[Senate Hearing 112-72, Part 5]
[From the U.S. Government Publishing Office]


                                                   S. Hrg. 112-72, Pt.5
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

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       OCTOBER 19, NOVEMBER 2, NOVEMBER 16, AND DECEMBER 13, 2011

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                           Serial No. J-112-4

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                                 PART 5

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         Printed for the use of the Committee on the Judiciary













             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS













                                                   S. Hrg. 112-72, Pt.5

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

       OCTOBER 19, NOVEMBER 2, NOVEMBER 16, AND DECEMBER 13, 2011

                               __________

                           Serial No. J-112-4

                               __________

                                 PART 5

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------
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                       COMMITTEE ON THE JUDICIARY

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




                            C O N T E N T S

                              ----------                              

                            October 19, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................     3
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     4

                               PRESENTERS

Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana 
  presenting Susie Morgan, Nominee to be U.S. District Judge for 
  the Eastern District of Louisiana..............................     1

                       STATEMENT OF THE NOMINEES

Horowitz, Michael E., Nominee to be Inspector General, Department 
  of Justice.....................................................     5
    Questionnaire................................................    17
Morgan, Susie, Nominee to be U.S. District Judge for the Eastern 
  District of Louisiana..........................................    53
    Questionnaire................................................    55

                         QUESTIONS AND ANSWERS

Responses of Michael E. Horowitz to questions submitted by 
  Senators Leahy and Grassley....................................   105
Responses of Susie Morgan to questions submitted by Senator 
  Grassley.......................................................   116

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Benjamin H. Hill, III, Washington, DC, 
  Susie Morgan, June 8, 2011, letter.............................   120
Chertoff, Michael, Covington & Burling LLP, Washington, DC, 
  October 5, 2011................................................   122
Davies, John G., retired U.S. District Judge, Santa Barbara, 
  California, October 4, 2011, letter............................   123
Ethics Resource Center (ERC), Michael G. Oxley, Chairman and 
  Patricia J. Harned, President, Arlington, Virginia, October 12, 
  2011, Letter...................................................   125
Glenn A. Fine, former Inspector General, Department of Justice, 
  October 10, 2011, letter.......................................   126
Ford, Kevin J., Managing Director, RDC Risk Consulting Services 
  LLC, New York, New York, October 14, 2011, letter..............   128
Hearn, Rose Gill, Commissioner, New York City, Department of 
  Investigation, New York, New York, October 24, 2011, letter....   130
Horowitz, Michael E., Nominee to be Inspector General, Department 
  of Justice, statement..........................................   132
Snell, Roy, Chief Executive Officer, Society of Corporate 
  Compliance and Ethics, Minneapolis, Minnesota, October 5, 2011, 
  letter.........................................................   135
Straub, Frank G., Director, Department of Public Safety, 
  Indianapolis, Indiana, October 4, 2011, letter.................   137
Terwilliger, George J. III, Seth P. Waxman, Daniel J. Bryant, 
  Benton J. Campbell, Robert J. Cleary, Alice S. Fisher, Matthew 
  W. Friedrich, David N. Kelley, Wan J. Kim, Stuart A. Levey, Guy 
  A. Lewis, Daniel Marcus, William E. Moschella, Randoph D. Moss, 
  David W. Ogden, Robert Raben, Charles P. Rosenberg, Richard A. 
  Rossman, John R. Steer, Donald K. Stern, Johnny Sutton, Karen 
  P. Tandy, Larry D. Thompson, Carlyle P. Thorsen, Gregory A. 
  Vega, Alan Vingrad, Kenneth L. Wainstein, William W. Wilkens, 
  Jr., Christopher A. Wray, Attorneys, October 17, 2011, letter..   138
White, Mary Jo, Partner, Debevoise & Plimpton LLP, New York, New 
  York, October 6, 2011, letter..................................   142

                      WEDNESDAY, NOVEMBER 2, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................   145
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   151
    prepared statement...........................................   336

                               PRESENTERS

Cornyn, Hon. John, a U.S. Senator from the State of Texas 
  presenting Gregg Jeffrey Costs, Nominee to be District Judge 
  for the Western District of Texas..............................   149
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Jacqueline H. Nguyen, Nominee to be 
  Circuit Judge for the Ninth Circuit............................   146
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Gregg Jeffrey Costa Nominee to be District 
  Judge for the Southern District of Texas and David Campos 
  Guaderrama, Nominee to be District Judge for the Western 
  District of Texas..............................................   148

                                NOMINEES

Costs, Gregg Jeffrey, Nominee to be District Judge for the 
  Southern District of Texas.....................................   216
    Questionnaire................................................   218
Guaderrama, David Campos, Nominee to be District Judge for the 
  Western District of Texas......................................   259
    Questionnaire................................................   260
Nguyen, Jacqueline H., Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................   152
    Questionnaire................................................   154

                         QUESTIONS AND ANSWERS

Responses of Gregg Jeffrey Costa to questions submitted by 
  Senators Grassley and Klobuchar................................   322
Responses of David Campos Guaderrama to questions submitted by 
  Senators Grassley and Klobuchar................................   325
Responses of Jacqueline H. Nguyen to questions submitted by 
  Senators Grassley and Klobuchar................................   328

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Allan J. Joseph, Chair, Washington, DC:
    Gregg J. Costa, September 8, 2011, letter....................   333
    David Guaderrama, September 15, 2011, letter.................   334
    Jacqueline Nguyen, September 23, 2011, letter................   335
Japanese American Bar Association (JABA), Alison S. Matsumoto, 
  President, Los Angeles, California, statement..................   344
Jones Day, Elwood Lui, Los Angeles, California, October 3, 2011, 
  letter.........................................................   347
National Asian Pacific American Bar Association (NAPABA), Paul O. 
  Hirose, President; Tina R. Matsuoka, Executive Director; John 
  C. Yang, Co-Chair, Judiciary Committee; and Wendy Wen Yun 
  Chang, Co-Chair, Judiciary Committee, November 1, 2011, joint 
  letter.........................................................   349
O'Brien, Thomas P., Paul Hastings LLP, Los Angeles, California, 
  October 13, 2011, letter.......................................   353
Yang, Debra Wong, Gibson, Dunn & Crutcher LLP, Los Angeles, 
  California, October 17, 2011, letter...........................   355

                      WEDNESDAY, NOVEMBER 16, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   360
    prepared statement...........................................   503
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin......   357
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   509

                               PRESENTERS

McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri 
  presenting Brian Wimes, Nominee to be U.S. District Judge for 
  the Eastern and Western Districts of Missouri..................   358

                                NOMINEES

Keneally, Kathryn, Nominee to be Assistant Attorney General......   361
    Questionnaire................................................   363
Wimes, Brian C., Nominee to be U.S. District Judge for the 
  Eastern and Western Districts of Missouri......................   409
    Questionnaire................................................   410

                         QUESTIONS AND ANSWERS

Responses of Kathryn Keneally to questions submitted by Senator 
  Coburn, Grassley, Levin........................................   467
Responses of Brian Wimes to questions submitted by Senator 
  Coburn, Grassley, Klobuchar....................................   484

                       SUBMISSIONS FOR THE RECORD

Department of Justice, Taxes Attorney's, September 28, 2011, 
  joint letter...................................................   497
Gillibrand, Hon. Kirsten E., a U.S. Sentor from the State of New 
  York, statement................................................   501
Professional Organizations, Attorney's, September 28, 2011, joint 
  letter.........................................................   511

                       TUESDAY, DECEMBER 13, 2011
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......   522
    prepared statement...........................................   601
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   604
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................   521

                               PRESENTERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Paul T. Watford, Nominee to be U.S. 
  Circuit Judge for the Ninth Circuit............................   522

                        STATEMENT OF THE NOMINEE

Watford, Paul T., Nominee to be U.S. Circuit Judge for the Ninth 
  Circuit........................................................   524
    Questionnaire................................................   533

                         QUESTIONS AND ANSWERS

Responses of Paul T. Watford to questions submitted by Senator 
  Coburn, Grassley, Klobuchar....................................   573

                       SUBMISSIONS FOR THE RECORD

American Bar Association (ABA), Allan J. Joseph, Chair, 
  Washington, DC, October 17, 2011, letter.......................   598
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  prepared statement.............................................   599

                     ALPHABETICAL LIST OF NOMINEES

Costs, Gregg Jeffrey, Nominee to be District Judge for the 
  Southern District of Texas.....................................   216
Guaderrama, David Campos, Nominee to be District Judge for the 
  Western District of Texas......................................   259
Horowitz, Michael E., Nominee to be Inspector General, Department 
  of Justice.....................................................     5
Keneally, Kathryn, Nominee to be Assistant Attorney General......   361
Morgan, Susie, Nominee to be U.S. District Judge for the Eastern 
  District of Louisiana..........................................    53
Nguyen, Jacqueline H., Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................   152
Watford, Paul T., Nominee to be U.S. Circuit Judge for the Ninth 
  Circuit........................................................   524
Wimes, Brian C., Nominee to be U.S. District Judge for the 
  Eastern and Western Districts of Missouri......................   409


 NOMINATIONS OF MICHAEL E. HOROWITZ, NOMINEE TO BE INSPECTOR GENERAL, 
 DEPARTMENT OF JUSTICE; AND SUSIE MORGAN, NOMINEE TO BE U.S. DISTRICT 
              JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA

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                      WEDNESDAY, OCTOBER 19, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, Pursuant to notice, at 2:35 p.m., Room 
226, Dirksen Senate Office Building, Hon. Chris Coons, 
presiding.
    Present: Senators Grassley, Cornyn, and Lee.
    Senator Coons. Good afternoon, everyone. I'm pleased to 
call this nominations hearing of the Senate Committee on the 
Judiciary to order.
    I'd like to welcome each of the nominees, their families, 
and friends to the U.S. Senate and congratulate them on their 
nominations. I'd also like to welcome those of my colleagues 
who are here to introduce one of today's nominees.
    We have today two nominees, beginning with Michael E. 
Horowitz, nominated to serve as Inspector General for the U.S. 
Department of Justice. Mr. Horowitz currently serves as a 
partner in the Washington office of Cadwallader, Wickersham & 
Taft.
    We also welcome Donna Sue Morgan, or Susie, whom I've had 
the pleasure of just meeting, who's been nominated to serve on 
the District Court for the Eastern District of Louisiana. Ms. 
Morgan is currently a partner at the New Orleans office of the 
law firm of Phelps & Dunbar, and she will be introduced by her 
home State Senator and my friend, Senator Mary Landrieu.
    I know that my colleagues have busy schedules to attend to, 
so we will start a little bit out of order today with the 
introduction of our second panelist first.
    Senator Landrieu, please proceed.

PRESENTATION OF SUSIE MORGAN NOMINEE TO BE U.S. DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF LOUISIANA BY HON. MARY LANDRIEU, A 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Landrieu. Thank you, Chairman Coons, and thank you 
Senator Grassley and the members of the Committee for giving me 
the opportunity to present Mrs. Morgan to you. As long as I've 
known Susie I did not know her name was Donna Sue.
    [Laughter.]
    Senator Landrieu. So I've even learned something today that 
I didn't know.
    But Ms. Morgan and I have been friends for literally over 
30 years, so I've known her a long time. She is also known and 
so well-respected, Mr. Chairman, by so many members of the Bar 
in our State. I am just going to give a brief introduction 
because I know you have all the documentation before you.
    First, let me say that she's joined by her husband, Larry 
Feldman, and several close friends, including one of our mutual 
friends, the former Chief of Staff for Senator Bennett Johnson, 
who also knows this nominee very well.
    Susie has earned the support of both myself and Senator 
Vitter, who will I'm sure send a letter of support if he can't 
be here in person today. She has practiced for many years in 
State and Federal court, advocating for both plaintiffs and 
defendants. One of the things that gave me great confidence 
when I recommended Ms. Morgan and was pleased that the 
President nominated her is just her even-handedness, fair 
temperament, et cetera, which I think is important, Mr. 
Chairman, on the bench.
    She is a native of north Louisiana, received a Master's 
degree from the University of Louisiana at Monroe. She earned 
her law degree from Louisiana State, graduating in the top 5 
percent of her class with Honors. She clerked for one of our 
most respected Federal judges in the Fifth Circuit Court of 
Appeals.
    I could go on and on with many of her involvements in the 
legal community. One of the things she's most proud of, and I 
think it really stands out in showing you her leadership 
ability and her willingness to step up and do tough work, not 
just to be a leader that gets credit for the easy things, but 
Susie led, and it took her almost 14 years.
    She chaired the Rules Committee for the Louisiana Bar 
Association, the Louisiana Supreme Court, and thanks to her 
leadership the Louisiana Supreme Court agreed to replace the 
antiquated system where each judicial district in Louisiana 
adhered only to its own set of court rules, and she helped to 
lead and implement a standardized set of rules for all the 
courts in Louisiana. That is tough work, doesn't get a lot of 
headlines for the general public. But of course for the lawyers 
and for the plaintiffs and defendants that use the system, it's 
important.
    She's always been a very strong voice for women lawyers, 
which I so appreciate, in advancing their opportunities and 
careers. After Hurricane Katrina and Rita in our district, she 
rallied the community to support so much of the legal 
community, or people that needed the help of the legal 
community after that disaster.
    So I submit to you Mrs. Susie Morgan for the District 
Court. I have every confidence that she will do an outstanding 
job and that she meets all the criteria and qualifications that 
this Committee and our country depend on to do an excellent job 
at the Federal bench. I will be happy to answer any questions 
or provide any other additional comments.
    Senator Coons. Thank you, Senator Landrieu.
    I believe we'll hold the record open for a week in the 
event that Senator Vitter also wants to join you in your very 
compelling introduction of your professional and personal 
friendship with Ms. Morgan.
    I know you have pressing business to attend to, so Senator 
Landrieu, thank you very much for joining us this morning to 
introduce our nominee.
    Senator Landrieu. Thank you, Mr. Chairman.
    Senator Coons. I'd now like to move to invite Mr. Horowitz 
to come forward, and I'll begin with an introduction of Mr. 
Horowitz, if I might.
    Mr. Horowitz is currently a partner, as I mentioned, in the 
Washington, DC office of Cadwallader, and during his years 
there he's also served as a Commissioner on the U.S. Sentencing 
Commission.
    Prior to joining the firm of Cadwallader, Wickersham & 
Taft, Mr. Horowitz spent 3 years in the Criminal Division of 
the Department of Justice, where he served as a Deputy 
Assistant Attorney General and Chief of Staff to two Assistant 
Attorneys General, James Robinson, a Clinton appointee, and 
Michael Chertoff, a Bush appointee.
    He previously spent 8 years as a Federal prosecutor in the 
Southern District of New York, where he was Deputy Chief of the 
Criminal Division and Chief of the Public Corruption Unit. He 
began his legal career as an associate at Devilbois & Plimpton, 
and clerked for Judge Davies of the U.S. District Court for the 
Central District of California. Born in New York City, Mr. 
Horowitz earned his B.A. summa cum laude from Brandeis 
University, and his J.D. magna cum laude from Harvard Law 
School, where he was executive editor of the Harvard Civil 
Rights and Civil Liberties Law Review.
    Welcome, Mr. Horowitz.
    Mr. Horowitz. Thank you, Mr. Chairman.
    Senator Coons. Please proceed with your statement.
    Mr. Horowitz. Thank you.
    Senator Coons. I need to swear him, don't I? Yes, I do. 
Thank you. Forgive me. I was confused by the header which says 
``opening statement.'' That's for me, not for you.

