. Feighery on November 15, 
2010. I am pleased the President nominated an individual with 
familiarity of the office and with experience in claims 
administration. We will move expeditiously.
    Kathleen Williams has been nominated to a seat in the 
Southern District of Florida. That seat became vacant nearly 2 
years ago and has been declared a judicial emergency. However, 
we did not see the nomination until last July.
    With regard to the second district judge nomination, the 
delay in filling the vacancy is a sad record. The vacancy for 
that seat was created in March 2006 when Judge Scullin took 
senior judge status. President Bush nominated Mary Donahue in 
June 2006. Her nomination languished in Committee for over 14 
months and then the nomination was withdrawn.
    President Bush then nominated Thomas Marcelle. That 
nomination was blocked by the Democrats, as well, despite the 
vacancy being a judicial emergency.
    We are now asked to consider the nomination of Ms. 
D'Agostino just 4 months after her nomination. Any impartial 
observer would admit a double standard with this seat.
    Nevertheless, in the spirit of cooperation, I am working 
with the Chairman and we are moving forward. There certainly is 
no credible complaint about Republican delays regarding these 
seats.
    The same is true for circuit court nominations. Nominations 
to the D.C. circuit are and have been political. Many view this 
court as second in importance only to the Supreme Court. The 
Court of Appeals for the D.C. Circuit hears cases affecting all 
Americans, is frequently the last stop for cases involving 
Federal statutes and regulations, and, as we all know, judges 
who sit on this court are frequently considered for and have 
been elevated to the Supreme Court.
    So there is a lot at stake with nominations to this court. 
This seat became vacant with the elevation of John Roberts as 
Chief Justice of the U.S. Supreme Court in September 2005. 
Peter Keisler was first nominated for the seat in June of 2006. 
His nomination stalled in Committee in both the 109th and 110th 
Congresses.
    Mr. Keisler was imminently qualified to serve on that 
court. He had a distinguished academic and professional record. 
His public service included serving as acting attorney general.
    At the time of his hearing, Democrats objected to even 
holding a hearing for the nominee. One of my colleagues on this 
Committee summarized the threshold concerns this way. He 
stated, ``Here are the questions that just loom out there. One, 
why are we proceeding so fast here? Two, is there a genuine 
need to fill this seat? Three, has the workload of the D.C. 
circuit not gone down? Four, should taxpayers be burdened with 
the cost of filling that seat? Five, does it not make sense, 
given the passion with which arguments were made only a few 
years ago, to examine these issues before we proceed? ''
    I have not heard these concerns expressed by my colleagues 
on the other side with respect to nominations that are before 
us now. These issues have not gone away. I have great concern 
about the need to fill existing vacancies on the D.C. circuit.
    I hope that, at some point, we can spend time on carefully 
examining the workload of this court and the implications they 
may have. Not only do we need to examine the threshold issue, 
but we must carefully review the qualifications of nominees to 
this court.
    This Committee has multiple precedents establishing a 
heightened level of scrutiny given to nominees for the Court of 
Appeals of the D.C. Circuit.
    President Bush nominated Miguel Estrada, John Roberts, Tom 
Griffith, Brett Kavanaugh, Peter Keisler, and Janice Rogers 
Brown. All had a difficult and lengthy confirmation process. 
This included delays, filibusters, multiple hearings, and other 
forms of obstruction.
    I think the record shows President Clinton's nominees fared 
much better. I know that Justice Kagan was not confirmed for 
the D.C. circuit, but she was nominated late in President 
Clinton's second term, and things seemed to work out for her in 
the long run. Perhaps some of President Bush's failed D.C. 
circuit nominees will find a similar fortune in the future.
    We have much to look at with this nomination beyond the 
qualifications of the nominee. I hope that we will be given a 
fair opportunity to fully examine those issues as we move 
forward. The D.C. circuit vacancy is not a judicial emergency, 
so I trust there will be no need to rush the consideration of 
this potentially unnecessary seat.
    Thank you, Mr. Chairman, for your courtesies, and, again, I 
welcome the nominees.
    Senator Coons. Thank you very much, Senator Grassley.
    I would like to thank all of the Senators who have come to 
join us today to speak on behalf of their home state nominees. 
I know you are very busy, but your presence and personal 
support speaks volumes about their qualifications and the 
importance of filling these vacancies.
    We will first hear from the Senator from the State of New 
York to introduce Ms. Halligan, Ms. D'Agostino, and Mr. 
Feighery.
    Senator Schumer. Mr. Chairman, I know my colleagues have an 
important engagement. So if I might defer and we can hear from 
them and then go to me, that would be OK with me.
    Senator Coons. Senator Schumer, I would be happy to do so.
    Senator Schumer. Much as I would like to answer Senator 
Grassley's remarks, I will defer.
    Senator Coons. Before we proceed, perhaps we could allow 
the Senators representing the State of Florida to speak on 
behalf of Ms. Williams.
    First, Senator Nelson, if you would.

   PRESENTATION OF KATHLEEN M. WILLIAMS, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA BY HON. 
     BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Nelson. The usual gentlemanly Senator from New 
York, thank you for the courtesies extended to Senator Rubio 
and me, and I will be brief.
    The two of us sit here as representatives of a bipartisan 
effort to move on these vacancies. You have before the 
Committee Ms. Williams, that is the subject of the hearing 
today. You also have, in the middle district, Mr. Dalton, and 
we urge your speedy consideration.
    We have a number of other vacancies that are just coming to 
the fore in Florida. And the way we do it in Florida is a 
tradition that was set up long ago, as evidenced by how Senator 
Graham and Senator Mack worked it, with a judicial nominating 
commission that does all of the receiving of applications, the 
screening, the interviewing, and the suggesting of three names 
to the Senators who then interview the candidates, and then let 
the White House know if we have an objection or if we have any 
particular preference, and this has worked.
    It worked bipartisan with the Graham era. It worked 
bipartisan with Senator Martinez and me, and so, too, it is the 
same with Senator Rubio.
    So in other words, the candidates that we bring to you are 
candidates that are accepted in a bipartisan way, with broad 
support of the legal and nonlegal communities of Florida.
    So it is in that spirit that we come on behalf of Kathleen 
Williams, who presently is the Federal public defender in the 
southern district. She began her legal career as an associate 
specializing in litigation in one of our large and very 
prestigious law firms.
    She has been an assistant U.S. attorney. She worked on the 
operation Operation Greenback, which was a big, big money 
laundering case done through a task force. She has been in 
private practice. She has been in the public defender's office 
as chief assistant, until then she was made the public defender 
herself. And she supervises a large staff of 116 people 
throughout the southern district.
    So we have an extraordinary candidate here. She has been 
all over the State of Florida. She knows it well. But the 
Southern District of Florida is one that is absolutely key that 
we have the top quality judges, because so many of the cutting 
edge cases are coming in front of that district.
    I would just say, on a personal note, that Kathleen credits 
her father, William Williams, who raised her as a single parent 
after the death of her mother. She credits him with her success 
today, and I think that says a lot about the nominee in front 
of you, Mr. Chairman.
    Thank you so much for your courtesy. And thank you, Senator 
Schumer, for your courtesy.
    Senator Coons. Thank you Senator Nelson. Thank you both for 
your advocacy on behalf of the applicant, and your explanation 
of the bipartisan and effective judicial nomination process as 
it functions in Florida.
    Senator Rubio.

   PRESENTATION OF KATHLEEN M. WILLIAMS, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA BY HON. 
     MARCO RUBIO, A U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Rubio. Thank you, Senator. Thank you and the 
Committee and Senator Leahy for being so prompt in scheduling 
these hearings and for allowing us to testify here today.
    I am here, of course, to introduce, as Senator Nelson has 
said, Kathleen Williams, who has been nominated by the 
President to serve as a district court judge for the Southern 
District of Florida.
    Senator Nelson outlined many of her qualifications. Her 
educational background, I will focus on for a moment, because 
it does not fail to impress. She received her bachelor's degree 
from Duke University. But I think more impressive than that is 
her law degree from the University of Miami.
    Senator Coons. Which has other distinguished graduates in 
the room.
    Senator Rubio. A couple here or there, yes. But Senator 
Nelson also outlined her role that she has played in the 
private sector and working in two different law firms of great 
repute in South Florida and all of Florida. Then, of course, 
she joined the Federal public defender's office as a chief 
assistant public defender. She represented people accused of 
violating Federal criminal statutes who did not have the 
resources to retain private counsel.
    In 1995, she was elevated to the position of the Federal 
public defender, where she continues to serve. In carrying out 
her duties as a Federal public defender, she has attained the 
highest rating by her peers, an AV rating by the Martindale 
Hubbell Service.
    Throughout her career, she has received various awards and 
recognition for her hard work and commitment to justice. She 
was recognized by the Department of Justice and received a 
Superior Performance Award in 1987. In 2001, she received the 
Criminal Justice Award from the Dade County Bar Association; 
and, additionally, in 2009, Ms. Williams was awarded the 
Lawyers and Leadership Award by the University of Miami Center 
for Ethics in Public Service.
    I think these awards signify the respect she has earned 
from her peers in the south Florida legal community.
    Ms. Williams also has a familiarity working with the people 
in the United States District Court for the Southern District 
of Florida. She has chaired the Criminal Justice Act Panel 
Committee of the U.S. Southern District Court since 1995, and, 
moreover, she has volunteered for numerous local groups and has 
been very active in our community in South Florida.
    So I am honored to introduce her here today. She is here 
with her family and her former partners, and I am sure she will 
introduce them to the committee.
    Again, thank you, Mr. Chairman, for giving this nomination 
the full consideration it deserves. Thank you, members.
    Senator Coons. Thank you very much, Senator Rubio. Thank 
you very much, Senator Nelson. I know you both have pressing 
business of the Senate to attend to. Thank you for contributing 
those statements today in support of your home state nominee.
    We will now turn to the senior Senator from the State of 
New York, who will introduce for the panel today Ms. Halligan, 
Ms. D'Agostino, and Mr. Feighery.
    Senator Schumer.

 PRESENTATION OF MAE D'AGOSTINO, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE NORTHERN DISTRICT OF NEW YORK; TIMOTHY J. FEIGHERY, 
    NOMINEE TO BE CHAIRMAN OF THE FOREIGN CLAIMS SETTLEMENT 
   COMMISSION; AND CAITLIN JOAN HALLIGAN, NOMINEE TO BE U.S. 
  CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT BY HON. 
 CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Schumer. Well, thank you, Chairman Coons. And I 
want to thank you, too, all of our nominees who are here today, 
along with their very proud families.
    I am honored to have three outstanding nominees to 
introduce today; one who was born, raised, educated and still 
lives in New York; one who came to New York as an adult from 
Ohio and has dedicated her career to public service in our 
state; and, one who was born and raised in New York and then, 
perhaps under duress, left.
    First, going alphabetically, I have the great honor of 
introducing to the Committee Mae D'Agostino. She is an 
outstanding lawyer from Albany, New York, whom I have had the 
privilege of getting to know throughout the last year before I 
recommended her for the bench in the Northern District of New 
York.
    Mae has the distinction of being one of the most well 
respected trial attorneys in the State of New York. She has 
served the bar with skill and good judgment during her almost 
30 years of practice.
    She was born in Albany, New York; graduated summa cum laude 
from Siena College and then from Syracuse University School of 
Law.
    Right from the get-go, Mae established herself in private 
practice as a gifted and hardworking trial lawyer, taking cases 
ranging from medical malpractice to negligence to labor 
disputes. She also demonstrated her sincere commitment to her 
community by undertaking an impressive array of pro bono work, 
including representing individual clients in Social Security 
benefit cases and working hard in various capacities in the New 
York Bar.
    Mae formed her own firm, D'Agostino, Krackeler, Maguire and 
Cardona in 1997 and has remained at the pinnacle of the state's 
legal profession ever since.
    Along the way, she was inducted into the prestigious 
American College of Trial Lawyers. She has won awards that are 
too numerous to list in full for her service to her alma 
maters, the community, and for her position as a role model for 
other women in the profession.
    There are two aspects of her career that I would like to 
highlight very briefly for the Committee as important 
indicators of what kind of judge she will be.
    First, much of Mae's career has been spent making difficult 
topics, like medical diagnoses, understandable to the average 
person, something we need more of on the bench. Second, in 
1992, Mae helped to organize an experimental program in which 
the Albany County court instructed parties in 420 cases to 
reach a settlement or prepare for trial. The program resulted 
in 50 negotiators settling over 150 pending cases.
    This is exactly the kind of dedication and creativity we 
need from our judges.
    One last note. If she is confirmed--when she is confirmed, 
I would like to believe--she will be the only female judge 
sitting in the northern district and only the second to ever 
sit on that court.
    I have always said that my three criteria in choosing 
people to recommend for judgeships are excellence, they should 
be legally excellent, not some political hack or something; 
moderation, I do not like judges too far right and I also do 
not like judges too far left, they tend to want to make law 
rather than interpret law; and, diversity. Obviously, once the 
other two criteria are met, to have a diverse bench is an 
important criteria.
    Well, Mae fits all three of these to a T. I am very pleased 
to have recommended her to the President and I am honored to 
introduce her today. And I just have to say wherever you go in 
the Capitol region, her name is renowned, respected, and almost 
revered.
    She is truly an outstanding figure in that community. And 
the whole community, when I--she was happy in her private 
practice when I asked her if she wanted to ascend to the bench, 
and she agreed, there was sort of revelry from one end of the 
Capitol district to the other among members of both parties.
    Second, I am happy to introduce today Timothy Feighery and 
his beautiful family, which I am sure he will get to introduce 
later, but I had the privilege of meeting a few minutes ago. He 
has been nominated to be the Chairman of the Foreign Claims 
Settlement Commission, a little known, but extremely important 
commission at the Department of Justice.
    The commission is currently charged with distributing money 
to victims of terrorism who are entitled to compensation from 
Libya, and many have been waiting for a long time to recover 
for their injuries of the death of loved ones. And I am very 
familiar with this because a large number of students from 
Syracuse University were killed in that horrible terrorist 
incident.
    Tim was born in the Bronx; earned his undergraduate and law 
degrees from Fordham University, one of our outstanding New 
York institutions. He went on to serve as an associate with the 
prestigious law firm, Kaye Scholer, then returned to public 
service; specifically, the work of compensating all different 
types of victims of mass disasters as fairly and quickly as 
resources will allow.
    He worked for the United Nations Compensation Commission 
and then worked for the 9/11 Victims Compensation Fund, an 
extremely important and difficult job and one that gave some 
relief to thousands of Americans whose loved ones were killed 
or themselves were injured in that horrible day of unparalleled 
horror.
    The Victims Compensation Fund has been scrutinized 
thoroughly by just about everybody, and has done a great job. 
Almost nobody complains. And when you are in such a difficult 
position, to have such an outstanding record speaks well of Tim 
and his abilities.
    Tim now serves the Department of State in the Office of 
Legal Advisor, where he supervised the department's work before 
the Iran-U.S. claims tribunal. His experience fits the bill for 
the Foreign Claims Settlement Commission.
    I know that there are hundreds, if not thousands of 
Americans, victims of terror, who are looking forward to his 
getting to work, and it is a great thing when someone like Tim, 
who has had such experience in this area and is the best our 
country offers, is willing to serve publicly. And we thank you 
and your lovely family for that.
    Finally, it is my great honor today to introduce President 
Obama's first nominee to the United States Court of Appeals for 
the District of Columbia, Caitlin Halligan.
    I would just add that the court now, if you are looking at 
those kind of things, Senator Grassley mentioned it, is not 
really in balance, only three Democratic nominees and eight 
Republican. And to say that we do not need more people on it, 
well, my colleagues on the other side of the aisle voted to 
fill the 10th and 11th seats repeatedly when they were empty.
    So to now all of a sudden say, well, we only need a few 
less is a little perplexing, because the workload of the court 
has not decreased.
    Anyway, we will not get into that today. I am sure there 
will be time.
    I would like to focus on the quality--quality--of this 
nominee. Caitlin Halligan was born in Ohio, I believe it was 
Xenia, Ohio. It is one of my favorite places, because there are 
very few that begin with an X.
    But I think we can call her New Yorker now for her 
extensive service to the state. And it is her years of 
extraordinary public service that I want to emphasize today. 
Without a doubt, Caitlin has sterling academic credentials. She 
graduated cum laude from Princeton University and received her 
law degree magma cum laude from Georgetown University Law 
Center, where she was Order of the Coif. I did not get it, so I 
do not know how to say it--Order of the Coif, and managing 
editor of the Georgetown Law Journal.
    After graduating, she clerked for Judge Patricia M. M. Wald 
of the D.C. circuit and then for Justice Stephen Breyer.
    She began her legal career in private practice, including 
at Howard, Smith & Levin in New York, and then joined the state 
attorney general's office. Her first job was protecting 
consumers against Internet-based abuses. She headed up the 
Internet bureau of the attorney general's office, where she 
litigated online trading fraud and a variety of consumer 
protections.
    She then became the first deputy solicitor general for the 
State of New York, and then solicitor general. In this 
capacity, she was the state's lawyer in chief in the appellate 
courts. She formulated legal arguments to advance the State of 
New York's interests in cases ranging from the interstate 
shipment of wine to the role of dual regulation between state 
and local governments.
    Caitlin has argued four cases in the U.S. Supreme Court, 
where she won two and lost two, another sign that she is very 
well balanced. She won the Best Brief Award.
    Chuck was not listening to that. I said she was well 
balanced, because she won two cases and lost two cases in the 
Supreme Court.
    Senator Grassley. A lot better than the ninth circuit, for 
sure.
    [Laughter.]
    Senator Schumer. Well, thank you, Chuck. She won the Best 
Brief Award from the National Association of Attorneys General 
for 5 consecutive years during her 8 years of service.
    Most recently, Caitlin was in private practice at Weil, 
Gotshal & Manges in New York City, where she headed up the 
firm's prestigious appellate practice. She is currently the 
general counsel to the New York County District Attorney Cyrus 
Vance. In this capacity, she recently authored a brief in the 
U.S. Supreme Court to support New York's use of traffic stops.
    The D.C. circuit has been called the second highest court 
in the land because of the number of cases it decides regarding 
the extent and limits of government power. I think that a 
remarkable thing about Caitlin is that she comes to a position 
on the D.C. circuit with a unique depth of knowledge about the 
practicalities of government.
    I always worry about judges who have not had practical 
experience and seek to impose from on high some decisions that 
just do not work in the real world. We are not going to find 
that with Ms. Halligan.
    As solicitor general for the State of New York, she has had 
a massive client--I have never heard New York State referred as 
massive, but maybe so--with an extensive policy agenda and many 
priorities completed with very limited resources.
    She defended the state, and, often successfully, up to the 
Supreme Court. A lawyer who is rigorous, but reasonable in 
representing her client is, I think, likely to be a rigorous 
and reasonable judge who similarly serves the rule of law.
    Caitlin fits this bill and I think her experience and 
intelligence should recommend her highly to this committee, 
whatever party or ideology you come from.
    I want to thank the nominees for their work and dedication.
    I thank the Chairman for giving me this time today to talk 
about three nominees who have close connections to my home 
State of New York.
    Senator Coons. Thank you very much, Senator Schumer, for 
those valuable and detailed introductory comments on the three 
nominees with some relationship with the State of New York. So 
thank you. And I know that you, too, have Senate business to 
which you may want to attend.
    We are going to proceed now, if we could, with the first 
panel, which will consist solely of----
    Senator Whitehouse. Mr. Chairman, with your permission, 
could I just add a good word, also, on behalf of Caitlin 
Halligan, who comes very well recommended by the leadership 
that I am familiar with, the law enforcement community in New 
York.
    As the state's former solicitor general and as a real 
leader in the appellate practice, she is perfectly suited for 
this court, and has received just rave reviews from our 
colleagues in the New York law enforcement community, 
particularly the district attorney for Manhattan, District 
Attorney Vance.
    I wanted to pass on the very, very strong comments I have 
received in her favor as a tough prosecutor and a brilliant 
lawyer and a very capable individual.
    Senator Coons. Thank you, Senator Whitehouse.
    If I might, I would like to invite Ms. Halligan to step 
forward, if you would, at this time. Ms. Halligan, if you 
would, remain standing, raise your right hand, and repeat after 
me.
    [Nominee sworn.]
    Senator Coons. Thank you very much. Please be seated.
    Ms. Halligan, I would welcome you, at the outset, to 
acknowledge any family members or friends you may have with you 
today, and then proceed with your statement.

