[Senate Hearing 112-72, Part 4]
[From the U.S. Government Publishing Office]


                                                   S. Hrg. 112-72, Pt.4
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

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             SEPTEMBER 7, SEPTEMBER 20, AND OCTOBER 4, 2011

                               ----------                              

                           Serial No. J-112-4

                               ----------                              

                                 PART 4

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         Printed for the use of the Committee on the Judiciary











             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS












                                                   S. Hrg. 112-72, Pt.4

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

             SEPTEMBER 7, SEPTEMBER 20, AND OCTOBER 4, 2011

                               __________

                           Serial No. J-112-4

                               __________

                                 PART 4

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------
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                       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

                              ----------                              

                           September 7, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................     1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     9
    prepared statement...........................................   306

                               PRESENTERS

Baucus, Hon. Max, a U.S. Senator from Montana presenting Dana 
  Christensen Nominee to be U.S. District Judge for the District 
  of Montana.....................................................     2
Feinstein, Hon. Dianne, a U.S. Senator from California presenting 
  Cathy Bencivengo Nominee to be U.S. District Judge for the 
  Southern District of California................................     3
Manchin, Hon. Joe, a U.S. Senator from the State of West Virginia 
  presenting Gina Marie Groh Nominee to be U.S. District Judge 
  for the Northern District of West Virginia.....................     7
Reid, Hon. Harry, a U.S. Senator from the State of Nevada 
  presenting Evan Wallach Nominee to be U.S. Circuit Judge for 
  the Federal Circuit............................................     6
Schumer, Hon. Charles E., U.S. Senator from the State of New York 
  presenting Margo Brodie Nominee to be U.S. District Judge for 
  the Eastern District of New York...............................     4
Tester, Hon. Jon, a U.S. Senator from the State of Montana 
  presenting Dana Christensen Nominee to be U.S. District Judge 
  for the District of Montana....................................     5

                       STATEMENTS OF THE NOMINEES

Bencivengo, Cathy Ann, Nominee to be U.S. District Judge for the 
  Southern District of California................................   129
    Questionnaire................................................   130
Brodie, Margo, Nominee to be U.S. District Judge for the Eastern 
  District of New York...........................................   221
    Questionnaire................................................   223
Christensen, Dana, Nominee to be U.S. District Judge for the 
  District of Montana............................................    95
    Questionnaire................................................    96
Groh, Gina Marie, Nominee to be U.S. District Judge for the 
  Northern District of West Virginia.............................   177
    Questionnaire................................................   178
Wallach, Evan, Nominee to be U.S. Circuit Judge for the Federal 
  Circuit........................................................     9
    Questionnaire................................................    16

                         QUESTIONS AND ANSWERS

Responses of Cathy Bencivengo to questions submitted by Senators 
  Grassley and Klobuchar.........................................   271
Responses of Margo Brodie to questions submitted by Senators 
  Grassley and Klobuchar.........................................   275
Responses of Dana Christensen to questions submitted by Senators 
  Grassley and Klobuchar.........................................   279
Responses of Gina Groh to questions submitted by Senators 
  Grassley and Klobuchar.........................................   284
Responses of Evan Wallach to questions submitted by Senators 
  Grassley and Klobuchar.........................................   289

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Benjamin H. Hill, III, Chair, 
  Washington, DC:
    Cathy Bencivengo, May 12, 2011, letter.......................   296
    Margo Brodie, June 13, 2011, letter..........................   298
    Dana Christensen, May 6, 2011, letter........................   300
    Gina Groh, May 20, 2011, letter..............................   302
    Evan Wallach, July 29, 2011, letter..........................   304
New York City Bar, Elizabeth Donoghue, Chair, Committee on the 
  Judiciary, New York, New York, July 13, 2011, letter...........   312
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of 
  West Virginia, prepared statement..............................   313

                      Tuesday, September 20, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   322
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..   315

                               PRESENTERS

Hatch Hon. Orrin G., a U.S. Senator from the State of Utah 
  presenting David Nuffer Nominee to be District Judge for the 
  District of Utah...............................................   320
Johanns, Hon. Mike, a U.S. Senator from the State of Nebraska 
  presenting John M. Gerrand Nominee to be District Judge for the 
  District of Nebraska...........................................   316
Lee, Hon. Mike, a U.S. Senator from the State of Utah presenting 
  David Nuffer Nominee to be District Judge for the District of 
  Utah...........................................................   321
McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri 
  presenting Mary Elizabeth Phillips Nominee to be District Judge 
  for the Western District of Missouri...........................   317
Nelson, Hon. Ben, a U.S. Senator from the State of Nebraska 
  presenting John M. Gerrand Nominee to be District Judge for the 
  District of Nebraska...........................................   315
Nelson, Hon. Bill, a U.S. Senator from the State of Florida 
  presenting Adalberto Jose Jordan Nominee to be Circuit Judge 
  for the Eleventh Circuit.......................................   318
Rubio, Hon. Marco, a U.S. Senator from the State of Florida 
  presenting Adalberto Jose Jordan Nominee to be Circuit Judge 
  for the Eleventh Circuit.......................................   319

                       STATEMENT OF THE NOMINEES

Jordan, Adalberto Jose, Nominee to be Circuit Judge for the 
  Eleventh Circuit...............................................   323
    Questionnaire................................................   324
Gerrard, John M., Nominee to be District Judge for the District 
  of Nebraska....................................................   418
    Questionnaire................................................   420
Nuffer, David, Nominee to be District Judge for the District of 
  Utah...........................................................   579
    Questionnaire................................................   580
Phillips, Mary Elizabeth, Nominee to be District Judge for the 
  Western District of Missouri...................................   480
    Questionnaire................................................   481
Rice, Thomas Owen, Nominee to be District Judge for the Eastern 
  District of Washington.........................................   522
    Questionnaire................................................   523

                         QUESTIONS AND ANSWERS

Responses of John M. Gerrard to questions submitted by Senator 
  Grassley.......................................................   650
Responses of Adalberto Jose Jordan to questions submitted by 
  Senator Grassley...............................................   655
Responses of David Nuffer to questions submitted by Senator 
  Grassley.......................................................   664
Responses of Mary Elizabeth Phillips to questions submitted by 
  Senator Grassley...............................................   667
Responses of Thomas Owen Rice to questions submitted by Senator 
  Grassley.......................................................   670

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Benjamin H. Hill, III, Washington, DC:
    John M. Gerrard, May 6, 2011, letter.........................   673
    Adalberto Jordan, August 11, 2011, letter....................   675
    David Nuffer, July 6, 2011, letter...........................   677
    Mary Elizabeth Phillips, June 8, 2011, letter................   679
    Thomas O. Rice, June 30, 2011, letter........................   681
Campbell, Walter G., Law Office, Krupnick Campbell Malone Buser 
  Slama Hancock Liberman & McKee, Fort Lauderdale, Florida, 
  September 15, 2011, letter.....................................   683
Hispanic National Bar Association (HNBA), Diana S. Sen, National 
  President, August 1, 2011, letter..............................   684
Moore, Marty E., Attorney, Peck Hadfield Baxter & Moore, LLC, 
  Logan, Utah, July 13, 2011, letter.............................   686
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  prepared statement.............................................   687
Rubio, Hon. Marco, a U.S. Senator from the State of Florida, 
  prepared statement.............................................   689

                        Tuesday, October 4, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................   703
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois.....   693
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   957
Lee, Hon. Michael S., a U.S. Senator from the State of Utah......   694

                               PRESENTERS

Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Michael Walter Fitzgerald Nomine to be District 
  Judge for the Central District of California...................   697
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New 
  York presenting Ronnie Abrams, Nominee to be District Judge for 
  the Southern District of New York..............................   702
Heller, Hon. Dean, a U.S. Senator from the State of Nevada 
  presenting Miranda Du Nominee to be District Judge for the 
  District of Nevada.............................................   700
Manchin, Hon. Joe, III, a U.S. Senator from the State of West 
  Virginia presenting Stephanie Dawn Thacker Nominee to be 
  Circuit Judge for the Fourth Circuit...........................   696
Norton, Hon. Eleanor Holmes, a Representatives in Congress from 
  the District of Columbia presenting Rudolph Contreras, Nominee 
  to be District Judge for the District of Columbia..............   703
Reid, Hon. Harry, a U.S. Senator from the State of Nevada 
  presenting Miranda Du Nominee to be District Judge for the 
  District of Nevada.............................................   699
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of 
  West Virginia presenting Stephanie Dawn Thacker Nominee to be 
  Circuit Judge for the Fourth Circuit...........................   695

                       STATEMENT OF THE NOMINEES

Abrams, Ronnie, Nominee to be District Judge for the Southern 
  District of New York...........................................   792
    Questionnaire................................................   793
Contreras, Rudolph, Nominee to be District Judge for the District 
  of Columbia....................................................   832
    Questionnaire................................................   833
Du, Miranda, Nominee to be District Judge for the District of 
  Nevada.........................................................   862
    Questionnaire................................................   863
Fitzgerald, Michael Walter, Nominee to be District Judge for the 
  Central District of California.................................   750
    Questionnaire................................................   751
Thacker, Stephanie Dawn, Nominee to be Circuit Judge for the 
  Fourth Circuit.................................................   714
    Questionnaire................................................   706

                         QUESTIONS AND ANSWERS

Responses of Ronnie Abrams to questions submitted by Senators 
  Grassley and Klobuchar.........................................   907
Responses of Rudolph Contreras to questions submitted by Senators 
  Grassley and Klobuchar.........................................   910
Responses of Miranda Du to questions submitted by Senators 
  Grassley and Klobuchar.........................................   914
Responses of Michael Walter Fitzgerald to questions submitted by 
  Senators Grassley and Klobuchar................................   922
Responses of Stephanie Dawn Thacker to questions submitted by 
  Senators Coburn, Grassley, Klobuchar and Sessions..............   925

                       SUBMISSION FOR THE RECORD

American Bar Association, Benjamin H. Hill, III, Chair, 
  Washington, DC:
    Ronnie Abrams, July 29, 2011, letter.........................   942
    Miranda Du, August 6, 2001, letter...........................   944
    Michael W. Fitzgerald, July 21, 2011, letter.................   946
    Stephanie Thacker, September 8, 2011, letter.................   948
Baird, Lourdes G., retired, U.S. District Court, Pasadena, 
  California, September 27, 2011, letter.........................   949
Bonner, Robert, Gibson Dunn & Crutcher, LLP, Los Angeles, 
  California, September 12, 2011, letter.........................   951
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  prepared statement.............................................   953
Cashell, Robert A., Sr., Mayor, Reno, Nevada, August 12, 2011, 
  letter.........................................................   956
Heller, Hon. Dean, a U.S. Senator from the State of Nevada, 
  prepared statement.............................................   960
Gibbons, Sharon, Chairperson, CAAW, Las Vegas, Nevada, August 15, 
  2011, letter...................................................   961
Krolicki, Brian K, Nevada Lieutenant Governor, Carson City, 
  Nevada, August 23, 2011, letter................................   962
National Asian Pacific American Bar Association, Paul O. Hirose, 
  President, and Tina R. Matsuoka, Executive Director, 
  Washington, DC, October 3, 2011, letter........................   963
Nevada Association of Mechanical Contractors (NAM), Rusty Humes, 
  President, Reno Nevada:
    Hon. Patrick Leahy, August 22, 2011, letter..................   965
    Hon. Chuck Grassley, August 22, 2011, letter.................   966
Nevada Chapter, Associated General Contractors, Dave Backman, 
  President, Reno, Nevada, August 22, 2011, letter...............   967
New York, City Bar, Committee on the Judiciary, Elizabeth 
  Donoghue, Chair, New York, New York, September 27, 2011, letter   968
Quinzio, John Michael, retired Police Lieutenant, Anaheim Police 
  Department, Westminster, California, letter....................   969
Sandoval, Brian, Governor, Las Vegas, Nevada, August 22, 2011, 
  letter.........................................................   970
Schiff, Hon. Adam B., a Representative in Congress from the State 
  of Calfornia...................................................   971
Tevrizian, Dickran M., retired U.S. District Judge, September 21, 
  2011, letter...................................................   972
U.S. Congress, Congressional Hispanic Caucus, Charles A. 
  Gonzalez, Chair and Ruben Hinojosa, First Vice Chair, 
  Washington, DC, October 18, 2011, letter.......................   974
Women's Bar Association, Karen Richardson, President, New York, 
  New York, October 4, 2011......................................   975
Yang, Debra Wong, Gibson Dunn & Crutcher, LLP, Los Angeles, 
  California, October 3, 2011, letter............................   977
Yoxsimer, Denise, President & CEO, Nevada Women's Fund, Reno, 
  Nevada:
    Hon. Chuck Grassley, August 9, 2011, letter..................   979
    Hon. Patrick Leahy, August 9, 2011, letter...................   980

                     ALPHABETICAL LIST OF NOMINEES

Abrams, Ronnie, Nominee to be District Judge for the Southern 
  District of New York...........................................   792
Bencivengo, Cathy Ann, Nominee to be U.S. District Judge for the 
  Southern District of California................................   129
Brodie, Margo, Nominee to be U.S. District Judge for the Eastern 
  District of New York...........................................   221
Christensen, Dana, Nominee to be U.S. District Judge for the 
  District of Montana............................................    95
Contreras, Rudolph, Nominee to be District Judge for the District 
  of Columbia....................................................   832
Du, Miranda, Nominee to be District Judge for the District of 
  Nevada.........................................................   862
Fitzgerald, Michael Walter, Nominee to be District Judge for the 
  Central District of California.................................   750
Gerrard, John M., Nominee to be District Judge for the District 
  of Nebraska....................................................   418
Groh, Gina Marie, Nominee to be U.S. District Judge for the 
  Northern District of West Virginia.............................   177
Jordan, Adalberto Jose, Nominee to be Circuit Judge for the 
  Eleventh Circuit...............................................   323
Nuffer, David, Nominee to be District Judge for the District of 
  Utah...........................................................   579
Phillips, Mary Elizabeth, Nominee to be District Judge for the 
  Western District of Missouri...................................   480
Rice, Thomas Owen, Nominee to be District Judge for the Eastern 
  District of Washington.........................................   522
Thacker, Stephanie Dawn, Noinee to be Circuit Judge for the 
  Fourth Circuit.................................................   714
Wallach, Evan, Nominee to be U.S. Circuit Judge for the Federal 
  Circuit........................................................     9


    EXECUTIVE COMMITTEE MEETING TO CONSIDER THE NOMINATIONS OF EVAN 
    WALLACH, TO BE U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT; DANA 
  CHRISTENSEN, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MONTANA; 
 CATHY BENCIVENGO, TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT 
   OF CALIFORNIA; GINA MARIE GROH, TO BE U.S. DISTRICT JUDGE FOR THE 
   NORTHERN DISTRICT OF WEST VIRGINIA; AND MARGO BRODIE, TO BE U.S. 
          DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK

                              ----------                              


                      WEDNESDAY, SEPTEMBER 7, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:33 p.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse 
presiding.
    Present: Senators Franken, Schumer, Feinstein, and 
Grassley.

 OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 
                 FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. This hearing will come to order. We 
have a number of nominees for Federal court to consider today 
and we have a number of colleagues who are here to make 
introductions, and I will call on my colleagues in the 
following order. I'll start with Senator Baucus and Senator 
Feinstein, and then Senator Tester, then Senator Manchin, 
unless the Majority Leader comes, in which case he will be 
next.
    [Laughter.]
    Senator Whitehouse. Senator Baucus, would you care to 
proceed?

PRESENATATION OF DANA CHRISTENSEN, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE DISTRICT OF MONTANA BY HON. MAX BAUCUS, A U.S. 
                      SENATOR FROM MONTANA

    Senator Baucus. Thank you very much, Senator. I appreciate 
it very much. I am very please here today to introduce Dana 
Christiansen as a nominee to serve as U.S. District Judge for 
the District of Montana.
    President Dwight D. Eisenhower once said, ``The qualities 
of a great man are vision, integrity, courage, understanding, 
the power of articulation, and a profundity of character. One 
might also say these are qualities of a great Federal judge. 
These, too, are the qualities I consider when speaking of Dana 
Christiansen. It is a personal pleasure to be able to introduce 
Dana to this Committee. Dana will be introducing his family 
later in his testimony, but I would like to personally 
congratulate Dana and his wife Stephanie on this momentous 
occasion.
    Dana is a fourth-generation Montanan. He was raised in 
Missoula, Montana. He graduated from Stanford University in 
1973, and then received his law degree from the University of 
Montana School of Law in 1976. Since graduating from law 
school, Dana has commended the respect of other bar members 
throughout the State of Montana.
    In 1998, Dana and two of his partners formed a new firm in 
Kalispell, Montana which specializes in civil defense, business 
law, real estate, and estate planning. Dana has tried more than 
50 trials in State and Federal courts. He has an active 
mediation and arbitration practice and has represented many 
clients on a pro-bono basis.
    Both Dana and his firm have received the highest rankings 
from Chambers USA, and Dana has been ranked as one of the top 
75 lawyers in the northwestern United States by Super Lawyers 
over the last decade. Dana is also a member of the American 
Board of Trial Advocates and American College of Trial Lawyers. 
I cannot say enough about Dana's ability and commitment to 
justice.
    Outside of the office, Dana is very active in his 
community. He has been a member of the board of directors of 
his local Chamber of Commerce, president of the Montana Defense 
Trial Lawyers Association, a member of the University of 
Montana School of Law Board of Visitors, and a member of the 
faculty of the University of Montana Advanced Trial Advocacy 
Program.
    To ensure that the most ethical and qualified attorney is 
appointed as District Judge, I created an advisory selection 
panel made up of five members with diverse legal backgrounds 
from across our State and across party lines. My colleague, 
Senator Tester, very aggressively helped me in that endeavor.
    The panel was charged with recommending an individual with 
a breath of legal experience, ethics above reproach, sharp 
analytical skills, superior writing skills, and respect for 
precedent. The panel unanimously and enthusiastically 
recommended the nomination of Dana Christiansen. Clearly, Dana 
has earned respect from all segments of the Montana legal 
community and I am certain that his experience, leadership, and 
prudent will serve Montana as well.
    Dana embodies those qualities President Eisenhower 
articulated and the qualities that Montana, and America, need 
on the Federal bench: intellect, extensive experience in the 
courtroom, commitment to public service, integrity, and respect 
for precedent and the rule of law.
    I must say as an aside, Mr. Chairman, I can think of nobody 
in the State of Montana, or anybody else I have ever had the 
pleasure to meet, who will do a better job in serving our 
country, especially as a Federal judge, than Dana Christiansen.
    Senator Whitehouse. Thank you, Senator Baucus. That is high 
praise, indeed, and of particular weight coming from you.
    I will now turn to Senator Feinstein.

 PRESENATION OF CATHY BENCIVENCO, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA BY HON. DIANNE 
     FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman. I am 
very pleased today to indicate my strong support for Judge 
Cathy Ann Bencivengo, whom I recommended to the President for 
nomination to become a District Judge in the Southern District 
of California.
    Judge Bencivengo has been a U.S. Magistrate Judge in San 
Diego for the last 6 years. In that time she has earned an 
outstanding reputation among her colleagues on the bench and 
among the lawyers who appear in her courtroom. She was 
recommended to me by a bipartisan judicial screening Committee 
which I have established in California, and this Committee 
reviews judicial candidates based on their legal skill, 
reputation, experience, temperament, and overall commitment to 
excellence.
    Throughout the Committee process Judge Bencivengo set 
herself apart as a person who would be a truly exceptional 
addition to the District Court. She is a descendant of 
immigrants who came to California through Ellis Island at the 
turn of the 20th century. She was born in Teaneck, New Jersey. 
She wanted to be in public service from an early age. Her 
father was involved in local politics and her upbringing 
instilled in her a desire to serve the public.
    She began her undergraduate career at Rutgers in New 
Jersey, where she earned her Bachelor's degree in Journalism 
and Political Science in 1980. The following year she earned 
her Master's degree from Rutgers. From 1981 to 1984, she worked 
for a major American corporation, Johnson & Johnson, in New 
Brunswick, New Jersey. She then attended the University of 
Michigan Law School, where she excelled, graduated magna cum 
laude, and was inducted into the Order of the Coif.
    After law school she moved to San Diego, where she joined 
the San Diego-based firm, Grey Carey, which later became part 
of a major international law firm, DLA Piper, LLP. Soon after 
starting work as an associate, she became a founding member of 
the firm's Patent Litigation Group. Her knowledge of patent 
law, which she honed in law school and private practice, makes 
her a valued resource for colleagues and clients. She quickly 
rose through the ranks of her firm.
    In 2005 she was selected as the national co-chair of her 
firm's Patent Litigation Group, a role for which she managed a 
group of 70 patent attorneys--which, if you know patent 
attorneys, is a job in itself--around the country. Judge 
Bencivengo also worked to protect one of the mainstays of 
American children's literature, Dr. Seuss, as the lead partner 
on trademark and copyright issues for Dr. Seuss Enterprises.
    In 2005, she became a Magistrate Judge, where she served as 
a thoughtful jurist. Since her appointment, she has issued 
roughly 178 published opinions, over 190 reports and 
recommendations, and over 1,800 orders on non-dispositive 
motions. Nearly 800 of those orders involved felony criminal 
cases. A premier San Diego criminal defense attorney described 
her as ``seasoned, bright, responsive, fair, hardworking, and 
reflective''. I think that pretty much does it.
    In addition, her substantial expertise in patent law will 
be welcomed in the Southern District, which is part of a new 
Federal judicial program designed to assign more patent cases 
to judges who are experts in the field of patent law. In short, 
Judge Bencivengo will make a fine addition to the U.S. District 
Court, and I urge my colleagues to support her nomination.
    Thank you very much, Mr. Chairman.
    Senator Baucus. Mr. Chairman, if I might be excused. I have 
a matter I must urgently attend to.
    Senator Whitehouse. Of course. Of course.
    Senator Baucus. But I urge you to report out----
    Senator Whitehouse. You were here with all of your--Senator 
Baucus.
    Senator Baucus [continuing]. Dana Christiansen very 
quickly. Thank you.
    Senator Whitehouse. Since we're going by seniority and 
since Senator Schumer has now arrived, let me call on Senator 
Schumer. Of course, everyone is free to go on about their 
business once they've concluded their statements.

PRESENTATION OF MARGO BRODIE, NOMINEE TO BE U.S. DISTRICT JUDGE 
    FOR THE EASTERN DISTRICT OF NEW YORK BY HON. CHARLES E. 
       SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. I'll be very 
brief. I want to thank you for the opportunity to introduce yet 
another gifted New Yorker to this Committee. Margo Brodie has 
been nominated by the President to serve on the Eastern 
District of New York. I was pleased and proud to recommend her 
for this position as someone who has chosen to make her home in 
this country, and specifically in the neighborhood served by 
this court, and who has already graced her community with 
outstanding and dedicated service. Ms. Brodie was born in St. 
John's Antigua. She and her brother Euan were raised by a 
single mother with the help of her mother's parents and 
siblings.
    After graduating from high school at the age of 16, she 
attended St. Francis College in Brooklyn. She worked full-time, 
graduated magna cum laude, went on to the University of 
Pennsylvania Law School, where, in addition to work and her 
academic achievements, she dedicated herself to improving Pen's 
minority student recruitment.
    After graduating from law school, Ms. Brodie worked for the 
New York City Law Department for 3 years, where she learned how 
to litigate cases. She spent 5 years at Carter, Ledyard & 
Milburn, founded in 1854 and known for alums who include 
Franklin D. Roosevelt.
    Ms. Brodie returned to public service in 1999 by joining 
the U.S. Attorney's Office in the Eastern District, one of the 
preeminent U.S. Attorney's Offices in the Nation and one of the 
largest. She rose to become Deputy Chief and then Chief of the 
General Crimes Unit, where she trained more than half of the 
current AUSAs in the Eastern District.
    Since July 2010, she's been the Deputy Chief of the 
Criminal Division, supervision all 100-plus criminal AUSAs in 
cases involving public corruption, civil rights, business and 
security fraud, terrorism, or organized crime, narcotics, and 
many other areas. She has also lent her considerable talents to 
training prosecutors and law enforcement officers on the rule 
of law in developing countries, and spent 10 years in Nigeria 
as a legal advisor on behalf of DOJ's Overseas Training 
Program.
    There is one other part of her lift story, perhaps the most 
important, that I wanted to highlight in conclusion. In 1996, 
Ms. Brodie became a citizen of the United States in the very 
courthouse where she would serve as a judge. I can't think of a 
more fitting candidate to serve the people in Brooklyn, Queens 
and Long Island and all the communities in between than someone 
who pledged her allegiance to this country just footsteps from 
where she will decide cases.
    I look forward to Ms. Brodie's hearing and her continued 
service to this country and welcome her mother, her brother, as 
well as the Antiguan ambassador, Ms. Lovell, who is here to 
endorse her candidacy.
    Thank you, Mr. Chairman, and I thank my colleagues.
    Senator Whitehouse. Thank you, Senator Schumer.
    The Chair now recognizes Senator Jon Tester.