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

    Senator Coons. Before we begin your testimony, Mr. 
Horowitz--forgive me. I'd like to take a moment to highlight 
the importance of the respective roles of our two nominees 
today. The Office of Inspector General is charged with 
conducting independent investigations of Department of Justice 
personnel and programs to detect and deter waste, fraud, abuse, 
and misconduct and promote integrity, economy, efficiency, and 
effectiveness in DOJ operations.
    The Office of the Inspector General is within the executive 
branch, but for it to function properly it must also be 
independent from it. When the Inspector General steps in it's 
because of a potential political or personnel conflict which 
may prevent the normal supervisory structure from operating 
free of bias. Our Federal laws bestow the IG with formal 
independence. It takes, however, a special personality to 
shield one's self effectively from the inevitable political 
pressures that are unavoidable in investigating sensitive and 
controversial allegations within such an important agency as 
the Department of Justice.
    We rely on Inspector Generals to uncover and report truths 
that can be tough to learn, but that we must learn if we hope 
to form a more perfect union and have a more effective Federal 
Government. The Inspector General's 2008 report within the 
Department of Justice, covering the improper dismissal of nine 
U.S. Attorneys, for example, provided factual background for a 
vigorous public debate surrounding the importance of keeping 
politics out of prosecutorial discretion, and the Office of the 
Inspector General also shed critical light on national security 
letter abuses by the FBI, which led to the FBI revising its 
internal controls.
    The IG conducts regular oversight which requires diligence, 
tenacity, competency, and fairness. The IG's reports ensure 
fairness in grant awards, proper information security 
practices, and integrity in procurement.
    I look forward to hearing from Mr. Horowitz, who comes 
highly recommended regarding his qualifications to be IG, and 
what principles he would use to guide that office if he were to 
be confirmed.
    I also look forward to hearing from Ms. Morgan, Susie, who 
is nominated to serve as the District Court judge in the 
Eastern District of Louisiana. Our vacancy rate today stands at 
over 10 percent, and many of our judicial districts are in 
crisis. I hope that my colleagues will move quickly to confirm 
qualified nominees and bring down the vacancy rate. In my view, 
Ms. Morgan, I sincerely hope you, if confirmed, will continue 
in the long and honorable traditions of the Federal bench.
    Senator Grassley, do you have any statements at this time?

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

    Senator Grassley. I welcome both of our nominees, and will 
talk about the Office of Inspector General conducting 
independent investigations, audits, inspections, special 
reviews of the U.S. Department of Justice personnel and 
programs to deter and detect waste, fraud, abuse, and 
misconduct and to promote integrity, economy, efficiency, and 
effectiveness in the DOJ operation.
    The fundamental requirement of this office and other 
Inspectors General is independence. The IG must not be swayed 
by political affiliation, loyalty to institutions, personal 
friendship, or concern about personal popularity or potential 
embarrassment to colleagues in the Department. That is true 
whether you are a Republican or Democrat nominee.
    I have discussed this in a long visit that I had with Mr. 
Horowitz, and I hope that he knows my concerns, and I think he 
does. Much of the hearing today, and any follow-up, will be to 
establish a record on willingness and ability to maintain that 
independence.
    In addition, we'll be considering the nomination of Susie 
Morgan to be U.S. District Judge for the Eastern District of 
Louisiana. The seat to which Ms. Morgan is nominated became 
vacant upon the removal of Judge Thomas Porteous following his 
impeachment. It gives me an opportunity to comment on the 
necessity of our looking very closely at nominees, with no 
intimidation toward Susie, our nominee today.
    Judge Porteous was one of seven judges nominated on August 
25, 1994. A hearing was held just 16 legislative days later. 
All seven nominees were reported by the Committee later that 
same day. The very next day, October 7th, the judge was 
confirmed by voice vote, along with 20 other judicial nominees. 
Clearly, this nomination, along with others, was on a fast 
track.
    We have no way of knowing whether the impeached judge would 
have been avoided had more time been spent on reviewing the 
nomination. However, I think that the compressed timeframe and 
irregular process was not helpful, nor should it be repeated. 
There is a reason that we take time to thoroughly review a 
nominee's record.
    Following a hearing, Senators are entitled to review the 
hearing record and responses to follow-up questions. This is 
why we routinely ask for the full period of consideration 
before reporting a nomination to the Senate. Once on the Senate 
floor, Senators then should be afforded time to review the 
nomination. Confirmation for lifetime appointments simply 
should not be rushed through the process.
    Today marks the 16th nomination hearing held in this 
Committee this year. We will have heard from 66 judicial 
nominees. All in all, 85 percent of President Obama's judicial 
nominees have received a hearing from this Congress. When my 
colleagues want to compare the pace of confirmations, I note 
that at this point in President Bush's presidency, only 78 
percent of his nominees had a hearing.
    Thank you very much.
    Senator Coons. Thank you, Senator Grassley. I certainly 
agree with your sentiments that it is important that we review 
closely nominees for Article 3 lifetime appointments to the 
bench. I am grateful that we have the opportunity for a good 
and thorough hearing today.
    I now would like to invite Mr. Horowitz to please stand and 
raise your right hand, if you would.
    [Whereupon, the witness was duly sworn.]
    Senator Coons. Thank you, Mr. Horowitz. Let the record show 
the nominee has been sworn and taken the oath.
    Mr. Horowitz, I welcome you to acknowledge and introduce 
any family members or friends you have here with you today, and 
then give us your statement.