STATEMENT OF CAITLIN JOAN HALLIGAN, NOMINEE TO BE UNITED STATES 
       CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

    Ms. Halligan. Thank you, Senator.
    I would like to introduce my daughter, Anna Falcone; my 
husband, Marc Falcone; my father, Jack Halligan; my mother and 
father-in-law, Richard and Mimi Falcone. And I also have a 
number of other friends who are here to be supportive today. 
Thank you.
    Mr. Chairman, thank you and the members of the Committee 
for being here today. I also want to thank the President for 
the extraordinary privilege of nominating me to this position. 
And I want to thank Senator Schumer and Senator Whitehouse for 
their very generous comments.
    Other than that, I have no statement and would be happy to 
answer the committee's questions.
    Senator Coons. Thank you, Ms. Halligan. We will proceed 
then to questions, if we might. I am still expecting the 
Chairman to join us for an opening round of questions, but I 
will begin, if I might.
    Ms. Halligan, if you might start by just briefly describing 
your judicial philosophy, that might be helpful for all of us.
    Ms. Halligan. Senator, I believe that the role of a judge 
is a limited, but important one. I think that the job is to 
apply the law to the facts, to do so in the context of a 
specific case that is presented to a court.
    I believe that judges have to have a deep respect for 
precedent and, also, a full commitment to being fair and 
impartial with every case that comes before a judge.
    Senator Coons. That is helpful. Thank you. And you have 
spent the vast majority of your legal career as an advocate. If 
confirmed for the D.C. Circuit Court, in your view, based on 
that philosophy, how would your role as a judge be different 
from that of an advocate?
    Ms. Halligan. I think the role is very different, Senator, 
and thank you for the opportunity to address that issue.
    I believe that the role of an advocate is to make the very 
best arguments that you can that have a reasonable basis on 
behalf of your client, whether you agree or disagree with those 
positions.
    I think that by contrast, the role of a judge is to look at 
every case with an open mind, to look at what the text in front 
of you says and the precedent, and to make the best decision 
that you can in accordance with the law.
    Senator Coons. Thank you. In reviewing the background for 
this hearing today, I read, in particular, about a report that 
was issued by the Federal Courts Committee of the New York City 
Bar.
    It was entitled ``The Indefinite Detention of Enemy 
Combatants,'' and further titled, ``Balancing Due Process and 
National Security in the Context of the War on Terror.''
    I was a little concerned about this report, in particular, 
to the extent that it seemed to conclude the United States 
lacks the authority to detain folks who are considered enemy 
combatants, and I know you served on that Committee at the time 
the report was issued.
    If you could tell me something about your role in writing 
this report, whether you affirmed it or agree with it, and 
then, if possible, something about your view of the impact of 
terrorism on our communities and the importance of appreciating 
and respecting that impact, as you have conducted yourself in 
your recent legal roles.
    Ms. Halligan. Thank you, Senator. I am really grateful to 
have the opportunity to address that report.
    I first became aware of the existence of that report this 
summer, when I went to the City Bar Association. In responding 
to this committee's questionnaire, I wanted to make sure that I 
had done full diligence, and I knew that I had been a member of 
the Committee that you referred to.
    And so I went through the bar association's files and I 
discovered this report. I was, frankly, taken aback by it, for 
a couple of reasons.
    First of all, the Supreme Court has clearly held that 
indefinite detention is authorized by the AUMF statute. And so 
the notion that the President lacks that authority, I think, is 
clearly incorrect.
    I also was a little bit taken aback by the tone of the 
report. I think that the issues of indefinite detention and any 
issues in the national security realm are very serious ones, 
and I think that approaching those issues as respectfully as 
possible is the most productive way to proceed.
    But the bottom line is that the report does not represent 
my work. It does not reflect my views.
    Senator Coons. And, Ms. Halligan, have you had any personal 
experiences that give you some exposure to the strains or 
challenges in law enforcement, in the legal process, or in our 
community that are a result of acts or incidents of terrorism?
    Ms. Halligan. In several regards, Senator. You know, at a 
personal level, I live and work in downtown Manhattan and I 
worked two blocks away from the World Trade Center on September 
11. And so I have a very acute awareness of how serious these 
issues are and how important the task of protecting our 
citizens is. It is something that I think you cannot live and 
work in New York without thinking about on a frequent basis.
    And I have actually spent a fair amount of time during my 
time in private practice working on a pro bono basis to assist 
the organization that is tasked with rebuilding the 9/11 site. 
So I have worked very closely and, in the course of doing that, 
gotten an up-front understanding of just how devastating the 
consequences of that attack here, even 10 years down the road.
    I also now work in the district attorney's office and 
although the work of counterterrorism is primarily work that is 
done by the Federal Government, we also attempt to do our part 
to make sure that any issues that we identify are addressed as 
quickly and responsibly as possible. And so I think that my 
work on the law enforcement side has also made me very aware of 
how serious the challenges are that we face.
    Senator Coons. Thank you, Ms. Halligan.
    I will turn to Senator Grassley for his first round.
    Senator Grassley. Thank you very much.
    I want to ask you some questions that would try to find out 
whether you believe the Constitution is original intent or 
evolving. And since you were involved in some briefs dealing 
with the Eighth Amendment, do you personally believe that the 
meaning of the Eighth Amendment has changed over time?
    Ms. Halligan. Senator, I believe that the Constitution is 
an enduring document and I believe that the best way in which 
we can interpret it is to look to the text and the original 
intent of the framers.
    Senator Grassley. And, obviously, that original text, at 
least going back to the amendments of 1792, provide for the 
death penalty.
    Ms. Halligan. It does, Senator, and I have defended the 
death penalty in New York's courts under constitutional 
challenge.
    Senator Grassley. In one of your statements, you had said 
something about the meaning of the Constitution depends on 
whether there is an enduring legislative consensus, and you 
quoted in one brief that 18 states expressly disallowed the 
death penalty for juveniles and 12 states did not permit the 
death penalty under any circumstances.
    So it seems to me, under your reasoning, you might believe 
that if 30 states ban the death penalty entirely, then the 
punishment would be unconstitutional. In other words, the 
legislatures acting in one way or another kind of changes the 
Constitution.
    Ms. Halligan. Senator, that brief was filed on behalf of a 
client, the State of New York, and it doesn't represent my 
personal views. I believe the Supreme Court has been crystal 
clear that the death penalty is constitutional, and I would 
fully follow those precedents, if I were lucky enough to be 
confirmed to the D.C. circuit.
    Senator Grassley. OK. Then I am going to ask a question 
that comes from the same briefs and series of cases, but it 
does not deal with the issue of the death penalty or not, even 
though the cases deal with it. But it is kind of from the 
standpoint that you referred to the Atkins case, and you cited 
it when you filed on Roper, and you cited, ``The United States 
now stands alone in the world that has turned its face against 
juvenile death penalty.''
    And the majority stated, ``Within the world community, the 
imposition of the death penalty for mentally retarded offenders 
is overwhelmingly disapproved.'' It is not whether or not 
people that are mentally retarded ought to have capital 
punishment or juveniles.
    It brings me to this point. Do you believe it is ever 
appropriate to rely on foreign law in deciding the meaning of 
the U.S. Constitution?
    Ms. Halligan. I do not, Senator.
    Senator Grassley. Well, that is pretty clear. So I will not 
have to follow-up with another question I had on that subject.
    On the Second Amendment, in 2003, you gave a speech 
expressing concern about Federal legislation to limit the 
liability of gun manufacturers. You said, ``Such an action 
would likely cutoff at the pass any attempt by states to find 
solutions through the legal system or their own legislatures 
that might reduce gun crime.''
    Many who oppose the Second Amendment rights made similar 
arguments against after the Supreme Court decided Heller. Do 
you personally agree that the Second Amendment protects 
individual rights to keep and bear arms?
    Ms. Halligan. The Supreme Court has been clear about that. 
Yes, it does protect individual rights to bear arms, Senator.
    Senator Grassley. And would you say that making it a 
fundamental right under McDonald was something you agree with, 
as well?
    Ms. Halligan. That is clearly what the Supreme Court held 
and I would follow that precedent, Senator.
    Senator Grassley. Thank you. Do you believe it is proper 
for a judge, consistent with governing precedent, to strike 
down an act of Congress that is deemed unconstitutional and 
what might be those circumstances?
    Ms. Halligan. Senator, thank you for the opportunity to 
address that. I think that the job of a judge is to examine the 
constitutionality of a statute when a constitutional challenge 
is presented, but I think that that authority has to be 
exercised very sparingly and very carefully.
    I think particularly my experience defending a state 
government against a wide range of constitutional challenges on 
different issues has taught me just how serious an act it is 
for a judge to strike down a statute and, therefore, set aside 
the will of the people that are acting through their 
representatives.
    Senator Grassley. I think you are giving great deference in 
your response to legislatures deciding public policy as opposed 
to judges.
    Ms. Halligan. I believe that is absolutely the province of 
the elected branches, Senator, yes.
    Senator Grassley. Then let me ask you to comment on a 
speech in 2005 that Justice Scalia said this, ``Every time the 
Supreme Court defines another right in the Constitution, it 
reduces the scope of democratic debate.''
    So do you think that Justice Scalia might be saying 
something you would agree with?
    Ms. Halligan. I think that courts should be very careful 
about striking down any statute that is enacted by a 
legislature.
    Senator Grassley. It sounds to me like you believe that the 
Federal Government is one of limited enumerated powers, but I 
would like to have that clearly stated.
    Ms. Halligan. Thank you, Senator. Yes. The Supreme Court 
has been clear about that point in Lopez and Morrison, and the 
Constitution indicates that, as well, I believe.
    Senator Grassley. Let me ask two short questions, please.
    Senator Coons. Certainly.
    Senator Grassley. My time is up, I see.
    Senator Coons. Certainly.
    Senator Grassley. Do you believe that all powers not 
specifically delegated in the Federal Government are reserved 
to the states, according to the Tenth Amendment?
    Ms. Halligan. Yes, Your Honor, that is what the text--
sorry--Senator, that is what the text says.
    Senator Grassley. Now, just as an opportunity to have you 
think about, if we are a government based on enumerated limited 
powers and the Federal Government is limited by the Tenth 
Amendment, could you give me an example of an activity that the 
Federal Government does not have the authority to regulate?
    Ms. Halligan. Well, I think the Supreme Court addressed 
that in Lopez, for example, when it said that Congress could 
not regulate, I believe--it has been a while since I read the 
decision, but I believe it was the possession of guns in school 
zones, and that was an example of where, in the court's 
opinion, Congress had transgressed its authority.
    Senator Grassley. And you know that is probably about the 
only commerce clause case where the courts have restricted the 
Federal Government under the commerce clause, as well. I hope 
there are more of them. But you at least see that as one of 
those. OK.
    Senator Coons. Thank you, Senator Grassley.
    We now turn to Senator Blumenthal. Senator?
    Senator Blumenthal. Thank you, Senator Coons. And welcome 
to you and your family. And I would like to say how impressed I 
am not only with your experience in public service and your 
experience in litigation, but, also, in the appellate practice, 
which is a somewhat specialized area; obviously, very germane 
and relevant to the position that you have been nominated to 
fill.
    Just to follow-up on some of Senator Grassley's very 
excellent questions. In your representation of the State of New 
York and now the district attorney's office, very often, you 
are in the position of either defending or advocating positions 
that are those of your client, and I assume that your views are 
separate and distinct from whatever positions have to be 
taken----
    Ms. Halligan. Thank you.
    Senator Blumenthal. [continuing]. To advocate the positions 
of those clients.
    Ms. Halligan. Thank you for your kind remarks, Senator. 
Yes, that is correct. My work on behalf of the State Government 
of New York, as well as in the district attorney's office, as 
well as my work on behalf of clients in the private sector, 
represents the work of an advocate, to make the best arguments 
possible, and not my personal views at all.
    Senator Blumenthal. And I might actually note, on a 
personal level, that as attorney general, I was on the opposite 
side of a case that reached the court of appeals in New York 
challenging the constitutionality of the New York commuter tax, 
and your office, under your leadership, was very vigorous and 
excellent in its advocacy, fortunately, on the losing side of 
that case.
    [Laughter.]
    Senator Blumenthal. But I know that in that instance and 
others, your personal views may have differed from the State of 
New York, but you were very zealous and vigorous in advocating 
it. And I assume that now that you would be assuming a judicial 
position, your goal would be to follow the law, not necessarily 
your own personal beliefs.
    Ms. Halligan. That is correct, Senator. I have great 
respect for the rule of law and I think my experiences as an 
advocate have taught me that it is really important that every 
judge leave their personal views at the door when they come 
into the courtroom. So I would strive my best to do that.
    Senator Blumenthal. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Coons. Thank you, Senator Blumenthal.
    We now turn to Senator Kyl. Senator?
    Senator Kyl. My colleague, Senator Lee, was here before I 
was, but you are going to by seniority rather than presence.
    Senator Coons. That is my understanding, yes.
    Senator Kyl. Then if my colleague does not mind, thank you. 
Thank you.
    Could I, first of all, ask you, when you talked about the 
New York City Bar report, you said, ``It does not reflect my 
views.'' Was that just with respect to the indefinite detention 
of enemy combatants issue or other aspects of that report?
    Ms. Halligan. Senator, the issues that that report touched 
on are not ones that I have studied closely. What was clear to 
me is that that point, in particular, was flatly contradicted 
by the Supreme Court.
    I must say I do not really have clear views about a range 
of the other issues raised in the report, but I certainly do 
not agree with them and it does not reflect my work or my 
views.
    Senator Kyl. But you were a signatory to the report; is 
that correct?
    Ms. Halligan. Senator, I was a member of the committee. I 
have no recollection of being apprised of the fact that the 
report was being drafted, and I clearly should have paid more 
attention to that and would not agree to serve on a Committee 
like that in the future unless I could be full apprised of the 
work that it was conducting. But I learned about it for the 
first time this summer.
    Senator Kyl. Well, is your signature affixed to it or your 
name listed as an approver of the report in any way?
    Ms. Halligan. When I identified the report this summer, the 
report indicates that it comes from the Federal Courts 
Committee. There is a list of names at the end and mine is one 
them, which reflects my membership on the committee.
    Senator Kyl. Do you remember participating in any of the 
deliberations of the committee?
    Ms. Halligan. Not with regard to this report. I did not 
even recall that it had been written. I was very surprised when 
I saw it.
    Senator Kyl. So it is accurate to summarize that you do not 
remember participating in any of the deliberations of that 
Committee relative to the report that we are talking about of 
2004.
    Ms. Halligan. That is correct, Senator.
    Senator Kyl. And let me just ask you if, prior to this 
hearing, you took the opportunity to make that point or to 
criticize any aspect of the report.
    Ms. Halligan. No, Senator.
    Senator Kyl. Let me ask you about another matter that is 
covered by the report that has to do with the military 
commissions, because you have expressed opinions about military 
commissions.
    One is the report's conclusion that it is illegal or it 
should be illegal for the use of military commissions to try 
alien terrorists for violations of the laws of war. In fact, 
the report talks about--it says it seems self-evident that the 
constitutional protections afforded ordinary criminals should 
presumptively extend to these terrorists.
    Do you agree with that conclusion or is that part of the 
language you said that you wanted to distance yourself from?
    Ms. Halligan. Senator, my understanding--again, I am not 
well versed in this area, but my understanding is that the 
Supreme Court said in Hamdan simply that the military 
commission procedures that were set up by President Bush 
shortly after 9/11 were simply inconsistent with Federal 
statute, not that they were unconstitutional. I believe----
    Senator Kyl. That is correct. So the question then is with 
regard to the report's conclusion that it would be 
unconstitutional to have military commissions, per se, trying 
these terrorists for violations of laws of war, my question is 
whether you disagree with that conclusion, as well.
    Ms. Halligan. Senator, my understanding is that the current 
law, enacted in 2009, provides for review of actions by 
military commissions by the D.C. circuit. So I think it would 
be inappropriate to comment on that precise question, but I 
would take my guidance from the Supreme Court's precedent in 
Hamdan and any other cases which it decided that were relevant 
to this point, if I were confirmed.
    Senator Kyl. When you were practicing, you coauthored an 
amicus brief in the al-Marri case, and it argued that the use 
of military force authorization that Congress passed did not 
authorize the seizure and indefinite military detention of a 
lawful permanent resident alien who was alleged to have 
conspired with al-Qaeda to execute terrorist attacks on the 
United States.
    Is that a personal view of yours?
    Ms. Halligan. No, Senator. That was a brief that--I was not 
the primary author of the brief, but it was filed on behalf of 
a client. It does not represent my personal views.
    Senator Kyl. All right. Do you have a personal view on that 
issue?
    Ms. Halligan. I do not, Senator.
    Senator Kyl. Understanding that some of the 9/11 hijackers 
came to the United States under legal visas, do you think that 
a credible argument can be made for the proposition that an 
authorization of the use of military force would not include 
the ability to seize and to hold such terrorists indefinitely?
    Ms. Halligan. As a citizen, Senator, that seems like that 
might be difficult. If I were a judge sitting on a court 
considering that question, I would have to put that personal 
sensibility to the side and look at the law.
    Senator Kyl. Since my time is up, let me just make a point. 
Obviously, we have 5 minutes, we are trying to get right to the 
point on something. But for those in the audience, there is a 
clear possibility that people who appear before the Committee 
express views that they believe the Committee want to hear 
rather than necessarily what their own attitudes toward judging 
would be.
    We have seen that happen in the past, and that is why we 
try to delve into questions that might reflect on your ability 
to decide cases before you objectively as opposed to from the 
position of preconceived notions. I am sure you can appreciate 
that is the reason for some of the questions that you see asked 
today, and that is the foundation for my questions.
    Ms. Halligan. Senator, thank you. I appreciate that, and I 
do believe that I have had the opportunity to consider a wide 
range of cases on different issues and I think that whatever my 
personal views are, I would need to leave those to the side, if 
I were confirmed.
    Senator Kyl. Incidentally, just as a matter of clarity, you 
are not required to argue an amicus brief position. That is 
something you voluntarily agree to do. Is that not correct?
    Ms. Halligan. That was a decision that was made by the 
attorney general and any work I did on those briefs was under 
his direction, Senator.
    Senator Kyl. I see. Thank you very much.
    Ms. Halligan. Thank you, Senator.
    Senator Kyl. Thank you, Mr. Chairman.
    Senator Coons. Thank you, Senator Kyl.
    Senator Lee.
    Senator Lee. Thank you. I wanted to open just by responding 
to something made by my colleague from New York a few minutes 
ago with respect to the caseload within the D.C. circuit.
    It is my understanding, based on data I have, that if 
anything, the caseload of the D.C. circuit has decreased rather 
than increased over the last few years since 2006.
    Nonetheless, we are here to discuss this nominee and will 
proceed right to that.
    Thank you very much for joining us. I wanted to open our 
discussion by just talking about the importance of dispositive 
motions. As an attorney, I have sometimes had a frustration or 
a few that there might be some tendency among judges to want to 
deny dispositive motions instinctively.
    I have wondered whether you could almost call this a form 
of defensive jurisprudence.
    As a judge, after all, it is easier to deny a motion for 
summary judgment or a motion to dismiss than it is to grant it. 
If you grant it, you are normally going to throw in an opinion. 
That opinion might be immediately appealable. You might get 
overturned. Whereas, if you deny the same motion, then the 
parties might settle on their own and it results in a form of 
trial by attrition.
    Is this a practice that you may have seen as an attorney 
from time to time? Is it one that is troubling to you?
    Ms. Halligan. As a litigant, I can empathize with that 
sense of frustration. I think that those are issues that are 
generally confronted in the first instance by the district 
courts. And if I were confirmed to an appellate court, I would 
apply the standard for reviewing any such decisions that was 
set forth in precedent.
    Senator Lee. And I guess that feeds into my next question, 
which is you, as an appellate judge, would have the opportunity 
to review these and to scour the records to see where that 
would happen. I would assume you would be on the lookout for 
such instances so that you could discourage that from 
happening.
    Ms. Halligan. Yes, Senator.
    Senator Lee. I would like to talk to you briefly about a 
statement made by Alexander Hamilton in Federalist No. 78 that 
relates to the role that you would be playing, should you be 
confirmed to this judgeship.
    In No. 78, he said, ``The courts must declare the sense of 
the law and if they should disposed to exercise will instead of 
judgment, the consequence would be equally the substitution of 
their pleasure to that of the legislative body.'' In other 
words, he is drawing this dichotomy between something he calls 
``will,'' the prerogative of the legislature, to judgment, the 
prerogative of the courts.
    What do you think he is talking about there? What is 
``will'' and what is ``judgment? ''
    Ms. Halligan. It has been a little while since I have read 
Federalist 78, but from your comments, what I believe that he 
is talking about is the importance of judges confining 
themselves to deciding cases on the facts and leaving 
policymaking for the branches that are constitutionally 
authorized and, also, best equipped for doing so, which is the 
legislature and the executive branch.
    Senator Lee. Thank you. I wanted to follow-up on Senator 
Grassley's question from a few minutes ago about providing 
examples revealing the fact that the Federal Government is one 
of limited enumerated powers.
    I assume you would agree that the Federal Government was 
designed to be one with few and defined powers, whereas the 
states were intended to retain powers that were broader and 
without comparable limitations.
    Ms. Halligan. The Constitution says that it is a government 
of limited powers.
    Senator Lee. In light of that, Senator Grassley asked you a 
question of whether you could provide an example or a few 
examples of things that government might want to do, but that 
shouldn't be done and can't be done at the Federal level 
consistent with that enumerated powers concept. You mentioned 
Lopez.
    Outside of the context of Lopez and Morrison, which, as far 
as I am aware, are the only two instances in the last 75 years 
where the court has invalidated something Congress has done 
under the commerce clause, any examples, hypothetical or 
otherwise, that you can point to of where Congress might step 
out of its limited role?
    Ms. Halligan. I think that is hard to say, Senator--thank 
you for the question--especially without the benefit of some 
further facts or some area in which Congress might legislate.
    Senator Lee. Could Congress legislate that I need to eat 
four servings of green, leafy vegetables in one day?
    Ms. Halligan. Sometimes I think I should do that in my own 
house, Senator.
    Senator Lee. Would it be appropriate legislation for your 
children, I should ask?
    Ms. Halligan. It might be. I think that if Congress were to 
enact a statute like that, a court would properly look at the 
Supreme Court's decisions in Lopez and Morrison and look at the 
reasons that Congress had enacted the statute and decide, as 
best it could, whether or not it had transgressed its powers.
    Senator Lee. Can you tell me anything about what your 
instinct would be on that? Does that strike you as economic 
activity or non-economic activity? Let us assume that Congress 
made findings of fact showing that Americans were more likely 
to consume more health care, health care that might have to be 
provided by the Federal Government, if they did not eat green, 
leafy vegetables four times a day.
    Ms. Halligan. Senator, I think, in the abstract, it is hard 
to say. I think that that is the sort of question that would be 
best resolved with the benefit of a statute and briefing and 
argument.
    Senator Lee. So you see no glaring problem with that that 
strikes out at you off the page. You would have to examine it 
in context.
    Ms. Halligan. I think as with any statute, you would need 
to look at it in context.
    Senator Lee. Understood.
    Ms. Halligan. Thank you, Senator.
    Senator Lee. Thank you.
    Thank you, Mr. Chairman.
    Senator Coons. Thank you, Senator.
    We now begin the second round of questions, Ms. Halligan. 
The concept of federalism holds that Federal legislation is 
entitled to supremacy, to follow-up on the conversation you 
were just having, whereas the Federal Government is empowered 
to act and state authority is supreme in other areas.
    In areas where both levels of government are empowered to 
act, courts are often called upon to resolve whether Federal 
action preempts related state law, and that is an area of law 
in which you have practiced fairly extensively.
    If faced with a similar question of Federal preemption, how 
would you go about deciding whether state law should be 
enforced, should you be confirmed to the D.C. circuit?
    Ms. Halligan. Thank you, Senator. I think with any 
preemption case, the touchstone is what did Congress intend. If 
Congress intended to preempt state law, then the state law has 
to be set aside. And so I would look at the Federal statute and 
I would look at, as the precedent directs, the purposes that it 
was intended to achieve, and I would follow the Supreme Court's 
precedent in that area.
    Senator Coons. There was a conversation previously. I asked 
in the first round about the Federal Courts Committee of the 
New York City Bar. Just to be clear, how many members were 
there of that committee? Do you have a sense?
    Ms. Halligan. I believe there were about 45, give or take a 
few. I would want to check to give you a precise number, 
Senator.
    Senator Coons. And last, what are the most important 
lessons you have learned? As other Senators have commented, you 
have got a broad and long experience in public service in the 
law. What are the lessons you have learned in those respective 
positions and how would you apply those lessons as a Federal 
circuit court judge?
    Ms. Halligan. Thank you, Senator. I think that from my 
experience in private practice, as well as my experience in 
public service, I have had the opportunity to litigate a lot of 
cases on a lot of different issues, and what that has taught me 
is, first of all, that it is critical that judges come to cases 
with an open mind, that they be fair and that they be 
impartial, and, also, that they be respectful to the litigants 
that are before them.
    It has also led me to believe that it is very important for 
judges to decide cases narrowly on the facts before them and to 
give guidance that is as clear as possible so that parties can 
plan their conduct going forward accordingly.
    Senator Coons. Thank you. As I believe Senator Schumer and 
others have referenced earlier, I think one of the reasons that 
you are particularly well qualified for the D.C. circuit is the 
hands-on and practical experience you have had representing the 
State of New York and in other roles and sort of understanding 
the practical consequences of judicial decisions.
    Could you just, in the last, if you would, explain for me 
the difference between the role of legal advocates and the role 
you perceive as a judge and exactly how you would rely on 
precedent in making decisions on the Federal circuit court?
    Ms. Halligan. Thank you, Senator. I think as an advocate, 
you look to precedent to see what reasonable arguments you can 
make on your behalf, whether those are winning arguments at the 
end of the day or not. And as part of that, I believe that you 
are pressing the position of your client to the very best of 
your abilities, whether that is a winning position or a losing 
position.
    I think, by contrast, as a judge, you need to come to it 
without any agenda, without any interests, your clients or you 
own, at the table, and look to precedent to guide you to what 
the correct answer under the law is. And I think in most cases, 
there is a correct answer that the precedent directs you 
toward.
    Senator Coons. Thank you, Ms. Halligan.
    Senator Grassley.
    Senator Grassley. A couple of short questions in the 
follow-up on something you had a discussion on. I kind of tried 
to get your views on whether or not you believe the 
Constitution interpretation of original intent or--I used the 
word ``evolving,'' and you said that the Constitution is an 
enduring document.
    What do you mean by the word ``enduring'' as opposed to--
well, I should not say as opposed to anything else, because you 
used it.
    Ms. Halligan. What I mean by that, Senator--thank you for 
the opportunity to clarify that. What I mean by that is that we 
have a document that was written more than 200 years ago and it 
is those words in that document that endure today and that 
guide the decisions that judges must make when confronted with 
a constitutional question.
    Senator Grassley. My next question I think maybe you just 
answered, but I am going to ask it anyway. Do you believe that 
the Constitution is also an evolving document?
    Ms. Halligan. I am not sure what evolving means, Senator. I 
think that if faced with a constitutional question, a judge has 
to look to the text and attempt to understand the original 
intent behind those words.
    Senator Grassley. Thank you.
    Senator Coons. Thank you, Senator Grassley.
    Senator Blumenthal, any further questions?
    Senator Blumenthal. Thank you, Mr. Chairman. Just a couple 
of quick questions to follow-up on a point that was raised 
earlier by Senator Kyl concerning the amicus briefs that may 
have borne your name over the years.
    My recollection is that you served as solicitor general for 
the attorney general's office in New York between the years 
2001 to 2007; is that correct?
    Ms. Halligan. Yes, Senator.
    Senator Blumenthal. And that would cover the terms of 
Attorney General Spitzer and partly Attorney General Cuomo.
    Ms. Halligan. A short period of time in Attorney General 
Cuomo's administration, yes, Senator.
    Senator Blumenthal. And I served as attorney general of 
Connecticut during those years. My recollection is that they 
were very active and interested in whatever the subject matter 
was that could concern those amicus curiae briefs and that 
their say was not only final, but very often their initiative 
was what resulted in the New York State attorney general's 
office and the State of New York becoming an amicus in those 
cases; is that correct?
    Ms. Halligan. Yes. Those briefs were written and filed at 
the direction of the attorney general himself. That is correct.
    Senator Blumenthal. And just to follow-up on Senator Lee's 
excellent point about the workload, my recollection is, correct 
me if I am wrong, that the D.C. Court of Appeals actually was 
reduced in the number of judges by one in response to decreases 
in workload; is that correct?
    Ms. Halligan. Thank you, Senator. I do not really know 
about the workload statistics of the change in the number of 
judges on the D.C. circuit.
    Senator Blumenthal. I think that in 2008, the number of 
judges was reduced by one on that court and there are now 
vacancies for two, and you would be filling one of them. So 
that may respond, at least in part, to the point raised by--
very legitimate point raised by Senator Lee as to trying to 
allocate judges to respond to workload shifts and changes.
    Thank you.
    Senator Coons. Thank you, Senator Blumenthal.
    Senator Lee, do you have any remaining questions?
    Senator Lee. Yes. Just a couple of quick follow-up points.
    We were talking earlier about the need to look at Congress' 
limited power. In your opinion, as one who might be joining the 
D.C. circuit here shortly, is it worse to uphold the law passed 
in excess of Congress' power or would it be worse to invalidate 
a valid law? Is either one of those worse than the other?
    Ms. Halligan. Thank you, Senator. It is not a question I 
have really thought about, to be honest with you. I believe 
that a judge confronted with a question about whether a law 
exceeds Congress' commerce clause powers would really just need 
to look at the precedent and evaluate that particular statute 
as best as they could.
    Senator Lee. Sometimes in criticizing a ruling invalidating 
a piece of legislation, people will say that is an act of 
activism. I guess my question is designed to get at are 
activism and passivism both ultimately a question of good 
judgment or bad judgment.
    If you are invalidating something that is bad, you are just 
doing your job. If you are upholding something that is within 
Congress' power, you are also just doing your job. So I assume 
you would not disagree with that point.
    Ms. Halligan. No, Senator. I believe that one of the jobs 
that judges are confronted with is to police the boundaries 
that the Constitution sets forth, and they need to do that.
    Senator Lee. So invalidating a piece of legislation would 
not necessarily make you a bad activist judge. It might just 
mean that you are doing your job.
    Ms. Halligan. Absolutely, Senator, yes. Thank you.
    Senator Lee. I wanted to ask you very briefly about a 
speech you gave on May 5, 2003 in White Plains, and you made a 
statement during that speech to the effect that courts are the 
special friend of liberty. Time and time again, we have seen 
how the dynamics of our rule of law enables enviable social 
progress and mobility.
    I was wondering if you could just share with us, with the 
committee, what you might have meant in suggesting that the law 
and perhaps the courts, in particular, can be used as a tool of 
social progress and how such a view might influence your role 
as a judge and how you might approach your job, if you were 
confirmed?
    Ms. Halligan. Senator, that was a speech--thank you. That 
was a speech that was given in the attorney general's stead. I 
do not recall, candidly, what was in my head when I made that 
particular remark, and I do not see any way in which it would 
affect my role as a judge one way or the other, were I lucky 
enough to be confirmed.
    Senator Lee. Understood. Thank you.
    Ms. Halligan. Thank you, Senator.
    Senator Lee. Thank you, Mr. Chairman.
    Senator Coons. Thank you, Senator Lee.
    Are there any members who have further questions?
    Senator Grassley. I presume I will submit some for writing.
    Senator Coons. Seeing none, if there are no further 
questions, we will hold the record open for a week, if there 
are any members of this Committee who wish to submit further 
questions.
    Again, I want to very much thank you, Ms. Halligan, for 
being here today, congratulate you on your nomination and your 
willingness to continue in a long and dedicated career of 
public service.
    As Ms. Halligan and her friends and family are departing, 
we may take a brief 2-minute recess before the second panel.
    [The biographical information follows.]



