[Senate Hearing 112-527]
[From the U.S. Government Publishing Office]







                                                        S. Hrg. 112-527

         NOMINATIONS OF MARK A. ROBBINS AND ROY W. MCLEESE III

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

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE



                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

NOMINATIONS OF MARK A. ROBBINS TO BE A MEMBER, MERIT SYSTEMS PROTECTION 
  BOARD, AND ROY W. MCLEESE III TO BE AN ASSOCIATE JUDGE, DISTRICT OF 
                       COLUMBIA COURT OF APPEALS

                               __________

                             MARCH 6, 2012


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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  JERRY MORAN, Kansas

                  Michael L. Alexander, Staff Director
               Kristine V. Lam, Professional Staff Member
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government 
                              Management,
          the Federal Workforce, and the District of Columbia
  Christine K. West, Counsel, Subcommittee on Oversight of Government 
                              Management,
          the Federal Workforce, and the District of Columbia
  Bryan G. Polisuk, Counsel, Subcommittee on Oversight of Government 
                              Management,
          the Federal Workforce, and the District of Columbia
               Nicholas A. Rossi, Minority Staff Director
                   Jennifer L. Tarr, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
                 Patricia R. Hogan, Publications Clerk
                    Laura W. Kilbride, Hearing Clerk













                            C O N T E N T S

                                 ------                                
Opening statement:
                                                                   Page
    Senator Akaka................................................     1
Prepared statement:
    Senator Akaka................................................    15

                               WITNESSES
                         Tuesday, March 6, 2012

Mark A. Robbins to be a Member, Merit Systems Protection Board...     3
Hon. Eleanor Holmes Norton, a Delegate in Congress from the 
  District of Columbia...........................................     8
Roy W. McLeese III to be an Associate Judge, District of Columiba 
  Court of Appeals...............................................     9

                     Alphabetical List of Witnesses

McLeese III, Roy W.:
    Testimony....................................................     9
    Prepared statement...........................................    38
    Biographical and financial information.......................    39
Norton, Hon. Eleanor Holmes:
    Testimony....................................................     8
Robbins, Mark A.:
    Testimony....................................................     3
    Prepared statement...........................................    17
    Biographical and financial information.......................    20
    Letter from the Office of Government Ethics..................    26
    Responses to pre-hearing questions...........................    27

                                APPENDIX

Paul Strauss, U.S. Shadow Senator for the District of Columbia, 
  prepared statement.............................................    60