   STATEMENT OF MICHAEL E. HOROWITZ, NOMINEE TO BE INSPECTOR 
                 GENERAL, DEPARTMENT OF JUSTICE

    Mr. Horowitz. I have, fortunately, family members and 
friends with me today. My wife, Alexandra; my son, Frederick; 
my daughter, Clia; my mom, Anne; and my in-laws, Sandra and 
Charles Kauffman; and some family friends from New York where I 
grew up, Milton and Janet Leiberman. Thank you.
    Senator Coons. Thank you.
    Mr. Horowitz. Mr. Chairman, Ranking Member Grassley, 
members of the Committee, thank you for the honor of appearing 
before you today as the nominee of President Obama to serve as 
the Inspector General of the Department of Justice. It is an 
extraordinarily important position, particularly at this moment 
in time where the need to eliminate waste, fraud and abuse and 
to promote integrity and efficiency has never been greater.
    I am confident that my investigative, audit, and management 
expertise in the public and the private sector will enable me 
to undertake these challenges successfully. I will, if 
confirmed, exercise my duties with the same independence that I 
believe I've demonstrated throughout my career and abide by the 
bedrock principle that Federal District Court Judge John G. 
Davies instilled in me as his law clerk 24 years ago, that 
those involved in our justice system must faithfully follow the 
Constitution and the law and that ideology, partisanship, 
politics, and favoritism have no role whatsoever.
    That wisdom, imparted upon me by Judge Davies, served me 
well as a prosecutor in the Southern District of New York, 
where I ultimately became the Chief of the Public Corruption 
Unit. I was entrusted with some of the office's most sensitive 
cases and worked regularly with Federal, State, and local 
Inspectors General, including the Justice Department Inspector 
General.
    We tenaciously followed the evidence wherever it brought us 
and all too often exposed extraordinary abuses of the public 
trust. For example, in Manhattan's 30th precinct I helped 
uncover one of the largest police corruption cases in New York 
City's history.
    On another occasion, I used the RICO statute, the 
racketeering laws, to prosecute a company and its officers who 
had defrauded the New York City school system and put 
children's health at risk by falsely claiming to be able to do 
asbestos abatement work, which it could not do.
    On another occasion, at the then Immigration and 
Naturalization Service, I led an investigation that arrested 33 
people, including 7 INS employees, for taking over $100,000 in 
bribes in return for the issuance of green cards that should 
never have been given out.
    The work in the Corruption Unit wasn't always popular, 
particularly when we were arresting law enforcement officers 
who were working on cases in our own office with other units. 
But I wasn't interested in winning popularity contests as the 
head of the Corruption Unit. I was instructed by the U.S. 
Attorney to doggedly pursue corruption, to be independent of 
the other units in the office, and that's precisely what I did.
    In many instances, our cases relied heavily on the truth-
tellers, those employees who were willing to step forward to 
report on corruption in their midst. As a result, I understand 
the importance of encouraging employees to report suspicious 
activity, of taking whisteblower claims seriously, and of the 
need to protect them from retaliation. It is a respect that 
will serve me well, if I am confirmed as the Inspector General.
    Over the past 9 years, my work in private practice has 
involved, among other things, conducting independent internal 
investigations, working with compliance officers to investigate 
employee whisteblower allegations, and to protect them from 
retaliation and drafting compliance and ethics programs.
    Many of these matters involve financial fraud and 
corruption allegations, and as a result I work closely with 
internal auditors, outside forensic accountants, and audit 
committees. If confirmed, I will use this public and private 
sector experience to oversee and office that aggressively 
pursues investigations, that makes its decisions based solely 
on the facts and the law, that conducts thorough and 
comprehensive audits, and that issues reports that fairly, 
fully, and accurately reflect its findings.
    I also will work tirelessly to protect the office's 
independence and to fulfill the office's statutory dual 
reporting obligations to the administration and to the Congress 
by being responsive and by providing timely and reliable 
information.
    My college alma mater, Brandeis University, has as its 
motto, ``Truth even unto its innermost parts.'' It's a creed 
that I intend to live by, if I am confirmed as Inspector 
General.
    I have been asked by family and friends why I'm prepared to 
leave my law practice to return to the Department of Justice, 
and the answer to that question for me is easy: because of my 
love for public service and for our country, and because of my 
deep affection for the Department of Justice. The Department is 
much more than just another Federal agency, it is a guardian of 
our system of justice and is responsible for enforcing our laws 
fairly, without bias, and above all with the utmost of 
integrity. The Inspector General plays a critical role in 
fulfilling that mission and I pledge that, if confirmed, these 
values will be the basis for any and all decisions that I make.
    Thank you for your time, and I look forward to answering 
any questions that you may have.
    [The prepared statement of Mr. Horowitz appears as a 
submission for the record.]
    Senator Coons. Thank you very much.
    We will now begin 5-minute rounds of questions.
    I wanted to begin by just noting that the Committee has 
received a range of very notable letters of support for your 
consideration of your nomination from previous Inspectors 
General at the Department, from 29 different legal 
professionals who have served in both Republican and Democratic 
administrations, and a particularly strong one from Michael 
Chertoff, whom you worked with when he was Assistant Attorney 
General in the Criminal Division under President Bush, who 
wrote that you are an outstanding attorney and public servant 
who's served in both Democrat and Republican administrations 
and demonstrated your absolute impartiality and independence, 
and your integrity is beyond reproach.
    I'll ask unanimous consent that these letters be entered 
into the record at the conclusion of this hearing.
    [The letters appear as a submission for the records.]
    Senator Coons. I'd be interested in hearing you talk a 
little bit further. You mentioned your deep affection for the 
Department of Justice, that being a motivating reason for 
leaving a successful, vibrant, private sector law practice at a 
firm.
    Given that you spent years at the Justice Department, can 
you assure the Committee that you will have sufficient distance 
from your former colleagues to, if required, which it 
inevitably will, investigate their professional behavior and 
execute on the role of the IG, and how does your previous 
experience in the Public Corruption Unit in New York allow us 
to have any confidence about your ability to do that?
    Mr. Horowitz. I absolutely make that commitment, Mr. 
Chairman. I think my experience--it's not just the words that 
I've mentioned, but I think my deeds will back that up, or have 
backed that up, in the U.S. Attorney's Office in New York as a 
corruption prosecutor.
    I mentioned an instance where we arrested several law 
enforcement officers, who at the time we arrested them were 
about to be the key witnesses in a major drug case that another 
prosecutor in the office was about to give an opening statement 
on. As you might imagine, that caused some concern in the 
office among other parts of the office, but nevertheless the 
U.S. Attorney completely supported what we were doing, expected 
us, as I said, to be entirely nonpartisan and independent of 
the other unit in the office.
    In another instance, I was the lead prosecutor before I 
came down to main Justice on the Teamsters investigation that 
resulted in the arrest of several individuals connected to the 
election in the mid-1990s at the Teamsters that resulted in Ron 
Carey's reelection. That matter was handled by our Civil 
Division in our office.
    Our investigation resulted in the arrest of several people 
connected to his campaign and resulted in the election being 
thrown out that our office had obviously spent a considerable 
amount of time handling. But again, the message we had was, you 
make the decisions, you follow the evidence in the law, you do 
so with impartiality, and the results are the results. Wherever 
the chips fall, they fall.
    I've continued that, working in private practice for audit 
committees and doing independent investigations on several 
occasions having to make recommendations about misconduct by 
individuals that we were working with, but that was the 
responsibility that I was asked and instructed to do by the 
audit committees, by the clients, and that's what I did.
    Then finally, on the Sentencing Commission, I was in 
private practice at the same time because it was a part-time 
position by statute, and we, on several occasions, adopted 
increases in penalties that I can tell you were not welcomed in 
the defense bar, but nevertheless we did what we thought was 
right and had to do. I heard many comments from colleagues 
about that, but nevertheless it was what I was sworn to do and 
the oath I took, and that would be the same oath I take here 
and pledge to you.
    Senator Coons. If you are to be confirmed, how would you 
avoid, going forward, political pressures, either within the 
Department or from elsewhere, to dispose of troublesome 
investigations or to ignore uncomfortable facts? I know you've 
got experience in that, but what would you actually use to 
sustain you in that very difficult work?
    Mr. Horowitz. Well, I think one of the things that's very 
important is to understand the Inspector General isn't the only 
person in the office. It's an office of about 450 people, 
people with deep working relationships and understandings of 
the Department, who have been there a long time. I think it's 
safe to say many--I think most people would agree Glenn Fine 
and Mike Bromwich, and others before him, built an outstanding 
office with outstanding people.
    So one of the things to do is to understand that, as 
Inspector General, you need to listen to the people you're 
working with and make sure they have the authority to do the 
investigations and make sure you're not interfering with the 
investigations, but supervising, oversee it, and giving 
direction. So that's, I think, a significant part of how you do 
things and make sure you follow through and do things fairly 
and honestly.
    Senator Coons. And what do you think--my last question. 
What do you think are the most important characteristics for an 
effective Inspector General, in addition to listening well?
    Mr. Horowitz. Well, I think, first and foremost, is 
independence and the ability to operate independently. I think 
as well, as with any corruption prosecutor, the ability to 
think creatively and to be tenacious. These are not easy 
matters to investigate, cases to make. There are people 
involved who, in most instances--for example, in investigating 
law enforcement officers, they went in to do right and turned 
bad in the job. They didn't go in to steal. Something turned 
them. So you've got to be prepared to think creatively, be 
tenacious. Never say something's impossible, because the one 
thing I learned as a corruption prosecutor, anything is 
possible. People in authority can do things improperly.
    Then finally, given the issues as to the budget, I think 
it's very important for an Inspector General to go in, to be 
able to work with auditors, to push them, to pursue waste, 
fraud and abuse, and that's something that I think is going to 
be a very important part of this job.
    Senator Coons. I couldn't agree more.
    Senator Grassley.
    Senator Grassley. Yes. My questions would follow along the 
lines that we talked about in our private conversation in my 
office. I heard what you said in your opening statement and I 
heard everything that you've answered here for Senator Coons, 
and that gives me a great deal of satisfaction.
    But I want to be a little more direct. For instance, in 
private practice you indicated that you had worked with the 
Attorney General's current chief of staff--and I ask these 
questions because of Fast and Furious--and that you had 
contacts with him about your nomination. There are serious 
questions about exactly what this chief of staff knew and what 
he may have told the Attorney General about Fast and Furious.
    You wrote a letter in support of Lanny Brewer to be head of 
the Criminal Division. Briefly, how long have you known him? 
These can be short answers if you want them.
    Mr. Horowitz. Right. Sometime after 1999, when I came down. 
I believe he was in private practice by then.
    Senator Grassley. OK.
    You indicated that you have followed the Fast and Furious 
news reports. Based on what you know publicly, do you believe 
that, if confirmed, you will have to investigate some of your 
friends and former colleagues? For instance, Mr. Brewer or 
Attorney General's chief of staff, Gary Grindler?
    Mr. Horowitz. I intend, if confirmed, Senator, to pursue 
every avenue in that case no matter who's involved. It's clear 
to me that there are numerous people at various levels of the 
administration that are--that have had questions raised, and I 
will pursue them vigorously and fully, and the office will do 
that.
    Senator Grassley. OK.
    I think you answered my next question, so let me make a 
statement. I think your statement is to assure us that you 
would investigate these individuals independently and 
impartially, despite your previous subordinate interaction with 
them.
    Mr. Horowitz. Absolutely, Senator.
    Senator Grassley. As you know, the Office of Inspector 
General recently provided copies of some secretly recorded 
audiotapes to the U.S. Attorney's Office in Arizona. On the 
tapes, the cooperating gun dealer in Fast and Furious and the 
ATF case agent are talking about my oversight work, and other 
conversations that the U.S. Attorney's Office and the ATF had 
about what to say in response to all the questions from 
Congress. And by the way, they don't like me. That's what I 
deduced from it.
    Mr. Horowitz. I've only read the transcript. I haven't 
listened to the tape yet, Senator.
    Senator Grassley. So based on that, do you understand how 
it interferes with our Congressional inquiry to provide 
evidence like this directly to the very office we're 
investigating?
    Mr. Horowitz. Senator, I understand the significance of 
that issue and read about it. Let me just briefly mention, I 
had a similar scenario to have to deal with in the 30th 
Precinct investigation I dealt with in New York, where we were 
investigating police officers that the District Attorney's 
Office were relying on, other parts of the office were relying 
on. I clearly understand the need to be sensitive to other 
matters going on and think very carefully, step by step, before 
taking action.
    Senator Grassley. Yes. To continue on this same line about 
the tapes, the office cited discovery obligations to criminal 
defendants. But does that require that the evidence be turned 
over immediately, even before the inquiry is complete?
    Mr. Horowitz. What I can tell you is, in the cases I've 
dealt with where that situation arose, oftentimes I've reached 
out to the defense lawyer and the judge to talk about the 
timing of the production and try and work out an arrangement 
that allowed our investigation to continue while ensuring that 
any constitutional obligations were not violated. So I would 
certainly approach these matters with that kind of sensitivity.
    Senator Grassley. So that kind of is like you're saying 
indirectly that they probably gave these tapes too soon to the 
people down there.
    Mr. Horowitz. Well, I'm hesitant to answer specifically as 
to this, Senator----
    Senator Grassley. That's OK.
    Mr. Horowitz.--because I don't know the facts. I've simply 
read about the tape question.
    Senator Grassley. OK.
    What steps would you take, if confirmed, to ensure better 