PRESENTATION OF DANA CHRISTIANSEN, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE DISTRICT OF MONTANA BY HON. JON TESTER, A U.S. 
               SENATOR FROM THE STATE OF MONTANA

    Senator Tester. Thank you, Mr. Chairman. I very much 
appreciate the opportunity to turn our focus back on a fellow 
by the name of Dana Christiansen, whom Max talked to eloquently 
about. Max covered most of the bases on Dana, and I guess--
doesn't it make you feel uncomfortable when people are saying 
nice things about you, Dana?
    But when I came in here, Senator Manchin says, gee, it 
takes two of you? I said, here's my point: this guy has got 
such a great resume, yes, it does take two of us. The fact is, 
Dana is a great guy. You know, you guys on the Judiciary 
Committee have to sit down and make a decision on somebody that 
you probably don't know a large portion of the time, and that's 
unfortunate in this particular case because Dana Christiansen 
is such a quality human being.
    Senator Grassley will appreciate this. This guy was an 
Eagle Scout and a millworker. He knows how to work with his 
hands. You've got to appreciate somebody who's going to be in a 
Federal judge position that not only has integrity and knows 
fairness, but knows how to work hard, and not only work with 
his head, but work with his hands. It will help a lot. Plus, he 
exhibits a level of common sense that, quite frankly, we can 
all be proud of.
    I hope Dana comes out of here and moves forward and we can 
get it through the Senate, because quite frankly he deserves 
Senate confirmation. This is a quality man who has got an 
impeccable record on what he's done in his life. He deserves 
our report. He is right for this job and good people deserve 
good things to happen to them. He is the right man for this 
job.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Senator Reid, would you like to be 
recognized and introduce your nominee? I'm sure Senator Manchin 
will be happy to allow you priority.

PRESENTATION OF EVAN WALLACH, NOMINEE TO BE U.S. CIRCUIT JUDGE 
FOR THE FEDERAL CIRCUIT BY HON. HARRY REID, A U.S. SENATOR FROM 
                      THE STATE OF NEVADA

    Senator Reid. We just had our caucus, as you know. I have 
to always do my once-a-week press event.
    Evan Wallach is really a good man and has been a tremendous 
judge. I think he's a perfect nominee for the Court of Appeals 
for the Federal Circuit. He is also a scholar, and I don't use 
that term flippantly. He's graduated from the University of 
Arizona and got his law degree from Berkeley, but that one law 
degree obviously wasn't enough. He went and got a graduate 
degree at Cambridge in England. By the way, he was a partner in 
a law firm when he did that, took a leave of absence to go get 
that degree.
    He is also a patriot. Again, I don't use that term loosely. 
As a boy, guided by the patriotism taught to him by his mom, 
dad, and his two older brothers, he is a 115-pound man--nothing 
wrong with small people. I have lots of them in my family--he 
volunteered for the military and went to Vietnam, carried a 
rifle, and did all the other things that happened during that 
brutal war. He and his two older brothers, as I indicated, 
volunteered to serve in Vietnam. He was awarded a Bronze Star.
    Evan Wallach served his country in Vietnam. When he was a 
partner in a law firm, very, very busy, the first Iraq war 
broke out. He quite his job on a temporary basis, came back, 
and again reentered the military, served in the Pentagon for 
many months. Took a leave of absence from his law practice and 
served as an active-duty attorney. He served in the office of 
the Judge Advocate General of the Army at the Pentagon station 
at the Pentagon. He really is a patriot.
    He served his country bravely in war, he has served his 
country well as a judge in the U.S. Court of International 
Trade. He has written hundreds of opinions as a judge on the 
Court of International Trade. He has also served as a circuit 
judge in the second, third, and ninth circuits, and a district 
court judge in Nevada, New York, and the District of Columbia. 
Because so much of his responsibility will be what we do with 
the new patent law, one of the cases he heard in Nevada is a 
patent case.
    I introduce my friend to all of you, but also say that--and 
I don't want to be overly rambunctious here and I hope this 
doesn't hurt him, but he's my friend. He is one of the best 
friends I've ever had. I think the world of this man. I 
recommended him to President Clinton to leave this lucrative 
law practice to go into public service, and he did that. He is 
someone who I admire do greatly. He is a poet. He writes 
poetry. His mom was a wonderful artist, who just died. I have 
some of her paintings and etchings in my home in Nevada.
    I wish I had the ability to convey to this Committee what a 
wonderful human being he is and how fortunate we are as a 
country that he would be willing to not see how much money he 
can make, but he's decided instead to see what a difference he 
can make in public service.
    Senator Whitehouse. Thank you, Leader Reid.
    Senator Reid. Could I be excused?
    Senator Whitehouse. You certainly may.
    Senator Reid. Thank you all very much.
    Senator Whitehouse. Senator Manchin? The patient Senator 
Manchin.

 PRESENTATION OF GINA MARIE GROH, NOMINEE TO BE U.S. DISTRICT 
 JUDGE FOR THE NORTHERN DISTRICT OF WEST VIRGINIA BY HON. JOE 
    MANCHIN, A U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

    Senator Manchin. Thank you, Mr. Chairman. And thanks to all 
the members of the Judiciary Committee. I am greatly honored to 
be able to join you today to introduce an exemplary candidate 
for the U.S. District Court for the Northern District of West 
Virginia, and someone who has become truly a dear friend of 
mine, Judge Gina Marie Groh. I want you to know that I really 
appreciate the opportunity to be here to speak to Judge Groh's 
exemplary experience and contributions to public service.
    First, I would like to thank Senator Jay Rockefeller for 
recommending Judge Groh for this prestigious position, and for 
his stead fast support of her nomination. I know that he has 
been instrumental in promoting Judge Groh's impressive 
background here in Washington, and I am truly grateful for his 
efforts.
    I would also like to recognize Judge Groh's husband, Steve 
Groh. Steve is with us today and her sons, 12-year-old Stephen 
and 6-year-old Michael--raise your hands, boys--and other 
members of our family who are also here. Now, I'm delighted 
that all of them were able to attend.
    Judge Groh is a well-respected and recognized member of her 
community in the eastern panhandle of West Virginia. As I have 
known her for many years, as West Virginia's Governor I had the 
privilege of appointing Judge Groh to her current position as 
the Circuit Judge of the Twenty-third Judicial Circuit in 2006.
    Judge Groh was recommended to me by a bipartisan merit 
selection Committee made up of the most notable figures in West 
Virginia, legal and business community, including the president 
of the West Virginia State bar, the dean of the WVU's law 
school, former Senator Carr Goodwin, and other distinguished 
representatives in the State.
    Judge Groh's in-depth knowledge of the courtroom and 
excellent reputation with the State bar made her a stand-out 
candidate, and she was selected as the committee's overwhelming 
consensus choice for the Circuit Court appointment. Judge Groh 
was also the first female Circuit judge to serve in the eastern 
panhandle, and one of only six female Circuit Court judges in 
the entire State of West Virginia.
    Prior to her Circuit Court appointment, Judge Groh served 
as an Assistant Prosecuting Attorney at the Prosecuting 
Attorney's Office in Berkley County and Jefferson County, West 
Virginia. During her 8 years as prosecutor, she established a 
strong record of protecting her fellow West Virginians by 
tirelessly pursuing convictions for such crimes as murder, 
robbery, rape, child abuse, drunk driving, and drug-related 
offenses.
    Judge Groh has not only excelled professionally, but she 
has also risen to become a true pillar of her community in the 
eastern panhandle of West Virginia. She dedicates her time to 
countless charitable foundations and serves on a number of 
boards.
    For many years she has worked for such programs as Robes to 
School and the Mills with Love Ministry, and has been very 
involved with her alma mater, Shepherd University, serving both 
with the Wellness Center and as a member of the Alumni Board. 
These are really only a few examples of her extensive 
contribution to the area for which I am personally very 
grateful.
    Judge Groh graduated summa cum laude from Shepherd 
University in 1986 with a Bachelor of Science degree. She 
earned the university's highest academic honor as a McMurran 
Scholar. In addition to serving as editor-in-chief of the 
newspaper and vice president of her graduating class, Judge 
Groh went on to earn her J.D. from the West Virginia University 
College of Law in Morgantown, West Virginia.
    I believe that Judge Groh's experience, intellect, 
leadership, and impartiality and deep roots in the community 
make her a prudent choice for the vacancy in the Northern 
District of West Virginia. If appointed, she will be the first 
resident of the eastern panhandle to sit as a U.S. District 
judge in Martinsburg. Her extensive legal experience and 
dedication to public service demonstrate that she exemplifies 
not only the qualities of a talented jurist, but also the high 
moral character and sense of justice necessary to make a great 
judge.
    I thank you, Mr. Chairman, for holding this hearing today 
on Judge Groh's nomination and allowing me the opportunity to 
speak to her abilities. Along with Senator Rockefeller, I 
wholeheartedly support Judge Groh's nomination and I look 
forward to working with you to confirm her to the Federal bench 
as swiftly as possible.
    Thank you, sir.
    Senator Whitehouse. Thank you, Senator Manchin. I know you 
have important business elsewhere and you may also be excused.
    We do have a statement from your senior Senator, Senator 
Rockefeller, who could not be here today. I will not read the 
entire statement, but he does say that ``this is a very 
important nomination for the people of West Virginia and deeply 
personal to me'', and describes the candidate as a ``supremely 
talented lawyer, a meticulous student of the law, a proven 
leader in her community, and a West Virginian through and 
through.''
    So without objection his entire statement will be added to 
the record of these proceedings.
    [The prepared statement of Senator Rockefeller appears as a 
submission for the record.]
    Senator Whitehouse. I will now have the privilege of 
yielding to the Ranking Member to make a brief opening 
statement, and after that we will have Judge Wallach as the 
first panel, then the four District nominees as the second 
panel.

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

    Senator Grassley. And it will be very brief. I'll put the 
entirety of my statement in the record.
    But I want to welcome all the nominees and their families 
and friends, and to say that we're moving along on confirmation 
of nominees. This week we confirmed another nominee on the 
Senate floor for the Federal Judiciary. We have now confirmed 
34 nominees this Congress. We have taken positive action in one 
way or another on 78 percent of the judicial nominees that have 
been submitted by the President during this Congress, so we 
continue to move forward as I indicated I would do on the 
consensus nominees. It looks to me like we have a group that 
fall into that category this time.
    I'll put the rest of the statement in the record.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Whitehouse. Very well. Thank you, Senator Grassley.
    Could Judge Wallach please come forward and remain 
standing?
    [Whereupon, the witness was duly sworn.]
    Senator Whitehouse. Please be seated.
    Welcome.
    Judge Wallach. Thank you, Senator.
    Senator Whitehouse. It is the custom of the Committee to 
allow for a brief statement by the nominee, and in particular 
for the nominee to take the occasion to recognize family and 
friends whom he or she may wish to recognize at this point in 
these proceedings.

STATEMENT OF EVAN WALLACH, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR 
                      THE FEDERAL CIRCUIT

    Judge Wallach. Thank you, Senator. I'd like to introduce my 
wife, Dr. Katherine Tobin, who's sitting behind me, who has her 
Ph.D from Stanford University. She's a very smart person, but 
her distinction to me is she's the nicest person I've ever met.
    I've also got my friend David Olive here, a former client. 
My friends, Frank and Judy Stearns, I did their wedding. Frank 
just came back from Afghanistan a couple of weeks ago.
    I'd like to thank some folks, if I may, please, Senator.
    Senator Whitehouse. Please.
    Judge Wallach. I'd like to thank, first off, the members of 
this Committee and the staff who I know work very hard 
preparing for these kinds of hearings, and all the folks who 
helped me in this process, the people from the DOJ, the FBI, 
and the ABA, and the AO. All of them do an awful lot of work 
and I think they don't get recognized for what they do.
    Of course, some of my family is watching this from one 
place or another. I never met KT's dad. He was a career Naval 
aviator who died when she was a little girl. But he obviously 
influenced her. And I met her mom, whom I love dearly. Both her 
parents passed, and both mine have passed. As Senator Reid 
said, my mom was an artist and she just passed in May.
    My dad was an engineer. You know, on my birth certificate--
the Senator mentioned millwork on my birth certificate. It says 
my dad's occupation is millworker, and that was true, he was. 
But he was also working the graveyard shift while he attended 
the university at night. He went on to get an honorary 
doctorate from the University of Arizona.
    But that wasn't what he was about. He taught me a large 
thing in life--he taught all three of us boys--and that was to 
try and figure out what the right thing to do was, and then to 
do it.
    My oldest brother was, I think if you know the term, 4F. He 
was physically unqualified to serve in the Armed Forces. In 
Vietnam, a lot of people considered that a blessing. He went as 
a civilian employee and served 4 years over there. His wife 
Susan went as well and worked for the army.
    My middle brother enlisted in the U.S. Marine Corps and he 
did a full tour where he was the sole survivor from his unit 
once, came back, served 30 days in the United States, and went 
back to Vietnam, where he stepped on a mine and he was one of 
two survivors the second time. He came back here and got his 
Ph.D in Engineering, despite the fact that he is 100 percent 
disabled. He held several patents in the space industry. I'm 
very proud of them and I know they're watching, as I said, from 
one place or another.
    Thank you.
    Senator Whitehouse. Thank you very much, Judge Wallach.
    Could you just briefly describe the nature of your work on 
the Court of International Trade and how you think that 
prepares you and compares to the work you'll be asked to do as 
a U.S. Court of Appeals judge?
    Judge Wallach. Sure. We sit, Senator, as both trial judges 
in matters like Customs and in administrative appeals, in 
effect, in trade matters. One is regulated by the Chevron 
doctrine, the other is heard as a new case, sometimes with 
juries. And it's obviously specialized work, but the essence of 
it is the same as any law. That is, a judge should look at it, 
try to know the background, read what record you have in front 
of you, and learn the law and be prepared for a hearing. I 
think I've sat on some appellate benches and I think it's the 
same on an appellate bench as it is a trial bench.
    Senator Whitehouse. Well,
    I'm very impressed at the legacy of service that you bring 
to this appointment, and I wish you a speedy confirmation.
    I will turn over to our Ranking Member, Senator Grassley, 
then to Senator Franken.
    Judge Wallach. Thank you, Senator.
    Senator Grassley. Let me say something before I ask some 
questions. It may sound like I'm trying to get you or something 
on an issue that is very personal to me from a policy 
standpoint, and I'm not trying to do that at all. But I'm 
trying to bring attention to your court and you'll probably be 
a member of that court, and maybe you can help this court be a 
little more reasonable in an area where I don't think they've 
been very reasonable. So, I've got some questions along that 
line.
    Congress has consistently recognized the value of 
whistleblowers in government and private sector. I was an 
original co-sponsor of the Whistleblower Protection Act of 
1989, and I've always pushed for strong whistleblower 
protections for Federal employees.
    I think that most of my oversight work comes from one or 
two areas, either good, substantial evidence that I get from 
whistleblowers or from enterprising investigative journalism. 
So whistleblowers, I think, are a very important part in, is 
government going to be responsible and transparent and 
accountable and all that?
    The Federal Circuit has issued a number of decisions that 
have substantially limited the type of disclosures that are 
protected under the Whistleblower Protection Act, and I 
wouldn't expect you to be acquainted with these statistics, but 
up until February 2011 only 3 out of 219 cases that 
whistleblowers have brought for appeal has a whistleblower won. 
Three out of 219. Last year, the court was zero for nine 
against whistleblowers.
    Perhaps the most egregious example of the Federal Circuit 
placing hurdles in front of the Federal Government 
whisteblowers is a 1999 decision, LaChance v. White. In that 
case the Federal Circuit held that a whistleblower had to 
present ``irrefragable'' proof that wronging actually occurred 
in order to provide a claim. So my questions are kind of along 
the lines of what maybe you think about or we can think about 
bringing some reasoning to these figures that I just gave you.
    I mean, I would expect that not every whistleblower appeal 
would be in favor of the whistleblower. In fact, maybe a 
minority would be in favor of the whistleblower. But in the 
case of these statistics I gave you, you can see how 
overwhelmingly it is against it. Now, maybe you can blame those 
of us that wrote the 1989 law for not giving enough protection 
or enough direction to the court.
    So my first question is, considering that the Federal 
Circuit has exclusive jurisdiction over these cases, so you're 
the only one that's going to hear them. What, if any, 
experience do you have with the Whistleblower Protection Act? 
If you say none that's OK, but I just have to ask the question.
    Judge Wallach. Senator, thank you. Thank you for that 
question. I know about your work with whistleblowers and NIGs. 
I can't say I have any direct experience at all. I just say 
that in journalism, I used to argue a lot that the phrase 
``consent of the governed'' always had to mean informed consent 
when I argued to a court. It's vital that government and the 
people be kept informed, and obviously whistleblowers have 
something to do with that.
    Senator Grassley. Yes. Have you ever heard of the 
irrefragable proof standard? If so, what's your understanding 
of that standard?
    Judge Wallach. My understanding of it is, Senator, that it 
means that it cannot be refuted, that it's irrefutable proof. 
It's a very high standard.
    Senator Grassley. OK.
    So then I suppose the next question is, what does a 
whistleblower need to prove under that standard to meet it?
    Judge Wallach. Senator, I don't know the answer to that. 
Obviously I'd look at the case authority and the statute to try 
to determine it in each case.
    Senator Grassley. OK.
    Can I ask you whether or not you believe that the 
irrefragable proof standard or a substantial evidence standard 
should apply to whistleblower cases? Because, you know, the 
irrefragable one is a judicial standard, not in the law.
    Judge Wallach. Like everything, Senator, I would be bound 
by stare decisis. I'd have to look at it, but principle 
decisionmaking requires me to say that.
    Senator Grassley. Wouldn't stare decisis, though, make it 
almost impossible under that standard to ever improve these 
statistics I just gave you?
    Judge Wallach. It might be, Senator, that the Supreme Court 
or obviously the national legislature might be taking a look at 
it if the courts are wrong. That happens.
    Senator Grassley. Well, I would give you this opportunity. 
Would you be willing to put in writing your understanding of 
the irrefragable proof standard and whether or not you agree 
with this standard for reviewing decisions of the Merit System 
Protection Board?
    Judge Wallach. Sure. I'd be delighted to, Senator.
    Senator Grassley. I would like to have you--since this is a 
very unique body you're going to, I'd like to ask you any 
experience you've had, if any--and emphasis upon if any, 
because maybe you haven't where you have served in the past--
but would you please identify what experiences you have had 
that would come before this court in these four areas: patent 
law, trade law, government contracts, and claims against the 
government.
    Judge Wallach. Well, in trade, Senator--thank you. 
Obviously I've sat for 16 years and so I've learned something 
in that time, and I like to think I know a bit about it. In 
patent, as Senator Reid said, I sat on a case. I did some IP, 
intellectual property, work for my press clients, but it was 
more along the lines of trademark. I've taught overseas for the 
U.S. Patent & Trademark Office, teaching foreign judges 
intellectual property.
    Senator Grassley. OK.
    Then beyond what you just said that you've had, if 
confirmed would you feel a need to prepare yourself in any way 
to handle these cases, and how would you do that?
    Judge Wallach. Absolutely I'd feel the need, Senator. I 
would obviously--I'd try to educate myself, so I'd read the law 
first, the governing authorities from my superior court, the 
Supreme Court, and from the prior cases of the Court of 
Appeals, as well as any other cases coming up from other courts 
that might inform me.
    Senator Grassley. I'd like to--the last series of questions 
would deal with any political activity you've had, and they 
aren't asked to denigrate any activity or say it's wrong, or 
that it would have undue influence. But I feel it necessary to 
ask, because prior to being appointed as a judge on the 
International Trade Court, you were actively involved in Nevada 
politics. You worked on Democratic campaigns as the counsel for 
the State's Democratic party. There's certainly nothing wrong 
with that, but your political history may concern future 
litigants after you're confirmed.
    Could you provide the Committee an example of a case you 
decided as a judge on the Court of International Trade where 
you put your political views aside to make an independent, 
sound legal judgment? And I'm not insinuating that politics 
would enter into your decision, but if there's any case where 
there was conflict, that maybe you could show where you put it 
aside.
    Judge Wallach. Senator, thank you for asking that, but I 
never saw anything where I thought there was a political aspect 
to it. There were probably some cases where I walked into it 
feeling one way and the lawyers convinced me the other way, but 
that was a question of how the law was going, not politics.
    Senator Grassley. Well, then I think you'll satisfy me with 
one last question. I think the answer is probably very obvious, 
how you've held your demeanor here at this meeting. I'm sure 
you can assure the Committee then, if confirmed, your decisions 
will remain grounded in precedent and the text of the law. You 
said that in the case of the whistleblower cases, but in 
addition to all other cases rather than any underlying 
political ideology or motivation.
    Judge Wallach. Yes, sir. Absolutely.
    Senator Grassley. Thank you.
    Judge Wallach. Thank you, sir.
    Senator Grassley. Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Grassley.
    Senator Franken.
    Senator Franken. Thank you, Judge, for testifying. 
Congratulations on your nomination.
    Judge Wallach. Thank you, Senator.
    Senator Franken. Thank you for your service and for your 
family's service.
    I'm interested actually in the International Court of Trade 
because I don't know much about it. What kind of stuff comes 
before you? In other words, are you judging whether a country 
is violating trade laws or a segment of an industry and the 
country that's doing that? What kind of stuff? Can you give me 
some examples?
    Judge Wallach. Yes, sir. It's not so much a country, 
although once in a while you have a national entity appear in 
front of you. But it's several things. First, we do antidumping 
and countervailing duty cases. We are a National Geographic 
court with limited subject matter jurisdiction.
    Senator Franken. I don't know what that means, a National 
Geographic court. What does that mean?
    Judge Wallach. So we hear any case in the United States 
that comes from anywhere in the U.S., as long as it falls 
within our limited area of jurisdiction of law. So that, for 
example, a claim by the U.S. industry that a foreign company is 
selling goods for less than the fair market value, in effect 
antitrust law, that foreign company is trying to capture the 
market in the United States by undercutting, will be 
investigated by U.S. Government entities. They're going to rule 
one way or the other for somebody, and somebody is not going to 
like it. Whoever it is who doesn't like that ruling takes it up 
to us. That's why I said before we sit in that area, in effect, 
in an administrative appellate review.
    Senator Franken. I see.
    Judge Wallach. We also do Customs cases. Those are brand-
new ones where somebody imports something into the country and 
they're saying one of two things, either Customs said it was 
one thing and it's really something different so we should pay 
a different tariff, or we agree what it is, but Customs says 
it's worth a whole bunch more money than we think it's worth, 
so you're imposing a much higher value on it and, as a 
consequence, a higher duty. And so they come in and they 
actually have trials about that.
    Senator Franken. OK. So you're an appellate court on trade 
matters.
    Judge Wallach. Yes, sir.
    Senator Franken. And what happens? Can they appeal higher 
than you?
    Judge Wallach. Yes, sir.
    Senator Franken. Where do they go then?
    Judge Wallach. They come to the Court of Appeals for the 
Federal Circuit. It's our appellate court.
    Senator Franken. OK.
    So if some--China, say, is dumping a certain kind of 
finished paper product, that might be something that you would 
hear?
    Judge Wallach. We would hear a case involving a Chinese 
company. I have heard such cases.
    Senator Franken. OK.
    Then you decide and then it goes to an appellate court.
    Judge Wallach. If a party doesn't like it, they take it up 
to the court for which I'm nominated.
    Senator Franken. OK.
    And then if they don't like that, where do they go?
    Judge Wallach. The Supreme Court, sir.
    Senator Franken. OK.
    And how often do those kind of things go to the Supreme 
Court?
    Judge Wallach. Not often that they actually grant a writ of 
certiorari, but it happens occasionally.
    Senator Franken. OK.
    And so China has to abide by it since it's shipping into 
the United States?
    Judge Wallach. That's correct. In effect, what happens is, 
there's a tariff imposed. So as the goods come in, that money 
is going to have to be paid.
    Senator Franken. So there's no international trade 
adjudicator on trade agreements?
    Judge Wallach. Well, there's the World Trade Organization.
    Senator Franken. Yes. Where does that fit into this 
process?
    Judge Wallach. We pay no homage to the WTO. We are purely a 
U.S. court and we follow the U.S. law and what the Congress 
tells us to do.
    Senator Franken. So you don't have to pay homage to them?
    Judge Wallach. We don't have to.
    Senator Franken. I think that's good.
    Judge Wallach. We don't kiss rings or anything.
    Senator Franken. But I meant, it seems to me then--I just 
want to get this clear. Are there--who has jurisdiction 
sometimes? Is there a question whether you have jurisdiction or 
the World Trade Organization has jurisdiction?
    Judge Wallach. No, sir. We would have jurisdiction over a 
case. It might well be that they're hearing the same issue over 
in their appellate panels and they might decide it totally 
differently.
    Senator Franken. Well, who wins, then?
    Judge Wallach. Well, as far as we're concerned, as far as 
the U.S. courts are concerned and the U.S. Government, our 
rulings are rulings in the United States and they apply. If a 
WTO decision is contrary, it might be that they give the 
litigants the ability to enter sanctions on an international 
basis, apply tariffs or something along those lines. But it 
really has nothing to do with us as a court.
    Senator Franken. I'm just trying to think of who has the 
ultimate authority.
    Judge Wallach. As far as we're concerned, the Supreme Court 
of the United States, and that's it.
    Senator Franken. OK. But if you're in conflict with the WTO 
it's not like you're calling Ban Ki-moon or something.
    Judge Wallach. No, sir.
    Senator Franken. OK. OK.
    Well, that's good. I just wanted to learn a little bit. 
It's not that often in these things that I learn about 
something in this way.
    Judge Wallach. Thank you, Senator. That's very kind of you 
say.
    Senator Franken. I'd like to learn more sometime. Thank 
you.
    Judge Wallach. Thank you, Senator.
    Senator Whitehouse. Judge Wallach, I wish you well as you 
go through the confirmation process under the leadership of 
Chairman Leahy and Ranking Member Grassley. We have moved 
fairly smoothly through the nominees here at the Committee 
level; the floor is a different question. There tends to be a 
considerable back-up there, so don't be discouraged that you 
get through the Committee and then there are delays on the 
floor. But I think you've been a very impressive nominee and I 
hope that you can see to rapid progress for your nomination 
through both of the obstacles that are ahead of you in the 
Senate. I wish you well, and thank you for being here. I 
appreciate that your family and friends have attended.
    Judge Wallach. Thank you, Senator. Thank you, Senator 
Grassley, as well.
    Senator Grassley. You bet. Thank you.
    Senator Whitehouse. Can we now call up Dana Christiansen, 
Cathy Bencivengo, Gina Groh, and Margo Brodie? We'll take a 2-
minute break while everybody gets to chairs and signs sorted 
out.
    [Pause]
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Whitehouse. All right. I welcome each of the 
nominees who are here today. I congratulate you on the 
recommendation by my colleagues and your selection by the 
President of the United States as a candidate for a lifetime 
appointment on the U.S. Judiciary.
    I'm delighted that you have brought family and friends with 
you. I think we'll just go right across the table, from my left 
to my right.
    We'll start with Dana Christensen. If you would care to 
make any kind of an opening statement, Mr. Christensen, and 
recognize any family or friends or any expressions of 
appreciation you'd care to make, now is the time.