 
         NOMINATIONS OF MARK A. ROBBINS AND ROY W. MCLEESE III

                              ----------                              


                         TUESDAY, MARCH 6, 2012

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:53 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Daniel K. 
Akaka presiding.
    Present: Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Let me apologize. As you know, we had two 
votes and the vote is still going on. I am the first name. So I 
was able to vote and run. [Laughter.]
    Good afternoon and welcome, everyone. This hearing will 
come to order.
    Today, the Committee on Homeland Security and Governmental 
Affairs meets to consider the nomination of Mark Robbins to be 
a Member of the Merit Systems Protection Board (MSPB). On the 
second panel of today's hearing, we will consider the 
nomination of Roy McLeese III to be an Associate Judge of the 
D.C. Court of Appeals. I would like to extend a warm welcome to 
both of these nominees, and I look forward to their testimony 
today.
    Mr. Robbins has spent most of his professional career in 
Federal service and has significant experience with Federal 
personnel issues. From 2001 through 2006, he served as General 
Counsel of the Office of Personnel Management (OPM) where, 
among other duties, he was responsible for determining whether 
OPM should intervene in or seek reconsideration of board 
decisions.
    Mr. Robbins currently serves as General Counsel at the U.S. 
Election Assistance Commission, an independent, bipartisan 
commission established under the Help America Vote Act of 2002 
to improve voting systems and voter access across the country.
    Mr. Robbins received his undergraduate and law degrees from 
George Washington University.
    I would like to thank Mr. Robbins for his public service 
and his focus on Federal workforce issues.
    I had a nice visit with Mr. Robbins, and I understand, Mr. 
Robbins, that your parents, Neal and Janet Robbins, are here 
and have traveled all the way from Arizona to be with us today. 
I want to give you the opportunity to acknowledge them and any 
other friends and family present at this time. Will you please 
do that, Mr. Robbins?
    Mr. Robbins. Thank you, Mr. Chairman.
    I would like to recognize my parents, Neal and Janet 
Robbins. They have been supportively behind me my entire life. 
So it is fitting that they are literally, and figuratively, 
behind me this afternoon. [Laughter.]
    Senator Akaka. Thank you very much. Aloha again and welcome 
to you, your family, and your friends. I am happy to see so 
many here today.
    The Civil Service Reform Act of 1978 created the Merit 
Systems Protection Board to protect merit system principles and 
prevent unfair practices in the workplace. In addition to 
appeals of alleged prohibited practices and adverse actions, 
the Board hears cases under the Whistleblower Protection Act, 
the Hatch Act, the Veterans' Employment Opportunity Act, and 
the Uniformed Services Employment and Reemployment Rights Act 
(USERRA).
    I believe that the position to which Mr. Robbins has been 
nominated is among the most important in the Federal Civil 
Service, and I look forward to hearing his views on the many 
important issues affecting the Federal workforce.
    At a time when Federal employees are under-appreciated and 
often disparaged, it is important to take this opportunity to 
recognize the critical work they do, securing our nation, 
keeping our food safe, caring for wounded warriors, and many 
other critical tasks. These dedicated individuals are among 
this country's greatest assets. To provide the best possible 
service to the American people, Federal employees must be able 
to serve in a workplace without fear of discrimination or undue 
influence.
    Mr. Robbins, if you are confirmed, I expect you to be a 
strong advocate of the merit system and Federal employees' 
rights. You have significant experience in this area, and I am 
hopeful that you can make a difference.
    One of the most important functions of the Board is to 
protect the Federal whistleblowers from illegal retaliation. As 
a sponsor of the Whistleblower Protection Enhancement Act, I 
believe it is vital that Federal employees be able to report 
waste, fraud, and abuse without fear. Whistleblowers are 
essential to accountable, fiscally responsible government.
    Last year, according to the Department of Justice, private 
sector whistleblowers reporting fraud against the government 
were responsible for nearly $3 billion recovered by the 
government in civil cases, but Federal employees who blow the 
whistle simply do not receive the protections they need at this 
time. I am hopeful that Congress will finally pass my bill so 
Federal employees and taxpayers will have these protections.
    Other responsibilities of the Board include reviewing OPM 
regulations and conducting studies on the merit systems. I 
understand that the Board is currently conducting studies on 
important issues such as implementing effective telework 
programs in the Federal Government, the importance of 
protecting against stereotyping of and discrimination against 
women in the Federal workforce, and an explanation of each 
prohibited personnel practice under the law with real-world 
examples.
    Again, I look forward to Mr. Robbins' testimony here today.
    Mr. Robbins has filed responses to a biographical and 
financial questionnaire and answered pre-hearing questions 
submitted by the Committee. Without objection, this information 
will be made part of the hearing record, with the exception of 
the financial information, which is on file and available for 
public inspection at the Committee office.
    Our Committee rules require that witnesses at nomination 
hearings give their testimony under oath. Therefore, I ask you 
to please stand, Mr. Robbins, and raise your right hand.
    Do you swear that the testimony you are about to give this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Mr. Robbins. I do.
    Senator Akaka. Thank you very much.
    Let it be noted for the record that the witness answered in 
the affirmative.
    Mr. Robbins, please proceed with your statement.