    
    Thank you.
    Ms. Halligan. Thank you, Senator.
    Senator Coons. We stand in recess.
    [Recess.]
    Senator Coons. I call the Committee back into order.
    I would like to proceed with our second panel of nominees 
for consideration today, if we might. I would like to invite 
the three nominees remaining to stand. Please raise your right 
hands, if you would.
    In case there is any question, Ms. Williams, Ms. 
D'Agostino, Mr. Feighery, if you would, please, sir.
    [Nominees sworn.]
    Senator Coons. Thank you. Please be seated, having been 
duly sworn. Let the record reflect each of the nominees has 
taken the oath.
    Now, each of you, in turn, will have the opportunity to 
recognize your family and friends, and, if you so choose, to 
give an statement.
    Ms. D'Agostino, starting with you, I would welcome you to 
acknowledge family, friends, and give your statement.

   STATEMENT OF MAE D'AGOSTINO, NOMINEE TO BE UNITED STATES 
      DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK

    Ms. D'Agostino. Thank you, Senator. First of all, I would 
like to thank you and Senator Grassley and the other members of 
the Committee for the opportunity to be here this morning.
    I am going to begin by recognizing a few people who could 
not make it here today. My hometown, Albany, is under a blanket 
of snow, as I believe are many other parts of the country.
    But first and foremost, my mother, Teresa D'Agostino, is 
home and, thanks to my brother-in-law, Bob, and my niece, 
Amanda, is hopefully watching this on the Webcast. And I had 
three dear friends who were essentially camping out at the 
Albany Airport to try to get here and did not make it; Michael 
Kanig (ph), Lori Shanks (ph), and Sean Casey (ph).
    But with me today, I have my son, Ted, who is a junior in 
high school at Trinity Pawling School; my sister, Sally; and, 
my brother, Francis; and, my niece, April, very supportive of 
me my entire career.
    I also have two cousins, Linda Sciotti and Anne Noel 
Occhialino; and, two friends, Emilio Garcia and Arete Sprio, 
who came last night from San Antonio.
    Other than being allowed to make those kind introductions 
and to thank Senator Schumer for recommending me and the 
President of the United States for this great honor of the 
nomination, and to thank Senator Schumer for the very kind 
introduction, I have no other statement, Senator.
    Senator Coons. Thank you, Ms. D'Agostino.
    Ms. Williams, would you like to acknowledge or recognize 
friends or family and offer a statement?
    [The biographical information follows.]



    
STATEMENT OF KATHLEEN M. WILLIAMS, NOMINEE TO BE UNITED STATES 
      DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA

    Ms. Williams. Yes. Thank you, Senator Coons. Thank you for 
chairing this proceeding today. Thanks to Senator Grassley and 
the other members for convening us. It is a rare privilege to 
be able to discuss my nomination with you.
    I would also like to thank Senator Bill Nelson and Senator 
Marco Rubio for their very kind and generous introductory 
remarks.
    I would be remiss if I did not acknowledge former Senator 
Mel Martinez and former Senator George LeMieux and the support 
they have given me throughout this process. And, of course, my 
profound gratitude to President Barack Obama. I am humbled and 
honored by his nomination and the confidence he has expressed 
in my abilities.
    I have with me today some very special and important 
people. So with the committee's indulgence, I would like to 
introduce my extended family, starting with Catherine Dee and 
Dr. Adrienne Maraist, my sisters and friends since seventh 
grade. Dr. Maraist has with her today her daughters, Lydia and 
Sarah, and I am happy to see them here.
    I would also like to acknowledge my college roommate, Ms. 
Laurie Vikander; my colleagues from my private sector days at 
Morgan, Lewis & Bockius, Peter Buscemi and William Gardner, and 
their wives and my friends, Dr. Melinda Gardner and Judith 
Miller.
    My chief assistant has come up from south Florida, Michael 
Caruso, without whose support I would not be here. And my chief 
of our appellate division, Paul Rashkind, is here.
    My office, I would like to say thank you to them. I am sure 
they are furiously multitasking while they are watching this 
Webcast.
    I also have some former assistants from my office here 
today, David Marcus and Brian Stekloff (ph). The members of the 
Office of Defender Services at the Administrative Office of the 
Court, Dick Wolfe, Steve Ason (ph) and Judy Marotska (ph), and 
a good friend, Jennifer Burne (ph).
    Finally, the two people without whom I would not have been 
able to make this journey, the gentleman behind me, Michael 
John Mullaney, the love of my life, who is now embarrassed by 
that unmanly characterization, and my dad, William Williams. I 
have a picture on my dresser at home that shows a 3-year-old me 
sitting atop the shoulders of my father in front of the Capitol 
building, and I wanted this Committee to know that in every way 
that is meaningful, he is still supporting me and I am still 
sitting atop his shoulders as I sit here today, and I want to 
thank you for the opportunity to remember him.
    Thank you very much.
    Senator Coons. Thank you, Ms. Williams.
    Mr. Feighery.
    [The biographical information follows.]



    
STATEMENT OF TIMOTHY J. FEIGHERY, NOMINEE TO BE CHAIRMAN OF THE 
              FOREIGN CLAIMS SETTLEMENT COMMISSION

    Mr. Feighery. Thank you, Mr. Chairman. Thank you for giving 
me the opportunity to express my thanks to many of the people 
who are here and who have been instrumental in my being here 
before you today.
    I would, first of all, like to thank Senator Schumer for 
his very generous remarks and for taking the time out of his 
busy schedule to introduce me today.
    I would also like to thank President Obama for the honor of 
this nomination, and you, Mr. Chairman and Ranking Member 
Grassley and members of the committee, for allowing me to 
appear before you today.
    I would like to acknowledge my friends and colleagues who 
are here today and those who are watching on Webcast. I 
appreciate very much their friendship and support. And I would 
also like to acknowledge my eight brothers and sisters and 
their families, my big family, 18 nieces and nephews in all, 
and, also, the Smoot family, who they will all be tuning in at 
some point on the Webcast.
    And now I would like, if I could, to introduce some of the 
members of my family who are able to be here today, beginning 
with my father, Tom Feighery, who is a native of the Bronx, New 
York, and my mother, Anne Feighery, a native of the Town of 
Tullamore, County Offaly in Ireland.
    It is not an easy journey for them, but I can't thank them 
enough for being here today and, also, for their love and 
support throughout my life.
    I am also very pleased that my three children, Finn, aged 
11, Teddy, aged 9, and Anne, aged 6, can be here today, 
although I see that they are taking a break at an opportune 
time. But they have been looking forward to this day and I 
think mostly because they get some time off school.
    Senator Coons. The chair notes they have rejoined us. So, 
Mr. Feighery, if you would like to renew your recognition of 
them. After a completely understandable break, they continue 
their excellent behavior. So let us remind for a moment, Mr. 
Feighery.
    Mr. Feighery. I will introduce again then my three 
children, Anne here, aged 6, Teddy in the middle, who is aged 
9, and Finn, aged 11.
    I am grateful that they are able to experience a real life 
civics lesson here today. So in lieu of missing school, they do 
get a real life lesson. So thank you, members of the committee, 
for that, also.
    I thank them for their unconditional love every day and I 
am very proud of them.
    Finally, I would like to introduce you to my wife, Sarah, a 
native of North Carolina, who has been my partner in all things 
since we first met here in D.C. about 15 years ago. She is a 
constant source of strength for me and I am eternally grateful 
for her love and support.
    And Senator Schumer noted that I might have left New York 
under duress, and I can assure the Senator that it was a labor 
of love.
    And with that, Mr. Chairman, I thank you again and I look 
forward to questions.



    
    Senator Coons. Thank you very much, Mr. Feighery, Ms. 
D'Agostino, Ms. Williams. All of us in public service are 
sustained by a broad network of friends and family, and I 
appreciate your particularly moving recognitions of the folks 
who have sustained you in your journey of service so far.
    So let me begin then, if I might, with questions. Ms. 
D'Agostino and Ms. Williams, would you briefly describe your 
judicial philosophy, please, beginning with Ms. D'Agostino?
    Ms. D'Agostino. Well, Senator, my judicial philosophy is 
really quite simple. Firstly, a judge must follow at all times 
the rule of law. Second, it is very important, I think, for a 
judge to treat everyone who comes before him or her with great 
respect, irregardless of the individual's walk of life of 
station. And, third, I think that a judge must have an 
impartiality and an objectivity that is beyond reproach.
    Senator Coons. Thank you, Ms. D'Agostino.
    Ms. Williams.
    Ms. Williams. Yes, Senator. The role of a judge, I believe, 
is to be a fair and impartial arbiter of any matter that comes 
before him or her. To commit yourself to this service, I think 
you start with a commitment to equal justice and due process 
and the rule of law and you treat everyone who comes before you 
with fairness and dignity and respect.
    So I believe, as a judge, I would study the matter 
carefully, I would listen well to all parties and all 
litigants, and I would then attempt to apply the law in a fair 
and judicious manner for a just resolution of whatever came 
before me.
    Senator Coons. Thank you, Ms. Williams.
    Mr. Feighery, many folks are not familiar with the Foreign 
Claims Settlement Commission. If you could, please, briefly 
describe for us its role and what your role might be as 
chairman. I believe Senator Schumer gave us an introduction to 
it previously, but it certainly could not hurt for us to have a 
further explication of the point.
    Mr. Feighery. Thank you, Senator. Thank you for the 
question.
    The Foreign Claims Settlement Commission is a quasi-
judicial organization that takes the claims that are delegated 
to it either by Congress or by reference from the State 
Department and then decides those claims under the rule of law 
and under the carefully circumscribed claims settlement or 
other rules.
    So it is very much--it has a long history in the United 
States and has greatly served the most worthy of our citizens, 
the U.S. victims of either terrorism of expropriation abroad or 
other matters.
    So it has a very important role to continue to play, 
although it does play it quite under the radar.
    Senator Coons. And next, if I might, would each of you just 
explain for us how the previous experiences you have had, 
whether as a trial advocate, as a public defender, or as 
someone who has served in a number of different claims 
commissions, how have the experiences you have had 
professionally prepared you to serve in the respective roles 
for which you have been nominated and how would you expect the 
role to change, as either Chairman or district court judge?
    Ms. D'Agostino.
    Ms. D'Agostino. Well, Senator, over the course of the last 
30 years, I have tried many, many cases to a conclusion and, 
along the way, I have also had an opportunity to settle many 
cases. I think I have learned a great deal about litigation, a 
great deal about bringing matters to a reasonable conclusion.
    And as Senator Schumer was kind enough to point out during 
his introduction, I was able, along with another attorney in 
Albany, to organize a settlement of many cases in our 
community.
    If I am fortunate enough to become a district court judge, 
I will bring the skills that I have learned over the last 30 
years. I will attempt to treat everyone with great respect, 
and, hopefully, I would take all of my trial skills and my 
negotiating skills and bring those to the bench and be a very 
effective district court judge.
    Senator Coons. Thank you, Ms. D'Agostino.
    Ms. Williams.
    Ms. Williams. Thank you, Senator. I have spent my entire 
career in the Federal court system as a Federal prosecutor, as 
a Federal defender, as a civil attorney, and as a public sector 
attorney, as a trial attorney, and now administrator of a 
medium-size law firm, and I believe the skill sets I have 
acquired in each of those roles would help me not only 
substantively, but in the administration of justice.
    Senator Coons. Thank you, Ms. Williams.
    Mr. Feighery.
    Mr. Feighery. Thank you, Mr. Chairman. I think my prior 
experiences both at the United Nations Compensation Commission, 
working with Special Master Ken Feinberg on the 9/11 Fund, and, 
also, my work at the State Department has prepared me to take 
on the role of the chairman, if I am so fortunate to be 
confirmed, in that I have worked in these claim funds and am 
familiar with the submission of claims, the organization of 
claims, the issues that go into resolving claims, the need to 
work within the regulatory or statutory framework that you are 
handed within that particular claims category or organization.
    I think all of these, including the managerial experiences 
that I have had along the way in these particular programs, 
will help me, should I be fortunate enough to become Chairman 
of the Foreign Claims Settlement Commission.
    Senator Coons. Thank you, Mr. Feighery. That is my first 
round of questions.
    Senator Grassley. Well, welcome to all of you. Glad to have 
you here.
    Starting with Ms. Williams. You made some remarks before 
the Federal Bar Association in December 2005, ``Interestingly, 
while we don't seem to have a problem using foreign nations to 
part people, there are those who do have a problem using 
foreign law to inform debates here, especially in regard to the 
death penalty.''
    This comment appears to be alluding to the Supreme Court 
decision in Roper. The Supreme Court, as you know, said the 
Eighth Amendment precluded execution of minors.
    I do not want to dwell on the execution of minors, but I do 
want to dwell on the foreign law aspect. Do you think it is 
proper to look to foreign law to determine the meaning of the 
U.S. Constitution; and, if not, what did you mean in your 
statement about using foreign law to inform debate?
    Ms. Williams. I do not believe, Senator, that foreign law 
has any place in making or interpreting constitutional 
provisions. I was using that as a juxtaposition to provoke 
thought in my audience for some of the events transpiring, 
which included use of foreign prisons to detain persons.
    Senator Grassley. It will be a follow-up, but I think you 
have already answered it, but let me be more specific.
    In your view, is it ever proper for judges to rely on 
foreign law or the views of, quote-unquote, the world community 
in determining the meaning of the Constitution?
    Ms. Williams. No, Senator, unless it is explicitly provided 
for in statute or perhaps in extradition matters where you must 
examine the reciprocity. It is not proper, no.
    Senator Grassley. On several occasions, you have made 
statements that appear to call into question certain practices 
of the prosecution of suspected terrorists.
    For instance, in a speech you gave before the ACLU in 2003, 
you made a reference to ``secret detention, secret lists of 
detainees, secret proceedings, secret evidence, and absolutely, 
positively, under no circumstances, the right to lawyer.''
    In a speech you gave in May 2008, you made similar remarks. 
You stated that you, ``have never believed that I would 
practice in a time when people were detained indefinitely by 
the Government of the United States, held in secret, without 
access to lawyers.''
    In your view, what due process rights are required for 
foreign terrorists captured on the battlefield and detained 
outside the United States?
    Ms. Williams. Well, Senator, let me first say that the 
Supreme Court, in Hamdan and Hamdi, has considered detention 
issues and they have told us what is not due process as opposed 
to a primmer for what is.
    The ultimate question, though, would be, as a judge, how I 
would apply the law. My personal circumstance, however, is such 
that I would never preside over a terrorism case. My office has 
handled a terrorism matter and detainee matters, but because of 
my personal relationship with Mr. Mullaney, who is the chief of 
counterterrorism for the Department of Justice, I would recuse, 
as I have recused from all matters regarding terrorists or 
detainees.
    Senator Grassley. Could it be, as young as you are, though, 
that down the road 20 years, you might be involved in a 
terrorist case?
    Ms. Williams. Hopefully, with some retirement for my 
partner, down the road 20 years, I may be involved and, as 
such, I would apply the law as it was handed down by the 
Supreme Court and the 11th Circuit and not deviate in any way.
    Senator Grassley. I have more questions to ask you, but I 
think I better move on and maybe submit questions in writing.
    Mr. Feighery, I understand that there are currently a 
significant number of claims before the Federal Claims 
Settlement Commission that await adjudication.
    Now, it may be that you have not studied this, so you may 
not be able to answer it, but if confirmed, how would you plan 
to prioritize claims and what will you--and then I suppose I am 
leading up to the point of how would you try to get rid of this 
backlog.
    Mr. Feighery. Thank you very much, Senator, for the 
question. I have not studied this. I am not privy to the amount 
of the backlog or the kinds of claims, and all I can tell you 
is I would do what I have always done, which is to work hard 
with the staff and work our way through this backlog.
    And I recognize that this is very important and of great 
concern to the claimants, and so that would be my first 
priority, if I were confirmed.
    Senator Grassley. The commission operated on a budget for 
fiscal year 2010 of $2.1 million; for fiscal year 2011, the 
commission has requested an increase of $42,000. How will you 
ensure accountability and efficiency of the taxpayers' funds?
    Mr. Feighery. Well, the first thing I would do when I get 
in there is after understanding what the backlog is, is to have 
an understanding of where the money of the commission is spent 
and how it is spent and take whatever steps are necessary to 
make sure that the money we have is spent for the primary 
purpose of ensuring that American victims get their just 
compensation.
    Senator Grassley. Thank you. Why do you not go ahead?
    Senator Coons. Thank you, Senator Grassley.
    If I might, just one or two more questions from me. Ms. 
Williams, in your role as a Federal public defender, you have 
expressed, on some occasions, opposition to the severity of 
punishments contained in the sentencing guidelines, the Federal 
guidelines.
    If confirmed, in serving as the district court judge, what 
deference would you give to the Federal sentencing guidelines?
    Ms. Williams. Thank you, Senator. I, in my role as an 
advocate and a defender, identified shortcomings in a mandatory 
guideline system. As the chair is aware, the Supreme Court has 
stated--and all circuits, that I am aware of--in an advisory 
guideline system, you must start with an accurate calculation 
of the guidelines.
    So it appears that courts everywhere have given significant 
deference to the guidelines, as it is a starting point, and I 
would adhere to that in any sentences I would render.
    Senator Coons. Thank you very much, Ms. Williams.
    Ms. D'Agostino, could you, just briefly, for us, describe 
the role that precedent plays for you in applying the law as a 
district court judge?
    Ms. D'Agostino. Yes, Senator. I believe that precedent must 
be followed. It is the role of the district court judge to 
apply the law, to look at the precedent, and it would be very, 
very important at all times to follow prevailing precedent.
    Senator Coons. Thank you, Ms. D'Agostino.
    Mr. Feighery, what are the biggest challenges facing the 
Foreign Claims Settlement Commission moving forward, should you 
serve as chairman?
    Mr. Feighery. Mr. Chairman, thank you for the question. I 
think Ranking Member Grassley pointed to it, which is the 
backlog of claims that have been noted several times, and that 
is something that is clearly the single biggest challenge of 
the commission.
    We have got to work our way through that backlog as soon as 
possible, because these victims should not have to wait a day 
longer than absolutely necessary.
    Senator Coons. What do you think are the most important 
resources or possible changes in structure operations that 
might address the backlog?
    Mr. Feighery. Well, again, I am not sure, not being there. 
But if I were to be confirmed, I will take a quick and hard 
look at the resources. And I know, from my prior experience, 
that human resources in this kind of work are the most valuable 
and necessary.
    Senator Coons. Thank you, Mr. Feighery.
    Senator Grassley.
    Senator Grassley. I would ask Ms. D'Agostino a couple of 
questions.
    It is quite obvious that you have had a great deal of 
experience as a civil litigator and an excellent background in 
that area, and I have a question about your experience with 
criminal law and maybe you have a lot more than what we read 
about.
    But if I am right, not having as much experience in 
criminal law, is there anything more that you could share with 
us about your legal background to ease any concerns about the 
lack of criminal law experience?
    Ms. D'Agostino. Senator Grassley, you are absolutely 
correct that I have spent the majority of my career, actually 
all of it, in the field of civil litigation.
    With respect to criminal law, though, Senator, I would 
approach my preparation for this great honor, if I am to be a 
Federal court judge, the same way that I have approached my 
entire career.
    I made a pledge to myself 30 years ago that I would never 
go into a courtroom unprepared. And if I do become a Federal 
district court judge, I will do everything in my power to 
immediately read everything that I can about criminal 
procedure. I will avail myself of all of the opportunities that 
exist for new judges to be schooled on these matters. And when 
I take the bench, if I do take the bench, I will make certain 
that I am prepared to handle the criminal aspect.
    With respect to the rules of evidence and with respect to 
appropriate conduct in court, I think my vast civil experience 
will serve me well.
    Senator Grassley. You probably know that Senator Schumer 
and I have been advocates for cameras in the courtroom, and it 
looks like you have a little different view. I want to assure 
you that I would not vote against you just because you 
disagreed with us on cameras in the courtroom, but I would like 
to get your feeling on this.
    I believe it would open the courts to the public and bring 
about greater accountability, and I think Senator Schumer would 
say the same thing. So I have sponsored the Sunshine in the 
Courtroom Act, giving judges discretion to allow media coverage 
of Federal court proceedings.
    I understand, in the past, that you have expressed concern 
about allowing cameras in the courtroom for New York trial 
courts. You have been quoted in a 1989 Albany Times Union 
article, in which you expressed concerns that the New York 
legislature would make permanent cameras in the courtrooms.
    Specifically, you said, ``If just one innocent person is 
convicted of a crime because of a wrong atmosphere in a 
courtroom, the system has failed.''
    My understanding is that since 1997, the State of New York 
no longer allows cameras in trial court proceedings. Did you 
have any firsthand experience with cameras in the courtroom 
during the period in which they were allowed in New York trial 
courts and, if so, how do you feel it affected your courtroom 
environment?
    Ms. D'Agostino. Thank you, Senator. Let me just begin by 
saying that my position on cameras in the courtroom has really 
evolved since 1988 or 1989. When cameras were first being used 
in New York, I was not certain if there were going to be 
appropriate safeguards to make sure that jurors did not feel 
uncomfortable with cameras, to make sure that witnesses did not 
feel uncomfortable.
    As the years have gone on and I have seen cameras in the 
courtroom in so many other jurisdictions, I have come to 
believe that is very appropriate as long as appropriate 
safeguards are in place. I think it does open up the courtroom 
to the people.
    If people can come in and watch a trial, and they often do 
in the cases that I try, I do not see a problem with people 
watching programs on Webcasts or television, and I really have 
not been asked since 1989 if my opinion has changed.
    But certainly, over the years, as I have seen the great 
success with cameras in the courtroom, I have no problem with 
it whatsoever.
    Senator Grassley. I guess you answered two other questions 
all at once.
    Here is something that is somewhat philosophical, but, to 
me, it has got some practical aspects of the type of people I 
want on the courts.
    You probably remember that when Justice Stevens announced 
his retirement, the President said that he would select a 
Supreme Court nominee, ``with a keen understanding of how the 
law affects the daily lives of American people.''
    Do you believe judges should ever base their decisions on 
desired outcomes, or I suppose the opposite of that would be 
solely based upon the law and the facts presented?
    Ms. D'Agostino. Senator, I believe that a judge must decide 
cases on the law and the facts and precedent and not with a 
view toward what the outcome should be or with a view toward 
creating new law. We must look at precedent. We must, as 
judges, follow the rule of law at all times.
    Senator Grassley. Can I draw the conclusion it is pretty 
clear to you that there would never be circumstances where your 
own values could be placed in making some sort of a decision?
    Ms. D'Agostino. I would never let my own values result in a 
decision, Senator. That would be inappropriate. My job would be 
to rely on precedent and to apply the appropriate rules of law, 
as I know them.
    Senator Grassley. Well, I will try one more time. And you 
are not answering unfavorably, obviously, but this will be the 
last attempt.
    During her confirmation hearings, Justice Sotomayor 
rejected President Obama's so-called empathy standard, stating, 
``We apply the law to facts. We don't apply feelings to 
facts,'' and I assume you would say you agree with Justice 
Sotomayor.
    Ms. D'Agostino. I do completely agree with that statement, 
Senator.
    Senator Grassley. I still may have some questions for 
answer in writing.
    Senator Coons. Thank you, Senator Grassley. There being no 
other Committee Members present, I having no further questions, 
we will hold the record open for a week. Members of the 
Committee can submit further written questions, as Senator 
Grassley indicated he might.
    I also ask, without objection, to submit for the record a 
statement from Chairman Leahy on these judicial nominees and 
the judicial nomination process.
    [The statement appears as a submission for the record.]
    Senator Coons. Again, I want to thank all three of our 
nominees from the second panel today, congratulate you on your 
nominations, on your strong families, and on the strong careers 
you have already had in public service, and express my 
gratitude for your responses to our questions today and for 
your willingness to continue in your careers in public service.
    Thank you all very much. We stand adjourned.
    [Whereupon, at 3:50 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]