cooperation and coordination with parallel Congressional 
investigations?
    Mr. Horowitz. In my mind, Senator, it's very important that 
both investigations obviously be respected and the independence 
of both investigations be respected, but that doesn't mean that 
you go forward without recognizing the legitimacy of the other 
investigation and working carefully to ensure that both 
investigations can successfully proceed, and neither hurts the 
other. It's got to be done carefully, but that's certainly 
something I'm sensitive to.
    Senator Grassley. The Office of Inspector General currently 
does not have jurisdiction to investigate allegations of 
misconduct by attorneys at the Department of Justice. Rather, 
that jurisdiction falls to the Office of Professional 
Responsibility, which reports directly to the Attorney General. 
Former Inspector General Glenn Fine said that this creates a 
conflict of interest. So my question to you: do you support 
extending the jurisdiction of the Office of Inspector General 
to include attorney misconduct?
    Mr. Horowitz. I've talked with Glenn about that issue. I 
think it's a very significant issue. The only hesitancy I have 
with answering that right now, is I feel I'd have an obligation 
to speak with the other people in the office to get their views 
before I reached a decision on that. But I have read the 
transcript of the hearing, I've read his testimony, I've talked 
to him personally about this. I know how strongly he feels 
about it and I understand why. He's concerned that this is the 
only department in the government that doesn't have that 
authority.
    Senator Grassley. Thank you. I'll have a second round.
    Senator Coons. Thank you, Senator Grassley.
    Senator Cornyn.
    Senator Cornyn. Mr. Horowitz, welcome.
    Mr. Horowitz. Hi. Thank you, Senator.
    Senator Cornyn. And thank you for your willingness to 
serve. Congratulations to you and your family.
    I also want to follow up on some of our conversation we had 
in my office, and thank you for coming by and answering those. 
But just so we can put this in context, other than the 
Inspector General, which serves at the pleasures of the 
Attorney General himself and the President, I think people are 
familiar with the role of Special Counsel, which is also an 
office within the Department of Justice, presumably reports to 
the Attorney General himself, but has some measure of 
independence. That was actually--the independent counsel 
position that actually preceded that was allowed to expire by 
bipartisan support in Congress because of concerns on both 
sides of the aisle about overreaching that occurred, the 
tremendous pressure on an independent counsel to come up with 
some indictment of someone somehow for something.
    Mr. Horowitz. Right.
    Senator Cornyn. But I want to ask you about the--your level 
of independence. I have great respect for the legal profession, 
and I heard what you said about your commitment to the law and 
to the facts. But can you explain to everyone listening how--if 
ultimately Attorney General Holder and the President himself 
can terminate you, how do you reconcile your independence with 
that fact?
    Mr. Horowitz. I appreciate that concern and that issue, 
Senator. I can tel you from my standpoint, I'm interested in 
this job and interested in serving because of the independence 
in a significant way. If I felt that my independence was being 
limited in a way that I thought was inappropriate I wouldn't be 
interested in serving, or continuing to serve. It's----
    Senator Cornyn. You'd quit?
    Mr. Horowitz. I presumably would quit. I'm obviously not 
committing to doing anything until a situation arose, but I've 
been in the Department in both administrations and have worked 
with people who made it clear that they would be willing to do 
that in an appropriate circumstance. So I don't think it's just 
an Inspector General, but I understand how it arises even in a 
greater context with an Inspector General.
    Senator Cornyn. As you know, the Fast and Furious debacle 
came to the public's attention generally when Brian Terry, a 
Border Patrol agent, was killed using one of these 2,000 some-
odd firearms that were bought in the United States but then 
allowed to walk without the Bureau of Alcohol, Tobacco and 
Firearms Agency even knowing where they were going.
    Then apparently Attorney General Holder, sometime in 
February-March 2011 timeframe, requested the Acting Inspector 
General to do an investigation of this. Of course, we're still 
waiting. That was some seven or 8 months ago.
    While the properly functioning Inspector General's Office 
is important to maintaining the public's confidence in the 
proper operation of the Department of Justice and 
accountability, it strikes me as a concern that if in fact an 
Inspector General's report can--investigation can continue ad 
infinitum, that there is some obligation to bring it to a 
reasonable conclusion, or at least provide some sort of interim 
report so it doesn't look like people are waiting for the next 
election or some other event for it to occur, which would seem 
to undermine the credibility of the investigation.
    Would you care to comment on that?
    Mr. Horowitz. Senator, in almost every context I've ever 
worked in at the Department of Justice, justice delayed is 
justice denied. Delay is rarely to the benefit of anybody who's 
doing an investigation, and that's why I mentioned timely 
reporting in my opening statement because I do care about that, 
and I think it's very important, particularly in an Inspector 
General position, as you said, that the Congress, the public, 
the administration gets timely reports.
    Senator Cornyn. If the trail in your investigation, once 
you're confirmed, would lead to the Deputy Attorney General or 
the Attorney General himself, would you follow this to the end 
of that trail?
    Mr. Horowitz. Absolutely, follow wherever the facts lead, 
Senator.
    Senator Cornyn. What would be a legitimate reason for the 
Department of Justice to refuse to turn over a document or 
provide a witness for a--to a Congressional investigation of 
this matter?
    Mr. Horowitz. On this matter? On the Fast and Furious 
matter? Senator, I probably would have to understand more about 
what the request involved. And I have, at this point, only 
looked at what's public, including the reports of Senator 
Grassley and Chairman Issa. But without understanding better 
perhaps what the request was, I could foresee circumstances--
grand jury information for example, is by statute confidential. 
So I think it would, for my mind, turn on what the specific 
request was. But I'd need to know, I think, a little bit more.
    Senator Cornyn. And finally, do you see any reason why the 
Department can't, or shouldn't, cooperate with a legitimate 
congressional investigation while simultaneously conducting its 
own investigation through the Office of Inspector General?
    Mr. Horowitz. To my mind, Senator, that's something that 
the Inspector General's Office should try to do, and I would 
try to do that, and commit to you I will do that.
    Senator Cornyn. Thank you, Mr. Horowitz.
    Mr. Horowitz. Yes.
    Senator Coons. Senator Lee.
    Thank you, Mr. Horowitz. We'll go to a second round of 
questions.
    To the question about timeliness and swiftness on the 
shortness of justice, if you would, you mentioned a number of 
compelling fact patterns of how aggressively you pursued 
investigations when you were leading the public Corruption 
Unit, even those that were uncomfortable or difficult for the 
broader objectives either of NYPD or the U.S. Attorney's 
Office.
    I think you referenced one where you executed arrest 
warrants on law enforcement officers who were scheduled to be 
the opening witnesses in a major--tell us a little bit more 
about the facts of that particular case, if you would.
    Mr. Horowitz. Yes. That case involved three officers 
assigned to an elite drug enforcement task force in New York 
that were arrested for stealing drugs and being involved in 
drug dealing themselves. They--we learned about that 
information. That's obviously the kind of thing you need to 
bring to a conclusion quickly.
    You can't have people with badges and guns going around 
when you know what they're doing, conduct such as that. And so 
our obligation was to swiftly get to the end point, but at the 
same time make sure you had a good case, a case that could 
stand up in court. So that's the balance that has to go on, but 
you have to move quickly.
    Senator Coons. And what impact did your proceeding swiftly 
and executing those arrest warrants have on the narcotics case 
where those officers were signature witnesses?
    Mr. Horowitz. We decided the case was ready to be taken 
down and it didn't matter that it was the day before the 
opening statements in the other trial, or the day of the 
opening statements. I can't remember which it was. That was a 
case where it was clear the arrests had to be made and that was 
the right outcome. It didn't matter what the impact was on the 
other case.
    Senator Coons. You also referenced a broad procurement 
fraud issue.
    Mr. Horowitz. Right.
    Senator Coons. I think you said you deployed--you used the 
RICO statute in order to prosecute--investigate and prosecute a 
New York City Schools procurement fraud case.
    Mr. Horowitz. Correct.
    Senator Coons. And you also referenced some immigration or 
INS bribes----
    Mr. Horowitz. Right.
    Senator Coons.--for improper issuance of green cards. Tell 
us anything else if you could that would give the Committee 
some reassurance about your insistence, your independence, your 
doggedness as a prosecutor, particularly in these corruption 
cases, that may speak to some of the questions that have been 
asked here today.
    Mr. Horowitz. Well, a particularly good example comes again 
out of the 30th Precinct investigation that I did. We had a 
situation where we had first--what became the first take-down 
in September 1994, and arrested several officers. Many people--
and a very successful case. Many people wanted us to shut it 
down. We had good press, we had arrests, they were good cases, 
and that should be it. No more embarrassment. We had evidence 
that others were involved but we needed more time to make those 
cases.
    Fortunately, the police commissioner at the time, 
Commissioner Bratton, and our U.S. Attorney agreed that we 
should be allowed to continue. We did. Six months later we took 
down a sergeant who had been training new officers and the 
Assistant Integrity Control officer in the precinct. Those 
people would have been allowed to stay had we not fought to do 
the continuation on the investigation, but instead shut it down 
simply because there was nice press and it was time to move 
forward.
    Senator Coons. And if you'd been in a position where you 
hadn't had the support of the folks you referenced who 
supported your continuing these very controversial 
investigations, if you hadn't had their support and they had 
insisted on your stopping when you had evidence of further 
wrongdoing, what action might you have taken?
    Mr. Horowitz. I would have certainly seriously considered 
resigning from my position as head of the Corruption Unit. I 
don't think you can have evidence like that, believe you need 
to continue, and continue sitting in that position.
    Senator Coons. I just want to say thank you--I will turn to 
Senator Grassley, if he has additional questions--for your 
willingness to serve and for your bringing such a rich, broad 
range of experience to bear.
    Senator Grassley.
    Senator Grassley. Senator Lee, I have to be with Senator 
Landrieu at 3:30. Could I go ahead of you?
    Senator Lee. Yes.
    Senator Grassley. OK.
    I think I'm going to just ask one question, but it's kind 
of a long question. I think you and I talked about my 
authorship of the False Claims bill. It is my hope that, as 
Inspector General, that you would also vigorously support the 
False Claims bill, and particularly the qui tam provisions.
    Could you inform the Judiciary Committee of your 
experience, if any, with the False Claims Act?
    Mr. Horowitz. My experience, Senator, has been somewhat 
limited with the False Claims Act and the qui tam statute. I've 
been involved with clients who have had issues that I wasn't 
directly handling, was present for some meetings where those 
cases were discussed, but I was never the lead lawyer on the 
civil side on those matters. I was involved in some of the 
discussions concerning interactions with the government that 
were related to those cases.
    Senator Grassley. OK.
    Without violating any client-lawyer relationships you have, 
have you ever advised any corporation about retaliation cases 
under 31 U.S.C. 3738, the anti-retaliation portion of False 
Claims? If so, what did you advise the corporation?
    Also, have any clients you represented been accused of 
violating that section during the course of your 
representation, and have you ever advised a client to take any 
personnel action which could be viewed as adverse against any 
qui tam relator?
    Mr. Horowitz. I have not, Senator. I have not been--no to 
all three questions.
    Senator Grassley. OK.
    Have you ever found yourself under pressure by a corporate 
client to discredit a whisteblower rather than investigate 
their claim, and if so, how did you respond to the pressure?
    Mr. Horowitz. I have not, Senator. In fact, I've counseled 
clients in the other direction, which is to take the claim 
seriously and to pursue them vigorously.
    Senator Grassley. Do you have any question as to the 
constitutionality of the False Claims Act and the qui tam 
provision?
    Mr. Horowitz. None, Your Honor--none, Senator.
    Senator Grassley. As Inspector General, would you 
vigorously police enforcement of the False Claims Act?
    Mr. Horowitz. Absolutely.
    Senator Grassley. Will you oppose any--I'm sorry that I'm 
smiling, but I ask these questions of everybody from the 
Justice Department.
    Mr. Horowitz. It's OK. Completely understand, Senator.
    Senator Grassley. Will you oppose efforts within the 
Justice Department to weaken the False Claims Act and its qui 
tam provision?
    Mr. Horowitz. To the extent I was asked, Senator, I'd 
obviously want to understand what was going on there, but I'm 
guessing that issue wouldn't arise before the Inspector 
General. But what I can assure you, is I would learn and 
understand what was involved, and certainly anything that dealt 
with retaliation against whisteblowers, I would care deeply 
about.
    Senator Grassley. OK.
    And the last portion here, and then I'll quit. Would you 
agree to promote a close working relationship between qui tam 
relators' counsels and the Justice Department for the purpose 
of establishing the public/private relationship envisioned--
that I envision of the False Claims Act?
    Mr. Horowitz. To the extent, Senator, that the Inspector 
General's Office was involved in that, I'd certainly--that's 
something certainly I'd be willing to be involved with.
    Senator Grassley. Thank you very much.
    Mr. Horowitz. Thank you, Senator.
    Senator Grassley. I wish you well.
    Mr. Horowitz. Thank you.
    Senator Coons. Well, thank you, Senator Grassley.
    Senator Grassley. I want to apologize to Ms. Morgan. I have 
to go to be with your Senator Landrieu on some foster kid cases 
that we work on.
    Senator Coons. Thank you for joining us today, Senator 
Grassley. We'll do our best to carry on.
    I just want to say in closing, if I could, Mr. Horowitz, my 
thanks to your family, your in-laws, your mother, your friends, 
to Alexandra, and to Frederick and Claire, for being so good 
during the hearing and for answering--I have small children of 
my own.
    [Laughter.]
    Senator Coons. I am grateful for your appearance and 
testimony before this Committee today. You're excused, and we 
will move to our second panel.
    Mr. Horowitz. Thank you, Mr. Chairman.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Coons. I'd now like to invite Ms. Morgan to come 
forward. Please raise your right hand and repeat after me.
    [Whereupon, the witness was duly sworn.]
    Senator Coons. Thank you, Ms. Morgan. Let the record 
reflect the witness has been sworn, taken the oath.
    Ms. Morgan, I'd encourage you to introduce any members of 
your family or friends who might be with you and then proceed 
with your statement.