TESTIMONY OF MARK A. ROBBINS \1\ TO BE A MEMBER, MERIT SYSTEMS 
                        PROTECTION BOARD

    Mr. Robbins. Chairman Akaka and Members of the Committee, I 
appreciate this opportunity to present my qualifications and 
respond to your questions regarding my nomination to be a 
Member of the U.S. Merit Systems Protection Board. I do have a 
few brief opening remarks and a longer statement for the 
record, with your permission.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Robbins appears in the Appendix 
on page 17.
---------------------------------------------------------------------------
    I want to thank the President of the United States for the 
privilege and honor of this nomination; I want to thank Senator 
Mitch McConnell for his recommendation to the President; and I 
want to thank Senator Susan Collins for her early and very 
gracious support. If confirmed, I will carry out my 
responsibilities with the highest degree of professionalism and 
integrity.
    As an historian by both education and avocation, I am 
particularly pleased to be nominated to a position once 
occupied by a young Theodore Roosevelt, who served as then-U.S. 
Civil Service Commissioner from 1889 to 1895 under Presidents 
Benjamin Harrison and Grover Cleveland.
    As he wrote to a friend upon assuming his duties in 1889, 
``I have pretty hard work and work of a sometimes rather 
irritating kind; but I am delighted to be engaged in it. I 
intend to hew the line and let the chips fall where they 
will.''
    And Mr. Chairman, I think we can agree that the chips fell 
well for Theodore Roosevelt.
    The future President brought to this position a passion for 
and dedication to a spoils-free, merit-based Federal Civil 
Service. However, he brought little in the way of practical 
experience with the Federal workforce.
    Like the colleagues I hope to join, Chairman Susan Grundman 
and Vice Chairman Anne Wagner, and the member I would succeed, 
Mary Rose, I bring to the MSPB a career of experience with the 
issues I will face, if confirmed.
    Mr. Chairman, as your kind introductory remarks 
highlighted, with my career, I have been involved with Federal 
Civil Service issues most of my adult life, going back almost 
to the passage of the Civil Service Reform Act in 1978. I began 
covering Civil Service issues as a young staffer for the House 
of Representatives and did two stints with the White House 
Office of Presidential Personnel. And I was very privileged and 
honored to serve 5 years as General Counsel at the U.S. Office 
of Personnel Management.
    The next few years are going to be an exciting time to 
serve at the MSPB. The last Congress passed updates to the 
Uniformed Services Employment and Reemployment Rights Act.
    Mr. Chairman, I know the importance, we have discussed 
together the importance, you place in enhancing Federal 
whistleblower protections. I note that both this Committee and 
the House Oversight and Government Reform Committee have passed 
versions of the Whistleblower Protection Enhancement Act. I am 
also aware that the Office of Special Counsel has proposed 
legislative initiatives to update the Hatch Act.
    My previous experiences with these and other relevant 
issues have either been as an attorney advisor or in public 
policy and Administration positions. I fully understand that, 
if confirmed, I will be taking a new and unique role as an 
impartial, objective adjudicator. I believe I am qualified for 
that responsibility, and I am excited at the possibility.
    During this confirmation process, I have been asked several 
times whether I bring to public service generally, and this 
appointment specifically, a governing philosophy. And I do.
    No one states it better than then-President Theodore 
Roosevelt in 1909 when he wrote, ``The national government 
should be a model employer. It should demand the highest 
quality of service from each of its employees, and it should 
care for all of them properly in return.''
    The MSPB is a modern, necessary component of that 
philosophy, and I am honored to be considered for appointment 
to it.
    Before concluding, I would like to thank those who have 
assisted me in this process--my parents, the rest of my family, 
friends, and colleagues who have given me advice and moral 
support. And I am very appreciative of the shepherding process 
work that the staffs at the White House, in the Senate, and at 
the MSPB have done on my behalf.
    Mr. Chairman, I want to thank you again for this 
opportunity, and I look forward to responding to any questions 
the Committee may have.
    Senator Akaka. Thank you very much for your statement.
    I will begin with the standard questions that this 
Committee asks of all nominees.
    Is there anything you are aware of in your background that 
might present a conflict of interest with the duties of the 
office to which you have been nominated?
    Mr. Robbins. No, sir.
    Senator Akaka. Do you know of anything, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated?
    Mr. Robbins. No, sir.
    Senator Akaka. Finally, do you agree, without reservation, 
to respond to any reasonable summons to appear and testify 