 NOMINATIONS OF JIMMIE V. REYNA, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR 
  THE FEDERAL CIRCUIT; JOHN A. KRONSTADT, NOMINEE TO BE U.S. DISTRICT 
  JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; VINCENT L. BRICCETTI, 
  NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW 
YORK; ARENDA L. Wright-Allen, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
 EASTERN DISTRICT OF VIRGINIA; MICHAEL FRANCIS URBANSKI, NOMINEE TO BE 
        U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA

                              ----------                              


                      WEDNESDAY, FEBRUARY 16, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:02 p.m., 
Dirksen Senate Office Building, Room SD-226, Hon. Richard 
Blumenthal presiding.
    Present: Senators Feinstein, Klobuchar, Grassley, and 
Cornyn.

 OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR 
                 FROM THE STATE OF CONNECTICUT

    Senator Blumenthal. I am pleased to call to order this 
hearing of the Committee on the Judiciary and to welcome all of 
you here this afternoon for a very significant proceeding on a 
number of judicial nominees. I want to welcome the nominees and 
their families, and say to you that we are appreciative that 
you're here to support members of your families or friends in 
this very important moment.
    I'm also grateful to Chairman Leahy for giving me the honor 
of chairing this meeting, and to my colleagues for being here 
in support of the nominees from their home States.
    I just want to say, by way of brief opening statement, that 
I am always struck when I return to Connecticut, my home State, 
but how strongly people feel that they want justice done, they 
want the bench of the Federal courts to reflect the highest 
quality and instincts and background. I think we have nominees 
today who are in that tradition. We face many challenges as a 
Nation. Americans want us to work together. They want us to 
fill the vacancies that now exist. There are more than 100 of 
them. That is nearly 1 out of 8 Federal judgeships. Nearly half 
of these vacancies have been declared judicial emergencies. 
Over the last 2 years, quite simply, the Senate has failed to 
keep pace with those vacancies, has not kept pace even with the 
pace of retirements. We want to make sure that we attract the 
best and the brightest to our Federal bench.
    I am impressed. I have been impressed even in the short 
time that I've been in the U.S. Senate by the good faith on 
both sides of the aisle, and I want to welcome Senator 
Grassley, the Ranking Member, here. I appreciate his being 
here.
    But also, all across the political spectrum from all 
branches of government, Chief Justice John Roberts to the 
Attorney General, feeling that we need to begin moving on these 
nominations. And I believe that we are, and that both parties 
will be working together to that end. I look forward to working 
with Senator Grassley, as well as Chairman Leahy and other 
members on both sides of the aisle, to do my part, that we 
continue moving in the right direction, increase the pace of 
nominations and confirmations so that we can fulfill the hopes 
of the American people, that we act to make sure that justice 
is done in this great country.
    So I would again like to welcome the five nominees. We have 
with us today Jimmie Reyna, who has been nominated to be a 
judge on the Federal Circuit Court of Appeals. Mr. Reyna is a 
partner in Williams Mullin, and is an expert in international 
trade. He will be introduced by Senator Cornyn, and Senator 
Cardin, if he is here.
    We would also like to welcome Mr. John Kronstadt, who has 
been nominated to be U.S. District Court for the Central 
District of California. Mr. Kronstadt is currently a Los 
Angeles County Superior Court judge, and previously spent 24 
years in private practice, including 17 years as a partner at 
the firm of Arnold & Porter. He will be introduced by Senator 
Feinstein, his home State Senator.
    I'd also like to welcome Mr. Vincent Briccetti. He's been 
nominated to be on the United States District Court for the 
Southern District of New York. He's currently in private 
practice in his own firm, and he's worked both as a prosecutor 
and a defense lawyer.
    Finally, we also welcome Arenda Wright-Allen, who has been 
nominated to the U.S. District Court for the Eastern District 
of Virginia, and Michael Francis Urbanski, nominated to be U.S. 
District judge for the Western District of Virginia. He is 
currently Supervisory Assistant, Federal Public Defender. Ms. 
Wright-Allen is a former Assistant U.S. Attorney, a former Navy 
JAG officer, and she would be the first African-American woman 
to serve on the District Court in Virginia.
    Mr. Urbanski served as a magistrate judge in the Western 
District of Virginia since 2004, and Ms. Wright-Allen and Mr. 
Urbanski will be introduced by their home State Senators who 
are here with us today, Senator Webb and Senator Warner.
    I would like to yield, now, to Senator Grassley for his 
opening remarks.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Thank you, Mr. Chairman.
    I join the Chairman in welcoming the nominees who are here 
today, and of course with their families and friends. Everybody 
is proud of these nominations for their respective family 
members.
    This week we confirmed two more nominees to vacancies in 
the Federal judiciary. Both of these were what we call judicial 
emergencies. We have now confirmed five nominees during this 
new Congress. We have taken positive action in one way or 
another on nearly half of the 50 judicial nominees submitted 
during this Congress. So we're moving forward, as I indicated I 
would do on consensus nominees.
    On today's agenda are four District Court nominations and 
the U.S. Circuit Judge for the Federal Circuit. Mr. Chairman, I 
will not take time here to repeat the full biographical 
information on our nominees. I was going to take a minute or 
two on each of the nominees, but since what you have already 
said about them and their professional background and what 
they're being appointed to, I'm going to just put that part of 
my remarks in the record.
    But I would like to comment, because of the special nature 
of the Federal Circuit, not about Mr. Reyna, but about the 
circuit. Of course, everybody knows that the nominee has 
significant experience in international trade issues. One of 
the major concerns of the circuit, the Federal Circuit is 
unique among the courts of appeal. It is not geographically 
based, but has nationwide subject matter jurisdiction in 
designated areas. In addition to international trade, the court 
hears cases on patents, trademarks, government contracts, 
certain money claims against the U.S. Government, veterans' 
benefits, and public safety officers' benefit claims.
    Of particular interest to me, because over the last 22 
years I have been very involved in whistle-blower protection 
legislation, is the U.S. Court of Appeals for the Federal 
Circuit having exclusive jurisdiction over cases related to 
Federal personnel matters. That includes exclusive jurisdiction 
over appeals from the Merit System Protection Board, which in 
turn hears whistle-blower cases under the Whistleblower 
Protection Act, and eventually some of those--or many, many, 
many of them--are appealed to this specialized court.
    So I thank you, Mr. Chairman, for your courtesies. Again, I 
welcome and congratulate the nominees.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Blumenthal. Thank you, Senator.
    Now, if I may call on, first, Senator Feinstein to 
introduce Superior Court Judge Kronstadt.

PRESENTATION OF JOHN A. KRONSTADT, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA PRESENT BY HON. 
 DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman. I 
appreciate that. I am obviously very pleased to be here today 
to introduce California Superior Court Judge John Kronstadt to 
the Committee. Judge Kronstadt came to my attention through a 
judicial advisory Committee which I have established. They 
recruit, interview, vet, and advise on nominees. So this 
candidate has been reviewed based on his legal acumen, his 
reputation for skill and professionalism, his breadth of 
personal experience, temperament, and overall commitment to 
excellence in the field of law.
    Judge Kronstadt quickly rose to the top of candidates 
recommended to me by this Committee because he has all of these 
qualities in spades. Since 2002, he has presided as a judge on 
the Superior Court of Los Angeles County. His docket consists 
primarily of civil cases, ranging from employment litigation, 
to contract disputes, to intellectual property and other 
commercial matters. He has overseen some 250 trials, as well as 
countless pre-trial proceedings. In almost 9 years on the 
court, only one of his decisions has ever been reversed. That's 
a good record.
    Within the Los Angeles area, Judge Kronstadt is regarded as 
one of the finest judges on the bench. Fellow judges, 
litigants, and local lawyers describe him as ``incredibly 
smart'', ``very fair'', ``even-tempered'', and ``a hard worker 
who cares an incredible amount about the jury system''.
    Judge Kronstadt also brings a distinguished background in 
private practice, as the Chairman mentioned. Prior to becoming 
a judge, he spent roughly two dozen years as a litigator, 
trying complex civil cases before Federal courts, State courts, 
and administrative agencies. He began his career as an 
associate, and then a partner at the law firm of Arnold & 
Palmer, first in Washington, DC and then in Los Angeles.
    Between years with that firm, he also spent 15 years 
managing his own firm with three colleagues. That was the firm 
of Blanc, Williams, Johnston, and Kronstadt. Judge Kronstadt 
has a bachelor of arts degree from Cornell and a law degree 
from Yale.
    Beyond his educational and professional qualifications, he 
has also shown an impressive dedication to education and the 
teaching of students throughout his career. So since 2002, he 
has spent roughly 1,500 hours as a volunteer with the 
Constitutional Rights Foundation, including serving as the 
foundation's president.
    This is a nonprofit, nonpartisan organization in Los 
Angeles that seeks to educate young people to become active and 
responsible participants in our society, something, Mr. 
Chairman, we sorely need, and to teach them about the 
importance of civic participation in a democratic society. He 
has developed a program for the foundation known as Courtroom 
to Classroom. This facilitates visits by judges to 8th and 11th 
grade public school classrooms throughout the Los Angeles area.
    Judges who volunteer provide copies of the Constitution to 
students and organize mock trial activities to allow them to 
experience constitutional law and the courtroom at a young age. 
He has also organized similar activities as chair of the Los 
Angeles County Superior Court's Community Outreach Committee. 
He has developed a training program for the L.A. County Bar 
Association that has reached over 1,000 new attorneys. So he is 
truly eminently qualified and a very active and good citizen.
    He is here with his wife, who is a fellow judge on the Los 
Angeles Superior Court, and two daughters and a son, which have 
also brought themselves here. I think it's very nice that 
they're here to hear this for their father. So, I thank you 
very much, Mr. Chairman.
    Senator Blumenthal. Thank you, Senator.
    As many of you may know, we're in session this afternoon. 
The Senate is in session, so the Senators who are here to 
introduce the nominees from their States may not be able to 
stay. I know everyone will understand if they have to leave 
after they speak. Thank you very much, Senator.
    Senator Feinstein. Thank you.
    Senator Blumenthal. Senator Cornyn and Senator Cardin, to 
introduce Jimmie Reyna, please.

PRESENTATION JIMMIE V. REYNA, NOMINEE TO BE U.S. CIRCUIT COURT 
  FOR THE FEDERAL CIRCUIT PRESENT BY HON. JOHN CORNYN, A U.S. 
                SENATOR FROM THE STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman, for the 
opportunity to introduce Jimmie Reyna to the Committee, someone 
who I've come to know, admire and respect, and had the 
privilege of, along with Senator Cardin, recommending to the 
President that he nominate him for a seat on the U.S. Court of 
Appeals for the Federal Circuit.
    Based on his personal and professional background, I think 
he possesses the commitment, the skill, and the temperament 
necessary to apply the law faithfully. Mr. Reyna--his personal 
history exemplifies the American ideal of opportunity through 
service and hard work. He was born to Baptist missionaries in 
New Mexico. He battled adversity to graduate as valedictorian 
from his high school class, and earn a scholarship to college 
at the University of Rochester.
    After graduating from law school at the University of New 
Mexico, he came to the Nation's capital with, in his words, 
``no job and a lot of hope''. Well, since then, Mr. Reyna has 
repeatedly put that hope into action and it's paid off.
    Perhaps the strongest testament to Mr. Reyna's abilities 
comes from the trust that others have placed in him. Throughout 
this 32-year legal career, he has consistently been recognized 
as an exceptional attorney by his peers. He has received a 
perfect AV rating from Martindale Hubble, and was distinguished 
as one of the best lawyers in the city of Washington, DC by 
Super Lawyers magazine. Even more impressive, in 2009 the 
Mexican government awarded him the Oakley Award in Law, its 
highest legal honor given to non-citizens.
    Mr. Reyna's legal background has also prepared him to serve 
with distinction on the Federal Circuit. For the past 24 years, 
he has practiced extensively within the field of international 
trade, as Senator Grassley noted, rising to the position on the 
board of directors of the Williams Mullin law firm.
    In addition to his private legal practice, he served on the 
U.S. roster of dispute settlement panelists for trade disputes 
under the North American Free Trade Agreement, and on the World 
Trade Organization dispute settlement mechanism.
    Mr. Reyna has also established himself as a scholar in the 
field of international law, authoring books on both NAFTA and 
GATT. As the former chairs of the American Bar Association's 
Section on International Law have noted, Mr. Reyna has ``an 
impeccable reputation within the international law community''.
    Because the Federal Circuit hears appeals from the U.S. 
Court of International Trade, his broad expertise in this area 
will help the court adjudicate some of the most complex cases 
on its docket. In a system where judicial resources are so 
scarce, his presence on the court will undoubtedly advance the 
interests of justice.
    Mr. Reyna's accolades, however, don't stop at the courtroom 
door. He has demonstrated a lifelong commitment to public 
service. As president of the National Hispanic Bar Association, 
he launched the first-ever outreach program designed to instill 
trust and confidence in the American legal system within the 
immigrant community, and he has worked tirelessly to protect 
some of our society's most vulnerable citizens, serving for 
more than a decade on the board of directors of the Community 
Services for the Autistic Adults and Children Foundation.
    Despite the many demands on his schedule, Mr. Reyna has 
also found the time in his career to practice extensively pro 
bono, helping to ensure that the American value of equal 
justice under law is preserved for all, no matter what their 
income may be. If the true measure of a person is what they are 
willing to do for others in need, then Mr. Reyna has once again 
exceeded all standards.
    Mr. Chairman, based on the impeccable credentials and 
distinguished legal career which I have just outlined here, I 
would urge my colleagues to join me in supporting the 
nomination of Jimmie V. Reyna to the Federal Circuit Court. 
Thank you very much.
    Senator Blumenthal. Thank you, Senator.
    Senator Cardin.

PRESENTATION JIMMIE V. REYNA, NOMINEE TO BE U.S. CIRCUIT COURT 
 FOR THE FEDERAL CIRCUIT PRESENT BY HON. BENJAMIN L. CARDIN, A 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. Mr. Chairman, thank you very much. I'm 
pleased to join Senator Cornyn in recommending and introducing 
Jimmie Reyna to the Judiciary Committee. We are very pleased 
that he has been willing to put his name forward to serve in 
this position, and I thank him for his commitment to public 
service. I want to acknowledge the sacrifice that he and his 
family will be making, and we very much appreciate that 
sacrifice.
    I am pleased to recommend Jimmie Reyna for a vacancy that 
now exists in the U.S. Court of Appeals for the Federal 
Circuit. Mr. Reyna comes to this Committee with 23 years of 
experience in international trade law. You have heard that from 
Senator Grassley and from Senator Cornyn.
    Mr. Reyna currently is a partner in the Washington, DC 
office of Williams Mullin. Mr. Reyna directs the firm's trade 
and custom practice group, as well as the firm's Latin America 
Task Force, and also served for several years on his firm's 
board of directors, where he currently serves as vice 
president.
    Mr. Reyna has also authored several articles and two books 
on international trade issues. His third book on the subject is 
due to be published this spring.
    His experience in trade law would bring important expertise 
to the Federal Circuit, a unique court with nationwide 
jurisdiction that deals with many trade law issues and yet 
currently lacks a trade specialist.
    Mr. Reyna was admitted to the New Mexico Bar in 1979, and 
the District of Columbia Bar in 1994. He received his JD from 
the University of New Mexico School of Law, and his BA from the 
University of Rochester. The American Bar Association's 
Standing Committee on the Federal Judiciary evaluated Mr. 
Reyna's nomination and rated him unanimously ``Well 
Qualified'', the highest possible rating.
    Senator Cornyn has talked about Mr. Reyna's personal 
history, which is very compelling. In his practice, he has 
often represented clients pro bono, devoting a large portion of 
his time to providing advice and representing individuals who 
could not afford legal assistance. To me, that speaks volumes 
of his commitment to our legal system, to make sure everyone 
has access to our system. He has carried out that 
responsibility as a lawyer and leader in the legal community.
    A few years later, Mr. Reyna moved with his family to the 
Washington, DC metro area, where he built his well-regarded 
career in international trade. Mr. Reyna has continuously 
proven that he is an outstanding and civic-minded person. He is 
a well-known national leader in U.S. Hispanic affairs. He has 
held various leadership positions in the Hispanic National Bar 
Association, including the national president, vice president 
of Regional Affairs, regional president, and chair of the 
International Law Committee.
    Mr. Reyna is also a founder and member of the board of 
directors of the U.S.-Mexico Law Institute. Through his work, 
Mr. Reyna has strived to ensure that members of disadvantaged 
communities are informed about the law, that the legal 
community is prepared to handle the legal challenges facing the 
growing Latino community, and that the judiciary remain 
strongly independent, impartial, and accessible to all.
    Mr. Reyna's civil service is not limited to his work in the 
Hispanic community. He has been recognized by the Court of 
International Trade for his extensive pro bono work before that 
court. He also serves on the board of directors of the 
Community Services for Autistic Adults and Children Foundation.
    Mr. Reyna's nomination will also bring much-needed 
diversity to the Federal Circuit. Throughout his career, he has 
shown a strong commitment to diversity and racial equality, not 
only through his service to the Hispanic community, but also 
through his service on the ABA's Presidential Commission on 
Diversity in the Legal Profession, and as chair of the Williams 
Mullin Diversity Committee.
    If Mr. Reyna is confirmed, he will be the first minority to 
serve on the Federal Circuit in its history. With the 
nomination of Mr. Reyna, the Senate has another opportunity to 
further increase diversity on the Federal bench. Because of his 
various qualifications, he has earned and received support from 
various organizations and individuals, including seven former 
chairs of the American Bar Association's Section on 
International Law who wrote an endorsement letter for Mr. 
Reyna, affirming that Mr. Reyna has the professional 
credentials, the experience and skills, the appropriate 
temperament, and the fair and sound judgment to serve on the 
Federal Circuit.
    Mr. Chairman, I would also like to put into the record a 
letter from Congressman Chris Van Holland from Maryland in 
support of Mr. Reyna's confirmation.
    Last, but certainly not least, Mr. Reyna is a resident of 
Silver Spring, Maryland and a constituent of mine.
    I would urge the Committee to favorably consider his 
nomination. I think he will make an excellent addition to the 
Federal bench.
    Senator Blumenthal. Thank you. Without objection, we will 
take your letter, the letter from Representative Van Holland, 
and insert it in the record.
    [The prepared statement of Representative Van Holland 
appears as a submission for the record.]
    Senator Blumenthal. Thank you for being here, both you and 
Senator Cornyn.
    Senators Webb and Warner, if you would introduce both Ms. 
Wright-Allen and Mr. Urbanski, magistrate judge.