  STATEMENT OF DANA CHRISTENSEN, NOMINEE TO BE U.S. DISTRICT 
               JUDGE FOR THE DISTRICT OF MONTANA

    Mr. Christensen. Thank you, Senator. I want to thank this 
Committee for the privilege of this hearing. I would like to 
thank Senators Baucus and Tester for those very kind 
introductions. Obviously I'd like to thank the President for 
the honor of this nomination.
    If I am confirmed by this Senate and sworn in, I understand 
that I will be the 17th Article 3 Federal judge in the history 
of the State of Montana, which is a very significant privilege 
and honor.
    I have a small family, but a very close one. With me here 
today is my wife Stephanie. I met her 41 years ago when we were 
sophomores at Stanford University, and we spent last weekend 
celebrating our 37th wedding anniversary backpacking for three 
days and two nights along the Highline Trail in Glacier 
National Park. If Senators Baucus and Tester were still here, 
they could attest to the fact that that's one of the most 
beautiful places in the world.
    I also have with me here today my brother-in-law, Jack 
Adalaar, who is a lawyer in Vancouver, British Columbia and an 
avid and very well-informed student of American government and 
American politics.
    Watching on webcast either live or this evening is my 32-
year-old daughter, who is a special education teacher in 
Seattle. She and her fiance Josh live there, and she's 
currently with her 5th grade students. My 29-year-old son and 
his wife Anya live in San Francisco and he works for a small 
venture capital company in Palo Alto.
    I have obviously a number of other family members and very 
close friends: my law partners for many years, the wonderful 
folks that work in my office that are all watching this, 
presumably live, and I want to thank you again for this 
opportunity.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Whitehouse. Thank you, Mr. Christensen.
    Judge Bencivengo, welcome.

STATEMENT OF CATHY ANN BENCIVENGO, NOMINEE TO BE U.S. DISTRICT 
         JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA

    Judge Bencivengo Thank you, Senator. I'd like to thank the 
Committee for the opportunity to be here today. I'd like to 
thank Senator Feinstein and her judicial selection committee 
for sponsoring my nomination, and I'd certainly like to thank 
the President for my nomination.
    I have with me here today my husband, and I thank him for 
his unfailing support for our now going on 28 years of 
marriage. My children were unable to be here; they're both 
attending classes in college. But I would like to recognize 
them--I believe they're watching on the webcast: my daughter 
Dana, who is a senior at Colorado State, and my daughter 
Lauren, who is a freshman at Miami University of Ohio.
    With me I do have here today some friends. One of my 
dearest and oldest friends, Tracy Horner Bird, who I've known 
since first grade, and her husband Maitland, her daughter Skye 
and her friend Ian Faulk, and a friend and former colleague 
from my old law firm, DLA, Kathryn Riley Grasso.
    I'd like to thank all my friends and family who are, I 
hope, watching on the webcast, and particularly my colleagues 
back at the Southern District of California, my fellow 
Magistrate judges, and for all the support they've given me, 
and my wonderful staff, chambers, and my courtroom deputy who I 
know are watching. Thank you.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Whitehouse. Thank you very much.
    Judge Groh.

STATEMENT OF GINA MARIE GROH, NOMINEE TO BE U.S. DISTRICT JUDGE 
           FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

    Judge. Groh. Thank you. Good afternoon, Senators. Thank you 
for inviting me here to answer your questions this afternoon. 
I'd like to thank the President for this nomination. I'd also 
like to thank Senator Rockefeller for recommending me to the 
Federal District Court, and thank Senator Manchin for heartily 
seconding that recommendation. Also, thank both of our Senators 
from West Virginia for their kind words here today.
    I have some folks with me. As Senator Manchin mentioned, I 
have my husband Steve, who is a great support to me, and my 
high school sweetheart; my sons Stephen and Michael.
    And I have some friends and colleagues here to offer 
support as well: my good friend Dr. Diana Noon, Magistrate Gail 
Boober, Ken Martin or Clarence Martin, who also served on that 
Merit Selection Committee that recommended me to then-Governor 
Manchin for appointment to the State bench, and Stephen 
Skinner.
    Back home watching on webcast that my court reporter, law 
clerk and secretary set up in my courtroom, we have my little 
84-year-old mother, Elizabeth Householder, my sister Linda 
Gildersly, my brother, who's also a Vietnam vet, is watching 
from his home State up in New Jersey today.
    Thank you.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Whitehouse. Thank you very much, Judge Groh.
    Finally, Ms. Brodie.

 STATEMENT OF MARGO BRODIE, NOMINEE TO BE U.S. DISTRICT JUDGE 
              FOR THE EASTERN DISTRICT OF NEW YORK

    Ms. Brodie. Thank you, Senator Whitehouse. Thank you to the 
Committee, also to Senator Schumer for his kind words today, 
and also for recommending me to the President. Thank you to the 
President for nominating me for this position.
    I have with me today my mother Nina Brodie, my brother Euan 
Brown, my cousin Jan Edwards, my aunt and uncle Barbara and 
Charles Brodie, and several friends and colleagues, both here 
in DC and who are watching on the webcast from New York. Also, 
friends who are watching from Antigua and from Nigeria. Thank 
you.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Whitehouse. I have the privilege now of turning to 
our Ranking Member, Senator Grassley, if you have any 
questions.
    Senator Grassley. I have one question for each and will 
probably submit some questions for answer in writing.
    Mr. Christiansen, according to your Senate questionnaire, 
nearly all of your litigation experience has involved civil 
matters with a focus on defending medical malpractice cases. 
Given your expertise in health care litigation, I'm interested 
in your view on one aspect of health care. It's not so much to 
get your opinion of what you might do as a judge, but from your 
practice.
    What impact would caps on damages have in our health care 
costs?
    Mr. Christiansen. Thank you, Senator Grassley. In Montana 
we have implemented over the years a number of things that 
would probably fairly be described as reform in the area of 
medical malpractice litigation. For instance, we have a 
$250,000 general damage cap in Montana. It's been on the books 
for a considerable period of time, since the mid-80s, I 
believe. We have a screening panel in Montana that requires 
parties, before they can file a lawsuit against a health care 
provider, to present a claim. It's non-binding, it's 
confidential.
    We also have a number of other statutes we've implemented 
in this area. Obviously I think it's important that the rights 
of parties to present their claims and to have access to the 
courts is essential. We haven't found that any of the things 
that we've done in Montana have severely limited those rights, 
and it's been my belief that all of these things have 
facilitated resolution, quite frankly, of claims against health 
care providers, particularly the medical/legal panel 
proceeding. I would estimate that probably 60, 70 percent of 
claims against health care providers get resolved as a result 
of that process.
    Senator Grassley. So it sounds to me like your conclusion 
is that the caps on damages would impact positively health care 
costs?
    Mr. Christiansen. Senator, I think I probably need to be 
careful in terms of how I respond to the issue of caps. 
Obviously I've lived with them. I will tell you that the 
constitutionality of that statute has never been addressed by 
the Montana Supreme Court and is an issue that very well could 
end up, if I am confirmed and sworn in, in my court, so I 
probably need to be careful and stay between the ditches on 
that one.
    Senator Grassley. And if I call you Kathy instead of trying 
to pronounce your last name, would you forgive me?
    Judge Bencivengo. That's fine. It's Bencivengo.
    Senator Grassley. In your Senate questionnaire you listed 
cases in which you were sometimes reversed in whole or in part 
by reviewing courts. Would you care to comment on those 
reversals and share with the Committee--in fact, the second 
part of this question is the most important one. Share with the 
Committee what you learned from those experiences.
    Judge Bencivengo. Yes, Senator. Thank you for the question. 
I believe that most of the cases involved reports and 
recommendations that I made to District judges where generally 
parties are then given an opportunity to file further paper and 
make further argument, and consequently the modifications and 
reversals may result from a better record in front of the 
District judge on review of the report and recommendations. 
There certainly were instances where there might have been 
either a change or a misinterpretation of the law on my end, 
and therefore the lesson always for me is to be as diligent as 
I can in interpretation and application of the law.
    Senator Grassley. Judge Groh, I'm going to ask you a 
question from one of your cases, but it doesn't involve just 
your case. But it's kind of to get your feeling about 
sentencing guidelines/recommendations that you might be asking 
the Federal court. They're voluntary, but how you might respond 
to them.
    As a West Virginia Circuit Court judge you presided over a 
case involving an eighth grade female teacher sending sexually 
explicit messages to, and engaging in, inappropriate conduct 
with a 14-year-old male student. According to press accounts, 
the prosecutor and the defendant reached a plea agreement in 
which the teacher agreed to plead guilty to one count of sexual 
abuse by a person in trust, and in return the prosecutor would 
seek that she serve 10 years probation and no more than 4 
months jail sentence in lieu of a 10- to 20-year prison 
sentence.
    Did you have any concerns about this plea agreement given 
the seriousness of the conduct at hand? More importantly, at 
sentencing, you sentenced the teacher to only 3 months in jail 
instead of the 4 months permitted in the plea agreement. What 
factors led you to that decision?
    Judge Groh. Thank you for that question, Senator. While 
going into the sentencing phase of that proceeding I wondered 
myself if the plea should be accepted, but a number of 
components go into sentencing an individual in State court, and 
also in Federal court as well. I learned more about the 
defendant as an individual.
    I considered the position of the victim or the victim's 
mother, the position of the investigating officer, the position 
of the State, the defendant's criminal history, which really 
she didn't have any criminal history to my recollection, and 
the specifics of the crime or offense in and of itself that she 
was pleading to. That's how I reached my conclusion, as I do in 
every case, on what the appropriate sentence is.
    Now, bringing it forward, if I were so fortunate to be 
serving on the Federal bench, I know that we have the 
guideline--or would have the guidelines there and the 
guidelines are no longer mandatory. However, I would give 
deference to the guidelines. I believe it's important to have 
uniformity in sentencing. That's also another issue I look at, 
not between defendants if they're involved in different 
offenses in State court, but if the defendants--or for my court 
a co-defendant--they also have to make sure that there's no 
disparity in sentencing.
    Senator Grassley. You answered my follow-up question, so 
I'll move on to Ms. Brodie.
    Just one question for you. I might have some in writing for 
all of the judges. From May of 2005 to March of 2006, you 
served as a legal advisor to the Independent Core Practices and 
Other Related Offices Commission in Nigeria. In this role I 
understand you advised and trained over 100 prosecutors and 
investigators on all aspects of prosecution. So I'd like to 
have you comment on how this experience will affect you as a 
Federal judge, when confirmed.
    Ms. Brodie. Well, thank you for that question, Senator 
Grassley. I think I've learned quite a few things from working 
overseas, and particularly in that detail in Nigeria. It has 
made me realize and recognize that we are very blessed here in 
the United States to have a very functional judicial system, 
which is something that most countries don't have. It has 
taught me the appreciation of knowing that the system that we 
have here in the United States can be recognized, relied on by 
the litigants who appear in court.
    In Nigeria, part of the problem with the judicial system--
the criminal justice system as a whole, in fact, which is 
something they're working on--is the fact that when matters are 
brought before the court they could take years to be concluded, 
because on every single matter that a judge rules on it can be 
appealed all the way to the Supreme Court. That delays all the 
proceedings. It's especially bad for criminal proceedings where 
defendants are either incarcerated or not, but could spend 
years before a matter can be resolved simply because of the way 
in which the system is set up for that matter.
    So it does make me appreciate the fact that it's important 
that matters be litigated promptly, and if I were lucky enough 
to be confirmed to the position for which I've been nominated, 
one of the things that I would make sure that I do is to make 
decisions very quickly so that litigants, whether they be civil 
or criminal, who appear before the court, can know what the 
outcome is, and I will do so fairly and impartially. Thank you, 
Senator.
    Senator Grassley. I would say for all of you, just to 
caution. Even though your nominations appear to be non-
controversial, sometimes for things unrelated to your 
qualifications or anything personal or ideological, nominees 
are held up because questions aren't answered fully. So I would 
encourage you all, if you have questions from the two of us or 
any of the 18 members of the Committee, I hope you will 
understand that we don't usually move ahead until all are 
satisfactorily answered.
    Mr. Christiansen. Thank you.
    Judge Bencivengo. Thank you, Senator.
    Judge Groh. Thank you.
    Senator Whitehouse. Let me ask each of you one final 
question before we adjourn the hearing. Who would you seek to 
emulate as a U.S. District judge? Somebody from history, or 
fiction, or from your personal experience in the law. Who would 
you think the model would be for your service as a judge, and 
why? Mr. Christiansen?
    Mr. Christiansen. Senator, that's a wonderful question. I 
was inspired to become a lawyer at a very early age by a 
practitioner in Missoula, Montana named Sherm Lawn. He's now 
deceased. The Kiwanis Club in Missoula had a program where you 
could spend a day shadowing someone in a profession, and I 
shadowed Sherm Lawn. He was a wonderful old-school trial 
lawyer. He had the finest ethics, he was collegial, and my 
parents, who unfortunately are now both deceased, would 
probably recall that I came home in about the 7th or 8th grade 
and said, I've decided this is what I want to do, I want to be 
a lawyer. So that person--he also gave me my first job while I 
was in law school. He meant a lot to me and he inspired me.
    Senator Whitehouse. Judge Bencivengo.
    Judge Bencivengo. Thank you, Senator. I wouldn't have to 
look far for examples of judges I would want to emulate. My 
District Court, I believe, has one of the best benches in the 
country. If I were to choose one of those judges, the position 
I'm being considered for, the judge who went senior and made 
that position available, Jeffrey Miller, I think, is an 
exemplary person to look to for judicial demeanor for his 
ability to make everyone in his courtroom feel comfortable, and 
yet still sustain the formality and the importance of the 
judiciary, his respect amongst the bar, and jurors who appear 
in front of him. I think he is just an extraordinary example of 
a fine judicial person and someone I would certainly wish to 
emulate. Thank you.
    Senator Whitehouse. Judge Groh.
    Judge Groh. The person who I wish to emulate, and would if 
I were so fortunate to find myself on the Federal bench, is 
Judge Irene Berger. Judge Berger was a Circuit Court when I 
became a Circuit Court judge. She was one of two, and Senator 
Manchin added me as the third. Judge Berger was confirmed 
toward the end of 2009 as a Federal judge. She serves in the 
Southern District of our State.
    The very first time I met her at my initial judicial 
conference, she gave me all her numbers and she held my hand, 
figuratively, and she has been doing that ever since, even 
throughout this process through the DOJ vetting and all the 
questionnaires, and phases and hoops that we've been going 
through. Our careers parallel. She was a former prosecutor, as 
was I, before she became a Circuit judge. She progressed and 
now is in what she tells me is the best job she's ever had on 
the Federal bench. She is well-respected. She's kind and 
compassionate, yet has control of her courtroom. She's even-
tempered, smart, and hardworking, well-respected, as I said, 
among the bar. I was honored for the Supreme Court to replace 
her with me on our Judicial Ethics Hearing Board when she was 
elevated to the Federal bench. Thank you.
    Senator Whitehouse. Thank you.
    Ms. Brodie.
    Ms. Brodie. Thank you, Senator Whitehouse. Well, I can't 
decide on one judge because there are so many judges in the 
Eastern District of New York who I would love to emulate. There 
are many of them who I believe possess the right qualities that 
make for a wonderful judge. They're extremely decisive, they 
are smart, they have the right temperament.
    I love my job, and the reason I do is because it's a great 
job when you have to go to the courtroom of these judges every 
day and know that it's going to be a wonderful experience, 
regardless of whether or not the outcome, the ruling is what 
you want it to be. The experience is going to be enjoyable. 
That is what I hope to do, if I become confirmed to this 
position, to emulate all of those judges who have all of the 
fine qualities that I believe are important in a District Court 
judge.
    Senator Whitehouse. Good.
    Well, I wish you all well. I know that this process can be 
a bit of an ordeal as you go through repeated blockades of 
paperwork, but you're through all that now and you've had the 
happiest possible thing happen, which is to have the Ranking 
Member of the party other than the President who appointed you 
deem your nominations uncontroversial.
    [Laughter.]
    Senator Whitehouse. So I wish you well as you proceed 
through the Committee, and as we take up your nominations on 
the floor and in your service to our country to what I hope are 
long and productive lives on the bench.
    The hearing will remain open for an additional week if 
anybody wishes to add anything to the record, but we are, 
today, adjourned.
    [Whereupon, at 3:44 p.m. the meeting was adjourned.]
    [Questions and answers and submissions for the record 
follow.] 

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



NOMINATION OF ADALBERTO JOSE JORDAN, OF FLORIDA, NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE ELEVENTH CIRCUIT; JOHN M. GERRARD, OF NEBRASKA, NOMINEE 
   TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA; MARY ELIZABETH 
  PHILLIPS, OF MISSOURI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN 
 DISTRICT OF MISSOURI; THOMAS OWEN RICE, OF WASHINGTON, NOMINEE TO BE 
   DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON; AND DAVID 
 NUFFER, OF UTAH, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF UTAH

                              ----------                              

                TUESDAY, SEPTEMBER 20, 2011
                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Amy 
Klobuchar, presiding.
    Present: Senators Klobuchar, Hatch, and Lee.

 OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM 
                     THE STATE OF MINNESOTA

    Senator Klobuchar. I am pleased to call this nominations 
hearing of the Senate Committee on the Judiciary to order. Our 
Ranking Member today is Senator Hatch, and I know we have 
several members here to speak, to introduce. We have five 
judicial nominees today, so I would like to call upon my 
colleagues to introduce the nominees from their home State. We 
will start with Senator Nelson of Nebraska.

 PRESENTATION OF JOHN M. GERRARD, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE DISTRICT OF NEBRASKA, BY HON. BEN NELSON, A U.S. 
               SENATOR FROM THE STATE OF NEBRASKA

    Senator Nelson of Nebraska. Thank you, Madam Chair. It is 
truly my honor to join with my colleague, Senator Johanns, and 
introduce Nebraska's Supreme Court Justice John Gerrard, who 
has been nominated by the President for the U.S. District Court 
for Nebraska.
    I have known John and Nancy Gerrard and their family for 
nearly 20 years. I saw in him the experience, intellect, and 
temperament needed to serve on the Nebraska Supreme Court 
bench. So as Governor, I appointed John Gerrard to the Nebraska 
Supreme Court in 1995. The people of Nebraska have approved of 
his service and voted to retain Judge Gerrard on our State's 
highest court three times.
    He has consistently received top ratings by the Nebraska 
Bar Association in its biennial judicial evaluations. In 2006, 
Judge Gerrard received the Distinguished Judge for Improvement 
of the Judicial System Award for leading initiatives promoting 
racial and ethnic fairness under the law. In 2008, Judge 
Gerrard received the Legal Pioneer Award for utilizing 
technology to improve Nebraska citizens' understanding and 
participation in our courts.
    On the Nebraska Supreme Court, Judge Gerrard has authored 
more than 400 opinions. Other opinions written by Judge Gerrard 
have helped refine protocol for how many different types of 
cases are handled, including evidence requirements in homicide 
cases, how expert testimony is received, and clarifying duty 
analysis in negligence cases.
    Prior to his service on the Nebraska Supreme Court, Judge 
Gerrard was senior partner in the law firm of Gerrard, Stratton 
& Ptak in Norfolk, where he was in private practice for 14 
years. He also served as the Battle Creek city attorney, as 
counsel to Northeast Community College, Norfolk Public Schools, 
and other northeast Nebraska school districts.
    I thank the members of the Senate, Madam Chair, Ranking 
Member Hatch, and Senator Lee, for considering this extremely 
well qualified nominee for the Federal bench. It is my hope the 
Committee will report out Judge Gerrard's nomination soon and 
that the full Senate will have the opportunity to swiftly 
approve this good man.
    Senator Klobuchar. Very good.
    Now Senator Johanns from Nebraska.