before any duly constituted committee of Congress if you are 
confirmed?
    Mr. Robbins. Yes, sir.
    Senator Akaka. Thank you very much for your responses.
    Mr. Robbins, please discuss how your experience in Federal 
service, and in particular as General Counsel at the OPM, will 
assist you as a member of the Board if you are confirmed?
    Mr. Robbins. Thank you, Mr. Chairman. As I alluded to in my 
opening remarks, I do have a lifelong career of experience with 
Federal Civil Service issues. I think that is important because 
it will allow me to assume my responsibilities without a 
learning curve. I am going to be dealing with them now from a 
slightly different angle than I have in the past, but the 
issues remain the same.
    I have been out of Federal Civil Service issues and policy 
for about 4 or 5 years, but it will not take me long to get 
back up to speed on the issues that face the Federal Civil 
Service as an institution and the MSPB as an agency.
    As you mentioned in your opening remarks, one of the 
responsibilities I had as General Counsel at OPM was to 
coordinate the agency's Title V, Chapter 77 statutory rights to 
intervene in and seek reconsideration of MSPB decisions. I had 
a wonderful staff that helped me with that, and it was one of 
the more enjoyable exercises of responsibility I had at OPM. It 
is a little like playing a mini solicitor general, deciding 
where OPM is going to intervene and seek reconsideration.
    We do so, or OPM does so, if two criteria are met. The 
first is that the issues being considered have to involve 
rules, laws, or regulations over which OPM has jurisdiction, 
and the potential decision of the MSPB has to have a 
significant impact on those rules, laws, and regulations.
    So I am familiar with how the MSPB operates. I am familiar 
in terms of the legal issues that might come before the body 
itself. And also on a wider, sort of broader level I suppose, I 
understand the policy considerations that go into what 
constitutes the rules and regulations that I will be charged 
with enforcing.
    Senator Akaka. Mr. Robbins, as I noted in my opening 
statement, Federal employees provide a valuable service to our 
country and save taxpayers money when they expose waste, fraud, 
and abuse in the government.
    What is your view of the role whistleblowers play in 
strengthening the merit system and improving the effectiveness 
of Federal Government?
    Mr. Robbins. Whistleblower protections are, above all else, 
a good government tool. They bring transparency to the process. 
As you mentioned, they target waste, fraud, and abuse, and 
promote the health and safety not only of the Federal Civil 
Service but of the American public.
    I am a strong supporter of whistleblower protections, and I 
do look forward to, with Senate confirmation, joining the Board 
and enforcing the enhancements that you are shepherding through 
the Senate at this point.
    Senator Akaka. Thank you.
    Mr. Robbins, as you know, the Board adjudicates claims 
under the Uniformed Services Employment and Reemployment Rights 
Act and the Veterans' Employment Opportunity Act. As a senior 
member of the Senate Veterans Affairs Committee, I am strongly 
committed to promoting veterans' employment.
    Please describe any experience you have with these statutes 
and discuss what you will do to ensure our Nation's veterans 
are given the opportunities to which they are entitled.
    Mr. Robbins. Mr. Chairman, veterans' preference and USERRA 
are issues of personal importance to me. I had the privilege of 
serving my country with the State Department for 19 months in 
Iraq as a Senior Rule of Law Advisor in Babil Province. And I 
was working with men and women who were from the National Guard 
and the Reserves, called up to come to Iraq and fight a war on 
behalf of their country. I am pleased that one of my colleagues 
is here with me today.
    I know from personal experience the anxiety that goes 
through these soldiers' minds when they are not sure they have 
a job waiting for them when they come back. I also note, with 
chagrin, that according to recent press reports in the 
Washington Post, one of the biggest offenders of USERRA rights 
as an employer is, in fact, the Federal Government.
    Now I do not believe that people would necessarily, or 
intentionally, violate USERRA and veterans' preferences. There 
are those that will, but the overwhelming problem I believe is 
education. I think people need to know what the law says and 
how it applies to men and women who are leaving their jobs with 
the Federal Government and going to serve their country.
    I have to be careful because I will be the adjudicator of 
these claims, so I cannot be an advocate, but I am a very 
strong supporter of those two pieces of legislation and their 
effective use within the Federal Civil Service.
    Senator Akaka. Well, thank you for that response.
    Mr. Robbins, as you know, most Federal employees are not 
represented by counsel during the MSPB process. In your answers 
to the Committee's pre-hearing questions, you referenced the 
importance of complying with my Plain Writing Act of 2010.
    How do you believe the Board can make complicated legal 