  PRESENTATION OF ARENDA L. WRIGHT-ALLEN, NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA AND MICHAEL 
  FRANCIS URBANSKI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
WESTERN DISTRICT OF VIRGINIA PRESENTED BY HON. JIM WEBB, A U.S. 
               SENATOR FROM THE STATE OF VIRGINIA

    Senator Webb. Thank you, Mr. Chairman and Ranking Member 
Grassley, Senator Klobuchar, other members of the Committee. I 
have a longer statement I would ask be entered into the record 
at this point.
    Senator Blumenthal. Without objection.
    [The prepared statement of Senator Webb appears as a 
submission for the record.]
    Senator Webb. Thank you.
    I am pleased to join Senator Mark Warner, my colleague, for 
the purpose of introducing two outstanding attorneys from 
Virginia, Arenda L. Wright-Allen and Judge Michael Urbanski, 
whom the President has nominated for seats on the U.S. District 
Courts for the Eastern and Western Districts of Virginia.
    These two individuals represent the highest degree of 
integrity, competence, and commitment to the rule of law, and 
each in their own way exemplifies the best of the Virginia bar. 
Whenever a vacancy has occurred on the Virginia Federal bench, 
Senator Warner and I have conducted a thorough and extensive 
review of the candidates for the vacant position.
    This review includes interviews, recommendations by 
Virginia's Bar Associations, and in-person interviews with the 
candidates. The candidate pool from which we had to choose this 
time was excellent and deep. It included judges, legal 
scholars, and skilled trial attorneys. Both of the candidates 
before you received the highest rating of the Virginia State 
Bar.
    From this very competitive field, Senator Warner and I 
recommended Ms. Wright-Allen and Judge Urbanski. Ms. Wright-
Allen--let me say this as a former Secretary of the Navy and 
former Marine--I personally appreciate and understand the 
sacrifices that veterans have made to our country, and Ms. 
Wright-Allen is a veteran.
    She initially stood out because of her service in the Navy. 
She served for 5 years as an active duty JAG officer, and 
continued that service as a reserve JAG officer until she 
retired as a Commander in 2005. Her record of service there was 
excellent, and this extensive court experience has been 
valuable, I think, in her follow-on career, and also will serve 
her well as a Federal judge, should she be confirmed.
    Ms. White Allen has dedicated her civilian career to 
serving her community as a Federal prosecutor, and since 2005, 
as a Federal public defender. Unanimously, prosecutors and 
defenders who have worked with her on either side have attested 
to her talent, dedication, and above all her exceptional 
character. Upon meeting Ms. White Allen, it was clear to me 
that she possesses the judicial temperament and dedication to 
make an excellent judge.
    She is joined here today by quite a contingent, including 
her husband, Delroy Anthony Allen, and her son, Yanni Anthony 
Allen. I am sure she is going to want to introduce all those 
people who are with her when she is before you.
    I am very proud to say that our nominees for the Western 
District of Virginia is a product of Virginia's public 
universities. Judge Urbanski graduated from the College of 
William & Mary in 1978, and then from the University of 
Virginia Law School in 1981. He currently served as a 
magistrate judge for the Western District of Virginia. Prior to 
becoming a magistrate judge, he practiced in Roanoke, Virginia 
from 1989 to 2004, and was the head of the litigation section 
at the law firm of Woods & Rogers.
    Judge Urbanski's candidacy was overwhelmingly supported by 
the Bar Associations which he covers as a magistrate judge. He 
has a reputation for dedication, good temperament, and bringing 
energy to his job, which has resulted in the efficient 
administration of justice for many citizens in the Western 
District.
    Prior to becoming a Federal magistrate judge, Judge 
Urbanski earned a reputation as one of the top trial lawyers in 
western Virginia. I'm convinced that he embodies all of the 
talents to become an excellent district judge.
    He is joined today by his wife Ellen, his son Will, his 
mother Irene Urbanski, who is 87 years young, his sister Terry 
McGlennon, his brother-in-law John McGlennon, his nephews 
Andrew and Colin, and he also has a large contingent, I think, 
who have come here today to support him and I am sure he will 
introduce them at the appropriate time.
    So I have every confidence that the Committee will find 
these two very fine citizens' attorneys well qualified for the 
Federal bench and that we can move their nominations forward 
with all due haste.
    I, at this point, would like to yield to my colleague, 
Senator Mark Warner.
    Senator Blumenthal. Thank you, Senator.
    Senator Warner.

  PRESENTATION OF ARENDA L. WRIGHT-ALLEN, NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA AND MICHAEL 
  FRANCIS URBANSKI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 
WESTERN DISTRICT OF VIRGINIA PRESENTED BY HON. MARK R. WARNER, 
           A U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. Thank you, Mr. Chairman. Let me thank 
Senator Leahy and Ranking Member Grassley for the prompt 
scheduling of this hearing, and I'd like to thank Senator 
Klobuchar for being here. I want to commend you, Mr. Chairman, 
Senator Blumenthal, for only being here in the Senate for 45 
days, and yet already chairing a Committee.
    [Laughter.]
    Senator Blumenthal. I haven't blown it yet.
    [Laughter.]
    Senator Warner. It is a remarkable achievement.
    Senator Blumenthal. Thank you, Senator.
    Senator Warner. Let me echo. I'd like to also ask that my 
fuller statement be submitted for the record.
    Senator Blumenthal. Thank you. Without objection.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Senator Warner. Let me echo what my colleague and friend, 
Senator Webb, has said. I am very proud to join with our senior 
Senator, Jim Webb, in introducing Arenda Wright-Allen and Judge 
Michael Urbanski to become, respectively, the next district 
judges from the Eastern District and Western District of 
Virginia.
    As Senator Feinstein mentioned on her process, Senator Webb 
and I have a similar process where we spent a great deal of 
time reviewing candidates. We had the opportunity, with two 
positions open, to see, as Senator Webb indicated, a wide array 
of candidates. These two individuals, both in terms of their 
legal temperament, their background, and quite honestly the 
intangible personal skills, that I think we both agreed will be 
exemplary members of the Federal judiciary. We both are honored 
to recommend them for their appointments.
    As Senator Webb and others have mentioned already, Ms. 
Arenda Wright-Allen will be a groundbreaking nomination. She 
has served our country in the Armed Services as a U.S. Navy 
Judge Advocate General. She also, I think, will bring a unique 
background as someone who has served both as a prosecutor, and 
as a public defender, somebody who has seen our criminal 
justice system and our court system from both sides.
    I also have to say, Senator Webb and I were both taken with 
her strength of personal convictions and very powerful personal 
story as well. So, Senator Webb has gone ahead and noted her 
family members. I know she and Judge Urbanski are anxious to 
get here, as I am sure the other candidates are. But I am very 
proud to join with Senator Webb in her nomination.
    Let me also introduce as well, or re-introduce as well, 
Judge Michael Urbanski. You heard from Senator Webb some of his 
legal background. He started as a law clerk for Hon. James 
Turk, judge, then he served in trial bar, he served in a major 
firm in the Roanoke area. He has been a U.S. magistrate judge 
for the Western District.
    Since Senator Webb went through so many of his other 
attributes, let me just mention some of his attributes outside 
the courtroom. As magistrate judge, Judge Urbanski is 
responsible for managing all the pro se prisoner cases filed in 
the Western District, and working with other judges in the 
region, Judge Urbanski has begun participating in a pilot 
reentry program designed to help assist Federal felons in 
exiting the penitentiary system and making that appropriately 
difficult transition back to society.
    Those programs--on a personal note, I might add--were 
always ones that were sometimes subject to cuts, but I know in 
your previous tenure as attorney general as well, so often 
those programs provide that transition back so that we can 
eliminate or cut back the enormously high rates of recidivism 
in our system.
    In 2008, he went as well into our public schools, 
particularly in the Roanoke area, going through and working at 
the middle school and high school levels, making sure students 
were familiar with the challenges and penalties involved in 
drug trafficking. That program has touched the lives of more 
than 6,000 students.
    Again, like Ms. Wright-Allen, I think he will bring 
extensive practical experience, personal experience, and 
knowing many members of his family, I can vouch that he brings 
the right personal experience as well.
    So I join all of our colleagues and I hope Judge Kronstadt 
from California, Jimmie Reyna from Maryland, joining hopefully 
the Federal Court of Appeals, and these two wonderful 
candidates from Virginia, Ms. Wright-Allen and Judge Urbanksi, 
will be acted upon favorably by the Committee.
    My hope is, again on a personal note, with the kind of 
shortages that you mentioned in your--judicial shortages that 
you mentioned in your opening comments, that this Committee 
will act in a judicious manner, and quick manner on them, and 
that these two very qualified nominees--for that matter, all 
four of these nominees--if your Committee acts favorably, they 
can see their nominations move quickly to the floor and they 
can go ahead and step up and provide the kind of public service 
that I know all four will be able to provide.
    With that, Mr. Chairman, I thank you.
    Senator Blumenthal. Thank you very much, Senator Warner. I 
would like to thank you and the other Senators who have given 
of their time. I know how busy today is. Thank you so much for 
being here, and the others for their excellent introductions as 
well.
    Senator Schumer would have been here to introduce Vincent 
Briccetti, but he was called to the White House. I have a 
statement from him, which I am going to enter into the record, 
if there is no objection.
    [The prepared statement of Senator Schumer appears as a 
submission for the record.]
    Senator Blumenthal. And also a statement from Chairman 
Leahy, who could not be with us as well.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Blumenthal. Vincent Briccetti has been nominated, 
as you know, to be a District judge for the Southern District 
of New York. He was born in Mt. Kisko, and he earned his B.A. 
at Columbia, and then his J.D. from Fordham University of Law, 
where he was articles editor of the Fordham Law Review. He is 
uniquely qualified to serve as a trial court judge because he 
has very extensive experience as a litigator, some years of 
which he spent in Connecticut, as a matter of fact--in 
Stanford, Connecticut--with the law firm of Paul, Hastings, 
Genofsky, & Walker.
    Since 1992, he has worked in private practice in his own 
firm, but he has also served as an Assistant U.S. Attorney in 
the Southern District of New York, and as an associate with 
Townley & Updike in New York, and a law clerk for Judge John 
Canella of the Southern District of New York.
    As I mentioned, I have a statement on behalf of Senator 
Schumer to be entered into the record in support of this 
nomination, and I also have--and I will enter into the record 
as long as there is no objection--letters from others who could 
not be here, including Janet DiFiori, District Attorney for the 
County of Westchester, in support of Mr. Briccetti, and Steven 
Robinson, on behalf of Vincent Briccetti, which I will enter 
into the record, and Bart Schwartz, also in his support.
    [The letters appear as a submission for the record.]
    Senator Blumenthal. So if we can proceed, I would like to 
ask, first, that Jimmie Reyna come forward and we will begin 
with the hearing.
    I am going to ask you to stand and raise your right hand.
    [Whereupon, the nominee was duly sworn.]
    Senator Blumenthal. If you would like to begin with a 
statement, Mr. Reyna, we would be happy to have it.

  STATEMENT OF JIMMIE V. REYNA, NOMINATED TO BE U.S. CIRCUIT 
                 JUDGE FOR THE FEDERAL CIRCUIT

    Mr. Reyna. Yes. Thank you, Senator. It is a privilege to be 
here today, especially this being your first chairmanship of 
this committee. I thank you for the invitation, and I thank 
Senator Leahy and Ranking Member Grassley for scheduling this 
hearing and having me here to testify and participate today.
    Mr. Chair, if I may, I'd like to introduce the members of 
my family.
    Senator Blumenthal. Please do.
    Mr. Reyna. I hope I get everybody. I'd first like to 
introduce my wife, Dolores Ramirez Reyna. She and I, in 2 
weeks, are going to celebrate our 39th anniversary. We got 
married when we were freshmen in college, and we've had two 
wonderful children. My oldest son Jimmie, is autistic and 
couldn't be here today with us. He's got commitments in the 
work that he's doing. My other son, Justin, is here. Justin is 
an attorney licensed in DC. My sister Paz Martinez, from New 
Mexico, is here. My brother Julian Reyna, my sister Lillian 
Chapman. I also have with me some cousins, Margie Martinez, 
Lita McEachern, and Danny Reyna are here.
    There's two individuals who are not here that I'd like to 
speak on, and that is my sister-in-laws, Felicita Ramirez and 
Michelle Reyna. Also not here--physically anyway--are my 
parents and my brother. My parents, as you heard from Senator 
Cornyn, were Baptist missionaries. My father was a migrant 
second-generation American born into a migrant family, and they 
were all migrant workers. My mother was an immigrant from 
Mexico. They met in a seminary in El Paso. They had five 
children, four of whom I introduced to you today.
    We were raised in a very modest environment, but very rich 
in love, the arts, religion, philosophy, literature. All of the 
children are graduates of college. We all played musical 
instruments at one time or the other, though some were much 
more accomplished than others, I being the least accomplished.
    But they taught us many things. My mother would often tell 
me--she'd look at me. Even as a child, she'd look at me and 
say, ``conganas, conganas'', which in Spanish means, ``with 
enthusiasm, with respect, with dignity''. After a while, all 
she had to do was look at me and nod her head at me, and I knew 
what she was telling me.
    My father, to augment family income, would often take us 
out to the fields. All the children here picked cotton. We've 
hoed cotton. We've worked in the onion fields. He taught us 
that all work is honorable. Throughout high school, after 
football practice, or debate, or speech, I would go and I 
always had a job. I'd go do my job after that. Then I'd go 
home, and my dad and I would go out together and we'd clean 
offices. We did that the whole time I was in high school, and 
part of junior high.
    So we talk about the American dream: it's the children that 
live it, it's the parents that dream it. I have no further 
statement, Mr. Chairman. I'm open for questions.
    Senator Blumenthal. Thank you very much. I want to welcome 
you personally to the Committee and really commend and thank 
you for that extraordinary personal story, your professional 
achievements, which are so impressive, and your willingness to 
serve--indeed, all the nominees' willingness to serve--in this 
very challenging and profoundly significant role as a member of 
the bench.
    Let me begin by asking you whether you would please 
describe for this Committee how you see as different the role 
of advocate, which you have been, and the role of judge.
    Mr. Reyna. Yes, Senator. Thank you for the question, 
because it applies directly to me, having been a private 
practitioner going, if confirmed, to the bench. A lawyer is an 
advocate and a lawyer gathers evidence, facts, witnesses, 
information, and prepares all that information to present a 
singular view. That view is either to attack or defend clients' 
interests, to advance, perhaps to give counsel on, say, an 
investment on an adoption. So an attorney is an advocate and is 
zealous in that advocacy.
    A judge, on the other hand, has no personal point of view 
as to points of litigation. I believe that a judge, at the 
courthouse door, checks personal feelings and personal biases, 
or perhaps an idea that a judge may have about a particular 
issue that is involved in the litigation or the case. I think 
that the role of a judge is to be unbiased, to be objective, 
and to apply the applicable law to the facts and to be just in 
his or her work.
    Senator Blumenthal. Thank you. We've heard, and clearly you 
have had, a very significant experience in international law. I 
wonder if you could describe for the Committee how that 
experience would be of benefit to you in the role that you 
would have.
    Mr. Reyna. As we heard from Senator Grassley, and also 
Senator Cornyn and Senator Cardin, the jurisdiction of the 
Court of Appeals for the Federal Circuit includes international 
trade appeals that are taken up from the Court of International 
Trade in New York, and cases that also come up out of the U.S. 
International Trade Commission.
    In the past 23 years I have specialized in international 
trade and all aspects of international trade, I think that my 
work on antidumping cases, countervailing duty cases, Customs 
cases, investment, all laws and regulations that affect the 
cross-border movement of goods, services and individuals, I 
think that that experience will serve me well on the Federal 
Circuit and will bring valuable experience to the court.
    Senator Blumenthal. Thank you.
    You know, there has been some reference here about the 
importance of diversity on the bench. I know that you have 
worked for diversity, particularly in bringing the Hispanic 
community into the Bar. I wonder if you could reflect for the 
Committee what more can, and should, be done to increase the 
diversity of the Bar, and perhaps even what you might do as a 
role model, but also in other ways as a member of the bench.
    Mr. Reyna. I've been involved in diversity issues, I guess, 
since college and then through law school. Within the past 
decade or so, I've been involved in diversity issues and the 
judiciary, unbeknownst at that time that I would be sitting 
here before you today.
    I think that diversity on the judiciary is extremely 
important and I think it's vital to our judiciary and our 
system of justice. I think what can be done more, is part of 
the work that I did, I undertook as president of the Hispanic 
National Bar Association and the work that I did within the 
American Bar Association, and that is to help repair excellent 
practitioners of all walks of life so that they may be prepared 
to someday be judges.
    Senator Blumenthal. And finally, if you could tell us a 
little bit about the pro bono work that you've done. There's 
been some mention of it by Senators Cornyn and Cardin, and 
Senator Grassley. I wonder if you could describe in a little 
bit more detail what you've done by way of pro bono work.
    Mr. Reyna. As a solo practitioner in Albuquerque, New 
Mexico, I found out that there is no end of pro bono clients. 
If you open your door, a line will form of individuals that 
need legal help but cannot pay for it. I undertook quite a bit, 
maybe a little bit more than I could have afforded, but I took 
on a lot of pro bono work at that time.
    Most recently, the Court of International Trade has 
commended me three different times for taking on pro bono cases 
that I've been requested by the court to handle, and the 
representation, for example, 53 women in Pennsylvania who lost 
their work because of the closing of the factory due to the 
production being moved abroad under the Trade Adjustment Act 
and laws of the United States. So I've devoted a lot of time, a 
lot of my energy and career toward pro bono work.
    Senator Blumenthal. Thank you.
    I'm going to yield to Senator Grassley.
    Senator Grassley. Yes. I'm going to touch on this issue of 
whistle-blowers that the court has jurisdiction of. I know you 
might not have a lot of experience in that area, but you're 
going to be called upon to make some decisions.
    As a person that sponsored whistle-blower legislation back 
to 1989, and I have a great faith in most whistle-blowers 
helping make government more transparent and accountable, and 
consequently a source of information sometimes to make sure 
that government is doing what it's supposed to do.
    I noticed that throughout the history of the Federal 
Circuit being involved in whistle-blower cases, they decided 
219 cases involving the Federal Government whistle-blowers and 
it found in favor of the whistle-blowers in only 3 of those 
cases. I'm not condemning or making any judgment based on it, 
except it just seems a little bit far-fetched that whistle-
blowers will only win in 3 out of 219 cases.
    But anyway, one of the things that I want to ask a question 
about is a standard that they set in the LaChance v. White case 
in 1999. In that case, the Federal Circuit held that a whistle-
blower had to present irrefragable proof--I-R-R-E-F-R-A-G-A-B-
L-E--that wrongdoing actually occurred in order to prove the 
claim.
    Senator Klobuchar. They use that term all the time in Iowa. 
Is that right, Senator Grassley?
    [Laughter.]
    Senator Grassley. I was about to say the opposite.
    [Laughter.]
    Senator Grassley. It's a whole new standard that I haven't 
seen anyplace else. I think I know what they mean.
    So to get to some discussion with you, in reviewing your 
questionnaire it appears that you've had little, if any, 
experience with whistle-blower law or any Federal personnel 
law. Considering that the Federal Circuit has exclusive 
jurisdiction over these cases, what, if any, experience do you 
have with the whistle-blower protection law?
    Mr. Reyna. Thank you, Senator. I think one of the best-kept 
secrets in U.S. law, that you've been a champion of whistle-
blowers for so long. The whistle-blower laws that we have in 
place are a direct part of the work that you've done, and I 
think the country owes you gratitude for that.
    That said, if confirmed, as a judge on the Federal Circuit, 
I would approach every whistle-blower case that would come 
before me with utmost importance, and I would apply the law, 
the applicable law, to the facts. I would see to arrive at a 
just and a very expedient decision. I say ``expedient'' because 
we're talking about American workers and we're talking about 
workers that have given their time and energy and work for the 
Federal Government. It's important that their matters be 
resolved quickly.
    Now, as to the standard that you just articulated, that is 
a new word to me, too. In New Mexico, we do not have that word 
as well.
    [Laughter.]
    Mr. Reyna. However, I will, as a judge on the Federal 
Circuit, apply the precedent that exists when reviewing 
whistle-blower cases, and I will also apply the law that exists 
within the whistle-blower statutes. I can confirm this to you, 
Senator, that in the cases that I adjudicate, I will seek to 
provide clarity and guidance for future litigants and for our 
American workers in the government.
    Senator Grassley. OK. In the inaugural issue of the 
Hispanic National Bar Association Journal of Law and Policies, 
I quote you: ``We often hear that the U.S. Constitution is a 
living document, and as attorneys we recognize that the law can 
both lag behind social development and accelerate change.''
    Do you personally believe the Constitution is a living 
document, and if so, what does it mean for the Constitution to 
be a living document?
    Senator Grassley. Thank you, Senator. The quote that you 
read, I wrote as the senior editor of the Hispanic Bar 
Association Journal of Law and Policy. I'm the senior editor of 
that and I helped found that journal. I wrote that and I said 
we often hear--and we do. We hear many people claim that the 
Constitution is a living document, and we hear many different 
attributes made and labels placed on the Constitution.
    What I was doing in that editorial comment, is I was 
calling attention and calling to action the purpose of the 
journal, and that is to serve as a catalyst for an exchange of 
legal ideas so that lawyers, legal scholars, regulators, and 
academics could gather together and have a free-flow exchange 
of ideas. So I was advocating, and I was advocating as an 
editor when I wrote those words. If confirmed as a judge on the 
Federal Circuit, I will not be an advocate and I would decide 
cases in an impartial and objective manner.
    As to the term ``living'', what that means--living 
Constitution, I believe that the Constitution stands on its own 
text. I think that the Constitution says what it says, and I 
believe that, as a result of that, over the 200 years of the 
history of our country, the Supreme Court has built a case of 
precedent, and there's been case law that has developed over 
time. If confirmed, I will--and cases come before me.
    And if those cases involved constitutional issues, the 
constitutionality of a statute, I will first apply the 
precedent, then I will apply the text, and then I will apply 
the law, or perhaps even look at the purpose of the originators 
of the Constitution. But at all times I will approach every 
matter involving the constitutionality of any statute with the 
utmost seriousness and I will confine any opinion I'm involved 
in to the breadth of the statute and to the breadth of the 
issues that are before us in a very confined, narrow sense.
    Senator Grassley. Thank you, Mr. Chairman.
    Senator Blumenthal. Thank you, Senator Grassley.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Chairman Blumenthal 
and Senator Grassley, for holding this hearing. We're glad, by 
the way, Senator Blumenthal, that you're on this Committee.
    Senator Blumenthal. Thank you.
    Senator Klobuchar. And I want to thank all of our nominees 
for being here. You all have such impressive backgrounds. I was 
fortunate enough to be introduced to Mr. Reyna last year by 
Peter Reyes, who is an intellectual property lawyer at Cargill 
in Minnesota. I think you know you have many friends in our 
State.
    Mr. Reyna. Yes.
    Senator Klobuchar. So we're glad you're here today.
    I just, as someone who came who was in private practice 
like yourself for quite awhile--I was in it, I think, for 14 
years, and you were in it for 30 years. Is that correct, Mr. 
Reyna?
    Mr. Reyna. Yes. I've always been in private practice.
    Senator Klobuchar. Could you talk about how you expect that 
to be a useful experience on the bench, having come from the 
private sector?
    Mr. Reyna. Yes. In fact, Senator--and thank you for the 
question--my legal career has been very diverse. I've handled a 
lot of different types of cases. One of my most memorable cases 
is an adoption, for example, where afterwards when the court 
approved the adoption, a very simple, basic legal procedure, 
out in the hallway the family surrounded me and cried. That 
case gave me an understanding of the power in the law, the 
power to bind families. Since then, I've also represented large 
corporations. I've represented a whole broad range of clients. 
I think that being a private practitioner appearing before 
courts gives me a very unique perspective.
    I understand what it is private practitioners want, what 
they seek when they appear before a court. They seek a just and 
a very speedy resolution. If confirmed, one of the things that 
I'll work for, Senator Klobuchar, is to ensure that I give 
respect to all the litigants, give them all an opportunity to 
be heard, and that I will work to have an expedient resolution.
    Senator Klobuchar. Very good. And I know that Senator 
Blumenthal asked you, and Senator Grassley also mentioned your 
experience as head of the National Hispanic Bar, which I think 
you said you were president from 2006 to 2007, and you talked a 
little bit with Senator Blumenthal about the diversity issues.
    But what in that experience, as well as your experience in 
the private sector, has led you to think what is the greatest 
challenge that the Federal courts are facing? I'm going to be 
taking over the Subcommittee on courts in this Committee with 
Senator Grassley. I was just curious, just from your 
perspective as a leader in the National Bar, as well as your 
work before the courts, what you see as the biggest challenge 
as we move ahead.
    Mr. Reyna. Thank you, Senator. I believe that there are 
many--or a good number--of very significant challenges facing 
the judiciary. One of them I will address, since you alluded to 
it, is diversity. I think that diversification of diversity in 
the judiciary is extremely important. I started working on this 
particular issue in conjunction with work I was doing with the 
Sandra Day O'Connor initiative on a fair and impartial 
judiciary.
    I also believe that the judiciary must arrive at more 
expedient resolutions. It's taken a long time for the litigants 
to get a case decided. Litigants--and I say this as a private 
practitioner--represent clients whose businesses often could be 
at peril or depend on the outcome of a case. The community, the 
legal community and society as a whole, depends very much on 
the guidance that courts give when they render a decision. So 
those are two factors that I think are important challenges to 
the judiciary.
    Senator Klobuchar. Two challenges we also have in the U.S. 
Senate, I could add. Not that it's taking too long to do the 
nominations process. But my last question just would be, you 
did such a beautiful job of talking about your family and your 
parents and what they meant to you, and you talked about your 
mother's advice about showing respect and showing enthusiasm 
for what you do. But what do you think will be your biggest 
thing that you remember from the advice from your parents and 
your background that you'll take to the bench in terms of your 
own background, and what has that meant to you as a judge?
    Mr. Reyna. Again, I grew up in a religious household. The 
faith that my parents had exists in all the children and 
everybody behind me. I think with that comes with having 
respect and dignity to everyone that you deal with. Yesterday, 
I was walking down the street on 16th Street and the doorman of 
a building called me over and introduced me to his sister. What 
he said is, this man, I don't know his name, but he's been 
walking past this door for the past 20 years and we've been 
saying hi to each other, and I want you to meet my sister. He 
introduced us.
    The reason that happened is because it's true, I would walk 
by there and for the past 20 years, I see him standing there 
and we say hi. He says hi and he's looking at me. I think that 
springs from my parents, the value that every human being has 
within them the capacity to give respect to others, but more 
than that, that we all merit the respect and dignity of each 
other, whether we do this in government, whether we do this in 
our family lives, or whether we do this on our own.
    Senator Klobuchar. Thank you very much.
    Mr. Reyna. Thank you.
    Senator Blumenthal. Thank you, Senator Klobuchar.
    I believe there are no further questions of Mr. Reyna, so 
thank you very much for being here today. We're going to move 
on to the second panel. Again, thank you to you and your 
family.
    Mr. Reyna. Thank you, Mr. Chairman.
    Senator Blumenthal. Congratulations on your anniversary.
    Mr. Reyna. Thank you very much.
    Senator Blumenthal. If you would please come forward, and 
your name tags will indicate the order in which you are to 
speak.
    If you would raise your right hand.
    [Whereupon, the nominees were duly sworn.]
    [The biographical Information follows.]