 PRESENTATION OF JOHN M. GERRARD, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE DISTRICT OF NEBRASKA, BY HON. MIKE JOHANNS, A U.S. 
               SENATOR FROM THE STATE OF NEBRASKA

    Senator Johanns. Madam Chair, thank you very much. It is an 
honor for me to appear before this Committee. Let me, if I 
might, start this afternoon by saying thank you to my colleague 
from Nebraska, Senator Ben Nelson, and I definitely want to 
associate myself with the comments that he has just made.
    As we all know, Senator Nelson and I occupy different sides 
of the aisle, but I will tell you we both agree that the 
exceptional record and the experience of Judge Gerrard makes 
him an excellent candidate for the Federal Bench.
    Madam Chair, this is exactly as a nomination should occur. 
Before the nomination was even announced, Senator Nelson called 
me and he said, ``Here is what I am thinking about. I am 
thinking about Judge Gerrard for this U.S. district court 
position. Would you take the time to sit down and visit with 
him? '' So I did. So before any nomination was talked about 
publicly, I had an opportunity to go to the judge's Supreme 
Court office, and we talked.
    Of course, I have known him also for many, many years. I 
have always been impressed with his temperament, his 
background, his judicial philosophy, his record, and I could 
not more enthusiastically support this nomination. In fact, I 
was saying to my colleague as we were preparing to come into 
the hearing room, if I were king for a day, this is the kind of 
person I would nominate to the U.S. district court. So I 
appreciate being a part of this process.
    Judge Gerrard embodies integrity, judicial restraint, 
thoughtful fairness. He is a class act in every way, and he is 
absolutely the right person for this job.
    During his 16 years on the Nebraska Supreme Court, he has 
conducted himself in every way with great distinction. And 
every time his colleagues in the legal profession had an 
opportunity to rate him, they gave him the highest ratings.
    So I am very pleased to be here today. It is my hope that 
the Committee will agree with our assessment, vote him to the 
floor, and I want to assure the Chair and the Ranking Member I 
will do everything I possibly can to try to bring his 
nomination to a vote. It is critical that we fill this district 
court position.
    Thank you.
    Senator Klobuchar. Thank you very much.
    Senator McCaskill of Missouri.

PRESENTATION OF MARY ELIZABETH PHILLIPS, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE WESTERN DISTRICT OF MISSOURI, BY HON. CLAIRE 
      MCCASKILL, A U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator McCaskill. Thank you, Madam Chairwoman. I am 
honored today to be here to introduce Beth Phillips as a 
nominee for the Western District Court of Missouri. I had the 
pleasure of hiring Beth Phillips as a young assistant 
prosecutor many years ago, back in the 1990s, and I have 
watched her career, as has the rest of the bench and bar in 
Missouri, with a great deal of pride.
    When I used to be in the courtroom--and I know I probably 
can get some ``me, too's'' on this from the members of this 
Committee--nothing was more frustrating than having a judge 
presiding over a trial that it was fairly clear they had never 
been in a trial. And those people who do work in a courtroom 
know how great it is to have someone on the bench that 
understands exactly what it is like to be at the bar and to be 
arguing for your case and all of the challenges and 
frustrations that go with that.
    This is a woman who has tried over 40 cases in the 
courtroom; 90 percent of those were jury trials. She has tried 
those cases both as a prosecutor and as a civil litigant. She 
was appointed to be the U.S. Attorney for the Western District 
2 years ago and was unanimously confirmed by the Senate 2 years 
ago. And since that time, she has overseen a staff of 126 
employees, including 67 lawyers, in the Western District of 
Missouri as the U.S. Attorney.
    You know, whenever you have been involved in trying to help 
someone in their career, many times you get calls from--and I 
have got a lot of former friends and colleagues that practice 
law in the Kansas City area, and I will be honest with you. 
There have been times that I have gotten calls about this 
person or that person that were not always positive, like, you 
know, ``That person you hired is an idiot,'' or, ``I am really 
irritated at that person.'' And it is unbelievable to me the 
way that this woman's leadership has been greeted by both the 
judiciary and the litigants in the greater Kansas City area and 
in the Western District of Missouri.
    She is an undergraduate from the University of Chicago and 
a master's from the University of Chicago, and then she got 
some sense and came home and got her law degree in Missouri. 
She is a native Missourian, and I do not know how many 
generations of her family have been in Missouri, but she was 
born in a very small town in rural Missouri. And so when we 
went to the swearing-in as U.S. Attorney, I think half of her 
hometown was there. It was a moment of great pride for this 
very small community that she had reached this zenith.
    I think she is ready to take this lifetime appointment for 
so many reasons. It will be a two-judge family. Her husband is 
here with her today, Brent Powell, who was appointed to the 
State bench by my colleague's son, Governor Matt Blunt, when he 
was Governor. And I do not get into politics at these things. I 
do not think you should. But I think it tells you the kind of 
people these are that I am pushing for the appointment of Beth 
Phillips as a Federal judge when the man who defeated me for 
Governor appointed her husband as a State judge. I think that 
is the kind of bipartisanship we all long for in this body and 
certainly that we hope to get on the Federal judiciary. And I 
think that she will call balls and strikes. She will let people 
try their cases. She will not impose her judgment in terms of 
any bias she has on any matter of policy into the courtroom, 
and she will be the kind of Federal judge that will make us 
proud as the U.S. Senate and will do justice to our great 
Constitution and the system of checks and balances that it 
embraces.
    I would ask for favorable consideration from the Committee 
today for her appointment. Thank you, Madam Chairman.
    Senator Klobuchar. Thank you very much, Senator McCaskill, 
and that is a lot of good information for us to have. We 
enjoyed that.
    Now we will turn from the Midwest to Florida. I think 
Senator Rubio was here first, and--you want Senator Nelson? 
Very nice. Senator Nelson, oh, my goodness, Senator Nelson will 
go first, and we are pleased to have both of you here on behalf 
of the Florida nominee.

 PRESENTATION OF ADALBERTO JOSE JORDAN, NOMINEE TO BE CIRCUIT 
  JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. BILL NELSON, A U.S. 
               SENATOR FROM THE STATE OF FLORIDA

    Senator Nelson of Florida. Well, this reminds me who is the 
senior Senator and who is the junior Senator. When Bob Graham 
was my senior Senator, he always expected me to serve him 
coffee.
    [Laughter.]
    Senator Rubio. I will be right back.
    [Laughter.]
    Senator Nelson of Florida. Well, the two of us are here 
unanimous because this is an excellent appointee by the 
President, and we urge upon the Committee for quick 
confirmation for the Eleventh Circuit Court of Appeals.
    Madam Chairman, Judge Jordan will end up being the first 
Cuban American to sit on the court of appeals. That is 
significant in itself, but when you look at his life, all the 
way from being magna cum laude, the fact that he was a walk-on 
at the University of Miami baseball team and made the team, the 
fact that he was an Assistant U.S. Attorney and served with 
distinction there and then was picked by President Clinton to 
be a Federal district judge, so he has been a judge now for 
well over a decade. And among all of his peers have had nothing 
but glowing comments once the President made his decision.
    And so this is a great day, and I want to just shorten my 
comments so that my colleague--and you are very kind--can say 
something about the historical significance of judge Jordan's 
nomination.
    Senator Klobuchar. Very good. Thank you.
    Senator Rubio.

 PRESENTATION OF ADALBERTO JOSE JORDAN, NOMINEE TO BE CIRCUIT 
  JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. MARCO RUBIO, A U.S. 
               SENATOR FROM THE STATE OF FLORIDA

    Senator Rubio. Thank you, and I will also be brief because 
I think his experience and his resume will speak for itself. I 
just want to echo a few things.
    First of all, obviously as a community we are very proud of 
Judge Jordan's nomination and look forward to his appointment.
    I would add a couple things. He is, as I am, a law school 
graduate from the University of Miami. He is a double 
Hurricane, I should say, because also his bachelor's degree was 
from there. He has been serving for 12 years on the bench in 
the U.S. District Court for the Southern District of Florida. 
At the time of his appointment, he was only 37 years old. He 
remains very active in our community. He is involved in 
teaching both at the University of Miami School of Law and at a 
newer place that is really growing rapidly, the Florida 
National University College of Law as well.
    I think his knowledge of the law is demonstrated further in 
part by his work as the chief of the Appellate Division in the 
Office of the U.S. Attorney for the Southern District of 
Florida, which is a very active district in his time there 
practicing as an attorney. He spent time as a clerk at the U.S. 
Supreme Court for Justice Sandra Day O'Connor, and he has 
served as a clerk to Judge Thomas Clark of the Eleventh Circuit 
Court of Appeals. So I am obviously honored and proud to be 
here introducing him to the Committee, and I look forward to 
your full consideration of his nomination.
    Thank you.
    Senator Klobuchar. Thank you very much. Thank you both for 
coming, and we look forward to hearing from your nominee.
    Now we turn to the State of Utah with my colleague here, 
Senator Hatch, for an introduction.

PRESENTATION OF DAVID NUFFER, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE DISTRICT OF UTAH, BY HON. ORRIN G. HATCH, A U.S. SENATOR 
                     FROM THE STATE OF UTAH

    Senator Hatch. Well, thank you, Madam Chairman. We are very 
happy, and I was very pleased to sit here with you and I am 
honored to be with you on this panel today.
    I am very pleased to introduce to the Committee Chief U.S. 
Magistrate Judge David Nuffer, and I want to congratulate 
President Obama for choosing him as the nominee to the U.S. 
District Court in Utah.
    After receiving his undergraduate and law degrees from 
Brigham Young University, Judge Nuffer spent 24 years in 
private legal practice. He has served for 16 years as the U.S. 
magistrate judge, half of those years part-time and half full-
time. He has been the chief U.S. magistrate judge for the 
District of Utah since 2009, and as a lawyer, he practiced both 
in the criminal prosecution area and criminal defense, and he 
has tried more than 150 cases to verdict, which is more than 
most people who come before this body.
    I am not surprised that the American Bar Association 
unanimously gave him its highest well-qualified rating. In 
fact, I would have been upset if they had not.
    Judge Nuffer is widely known in Utah's legal community, and 
he is just as widely respected. I have talked to numerous 
lawyers in Utah, lawyers that I have tremendous respect for, 
and to a person, they all believe that he will be one of the 
great judges in this country.
    He has not only practiced law, but he has served the law as 
well as both a commissioner and as president of the Utah State 
Bar. He has served on various committees and task forces of the 
Utah Supreme Court and is Chairman of the Utah Judicial Conduct 
Commission. And for more than a decade, Judge Nuffer has been 
an adjunct professor at his law school alma mater.
    But his service to the law extends beyond our borders. 
Judge Nuffer has lectured to judges, lawyers, and law students 
in countries as far afield as Brazil, Egypt, and Ukraine, and 
serves on the board of the Leavitt Institute for International 
Development.
    As my colleagues know, I chair the Senate Republican High-
Tech Task Force and have for many years been involved in 
efforts to reform the patent system. I therefore took 
particular notice of Judge Nuffer's love of technology and the 
promise that it holds for the legal system. In one of his many 
articles and blog postings, he wrote, ``Technology is a leveler 
that puts us all in touch, reduces the distance from the 
courthouse, and leverages our abilities.'' I cannot agree more.
    When he is confirmed, as I know he will be, Judge Nuffer 
will help make the law and the court system more accessible to 
all of our citizens. This well-rounded picture of dedication, 
service, and excellence has really impressed me, as it has, I 
am sure, many others in Utah and around the country.
    As I usually do when we have a judicial vacancy, I talk to 
lawyers and leaders in the legal community of both parties 
throughout Utah, and in Judge Nuffer's case, the response was 
strong and unanimous, and we are very proud of you and we are 
looking forward to you serving a nice long time on the Federal 
bench. And we are very happy to have your lovely wife with you 
as well.
    Senator Klobuchar. Very good.
    Senator Lee.

PRESENTATION OF DAVID NUFFER, NOMINEE TO BE DISTRICT JUDGE FOR 
THE DISTRICT OF UTAH, BY HON. MIKE LEE, A U.S. SENATOR FROM THE 
                         STATE OF UTAH

    Senator Lee. Thank you, Madam Chair. It is my pleasure to 
say a few words to support the nomination of Magistrate Judge 
Nuffer. I will be brief. I will also be personal. I am one of 
those lawyers who has appeared in front of him, and I have 
found him to be a judge who is unusually well informed, well 
prepared, and exercises exceptionally good judgment. And I 
commend President Obama for his excellent choice in this 
nomination.
    As Senator Hatch noted, over the course of his career Judge 
Nuffer has worked tirelessly and with distinction to serve the 
bar and the bench in Utah and beyond. For example, he has 
served as president of the Utah State Bar Association, as a 
member of the Utah District Court's Civil Procedure Rules 
Committee, the Utah District Court Arbitration and Mediation 
Panel, and the National U.S. Court IT Advisory Committee.
    Judge Nuffer has also written or presented extensively on a 
variety of legal and law-related issues, especially those 
involving the use of technology by litigants and in the courts.
    The many attorneys and judges that have read his 
publications and attended his lectures and other seminars have 
benefited greatly from his expertise. Judge Nuffer has also 
served as an adjunct professor at BYU's law school for the past 
decade, where he helped to prepare the next generation of 
attorneys.
    Finally, let me add that Judge Nuffer is well known and 
highly regarded throughout the Utah bench and bar. His 
knowledge, his temperament, his expertise, including those 16 
years that he served first as a part-time magistrate judge and 
then as a full-time magistrate judge, are among the many 
qualities for which he is rightly admired. I am pleased 
enthusiastically to recommend him to my fellow colleagues on 
this Committee, and I ask for your full consideration of this 
outstanding nominee.
    Thank you, Madam Chair.
    Senator Klobuchar. Thank you very much, Senator Lee.
    There is one other nominee that I am going to introduce: 
Thomas Rice. He has been nominated to the United States 
District Court for the Eastern District of Washington. Mr. Rice 
has spent his entire legal career working for the United States 
Department of Justice, where he started as an Honors Program 
trial attorney in 1986 and now serves as the first Assistant 
United States Attorney in the Eastern District of Washington. A 
Washington native, we welcome you, Mr. Rice, and we thank you 
for being here. I picked out the right person. He looked like 
he was a U.S. Attorney, so that was pretty good.
    [Laughter.]
    Senator Klobuchar. I mean, that is not a generalization. I 
just picked you out.
    We do know that Senator Murray from Mr. Rice's home State 
has submitted a statement that will be entered for the record.
    [The prepared statement of Senator Murray appears as a 
submission for the record.]
    Senator Klobuchar. I would now like to turn to Senator 
Hatch for any additional remarks he would like to make.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, I might mention that Senator Murray is 
in that super committee, so that is just dominating all their 
time, so I hope folks will realize that and realize why she is 
not here today.
    We are just really happy to have all of you here. The 
Federal judiciary is absolutely critical to this country. It is 
the third branch of Government. It is a co-equal branch of 
Government. Many feel maybe it is more than co-equal in some 
respects. I had extensive experience before the Federal courts, 
both in Pennsylvania and in Utah, and all I can say is that I 
never met a Federal judge that I did not like. And that 
includes Willis Ritter out in Utah, who is quite a curmudgeon, 
and we got along very well.
    I will never forget one time a fellow cut down one of our--
families, pioneer families had always cut down Christmas trees 
on Federal property, and so they just thought it was a matter 
that they could easily do. And one day this fellow, one of the 
successors, cut down a Christmas tree, and he was indicted for 
destroying Federal property. And he appeared before Judge 
Ritter for sentencing. I was there. And Judge Ritter sentenced 
him to 8 years in the Federal penitentiary. That made everybody 
aghast. Fortunately, there were other judges there who later 
commuted the sentence.
    [Laughter.]
    Senator Hatch. But I caution you judges and judges-to-be 
that it is really important that our Federal bench has always 
set the highest standards.
    Now, Judge Ritter was one of the brightest people I have 
ever met. He was a law professor and a very great student of 
the law. But he occasionally had those aberrations that were 
very interesting.
    One other time--in fact, it was the same time. A fellow 
showed up with this--an attorney was with this woman, and he 
said, ``What did you do? '' And she said, ``I stole a Federal 
bond and cashed it.'' This is right after he sentenced this 
fellow to 8 years. He said, ``Well, what did you do with the 
money? '' And she says, ``I gave it to my attorney for legal 
fees.''
    [Laughter.]
    Senator Hatch. And Ritter then said, ``Well, you overpaid 
him.'' And he gave her 6 months' probation. So it shows the 
difference between--all I can say is that I do not expect any 
of you judges-to-be or judges to do that type of work on the 
bench. Our Federal bench in this country is really very, very 
great and highly qualified, and we are just happy to have all 
of you here.
    I might add that I think we are doing a good job on this 
Committee keeping this administration's judges moving as fast 
as we can, and we should do even better, as far as I am 
concerned.
    So we are grateful to all of you for being willing to 
serve. We know there are advantages and disadvantages, but 
without the Federal judiciary, this country cannot survive in 
its current form. So we are very proud of all of you and very 
pleased to have you here.
    Senator Klobuchar. Well, that was very nice, Senator Hatch, 
and I know that now all the nominees can expect a question 
about what sentence they thought the guy that took the 
Christmas tree should get.
    [Laughter.]
    Senator Klobuchar. That was just his little tip to all of 
you.
    Senator Hatch. It just shows how tough we are there in 
Utah.
    Senator Klobuchar. We will start with Judge Jordan, if he 
wants to come up. Do you say ``JOR-din'' or ``Jor-DAN'' ? No, 
really, tell me. Tell me. ``JOR-din,'' good. It sounded like 
your Florida Senators had a little bit of an accent, but they 
always have an accent anyway.
    We are going to swear you in first. 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 Jordan. I do.
    Senator Klobuchar. Very good. Would you like to introduce 
family members or friends that are here with you, Judge Jordan?