rules and regulations, along with its decisions, more easily 
understood by Federal employees who are unfamiliar with the 
legal process?
    Mr. Robbins. Asking lawyers to uncomplicate issues is 
always an interesting topic to raise. But you know, I think a 
good deal of progress can be made if decisions and instructions 
for practitioners before the Board are done in plain English, 
as plain as can be when you are dealing with legal processes 
and issues.
    I also believe that the use of standardized documents and 
automation through the Web is a handy tool for making the 
process more user-friendly and accessible.
    I note, although I do not know much about it, that the MSPB 
has begun to move a lot of its appellate process online so that 
those who believe they may have a claim that they can take to 
the MSPB can get online, take a look through the MSPB's Web 
page at what some of the issues they are going to have to 
address before they can file, and then some of the forms are 
there, too.
    And if confirmed, I am looking forward to talking with 
staff to see how that has sped up the system, how it has made 
it more user-friendly for practitioners, and whether there are 
criteria that actually are able to measure that movement 
forward.
    Senator Akaka. Thank you.
    As you know, Mr. Robbins, one of the Board's statutory 
responsibilities is to conduct studies relating to the Civil 
Service and report to the President and Congress. I would like 
to know the issues on which you believe the Board should focus 
future studies.
    Mr. Robbins. The studies responsibility of the MSPB is an 
important one. It is obviously provided for in Title V. The 
process on how those studies are adopted has changed over the 
years, and a lot of that depends on who the chairman is and the 
constituency of the Board, who the members are.
    I note that they have recently adopted a 5-year plan 
identifying studies they want to engage in. I do know that, 
like all other Federal agencies, budget issues and staff 
attrition and the inability to backfill positions is becoming a 
problem.
    One of the things I would encourage the Board to do in 
considering what studies it should undertake is to focus on 
that area where the Board brings unique strength--those 
particular issues where we have specific, credible knowledge 
based primarily on the adjudication function--so that if, for 
instance, let us say the last 20 cases that came before the 
Board all have one common element to them, we should be able to 
study that, analyze it, and make recommendations to the policy 
arm of the Federal Civil Service management team, which would 
be OPM, and to Congress, how addressing that commonality that 
we have been able to identify will ease the process. It will 
lessen the burden. It will erase ambiguity in the process and 
bring better government.
    Senator Akaka. Thank you for that response.
    We have discussed many important issues the Board faces. If 
confirmed, what will be your long-term priorities as a Board 
member?
    Mr. Robbins. Mr. Chairman, I do not come to this job with 
an agenda. I would like at the end of my tenure to have people 
say he exemplified the service of Commissioner Theodore 
Roosevelt; his opinions were well written, well reasoned, 
easily understood, timely; he brought management and 
administrative experience to the table to assist the chair when 
she thought it was prudent; and that in the end I brought honor 
to my family and friends in doing so.
    Senator Akaka. Well, I thank you very much and thank you 
for visiting me. We had a nice personal and friendly chat about 
your background. And we look forward to the Committee making 
the decision on your nomination and trying to move it as 
quickly as we can so you can get to work as a Board member.
    Mr. Robbins. Thank you, Senator. I would appreciate that.
    Senator Akaka. Thank you very much, and I really appreciate 
your bringing your parents and also your friends here. I am 
sure your parents are proud of you and what you have been doing 
all of these years.
    The Merit Systems Protection Board makes important 
decisions affecting some of the most valuable assets of our 
country, our Federal workers.
    I thank you very much for coming and wish you well.
    Mr. Robbins. Thank you, Senator.
    Senator Akaka. Thank you very much and thank you for your 
testimony. There are no further questions.
    Thank you, Mr. Robbins.
    The hearing record will remain open until the close of 
business Tuesday, March 13, for Members of this Committee to 
submit additional statements or questions. Any questions will 
be submitted to you in writing.
    I would like to call up our second panel, please. As we 
consider the nomination of Roy McLeese III to be Associate 
Judge of the District of Columbia Court of Appeals, I am so 
glad the timing is perfect for Congresswoman Norton. She is a 
busy woman, and I am always delighted to have her come and talk 
about those who will be within her realm of Washington, DC. So 
I would like to welcome Congresswoman Norton to the Committee 
and will yield for her introduction of Mr. McLeese.
    Congresswoman Norton, please proceed.