    
    Senator Blumenthal. Please be seated.
    If we could go in order. Perhaps we will begin with Judge 
Kronstadt, if you have an opening statement.

 STATEMENT OF JOHN A. KRONSTADT, NOMINATED TO BE U.S. DISTRICT 
          JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Judge Kronstadt. Good afternoon. Thank you very much, 
Senator Blumenthal and Senator Grassley, for seeing us today--
seeing me today. I'm honored to be here.
    I also wish to thank President Obama for placing my name 
before the Senate, and wish to thank Senator Feinstein for 
speaking on my behalf today with her very generous remarks.
    If I may, I have some family and friends present whom I'd 
like to introduce.
    Senator Blumenthal. And I should just interrupt you to say, 
if any of your families would like to move to the chairs that 
have now been opened, you should feel welcome to do so, or you 
can stay where you are, whichever you'd prefer. I'm sorry to 
interrupt. Go ahead.
    Judge Kronstadt. No. Thank you.
    With me today is my wife, Judge Helen Bendix of the Los 
Angeles County Superior Court, who was mentioned earlier by 
Senator Feinstein. I can assure you that without Judge Bendix, 
my wife, I would not be here today. We were college mates, we 
were law school classmates, and we've been life mates a little 
more than 36 years. I think that says it all. I would 
definitely not be here without her support.
    Also present, and we're very proud of each of our children. 
All three of our children have traveled to Washington today 
from various points in the United States, and we're pleased and 
thrilled they're all here: our daughter Jessica, a lawyer in 
Los Angeles; our son Eric, who's a graduate student in 
California; and our daughter Nicola, who's an undergraduate 
student here on the East Coast, all have made the trip. And 
again, I thank you all for coming. I'm honored. You've made our 
lives far richer.
    Also here are some other family members, my cousins, Nancy 
Kronstadt, Denise Kronstadt. Denise has traveled from New York 
and Nancy lives here in Washington. I'm grateful for their 
being here, as they are reminders of the wonderful generation 
before ours who guided us through our lives.
    Also present are some good friends, Mike Klein, Joan Fabry. 
I'm grateful for their support today. Jeffrey Kaplan, a law 
school classmate of my wife's and mine, is also here. I'm 
grateful for that. Allison Teeter is present, and her husband 
Glen. Allison is a close family member. I'm grateful for her 
traveling several hours today from West Virginia to be here.
    There are also some who are not here, who couldn't be here. 
My sisters are not here. I wish they had been here, but they're 
not able to be here today. My aunts, who are both the links to 
my parents--my father's sister and my mother's sister are here 
in my mind, and may be watching on the webcast; I hope so. I'm 
grateful for them and their support.
    And I'm also reminded, based on some earlier comments of 
some others, obviously, who are my parents, neither of whom is 
alive today. But obviously without them I would not be here. 
Each was the child of immigrants, each was the first person in 
his or her family to go to college, and each contributed to the 
life that I've led. My mother, who died more than a half 
century ago, adhered to the view that whatever you start, 
finish in style. That's an adage that I've tried to follow and 
I've tried to pass on to our children.
    My father, who raised the three of us as a single parent 
for much of our lives, or growing up lives, was a very 
accomplished and terrific professional and a wonderful father. 
So I think of them too, because without them I certainly would 
not be here today. So I'm very grateful, and thank you very 
much.
    Senator Blumenthal. Thank you.
    Mr. Briccetti.
    Judge Kronstadt. Oh, excuse me. I missed--I overlooked 
someone. My daughter Jessica's friend, Will Turner, also 
traveled from afar to be here. I apologize.
    [Laughter.]
    Senator Blumenthal. Thank you.
    Mr. Briccetti.
    [The biographical Information follows.]



    
    STATEMENT OF VINCENT L. BRICCETTI, NOMINATED TO BE U.S. 
      DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK

    Mr. Briccetti. Thank you, Mr. Chairman. I, too, would like 
to express my thank you to President Obama for nominating me to 
this position and showing confidence in me. I'd like to thank 
Senator Schumer for recommending me to the President, and for 
his remarks which I understand are included in the written 
record. I also thank Senator Gillebrand for her support as 
well.
    If I may introduce my friends and family that are there, 
Mr. Chairman. First of all, my wife Grace, of 32 years, a not 
only wonderful, but extremely wise woman who has put up with me 
for all these years. That maybe wasn't so wise, but in any 
event, she's here. Two of our three adult children are here. My 
oldest child, Christi, is here. She's a very hardworking young 
lawyer in New York City and managed to sneak out of the office 
for the day and come down to Washington for this hearing. My 
youngest child, Tom, is here. He's a senior at Syracuse 
University and made the trip as well, and I'm just incredibly 
delighted that he did that.
    My middle child, my third child, is not here. That's 
Leslie. She's not here because she's serving her country as a 
Peace Corps volunteer in Central America, where she has 
completed almost 2 years of service, has a few more months to 
go. Leslie told me that she's going to try to make her way to 
an Internet connection--she doesn't have one where she lives--
and watch the webcast. So if she's watching, we miss you, Les.
    Also present today is my mother, Emanuela Briccetti, to 
whom I owe everything. I'm not sure what else I could say. She 
is a member of the greatest generation, a nurse, and worked for 
many years with the Postal Service. I'm just incredibly pleased 
that she could be here today.
    My brother Mario has made his way here from his home in 
Indiana. He's my big brother, so he thinks that he's the person 
to whom I owe everything, but actually it's my mother. But I am 
delighted that Mario is here. And my sister Louisa, who lives 
in Manhattan with her family, is here with her family, her 
husband, my brother-in-law, Jonathan Brill, and their children 
Caroline and Ken Brill. Caroline actually had the shortest trip 
because she's a college student here in Washington.
    I found out about 5 minutes before the hearing began that 
my father-in-law, Bob Merritt from South Hadley, Massachusetts, 
is here. He does have a bit of a sense of humor and didn't 
bother to tell anybody that he was coming. It's true. He's a 
World War II veteran and another member of the greatest 
generation, and I'm incredibly touched that he's here.
    My mother-in-law, Pat Merritt, unfortunately is not here 
because she's a little bit under the weather, but my in-laws 
have been wonderful to me from the moment I met their beautiful 
daughter. I'm just thrilled that Bob, at least, is here. I know 
Pat is watching.
    Finally, I think--I hope I didn't leave anybody else. But 
finally, my very dear friend of more than 30 years, Ruth 
Raisfeld, is here. Ruth and I were classmates at Fordham Law 
School. We were co-editors of the Law Review. She's been an 
amazing loyal and wonderful friend for many years and she is 
here today. I'm just so delighted that she's here.
    I would like to mention one person who's not physically 
present, which is my dad, Angelo Briccetti. My dad is--both my 
parents were children of Italian immigrants. My dad is, and has 
always been, my greatest role model and will continue to be for 
as long as I live. He learned to speak English when he went to 
school. He didn't know it before that.
    Although he was an A student, when he was a senior in high 
school his dad, my grandfather, fell on the ice and broke his 
arm and so he couldn't cut meat anymore, and they were in the 
meat business, so he turned to his son, my father, and said, 
OK, no more school, you've got to work with me, and he did. He 
didn't finish school. I've seen his transcript, so I know he 
was an A student. What my father has taught me, and my mother 
as well--I was going to say, my father was the quintessential 
working man. He worked, well, 7 days a week for my entire 
growing up. Every other Tuesday afternoon he would take off and 
his brother would take the other every other Tuesday afternoon 
off.
    That's a very great example to set for one's children and 
grandchildren. And my mother as well has always worked. What I 
learned from them is the value of hard work and the necessity 
of being determined. So I'm delighted that my mother is here, 
and I certainly feel my father's presence as well. Thank you.
    Senator Blumenthal. Thank you, Mr. Briccetti.
    Ms. Wright-Allen.
    [The biographical information follows.]



    
   STATEMENT OF ARENDA L. WRIGHT-ALLEN, NOMINATED TO BE U.S. 
      DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA

    Ms. Wright-Allen. Thank you, Senator, Senator Grassley. I 
want to thank you both again for allowing me to be here this 
afternoon. I first have to thank God, because it's clear to me 
that if it weren't for him I would not be here. I'd also like 
to thank Senator Warner and Senator Webb and the members of 
their staff. It was an honor and I enjoyed the process. I also 
want to thank President Obama and his staff, and I enjoyed that 
process as well.
    There are several family members and dear friends that are 
with me in spirit, even though they're not here physically. 
First, would be my father, Reuben E. Wright. He's deceased, but 
he's in heaven and there's no doubt in my mind he's with me 
this afternoon. My mother. Her name is Jewel Wright, and she's 
in Philadelphia and she's caring for my stepfather, Roger 
Wilson, who is 90 years old. So they're not here with me 
physically, but in spirit they are.
    I'd also like to thank my in-laws, and they're either in 
Jamaica, England, Florida or New York. They're all pretty old, 
but they're rich people and I love them. So I want to thank 
them for all the support that they've given me throughout my 23 
years of marriage.
    I'd also like to thank the Assistant U.S. Attorneys in the 
Western District of Virginia, as well as in the Eastern 
District of Virginia. That would be from 1990 until December of 
2005. They know who they are, and they are part of my family 
and they are my friends. But for their friendship and 
leadership, I wouldn't be sitting here today as well. And I'd 
also like to thank all the Federal agents that I worked with 
since 1990, and they know who they are as well.
    I'd like to thank Frank Dunham. He's deceased and he's in 
heaven now, but he's the first Federal public defender for the 
Eastern District of Virginia, and he's the one that rekindled 
my interest to do defense work when he opened up the office, so 
I'd like to thank Frank Dunham.
    Then my current supervisor, Michael Nackmenoff. He sits in 
Alexandria, Virginia and I'd like to thank him, as well as all 
my colleagues down in the Norfolk Federal Public Defenders 
Office.
    I'd like to thank my church, First Presbyterian Church of 
Norfolk, as well as my neighbors on Bonitop Garden, and then 
also a dear friend, Walt Kelly.
    Senator, if I may, I have some family and friends that are 
present with me physically. First, is my son Yanni. He's 
probably a young African-American boy, 14 years, in the 
audience. He's right there in the blue shirt. He's 14. He goes 
to Norfolk Christian, and he's quite the accomplished drummer. 
We named him after a musician, Yanni, who's a Greek musician 
that my husband and I followed, because of his diverse band and 
his diverse orchestra, for about 30 years.
    Also, there's a seat here for my other child, Niall Anthony 
Allen. I have to say, it was so wonderful to be here this 
afternoon and hear the word ``autism'' three times from three 
different people. So, Niall is 11. He cannot be with us this 
afternoon because he's autistic, but his unconditional great 
gift of love is present with me this afternoon, so I'm 
introducing everyone to him as well.
    My husband Delroy is sitting right there in the blue and 
green-striped shirt. I met him when I was 17 years old at 
Jacksonville University down in Jacksonville, Florida, and we 
were pen pals for 12 years before we dated for 2 months, and 
then married for 7 years before we had our two children. So he 
is a friend, then a brother, then my boyfriend, my husband, and 
now the perfect father of my two children. He left the 
employment field 12 years ago when Niall was diagnosed with 
autism to take care of my two boys, and he's the love of my 
life. So, thank you for being here.
    Also, Rob Seidel is the gentleman that's waving there, and 
he is my friend, but I met him as a mentor at the U.S. 
Attorney's Office in the Eastern District of Virginia back in 
1990 when I joined that office. So it's Rob who taught me to 
respect the law and understand the law and to work hard, and I 
never wanted to disappoint him. So I would always do that 
before I would go to him for questions, and there's no question 
that I wouldn't be here if it weren't for him.
    Jannie Bazemore is the second lady back behind me in the 
black suit with a blue blouse. She's been working as a public 
servant in the Civil Rights Department first, then with the 
U.S. Attorney's Office for 42 years now, and she's a lawyer's 
lawyer and a dear friend and so I'd like to recognize her.
    My pastor is here, James Wood, the guy with the white hair 
and tanned. He's my dear friend, and next to my husband, 
probably the closest man in my life.
    Mr. James Metcalfe is here. He's a retired Assistant U.S. 
Attorney for 30 years, and he also is a retired Naval Captain, 
30 years, and he's a workhorse. He retired last year from the 
U.S. Attorney's Office after 30 years, and he still goes back 
in to the office as an unpaid Special Assistant U.S. Attorney 
to do the people's work. So, thank you, Mr. Metcalfe, for being 
here.
    John Pearson is right there in the light purple tie, and 
he's a friend from the church. He just retired last May after 
serving 30 years at Wilcox & Savage. We're in a small group 
together.
    Then last but not least, is Chuck Rosenberg. Chuck is a 
friend of mine. When I was pregnant, his wife loaned me her 
maternity clothes. He was an Assistant U.S. Attorney. He rose 
to the ranks to be the U.S. Attorney for the Eastern District 
of Virginia, and he's currently in private practice. Those are 
all the folks that I'd like to introduce to you, and I have no 
other statement to make.
    Senator Blumenthal. Thank you very much.
    Ms. Wright-Allen. Thank you.
    [The biographical information follows.]



    
    Senator Blumenthal. Judge Urbanski.

  STATEMENT OF MICHAEL FRANCIS URBANSKI, NOMINATED TO BE U.S. 
      DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA

    Judge Urbanski. Thank you, Senator Blumenthal, Ranking 
Member Senator Grassley, for convening this hearing and for 
considering this nomination. I'd like to thank Senators Webb 
and Warner for their kind introduction and for the courtesy and 
consideration their staff and they have shown me throughout 
this process. I appreciate the confidence that the President 
has shown in me in this nomination.
    Before I introduce the many folks I have with me, I'm 
mindful of those who have come before me. Both of my 
grandfathers came over on a boat and were coal miners in 
eastern Pennsylvania for their whole lives. My dad was a career 
Army officer, served in World War II in China. My mother-in-
law, Jane Givens, school teacher and town council person. Both 
my dad and my mother-in-law taught me the importance of public 
service and duty.
    I have here with me a few folks I'd like to introduce. 
First and foremost, and I'd like them to come forward and sit 
behind me, is my wife Ellen, of 28 years, is my best friend, 
the love of my life, and she keeps my grounded.
    My son Will is here. Will is a computer security analyst at 
Virginia Tech, and a graduate student. He is here with me 
today. My daughter Sarah could not be here with us. My daughter 
Sarah is a senior education major at Emery & Henry College. She 
is doing something today that I daresay is a daunting 
proposition: she's doing a student teaching practicum at a 
middle school in southwestern Virginia. So, hello, Sarah. I 
hope you're watching us.
    My mom is here. My mom is 87 years old, Irene Urbanski. 
There she is. She's told me about five times today that my dad 
would be proud of me. Well, I'm proud of my mom and she has 
taught me the duty of hard work and service. My sister Terry is 
here, Terry MacGlennon. She's a public school teacher. My 
brother-in-law, John MacGlennon, is the Chairman of the 
Department of Government at the College of William and Mary. He 
has told me he's going to grade me after this session here 
today. Their two sons, Andrew and Colin, are also here. They're 
both at William & Mary in college.
    I have five present and former law clerks with me. We had 
lunch before this session. I have to tell you, they gave me a 
lot of grief. They're justifiably proud of that. I have my 
career law clerk, Kristin Johnson, who is a tremendous asset to 
me. She's here. Kristin, if you would stand up.
    [Laughter.]
    Mr. Urbanski. Mike Showalter, who was my law clerk, 
practices law in Chicago. He flew in for this today. Thank you, 
Mike. Stacy Bordick, my law clerk, and her husband Chet who's 
here today as well. Stacy practices in Fredericksburg. Thank 
you, Stacy. Usri Omar practices down the street with a law firm 
here in Washington. Thank you, Usri. And Ern Ashwell practices 
with a law firm in Roanoke. She is also here as well.
    My court team, the two deputy clerks who I work with every 
single day, Becky Mills and Kristin Airsman, took a day off 
from work, took the train up here from Roanoke, and are here 
with me today to give me support. I rely on them every day and 
I'm grateful for their support.
    A good friend of ours, Mary Kingsley. An old friend, an old 
neighbor, is here to support me as well. We had dinner last 
night and I thank her for being here.
    Last but not least, my judicial assistant, Sue DePugh, 
could not be here today. Sue has been with me for 27 years. She 
has put up with me from a young lawyer to an older lawyer, and 
she has taught me so much about being a person, and a lawyer, 
and now a judge. Sue can't be here, her husband is recovering 
from hip surgery, but I wanted to acknowledge her and give her 
credit for all she has done for me. Thank you, Senator.
    Senator Blumenthal. Thank you. Thank you to each of you for 
those very compelling stories and for the pride and gratitude 
that you have for your families and loved ones and friends. I'm 
certainly impressed as I listen to you.
    [The biographical information follows.]