STATEMENT OF ADALBERTO JOSE JORDAN, NOMINEE TO BE CIRCUIT JUDGE 
                    FOR THE ELEVENTH CIRCUIT

    Judge Jordan. I would. Thank you very much.
    Senator Klobuchar, Senator Hatch, Senator Lee, I am honored 
to be here. I am also deeply grateful to the President for 
nominating me, and I would like to thank the Committee for 
scheduling the hearing and Senators Nelson and Rubio for their 
kind words and support.
    I do not have any remarks, but I would like to recognize 
family members and friends. My wife, Esther, and our daughters, 
Diana and Elizabeth, are here; as are my brother George and one 
of our nephews, Carlos.
    Several family members could not make it, but they are 
watching through the Committee's webcast in Miami and 
elsewhere: my mother, Elena; my mother-in-law, Flor; my sister-
in-law, Connie; my brother-in-law, Domingo, and his girlfriend, 
Grace; and our nephews, George, Matthew, and Dominic; our 
nieces, Emma and Amanda; and my step-brother and step-sisters 
and their families.
    Some of our chamber staff have flown here for the hearing. 
The rest are watching back home. Also here are a number of 
former clerks and friends. I am very fortunate for their 
friendship and for their support. Thank you.
    [The biographical information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Klobuchar. Very good. Thank you so much. I am just 
going to ask you a few questions here at the beginning.
    I am a former prosecutor myself, and I know you served in 
the Appellate Division, the chief of the Appellate Division of 
the United States Attorney's Office. How has that experience 
shaped your work as a judge?
    Judge Jordan. Well, it certainly helped me to figure out 
how to read records and learn hopefully what mistakes can be 
made and which ones can be avoided. I also argued and wrote a 
fair number of briefs while I was there at the office and was 
able to practice before the Eleventh Circuit for the majority 
of my time at the U.S. Attorney's Office. So it was certainly a 
different type of work than the one that I am doing now, but it 
certainly helped me to learn the law of the circuit, the 
traditions of the circuit, how things operate. And I think that 
that certainly helped prepare me, at least in part, for the job 
that I currently hold.
    Senator Klobuchar. And then you served for 12 years as a 
judge, and what surprised you about that job? And have you 
changed over the years in your philosophy as a judge?
    Judge Jordan. I do not think I have changed in my 
philosophy. Some judges who gave me advice when I came on told 
me it would take about 2 to 3 years to get your sea legs in a 
district like Miami, and I think they were basically right.
    I was surprised at the speed of cases in a district like 
Miami where the criminal workload is pretty heavy, and we are 
in trial all of the time. I think last year we ended up maybe 
second or third in the country in trials, and for the past 4 or 
5 years before that No. 1. So we are in trial a lot, and that 
is not something you get used to right away.
    It also took me a little bit of time to get used to making 
calls on the spot, off the cuff, during a trial. That is not 
something you do on a normal, everyday basis as an appellate 
attorney. But you learn quickly that you better do it, or else 
things are going to get clogged up mighty fast.
    Senator Klobuchar. Very good. You are now going to be 
serving on a panel of judges on the circuit court, and talk 
about how you think you are going to handle that and trying to 
seek agreement. You have clearly gotten agreement between your 
two Senators that support you, so that is a good beginning. It 
is not that easy to do around here. So tell me about how you 
think you will handle the job differently than yours now and 
how you think you would go into that consensus building.
    Judge Jordan. It certainly is a different job. I think I am 
going to be helped in part by the fact that I have sat a number 
of times by designation on the circuit, and I have sat with I 
think half or a little bit over half of the judges on the 
circuit already.
    The job of sitting by designation is certainly not the job 
of sitting as a full-time appellate judge. As a district judge 
in the Eleventh Circuit, you sit for just 2 days out of the 4, 
so you are able to fly in, hear 2 days' worth of cases, and 
then get your assignments and go back home. So the work will 
certainly be different in terms of volume.
    But I think I understand what the process is like and what 
consensus building is about and how to be civil to your 
colleagues even when you might disagree with a position and how 
to try to reach middle ground on cases where that middle ground 
can be reached. So I hope that those experiences have prepared 
me well for the job that I will hopefully have.
    Senator Klobuchar. Very good. I really appreciate your 
answers. They were good ones.
    I am going to turn it over to Senator Hatch.
    Judge Jordan. Thank you.
    Senator Hatch. Welcome back to the Judiciary Committee. We 
are happy to have you here.
    Judge Jordan. Thank you, Senator.
    Senator Hatch. I appreciate your comments on the issue of 
judicial impartiality. Some have argued that the judicial 
branch ought to be very much like the legislative branch where 
substantive interests are actually represented. On the other 
hand, the judicial oath requires impartiality without regard to 
the identity of the parties.
    You know that because you have, of course--you have to take 
the oath and you understand that. Each individual certainly 
brings his own background and experiences with him or her to 
the bench, but please comment on a judge's obligation to step 
back from that and to judge cases impartially, if you will.
    Judge Jordan. I think that is one of the paramount goals of 
a judge in our system. We are supposed to be the neutral 
arbiters and judge and decide cases without regard to who it is 
who is before us or what their views are. I have certainly 
strived to try to do that in my almost 12 years on the district 
court bench in Miami. I do not think that our personal views 
have any place in what we do on a day-to-day basis as judges. 
We are all human beings, of course, but I think as a judge you 
need to try and strive very, very hard to make sure you are 
deciding the case on something other than your own preferences 
and views, whatever those might be. So I have strived and I 
hope I have achieved impartiality in my years on the bench in 
Miami.
    Senator Hatch. Well, thank you. You have been a Federal 
trial judge for a dozen years. If confirmed, you will instead 
review the decisions of Federal trial court judges. Appeals are 
not supposed to be simply do-overs, just another bite at the 
apple. Please comment on the difference between these two roles 
of the trial court and appeals court judges in our judicial 
system.
    Judge Jordan. Well, there certainly are differences, and 
you do not get to have complete do-overs in the court of 
appeals on a whole range of cases. Obviously, questions of law 
get reviewed de novo, without any deference being given. But 
when you are talking about a judge's findings of fact or an 
evidentiary ruling which is subject to an abuse of discretion 
standard or things like that, I think appellate judges need to 
keep in mind that the trial judge is usually in the best 
vantage point and the best position to be able to make those 
calls, knows the litigants, knows the history of a case, knows 
what lawyers have argued, what might be missing, what might be 
going on in a case.
    I think as district judges we hope that those calls are 
given deference when appropriate when our cases go up to the 
court of appeals, and I think and I hope that I will be able to 
do that if I am fortunate enough to be confirmed. I am 
confident that I can.
    Senator Hatch. Thank you. I am certainly going to support 
your confirmation, and we congratulate you for being willing to 
serve in this very important position.
    Judge Jordan. Thank you very much, Senator.
    Senator Klobuchar. He did not even ask you the Christmas 
tree question, so you are really in good shape.
    Judge Jordan. Christmas trees do not grow in Miami.
    [Laughter.]
    Senator Klobuchar. OK. Senator Lee.
    Senator Lee. I have got one question I am just dying to ask 
you. As someone who has argued 36 appellate cases, briefed over 
125 others, you made the transition when you became a district 
judge to that status, having probably had to jettison most of 
your appellate standards of review to one far corner of your 
brain. Which transition do you think will prove to be the more 
difficult one: the transition from appellate litigator to 
district judge or district judge to appellate judge--subject, 
again, to all the deferential standards of review?
    Judge Jordan. I think the first transition was more 
difficult. You know, as an appellate lawyer you get to 
sometimes sit in an ivory tower and pontificate about what 
might have happened or what theories might have been argued or 
what might be the best result in a world where everything else 
might be equal. And that is not the world of a district judge, 
not in a district like ours. So it takes a while to get used to 
that transition.
    I did try some cases when I was an Assistant U.S. Attorney, 
so the trial courtroom was not foreign to me, but it certainly 
was not my specialty. So I think that transition was more 
difficult. I have sat with the Eleventh Circuit a number of 
times over the years and authored a number of opinions, so I 
think going back into that mind-set of what the appropriate 
standards of review are and working with colleagues and panels 
instead of being a lone judge making decisions at the trial 
level will not be as difficult. It will be a transition, but I 
do not think it will be as difficult as the first one that I 
made.
    Senator Lee. I have got just one follow-up to that 
question, which is: Since the time when you were an appellate 
attorney, we have had the Blakely v. Washington era begin and 
sort of run its course. How substantial do you think the shift 
is now in the role of the appellate courts when you were an 
appellate attorney often handling criminal cases up on appeal 
and how it is now in the wake of Blakely v. Washington and its 
progeny?
    Judge Jordan. On sentencing issues, you mean?
    Senator Lee. Yes.
    Judge Jordan. You know, I think at least I can comment on 
our circuit. I am certainly less familiar with the law in the 
other circuits. In our circuit I think that the Eleventh 
Circuit gives a fair amount of deference to district judges 
when they are applying Blakely, Booker, et cetera, as long as 
judges are reasoned and explain why it is that they might be 
imposing a sentence outside of the guidelines in a given case.
    But the Eleventh Circuit is also not shy about reversing 
judges when they think they have gone too far, and they have 
done so on a number of occasions in pretty celebrated cases. So 
I think at least in our circuit, district judges know that if 
they have a reason to vary from the guidelines and express it 
and cogently explain why they are doing it and do not go crazy, 
there is a good chance that the circuit is going to give 
deference to that decision.
    So I think----
    Senator Lee. But probably more reversals than you had in 
criminal sentencing prior to Blakely.
    Judge Jordan. Well, you know, I do not know the statistical 
number, but they would be different reversals because before 
Blakely and Booker, the majority of sentencing appeals--we did 
them from the U.S. Attorney's Office when I was appellate 
chief--were basically guideline interpretations. There were not 
many departure appeals. Most of them were about whether or not 
the district judge correctly interpreted or applied a given 
guideline. So I think with regards to guideline application, 
the reversal rate probably has stayed about the same, which is 
relatively low. But now, of course, there is sentencing where 
the guidelines are not mandatory, and that is a new sort of 
deference that did not exist before. So they are two sort of 
target groups that you probably could not compare very well.
    Senator Lee. Thank you.
    Senator Klobuchar. Do my colleagues have any additional 
questions?
    [No response.]
    Senator Klobuchar. Well, thank you very much, Judge Jordan. 
We enjoyed your appearance here, and we wish you luck, and we 
will see you again. Thank you.
    Judge Jordan. Thank you very much.
    Senator Klobuchar. Very good.
    Could the other nominees please come up and stand to be 
sworn? Do you affirm that the testimony that you are about to 
give before the Committee will be the truth, the whole truth, 
and nothing but the truth, so help you God?
    Justice Gerrard. I do.
    Ms. Phillips. I do.
    Mr. Rice. I do.
    Judge Nuffer. I do.
    Senator Klobuchar. Very good. Well, thank you very much. 
Welcome, and we will start with Judge Gerrard, if you would 
like to introduce anyone that is here with you today.

STATEMENT OF JOHN M. GERRARD, NOMINEE TO BE DISTRICT JUDGE FOR 
                    THE DISTRICT OF NEBRASKA

    Justice Gerrard. I would be happy to, Senator, and thank 
you. I want to thank the President for the honor of the 
nomination and for both of my home State Senators, obviously, 
for their consistent support both beginning and through the 
process.
    With me today is my wife and full partner in life, Nancy, 
and also with me is my daughter, Erin Ching, and my grandson, 
Joshua, but I think they might be in the cry room, 
appropriately. But she is here.
    Senator Klobuchar. We have a lot of crying rooms around 
here. I am sure you found one.
    [Laughter.]
    Justice Gerrard. He has got a good reason, though. He is 11 
months old.
    I also want to acknowledge my other three children: 
Michaela is in Lincoln, Nebraska, with her son, Jack, and 
husband, Brandon. My son Eric is a third-year law student and 
is hopefully in class or watching this broadcast at the 
University of San Diego. His wife, Esther, and daughter, Jayla, 
are also with us. And then my youngest son, Mitchell, is a 
senior at Pomona College out in Claremont, California.
    I also want to acknowledge my sisters, Mary and Ann, and my 
brother Bill from various parts of the country who may be 
watching this webcast, and, of course, all of my judicial 
colleagues and staff and good friends back in Nebraska and 
throughout various parts of the country.
    Thank you, Senator.
    [The biographical information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
    Senator Klobuchar. Very good. Well, thank you.
    Judge Phillips, we enjoyed the story of you and your 
husband, so we hope to see him out there, and I will note that 
I also went to the University of Chicago.
    Ms. Phillips. Good.
    Senator Klobuchar. So I am pleased to hear that part of 
your resume. Please go ahead.

 STATEMENT OF MARY ELIZABETH PHILLIPS, NOMINEE TO BE DISTRICT 
           JUDGE FOR THE WESTERN DISTRICT OF MISSOURI

    Ms. Phillips. Thank you, Madam Chairwoman. I appreciate the 
opportunity to address the Committee, and I first want to thank 
members of the Committee for holding this hearing today and 
considering these nominations.
    I do have some family members present. In addition to my 
husband, who has already been referenced, I would like to 
acknowledge he is not only a judge but a former State court 
prosecutor and a former Assistant United States Attorney, and 
he does have that look of Assistant United States Attorneys.
    [Laughter.]
    In addition, with me today is my sister, Jennifer Phillips, 
who follows in the footsteps of Senator McCaskill and is 
currently an assistant Jackson County prosecutor; her husband, 
Buck Williams, who is a homicide detective with the Kansas 
City, Missouri, Police Department.
    My parents, who still live in the small town in north 
Missouri that I grew up in: My father, Bill Phillips, who is a 
former prosecutor and currently still practices in Milan; and 
my mother, who not only puts up with living in a family full of 
lawyers, but holds her own quite well.
    In addition, I have some family here from McAllen, Texas: 
my sister, Ann Valarde. Unfortunately, her husband is a high 
school football coach in Texas and could not--this is not a 
good time of year for him to get away, but he is watching on 
the webcast.
    Also with me today are my two nieces, Katie and Chloe 
Slusher, who are having the time of their lives watching what 
is going on here in the Senate.
    Senator Klobuchar. They are back there. They waved. Very 
nice. I hope they get on the webcam. Kind of like being at a 
sporting event.
    Ms. Phillips. Yes. I also have some people who are watching 
on the webcam, namely, my 101-year-old grandmother, Jane Pratt. 
She is, with some assistance today, watching. And I have a 
number of family and friends and supporters, some of whom are 
in my office, hopefully still working, but also watching on the 
webcam there in the Western District of Missouri.
    In addition to those supporters, I have to thank Senator 
McCaskill who not only gave me my first job out of law school, 
but who has continued to support me, and through her support 
and confidence has provided me unbelievable opportunities.
    In addition, I need to thank the President, President 
Obama, for once again nominating me for a Senate-confirmed 
position.
    Thank you.
    [The biographical information follows:]

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    Senator Klobuchar. Very good. Thank you.
    Mr. Rice from Washington State.

STATEMENT OF THOMAS OWEN RICE, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE EASTERN DISTRICT OF WASHINGTON

    Mr. Rice. Thank you, Senator. I want to thank you as well 
as the entire Committee for having me here today. It is an 
honor and a privilege to appear here.
    I want to thank the Senators, Senator Maria Cantwell as 
well as Senator Murray, for their support in this nomination 
process.
    Additionally, I want to thank the President for nominating 
me to this honorable position.
    Today in the audience I have my parents, Carly and Laramie 
Rice from Spokane. They were able to travel from Washington 
State.
    Senator Klobuchar. Where are they? Oh, there they are. Good 
to see you.
    Mr. Rice. Back there waving. As well, I want to thank and 
acknowledge my wife, my loving wife and supportive wife, 
Heather Rice.
    Thank you very much.
    [The biographical information follows:]

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    Senator Klobuchar. Well, thank you very much.
    And last but not least, Judge Nuffer, with your support 
crew right up here on the dais.

STATEMENT OF DAVID NUFFER, NOMINEE TO BE DISTRICT JUDGE FOR THE 
                        DISTRICT OF UTAH

    Judge Nuffer. Thank you very much, and I am very grateful 
to the Committee for this opportunity, and I have been watching 
your work and webcasts and how you schedule these judicial 
nominations, and you have a remarkable number of nominees 
coming through, and you are getting them to the floor. And I 
think all the courts in the United States appreciate that.
    I am very grateful to Senator Hatch and Senator Lee for 
their continued support, for the great courtesies they have 
extended to my family today to make this a very memorable day, 
and for their continued interest in and support of our court.
    I am very grateful and honored by the President's 
nomination and for the staff, the executive staff who have 
helped me so far in this process.
    Attending here today, I was seated just until a moment ago 
very comfortably next to my wife, Lori. Our daughter, Jessica, 
and her boyfriend, James Raftery, are here. Lori's brother, Ken 
Lyons, and our nephew, David Lyons, are here. Friends from the 
judiciary, Lori Murphy, Jim Buchanan, and Tom Natowski are here 
with us.
    In the webcast audience--and, again, I thank the Committee 
for having this webcast. It made it possible for my mother, who 
is watching today with friends Dixie Lyman and Paul Lyman in 
Richfield, Utah, to see these proceedings, and I hope she is 
approving so far of what I have said.
    Our other children, Pete, Chris, Paul, Lisa, Laura, 
Michael, and their families and friends, are watching as are 
other friends in Utah, Oregon, and other States and family 
there.
    I believe also our court colleagues are watching, including 
my chamber staff and judges who are very anxious to get this 
vacancy filled so they can give me special cases; and their 
colleagues from the judiciary in other courts as well in other 
States; as well as colleagues from courts, law schools, and the 
practice of law, and from the Rule of Law Projects in the U.S., 
Turkey, and Ukraine, who I am informed are watching. And, 
finally, my students at the J. Reuben Clark Law School.
    We all appreciate this opportunity.
    [The biographical information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Klobuchar. You are reminding me of when we had a 
Minnesota nominee, and the next group that was the happiest 
next to her family were those other Federal judges. They kept 
calling to say, ``When is the hearing? ''
    Judge Nuffer. Exactly.
    Senator Klobuchar. Very good.
    I am going to have Senator Hatch go first here, and please 
go ahead.
    Senator Hatch. Let me just ask all of you this question. We 
will start with you, Justice Gerrard. I would just like your 
thoughts on the issue of impartiality. I know that in your 
particular case you have written and you have spoken about 
diversity and related issues, and I think that we can all agree 
that each of us individually is affected by our personal 
background and our personal experiences. And it is certainly 
true that every judicial decision impacts somebody, impacts 
people. So I am very interested in--and let me just say, judges 
do take an oath to be impartial, to decide cases without regard 
for the identity of the parties. If you would, please comment 
on the obligation of judges to be impartial. And do you believe 
that race, gender, or the impact of a decision may play a role 
in how judges decide cases or must judges apply the law 
impartially?
    Justice Gerrard. Thank you for the question, Senator. It is 
a good question, a crucial one. I would say this about 
impartiality. I did take that oath over 16 years ago for the 
Nebraska Supreme Court, and I hope I have lived up to that oath 
every day. I think it is absolutely crucial that both sides be 
heard fully, that the arguments of both sides, whoever that 
might be, whether it be two individuals, whether it be the 
State, whether it be two corporations, that their arguments be 
considered fully and that decisions are based solely on the 
law.
    As to the second part of your question, as far as whether 
race or gender or any other outside factor should impact a 
decision of a judge, the answer to that is no. I think it is 
important for judges to understand that real people are 
impacted by decisions, just as you have stated before. But it 
is the law and the evidence that judges must consider, and that 
is the only thing that judges should consider. And I hope I 
have done that for all of my years on the bench, and I would 
plan to continue to do that.
    Senator Hatch. Well, thank you.
    Ms. Phillips.
    Ms. Phillips. Thank you, Senator. I agree with my fellow 
nominee that the confidence in our system requires that judges 
approach all decisions from an impartial perspective, and that 
it is not appropriate for a judge to consider personal views or 
any biases that he or she may hold when making any decisions 
from the perspective of the bench.
    I also agree with my fellow nominee that any decisions that 
are made must be made free of any regard for the person's race, 
gender, or any other factor, and I liken it to the approach 
that I have taken as a prosecutor. As a prosecutor, it is very 
important that you make decisions that are irrespective of the 
potential suspect or defendant's race, gender, or national 
origin, for example, and I would fully expect to use that same 
approach if I was fortunate enough to be confirmed to the 
district court bench.
    Senator Hatch. Well, thank you.
    Mr. Rice.
    Mr. Rice. Thank you, Senator. I agree with my colleagues 
wholeheartedly that bias, prejudice, and sympathy have no room 
in the courtroom in making a final decision. It is as simple as 
that.
    Thank you.
    Senator Hatch. Thank you.
    Judge Nuffer.
    Judge Nuffer. I recall the first time I took the judicial 
oath and I was a little surprised to hear that we took an oath 
to do justice regardless to the rich and to the poor. And I 
have thought of that to the powerful and the powerless as well. 
And I think I do try to reflect on that, as my colleagues have 
stated, and I appreciate the statements they make. We need to 
be careful that we are making the decisions based on the case, 
not on the personalities involved.
    Senator Hatch. Well, you know, I might have some other 
questions, but I think that is one I was very concerned about. 
I am happy to finish with that.
    Senator Klobuchar. Very good.
    Senator Lee.
    Senator Lee. Judge Nuffer, is there anything about having 
raised seven children that makes you exceptionally well 
qualified to be a judge?
    [Laughter.]
    Judge Nuffer. I would say not only having raised seven 
children, but having learned from my wife as I raised those 
children. I was in a family of two children, and it seemed very 
busy sometimes in our family of seven children. And I think 
that the management skills, being able to listen to everyone 
and pay attention to everyone and their needs is something that 
she is very good at that I have tried to learn from and 
exercise in the courtroom to make sure people are fully heard.
    Senator Lee. Now, it has been quite a while in Utah since 
we have had a magistrate judge become a Federal district judge. 
In fact, as I think about it, I cannot think of another example 
where it has happened. Is there any thought you have about how 
we ought to use Federal magistrates differently? Are we 
overutilizing them or underutilizing them?
    Judge Nuffer. We have a wonderful environment in Utah, a 
great camaraderie between our district judges and our 
magistrate judges, and so that is pretty much the scope of my 
experience. And I think that we are moving in Utah to having 
district and magistrate judges share the civil caseload more. I 
think that is going to be helpful for everyone concerned.
    We are very fortunate to have that camaraderie and that 
sharing of the load and frank discussions in our management 
meetings where all judges are present about that.
    As you have noted, we have never had a magistrate judge 
become a district judge. I think that is a good thing. I do not 
think it is just because it is me, but I think it is a good 
thing. I think courts have more depth when they have that 
transition happen.
    Senator Lee. Great. Thank you.
    Senator Klobuchar. Very good.
    I was thinking all of you have had Federal experience--
well, you, Judge Gerrard, have been in the State system but 
have certainly seen the Federal system. And I just wondered 
what you see as the biggest challenges facing the Federal bench 
right now. I was just over speaking at Justice Roberts' 
invitation to the Judicial Conference on some of the work that 
we are doing on the Committee, and I just was struck by some of 
the issues that they raised there with resources and certain 
districts having higher caseloads than others and just what 
your opinion is. I appreciate that I have been calling you 
``Judge''--sort of, you know, giving away what we think might 
happen--``Phillips.'' But it said ``Honorable,'' and so I asked 
our staff how you get ``Honorable.'' Poor Mr. Rice here does 
not have that on there. If you are Senate-confirmed, I guess, 
for any position, you are forever ``Honorable.'' So this is a 
very interesting fact, and I do not know if it is true. But I 
guess we could start with you, Ms. Phillips, about just what 
you see as a U.S. Attorney.
    Ms. Phillips. Thank you, and, yes, I do not know who 
created that rule, but I am a definite fan of it.
    [Laughter.]
    Ms. Phillips. I do think that you have hit on one of the 
most pressing issues that is confronting the judiciary in the 
near future, and that is--and probably all of Federal 
Government--the lack of resources that will be available to 
address what is inevitably going to be a growing caseload. And 
I think when you look at resources, it is important to not only 
look at the resources that the judges themselves have, but also 
probation and parole and other entities that work within the 
courts because those entities play a very important role in 
assisting the judges to perform their responsibilities.
    I also think a second issue that we need to be mindful of 
which has been alluded to earlier today is the impact of the 
fact that the guidelines are no longer mandatory and ensuring 
that the judges take approaches which work to ensure that 
defendants who are similarly situated are sentenced in a 
similar manner regardless of what courtroom they are in or 
regardless of what region of the country they are in.
    So I see those as two issues that the judiciary needs to be 
mindful of and needs to continue working on as we work toward 
the future.
    Senator Klobuchar. I think that is interesting, just your 
second part. I did not expect that answer, and I think that is 
true, having done the prosecutor job for 8 years. I know that 
we would always--we had guidelines, State guidelines, but there 
were always some deviations, and I just remember us trying to 
make--be so hard that we were asking for sentences that were in 
a certain box, looking at all the factors. So thank you for 
bringing that up.
    Mr. Rice, do you want to add anything?
    Mr. Rice. Senator, I think the challenge, the largest 
challenge from the Federal bench now, if I am not presumptuous, 
would be the technology, technology in the courtroom, both in 
trying cases and discovery. I think technology is the biggest 
challenge, and with that could come some more efficiency in the 
courtroom, hopefully, that we would be more efficient with our 
resources and better able to process the cases more quickly and 
timely.
    Senator Klobuchar. Yes, I have had a number of lawyers and 
judges bring up the discovery issue and this need to do things 
more online. So thank you for that. You know, in the U.S. 
Senate we can only show charts right now, so maybe we need to 
change, too. I did not really mean that, to the senior 
Senators.
    [Laughter.]
    Senator Klobuchar. Judge Nuffer.
    Judge Nuffer. I have always seen our rising caseloads, at 
least in our district, as one of the big issues, and I 
appreciate the chance to address this here with this group 
because you actually have the ability to do some things about 
it. But in Utah, from 2009 to 2010, we had a 20-percent 
caseload increase in civil and criminal cases, and that is a 
lot of cases for a five-judge court. And we are not really sure 
what is driving that. It appears to be continuing. But I think 
it is something that needs to be watched so that we can still 
devote the resources that we need to adequately consider and 
resolve cases in a timely manner.
    I think that that is true in many districts, especially 
border districts, that these increases occur, but I think with 
some issues in the economy we have actually seen more 
litigation rather than less. And the courts need to be able to 
respond to those things.
    It has certainly been a challenge for us, so I relay that 
on to you.
    Senator Klobuchar. Yes, I have started to see that. I saw a 
story that there was more child abuse cases, and just so you 
know, the districts with the highest caseload average right now 
are, as you said, some of the border States--California and 
Arizona, and then the other ones are--what was the--Texas, 
another border--and guess what the fourth one is, Judge Nuffer? 
Minnesota, also a border State with Canada. It is true. We have 
a lot of Fortune 500 companies, a lot of civil litigation going 
on, and some very good judges. I do not know. But we have a 
high caseload, and they do incredibly well with a difficult 
job.
    Judge Gerrard, did you want to add anything?
    Justice Gerrard. The first thing, Senator Klobuchar, is 
that I hesitate to give advice to my Federal colleagues before 
I ever walk across the street. But I must say I have talked 
with them in some detail.
    To answer your question, I think caseload management is one 
of the--and managing our dockets is one of the crucial issues 
not only in Nebraska but in the Federal courts. And one of the 
things that has not been mentioned is how that affects the 
access to justice. I think as cases are managed properly, 
obviously not only the criminal cases but the civil cases are 
able to get through on an efficient basis. So that would be one 
of my concerns.
    But I think Nebraska, quite frankly, has done an admirable 
job with their caseload at this point in time. I know Nebraska 
is also participating in--they are one of the first district 
courts to participate in televising some of their proceedings, 
and that also, I think, is an improvement in the Federal courts 
for access to justice and to allow others to see how justice 
does work in their State.
    Senator Klobuchar. We actually opened up all our child 
protection hearings that had been closed--not to media. There 
are some very strict rules about that. I mean, they can come 
in, but they cannot report on certain things. And it really had 
an effect on justice, I think, making things go faster because 
people were watching what was happening, and they had been 
closed off before that. They are not filmed, but they are open.
    Justice Gerrard. It does make a difference.
    Senator Klobuchar. It does.
    Does anyone want to add anything else? Senator Hatch, do 
you want to ask----
    Senator Hatch. Let me just ask Judge Nuffer, I noted in my 
introduction of you that you have a real interest in technology 
and its impact on the law. I would just like you to take a 
minute or two and talk about that, because perhaps you could 
expand on the quote that I used from one of your articles about 
how technology can reduce the distance to the courthouse and 
leverage our abilities.
    Judge Nuffer. You know, Utah is a very interesting 
population, Senator. As the other people in the room may not 
realize, we are so urban but we are so rural.
    Senator Hatch. Yes.
    Judge Nuffer. All of our urban population is within 100 
miles, and I appreciate the chance to address this because I 
think that the ability to file electronically has made a huge 
difference for our rural lawyers and party litigants and the 
ability to see the file online at any time from any location 
through the Internet. And I think, if I remember the quote 
right, leveling the lawyer in Blanding is at the same 
disadvantage or advantage as the lawyer in Salt Lake now. They 
do not have to walk to the courthouse to see the court file. 
They can simply see it online.
    One of the great protections of the judicial process is it 
is open to the public. Now all those dockets are open in a much 
larger way than they were when they were theoretically open for 
view.
    I think it is also leveling--I think at the time I wrote 
that, I was in a fairly small firm in a rural city, and I felt 
like technology gave us the ability to create just as good a 
work product with electronic research and word processing and 
high-quality printing as a large Salt Lake City law firm. So I 
looked at it as a real advantage in a real changing era, and I 
think it has proven to be that way in business. We have seen in 
Utah small businesses thrive and grow into large businesses 
because of the technical leverages they have.
    Senator Hatch. Well, I am very proud of you and your 
service and pleased with what you have done. I know you well, 
and I have a very high regard for you. And I can say I must 
have a high regard for all of you others as well. I want to 
commend you all for being willing to serve. In this day and 
age, there are lots of difficulties, and we all know that. But 
we are very pleased to have all four of you here. I intend to 
support all four of you and make sure that we get you confirmed 
as soon as we possibly can.
    I want to personally thank the President for the work that 
he and his staff and the Justice Department have done to bring 
you all here.
    Thank you, Madam Chair.
    Senator Klobuchar. Thank you.
    Senator Lee, did you have any additional questions.
    Senator Lee. No. Thank you.
    Senator Klobuchar. OK, very good.
    Well, I want to thank all of you for being here. We were 
just noting, Judge Gerrard, that it is too bad Senator Grassley 
is not here. He is a big supporter of televising hearings, so 
he would be very happy to hear that and would have probably 
seized on that answer for a good 5 to 10 minutes of questions.
    [Laughter.]
    Senator Klobuchar. But we will pass that on, and I really 
did appreciate that you were willing to give us some ideas on 
the court system. To be honest, I have asked that question 
before, and this is the most interesting discussion we have had 
about it compared to other panels.
    I want to thank you for being here today, for your service. 
We look forward to your confirmation, and we have been speeding 
up the confirmation of judges, just so you know. I was just 
doing the statistics for the Judicial Conference. We had 60 
judges confirmed in the first 2 years of this administration, 
which would average 30 and 30 each year, right? And so far this 
year we have already done 36, and since many of them come at 
the end of the year, I would say that we are going at a much 
faster pace this year, something that this Committee was very 
interested in having happen. A lot of the nominees were coming 
through this Committee, but then they got stuck on the floor. 
So I am hopeful that this will be much speedier so that your 
families will know what you are doing for your jobs and so that 
Mr. Nuffer's potential fellow colleagues will be much happier.
    Thank you so much. We are going to keep the record open for 
a week, and the hearing is now adjourned.
    [Whereupon, at 3:34 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