TESTIMONY OF HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS 
                 FROM THE DISTRICT OF COLUMBIA

    Ms. Norton. Well, thank you very much, Mr. Chairman, and I 
thank you for all of your help for the city and especially the 
help you are giving us with our courts at the present time.
    I am pleased to strongly recommend Roy Wallace McLeese III 
for the highest court for the District of Columbia, the 
District of Columbia Court of Appeals.
    Mr. McLeese serves now as Chief of the Appellate Division 
in the Office of the U.S. Attorney for the city. He supervises 
criminal appellate litigation not only for the District of 
Columbia Court of Appeals, but also for the U.S. Court of 
Appeals for the District of Columbia Circuit Court.
    He began his career as an Assistant U.S. Attorney in this 
city. He has since also served in the Office of Solicitor 
General, including as Acting Deputy Solicitor General.
    Mr. McLeese has argued cases in the court on which he seeks 
to serve as well as in the District of Columbia Court of 
Appeals and the Supreme Court of the United States.
    He is a graduate of Harvard University and NYU Law School, 
where he was editor-in chief of the law review. He clerked for 
Justice Antonin Scalia when the Justice was a judge on this 
circuit and for the Justice when he became a Justice of the 
U.S. Supreme Court.
    I think you will agree when you hear from him, Mr. 
Chairman, that he is highly qualified to serve on our own 
highest court here in the District of Columbia, and I thank 
you, sir.
    Senator Akaka. Thank you very much, Congresswoman Norton. 
It is always good to see you here. You are welcome anytime.
    It is good of you to take time off to be here to help us 
with this nomination. We really do appreciate your being here 
today to introduce Mr. McLeese, despite your busy schedule. So, 
thank you again.
    Ms. Norton. Thank you, Mr. Chairman.
    Senator Akaka. Mr. McLeese has a distinguished legal 
career, devoted to public service. He is currently the Chief of 
the Appellate Division of the U.S. Attorney's Office for the 
District of Columbia and has twice been detailed to the Office 
of the Solicitor General to argue complex cases before the U.S. 
Supreme Court. Mr. McLeese also clerked for the Federal Court 
of Appeals for the D.C. Circuit and U.S. Supreme Court.
    This Committee consistently receives excellent candidates 
nominated by the President from those recommended to him by the 
nonpartisan Judicial Nomination Commission. Like others who 
have appeared before the Committee, I believe Mr. McLeese is 
well qualified and has much to offer the District bench. I hope 
we can act quickly to confirm him.
    I understand, Mr. McLeese, you have loved ones here with 
you today, and I would like to give you an opportunity to 
introduce them at this time. Please proceed.
    Mr. McLeese. Thank you, Mr. Chairman.
    I would like to introduce my beloved wife, Virginia Seitz; 
my son, Roy Seitz-McLeese. We also have two dear family friends 
who traveled from Connecticut to attend the hearing--Katie Fine 
and Jonas Rosenbruch.
    Senator Akaka. Welcome to the Committee.
    Thank you. I am sure they are proud of all you have 
accomplished and look forward to this new chapter in your life.
    The nominee has filed responses to a biographical and 
financial questionnaire submitted by the Committee. Without 
objection, this information will be made part of the hearing 
record, with the exception of the financial data, which will be 
kept on file and made available for public inspection in the 
Committee office.
    Our Committee rules require that all witnesses in 
nomination hearings give their testimony under oath. Therefore, 
at this time, I will ask Mr. McLeese to please stand and raise 
your right hand.
    Do you solemnly swear the testimony you are about to give 
this Committee will be the truth, the whole truth, and nothing 
but the truth, so help you, God.
    Mr. McLeese. I do.
    Senator Akaka. Thank you. Let the record note that the 
witness answered in the affirmative.
    Mr. McLeese, please proceed with your statement.