    
    I have just a few questions, and then we'll turn to Senator 
Grassley.
    First, to Judge Kronstadt, as you know, your jurisdiction 
on the U.S. District Court would be criminal as well as civil. 
I believe that your authority now is primarily, if not 
exclusively, civil. I wonder if you could tell us a little bit 
about how you would prepare yourself in how you see your past 
experience as being relevant and important to being on the U.S. 
District Court.
    Judge Kronstadt. Thank you, Senator. During the first, 
about one year that I was a judge in the Los Angeles County 
Superior Court, I oversaw criminal cases, I oversaw preliminary 
hearings, I oversaw criminal trials and misdemeanors. I oversaw 
a number of criminal-related motions, both pre-trial, during 
time, and post-trial. I handled search warrants, probable cause 
determinations, and other things. Now, during that time it as a 
learning experience. I had to work hard to learn the areas with 
which I was not familiar. I think I would apply exactly the 
same energy and approach to the criminal issues that will come 
before me, if confirmed. I'll work hard. I'll learn what I 
don't know and try to master that area.
    Senator Blumenthal. Thank you.
    Mr. Briccetti, you've made some comments, I believe, about 
Federal sentencing guidelines. I wonder if you could tell the 
Committee what your role was in making those comments and how 
you feel about the current sentencing process.
    Mr. Briccetti. Thank you for the question, Senator. I think 
I failed to thank the Chairman and the Ranking Member for 
holding the hearing and allowing me to appear when I was 
thanking various people.
    Sentencing guidelines. Well, I've had a lot of experience 
with the sentencing guidelines since really the moment they 
were enacted back in the 1980s, and they were litigated for a 
while and then eventually the Supreme Court, in the Mistretta 
case in 1989 determined that the guidelines were 
constitutional.
    At the time I was Deputy Chief Appellate Attorney at the 
U.S. Attorney's Office, and the U.S. Attorney at the time asked 
me if I would be the point man within the office to essentially 
figure out how these things work and teach the other attorneys 
in the office about it. So I've had a lot of experience with 
them.
    Of course they've changed over the years, and the biggest 
change that's occurred occurred in 2005, about 5 years ago 
exactly, because I think it was February of 2005 when the 
Supreme Court decided that the Booker case, which basically 
concluded that the guidelines were constitutional, but that 
they should no longer be mandatory. In other words, once a 
guideline range was determined, a District judge would have to 
consider the guideline, but would also have some measure of 
discretion to impose a sentence outside the guideline range.
    I have spoken on more than one CLE panel about the 
guidelines. I think it was in 2002, I was invited by the Second 
Circuit Judicial Conference to sit on a panel, and there were 
several judges, including the then-chairman of the Sentencing 
Commission, Judge Sessions from Vermont was on that panel.
    One of the things that Judge Newman from the Second 
Circuit, who chaired the panel, wanted to know--because he said 
the members of the audience, which were all judges, wanted to 
know--they wanted to know about whether there were times when 
sentencing judges were not being given all the facts relating 
to sentencing.
    The members of the panel, including myself, generally 
agreed that that was true from time to time. Again, at the time 
the guidelines were mandatory and, therefore, by definition, 
somewhat rigid. Most lawyers, in my experience--not just 
defense lawyers, but prosecutors, including when I was a 
prosecutor--want to try and negotiate pleas in most cases, and 
because of the rigidity of the mandatory guidelines, it made it 
difficult to do that.
    So what would happen, is that both sides would negotiate in 
good faith--there's no bad faith involved, not in my 
experience, anyway--and agree on certain facts. That did have 
the tendency from time to time to perhaps keep some of the 
relevant facts--arguably relevant facts, I suppose--from the 
sentencing court. But it was done by both prosecutors and 
defense lawyers in not all cases, in some cases, in order to 
achieve a just outcome, an outcome that was agreed upon by both 
sides, and also agreed upon by the judge.
    So I did make comments along those lines at that time which 
were generally agreed with by the assembled judges and 
attendants. The relevance of Booker, of course, is that Booker 
changes that whole rubric in the sense that they're no longer 
mandatory. Now, I've always thought the guidelines were good in 
the sense that they were guidelines and that they would tend to 
reduce the disparity amongst sentences for similarly situated 
defendants, no matter which judge imposed sentence or where in 
the country that sentence was imposed.
    Under Booker, that goal of the guidelines is definitely 
still in effect, because now what has to happen is that judges 
have to first consider or calculate the applicable guideline, 
then they have to determine, under the guidelines, whether 
there's an upward or a downward departure, and then finally 
they have to apply the factors set forth in the statute--passed 
by Congress, of course--Title 18, Section 3553(a) of the U.S. 
Code, which lists a number of very specific factors that a 
judge is required to consider in ultimately determining the 
final sentence. I believe that that is the way the system now 
works, and of course that is different from how it worked 
before.
    There is at least some measure of flexibility, although at 
the same time most judges--and if I were so fortunate to be 
confirmed, certainly I--would greatly defer to the guideline 
range, because after all those guidelines were promulgated by 
the Sentencing Commission, which is essentially a panel of 
experts that take into consideration data about cases and 
sentences from all over the country and try to come up with 
consensus ranges for particular offenses and particular 
defendants. Therefore, those guidelines deserve great respect, 
but at the same time, as the Supreme Court has said, and this 
is precedent that certainly I would, if confirmed, would be 
bound by, has said that the District Court, the sentencing 
court, would have the ability to impose a sentence outside the 
guidelines if that was compelled by the circumstances, by the 
factors set forth in Section 3553(a).
    Senator Blumenthal. Thank you.
    Ms. Wright-Allen, first of all, thank you for your service 
to our Nation as a member of the U.S. Navy and the U.S. Navy 
Reserve in the Judge Advocate General Corps. You've had a very 
impressive career as both a Federal prosecutor and a Federal 
public defender, obviously as an advocate, as a litigator. I 
wonder if you could tell us how you view that role as different 
from the one that you would have as a member of the U.S. 
District Court.
    Ms. Wright-Allen. Thanks, Yanni. Yanni keeps me straight. 
Thank you for your question. I think, if I'm fortunate enough 
to be a Federal District Court judge, I think my role is 
different in that I wouldn't be fighting for any of the 
litigants or their positions. But my sole role would be to 
review their pleadings, review their facts, understand their 
positions, and then to look to the law, the Supreme Court for 
its Circuit, and then the decisions of my fellow brothers and 
sisters down in Norfolk on the Federal bench.
    Senator Blumenthal. And do you think your past experience 
would be useful to you on the bench, and if so, how?
    Ms. Wright-Allen. I think it's been very useful, sir. I've 
been in front of Federal judges my entire career in the Navy, 
commanders and captains, in the Western District, those Federal 
judges that were there for my 18-month tenure, and then here in 
the Eastern District of Virginia, both as a prosecutor and a 
defense attorney.
    So I've been watching them and I write down what they say, 
and I study it and keep it in my back pocket. So I say yes, I 
think the transition would be very smooth. I, if given the 
opportunity, plan to behave in a way that's consistent with the 
judges down in Norfolk and follow the precedent that's in 
place.
    Senator Blumenthal. Thank you.
    Magistrate Judge Urbanski, you've had extensive experience 
in the Federal courts, and also experience as a litigator. I 
wonder if you could tell us how the roles of magistrate judge 
and U.S. District Court judge are different, and perhaps how 
the appointment of magistrate judges might relieve some of the 
backlog and burden on the U.S. District Court.
    Mr. Urbanski. Thank you for that question, Senator 
Blumenthal. It has been my privilege to be a magistrate judge 
in the Western District of Virginia for seven years. During 
that period of time I have held thousands of hearings in civil 
and criminal cases, written 400 opinions, roughly, mediated 
hundreds of cases, and it is also important to note that I work 
for six district judges. I have had the opportunity to work 
closely with them, to watch them, to learn from them.
    The magistrate judge track I've been on and the work I've 
been doing is very much a valuable learning experience for the 
District Court bench and a proving ground for the District 
Court bench. The things that I can't do now that a District 
Court judge can do are, the magistrate judge does not have 
statutory authority to do injunctions. The magistrate judge 
does not have statutory authority to do felony trials. I can do 
civil trials, but only on consent. The District judges have 
that as a matter of right. Those are the principal differences.
    I think one way that the District Courts can use magistrate 
judges, and one thing we have done a lot in the Western 
District of Virginia, is to use the magistrate judges to 
mediate cases. I've mediated 300 or 400 cases. It is a very 
timely, expeditious, and cost-effective way to resolve disputes 
between parties. Thank you.
    Senator Blumenthal. Thank you very much.
    I'm going to yield to Senator Grassley.
    Senator Grassley. Mr. Briccetti, I was going to lead with 
the same question on sentencing, but since you've covered that 
well I will ask you one question that deals with the issue of 
terrorism. You represented James Curmidy in a terrorist plot to 
blow up synagogues in New York City. The FBI learned of a plot 
through an informant. You argued that the FBI and its informant 
entrapped the defendant.
    Detecting and preventing acts of terrorism remain the 
highest priority of the Federal Government. These threats are 
not likely to subside in the near term. One area in which 
Congress and the executive branch continue to disagree is where 
terrorists should be tried, whether civilian courts or military 
commissions. The administration has put forth a protocol that 
includes a presumption that terrorist cases should be tried in 
Article 3 courts. Do you support the use of military 
commissions to prosecute terrorists?
    Mr. Briccetti. Thank you for the question, Senator. 
Honestly, I don't have an opinion on that one way or the other. 
It seems to me that's a quintessential policymaker decision. In 
other words, the elected representatives, the Congress and 
President would have to make that decision. Therefore, I really 
don't have an opinion.
    Senator Grassley. I could ask you whether you believe that 
trials in military commissions violate any constitutional 
rights that people have. If so, which amendments would they 
apply to?
    Mr. Briccetti. Well, thank you for the question, Senator. 
Again, although I am certainly aware that the Supreme Court has 
spoken I think four times in the last 10 years on issues 
related to the ones you've just discussed, I am not an expert 
in that area and I really don't have an opinion about it.
    All I could say is that if I were confirmed, and if I had a 
case in front of me which implicated some of those decisions by 
the Supreme Court, I absolutely would be bound by them and 
follow them and would take my role as a District judge very 
seriously, namely that I am bound by precedent from the Supreme 
Court and from, in my case, the Second Circuit Court of 
Appeals.
    Senator Grassley. I think I will submit the rest of my 
questions for answer in writing.
    Senator Blumenthal. Thank you, Senator Grassley. I 
understand Senator Grassley will be submitting the remainder of 
his questions in writing. I have no further questions, and so 
this Committee will conclude this hearing.
    Again, I want to thank all the nominees, their families, 
friends, loved ones for being here today. This has been a very 
informative and important hearing. I know I speak for the 
Committee, and especially for Senator Leahy as chairman, in 
thanking you all for being here today, coming, some of you, 
very long distances. But it's been well worth it. Thank you 
very, very much. I'm going to say, finally, that we're going to 
hold the record open for additional questions like Senator 
Grassley's that will be submitted to you in writing.
    Thank you.
    [Whereupon, at 4:40 p.m., the hearing was adjourned.]
    [Questions and answers and submissions for the record 
follow.]





NOMINATION OF BERNICE BOUIE DONALD, OF TENNESSEE, NOMINEE TO BE CIRCUIT 
JUDGE FOR THE SIXTH CIRCUIT; J. PAUL OETKEN, OF NEW YORK, NOMINEE TO BE 
     DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; PAUL A. 
ENGELMAYER, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN 
 DISTRICT OF NEW YORK; AND RAMONA VILLAGOMEZ MANGLONA, OF THE NORTHERN 
  MARIANA ISLANDS, NOMINEE TO BE JUDGE FOR THE DISTRICT COURT OF THE 
                        NORTHERN MARIANA ISLANDS

                              ----------                              


                       WEDNESDAY, MARCH 16, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:28 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Schumer, presiding.
    Present: Senators Schumer, Coons, and Grassley.

 OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Schumer. Good afternoon, everybody, and we are 2 
minutes ahead of schedule, which, as Senator Alexander will 
tell you, does not happen that often when I am chairing 
something. So it is a wonderful occasion. I am glad he could 
share in it.
    Anyway, I want to welcome all the nominees who are here 
today. I thank Chairman Leahy for the opportunity of chairing 
this hearing. I want to welcome the families and friends who 
have come to support them and thank Senator Grassley for 
serving as Ranking Member and being so diligent, as he always 
is.
    I am going to recognize Senator Grassley for an opening 
statement because he has to go somewhere else briefly, and he 
will be back. And then we will get on with the rest of it.

 PRESENTATION OF J. PAUL OETKEN, NOMINEE TO BE DISTRICT JUDGE 
FOR THE SOUTHERN DISTRICT OF NEW YORK, BY HON. CHUCK GRASSLEY, 
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. I am going to take 10 minutes off after 
my statement for the Lone Tree High School students who are 
here to ask me a few questions. In my opening statement--I am 
going to put the whole thing in the record, but I would like--
--
    Senator Schumer. Without objection.
    Senator Grassley. I usually give an update, and then I 
would like to speak about one of the people that have an Iowa 
background that you nominated. That is why you nominated him.
    Senator Schumer. We have a lot of great Iowans in New York. 
We do.
    Senator Grassley. Over the past few days, we have confirmed 
five more nominees to vacancies in the Federal judiciary. In 
the short time we have been in session, we have confirmed 12 
judicial nominees, more than in the same period of any of the 
previous four Presidents. Nine of those confirmations were for 
seats designated ``judicial emergencies.'' This year, we have 
reported 22 nominees out of Committee. With this hearing, our 
fourth hearing, we will have heard from 17 judicial nominees 
this year. In total, we have taken positive action on 33 of 58 
judicial nominations submitted to the Senate.
    The person that you have nominated that I wanted to bring 
up is Paul Oetken, nominated to be U.S. District Judge for the 
Southern District of New York. He graduated from the University 
of Iowa in 1988, has a Yale Law School law degree in 1991, and 
he was brought up in Cedar Rapids, Iowa, has family still in 
Iowa.
    Mr. Oetken after law school spent 3 years clerking for 
Federal judges, beginning with Judge Cudahy, Seventh Circuit; 
Judge Oberdorfer in the D.C. Circuit; finally, with Justice 
Harry Blackmun, Supreme Court. Following his clerkship, Mr. 
Oetken entered private practice. In 1997, he became attorney-
adviser with the Department of Justice Office of Legal Counsel. 
In 1999, he joined the White House Counsel's Office as 
Associate Counsel to President Clinton. In 2001, he moved to 
New York and returned to private practice. In 2004, he joined 
the legal department of Cablevision Systems. Currently, he is 
senior vice president and associate general counsel of 
Cablevision. Congratulations, Mr. Oetken.
    I will put the rest of my statement in the record.
    Senator Schumer. Without objection.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Schumer. Now let me call on Senator Alexander, who 
is here to introduce our second nominee.

  PRESENTATION OF BERNICE BOUIE DONALD, NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE SIXTH CIRCUIT, BY HON. LAMAR ALEXANDER, A U.S. 
              SENATOR FROM THE STATE OF TENNESSEE

    Senator Alexander. Thank you, Mr. Chairman and Senator 
Grassley, for letting me come. I am here today to introduce 
Judge Bernice Donald, who has been nominated by the President 
to be United States Circuit Judge for the Sixth Circuit.
    Judge Donald has been a judge for 28 years, and I am 
certain this Committee will do its usual thorough job in 
assessing her professional credentials, which are considerable. 
But what I would like to say briefly in introducing her is 
something the Committee may not be as likely to know about, and 
that is her reputation as a person in Memphis and in Shelby 
County.
    Judge Donald came from humble beginnings, the daughter of a 
domestic worker and a self-taught mechanic. She is the sixth of 
ten children. She began working as a dispatch supervisor with 
the telephone company before she got her law degree at Memphis 
State University, what was then called Memphis State 
University. She has been a pioneer for African-Americans in 
Memphis and Shelby County as a student, as a bankruptcy judge, 
as the first black female district court judge, first woman of 
color to serve as an officer of the American Bar Association in 
its 130-year history. She has been a community leader with at-
risk youth; especially she works with young people, and she has 
been very active at the University of Memphis. She is here with 
her husband, W.L. She is here with a number of her other 
friends and supporters from Memphis and Shelby County, and I am 
delighted to introduce her to the Committee and recommend her 
nomination and especially let the Committee know about this 
extraordinary record of community service and personal 
achievement in our largest county and biggest city.
    Senator Schumer. Well, thank you. Thank you very much, 
Senator Alexander. And I know how busy you are and I know it 
speaks extremely well of our nominee that you came to be here 
to introduce her. So thank you for being here, and I know you 
have a busy schedule, so feel free to move on.
    Now I would like to introduce Delegate Sablan to introduce 
Judge Ramona Villagomez Manglona for the Northern Mariana 
Islands.

PRESENTATION OF RAMONA VILLAGOMEZ MANGLONA, NOMINEE TO BE JUDGE 
  FOR THE DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS, BY 
HON. GREGORIO SABLAN, A DELEGATE IN CONGRESS FROM THE NORTHERN 
                        MARIANA ISLANDS

    Mr. Sablan. Thank you very much, Mr. Chairman. Thank you 
for the opportunity to speak for a few minutes in support of 
Judge Ramona Villagomez Manglona, the nominee for the United 
States District Court for the Northern Mariana Islands.
    This is a historic moment for the people of the Northern 
Mariana Islands. We have only been a part of the United States 
for 33 years. Judge Manglona, myself, and many of us became 
U.S. citizens by Executive order of President Reagan in 1986. 
We have only been represented in the U.S. Congress for 27 
months, and we have never had someone from our islands 
presiding on the United States District Court. So to have Judge 
Manglona confirmed to the bench would truly be a milestone in 
our political maturity.
    You have ready access to Judge Manglona's academic 
credentials, her resume, her record in the superior court in 
the Northern Marianas, but let me speak to her character, which 
was the basis for my decision to recommend her nomination to 
President Obama.
    Opportunity for education has improved for the people of 
the Northern Mariana Islands, but within my lifetime, getting 
an education meant leaving home, often at an early age. I went 
off island for high school at 11. Judge Manglona left home at 
age 12 to attend school on the Mainland. She is the 11th of a 
dozen children, but her parents, Manuel and Luisi Villagomez 
recognized their daughter's intelligence and, in a family of 
hard workers, her capacity for achievement. Judge Manglona 
excelled at school, earning her undergraduate degree at 
Berkeley.
    This may seem an ordinary accomplishment to you, but for 
someone from the islands, and especially for a woman from our 
islands, 20 years ago this was not the norm.
    Judge Manglona, of course, returned home, married, and 
started a family. Her husband, our Supreme Court Justice John 
Manglona, and their two children, Dencio and Savana, are here 
today.
    But judge Manglona's hunger for education continued. She 
made the extraordinary decision, with the support of her 
family, to leave home again to attend law school at the 
University of New Mexico, and you can imagine how tough a 
choice that was and how difficult that was for being away from 
her family as she charged through law school in 2-1/2 years and 
returned home with another degree in her name.
    Judge Manglona's mother and father were quite successful 
business people. Their daughter could have easily been taking a 
place in the family's commercial enterprises. Instead, she 
chose to employ her education and energy in public service. In 
the process, she has been a groundbreaker for island women, the 
first to be confirmed as Attorney General, the first to be 
confirmed to our local court, and now the first woman or man 
from the islands to be nominated to the Federal bench.
    I recommend Judge Manglona to you not only as a person of 
talent and drive, not only as a trailblazing woman; most 
importantly, Mr. Chairman, she is someone of integrity and 
impeccable character who will serve with distinction as judge 
on the United States District Court for the Northern Mariana 
Islands.
    I would like, Mr. Chairman, with your consent to include in 
the statement--and we are joined today by Hon. Madeleine 
Bordallo from Guam, and with your consent I would like to 
insert into the record her statement of support.
    Senator Schumer. Without objection.
    [The prepared statement of Ms. Bordallo appears as a 
submission for the record.]
    Senator Schumer. Thank you, Delegate Sablan.
    Mr. Sablan. Thank you very much for this privilege, Mr. 
Chairman.
    Chairman Schumer. Thank you.

 PRESENTATION OF J. PAUL OETKEN, NOMINEE TO BE DISTRICT JUDGE 
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND PAUL. A. ENGELMAYER, 
 NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW 
YORK, BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE 
                          OF NEW YORK.

    Senator Schumer. It is now my turn to introduce two 
nominees: J. Paul Oetken, whom Senator Grassley spoke so nicely 
about; and Paul A. Engelmayer. They are both uniquely 
qualified, talented, and esteemed nominees for the United 
States District Court for the Southern District of New York.
    Now, we have a very deep bench of legal talent in New York, 
but as I think my colleagues will see, the two nominees are the 
lawyer's equivalent of Joe DiMaggio and Mickey Mantle as they 
entered the major leagues.
    Paul Oetken is not, alas, originally a New Yorker, as we 
heard. He was raised in Iowa, the beautiful home of the Ranking 
Member of the Committee, and he graduated from the University 
of Iowa. He then went to Yale Law School and after graduation 
earned the distinction of clerking for three renowned Federal 
judges: Judge Richard Cudahy on the Seventh Circuit Court of 
Appeals, Judge Louis Oberdorfer on the District Court for the 
District of Columbia, and, of course, Justice Harry Blackmun on 
the U.S. Supreme Court.
    Paul has worked in two of the three branches of Government, 
which I consider to be invaluable experience to the bench. He 
served in the prestigious Office of Legal Counsel during the 
Clinton administration, went on to serve as an Associate 
Counsel to the President. Most recently, he worked at the New 
York law firm of Debevoise & Plimpton and now serves as senior 
vice president of Cablevision Systems in Bethpage, one of the 
largest cable companies in the country. In this capacity he 
manages the company's wide array of litigation and has 
developed expertise in employment discrimination, which he 
teaches at Fordham Law School.
    His qualifications speak for themselves, but in addition to 
the first two traits that I look for in judicial candidates--
excellence, they should be legally excellent; moderation, I do 
not like judges too far right or too far left because they tend 
to make law, not interpret law. I also look for candidates who 
bring diverse views and backgrounds to the bench. Paul is the 
first openly gay man to go through an Article III confirmation 
process in this country, which makes this moment historic. But 
long after today, what the history books will note about Paul 
is certain to be his achievement as a fair and brilliant judge.
    Second, I have the privilege of introducing another 
distinguished lawyer, Paul Engelmayer, who has been a respected 
and revered member of the New York legal community since his 
graduation from law school. Unlike Mr. Oetken, Paul was born in 
Brooklyn, where his mother was a remedial reading teacher in 
Brooklyn's public schools. Paul's father went to night law 
school in Brooklyn and dedicated his career to working as a 
sole practitioner representing clients throughout the city.
    Paul left Brooklyn and went to Harvard College. Luckily for 
all of us who are looking forward to his service on the bench, 
Paul abandoned an early career as a journalist for the Wall 
Street Journal to attend Harvard Law School, where he graduated 
magna cum laude. He also earned prestigious clerkships: one for 
Patricia M. Wald on the District of Columbia Circuit, and the 
second for Justice Thurgood Marshall on the U.S. Supreme Court.
    Immediately after clerking, Paul followed his calling to 
public service and joined the United States Attorney's Office 
for the Southern District. He rose quickly to become deputy 
chief of the Appellate Division, then returned to Washington 
where he served as an Assistant Solicitor General. But the U.S. 
Attorney's Office apparently had a grip on Paul, where he 
returned there to become chief of the Major Crimes Unit, where 
he worked until joining the New York office of Wilmer, Cutler, 
Pickering, Hale & Dorr. He is now the partner in charge of that 
office and has set a laudable example for young lawyers by 
dedicating a substantial amount of time to pro bono work on 
behalf of clients who need lawyers. I would venture to say 
there is no one in the New York Bar who would rate Paul's legal 
skills, judgment, and dedication to the law at less than a 
perfect 10.
    So thank you, and I look forward to today's hearing.
    Next we are going to call up Judge Donald. Judge Donald, 
welcome, and I have to swear you in. Judge Donald, please raise 
your right hand. Do you affirm that the testimony you are about 
to give before the Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Judge Donald. I do.
    Senator Schumer. Thank you. Please have a seat.
    OK. So you may now introduce your family and friends who 
are with you today because I know it is a proud moment for 
them.
    Judge Donald. Thank you, Chairman Schumer. First, I would 
like to express publicly my thanks to President Obama for his 
confidence in nominating me for this position. I would also 
thank the senior Senator from Tennessee, Senator Lamar 
Alexander, for his generous introduction, and Senator Corker in 
his absence. And I certainly want to thank you, Mr. Chair, and 
this Committee for scheduling this hearing.
    I do have a number of friends and family this afternoon, 
but I understand that time is short, so I may ask a number of 
them to stand. But I do want to express my thanks for the 
presence of these family and friends: my husband, W.L. Donald; 
my sister, Virginia Bouie Wilson; her husband, Reverend Bobby 
Wilson; my niece, Carolyn Adams; and my niece, Cassandra Bouie. 
Several friends: Attorney Sheila Slocum Hollis, who is here in 
the front row, from Duane Morris; the general counsel of the 
Commercial Law Development Program, a part of the Commerce 
Department, Steve Gardner, who is here; Attorney Marie-Flore 
Kouame from the CCIPS Unit of the Department of Justice; and 
other members of that staff: Katrina Osonovo, Elise Yobikoff, 
and the senior attorney, Namde Azero.
    I also have other friends: Attorney Mary Smith, Attorney 
Don Bivens, Attorney Shelly Hayes, Attorney Larry Miller, Matt 
Surego; Marilyn Queen from the Federal Judicial Center; a 
former law clerk, Alicia Black; and Attorney Ashley Sills, 
along with the former Special Agent in Charge of the Federal 
Bureau of Investigations from Memphis, Attorney My Harris, and 
her daughter, Robbie Harris. And also Attorney Charlotte 
Collins is present, and especially my former law clerk who is 
now a magistrate judge, Charmiane Claxton, is here today, and I 
am so grateful. And, obviously, a number of my clerks and 
former clerks are watching this on TV, and I acknowledge the 
great help of my immediate staff--Tyler Brooks, Janica White, 
and Stevie Phillips.
    Thank you.
    Senator Schumer. Well, thank you, Judge Donald. That is a 
lot of people to stand up, but would all of you who were 
introduced please stand so we may acknowledge and welcome you. 
Thank you all for being here.
    Judge Donald. Thank you. And I saw my niece, Cassandra 
Bouie, who is back in the back.
    Senator Schumer. Welcome to Ms. Cassandra Bouie as well. 
OK. No more, no less than all the others.
    I have a few questions for you, Judge. You have been a 
United States district court judge for 16 years. Many of my 
colleagues on this Committee have expressed concern about the 
lack of courtroom experience of some of our appellate nominees, 
but clearly you make the grade. You have a lot of experience. 
Why do you want to be a court of appeals judge? And what do you 
think your having been a district judge will allow you to bring 
to the table?