 NOMINATION OF STEPHANIE DAWN THACKER, OF WEST VIRGINIA, NOMINEE TO BE 
  CIRCUIT JUDGE FOR THE FOURTH CIRCUIT; MICHAEL WALTER FITZGERALD, OF 
 CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF 
 CALIFORNIA; RONNIE ABRAMS, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE SOUTHERN DISTRICT OF NEW YORK; RUDOLPH CONTRERAS, OF THE 
DISTRICT OF COLUMBIA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF 
 COLUMBIA; AND MIRANDA DU, OF NEVADA, NOMINEE TO BE DISTRICT JUDGE FOR 
                         THE DISTRICT OF NEVADA

                              ----------                              

                   TUESDAY, OCTOBER 4, 2011
                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:03 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, presiding.
    Present: Senators Durbin, Leahy, Coons, and Lee.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Senator Durbin. Good afternoon. This hearing of the 
Judiciary Committee will come to order.
    Today we will consider five outstanding judicial nominees 
for the Federal bench: Stephanie Thacker, nominated to serve on 
the U.S. Court of Appeals for the Fourth Circuit; Ronnie 
Abrams, nominated to the Southern District of New York; Rudolph 
Contreras, nominated to the U.S. District Court Judge for the 
District of Columbia; Miranda Du, nominated to the District of 
Nevada; and Michael Fitzgerald, nominated to the Central 
District of California. Each of these nominees has the support 
of their home State Senators or, in the case of the District of 
Columbia nominee, the support of D.C. Delegate Eleanor Holmes 
Norton. I commend President Obama for sending these nominees to 
the Senate, and I thank my colleague Senator Lee for joining 
me.
    At these hearings it is traditional for nominees to be 
introduced to the Committee by Senators from their home States, 
and unless the Ranking Member has opening remarks, which I 
would invite him to make at this point, I am going to recognize 
our colleagues. So if you want to stay on their good side, 
please proceed.

 STATEMENT OF HON. MIKE LEE, A U.S. SENATOR FROM THE STATE OF 
                              UTAH

    Senator Lee. Thank you, Mr. Chairman. I join you in 
welcoming our nominees before us today.
    Yesterday the Senate confirmed six Article III judicial 
nominees. This included the confirmation of Judge Jennifer 
Zipps, who will fill the seat held by the late Judge John Roll. 
The tragic and horrific events that took Judge Roll's life on 
January 8th of this year shook the judicial community and our 
Nation. I am pleased that Republicans and Democrats were able 
to come together to confirm her in an orderly and expeditious 
manner.
    The Senate has confirmed 42 judicial nominees in this 
Congress alone so far. We have entered into a unanimous consent 
agreement to vote on four more judges next week. I applaud this 
progress, which I think demonstrates Ranking Member Grassley's 
commitment as well as that of the Republican members on this 
Committee to work with our Democratic colleagues in moving 
forward with consensus nominees.
    Today marks the 15th nominations hearing held in the 
Judiciary Committee this year at which we have had the 
opportunity to speak with 65 judicial nominees. In total, 85 
percent of President Obama's judicial nominees have received a 
hearing in this Congress. I think this speaks well both to 
President Obama's nomination process and to the ability of this 
Committee to work together on a bipartisan basis.
    Today we will hear, among others, from Stephanie Thacker, 
who has been nominated by President Obama to the Fourth 
Circuit. Her hearing comes only 26 days after her nomination. I 
would note that none of President Bush's circuit court nominees 
were afforded a hearing that quickly, particularly those to the 
Fourth Circuit, where we had some issues with delay.
    Yesterday marked the confirmation of President Obama's 
fifth nominee to serve on the Fourth Circuit. In 8 years only 
four of President Bush's Fourth Circuit nominees were 
confirmed. I hope my colleagues on the other side of the aisle 
are aware of the comparatively generous treatment afforded to 
President Obama's nominees, particularly those for the Fourth 
Circuit.
    I welcome the nominees and their families to this 
Committee, and I realize that this is a very important day for 
all of them and look forward to hearing their testimony and 
responses to our questions.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you, Senator Lee. For the record, I 
believe that Senator Reid has filed cloture on 25 of President 
Obama's nominees that were on the calendar just a few days ago, 
but there has been remarkable signs of progress since, and I 
hope that spirit continues with these nominees and those that 
are pending.
    I was going to recognize Senator Reid first, and when he 
arrives, of course, he will be given precedence. But we will 
start in seniority, and I recognize my colleague and friend, 
Senator Jay Rockefeller.

 PRESENTATION OF STEPHANIE DAWN THACKER, NOMINEE TO BE CIRCUIT 
JUDGE FOR THE FOURTH CIRCUIT, BY HON. JOHN D. ROCKEFELLER IV, A 
          U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

    Senator Rockefeller. Thank you, Senator Durbin and Senator 
Lee and Chairman Leahy, who was here, and all members of this 
Committee for having this very important hearing today.
    My purpose is that I am deeply honored to put before you 
and introduce Stephanie Dawn Thacker, one of the finest 
judicial nominees I have ever known. I pay a lot of attention 
to this process. I am not a lawyer, but I pay a lot of 
attention.
    She is joined by her husband, John Carr, also an esteemed 
lawyer; her sister, Samantha Sullivan, a teacher; and her 
nephew, Wade Sullivan, who has not picked his professional 
career yet.
    Not present but I think watching very closely on television 
in West Virginia and surely beaming with pride is her mother, 
Katie Thacker, and her father, Rod Young.
    Stephanie's family has many reasons to be proud of her, and 
she of them, and we are all fortunate for their dedication to 
their country and to Senator Manchin's and my home State.
    For myself, I am impressed by Stephanie Thacker's superior 
intellect, her passion for the law, her unquestioned integrity, 
and her strong character. Another such person was my very dear 
friend, Judge M. Blane Michael, who served for more than 17 
years in the very judicial seat on the Fourth Circuit to which 
Stephanie Thacker has been nominated. Like Judge Michael, Ms. 
Thacker will be a strong voice on the court, one who follows 
the law, defies pigeonholing; one who knows how to build 
consensus, often with a quick wit; always one who can couple 
deep legal analysis with an understanding of real-world impact.
    Ms. Thacker graduated at the top of her undergraduate and 
law school classes, spent 12 years as a Federal prosecutor in 
working for the Department of Justice, fighting the most 
horrific crimes imaginable, and is now a top lawyer at one of 
West Virginia's most respected firms.
    While at the Department of Justice, Ms. Thacker developed a 
unique expertise in the investigation and prosecution of child 
exploitation cases, winning difficult cases, helping to develop 
policy and initiatives, and as it turns out, training attorneys 
and law enforcement professionals around this country on that 
subject, and, indeed, around the world so as to prevent these 
terrible crimes.
    One of her more lasting successes was working with the FBI 
and the National Center for Missing and Exploited Children to 
develop a nationwide initiative to combat child sex 
trafficking. As a result of this program, more than 1,600 
children have been rescued, and more than 700 sex offenders 
have been convicted.
    Ms. Thacker's accomplishments have earned her national 
recognition, including the very prestigious Attorney General's 
Distinguished Service Award. I have also brought copies of 
letters of commendation that she has received from Attorney 
General Gonzales, FBI Director Mueller, Senators Byrd, 
Chambliss, and Zell Miller, among others.
    Ms. Thacker is striking to me for her groundedness. I am 
not sure if that is a word, but it has meaning to me. It is.
    Senator Durbin. When a Senator says it, it is a word.
    Senator Rockefeller. Thank you, Mr. Chairman.
    [Laughter.]
    Senator Rockefeller. She has never forgotten who she is or 
where she came from, and she calls upon that life experience 
every day. It is perhaps Ms. Thacker's upbringing--and I really 
believe this totally--that drove her to fight for justice every 
day and created in her an understanding that decisions that she 
made as a prosecutor and decisions, I hope, that she will make 
from the bench have a lasting impact on people's lives.
    Like so many in our State, Ms. Thacker came from humble 
beginnings and went on by force of will, by force of 
intellectual heft, to chart a course of accomplishment for 
herself, her State, and her country. Stephanie Thacker is 
without doubt the perfect person for this vacancy on the Fourth 
Circuit Court of Appeals, and she has my unwavering support.
    Senator Durbin. Thank you, Senator Rockefeller.
    I would like to recognize your colleague, Senator Manchin, 
regarding the same nominee.

 PRESENTATION OF STEPHANIE DAWN THACKER, NOMINEE TO BE CIRCUIT 
 JUDGE FOR THE FOURTH CIRCUIT, BY HON. JOE MANCHIN III, A U.S. 
            SENATOR FROM THE STATE OF WEST VIRGINIA

    Senator Manchin. Thank you, Mr. Chairman, and thank you, 
Senator Lee, and the Committee for inviting me here today. It 
is my privilege to join my senior Senator, Senator Rockefeller, 
in support of the nomination of Stephanie Dawn Thacker, a 
native of Hamlin, West Virginia, to the Fourth Circuit Court of 
Appeals.
    I would first like to take a moment to recognize her 
husband, John Carr; her sister, Samantha; and her nephew, Wade. 
I am pleased that all of you were able to join us today for the 
very important hearing and also her family watching on 
television.
    Stephanie Thacker's impressive background and extensive 
list of accomplishments in both the public and private sectors 
make her an exceptional candidate for the Fourth Circuit. She 
is renowned in our State for her mastery of the law and of the 
courtroom, and I have no doubt that she will make a highly 
successful Federal judge.
    Ms. Thacker has dedicated much of her career to fighting 
some of the most reprehensible offenses, which Senator 
Rockefeller just mentioned, in our society. As a trial 
attorney, deputy chief of litigation, and principal deputy 
chief, she spent several years prosecuting cases on child 
exploitation and obscenity at the Department of Justice. Her 
outstanding work and leadership earned her a number of honors 
at DOJ, including four Meritorious Awards and two Special 
Achievement Awards. Her impressive performance in prosecuting 
the case of United States v. Dwight York earned her the 
Attorney General's Distinguished Service Award, one of the 
Department's highest honors, and she was also a recipient of 
the Assistant Attorney General's Awards for Special Initiative 
and Outstanding Victim/Witness Service.
    Prior to her service at the Department of Justice, Ms. 
Thacker worked with the U.S. Attorney's Office for the Southern 
District of West Virginia where she prosecuted a diversity of 
criminal cases, including money laundering and fraud. While at 
the U.S. Attorney's Office, Ms. Thacker also participated on 
the trial team prosecuting United States v. Bailey, the first 
case ever brought under the Violence Against Women Act.
    Since 2006, Ms. Thacker has been a partner at the 
prestigious law firm of Guthrie & Thomas in Charleston. While 
at the firm, she has concentrated on cases involving product 
liability, environmental and toxic torts, complex commercial 
defense, and criminal defense. Ms. Thacker was a model student 
in both her undergraduate and legal studies. She earned her 
Bachelor's degree in business administration magna cum laude 
from Marshall University and her J.D. Order of the Coif from 
West Virginia University College of Law. While at WVU, she was 
the recipient of the Robert L. Griffin Memorial Scholarship and 
editor of West Virginia Law Review's Coal Issue. She has also 
recently been named Outstanding Female Attorney by WVU Law's 
Women's Caucus.
    I believe that Ms. Thacker's wide-ranging expertise in 
civil and criminal matters, her impressive track record in the 
courtroom as both a prosecutor and a defense attorney, and her 
outstanding academic accomplishments will make her a first-rate 
addition to the Fourth Circuit. I am proud to call her a fellow 
West Virginian, and I hope that the Committee will move to 
confirm her for the vacancy quickly.
    Along with Senator Rockefeller, I want to thank the 
Chairman and members of the Committee. I welcome the 
opportunity to work with all of you to confirm Ms. Thacker in a 
timely manner.
    Thank you.
    Senator Durbin. Thank you, Senator Manchin and Senator 
Rockefeller. You are welcome to stay. I know you have busy 
schedules. The nominees certainly do appreciate the presence 
and testimony of each Senator, but if you would like to leave 
at this moment, you are certainly welcome to. Thank you again 
for coming to this Judiciary Committee hearing.
    I now will recognize Senator Barbara Boxer, and she will 
address the nominee, Michael Fitzgerald, nominated to the 
Central District of California.

   PRESENTATION OF MICHAEL WALTER FITZGERALD, NOMINEE TO BE 
DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. 
   BARBARA BOXER, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so much, Senator Durbin, Senator 
Lee. It is an honor to appear before you, and it is an honor to 
support the nomination of Michael Fitzgerald. I would ask him 
to stand, if he would. And I want to also welcome his family. I 
believe they are here. His dad, if he could stand. James, would 
you stand? James Fitzgerald, an army combat veteran of the 
Korean War and a retired mathematics teacher. His mom, 
Vivianne, a retired registered nurse. His twin brother, 
Patrick--let us see; yes, I see that--a Federal prosecutor who 
lives in Los Angeles. But before they sit down, I want to say 
that James and Vivianne recently celebrated their 57th wedding 
anniversary.
    Senator Durbin. Congratulations.
    Senator Boxer. So we are thrilled that you are here so soon 
after that.
    I had the privilege of recommending Michael to President 
Obama to serve on the Central District Court. A respected 
member of the Los Angeles legal community, he will make an 
excellent addition to the bench. He has deep roots in the city 
of Los Angeles. He and his brother are the fourth generation of 
their family to live in Los Angeles. Fourth generation to live 
in Los Angeles.
    Michael received his Bachelor's degree from Harvard, 
graduating magna cum laude while working his way through school 
as a bus boy.
    He went on to receive a law degree from the University of 
California at Berkeley, where he also graduated with honors.
    After clerking on the Second Circuit Court of Appeals in 
New York, Michael worked for a year with a private law firm in 
L.A. before becoming a Federal prosecutor. As a Federal 
prosecutor, he served on the Organized Crime and Drug 
Enforcement Task Force within the Central District U.S. 
Attorney's Office where he prosecuted international drug rings 
and money laundering, including what was at the time the second 
largest cocaine seizure in California history.
    After leaving the U.S. Attorney's Office in 1991, Michael 
has been in private practice where he handled complex criminal 
and civil cases as well as investigations by Federal agencies. 
Michael has remained committed to public service during his 
time in private practice. He has maintained an active pro bono 
practice. He served as counsel to the Board of Police 
Commissioners, which sets policy and oversees operations for 
the Los Angeles Police Department. He also served as deputy 
general counsel for the Rampart Independent Task Force which 
reviewed the operations of a section of the LAPD.
    Now, during his career Michael has tried 26 cases to 
verdict, the overwhelming majority of them before a jury. 
Currently 60 percent of his practice is in Federal court, so he 
is very familiar with the Central District practices and 
procedures. His rating? He received a rating of unanimously 
well qualified by the ABA. Listen to what some respected 
members of the law enforcement and legal community say about 
him.
    Veteran Anaheim police lieutenant John Quisano, who worked 
with Michael in prosecuting cocaine traffickers and money 
launderers, said the following: ``Michael's knowledge of the 
law, his courtroom demeanor, his interpersonal skills, and his 
sense of fairness played a major role in the successful 
prosecution of our cases. He will be an outstanding Federal 
judge.''
    Former Republican-appointed U.S. Attorney and Federal Judge 
Robert Bonner said: ``If confirmed, Mike would bring a 
background, experience, and understanding of both the civil and 
criminal side of the work of a U.S. district judge. I believe 
Mike will make an outstanding Federal judge.''
    And the last reference I would read a bit of is from 
Representative Adam Schiff, who served with Michael as a 
Federal prosecutor, who said: ``I believe he has the 
background, experience, integrity, intellect, and reputation in 
the community that will serve him well as a U.S. district court 
judge and reflect well on the judiciary.'' And with your 
permission, Senator Durbin, would it be all right to include 
letters from those three outstanding citizens into the record 
at this time?
    Senator Durbin. Without objection.
    [The letters appears as a submission for the record.]
    Senator Boxer. So, in closing, it is clear--and I hope it 
is clear to you both and will be to the Committee as a whole--
that Michael's record in the public and private sector 
demonstrates that he is a brilliant lawyer. He is a 
distinguished member of the legal community, and I am very 
confident he will make an excellent judge.
    I close by congratulating Michael for everything he has 
done up to now. I congratulate his family for obviously 
bringing up two sons very well. And I urge my colleagues in the 
Senate to move quickly to confirm Michael to the Federal bench.
    I thank you very much.
    Senator Durbin. Thank you for joining us.
    Senator Boxer. And I would ask to be excused at this time.
    Senator Durbin. Of course. I just want for the record to 
note that Senator Feinstein has also submitted a positive blue 
slip, which is the process used in this Committee, supporting 
this nominee, Michael Fitzgerald. Thank you very much, Senator 
Boxer.
    Senator Boxer. Thank you, Senator.
    Senator Durbin. Senator Feinstein will be submitting a 
statement for the record.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Senator Durbin. At this point I would like to recognize the 
Majority Leader of the U.S. Senate, Senator Harry Reid of 
Nevada.

 PRESENTATION OF MIRANDA DU, NOMINEE TO BE DISTRICT JUDGE FOR 
THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S. SENATOR FROM 
                      THE STATE OF NEVADA

    Senator Reid. I apologize to you and Senator Lee for being 
tardy, but I had a little debate with the Republican Leader on 
the floor that took quite a while on the legislation that is 
now before the Senate, so I apologize for not being here when I 
was supposed to be.
    I am really happy to be able to introduce Miranda Du to the 
Judiciary Committee and to the U.S. Senate. I received her name 
from one of my boys who is a lawyer in Reno, Nevada. He is a 
trial lawyer. I am very proud of the work that he has done. And 
he said, ``Dad, if you have an opening on the Federal bench of 
any kind, you should look at this woman called Miranda Du.'' He 
said, ``She has a reputation that is really terrific.'' She 
comes from a law firm--we have a Federal judge, by the way, a 
Republican, who has done an outstanding job on the bench, Larry 
Hicks, who came from the same law firm, a prestigious law firm, 
McDonald & Carano. It is a wonderful law firm. She has been 
with that law firm for the time basically that she has been out 
of law school.
    I want to, before I give a little background of Miranda Du, 
introduce her, Miranda Du; her dad, Peter; her mom, Tina; her 
sister, Victoria; her brother-in-law, Andy; her nephew, Ethan; 
her brother, Joe; and the senior partner--well, nearly that 
way, the other people have all retired--John Frankovich, who is 
an outstanding lawyer who runs that law firm from which she 
comes, a very fine prominent lawyer, and it is wonderful that 
she brought these people with her, her family and John 
Frankovich.
    Miranda Du's story is that is an American success story. 
This woman, who is going to become a fine judge, is an 
experienced litigator. She has a love and appreciation for the 
State of Nevada and a dedication to public service. This woman 
was born in Vietnam. She was a boat child. She and her family 
left Vietnam by boat when she was 8 years old. She spent a year 
in refugee camps in Malaysia before she came to America. They 
sent her and her family to Alabama.
    When she arrived and started school as a third grader, she 
did not speak a word of English. She speaks fluent English, 
certainly better than mine. She is such a brilliant woman that 
overcoming this language barrier was child's play for her.
    After arriving in Alabama, her dad worked on a dairy farm. 
Her family later moved to California. She received a Bachelor's 
degree with honors in history and economics from the University 
of California at David and then her law degree from the 
University of California at Berkeley, the famous Boalt Hall.
    I am so happy that I was able to find this woman to become 
a Federal judge. And, by the way, my son who recommended her 
name is one of Dean Heller's very close personal friends, and 
it is a good thing Heller likes her or I would sic my son on 
him.
    [Laughter.]
    Senator Durbin. Thank you very much, Majority Leader, Reid, 
and I know you have a busy schedule, but we thank you for being 
here.
    Senator Reid. I do not want to leave until I hear Heller.
    [Laughter.]
    Senator Durbin. Senator Dean Heller.