 TESTIMONY OF ROY W. MCLEESE III\1\ TO BE AN ASSOCIATE JUDGE, 
             DISTRICT OF COLUMBIA COURT OF APPEALS

    Mr. McLeese. Thank you. Mr. Chairman, and Members of the 
Committee, I am grateful for the opportunity to appear before 
you as the Committee considers my nomination to be an Associate 
Judge of the District of Columbia Court of Appeals.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. McLeese appears in the Appendix 
on page 38.
---------------------------------------------------------------------------
    I thank the District of Columbia's Judicial Nomination 
Commission and the President for the honor of the nomination.
    I also thank the Committee and its staff for all the work 
that goes into preparing for and conducting the hearing.
    I also wanted to thank Congresswoman Norton for taking time 
out of her schedule to appear and to make a statement on my 
behalf.
    I did have a chance a moment ago to introduce family 
members and dear friends who are present. I also have family 
members who are using technology to watch from afar. My 
daughter, Miranda Seitz-McLeese, is at college in Chicago and 
could not attend, but she is hopefully, technology willing, 
watching the proceedings from there. My mother, my brother, my 
sister, and their families are all in St. Louis, Missouri, and 
again, hopefully are watching from afar.
    I also have a number of friends and colleagues who are here 
and attending the hearing, or who are watching from elsewhere, 
and I appreciate all of them coming, or watching, as their 
schedules permit.
    Since I graduated from law school in 1985, I have spent my 
entire career in government service. I have spent that entire 
career working in or appearing before the courts in the 
District of Columbia.
    For over the last 20 years, I have been a supervisor in the 
Appellate Division at the U.S. Attorney's Office here in 
Washington, DC, and in that capacity, I have practiced 
primarily in the D.C. Court of Appeals, arguing and briefing 
cases myself, and supervising others who are arguing or 
litigating in that court.
    And over those years, I have had an opportunity to develop 
the highest respect for that court and for the significance of 
its work. It would be a great privilege to continue in public 
service as a member of that court.
    Mr. Chairman, I thank you for considering my nomination, 
and I look forward to answering your questions.
    Senator Akaka. Thank you very much.
    I will begin with the standard questions this Committee 
asks of all nominees and would like you to answer each 
question.
    Is there anything you are aware of in your background that 
might present a conflict of interest with the duties of the 
office to which you have been nominated?
    Mr. McLeese. No, Mr. Chairman.
    Senator Akaka. Thank you.
    Do you know of anything, personal or otherwise, that would 
in any way prevent you from fully and honorably discharging the 
responsibilities of the office to which you have been 
nominated?
    Mr. McLeese. No, Mr. Chairman.
    Senator Akaka. Do you agree, without reservation, to 
respond to any reasonable summons to appear and testify before 
any duly constituted committee of Congress, if you are 
confirmed?
    Mr. McLeese. Yes, I do, Mr. Chairman.
    Senator Akaka. Thank you for your responses.
    Mr. McLeese, you have impressive credentials and spent your 
entire legal career with the Federal Government. I commend your 
decision to continue public service by joining the D.C. 
Judicial System. Please elaborate on why you are seeking the 
appointment to become an associate judge at this point in your 
career?
    Mr. McLeese. Mr. Chairman, as I mentioned in my opening 
remarks, I have had the opportunity to practice in front of 
that court primarily for the last 20 years, and I think that 
the longer you do that, the more you develop background and 
experience that might allow you to make a contribution to that 
court. And I think over the years, I have come to be very 
familiar with the Court's law and its procedures. And so, I 
think one component of it is I feel as though I now have the 
background and experience to hit the ground running or make a 
contribution to that court if I were to be confirmed.
    Senator Akaka. Mr. McLeese, the Court of Appeals handles a 
heavy caseload, and judges must rule on complex issues, both 
quickly and correctly. At the same time, litigants must feel 
they received a fair hearing where they were heard and 
respected. Please describe how your experience qualifies you to 
meet these challenges.
    Mr. McLeese. The U.S. Attorney's Office Appellate Division 
also has a very heavy burden, a very heavy caseload. In any 
given year in recent times, the Appellate Division has filed 
somewhere in the neighborhood of 500 to 750 briefs or 
substantive pleadings. And the process of preparing some of 
those pleadings myself, a small proportion of them, and then 
managing and supervising the filing of the rest of them has 
given me a full opportunity to do appellate work, to try to 
maintain high quality as we do that appellate work but to do it 
under conditions that mean we have to work hard and we have to 
work efficiently in order to keep up with the heavy burdens.
    I think a lot of those challenges are very similar to the 
challenges that the judges on the D.C. Court of Appeals face.
    Senator Akaka. Mr. McLeese, as we have discussed, associate 
judges review a high volume of cases and must be able to 
prioritize and delegate certain tasks. Please describe your 
management style, including the role you envision for law 
clerks in the chamber.
    Mr. McLeese. One of the most enjoyable parts of being a 
supervisor at the U.S. Attorney's Office Appellate Division is 
getting the chance to work with the young attorneys who are 
oftentimes starting in the U.S. Attorney's Office. One of the 
first places some start is in the Appellate Division.
    One of the jobs of the supervisors in the Appellate 
Division is to help those young lawyers do two things. One is 
to produce good briefs that we can file in court at high 
quality but also to learn how to become good appellate lawyers 
and good government lawyers.
    I think the process of working with young attorneys to 
produce high quality appellate work--again, very busy context--