 STATEMENT OF HON. BERNICE BOUIE DONALD, NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE SIXTH CIRCUIT

    Judge Donald. Mr. Chair, thank you so very much for that 
question. I have served as a trial judge for 28\1/2\ years, 16 
of those on the district court, and in that time I have had a 
opportunity to see litigation up close and make the critical 
decisions about facts coming before the court. I have had the 
opportunity to apply settled principles of law, and I have had 
the opportunity to watch the drama of trials unfold.
    I think that I bring a particular degree of experience by 
virtue of having had those 28 years of seeing trials play out, 
and now at this point I believe that that experience can help 
inform decisions that I would make as an appellate court judge. 
I think that is an important perspective.
    Senator Schumer. Thank you.
    Now, Judge Donald, in a number of speeches over the years, 
you have referred to the need to be conscious of one's own race 
and the perspective that race gives each of us, as well as the 
need to be aware of other people's racial experiences. One 
report characterized you as having said that you apply ``a 
vastly different'' standard than your white counterparts in 
discrimination cases. Could you please clarify your remarks? 
And have you ever or would you ever apply a legal standard to a 
case that is dictated by anything other than the rule of law?
    Judge Donald. Thank you for that opportunity to clarify, 
Mr. Chair. I would certainly never apply a different standard 
in deciding a summary judgment or any other cases. My goal as a 
judge is always to apply the law, to look to existing 
precedents, and to decide the facts before me free from bias, 
prejudice, or partiality.
    That statement was taken out of context. It was in a panel 
that I participated on in an American Bar Foundation program, 
and that particular comment was related to a particular case 
that I worked on when I sat by designation at the court of 
appeals. And I was speaking to how my experience allowed me to 
bring a different and diverse perspective to an assessment of 
the facts in that case. But I would always apply precedent and 
settled principles of law. I believe that a judge has to leave 
race and other personal philosophies at the door.
    Senator Schumer. Thank you. I think that does clarify that 
very well.
    Next, you decided a case called Robinson v. Shelby County 
Board of Education. That was a 40-year-long case that involved 
a complex set of circumstances regarding school desegregation. 
In that case, when the parties came before you to ask that the 
consent decree be dissolved, you granted their request as to 
significant areas: facilities, transportation, and staffing. 
You denied it as to others. Your lengthy fact-bound decision 
was overturned in a closely divided 2-1 decision by the Sixth 
Circuit. After the Sixth Circuit's decision, did you have any 
hesitation at all in complying with that decision? And would 
you in future cases have any trouble complying with existing 
law in any way?
    Judge Donald. Senator Schumer, I would never have any 
problems complying with existing law. Indeed, in that case my 
effort was to comply with existing settled principles of law. 
You are right, that was a case that was filed in the courts 
when I was 12 years old. It came to me--it was as class action 
case. It came to me on a motion to dismiss and declare the 
school system unitary, declare that all vestiges of 
discrimination have now been removed.
    In a class action case, under Rule 23 of the Federal Rules 
of Procedure, I have a duty as a judge to conduct a fairness 
hearing, and in conducting that fairness hearing, I am obliged 
to apply in a school desegregation case the green factors to 
make certain that there has been compliance with Supreme Court 
law. And you are right, I found that Shelby County had made 
tremendous progress in three of those areas, but in other areas 
they had not made such progress.
    I also have to look at whether or not there has been good-
faith compliance with all of the orders of the court, and based 
upon an assessment of the law applied to those facts, I found 
that in three areas unitary status had been earned and three 
others had not. And, of course, when the Sixth Circuit issued 
their ruling, I promptly complied and dismissed the case.
    Senator Schumer. OK. So thank you, Judge Donald. That 
completes my time for questioning. I thank you for being here, 
and I thank all of your relatives, friends, law clerks, nieces, 
and everyone else who came.
    Judge Donald. Thank you. Mr. Chair, may I and my friends be 
excused?
    Senator Schumer. Please.
    Judge Donald. Thank you.
    [The biographical information follows.]



    Senator Schumer. We are just going to reset the table, but 
in the meantime, I am going to ask Mr. Engelmayer, Mr. Oetken, 
and Judge Manglona to come forward because I want to swear them 
in.
    Will you please stand to be sworn? Do you each affirm that 
the testimony you are about to give before the Committee will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Oetken. I do.
    Mr. Engelmayer. I do.
    Judge Manglona. I do.
    Senator Schumer. Thank you.
    OK, first I have a few questions for all of you. I have 
always said that moderation and judicial modesty are two 
qualities that are important to me in a potential judge--oh, 
sorry. I did not let you introduce your families and guests, so 
let me do that. Mr. Oetken, if you have any people you would 
like to introduce here?

 STATEMENT OF J. PAUL OETKEN, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE SOUTHERN DISTRICT OF NEW YORK

    Mr. Oetken. Thank you, Mr. Chairman. I would like to thank 
you, Senator Schumer, for convening this hearing and also 
Senator Grassley. I would also like to thank briefly President 
Obama for this nomination, which is a great honor, and you, 
Senator Schumer, for recommending me for this position.
    I would like to introduce a few of my family members and 
friends who are here. I would ask them to stand very briefly. 
First of all, my partner, ``Makky'' Pratayot, is here. I am 
very happy he was able to come down from Manhattan where we 
live. My brother is here from Iowa City, John, and his wife, 
Carla; and their two kids, Luke and Ben, who are 15 and 13. 
They are on spring break this week from school in Iowa City. I 
am delighted that they are able to be here.
    I also want to acknowledge briefly my sister, Sara, who is 
watching on the webcast from home in St. Charles, Illinois, 
with her husband, Matt, my brother-in-law, and my niece and 
nephew, Katie and Ian, who are 11 and 9, and they are all 
watching and were not able to be here, but I appreciate their 
support.
    Finally, I just want to acknowledge my mom and dad, Jim and 
Betty Oetken, who very much wanted to be here but were not able 
to because my father had to have surgery yesterday, which 
everything went fine, I am happy to say.
    Senator Schumer. Praise God.
    Mr. Oetken. And they are watching on the webcast, and I am 
extremely grateful to them for their love and support over the 
years. They have been the most amazing, warm, loving, 
supportive parents anyone could hope for, and I really owe them 
everything.
    Senator Schumer. Thank you, and----
    Mr. Oetken. If I could also briefly acknowledge just a few 
friends who are here.
    Senator Schumer. Yes. We like that. That is the nice part 
of these hearings.
    Mr. Oetken. I have several friends who were able to come 
down from New York and friends from D.C. and several friends, 
including my great friends at Cablevision, who are able to 
watch on the webcast. So I just want to thank all of them for 
their support as well.
    Senator Schumer. Great. Well, thank you all, and would the 
friends--since the family stood up, would the friends of Mr. 
Oetken please rise so we can say hello and greet you? Thank you 
all for being here. Great.
    [The biographical information follows.]



    
    OK. Mr. Engelmayer.

 STATEMENT OF PAUL A. ENGELMAYER, NOMINEE TO BE DISTRICT JUDGE 
             FOR THE SOUTHERN DISTRICT OF NEW YORK

    Mr. Engelmayer. Good afternoon, Senator, and thank you very 
much. I want to begin by thanking you for those very, very 
generous words of introduction, for the honor of recommending 
me for this job, and for the confidence you have shown in me. I 
also want to thank the Ranking Member and the other members of 
the Committee for their consideration. And I want to thank 
President Obama for the singular honor of nominating me for 
this job and for the opportunity to serve my country in this 
fashion.
    I appreciate very much the opportunity to introduce family 
and friends. First and foremost, I would like to introduce my 
wife, Emily, who is my best friend, the love of my life, and 
the person who, by her example every day, teaches me to do the 
right thing.
    Senator Schumer. Please stand up. With that introduction 
you have to stand up.
    [Applause.]
    Mr. Engelmayer. I would like to introduce my children, 
Caroline and William. They are each on furlough, a 1-day 
furlough from school today, from seventh and fourth grade at 
the Trinity School, and they are on the condition that they 
each bring back a civics lesson, which they have promised to 
do.
    Senator Schumer. Well, my daughter went to the Trinity 
School, so it is a very fine school, and it is worth it to miss 
a day to see your father here, but not by much. It is that good 
a school.
    [Laughter.]
    Mr. Engelmayer. Also, I am very pleased to have here my 
sister, Jean; my brother-in-law, Jan; my nephews Sasha and 
Peter; my brother-in-law, Pete; and my sister-in-law, Dawn; my 
mother-in-law, Gloria Mandelstam, herself an extremely 
accomplished lawyer and a trailblazer for women in the law. I 
am very honored to have Chief Judge Patricia Wald of the D.C. 
Circuit for whom I clerked.
    Senator Schumer. Very nice. Thank you, Judge Wald. Thank 
you for being here.
    Mr. Engelmayer. And she is both a mentor and a dear friend. 
And I am honored to have here a number of my law partners, who 
I also count as my friends--Howard Shapiro, Randy Moss, and 
Dave Bowker; and a number of my dear friends--Eric Washburn, 
Chuck Lane, and I believe Tony Lincoln.
    Finally, I would like to acknowledge my parents. They did 
not live to see this day, but I think of them every day. They 
loved this country in that special way that immigrants or, in 
their case, the children of immigrants do. They were enormously 
proud that I spent the first 12 years of my career in public 
service, primarily as a prosecutor in Manhattan, and I know 
they would be very proud today.
    Thank you.
    Senator Schumer. Well, thank you. That is wonderful.
    And now we have Judge Manglona to introduce her family and 
friends who came a little bit of a further distance, I suppose, 
than either of the other nominees here.
    [The biographical information follows.]



    
  STATEMENT OF HON. RAMONA VILLAGOMEZ MANGLONA, NOMINEE TO BE 
 JUDGE FOR THE DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS

    Judge Manglona. Yes. Thank you, Mr. Chairman, and also 
thank you to Senator Grassley for convening this session this 
afternoon, and I also would like to publicly and openly say 
thank you to President Obama for giving me this honor and the 
privilege of having been nominated to serve as the next judge 
for the U.S. District Court for the Northern Mariana Island.
    I also want to think Congressman Kilili, or Congressman 
Gregorio Kilili Sablan from the Northern Mariana Islands who 
introduced me, as well as Congresswoman Madeleine Bordallo from 
Guam who is present and has also submitted her statement in 
support.
    At this time I would like to introduce the family members 
that are here with me today who made the 10,000-mile trek, 
starting with my husband, John Manglona. My husband and I just 
celebrated our 20th wedding anniversary 2 weeks ago today, so 
we are very happy.
    Senator Schumer. Many more.
    Judge Manglona. I am looking forward to that. As well, our 
son, Dencio Manglona. He flew in from the University of 
Michigan in Ann Arbor--he is sophomore there--just to make it 
here today. And I also have our daughter, Savana Manglona. She 
is a senior at Mount Carmel High School in Saipan, and we are 
looking forward to her attending university. The University of 
Michigan is on the list.
    With us as well is my brother, David Villagomez--he flew in 
from Honolulu--as well as my brother-in-law, Paul Manglona. He 
was here fortuitously for other business matters, but was able 
to be here. And as a representative for my siblings, I also 
have my two nephews, Walter and Jason Wesley, who are currently 
residents of the State of Virginia, and they are able to make 
the short trip up.
    Allow me also please to recognize the individuals or my 
family members that really wanted to be here but could not 
under the situation, and they are here otherwise through the 
webcast, and I know they are all tuned in at about 4 in the 
morning Saipan time, starting with my father, Manuel 
Villagomez, and my siblings and my in-laws, as well as my 
father-in-law, Prudencio Manglona, out of the island of Rota, 
and my in-laws as well as my other in-laws that are in Guam, 
Vincent as well as my sister-in-law President in Saipan. 
Without them, I would not be here.
    Then, finally, I do want to also recognize two individuals 
that could not be here because they are no longer with us on 
this Earth: my mother, Luisi, as well as my mother-in-law 
Bernaditz Manglona. They have been the inspiration of my life, 
and I know they are here with us. So thank you for allowing me 
to introduce them.
    I also would like to just recognize that there are three 
Senators who are also from the CNMI. They were previously 
scheduled for some business meetings here, and they made the 
time to be here to attend the session. That is Senator 
Hofschneider from Tinian, Senator Cruz from Tinian, and Senator 
Ralph Torres from Saipan.
    Thank you, Mr. Chairman.
    Senator Schumer. Great. Well, thank you. These were great 
rounds of introductions.
    [The biographical information follows.]



    
    Now I have a question for each of you, the same question 
for all three. I have always believed that moderation and 
judicial modesty are two qualities very important in a 
potential judge. What do these concepts mean to you? And in 
your opinion, what are the most important qualities in a judge? 
Mr. Oetken.
    Mr. Oetken. I also agree, Senator, that moderation and 
judicial modesty are crucial characteristics of a judge. In my 
view, the notion of judicial modesty I guess has two parts to 
it. I think one is the idea of following precedent, stare 
decisis. Judges do not write on a blank slate. There are 
learned opinions that have been decided before judges and, in 
particular, opinions of the Second Circuit and the Supreme 
Court govern all decisions of the district court in the 
Southern District. If I were a judge, I would follow those.
    The second piece of judicial modesty, in my view, really is 
the idea of deciding the case or controversy before a judge and 
not going beyond the case or controversy to address issues that 
are not presented in that case.
    Senator Schumer. Great. Thank you.
    Mr. Engelmayer.
    Mr. Engelmayer. Thank you, Senator, for that question. I 
agree with everything that Mr. Oetken has said. Judicial 
modesty is of vital importance. I think it means resolving 
questions in accord solely with the rule of law. It means 
resolving questions as narrowly as possible. I think it also 
speaks to the proper judicial temperament. A judge is not the 
center of attraction. Nobody comes to court to see the judge. 
It is the parties who are there to have their controversy 
resolved, and it is very important for the court to instill a 
sense of dignity, to listen carefully, to treat the parties as 
the most important people in the room. And that is something 
that I have seen in each of the different contexts in which I 
have litigated, that parties and their lawyers rightly expect 
cases to be resolved in accordance with the rule of law by a 
neutral and independent decider, you know, with projecting a 
sense of dignity for all people in the room, and always with a 
vigorous review of the record.
    Senator Schumer. Thank you.
    Judge Manglona.
    Judge Manglona. Yes, thank you, Mr. Chairman. I agree with 
my two panel members here, with their statements. I would also 
like to add in regards to judicial modesty, I believe it also 
means that it is a recognition that as a judge there is so much 
power entrusted by the people and that to exercise that power 
by being compliant to the rule of law is something of 
significance, to recognize that any decision to be rendered has 
to be pursuant to what is the fact before the judge and what 
law applies.
    Thank you.
    Senator Schumer. Thank you. I thank you all three.
    Now I have an individual question for each of you. First to 
Mr. Engelmayer, the Southern District--no, sorry. You spent a 
significant amount of time litigating pro bono matters, and you 
have been involved in highly contentious cases, such as the New 
York State same-sex marriage case. Can you give the Committee 
assurance that you understand the difference between being an 
advocate and being a judge?
    Mr. Engelmayer. Thank you, Senator, for that question. 
There is an enormous difference between being an advocate and a 
judge, and I understand it. An advocate's responsibility is to 
zealously advance the interests of his or her client, making 
all responsible arguments that are in the client's strategic 
interest. That is what an advocate does, and an advocate is the 
one who sets the table by bringing the lawsuit or defending it, 
as the case may be.
    A judge stands in an entirely different situation. A judge 
is a passive recipient of cases brought by other people, and 
his or her responsibility is to resolve those cases as narrowly 
as possible in accord with the rule of law, checking all of his 
or her personal opinions at the courthouse door and being 
rigorously neutral and independent.
    Senator Schumer. Thank you.
    Now for Judge Manglona. You have been a judge on the 
Northern Mariana Islands Superior Court since 2003 as well as 
the Guam Supreme Court. How will this experience help you as a 
Federal judge in the NMI? And what are the differences between 
the Federal docket and the Commonwealth docket in the NMI?
    Judge Manglona. Thank you, Mr. Chairman. I believe that my 
8 years of trial court experience as a trial court judge is 
going to be very beneficial for my role, if so confirmed by the 
Senate, as a U.S. district court judge. And having also sat as 
a panel member in the appellate level for the Guam Supreme 
Court, I also have that perspective of recognizing what a 
review is going to look for. So rather than waiting for the 
review process, that insight guides me to handle a case, again, 
pursuant to the rule of law. So I believe the difference in 
regards to the case law that I would handle--of course, we 
understand the difference of State laws and the Federal laws, 
but basically the same rules apply, which is the rule of law.
    Senator Schumer. Thank you.
    My time has expired, but I have one question for Mr. 
Oetken. With Senator Coons' permission I will ask it and then 
we will move on to him.
    Mr. Oetken, you have worked at Cablevision in New York for 
7 years as in-house counsel, and you now manage the company's 
extensive litigation portfolio. That is a fairly unusual 
background for a Federal judge. What do you think you will 
bring to the table from your experience working inside a 
Fortune 500 companies and one of the largest television and 
radio providers in the country?
    Mr. Oetken. Thank you for the question, Senator Schumer. I 
actually think it has been an amazing experience to be the head 
of litigation at Cablevision because it is a company--it is an 
extremely well run company, but it is also a company that has a 
really wide array of legal issues ranging from regulatory 
issues and then in the litigation area, everything from complex 
commercial cases and contract cases to securities, patent, 
copyright, employment cases, antitrust cases. It is a really 
wide range of cases in a wide range of courts, mostly in the 
New York-New Jersey-Connecticut area, but also in other courts 
in some situations.
    I also think that that experience, in addition to exposing 
me to many different legal issues and cases, it has allowed me 
to see from the inside of a corporation what legal life is 
like, what a corporation faces in the legal arena, what boards 
of directors face in the legal arena. And I think that is a 
very valuable insight, particularly in the Southern District.
    Senator Schumer. Thank you. I thank all three of you. I 
think in my judgment each of you will make fine judges on the 
courts to which you are nominated.
    Senator Coons.
    Senator Coons. Thank you, Senator Schumer, and thank you 
for the opportunity to join you in welcoming this distinguished 
panel of nominees. If you will forgive me, I wanted to pay 
particular attention and deference to Mr. Oetken, who was my 
classmate in law school. I do have a question for all three of 
you, but if you will forgive me for extemporizing for a moment.
    Since we knew each other at Yale Law School, I have 
followed your career with interest. You are, in my view, a 
shockingly bright person who has exactly the sort of varied 
career in the private sector with several major law firms, if I 
remember correctly, Jenner & Block, Debevoise & Plimpton as 
well as Cablevision, and a number of admirable clerkships--
Oberdorfer on the district court and then to Cudahy on the 
circuit court and then Justice Blackmun on the Supreme Court. 
My impression of you has always been that you are someone with 
a searching intellect and a broad range of capabilities. And 
forgive me, to all three of our distinguished applicants, the 
shared experience of cramming for exams such as they were in 
our school compelled me to come here and speak on his behalf.
    Senator Schumer. The pass/fail system at Yale Law School.
    [Laughter.]
    Senator Coons. An important secret.
    I do think, if I might then conclude, that, Mr. Oetken, you 
would provide a unique combination of perspectives, and you 
present an exceptional series of qualifications. I think it is 
important for us to continue to advocate in the Senate and in 
the country for the proposition that it is your professional 
qualifications and skills that should be considered, and those 
alone, as we weigh whether or not you are appropriate for the 
bench. And I would be thrilled to speak on the floor in support 
of your nomination as well. I think it would do all of us proud 
to have you join the Article III judiciary of this Nation.
    If you would then, all three of you, answer, if you could, 
just a simple question, not that dissimilar from those asked by 
my colleague, but each of you has unique, important personal 
experiences, both professional and personal, that you would 
bring to the bench, and they are part of why it would be good 
to have you on the bench. Help me understand, if you would, in 
series, how those personal and professional experiences will 
inform your deliberations as a judge yet not deter you from 
applying the law as it is found? It is important, I think, for 
us to promote and sustain a judiciary that is broadly 
reflective of the diversity of the American people, yet to 
continue to reinforce the principle that you are bound by 
precedent, that you are compelled to find the law as you find 
it in front of you, and that your own personal experience does 
not unduly inform your deliberations as a judge. If you might, 
ma'am.
    Judge Manglona. Thank you, Senator Coons. From my personal 
and professional experience, having served the Commonwealth of 
the Northern Mariana Islands during the entire period, 
previously as a prosecutor and then as a litigator, before 
serving on the bench, I believe bringing this experience over 
to the Federal court would assist me as a Federal judge to 
recognize the distinctions between the State issues as well as 
the Federal issues. And, personally, all the efforts that I 
have tried to assist those that are interested in the area of 
law, when I reach out with the kids and the children in schools 
and high schools trying to have them recognize that what they 
are learning are really issues that are actually being 
litigated and are affecting our community, both in the State 
level as well as the Federal. I believe that is how things 
would----
    Senator Coons. Thank you.
    Mr. Engelmayer.
    Mr. Engelmayer. Thank you, Senator Coons. I have had the 
extraordinary fortune to have a very diverse background prior 
to coming here today. I have been a prosecutor or a Government 
lawyer for over a decade and in private practice for over a 
decade. I have had extensive criminal and civil experience, 
trial and appellate experience, and I have represented 
institutions as well as individuals.
    But if there is one thing that comes out from all of those 
things, it is this: that litigants, clients, parties cherish it 
when a judge is locked in on the facts, is a hard worker, has 
mastered the record, has gone beyond the briefs, and really is 
dedicated to getting things right. And contrary-wise, it is 
dispiriting when a judge comes unprepared. And in addition to 
the judicial values that I addressed earlier in response to 
Senator Schumer's question of independence, neutrality, 
fidelity to the rule of law, simply a heroic work ethic and 
willing to dig into the fact is something that I have learned 
is what litigants expect and deserve.
    Senator Coons. Very well. Thank you, sir.
    Mr. Oetken.
    Mr. Oetken. Thank you, Senator Coons. First I want to thank 
you for those extraordinarily kind and generous remarks. I 
remember very fondly our days in law school, and I would just 
point out that I think just about all of us in law school are 
not surprised to see you in the U.S. Senate and very pleased 
that you are in the U.S. Senate. I never expected that I would 
be on this side of the table from you, though.
    To answer the question, I have also been fortunate enough 
to have a pretty wide variety of experience that includes some 
years in the judicial branch, some years in the executive 
branch, and also several years of private practice. And I think 
the sort of common thread in terms of qualities that I have, I 
think, that I think would serve me well on the Federal bench 
are, in particular, my ability to listen carefully to the 
parties and to different arguments and not to give short shrift 
to those arguments but to really try to understand them in 
their best light, to analyze difficult legal issues carefully 
and rigorously, to write well, and at the end of the day to 
rule on the basis of the law and precedent in the facts of a 
particular case before me.
    Senator Coons. Thank you. Thank you very much. I know your 
family and your friends are justifiably proud of all of you, 
and it is my hope that we will move swiftly to your 
consideration and confirmation by this body.
    Thank you very much for being with us today.
    Senator Schumer. Thank you, Senator Coons, and I want to 
thank our panel for their excellent answers and for being here. 
We share a little bit of the joy on this great occasions that 
your family and friends have, and that is a very nice thing 
that is part of this.
    With that, if Senator Coons has no further questions--I do 
not, but before I close the hearing, I want to ask unanimous 
consent that the statement of our Chairman, who really takes a 
great interest in the process here, the nomination process, as 
well as trying to fill the many vacancies we have on the bench, 
he has a statement which I would ask unanimous consent to be 
read into the record, without objection.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Schumer. The record will stay open for 7 days, and 
the hearing is adjourned.
    [Whereupon, at 3:13 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]






                                 
