[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
----------
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
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
----------
U.S. GOVERNMENT PRINTING OFFICE
74-979 PDF WASHINGTON : 2012
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]