is very similar to the relationship that an appellate judge 
would have with his or her law clerks in working with them to, 
again, get the benefit of their contribution but also to try to 
teach and develop them as young lawyers.
    Senator Akaka. Mr. McLeese, during your time with the U.S. 
Attorney's Office, you have, no doubt, become familiar with the 
Court of Appeals' rules and possibly some ways it could 
improve. What do you think the Court's biggest challenge is, 
and if confirmed, what role would you play in addressing that 
challenge?
    Mr. McLeese. I think the Court's biggest challenge is 
something that you mentioned earlier, Mr. Chairman, which is 
the difficulty of continuing to provide high quality opinions 
and decisions in cases while governing a very heavy caseload.
    The District of Columbia Court of Appeals has appeals as of 
right. It does not have discretionary authority to control its 
caseload, and it is supervising judgments from a very busy city 
judicial system that generates quite a lot of work. And so, I 
think the Court's biggest challenge is to continue to maintain 
the quality of its decisions but to be timely and efficient in 
getting those cases resolved.
    If I were confirmed, I think judges can contribute to that 
challenge of the Court in two ways. One is individualized to 
the judge's own chambers, and that is working with respect to 
the particular cases that you are assigned and are working on 
to try to make sure that you and your chambers are meeting that 
challenge of getting those decisions out quickly but at a very 
high quality.
    I think that it can help to have similar experiences in 
producing a similar kind of work, and a lot of that is just 
putting in the hours and the work to try to make sure that you 
are getting all of that done and getting it done efficiently.
    I do think judges also can contribute to that in a more 
systemic way. There are issues of policy about things like how 
the Court moves into electronic case filing and case 
management, which can add efficiency, how the Court works with 
the other entities the Court interacts with.
    The issues of speed and decision are not only about the 
time that it takes from when a case is ready for the judges to 
resolve until the time the judges resolve it. There are a lot 
of earlier steps in the process, involving the getting of 
transcripts and the filing of briefs by the parties, about 
which the Court has an administrative set of responsibilities.
    If I were confirmed, I would be quite interested in 
attempting to contribute to the problem from a more 
administrative or managerial perspective as well as simply from 
the perspective of getting decisions out timely from an 
individual chambers.
    Senator Akaka. This is my final question. During your 
career, you have appeared before many judges and, no doubt, 
learned a great deal from observing them. Describe some of the 
qualities you hope to emulate as a judge and those you hope to 
avoid.
    Mr. McLeese. The qualities I most admire in judges circle 
around words like fairness and civility, those two words.
    I am focused right now on appellate judges. That is my 
experience, and that is our current context.
    Generally, the litigants' first exposure to an appellate 
judge is at the oral argument. So in the context of oral 
argument, I think judges do best when they are polite, 
respectful of the lawyers; they are well prepared so that they 
can ask questions that are the questions that are helpful to 
resolve the case, but they are interested in listening to the 
litigants' answers and are, again, respectful in manner and 
tone, both to the litigants and to the parties and the issues 
that bring the parties into the litigation.
    I think there are similar attributes in the opinion-writing 
process. That is the other time when litigants primarily, and 
parties and lawyers, are exposed to judges and are formulating 
reactions to them.
    I think, again, the same set of principles are important--
opinions that are thorough and that address each of the 
arguments that the parties are making so that the parties 
correctly feel as though their case has been given fair and 
respectful consideration, that acknowledge the pros and cons 
and deal with each part of a case in a fair, even-handed way, 
and that are respectful in tone, both about the litigants and 
about counsel.
    I think those things are all quite important.
    And relatedly, I think those same characteristics also 
serve well in judges' interactions with their colleagues in 
terms of being civil on the bench in your opinions when you are 
dissenting from one of your colleagues' opinions, or vice-
versa. I think a calm, respectful tone is a key characteristic 
that I would like to emulate if I were confirmed.
    And obviously, I would hope to avoid the converse of most 
of those attributes.
    Senator Akaka. Thank you. Thank you very much for your 
testimony and your responses to my questions. There are no 
further questions at this time.
    Members of the Committee may submit additional statements 
or questions, which will be given to you in writing. The 
hearing record will remain open until the close of business 
Tuesday, March 13.
    I want to, again, thank Congresswoman Norton for 
introducing you and for taking time to be with us today.
    I want to note for the record that Paul Strauss is 
submitting a statement of support for your nomination,\1\ Mr. 
McLeese.
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    \1\ The prepared statement of Mr. Strauss appears in the Appendix 
on page 60.
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    It is my hope that this Committee and the Senate will be 
able to act quickly on both of today's nominations.
    I thank you very much for coming, and it is great to meet 
your family. I know they are proud of you. I like to say that 
you are as good as you are because of them.
    Mr. McLeese. Certainly true.
    Senator Akaka. You have great supporters, and I am sure 
they will continue to support you. So, it is good to meet your 
family and friends.
    So, thank you very much. This hearing is adjourned.
    [Whereupon, at 3:43 p.m., the Committee was adjourned.]



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