 STATEMENT OF SUSIE MORGAN, NOMINEE TO BE U.S. DISTRICT JUDGE 
             FOR THE EASTERN DISTRICT OF LOUISIANA

    Ms. Morgan. First, I'd like to introduce my husband, Larry 
Feldman. Stand up. Larry's a distinguished trial attorney in 
Louisiana in his own right, and a past president of the 
Louisiana State Bar Association. I'm very proud of him. I'd 
also like to introduce my friend Margaret Shehee from 
Shreveport, Louisiana. I appreciate her being here. And my 
friends, Charlie McBride and Peggy DeBell, who are from 
Washington, DC. I appreciate all of them being here to support 
me. Our daughters are at home watching on the webcast: Summer, 
Erin, and Jill. They couldn't be here today, but they certainly 
are watching the proceedings with interest.
    Senator Coons. Wonderful.
    Ms. Morgan. I'd like to thank the Committee for scheduling 
my hearing. I'd like to thank Senator Landrieu and Senator 
Vitter for their support, and the President for his nomination.
    Senator Coons. Do you have any statement you'd like to 
share with us, Ms. Morgan?
    Ms. Morgan. That's all.
    Senator Coons. Thank you.
    Senator Landrieu gave a thorough and encouraging 
introduction, a review of your professional experience and 
career. I'd appreciate your beginning our first round of 
questions by just briefly describing your judicial philosophy.
    Ms. Morgan. Well, I believe that the judge's role is to 
apply the law to the facts and to be fair and impartial, and 
that the judge's opinions and personal preferences play no role 
in that process, and I believe that Federal judges must be sure 
that they decide only the issues before them and that they 
narrow their rulings in that manner.
    Senator Coons. As a District Judge, how would you see your 
role in ensuring fair access to our legal system and what prior 
experience might you have in ensuring access to justice that 
would be relevant to your service in the court?
    Ms. Morgan. Well, I know that it's important for all 
citizens to have access to the courts and for them all to be 
treated with respect when they come before the court, 
regardless of their position in life or station. And I would 
support the efforts of the Louisiana State Bar Association and 
the New Orleans Bar Association and our local Federal Bar 
Association to help ensure that indigent people have the right 
to counsel.
    Senator Coons. Thank you.
    What are the most important lessons you've learned in your 
various legal positions and across your practice, and how would 
you apply those lessons to your service as a Federal judge, if 
confirmed?
    Ms. Morgan. Well, I think I've learned--I've had a lot of 
different kinds of cases over my legal career and I think 
that's going to help me because I've done oil and gas cases, 
construction disputes, navigable waterway disputes. I've done 
product liability cases, I've got--I've had a lot of varied 
experience. And I've even had some criminal cases because when 
I practiced in Shreveport, the way that conflicts were dealt 
with was that the courts appointed private attorneys to 
represent co-defendants. So I feel I've got a broad range of 
experience and that that would help me in considering the very 
many different kinds of cases that I would see in a Federal 
District Court.
    Senator Coons. And in interpreting or applying a statute, 
what do you view as the role of the judiciary in sort of 
defining, understanding, and applying the will of the 
legislative body, whether it's a State or Federal one?
    Ms. Morgan. Well, I think the most important thing, and the 
first thing that the judge has to do, is look at the words of 
the statute or the words of the constitutional provision and to 
apply that as written--as written. If there's an interpretation 
to be made or application to be made, then I think I would look 
to the United States Supreme Court decisions and to the Fifth 
Circuit Court of Appeal decisions. If there were no controlling 
or close decisions from those courts, then I would look to 
Circuit Courts from other Circuits or to analogous cases.
    Senator Coons. And what do you view as the role of 
precedent in reaching decisions, whether in the Federal bench 
or in your previous legal practice?
    Ms. Morgan. Well, I know that the role of the District 
Court is to apply the law as it's written and it has been 
interpreted by the higher courts, which would be the U.S. 
Supreme Court, and in my case the Fifth Circuit Court of 
Appeal.
    Senator Coons. Thank you, Ms. Morgan.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    Thank you for joining us today, Ms. Morgan.
    Ms. Morgan. Thank you.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Lee. I want to talk to you a little bit about 
dispositive motions in Federal court practice. Tell me what you 
think the role of dispositive motions is. How important a role 
do those play in the litigation process?
    Ms. Morgan. Well, the cases that I've ordinarily been 
involved in have been complex litigation where there's a great 
deal of motion practice, and I think the role is that we know 
that it's expensive for clients to go through protracted 
litigation, and if cases can be decided on the basis of 
dispositive motions, and appropriately so, then that is 
something that can give the parties certainty and keep it from 
taking years for a dispute to be resolved.
    Senator Lee. Sometimes I have suspected there's a tendency 
on the part of some judges to say, well, when in doubt, if it's 
a difficult case and I'm not quite sure that I should grant 
this dispositive motion, maybe I should deny it because that 
``will allow the plaintiff to have her day in court.'' Do you 
agree with that assessment?
    Ms. Morgan. Well, I do respect that people do have a right 
to come into the judicial system and they should be respected 
and made to feel welcome, but I don't think we can let--that a 
judge can let that factor into whether to grant a dispositive 
motion if in fact it fits the facts and the law dictates that 
it should be granted.
    Senator Lee. So in other words you could be depriving 
someone else of a right if you do that just for the sake of 
allowing someone to have their day in court.
    Ms. Morgan. That's right.
    Senator Lee. They've had their day once they've submitted 
the dispositive motion. Yeah, I think that's correct.
    Is it your sense that judges will occasionally deny a 
dispositive motion that might be warranted in part on the basis 
of what some might loosely refer to as defensive jurisprudence? 
In other words, it's easier to deny a summary judgment motion 
or a motion to dismiss. You don't--the order or opinion 
entailed in that usually is a lot shorter if it's a denial than 
if it's a grant, and normally it's not going to be subject to 
an immediate appeal if you deny it. A lot of the time the 
parties will settle if you just deny the motion and allow the 
case to proceed. Have you ever seen that happen?
    Ms. Morgan. Well, I'm not--not personally because I'm not--
I haven't been privy to what the judge's thinking was, usually.
    Senator Lee. Sure. Sure.
    Ms. Morgan. But I know that what my intent would be to not 
have that factor into my decisions, but instead to look at the 
law and the facts and make the decision and assume that the 
parties will take care of the settlement process themselves.
    Senator Lee. Now, you've been an advocate throughout your 
career, and it looks like you've zealously and effectively 
represented your clients. Do you feel this would be a difficult 
transition for you at all going from being an advocate for 
discrete parties to just being a judge? Is that something 
you'll have any difficulty doing?
    Ms. Morgan. Well, I do recognize that there's a difference 
and I realize that there's also going to be a learning curve 
for me in learning how to be a judge. But I realize that 
there's no role for advocacy on the part of the judge, that the 
judge has to be impartial and fair and apply the law to the 
facts without regard to special consideration or advocacy for 
one side or the other.
    Senator Lee. Let's talk about Federal power for a minute. 
Can you tell me, apart from the discrete facts of United States 
v. Lopez and United States v. Morrison, can you think of any 
real limits on Congress's power under the Commerce Clause?
    Ms. Morgan. Well, I know that the Supreme Court has clearly 
held that, even though the Commerce Clause is broad, that there 
are limits. I'm not an expert in that area of the law, have 
read some of those cases.
    Senator Lee. What role do you think the courts ought to 
play in making sure that those limits exist and are enforced?
    Ms. Morgan. Well, I know for a District Court Judge what we 
do is look to the U.S. Supreme Court and follow the rulings of 
that court, and also to the Fifth Circuit Court of Appeal.
    Senator Lee. OK.
    And that's something that you'd be willing to do as a 
judge, if confirmed? Become familiar with those limits, as 
articulated in Lopez and Morrison and the other cases, to 
figure out where those limits are, understanding that the 
Supreme Court hasn't addressed every conceivable issue out 
there and so you'll have to glean something from the principles 
articulated in those cases.
    Ms. Morgan. Absolutely.
    Senator Lee. OK. Thank you.
    Thank you, Mr. Chairman.
    Senator Coons. Thank you, Senator Lee.
    In your 30-year career as a litigator, I note that you 
spent over 1,000 pro bono hours rewriting and streamlining 
procedural rules. Tell me something, if you would, about that 
level of engagement in pro bono work. Senator Landrieu referred 
to it. What were the challenges? Why did you undertake this 
much work? What were the benefits for the administration of 
justice in the State of Louisiana?
    Ms. Morgan. Well, I started working on the project about 13 
years ago and my first words were, ``I can't chair this 
project, but I'll help you get it started.'' And so 13 years 
later, it's been a real effort of love. I've enjoyed it. What 
we first did, these are the rules that govern the day-to-day 
operations of the court that have a big impact on litigants and 
the parties.
    First, we gathered all the rules that the different 
District Courts had in Louisiana, and then we tried to fashion 
rules that would work for everyone, and where they wouldn't 
work for everyone we attached an appendix and said, in this 
court--at least you know where to go to look for it in this 
court. It took us about 5 years to draft.
    In 2002, we went to the Louisiana Supreme Court. They 
adopted and implemented--we call the Louisiana Rules for 
District Court. And so since then my Committee has been 
involved in educating judges and attorneys about it and being 
the--accepting suggestions for changes, either amendments or 
new rules. And we believe we've really made a difference in the 
practice of law in Louisiana.
    Some of the things we added, we got from the Federal rules. 
For example, now before parties file a Motion to Compel they 
have to confer and try to work out their differences, and 
before they submit a judgment to the court it has to be 
circulated among the parties.
    Those are the kinds of just everyday, ordinary things that 
make the practice of law better and that the judges have told 
us reduced the burden on them because instead of having to 
handle a motion to compel, the parties work it out among 
themselves and only in extreme circumstances have to go to the 
court. So I'm proud of the work that I did on that committee. I 
really think it's made an improvement in the administration of 
justice.
    Senator Coons. Thank you, Ms. Morgan. I have no further 
questions.
    Senator.
    Senator Lee. I notice you clerked on the Fifth Circuit 
right out of law school.
    Ms. Morgan. Yes.
    Senator Lee. Tell me about that experience. Did you enjoy 
it?
    Ms. Morgan. Oh, I did. I worked for Hank Politz, who's from 
Napoleanville, Louisiana, and he's just a wonderful man and 
mentor to his clerks and to many young lawyers. And he's been a 
role model for me. He passed away a few years ago, but he was a 
wonder--it was a wonderful experience, and I think that's what 
made me, in the beginning, become interested in being a Federal 
judge.
    Senator Lee. Anything in particular about his judicial 
philosophy that you'd try to emulate on the bench?
    Ms. Morgan. No, just that he was a very fair-minded person 
and, you know, he--he applied the facts to the law, but he also 
never forgot that decisions have an impact.
    Senator Lee. Was he kind to his clerks?
    Ms. Morgan. He was.
    Senator Lee. Good.
    I've noticed your practice is overwhelmingly civil, about 
95 percent civil. You've handled a few criminal cases. I don't 
view that as an impediment by any means. Sometimes it can be 
difficult if you've had no criminal experience at all, or if 
somebody is all criminal and they haven't had any civil 
experience. You feel comfortable with your ability to get up to 
speed quickly on the criminal standards?
    Ms. Morgan. I do. I know that the Federal Judicial Center 
has programs to help judges get up to date and up to speed in 
areas of law they're not familiar with, and I'm looking forward 
to participating in that. I've also talked to some of the 
judges who sit on the Eastern District of Louisiana currently 
who've offered to help get me up to speed.
    Senator Lee. And it sounds like, within your civil 
litigation practice, it has been fairly diverse. In other 
words, you haven't been handling just one type of case. I 
suspect that would help you as well in gearing up toward the 
criminal cases.
    I think that's all my questions. Thank you very much.
    Ms. Morgan. Thank you.
    Senator Coons. Well, Ms. Morgan, thank you, to you, to 
Larry, to your friends. Thank you for your willingness to 
serve, for your long and dedicated service in the Louisiana 
Bar. Hopefully we will be able to proceed rapidly to 
consideration of your nomination on the floor of the Senate.
    I will keep the--we will keep the record open for a week 
for any members of the Committee who were not able to join us 
today and who may wish to submit letters or questions in 
writing to either of our witnesses today.
    And with that, this hearing is adjourned.
    [Whereupon, at 3:34 p.m. the hearing was adjourned.]
    [Questions and answers and submissions follow.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    


 NOMINATION OF HON. JACQUELINE H. NGUYEN, OF CALIFORNIA, TO BE CIRCUIT 
   JUDGE FOR THE NINTH CIRCUIT; GREGG JEFFREY COSTA, OF TEXAS, TO BE 
   DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS; AND HON. DAVID 
   CAMPOS GUADERRAMA, OF TEXAS, TO BE DISTRICT JUDGE FOR THE WESTERN 
                           DISTRICT OF TEXAS

                              ----------                              


                      WEDNESDAY, NOVEMBER 2, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard 
Blumenthal, presiding.
    Present: Senators Blumenthal, Feinstein, Franken, and 
Grassley.

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

    Senator Blumenthal. I am going to begin the hearing. We are 
waiting for some of the other Senators to arrive, but in the 
meantime I would like to welcome our three nominees and their 
families. I am pleased to call this hearing to order and thank 
Chairman Leahy, the Senator from Vermont, for giving me the 
chance to chair this very, very important hearing.
    I am particularly glad to do my part in advancing your 
nominations. I am impressed by your backgrounds, 
qualifications, expertise, and experience, and I want to 
welcome Judge Nguyen as well as Gregg Costa. Judge Nguyen has 
been nominated to the Ninth Circuit Court of Appeals; Gregg 
Costa to be District Court Judge for the Southern District of 
Texas; and David Guaderrama to be the District Court Judge for 
the Western District of Texas.
    I hear consistently when I am in Connecticut, which is my 
State, about the need for judicial nominations to move forward, 
and I am glad that we are going to be doing our part today to 
advance this process, and I am honored to be joined by the 
Ranking Member of the Judiciary Committee, Senator Grassley of 
Iowa.
    We have a bipartisan interest on this Committee in 
advancing these nominations because justice should be 
completely without regard to party or partisan interests. We 
all have in common the very strong national interest in filling 
judicial vacancies when they occur. We now have about one in 
ten judgeships open in the country, and I am encouraged and I 
have been encouraged in the time that I have been in the U.S. 
Senate, which has only been about 10 months, by the progress 
that we have made in filling those vacancies. But, of course, 
we need to do more because 161 million Americans live in 
districts or circuits that have a judicial vacancy that should 
be filled.
    And I want to say to each of the nominees and your families 
that nothing is more important in the United States system of 
government than the jobs you are going to be hopefully filling 
if you are confirmed. You are going to be the face and voice of 
justice in this country.
    I practiced law for about 30 years in the Federal as well 
as our State courts in Connecticut, and so I saw firsthand the 
importance of what you do as a prosecutor, as an Attorney 
General of the State, and want to commend you and thank you for 
your willingness to step forward and serve in this very, very 
important role.
    So, again, welcome to you, to your families who are also 
making a sacrifice, and I would like to ask the Ranking Member, 
Senator Grassley, to now make his opening statement.
    Senator Grassley. If Senator Cornyn or Senator Feinstein 
have to leave after their statement, I would be glad to defer 
to either one of you now.
    Senator Blumenthal. Senator Feinstein.

   PRESENTATION OF HON. JACQUELINE H. NGUYEN, NOMINEE TO BE 
CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. DIANNE FEINSTEIN, 
          A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. You are very kind. Thank you very much, 
Senator Grassley. I very much appreciate that. And, Mr. 
Chairman, thank you very much.
    I am very pleased today to introduce Judge Jacqueline 
Nguyen to become a circuit court judge for the Ninth Circuit 
Court of Appeals. Judge Nguyen has nearly a decade of 
experience as a trial court judge with a long record of 
success.
    I recommended that the President nominate Judge Nguyen to 
the district court in 2009 after my bipartisan judicial 
selection Committee gave her its highest recommendation. I 
believed then that she would make an excellent district judge, 
and she has confirmed that belief, performing her duties as a 
Federal judge with distinction.
    Her nomination is actually a historic one. Judge Nguyen was 
the first Vietnamese American on the Federal bench when she was 
confirmed in 2009. She will be the first Asian American female 
to serve as a Federal appellate judge. I do not doubt that she 
will make an outstanding addition to the Ninth Circuit.
    Born in South Vietnam in the midst of the Vietnam War, 
Judge Nguyen came to the United States with her family at the 
age of 10 during the war's final days. The Nguyen family lived 
in a tent in a San Diego refugee camp for 3 months before 
moving to Los Angeles. Her parents worked two and three jobs at 
a time to provide for their family. Judge Nguyen and her five 
siblings labored alongside their parents after school and on 
weekends until late at night, helping to clean dental offices, 
to peel and cut apples, and to help her parents run a small 
business--a donut shop that her parents saved every penny to 
open.
    As she wrote to my selection committee, and I quote, ``Like 
many refugees, my parents each worked two jobs, and my siblings 
and I were expected to do what we could to help the family.''
    Judge Nguyen's story and that of her family shows that hard 
work and determination can lead to success, and if I might add, 
really shows that this country still remains a major land of 
opportunity.
    She wrote to my selection Committee that despite the 
difficulties her family faced, and I quote, ``I nevertheless 
feel incredibly fortunate because those early years gave me 
invaluable life lessons that have shaped who I am today.'' As 
Judge Nguyen said, she is living the American dream.
    Judge Nguyen earned her bachelor's degree from Occidental 
College in 1987 and her law degree from the University of 
California Los Angeles School of Law in 1991. Following law 
school, she practiced commercial law as a litigation associate 
for the prestigious firm of Musick, Peeler & Garrett for 4 
years. Her caseload included complex contract disputes and 
intellectual property cases.
    In 1995, she entered public service, becoming an Assistant 
U.S. Attorney in the U.S. Attorney's Office in Los Angeles. As 
a Federal prosecutor, she prosecuted a broad array of crimes--
violent crimes, narcotic trafficking, organized crime, gun 
cases, and all kinds of fraud. She handled all phases of these 
prosecutions from indictment through trial and ultimately on 
appeal. She tried ten cases to verdict, and she handled 
numerous appeals to the Ninth Circuit. She frequently helped 
prepare other Federal prosecutors in Los Angeles for their 
appellate arguments as well.
    She spent about 5 years in the public corruption and 
government fraud section of the office, prosecuting complex 
fraud cases, including one case that was described by the 
United States Customs Service as its largest commercial 
smuggling case. She also spent 6 months in the organized crime 
strike force section, handling a Title II wiretap investigation 
of a Russian organized crime group responsible for smuggling 
sex slaves into the United States from the Ukraine.
    In 2000, she received a special commendation from FBI 
Director Louis Freeh for obtaining the first conviction ever in 
the United States against a defendant for providing material 
support to a designated terrorist organization. The Justice 
Department recognized her with three additional awards for 
superior performance as an Assistant United States Attorney, 
and in 2000 she was promoted to deputy chief of the general 
crimes section.
    Judge Nguyen is a distinguished jurist with nearly a decade 
of experience as a trial judge. She left the U.S. Attorney's 
Office in 2002 when Governor Gray Davis appointed her to the 
Los Angeles Superior Court. She has served as a Federal 
district court judge since 2009 when she was nominated by 
President Obama and confirmed 97-0 by the Senate.
    Over the course of her nearly 10-year-long judicial career, 
she has presided over thousands of cases, including 75 jury 
trials and 12 bench trials. Forty percent of her cases have 
been civil proceedings, and 60 percent have been criminal 
cases. On the bench, she prizes fairness and integrity. She 
believes in treating all parties with respect and deciding 
cases in a well-reasoned fashion based on the facts of the case 
and on the applicable law.
    Her colleagues on the bench as well as attorneys from all 
sides of the bar have praised her for her first-rate legal mind 
and judicial temperament. In short, she has everything and all 
the experience to make an excellent addition to the Ninth 
Circuit. I urge my colleagues to support her nomination.
    I thank you for this courtesy, Mr. Chairman. It is very 
much appreciated.
    Senator Blumenthal. Thank you, Senator.
    I do not know whether Senators Cornyn and Hutchison would 
like to introduce their nominees before the Ranking Member 
makes his statement, but we would be glad to hear you.