 PRESENTATION OF MIRANDA DU, NOMINEE TO BE DISTRICT JUDGE FOR 
  THE DISTRICT OF NEVADA, BY HON. DEAN HELLER, A U.S. SENATOR 
                    FROM THE STATE OF NEVADA

    Senator Heller. Thank you very much. Thank you, Mr. 
Chairman, and to the Ranking Member and the members of the 
Committee, it is an honor to be here. Actually today is my 
first opportunity I have had to address the Committee, and it 
is a privilege to introduce a fellow Nevadan, Miranda Du, to 
you this afternoon. And it is an honor also to be here with 
Senator Reid and to be able to promote this candidate for 
judgeship, which I believe will work very well with this 
Committee. I want to welcome her husband. I want to thank John 
Frankovich for his support of her over the years. We are very 
privileged to have her with us today.
    The Senate has a solemn responsibility to make sure that 
judicial vacancies and nominations are addressed in a timely 
manner. Having spoken to Federal judges in Nevada, I understand 
the significant workload facing our understaffed Federal 
judiciary and the need to fill vacancies with qualified 
candidates who will uphold America's principles of equal 
justice under the law. And I believe Miranda Du will make an 
outstanding district court judge in the great State of Nevada.
    Ms. Du earned her B.A. of economics and history from UC-
Davis in 1991, graduated from UC-Berkeley's law school in 1994, 
and she is currently employed as a partner at McDonald Carano 
Wilson, as Senator Reid mentioned, where she has chaired the 
firm's employment and labor law group since 2003.
    Her experience covers every phase of litigation from 
discovery, motion practice, and trial through appeal before the 
Nevada Supreme Court and the Ninth Circuit Court of Appeals. 
Ms. Du has earned the respect of her colleagues within the 
legal community, particularly for involvement in employment 
law, and has successfully tried a number of jury trial cases to 
completion.
    Her work has been featured in numerous professional 
publications, including Northern Nevada Business Weekly and 
educational materials for Lorman Education and the National 
Business Institute.
    In addition to her professional background, Ms. Du is an 
active member of the broader northern Nevada community. She 
serves as a commissioner of the Nevada Commission on Economic 
Development, which focuses on developing and maintaining a 
diverse, healthy economic base in our State. Ms. Du is a board 
member of the Nevada's Women's Fund and has been recognized by 
Super Lawyers Magazine as a rising star and was featured as one 
of the Top 20 Under 40 Young Professionals in the Reno-Tahoe 
area.
    Ms. Du comes before the Committee not just with the support 
of Nevada's Senators, myself and Senator Reid, but Governor 
Brian Sandoval, Lieutenant Governor Brian Krolicki, numerous 
mayors, as well as State and local organizations ranging from 
the Nevada Chapter of AGC to Nevada Committee to Aid Abused 
Women.
    Again, I want to thank you for the chance to introduce this 
exceptional Nevadan to the Committee, and I look forward to her 
testimony as well as the Committee's consideration of her 
nomination. And, again, I am honored for the opportunity to 
present her before you with Senator Reid.
    Thank you.
    Senator Durbin. Thank you very much, Senator Heller. And I 
might note that the Judiciary Committee has received six 
letters in support of Ms. Du's nomination, including from the 
Republican Governor of Nevada, Brian Sandoval; the Republican 
Lieutenant Governor, Brian Krolicki; and the Republican mayor 
of Reno, Robert Cashell--each of whom has personally worked 
with her.
    Thank you again, Senator Heller.
    I would like to turn to Senator Gillibrand and let her 
proceed.

PRESENTATION OF RONNIE ABRAMS, NOMINEE TO BE DISTRICT JUDGE FOR 
     THE SOUTHERN DISTRICT OF NEW YORK, BY HON. KIRSTEN E. 
     GILLIBRAND, A U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Gillibrand. Thank you, Mr. Chairman, and thank you, 
Senator Lee. I am very honored to be here today to introduce 
Ronnie Abrams, and I am very pleased to offer my strong support 
for her nomination to the United States District Court for the 
Southern District of New York.
    Ronnie was born to a family with a heart of service, 
advocacy, and dedication to human rights. I want to recognize 
her parents who are here and her brother. I also want to 
recognize her husband, Greg Andres, who is also a prosecutor at 
the Department of Justice, and her three beautiful daughters 
who are accompanying her here today.
    I want to thank President Obama for acting on my 
recommendation and nominating another superbly qualified female 
jurist to the Federal bench. I have had the privilege of 
knowing Ms. Abrams for many years. I know her as a fair-minded, 
brilliant attorney of great integrity. Throughout her 
distinguished legal career, she has proven herself as an 
exceptional, well-respected attorney.
    As Deputy Chief of the Criminal Division at the U.S. 
Attorney's Office in the Southern District of New York, she 
supervised 160 prosecutions of violent crime, organized crime, 
white-collar crime, public corruption, drug trafficking, and 
computer crime. She helped shape the policy and management of 
the U.S. Attorney's Office, guiding its success in a broad 
range of high-level, high-stakes cases.
    Her record shows her commitment to justice, and I can tell 
you she has a deep and sincere commitment to public service. 
There is no question that Ms. Abrams is extremely well 
qualified and well suited to serve as a Federal court judge.
    But beyond all her superb and outstanding legal 
qualifications, she also brings the unique perspective as a 
daughter, a wife, and a mother. I strongly believe this country 
needs more women like her serving in the Federal judiciary, an 
institution that I believe needs more exceptional and 
extraordinary women.
    Over the last several years, the number of women in the 
Federal judiciary has stagnated, hovering at roughly 500, less 
than a third of the Federal bench. And while it is true that 
women have come a very long way in filling the ranks in the 
legal world, we still have a long way to go. I believe it is 
incredibly important that we do, because when we reach parity 
on the Federal bench, I believe that we will achieve greater 
fairness and justice throughout our legal system. I have no 
doubt that having Ms. Abrams serving in the Federal judiciary 
will bring us closer to that goal.
    I was extraordinarily honored to recommend her for this 
position, and I urge a swift approval of her nomination. Thank 
you.
    Senator Durbin. Thank you very much, Senator Gillibrand. 
Let me note for the record that your colleague, Senator Charles 
Schumer, has also indicated his positive support of her 
nomination, and I understand that our colleague on the 
Committee, Senator Coons, would like to make a statement at 
this time.

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

    Senator Coons. Thank you very much, Senator Durbin, Mr. 
Chairman, and thank you for the opportunity to add, if I can 
briefly, to Senator Gillibrand's eloquent advocacy on behalf of 
Ms. Abrams, whom I have known from our days together at law 
school and whom I also view as someone who is from a family 
with a heart for service, someone with the sort of stunning 
intellect that could have qualified her for service of any 
kind, but who instead chose to dedicate her adult life to 
public service, both as a prosecutor and as an Assistant U.S. 
Attorney, and then ultimately in a decade of service as chief 
of the crimes unit, as you heard Senator Gillibrand mention, 
but now in her current role with Davis Polk as someone leading 
pro bono cases and who has had really signal success in 
bringing a wide range of actions that did everything from 
ensuring that men and women of our armed forces received the 
benefits to which they were entitled, to making sure that 
working men and women received the pay to which they were 
entitled by virtue of having earned it.
    I think her career at the bar suggests that we continue to 
have in this Nation women, and men--but in this case I think it 
is particularly important that we add to the women of the bar--
who have an outstanding education, a great grounding in values 
and in a family tradition of service, and who are willing to 
step up and take on the very real challenges of serving on the 
bench in a way that respects our law and our Nation.
    So I am grateful, Senator Durbin, for a chance to briefly 
add my voice to those who speak in strong support of the 
nominee from the State of New York. Thank you, sir.
    Senator Durbin. Thank you, Senator Coons, and thank you 
again, Senator Gillibrand.
    I would now like to recognize the Delegate from the 
District of Columbia, Eleanor Holmes Norton, who is here to 
speak on behalf of Rudolph Contreras. Delegate Norton.

PRESENTATION OF RUDOLPH CONTRERAS, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF COLUMBIA, BY HON. ELEANOR HOLMES NORTON, A 
       DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    Delegate Norton. First, Senator Durbin, I want to thank you 
once again for the invaluable assistance you have been to the 
District of Columbia over the years.
    As you are aware, President Obama gave me the courtesy to 
recommend Federal district court judges, and it is a very 
special experience and honor to recommend to you today Rudolph 
Contreras, a very accomplished lawyer of great intellect.
    Mr. Contreras is another of these remarkable American 
success stories of first-generation Americans who become 
Federal judges. Mr. Contreras is the son of Cuban immigrants. 
He was born in New York and raised in Miami. I am pleased that 
his family is here: his mother, Amparo Contreras; his wife, 
Karen McSweeney; his two children, Brian Contreras and Claire 
Contreras.
    Mr. Contreras went to the University of Pennsylvania Law 
School where he was cum laude Order of the Coif and a member of 
the Law Review. He began his career as a corporate litigator at 
Jones Day. He was hired out of Jones Day by then-U.S. Attorney 
for the District of Columbia Eric Holder, now Attorney General 
of the United States, who calls Mr. Contreras one of his ``best 
hires.''
    Mr. Contreras now heads the Civil Division of the Office of 
the U.S. Attorney for the District of Columbia, and I know that 
two judges on our district court also headed the Civil Division 
before becoming judges on that court, and I am pleased that one 
of them is here, the chief judge, Royce Lamberth. I don't know 
if this is a stepping stone to becoming a district court judge 
or not, but Mr. Contreras will be the third in this group.
    After serving a number of years in a senior position at the 
U.S. Attorney's Office of the District of Columbia, Mr. 
Contreras was stolen away by the U.S. Attorney for the District 
of Delaware, and after serving there with accolades for 3 
years, we were fortunate to attract him back to the District of 
Columbia, where he has been chief of the Civil Division.
    Mr. Contreras has earned universal praise from all who have 
worked for him about his qualifications to sit on the court. I 
believe his confirmation will be assured should this Committee 
determine to approve him. I am pleased to recommend that you, 
in fact, approve Rudolph Contreras to be a judge on the United 
States District Court for the District of Columbia, and I thank 
you very much, Mr. Chairman.
    Senator Durbin. Delegate Norton, thank you for joining us 
again today, and thank you for your fine work for the people of 
the District of Columbia. My thanks as well to my colleagues 
Senator Rockefeller and Senator Gillibrand for being here with 
our other colleagues who had to step away.
    We are going to bring the nominees before us, first the 
nominee for the circuit court, and ask a few questions of them 
for the record, and these introductions have certainly prepared 
the Committee to look in a positive way toward the backgrounds 
of each of the nominees.
    As is the custom in the Committee, the first nominee will 
be the Fourth Circuit nominee, Stephanie Thacker, if she would 
please come to the witness table.
    As is the custom of the Committee, I ask you to please 
raise your right hand. Do you affirm the testimony you are 
about to give before the Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Ms. Thacker. I do.
    Senator Durbin. Thank you. Let the record reflect that the 
witness answered in the affirmative.
    Ms. Thacker, I now give you the floor for an opening 
statement or introduction of family and friends, whatever you 
would like to put before the Committee.

  STATEMENT OF STEPHANIE DAWN THACKER, NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE FOURTH CIRCUIT

    Ms. Thacker. Thank you, Senator Durbin.
    First I want to express my appreciation to the President of 
the United States, President Obama, for nominating me to this 
important position. I also want to thank Senator Rockefeller 
for his heartfelt recommendation and Senator Manchin for his 
strong support.
    In addition to those members of my family that are here 
today and those that were recognized by Senator Manchin and 
Senator Rockefeller, I would also like to acknowledge my 
brother and sister back in West Virginia: my brother, Dr. Alan 
Young, and my sister, Stacey Young Issa.
    Also, although she passed away several years ago now, I 
want to specifically recognize today my grandmother, Ruth 
Thacker, who was and remains an important force in my life, and 
I know she is with me in spirit today.
    Senator, I am truly humbled to sit before you today, and I 
look forward to answering any questions you may have of me.
    [The biographical information of Ms. Thacker follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Durbin. Thank you very much.
    When you were introduced by Senators Rockefeller and 
Manchin, they pointed to one of the key developments in your 
legal career, and that was your work in the Justice 
Department's Innocence Lost Initiative which targeted those who 
exploited children and provided support services for the child 
victims. Can you give this Committee a little insight into the 
work that you put into this initiative and how it came from 
your practice of the law?
    Ms. Thacker. That initiative was a part of my work with the 
Department of Justice, Child Exploitation and Obscenity 
Section. That section is tasked with pursuing crimes against 
children, exploitation, and obscenity.
    At the time sex trafficking was an emerging and important 
issue that needed to be addressed. I worked together with the 
FBI's Crimes Against Children Unit as well as the National 
Center for Missing and Exploited Children to develop a 
nationwide initiative that would provide training, support 
services for victims, and also increase awareness of the issue 
and implement prosecutions and convictions through working 
groups around the country. And I understand there are now 43 
working groups in the country today, and as the Senators 
mentioned, there have been over 700 convictions to date since 
it was implemented in June of 2003.
    Thank you for your question.
    Senator Durbin. It is certainly good work, and it certainly 
speaks to your role as a prosecutor that developed into a 
special effort to help victims.
    I would like to then move to a different part of your legal 
background, and that is your work in private practice where you 
took a slightly different role, and I would like you, if you 
could, to tell the Committee a little bit about the case 
involving Dupont, involving your class action medical 
monitoring case in West Virginia. It was brought on behalf of 
plaintiffs who alleged that they were exposed to arsenic, 
cadmium, and lead from Dupont's zinc smelting plant. You 
represented Dupont, I believe, in that action, and I would like 
for you to tell me how that case was tried, appealed, and the 
ultimate outcome.
    Ms. Thacker. Thank you, Senator Durbin, for that question. 
Yes, I and my colleagues represented Dupont in a class action 
lawsuit in West Virginia that was one of the first of its kind 
there.
    First, with respect to your question about my role in the 
case, I want to state first and foremost that I understand 
clearly the distinction between my role as an advocate 
currently and the role of a judge in which impartiality is 
critical. I recognize that.
    With respect to the Dupont case, that case went to trial 
and resulted in a jury verdict against Dupont. The case was 
appealed to the West Virginia Supreme Court of Appeals, which 
did two things:
    They reduced the damages verdict with respect to the 
medical monitoring punitive damages, given that there was no 
present personal injury alleged or proven.
    They also provided a remittitur of the punitive damages due 
to Dupont's remediation of the site in issue. And they remanded 
the case back for retrial on the issue of Dupont's statute of 
limitations defense.
    The decision of the West Virginia Supreme Court put the 
case then in a position where the parties were able to resolve 
the case prior to retrial and were able to achieve settlement.
    Currently I serve as part of a three-person finance 
Committee together with the claims administrator and class 
counsel for the plaintiffs in that case, helping to carry out 
the settlement, which does include remediation and medical 
monitoring. And I am glad to be a part of that resolution and 
moving forward with the community in the spirit of 
reconciliation on behalf of the client.
    Senator Durbin. I am glad you made the point right near the 
end about the continued medical monitoring, which I thought was 
an interesting aspect of that case.
    You also have the distinction of prosecuting the first case 
in the country under the Violence Against Women Act. That must 
have been a daunting undertaking since you were the first. Can 
you tell us what led you to the decision to try that case or to 
prosecute that case?
    Ms. Thacker. Well, thank you, Senator Durbin, for the 
opportunity to address that case. Certainly I did not do it 
alone, so while it was daunting being the first case, I was 
part of a team of prosecutors.
    The Violence Against Women Act had been passed in October, 
I believe, of 1994, and this case, the assault on the victim in 
the case, occurred in November 1994. Our U.S. Attorney at the 
time, and now my law partner, had been to a U.S. Attorneys 
conference in which that statute was discussed, so she 
recognized that the Violence Against Women Act may apply here. 
That case proceeded to trial, and the jury convicted the 
defendant and he was sentenced to life imprisonment. He was 
also charged with kidnapping, which provided a statutory 
maximum of life in prison.
    A little bit about the facts underlying that life 
imprisonment----
    Senator Durbin. If I might, since I have gone over a bit in 
time.
    Ms. Thacker. Certainly.
    Senator Durbin. I was particularly interested as to whether 
there was a challenge to the constitutionality of the law 
brought in that first case.
    Ms. Thacker. There was a challenge to the Bailey case that 
was affirmed by the Fourth Circuit. The Violence Against Women 
Act, the criminal provisions in that part of the Violence 
Against Women Act specifically include a jurisdictional nexus; 
that is, there must be some crossing of State lines. And so 
contrary to or different from the Morrison section of the 
Violence Against Women Act that the Supreme Court held 
unconstitutional, the criminal provisions include enumerated 
jurisdictional elements.
    Senator Durbin. Thank you very much.
    Ms. Thacker. Thank you.
    Senator Durbin. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman, and thank you, Ms. 
Thacker, for joining us. I welcome you and your family to the 
Committee.
    You published a Law Review article years ago in the West 
Virginia Law Review in which you advocate a fairly aggressive 
view of vicarious liability for churches and priests, under 
which churches and priests would be held liable for the 
improper actions of other priests within the same church.
    Based on that article, I feel the need to ask: Do you 
disagree with laws or the need for laws and legal doctrines 
that offer special protections to religious institutions?
    Ms. Thacker. I do not disagree with that.
    Senator Lee. OK. One of the reasons I asked that is that in 
that article you refer to at one point--you suggest that many 
charitable organizations, including religious institutions, are 
``big business.'' Tell me what you meant by that and whether 
that means that charitable organizations, including religious 
institutions, should not be--whether that means they should not 
be offered some kind of special protections?
    Ms. Thacker. Thank you, Senator Lee. I appreciate the 
opportunity to address that issue. The Law Review article was 
meant to address the emerging and novel legal issues at the 
time rather than to aggressively advocate. The term ``big 
business'' in the Law Review article was actually in reference 
to another article or case that I was citing for a particular 
principle in that. I don't recall what, but that was not my 
view but, rather, something I was referencing. And I certainly 
would recognize, were I fortunate enough to be confirmed to the 
Fourth Circuit Court of Appeals, the constitutional protections 
and would follow the law of the United States Supreme Court and 
the Constitution.
    Senator Lee. OK. In that same article, you noted a case in 
which a court did not hold a bishop liable for the actions of 
one of his fellow clergy members because the non-offending 
bishop did not participate in or ratify or approve of the 
conduct. And you argue in that article, with disapproval, I 
think, that the result of the court's decision is that ``heads 
of religious societies are not expected to be their brother's 
keeper.''
    So do you view the law as mandating a certain code of 
ecclesiastical conduct?
    Ms. Thacker. I do not. My goal in that article was merely 
to assess the state of the law at that time on respondent 
superior and employer liability, and each of those cases, 
including the one you mentioned, turn of the specific facts, 
and I would, if such cases would come before me, review them on 
a case-by-case basis with a view toward controlling legal 
precedent. I was merely attempting to set forth the state of 
the law at the time.
    Senator Lee. OK, and not to make a normative judgment as to 
the state of the law or what it should require.
    Ms. Thacker. Absolutely not.
    Senator Lee. So if I got that impression, that was not 
consistent with your intentions.
    Now, in the conclusion of the article, you state that due 
to the ``reprehensible factual situations involved in most of 
the sexual molestation cases,'' you easily reached the 
conclusion that, ``The church should be thy priest's keeper in 
terms of civil liability.'' That does sound like a normative 
statement to me, a normative judgment of sorts. Tell us what 
you meant by that.
    Ms. Thacker. Well, the goal of the Law Review article, 
which I wrote as a law student 22 years ago, was simply to make 
a statement or a review of the areas of the law and to address 
how that may evolve, a sort of best guesstimate as to how that 
may evolve. Frankly, I have not looked at the state of the law 
in that area since, but I would follow the law and controlling 
legal precedent, depending on the facts of the cases that came 
before me. I certainly did not intend to make any overarching 
statement in that Law Review article.
    Senator Lee. And you did not intend to make any statement 
to the effect that the legal standard to be applied when 
evaluating the liability vel non of a religious institution 
might be determined or influenced or altered in any way by the 
nature of the factual situation before it?
    Ms. Thacker. Absolutely no, Senator.
    Senator Lee. OK. Thank you.
    Senator Durbin. Thank you, Senator Lee.
    I have no further questions to ask of this nominee. I thank 
you very much for being with us today. There may be additional 
questions sent to you by some other members of the Committee, 
and I hope you can answer them in a timely fashion, and we look 
forward to working with you after this hearing.
    Thank you again for joining us.
    Ms. Thacker. Thank you.
    Senator Durbin. We now welcome the second panel of district 
court nominees, all four: Ronnie Abrams of New York, Rudolph 
Contreras of the District of Columbia, Miranda Du of Nevada, 
and Michael Fitzgerald of California. When you reach your 
chair, please remain standing because I have a little work to 
do before you sit down.
    If each of the district court nominees would please raise 
your right hand. Do you affirm the testimony you are about to 
give before the Committee will be the truth, the whole truth, 
and nothing but the truth, so help you God?
    Mr. Fitzgerald. I do.
    Ms. Abrams. I do.
    Mr. Contreras. I do.
    Ms. Du. I do.
    Senator Durbin. Thank you. Let the record reflect that all 
four of the witnesses have answered in the affirmative. And for 
the record, I wanted to let Senator Lee know that a recent 
movie that came out called ``Contagion'' originally contained a 
scene where I did just that, but it was lost on the cutting 
room floor.
    [Laughter.]
    Senator Durbin. So Senator Leahy is the only movie star on 
the Senate Judiciary Committee to date, unless you have 
something to report.
    Senator Lee. I saw that movie recently, and I agree, that 
would have been a much more compelling movie. I think I would 
have cried hot tears of joy and emotion had I seen that and you 
had been in it as well. I am going to write the producer a 
letter.
    Senator Durbin. It was one of my finest moments.
    Thank you to the nominees for joining us today, and we are 
going to proceed with questions after you have an opportunity 
to say a few words in advance.
    We will start with Michael Fitzgerald of California. If you 
would like to make a statement or introduce those who are with 
you, it is your floor. Take it away.

STATEMENT OF MICHAEL WALTER FITZGERALD, NOMINEE TO BE DISTRICT 
          JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

    Mr. Fitzgerald. Thank you, Mr. Chairman. I would like to 
thank you, Senator Durbin and Senator Lee, on behalf of the 
Committee for giving me the chance to testify today. I would 
like to thank the President for nominating me for the Central 
District of California. I would like to thank Senator Boxer for 
her recommendation to the President, and in turn the bipartisan 
Judicial Advisory Committee of Senator Boxer which forwarded my 
name to her for her consideration.
    As you have heard, present with me today are my parents, 
Vivianne and Jim Fitzgerald, like my brother and I native born 
Angelenos. Also here is my twin brother, Patrick Fitzgerald, 
who serves as a Federal prosecutor in the Central District of 
California.
    Joining us through the Committee's webcast are numerous 
colleagues and friends. I would particularly like to 
acknowledge my colleagues and staff at Corbin, Fitzgerald & 
Athey in Los Angeles.
    Thank you.
    [The biographical information of Mr. Fitzgerald follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Durbin. Thank you very much. I imagine there are 
occasionally times when your brother's name is confused with 
another Patrick Fitzgerald.
    [Laughter.]
    Mr. Fitzgerald. Senator, I am told that the e-mails cross 
with an alarming degree of frequency.
    Senator Durbin. Thank you.
    Ms. Ronnie Abrams, thank you for being here, and not only 
having the support of both of your Senators but also Senator 
Coons. Please proceed.