  PRESENTATION OF GREGG JEFFREY COSTA, NOMINEE TO BE DISTRICT 
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, AND HON. DAVID CAMPOS 
   GUADERRAMA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN 
DISTRICT OF TEXAS, BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR 
                    FROM THE STATE OF TEXAS

    Senator Hutchison. Thank you very much, Mr. Chairman, and 
thank you, Senator Grassley, for allowing us to go forward. 
Nice to see you, Senator Feinstein.
    Senator Blumenthal. Thank you, Senator Feinstein.
    Senator Feinstein. Thank you.
    Senator Hutchison. I am very pleased--and, of course, 
Senator Franken, thank you, too. We never want to forget 
Senator Franken.
    Let me just say I am very proud of the two nominees that 
Senator Cornyn and I have put forward. First I want to 
introduce Mr. Gregg Costa, who has been nominated to serve as a 
Federal District Judge for the Southern District of Texas in 
Galveston. He was born in Baltimore, Maryland, but made his way 
to Texas as soon as he could at the age of 1. Mr. Costa 
attended Dartmouth where he graduated with a degree in 
government and then continued his studies at my alma mater, the 
University of Texas School of Law, where he was editor in chief 
of the Texas Law Review and received his juris doctorate with 
highest honors in 1996.
    He started his professional career in Houston, where he 
resides today. He was a law clerk in 1999 and then continued as 
a fellow in the Department of Justice's Office of the Solicitor 
General in 2000. In 2001, he became a law clerk for Supreme 
Court Chief Justice William Rehnquist and then in 2005 became 
an Assistant U.S. Attorney. He is the co-lead counsel for the 
U.S. prosecution of Robert Allen Stanford. In addition, during 
the nearly 6 years as an Assistant U.S. Attorney, he has tried 
more than 15 cases in matters involving visa fraud, identity 
theft, human smuggling, and firearms.
    His impressive professional career is complemented by his 
dedication to serve and teach others in the legal community. In 
addition to being an Assistant U.S. Attorney, he has taught in 
an adjunct professor position at the University of Houston Law 
Center and currently is the co-chair of the Southern Texas 
chapter of the American Bar Association's White Collar Crime 
Subcommittee.
    He has a wealth of experience and passion for his work, I 
think it is clear, and I believe he will be an asset to the 
Federal bench. His family has been with him every step of the 
way, and his wife, Jennifer, and two sons, Elijah and Joshua, 
who are here--I guess daughter Rebecca, age 1, is not here, but 
we understand why. We are glad to have all of you and recommend 
Mr. Costa to you for this judgeship.
    Our second nominee is Judge David Campos Guaderrama, who 
has been nominated for the Western District bench in El Paso. 
He is originally from New Mexico, but he, too, realized that 
the other side of the State line was worthy and moved to El 
Paso at a young age. He attained two bachelor's degrees from 
New Mexico State University in political science and psychology 
and then earned his juris doctorate from the University of 
Notre Dame School of Law in 1979. Upon his graduation, he began 
his law career in law offices in El Paso, and after 6 years of 
private practice was appointed the first chief public defender 
of El Paso County in 1987.
    In 1995, he was elected for the first of five successive 
terms to preside as judge of the 243rd judicial district court. 
In October of last year, he began serving as a magistrate in 
the U.S. District Court for the Western District where he is 
today.
    During his three decades in the Texas legal system, he has 
earned many accolades. He helped launch the first adult 
criminal drug court in El Paso County. He co-chaired the 
Committee to implement a new jury selection plan and was 
assigned by Chief Justice of the Texas Supreme Court, Wallace 
Jefferson, to oversee several cases of the Eighth Court of 
Appeals. He has served in the Texas judicial system for 30 
years, and I recommend him highly to the Committee.
    Senator Blumenthal. Thank you, Senator.
    Senator Cornyn.

  PRESENTATION OF GREGG JEFFREY COSTA, NOMINEE TO BE DISTRICT 
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, AND HON. DAVID CAMPOS 
   GUADERRAMA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN 
DISTRICT OF TEXAS, BY HON. JOHN CORNYN, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman. Senator Grassley, 
thanks for the courtesy. Senator Franken. It is good to be 
sitting on this side of the bench today as a member of the 
Judiciary Committee to join my colleague Senator Hutchison in 
recommending two outstanding nominees to the Federal bench.
    I am proud first to join Senator Hutchison in supporting 
Gregg Costa to serve as United States District Judge for the 
Southern District of Texas in Galveston. Just a word about the 
process. We have worked very closely with the White House and 
our bipartisan judicial evaluation Committee that is comprised 
of leading lawyers around the State, and Senator Hutchison and 
I have made it a point, with the advent of the Obama 
administration, to work very hard with the White House to, 
through our bipartisan judicial evaluation committee, recommend 
some of the best and brightest legal minds for the White 
House's consideration, and clearly they have taken our advice 
on these two nominees.
    I will mention Mr. Costa, who was selected for numerous 
honors and awards, including membership in the Chancellors 
Society, and his work on the Texas Law Review, two distinctions 
I am proud to say he shares with my older daughter, who is 
practicing law in Austin, Texas, now.
    After law school, he went on to clerk both for Judge 
Randolph of the D.C. Circuit and, as Senator Hutchison has 
said, William Rehnquist at the Supreme Court. His most relevant 
legal experience, though, comes from his work as Assistant U.S. 
Attorney, as you have heard from Senator Hutchison.
    As a former State district court judge myself, I can say 
with confidence that we need more trial judges that actually 
have trial experience. This should not be an on-the-job-
training exercise, but in this case we certainly have in Mr. 
Costa's case somebody who has an outstanding record as a 
practicing lawyer, in this case a prosecutor, who now will take 
that knowledge with him to the bench.
    This is especially a challenge in our State because of the 
extensive backlogs because of our relative proximity to the 
U.S.-Mexico border, immigration cases, drug cases, and the 
like. But I have no doubt that Mr. Costa will more than 
competently and efficiently administer his docket, increasing 
access to justice.
    Let me just close by quoting one of Mr. Costa's colleagues. 
He said, ``Mr. Costa has an outstanding work ethic. He is a 
skilled trial lawyer. He is highly respected by his colleagues 
and the judges, and he is the go-to lawyer in the U.S. 
Attorney's Office. He is really smart, and he is by far the 
most productive prosecutor in the office. I have no doubt that, 
if given the opportunity, Gregg will be a fine Federal judge.''
    So I join Senator Hutchison in congratulating Mr. Costa and 
his family for this great honor, and I have no doubt that the 
Committee will move expeditiously to recommend to the full 
Senate his nomination.
    Now, if I may, let me say just a few words about our second 
nominee, David Guaderrama. Of course, as Senator Hutchison 
pointed out, Judge Guaderrama currently serves as a United 
States magistrate judge, so he has a very up close and personal 
view of the Federal dockets in one of our busiest districts in 
Texas and, indeed, in the United States. That is the Western 
District of Texas in El Paso.
    Like Mr. Costa, Mr. Guaderrama was a consensus nominee 
recommended to the President by our bipartisan Federal judicial 
evaluation committee. Of course, Judge Guaderrama possesses a 
wealth of experience to qualify him for this honor, and he has 
learned the value of hard work at an early age, serving as a 
hand on his family's farm in New Mexico.
    During college, Judge Guaderrama also worked a variety of 
jobs, including positions as a gas station attendant and 
furniture delivery man, and I mention those only because of my 
firm conviction that it is important that judges who preside 
over these very important cases understand not only the legal 
perspective but the perspective of the jurors and the people 
who seek access to justice in our courts. And so I think the 
breadth of his legal experience and his personal experience 
will help him in that regard.
    Like Judge Guaderrama, as I indicated earlier, I am both a 
former State district court judge and a former gas station 
attendant, and I cannot help but wonder whether the long days 
pumping gas in the Texas heat somehow uniquely prepared both of 
us for our jobs as judges. And to this day, I still have 
questions which job was actually better.
    In all seriousness, Judge Guaderrama had bigger plans, and 
he went to school, as you have heard, at Notre Dame Law School. 
After law school, he gained extensive experience in El Paso, as 
you have heard, and I believe that given the large number of 
criminal and narcotics cases occupying the Federal docket in El 
Paso, coupled with the procedural complexities that they often 
present, Judge Guaderrama's experience with both of these types 
of cases will well qualify him.
    So, Mr. Chairman, thank you for allowing Senator Hutchison 
and myself both to come before the Committee this morning and 
recommend these two consensus nominees. It is my sincere hope 
that Chairman Leahy will put these nominations after this 
hearing on a markup, that we can get them voted out of 
Committee, that we can get them to the floor of the Senate, and 
that Senator Reid will allow us the opportunity to confirm both 
of these outstanding nominees so they can go on to serve the 
people of our State and our country in these important 
positions.
    Thank you very much.
    Senator Blumenthal. Thank you to both Senators for your 
very excellent introductions.
    Senator Hutchison.
    Senator Hutchison. Could I just mention that I failed to 
introduce Mr. Guaderrama's wife, Annalisa, who is with him, and 
I think it is so nice that both of them are there. So I wanted 
to put that in the record as well. Thank you.
    Senator Blumenthal. Thank you, Senator. Knowing how busy 
both of you are, thank you very, very much for being with us 
today.
    And now I would like to turn to Senator Grassley for his 
statement.

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

    Senator Grassley. Well, like the Chairman and our 
colleagues, I welcome the nominees appearing today as well as 
their proud families and friends.
    A nominee's hearing is a very important event for the 
nominee, their families, and, of course, for this institution, 
the Senate, and for the public that expects us to be very 
careful about who gets on the bench with lifetime appointments.
    The Committee takes this responsibility seriously. Today's 
hearing is the 17th nominations hearing held during this 
Congress, meaning during this year. After today, we will have 
reviewed the qualifications of 69 judicial nominees throughout 
this year. That means that after today's hearing nearly 92 
percent of President Obama's judicial nominees have had a 
hearing. In total this year, we have made real progress in 86 
of the 99 nominations submitted during this Congress. We have 
confirmed 53 judicial nominees this year, making this session 
of Congress one of the most productive over the last 30 years. 
In total, more than 70 percent of President Obama's judicial 
nominees have been confirmed through this process, so that is 
real progress.
    Mr. Chairman, today we have two nominees to be district 
judges in Texas: Mr. Gregg Costa, the Southern District of 
Texas, presently an Assistant U.S. Attorney in Houston; and 
Judge David Guaderrama, presently serving as U.S. magistrate 
judge, the Western District of Texas.
    Judge Nguyen, nominated to be United States Circuit Judge 
of the Ninth Circuit, was confirmed by the Senate less than 2 
years ago as district judge for the Central District of 
California. She was nominated for elevation just 41 days ago. 
Although she has trial court experience, I am less familiar 
with her appellate experience, so I will be asking questions 
about some of her decisions there.
    I also hope to hear from each of the nominees regarding 
their basic judicial philosophy.
    I am going to put the rest of my statement in the record 
which has the full biography of the nominees, and I welcome 
them once again.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Blumenthal. Thank you, Senator Grassley.
    Today, as we have mentioned, we have three nominees. We are 
going to consider them in two panels. The first will be Judge 
Nguyen, who, as you have heard, is currently on the United 
States District Court for the Central District of California. 
She has been nominated to be United States Circuit Judge for 
the Ninth Circuit.
    On the second panel, we will consider the nominations of 
Gregg Costa to the United States District Court for the 
Southern District of Texas, and he has worked as a Supreme 
Court law clerk, a fellow in the Office of the Solicitor 
General at the Justice Department, and he is currently an 
Assistant United States Attorney in the Southern District of 
Texas.
    And we will also consider on that panel the nomination of 
David Guaderrama to the United States District Court for the 
Western District of Texas. He has served as a magistrate judge 
in that district since 2009, and he previously served four 
terms as a Texas trial judge.
    Judge Nguyen, if you could please come forward, I am going 
to ask you to raise your right hand. Do you affirm that the 
testimony you are about to give before the Committee will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Judge Nguyen. I do.
    Senator Blumenthal. Welcome, Judge Nguyen, and if you would 
like to make some opening remarks and introduce your family, 
please feel free to do so.