 STATEMENT OF RONNIE ABRAMS, NOMINEE TO BE DISTRICT JUDGE FOR 
               THE SOUTHERN DISTRICT OF NEW YORK

    Ms. Abrams. Thank you. I would like to thank first and 
foremost Senator Gillibrand for her support and encouragement 
throughout this process and her kind words today. I would like 
to thank Senator Coons as well for his generous words.
    I would like to thank the Committee for its consideration 
and the President for the tremendous honor of this nomination.
    As you heard, I do have with me my family. I would love to 
introduce them myself. First is my husband, Greg Andres, and my 
best friend. We have been married for over 10 years. He is a 
long-time Federal prosecutor, now a Deputy Assistant Attorney 
General in the Department of Justice.
    My three daughters are here. I am hoping no one is 
sleeping, but that may be. This is Dylan, who is 8; Teddi, who 
is 6; and Finley, my 2-year-old. We are very proud of all three 
of them.
    My parents, Floyd and Efrat Abrams, are here. I owe so much 
to both of them, but I would be remiss if I did not note in 
particular that my father has been my inspiration for my life 
and love of the law.
    My brother, Dan Abrams, with whom I am very close, is also 
here, as well as a few very close friends.
    Thanks very much.
    [The biographical information of Ms. Abrams follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
    Senator Durbin. Thank you very much.
    Rudolph Contreras from the District of Columbia, the floor 
is yours.

 STATEMENT OF RUDOLPH CONTRERAS, NOMINEE TO BE DISTRICT JUDGE 
                  FOR THE DISTRICT OF COLUMBIA

    Mr. Contreras. Thank you. I would like to thank the 
Committee for considering my nomination and scheduling this 
hearing. I would also like to thank the President for 
nominating me and giving me this great honor.
    I would like to thank Congresswoman Norton for recommending 
me to the President and her selection Committee for 
recommending me to her.
    And I would like to acknowledge the folks that came with me 
here today: my mother, Amparo, who flew up from Miami for this 
hearing; my wife, Karen McSweeney, who is a joint partner in 
everything I do; my children, Brian and Claire; and also here 
with me today are two of my long-time mentors and hopefully 
future colleagues: Chief Judge Royce Lamberth and Judge Ricardo 
Urbina, who, after taking senior status, is the slot for whom I 
have been nominated.
    Thank you.
    [The biographical information of Mr. Contreras follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
    Senator Durbin. Thank you very much.
    Ms. Miranda Du, thank you for joining us from Nevada. You 
have been introduced by the Majority Leader and the other 
Senator from your State, and the floor is yours.

 STATEMENT OF MIRANDA DU, NOMINEE TO BE DISTRICT JUDGE FOR THE 
                       DISTRICT OF NEVADA

    Ms. Du. Thank you, Senator, and I too would like to thank 
the Committee for giving me the opportunity to appear before 
you today.
    I want to also thank Senator Reid for recommending me to 
the President. I want to express my appreciation to the 
President for nominating me, and, of course, I want to also 
thank both the Senators from my State, Senators Reid and 
Heller, for introducing me earlier today.
    This is an incredibly proud moment for my family. They 
wanted to come here. I have a large group of family members, 
16, in fact, from California and Arizona, and I would briefly 
like to introduce them.
    My parents, Tina and Peter, and my brother, Joe, flew in 
from Orange County, California. My sister, Vicki, and her 
husband, Andy, and their 8-year-old son, Ethan, came in from 
Scottsdale, Arizona. I have two uncles, two aunts, five 
cousins, and another relative who all flew in from the Bay Area 
of California.
    The managing partner of my firm, John Frankovich, also 
joined us here today. He is probably a little stressed out 
about the length of the hearing because work at my firm has 
stopped while everyone is convening in the conference room to 
watch this webcast. Laughter.]
    Ms. Du. I also wanted to acknowledge many family members 
and friends and colleagues who are also watching on the 
webcast.
    Thank you.
    [The biographical information of Ms. Du follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Durbin. Thank you.
    I would like to ask a general question based on my shadowy 
memories of the days when I appeared before Federal court 
judges in Springfield, Illinois, and in Chicago. And I had my 
favorites based not so much on their intelligence but on their 
temperament. This is a lifetime appointment, and it has been my 
observation that it goes straight to the head of some of the 
nominees once they put the robe on and they forget that they 
are still human beings with a background in the law and have 
before them attorneys who are doing their best for their 
clients.
    I would like each of you, if you would, to just spend a 
brief moment talking about that issue of judicial temperament 
and what you have learned appearing before judges and what you 
would bring to the bench given that opportunity. Ms. Du, would 
you start?
    Ms. Du. Thank you, Your Honor. Your Honor? Thank you, 
Senator. I think that is a very good question. I am used to 
appearing before the court.
    One of the judges I admire the most on our Federal bench is 
somebody who exudes civility in the courtroom, and he conducts 
his courtroom with dignity and respect and is very humble. That 
is one of the qualities I admire. I think that the judges 
should exemplify our judicial system and should exhibit great 
temperament and in that way command respect.
    Senator Durbin. Mr. Contreras.
    Mr. Contreras. Yes, thank you for the question. I have 
practiced in the very court for which I have been nominated for 
the better part of 17 years, and I have appeared before many, 
many of the judges, and it makes a huge difference, the 
temperament of the judge. There were a number of judges--no 
longer on the bench--who even when I won it was less than a 
pleasant experience to appear. So I will make it a center point 
of my tenure, if I am so fortunate to be confirmed, to make 
sure that every party that appears is treated with respect and 
also is given the opportunity to have their claims heard 
fairly, regardless of walk of life or position in life.
    Senator Durbin. Thank you.
    Ms. Abrams.
    Ms. Abrams. I think judicial temperament is critically 
important. It is important for a judge to be patient and to be 
a good listener and to be humble and to be courteous to all 
those before him or her, no matter if they are rich or poor, no 
matter where they come from. I think it is important for a 
judge to remember that the courtroom can be an intimidating 
place for people, and it is important to treat everyone with 
respect and courtesy.
    I recall that at a prior hearing one nominee said that 
people remember being mistreated much longer than they remember 
if they won or lost. And I think that that is true, and I think 
that a calm and decent and respectful temperament is critical 
for just confidence in the system overall.
    Senator Durbin. Mr. Fitzgerald.
    Mr. Fitzgerald. As Ms. Abrams said, I think that being a 
calm and patient and good listener is very much a part of the 
judicial temperament. It is very important that the parties 
feel not only that their case was not prejudged, but that they 
were treated with respect and that their case was seen as 
important to them. And I would certainly endeavor to project 
that and to display that to everyone who came into my 
courtroom.
    Senator Durbin. Thank you. It seems like a very obvious 
question, I know, and the answers are anticipated. But I 
believe it is one of the most important elements in being a 
successful Federal judge, and I hope that--and I know that each 
of you feel as I do, that temperament is a critical element.
    Let me ask you, Ms. Abrams, you served on a task force that 
the chief judge of New York State created to propose reforms to 
help safeguard against wrongful convictions. That topic is 
always in the news: eyewitnesses that get it all wrong, people 
in jail for decades when it turns out they did not commit the 
crime. What did you learn in this process that you would bring 
to the bench?
    Ms. Abrams. Well, a wrongful conviction is just a grave 
failure of our criminal justice system. It destroys the life of 
the person convicted. It lets the actual perpetrator go free. 
It should never happen, and yet on occasion it does. And I 
think that it is important for judges to understand the causes 
of wrongful convictions and be vigilant in every case in 
ensuring that the case is handled properly and that such a 
grave injustice does not happen in that judge's courtroom.
    Senator Durbin. Ms. Du, you have an amazing, compelling 
life story of how you made it to the United States despite 
great adversity, and your family stuck together and I think 
virtually all of them are here today, which is a good thing for 
you. What has that experience being first-generation American 
meant to you in terms of your work as an attorney? And what 
would it mean on the bench?
    Ms. Du. Having been born and raised initially in a country 
where the rule of law is not respected helped give me the 
appreciation for the rule of law and our judicial system. And 
that was one of the reasons why I decided to go into the law. I 
wanted to show my family that in this country we can be a part 
of the system and do well, because they did not get a sense of 
trust from the Government having lived in Vietnam.
    Senator Durbin. Mr. Contreras, there are so many things I 
can ask you about. You have an amazing background in the law, 
working in the U.S. Attorney's Office and the like. But the one 
thing I have noticed that just jumped off the page was your 
mentoring of disadvantaged Hispanic students in the District of 
Columbia as well as Hispanic law students.
    Tell me why you felt the need to do that and what you have 
brought from that experience.
    Mr. Contreras. Thank you for that question, Senator. It is 
something as a first-generation attorney--I did not have a lot 
of guidance, through no fault of my parents. They just had 
never gone to college themselves or gone to law school, and 
knowing how to maneuver the very difficult paperwork or 
financial aid and all those things that are involved, it is a 
very complicated process nowadays. I have just felt that having 
been through it myself and hopefully learned something from 
those events, that it is my duty to help others that are in the 
position I was and hopefully can get some help going through 
the process.
    Senator Durbin. Thanks.
    Mr. Fitzgerald, at one point in your career, you 
represented an FBI special agent named Frank Buttino in a 
matter in the early 1990's. Mr. Buttino was gay. He had his 
security clearance revoked and was fired after his superiors at 
the FBI learned of his sexual orientation. Mr. Buttino filed a 
lawsuit and was joined by a certified class of gay and lesbian 
FBI employees.
    I understand there was a settlement of this case that 
contained some important FBI policy changes regarding the 
treatment of gay and lesbian employees and applicants. Can you 
discuss the outcome of this matter and your role in the case?
    Mr. Fitzgerald. Thank you, Senator. I was approached by 
Heller Ehrman, the former law firm in San Francisco--I was then 
working in its Los Angeles office--to work on that case as a 
pro bono matter, and because of my trial background in the U.S. 
Attorney's Office and my familiarity with the FBI, I was asked 
to work on it, which, again, because of that background I was 
pleased to do so.
    Mr. Buttino was the named representative. We brought the 
case to trial. During trial we, I am pleased to say, reached a 
mutually agreeable accommodation with the administration and 
with the FBI. The FBI agreed to no longer use security concerns 
as a means to keep gays and lesbians from being hired as 
special agents, and Mr. Buttino's pension was restored.
    Senator Durbin. Thank you.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    Mr. Fitzgerald, as the father of twin boys, I am worried 
about Patrick. You are not going to use this, are you, in order 
to generate the perception that you are the favorite of your 
parents?
    [Laughter.]
    Mr. Fitzgerald. No, Senator, though I did ask him to hold 
my BlackBerry while I was here in the hearing room, and he told 
me that he would, but it would not become a habit.
    Senator Lee. And I am sure you will return the favor for 
him at some point whenever he needs you to hold his BlackBerry.
    Like some other nominees that we have before our Committee 
from time to time, you have worked personally and 
professionally as an activist in various political and legal 
causes. I do not subscribe to the view that having been an 
activist in one area or another ought to disqualify anyone from 
ascending to the bench, and I certainly do not think that is 
the case in any instance where I have seen someone come before 
this Committee.
    It is our duty, of course, as Senators, especially those of 
us who were privileged enough to serve on this Committee, to 
make sure that individuals who have been nominated to a 
lifetime tenured vacancy in the U.S. court system will uphold 
the rule of law and make sure that they understand the 
difference between advocacy and jurisprudence and that they 
will not engage in any kind of political activism while on the 
bench. So I feel it is my responsibility to just ask a couple 
of questions about that.
    How would your prior political activities as an advocate 
and as an activist influence the work that you might do as a 
Federal judge?
    Mr. Fitzgerald. Sir, I do not believe that it would have 
any influence on my service as a Federal judge. The great bulk 
of my time since leaving the U.S. Attorney's Office has been as 
a businessman in Los Angeles representing clients, hoping my 
firm would do well, and while we have done pro bono work--and I 
think that is important for lawyers, and I have served on a 
number of committees dealing with the Federal court system--as 
I said, the bulk of my practice has been very much as a 
litigator for clients who have retained us for our expertise. 
And as a judge, then I would respect the rule of law; I would 
respect the court system as a system which is trying to do 
justice for the litigants in front of it pursuant to the facts 
as they were found, without any reference to the background of 
the litigants--that is what is required by the judicial oath--
and, of course, pursuant to the binding precedent of the 
Supreme Court and of our circuit court. And that is what the 
job requires, and it is what I would do. And I would not bring 
any personal or political views to bear on any of the cases 
that I determined as a United States district judge.
    Senator Lee. And I suppose there are recusal standards that 
apply to Federal judges that also provide some protection in 
that regard. You are familiar with those, and you are 
comfortable with them?
    Mr. Fitzgerald. I am, sir, and I certainly would recuse 
myself from any case where I felt that was required and would 
certainly give a strong examination of conscience to make sure 
that my views would not influence any decision I would make as 
a judge. And I would also be cognizant of the fact that recusal 
is required not only when I felt that it might be necessary, 
but when a reasonable onlooker would believe it was necessary 
as well.
    Senator Lee. Thank you. Thank you very much.
    Ms. Du, I have a couple questions for you as well. First of 
all, let me say you have apparently garnered the support of 
Leif Reid, who I have known for years, and if you can impress 
Leif, you must be very good. So that is a credential worth 
having.
    Now, you were the lead counsel for the defendant in a civil 
case years ago, Truckee Meadows Water Authority, in a case that 
was ultimately dismissed for lack of subject matter 
jurisdiction in the U.S. District Court for the District of 
Nevada. You filed a motion to dismiss that did not argue the 
issue of subject matter jurisdiction, notwithstanding the fact 
that there was no subject matter jurisdiction in that case.
    So I thought I would ask, Why did you not raise the defense 
of lack of subject matter jurisdiction in that dispute?
    Ms. Du. We did not realize that that was a matter that we 
could raise. We raised the subject matter jurisdiction that the 
district court disagreed with, but we did not raise that 
particular issue.
    Senator Lee. OK. In that case you filed a third-party 
complaint against the TMWA's union, the Truckee Meadows Water 
Authority union. The union notified you in a letter that the 
Federal subject matter jurisdiction was lacking in that case 
over either it or your client. You agreed that there was no 
subject matter jurisdiction, but you, nonetheless, elected to 
proceed against the union, and the case was dismissed by the 
court only after the union moved to dismiss for lack of subject 
matter jurisdiction.
    Did you consider filing a second motion to dismiss on that 
basis?
    Ms. Du. I did not. What happened was the union filed a 
motion to dismiss that the court had not decided, and the 
plaintiff then dismissed the entire lawsuit.
    Senator Lee. The district court, as I understand it in that 
case, characterized your position to proceed with your third-
party complaint against the union as reckless and imposed 
sanctions for attorneys' fees and costs pursuant to Section 
1927 of 28 U.S.C. I was wondering: Do you agree with the 
district court's assessment in that case that your conduct was 
reckless?
    Ms. Du. I agree with the district judge's analysis in that 
case that the more prudent course would have been for us to 
either approach the plaintiff's attorney and ask them to 
dismiss a second time or file a second motion on our own. And 
in hindsight, that probably was the course of conduct we should 
have taken instead of bringing the union.
    Senator Lee. You do not agree with the recklessness 
conclusion?
    Ms. Du. I do not believe that I was reckless in that case. 
We certainly made a mistake and did not pick the best course of 
action, but I do not believe it was reckless.
    Senator Lee. As a judge, you would be careful to look out 
for subject matter jurisdiction defects in any case, keeping in 
mind the importance of our limited Federal judiciary?
    Ms. Du. Absolutely.
    Senator Lee. Thank you, Mr. Chairman.
    Senator Durbin. Thanks a lot.
    Let me ask you, Ms. Du, in 17 years with this McDonald 
Carano Wilson law firm, it appears that most of your work has 
been civil litigation and most of it has been in a defense 
capacity, civil defense. Is that a fair summary of most of your 
practice?
    Ms. Du. Most of my practice has been on the defense side. 
That is correct.
    Senator Durbin. So the question that usually arises when 
nominees are considered is whether there is a bias based on 
life experience or legal experience. What could you point to in 
terms of your own legal career where you were on the other side 
of the table, perhaps representing a plaintiff or a petitioner 
in a case against a major corporation or a major interest?
    Ms. Du. I believe that a good litigator should be able to 
look at both sides, both the plaintiff and the defendant sides, 
to assess each side's strengths and weaknesses. I do not 
believe I have that bias for one side or the other, and if I 
was fortunate to be nominated, I believe that a judge's role is 
to be impartial and to look at both sides.
    Senator Durbin. So if I were a criminal defendant coming 
before you on the bench, the obvious question, and I think I 
know the answer, but for the record: What would your feelings 
be toward a prosecution? Would you take a look at it from the 
viewpoint of the facts and the law without any bias based on 
your own personal experience?
    Ms. Du. I would. I believe a judge's role is to look at the 
facts and apply the law and be fair and open to everyone who 
appeared before the court.
    Senator Durbin. And tell me about your pro bono work as an 
attorney.
    Ms. Du. I have represented several nonprofit organizations 
in helping them through some of their employment issues, both 
from the defense and the plaintiff side.
    Senator Durbin. Thank you.
    Mr. Contreras, a similar question. Most of your background 
has been representing the U.S. Government either prosecuting 
cases against individuals or representing the Government's 
interest in contractual relationships. And so the same 
question: What would a criminal defense lawyer think if he drew 
Judge Contreras in an important case?
    Mr. Contreras. Thank you for that question. I do not think 
anyone would feel like they were not getting a fair shot 
because, despite the fact that I have defended the Government 
for the better part of my career, a large part of my job is not 
just to serve justice with a capital ``J'' but also served 
justice with a small ``J.'' And a large part of my job is 
convincing agencies to do what the law requires, and a lot of 
that is behind the scenes. Neither the parties nor the court 
ever see it. But my job is to enforce the law, and regardless 
of who I represented before assuming the bench, I will have no 
problem if the Government has not acted according to the law, 
that it will be held accountable the same way.
    Senator Durbin. Tell me about your own pro bono experience.
    Mr. Contreras. Given that I represent--before I worked for 
U.S. Attorney's Office, I did a lot of pro bono helping folks 
with Social Security matters and with immigration matters. 
Representing the United States, I am conflicted now from doing 
all that sort of work. So I have focused, as you mentioned 
earlier, on mentoring and dealing with individuals more so than 
pro bono work in my current tenure. Before I joined the U.S. 
Attorney's Office, I did a lot of work helping immigration, 
asylum cases, Social Security cases. I helped someone that was 
getting evicted from a D.C. housing unit. I helped a 
grandmother who was trying to adopt their grandchild because of 
problems with the child's mother.
    Senator Durbin. Thank you.
    Ms. Abrams, I know you are sitting there saying, ``I hope 
he asks me about the pro bono part.''
    [Laughter.]
    Senator Durbin. Please proceed and tell me about your 
experience.
    Ms. Abrams. Well, I think I have been on all sides of the 
aisle, to a certain extent. I was a prosecutor for a long time, 
for 9\1/2\ years at the U.S. Attorney's Office for the Southern 
District of New York. But I have also represented criminal 
defendants in Federal and State actions. I am on the Criminal 
Justice Act Panel now in the Southern District of New York.
    On the civil side, I have represented both plaintiffs and 
defendants ranging from very large corporations to individuals 
seeking to enforce their rights. So I think in terms of 
impartiality, I do not think it would be questioned because I 
have been on all sides.
    In terms of pro bono work, thank you for the question. 
Virtually all of the work I do not, is designed to serve the 
disadvantaged. I am special counsel for pro bono at my law firm 
now. I litigate cases. I supervise cases. I represent battered 
women and veterans and criminal defendants and unpaid workers. 
And then I oversee the program as a whole. So I have done a 
good deal of pro bono work. I do it now and I did it before I 
was a prosecutor as well, and I think it is critically 
important for all lawyers to do.
    Senator Durbin. Thank you.
    Mr. Fitzgerald, same question in terms of your balance as 
you would approach the bench based on your own personal 
experience, and then, again, any pro bono work that you have 
done. I cited a case. I believe you already have, but if you 
could expand on that a bit.
    Mr. Fitzgerald. Yes, Senator, I am pleased that my legal 
career has given me the opportunity to handle both criminal and 
civil cases and to be on the criminal side and represent both 
the United States of America and defendants, on the civil side 
to represent plaintiffs and defendants, individuals and 
corporations.
    Certainly most of the cases I have handled have settled and 
not gone to trial, and that obviously requires a certain 
ability to see things from the opposing party's point of view 
to reach a mutually agreeable settlement.
    In terms of pro bono, in addition to the case that you 
mentioned, I have handled other court-appointed work in both 
the district court and the court of appeals. I have served, as 
Senator Boxer mentioned, as a volunteer counsel to two 
commissions that were investigating the Los Angeles Police 
Department. And I have also volunteered to be a moot court 
coach for a local law school that is in partnership with the 
California Institute of Technology for a high-tech new court 
program.
    Senator Durbin. Thank you.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    Since I have spent my first 5 minutes talking to Mr. 
Fitzgerald and Ms. Du, I will direct my next question to Ms. 
Abrams and Mr. Contreras. I would like to ask both of you the 
same question in that order, starting with you, Ms. Abrams. If 
you are confirmed as Federal judges, you will be called on 
constantly to interpret, to offer up a judicial construction of 
various provisions of Federal law and of the U.S. Constitution. 
So what I would like to know is: What sources would you 
consult, would you draw upon in arriving at your construction 
of a particular provision?
    Ms. Abrams. Well, the first thing you would do is look at 
the text of the provision at issue and the structure of that. 
You would look to the precedent of the Supreme Court and of the 
court of appeals in the circuit in which you sit, and that is 
the first two and most important things you do.
    If it is a case of first impression and there is no 
precedent on point, you would look to precedent of the Supreme 
Court and the relevant court of appeals for analogous 
provisions. You would look at precedent from other circuits as 
well as legislative history.
    Senator Lee. What ought to drive it? What the legislative 
body intended or what the language actually says?
    Ms. Abrams. I think the first thing and most important 
thing you want to look at is what the language says, and that 
is your starting point always.
    Senator Lee. Mr. Contreras.
    Mr. Contreras. Thank you for that question. This issue is 
actually something I practice on a nearly daily basis in my 
current capacity as interpreting statutes and defending 
statutes on behalf of the United States. I follow Chevron from 
the Supreme Court very clearly. If the statute is clear on its 
face, that is the end of the story. If it is not, if there is 
ambiguity, you go to Chevron step two and you see what the 
administrative agency's reasonable interpretation is of the 
statute, filling in the gaps. There is no step three about what 
I think about the statute, and that is where it is. If the 
agency's interpretation is arbitrary and capricious, then the 
plaintiff wins. But using the teachings of the Supreme Court 
and the D.C. Circuit, which has a myriad of cases on this 
issue, I would have lots of sources of guidance.
    Senator Lee. Sure. Well, and on your court Chevron will be 
of enormous importance. You will, of course, be called upon 
from time to time to construe statutory provisions outside the 
unique context of Chevron and its progeny.
    What about there? What do you do there? And what 
specifically do you think about, for instance, legislative 
history and what role it ought to play?
    Mr. Contreras. Well, if the statute is unclear--again, I go 
to the clear face of the statute. If the language of the 
statute is clear, even if legislative history is contrary to 
the clear language of the statute, you do what the statute 
says. In the end that is the statute that Congress issued.
    If it is not, depending on the circumstances, one can look 
to see if the legislative history is clear, but that is 
treacherous work. You know, what various folks got into the 
legislative history may not be why the statute was voted into 
place. So if the legislative history is very clear and it seems 
that it clearly was the reason for the statute, I would give it 
some weight. But it is very hard to do, to decipher legislative 
history, especially long afterwards.
    Senator Lee. Thank you very much to all of you. Thanks for 
coming today.
    Thank you, Mr. Chairman.
    Senator Durbin. Thanks, Senator Lee, for being here today, 
and I want to thank all of our nominees who have appeared 
before us, and certainly the Senators and Delegate who came to 
speak on your behalf.
    We will keep the record open for a week. If there are 
questions that come in either from us or other members of the 
Committee, I hope you will respond to them on a very timely 
basis. And I want to thank everyone for being here today.
    This Committee will stand adjourned.
    [Whereupon, at 4:25 p.m., the Committee was adjourned.]
    [Questions and answers and submissions follow.] 

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