 STATEMENT OF HON. JACQUELINE H. NGUYEN, NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE NINTH CIRCUIT

    Judge Nguyen. Thank you. Good morning, Mr. Chairman, 
Senator Grassley, and Senator Franken. It is nice to see you 
again. I have no formal opening statement, but I would like to 
take this opportunity to express my appreciation to all of the 
members of the Judiciary Committee for considering my 
nomination to the U.S. Court of Appeals for the Ninth Circuit. 
I want to thank in particular you, Senator Blumenthal, for 
chairing today's hearing and Ranking Member Senator Grassley as 
well and Senator Leahy for scheduling today's hearing. I would 
like to thank also President Obama for my nomination.
    I am joined today by my family, friends, and other 
supporters, and first, if it is all right with you, Mr. 
Chairman, I will ask them to stand as I do the introductions.
    Senator Blumenthal. Please go ahead.
    Judge Nguyen. First, my husband, Pio Kim, and my two 
children, 9-year-old Avery and 12-year-old Nolan; my brother, 
Charlie Nguyen; and I am especially proud to introduce to you 
today my parents, Binh and Hoa Nguyen.
    I am especially happy to have my parents both be here with 
me today. My father was 41 years old when he was forced to 
leave everything behind and begin a new life here in the United 
States, and without all of the sacrifices that they both have 
done, I would not be sitting here before you today. So it is 
very meaningful for me that they are present. It is a very 
proud day for them.
    Also, finally, I would like to acknowledge the presence of 
my three very talented law clerks who have all chosen to fly 
here from Los Angeles to support me, and that is Christine 
Golno, Ellen Landsben, and Steven Feldman, as well as numerous 
other colleagues and friends and family who are watching the 
webcast at home.
    Thank you very much.
    [The biographical information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Blumenthal. Thank you, Judge Nguyen, and a special 
welcome to your family and friends and most especially to your 
parents who are here today.
    I have just a few questions for you. First, we have heard 
and I have read about your very powerful story, about your 
background and your achievements and your family's 
achievements, and I wonder if you could talk briefly about how 
those experiences would inform or shape your views of your role 
as a judge on the Ninth Circuit.
    Judge Nguyen. When I was appointed to the State court, mine 
was a historic appointment because I was the only Vietnamese 
American appointed to the Los Angeles County, and when you have 
a position like that, it carries with it tremendous privileges 
and responsibilities. So I do take my role as a role model for 
the community very seriously. But I do not believe that the 
background of judges changes the law. Regardless of gender or 
ethnicity, the law remains the same, and my task as a judge is 
to strictly adhere to the law and apply them to the facts of 
each case that comes before me. That is what I have done both 
at the State court level and have done for the past 2 years on 
the district court, and I will continue to do that as a Ninth 
Circuit judge if I am fortunate enough to be confirmed.
    Senator Blumenthal. Given the feelings that anyone has 
about litigants who come before him or her as a judge, do you 
find that difficult to do, that is, to apply the law 
dispassionately to cases that may have an impact on you 
emotionally?
    Judge Nguyen. I have always been able to set aside my 
personal feelings and beliefs and emotions and adhere to the 
law in every case. I attempt to do that. I think my background 
occasionally gives me an understanding as to the burdens and 
challenges that litigants may face as well as victims and 
witnesses who may appear before me, and I think that is 
appropriate to do that. But at the end of the day, it is really 
the law that controls the disposition of every single case.
    Senator Blumenthal. How do you view the role of a judge who 
sometimes encounters counsel who may be inferior or less than 
competent or not fully adequate to the case before you?
    Judge Nguyen. Well, certainly in my 9 years on the bench, I 
have had numerous situations where one side is better resourced 
or better represented than the other side, and I do not believe 
a judge's role is to assist one side or the other. I cannot in 
my capacity as a judge equalize resources, if you will. I 
attempt to be very clear to the parties early on as to what the 
court's expectations are in order to make sure that counsel for 
both sides are prepared, and so if I see an issue with an 
attorney, then I may schedule extra status conferences and 
really be very clear about communicating the court's 
expectation. I have written standing orders, and I also go 
through them if I believe it is necessary in court during 
status conferences to make sure that by the time we get to a 
dispositive motion or a trial that both sides are prepared.
    Senator Blumenthal. What has been for you the hardest part 
or the toughest aspect of being a judge?
    Judge Nguyen. I think that in my 9 years on the bench there 
are certainly cases that are more challenging than other, 
particularly, for example, since taking the district court 
bench, the Central District of California has a high percentage 
of intellectual property cases in the area of patent 
litigation. I do not have an extensive background in that, so 
it is a challenge to get past the learning curve. But I find 
that very interesting, and that is part of the reason that I 
was very attracted and drawn to the district court.
    I think sentencings are particularly difficult because it 
involves somebody's liberty interest, so I am always very 
careful to thoroughly review all of the relevant information 
before a sentencing hearing.
    Senator Blumenthal. Thank you very much.
    Senator Grassley.
    Senator Grassley. Thank you very much. Welcome once again.
    Judge Nguyen. Thank you, Senator.
    Senator Grassley. I am going to refer to a couple cases, 
and then I have one question about Sentencing Guidelines.
    In a case, I believe you pronounce it, Guengerich v. Baron, 
a pro-life group brought suit against Los Angeles City College 
alleging, among other things, that their First Amendment right 
to free speech, free exercise of religion, and to assemble 
peaceably were violated. You held on summary judgment for the 
college on grounds that the college campus was not a public 
forum, the ban on outside speech was viewpoint neutral, and the 
restriction supported the valid purpose of preserving the 
campus for its intended purpose. I have two or three questions 
on this case.
    Why was this case disposed of on summary judgment rather 
than letting it go forward on the merits?
    Judge Nguyen. The moving party in that particular case 
filed a motion for summary judgment, and so when a motion is 
before me, I look at the standard on summary judgment, and if 
there are no triable issues of material fact in my view, given 
the case law at the time, then that is an instance when a 
motion for summary judgment would be granted.
    Senator Grassley. Has this case been appealed?
    Judge Nguyen. You know, Senator Grassley, I am not certain 
as to what the status of the case is. I do believe that the 
case is possibly pending before the Ninth Circuit so I want to 
be careful not to comment beyond what is reflected in the 
ruling. And it was a written decision where I attempted to very 
clearly lay out the court's rationale for review by the 
appellate court.
    Senator Grassley. OK. I have a case that you decided after 
you had appeared before us as a district court nominee but 
before you were confirmed by the Senate, so you might wonder 
why it is coming up now and did not come up then, but we were 
not aware of it at that time. While you were serving as a 
Superior Court Judge in 2009, a California appeals court held 
that you abused your discretion when you departed from the 
State's three-strikes law. In that case, People v. Dorsey, the 
defendant was arrested after being observed casing a liquor 
store. When he was arrested, the police discovered a number of 
robbery-related items in his car, including a ski mask, rubber 
gloves, handcuffs, and a loaded handgun. The defendant was a 
parolee who had been convicted of multiple armed robbery 
offenses in the past. Because it was his third conviction, the 
defendant would have been subject to a 26-years-to-life prison 
term. You determined that the conduct was outside the spirit of 
the three-strikes law and that the 20-years-to-life sentence 
``does not match the crime'' and ``the defendant had been crime 
free for 2 years.'' Therefore, you struck all but the 
defendant's prior convictions.
    Question: Why didn't you apply the three-strikes law and 
sentence the defendant to a prison term called for by the 
statute?
    Judge Nguyen. In that particular case, Senator Grassley, 
the court has the discretion to impose either a two-strikes 
sentence or three-strikes sentence under California's three-
strikes law. There are certain factors that you look to in 
determining whether it is appropriate to exercise your 
discretion to strike the strikes in order for the defendant to 
be eligible for a second-strike sentencing. I had a number of 
discussions with lawyers from both sides and determined that it 
was appropriate for me to exercise that discretion. The 
California court of appeal held that under the particular 
factual circumstances of that case that it was an abuse of 
discretion. In my 9 years as a trial judge, that is the only 
reversal that I suffered, but in retrospect and in reviewing 
the California court of appeal decision, I do concur that it 
was error for me to do that.
    Senator Grassley. OK. So then my next question dealt with 
the court of appeals, and you just stated that you did know 
their decision. Do you recall the basis of their decision?
    Judge Nguyen. The basis of their decision is that it was an 
abuse of discretion under the factual circumstances of the 
case. There are many cases filed under the three-strikes law, 
and during the plea bargaining negotiation process, either the 
prosecution makes the call as to whether the defendant should 
be sentenced to a three-strike or a two-strike sentence, and 
the motion gets filed. It is called a Romero motion. And if the 
motion is filed, then the court has the discretion to make that 
determination.
    Senator Grassley. OK. You just answered my next question, 
so let me go on. Many jurisdictions, including the Federal 
Government, have enacted three-strike laws as a mechanism to 
remove violent criminals from the streets. Do you have any 
concern about the constitutionality of three-strike laws?
    Judge Nguyen. The three-strikes law has been enforced and 
upheld, and as a trial judge, I have imposed many, many 
sentences under the three-strikes law, including the 25-to-life 
sentence. Those cases come up with a fair degree of frequency 
if you sit in a heavy felony calendar, and I frequently applied 
that case law. That was the one instance where the court of 
appeal determined that it was abuse of discretion to do that. 
But I work with that law all the time and have imposed numerous 
sentences under that particular sentencing scheme.
    Senator Grassley. So I think it is fair for me to conclude, 
which was my next question, but it is fair for me to conclude 
that you do not have any personal reservations or views that 
would prevent you from enforcing three-strike laws.
    Judge Nguyen. I do not, Senator. The sentencing schemes are 
legislated determinations, and whatever the law is, I am 
comfortable applying that law.
    Senator Grassley. Senator, I have got three more questions. 
Do you care if I go on? And then I will not have to have a 
second round.
    Senator Blumenthal. That is fine.
    Senator Grassley. OK. A second issue in People v. Dorsey 
was the State's challenge that you engaged in improper plea 
negotiations with the defendant to discuss the possibility of 
dismissing the defendant's prior convictions if the prosecutor 
added an additional charge and the defendant pleaded guilty. 
The prosecutor did not add the charge, but over the objections 
of the prosecution, you dismissed all but one of the 
defendant's prior convictions anyway. The appellate court did 
not rule on this issue because it reversed you on other 
grounds. Nonetheless, the court said that it was ``troubled'' 
by the extent of the trial court's involvement in the plea 
bargaining process. This concerns me. The record seems to 
suggest that you were trying your best to find a way not to 
apply the statute, and at the end of the day you did not apply 
the statute.
    Is that accurate? Were you trying to find a way around the 
three-strikes law? Do you think it was appropriate to engage in 
the plea negotiation process as you did?
    Judge Nguyen. No, Senator Grassley, it was not accurate. I 
was not trying to find my way around the application of that 
particular statute. If I may put it in context, unlike Federal 
court with the prohibition of Rule 11, in State court it is 
very common for judges to sit in chambers with the parties in 
order to discuss disposition of cases. And my practice was to 
do so if the parties requested such a chambers meeting. And 
part of the reason for that is because the volume of the cases 
in State court is so incredibly heavy that that is the most 
efficient way to resolve matters is to have that informal 
discussion.
    I did so at the request of the parties in this case and 
held an in-chambers conference with them, and during those 
discussions, the parties each expressed their view as to what 
the appropriate sentence in this case may be. And when I take 
the bench again, I perhaps inarticulately attempted to reflect 
those discussions in chambers. Now, I do not discuss one case 
at a time because of the crushing caseload. I sit in chambers, 
and we may talk about five, six, seven cases at a time at the 
request of the parties. So when I take the bench, and there is 
all these people waiting, then I attempt to in a very brief and 
succinct way reflect what it was that we talked about.
    One of the things discussed in chambers in the Dorsey case 
was whether there could be an amendment to the indictment such 
that the second-strike sentence would be enhanced, so something 
in between the second- and the third-strike sentence, and there 
were no charges that would be fairly reflective of the facts, 
and that is what I was attempting to do on the record.
    Senator Grassley. OK. Under the Supreme Court's decision, 
U.S. v. Booker, the Federal Sentencing Guidelines are now 
advisory rather than mandatory. In light of Booker, what do you 
see as the role of the guidelines in making sentencing 
determinations?
    Judge Nguyen. As a former Federal prosecutor at a time when 
the Sentencing Guidelines were mandatory--this is the pre-
Booker era--I am very comfortable with the guidelines. I do 
believe in the value of uniformity in sentencing. I do not 
think that defendants should be sentenced differently just 
because they happen to walk down the hallway and be in front of 
a different judge. In my 2 years as a district court judge, I 
start with the Sentencing Guidelines, and in the vast majority 
of cases, I end with the Sentencing Guidelines.
    Now that Booker is in effect, obviously judges are directed 
to also look to factors that are set out by statute, 18 United 
States Code Section 3553, and if appropriate under the 
guidelines as well as looking at these factors, then judges may 
vary from the guidelines. But that is the exception and not the 
rule.
    Senator Grassley. OK. My last question deals with basic 
judicial philosophy, and I am going to refer to Justice 
Scalia's speech that he gave 5 or 6 years ago: ``I think it is 
up to the judge to say what the Constitution provided, even if 
what it provided is not the best answer, even if you think it 
should be amended. If that is what it says, that is what it 
says.''
    So two questions. Do you agree with Justice Scalia? Second, 
do you believe a judge should consider his or her own values or 
policy preferences in determining what the law means? And if 
so, in the latter case, under what circumstances?
    Judge Nguyen. If I could answer your second question first, 
the answer is no, I do not believe that a judge should consider 
her own personal policy preferences in determining what the law 
is. My role, if confirmed to the Ninth Circuit, would be to 
apply the precedent that is within my circuit and precedent 
that is set forth by the Supreme Court.
    As for Justice Scalia's comment, I am not familiar with 
that speech, and so I am not sure of the context in which that 
comment was made. But the Constitution provides certain core 
principles, and judges are called upon to interpret and apply 
those principles. Judges do not determine what the Constitution 
says. Those principles are enduring.
    Senator Grassley. OK. Thank you.
    Thank you, Mr. Chairman. And thank you, Senator Franken.
    Senator Blumenthal. Thank you, Senator Grassley, and thank 
you, Senator Franken. Please proceed.
    Senator Franken. Thank you, Mr. Chairman and Mr. Ranking 
Member.
    Judge Nguyen--and that is how you pronounce it, ``win'' ?
    Judge Nguyen. Yes.
    Senator Franken. Is that always how you pronounced the 
spelling of your last name or are there different 
pronunciations?
    Judge Nguyen. I have heard various pronunciations over the 
years, but ``win'' is the most phonetically correct spelling, 
and so that is what I have stayed with.
    Senator Franken. OK. It is your name, so you are Judge 
Nguyen. And congratulations, by the way, for your nomination.
    Judge Nguyen. Thank you, Senator.
    Senator Franken. You know, I was here for your nomination 
to the district court, and----
    Judge Nguyen. You chaired that hearing.
    Senator Franken. I chaired it? Of course I did. I remember.
    [Laughter.]
    Senator Blumenthal. He would have chaired this one if we 
let him.
    Senator Franken. I think that might have been the one where 
at the time the Ranking Member was Senator Sessions and he saw 
me chairing at that time, and he said, ``A meteoric rise.''
    Judge Nguyen. He was very complimentary, if I recall 
correctly.
    Senator Franken. Well, I said, ``And well deserved.''
    [Laughter.]
    Senator Franken. ``Right back at you.''
    Speaking of Senator Sessions, Senator Sessions would always 
ask judges or nominees who had talked about the need for 
diversity in court about what that meant. I was struck with 
Senator Cornyn talking about David Guaderrama, and he talked 
about his experience pumping gas. And he said that his breadth 
of personal experience will help him in that--I think he said 
``regard.'' I wrote ``garage,'' but I know it could not be 
that. So I think it was ``regard.'' You know, sometimes I am 
writing, and I do not--and it reminds me of something you said, 
and I think we talked about it the last time you were here. In 
a speech you gave before the Vietnamese American Bar 
Association, you said that a lack of diversity on the bench 
contributes to mistrust of the justice system in many minority 
communities. I agree with that. And so I guess it just--and 
then I think that whenever that was in a nominee's history of 
saying something about the importance of diversity, then-
Ranking Member Sessions would always ask, ``Well, doesn't that 
mean that''--you know, ``Isn't every person who comes before a 
judge entitled to complete objectivity? '' And the answer is 
always yes, of course. But I just want to maybe get in a little 
discussion with you about that because--I mean, Senator Cornyn 
is basically saying that the experience of pumping gas is 
important. One, you speak to the mistrust of the justice system 
if it is all--if the court does not reflect the community as a 
whole. Isn't that because, two, the quality of justice is 
different if all the judges have the same kinds of experiences?
    Judge Nguyen. Well, what I meant by that speech is that 
diversity obviously is very important. The judiciary is a 
public institution, and judges are public servants. And so if 
the judiciary does not better reflect the communities in which 
we serve, the credibility of the judiciary is hurt, and that is 
an issue that is important to all public institutions. And so 
that is what I meant by the value of diversifying not just the 
judiciary but other public institutions as well.
    But as I indicated to Senator Sessions, who was then the 
Ranking Member the last time I was before this Committee, the 
law does not change merely by virtue of a judge's gender or 
ethnicity, background or experiences. Those principles of law 
remain the same.
    Senator Franken. Sure.
    Judge Nguyen. And a judge's role is to interpret that law 
and then apply it to the facts of each case that may come 
before the court.
    Senator Franken. And I think that is important, and that is 
the answer that Senator Sessions and all of us are looking for. 
But I think it is just unrealistic to think that a judge's 
personal experience does not in some way--I think Oliver 
Wendell Holmes said that experience is the law, or something to 
that extent. And that is going to inform his or her judgment. I 
mean, it is ``judgment.'' ``Judge'' must be the root word of 
``judgment.'' Am I correct on that?
    Judge Nguyen. Well, I cannot really speak to other judges' 
backgrounds or experiences. My background and experience I 
think has helped my judicial temperament. It gives me an 
appropriate sense of humility when I review the facts of each 
case. I have an understanding and appreciation of how 
intimidating the court system can be, and so I think it does 
inform my temperament and my sense that judicial restraint is 
the appropriate way to handle each and every case.
    So I cannot divorce myself from my background. I think it 
does inform my conduct on the bench in that way. But, again, 
Senator Franken, I do not think it changes the law.
    Senator Franken. No, and I do not think anyone who suggests 
that a judge's experience is important is at the same time 
saying that that changes the law. But I think that it would be 
defying common sense to think that a judge's life experience 
does not inform how he or she judges. And I think that is a 
good thing to--that is why it is a good thing to have diversity 
on the bench because, otherwise, you know--I am sorry. Anyway, 
I think you know what I am saying, and I congratulate you on 
your nomination.
    Judge Nguyen. Thank you, Senator.
    Senator Franken. Thank you, Mr. Chairman.
    Senator Blumenthal. Thank you, Senator Franken.
    Thank you very much, Judge Nguyen. We appreciate your being 
here, and good luck to you, and thank you for your service to 
our Nation.
    Judge Nguyen. Thank you, Mr. Chairman.
    Senator Blumenthal. I would like to call the second panel: 
Mr. Costa and Judge Guaderrama. If you could stand. Do you 
affirm that the testimony you are about to give to the 
Committee is the truth, the whole truth, and nothing but the 
truth, so help you God?
    Mr. Costa. I do.
    Judge Guaderrama. I do.
    Senator Blumenthal. Thank you. We welcome you to the 
Committee and will give you a chance to make an introductory 
statement and introduce your family. I would like to say we 
appreciate having your families here, and, Mr. Costa, if you 
would like to begin.

STATEMENT OF GREGG JEFFREY COSTA, NOMINEE TO BE DISTRICT JUDGE 
               FOR THE SOUTHERN DISTRICT OF TEXAS

    Mr. Costa. Thank you, Senator Blumenthal, Ranking Member 
Grassley, Senator Franken, and the entire Committee for the 
opportunity to be here today and answer your questions.
    I want to, of course, thank President Obama for the great 
honor of this nomination. I want to thank Senators Hutchison 
and Cornyn for their generous remarks today and for 
recommending me to the President and to their judicial 
evaluation Committee which has supported me in this process.
    I also want to thank the Texas Democratic House delegation 
who first recommended me to the President, and in particular, 
to Representative Al Green from Houston and his judicial 
evaluation Committee who first contacted me about this 
position.
    I am fortunate today to be joined by a few members of my 
family and friends who are really the people who are the reason 
I am here today because of the support and opportunities they 
have provided me with over the years. And I would start with my 
mother and father, Robert and Susan Costa, who are here from 
Texas. My father spent most of his career in public service as 
a Federal employee and has set a great example for me to try to 
live up to.
    My wife, Jennifer, who is the kindest, most decent person I 
have ever met, is here today, along with my two sons, Elijah 
and Joshua. I am pretty sure they are far more excited about 
missing school today than they are about my nomination. But I 
do hope that by being here today they will learn something 
about how our great Constitution works. Also, my daughter, 
Rebecca, is at home, as Senator Hutchison mentioned. I say 
hello to her. And my sister, Allison, who lives in this area, 
is here as well.
    Then I am also fortunate, I have a couple friends from 
probably the genesis of my legal career when I was a high 
school debater at Richardson High School outside of Dallas. And 
then I have two former colleagues who I taught with in the 
Mississippi Delta for 2 years before I attended law school. So 
I thank them for being here, and I again thank the Committee 
for the opportunity today.
    [The biographical information follows:]

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    Senator Blumenthal. Judge Guaderrama.

   STATEMENT OF HON. DAVID CAMPOS GUADERRAMA, NOMINEE TO BE 
        DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS

    Judge Guaderrama. Thank you, Senator Blumenthal, Senator 
Grassley, and Senator Franken. I very much appreciate your 
inviting me to be here before you. I am truly honored to be in 
this room before this Committee. Thanks so much.
    A very special thanks to President Obama for the tremendous 
honor he does me with his nomination. I would also offer a very 
warm thanks to Senator Hutchison and Senator Cornyn for their 
very kind and generous words of introduction.
    I would also like to recognize my Congressman, Congressman 
Reyes, who is here in support. I am very grateful to him as 
well.
    Senator Hutchison, Senator Cornyn, and Congressman Reyes 
and their staffs have been tremendously supportive of my 
efforts in this process, and I am very, very grateful to all of 
them for that.
    I want to introduce to you my wife and sweetheart, 
Annalisa. We have been a couple and sweethearts for 12 years 
now. Annalisa is the deputy director of the State Probation 
Department in El Paso County. She has been extremely supportive 
of all the things that I have endeavored during the last 12 
years and very supportive throughout this nomination.
    I would also recognize numerous family members and friends, 
coworkers and colleagues who were unable to be here today, but 
they are following the proceedings on the webcast, and I thank 
them for a lifetime of support and for all the prayers they 
have offered during the nomination process.
    Finally, Senators, I would like to dedicate my purpose here 
today to my parents, who were cotton farmers south of Deming, 
New Mexico. They had but an eighth-grade education, and they 
dedicated their lives to raising and educating their children. 
Today would have been a day of tremendous pride for the two of 
them.
    Thank you for the opportunity to address you. I have no 
opening statement, and I look forward to answering your 
questions.
    [The biographical information follows:]

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    Senator Blumenthal. Thank you both, and I would just like 
to begin my questioning by observing that both of you have very 
distinguished careers of public service, even before your 
nomination--Mr. Costa as an Assistant United States Attorney, 
as a volunteer in Teach for America, also as a public servant 
in numerous bar association groups, and your pro bono 
activities, among other community activities; and Judge 
Guaderrama as chief public defender and as a judge magistrate. 
Both of you have served your community and State and country, 
and certainly I want to thank you, and I know the Committee 
appreciates all that you have done.
    Let me begin by asking you, Mr. Costa, I know that your 
recent career has involved a good deal of prosecution in the 
white-collar public corruption area. Do you think that the laws 
of the United States need to be strengthened or toughened to 
really encourage or empower stronger prosecutions in those 
areas?
    Mr. Costa. Thank you, Senator, for the question. I think 
there are on the books a number of statutes that are available 
to Federal prosecutors, and I know in some recent Supreme Court 
decisions, the Skilling decision has cut back on one of those 
statutes, the honest services statute. I know there are 
proposals in Congress to make amendments in response to that 
decision. But I do think that the arsenal Federal prosecutors 
still have is broad, and it takes hard work and sometimes 
creativity to find the right statute that applies to criminal 
misconduct. But Congress obviously should continue to look at 
ways to meet new challenges that you often have out there 
because of technology and other things that are expanding even 
the global reach of some of these criminal networks.
    Senator Blumenthal. And I know you are involved in the 
Stanford case as the lead co-counsel and have written about the 
honest services fraud statute in the Skilling case. I wonder if 
you have any comments on that issue in particular which you 
have just mentioned without talking about any particular case.
    Mr. Costa. Right, and I do not want to recommend any 
particular legislation. I do think in the writings I have 
looked at, there has been a reduction in honest services 
prosecutions in the 15 months or so since Skilling was decided. 
And in cases I looked at, part of that is prosecutors are just 
using alternative statutes, but then there may be some 
instances in which prosecutions are not available at the 
Federal level in light of that decision.
    Senator Blumenthal. And would your experience as a 
prosecutor--I recognize you have also served as a pro bono 
defense attorney at the behest of the NAACP Legal Defense Fund, 
so you have experience on both sides. But how do you think 
those experiences would inform your service as a United States 
district court judge?
    Mr. Costa. I think obviously the criminal cases, in 
particular sentencing, is probably the most awesome 
responsibility a Federal judge has, and so I think the 
experience I have had prosecuting criminal cases will be 
helpful in that regard, but also, as you mentioned, before I 
had ever prosecuted anyone, I represented a defendant pro bono, 
along with some others, a defendant from--there was an infamous 
drug sting in a town called Tulia in the Texas Panhandle. We 
represented him pro bono in a habeas post-conviction matter. He 
was wrongfully convicted, and fortunately both our defendant, 
Mr. Towery, and all the other defendants who were convicted in 
that sting were pardoned by Governor Perry.
    So I think that one experience I have on the defense side 
is a great illustration of the imperfections that do exist in 
the criminal justice system, but I would certainly look forward 
to the criminal cases on my docket as well as the civil cases.
    Senator Blumenthal. Judge Guaderrama, how would your 
experience as a public defender, do you think, shape your views 
of your role as a United States district court judge?
    Judge Guaderrama. Thank you, Senator, for that question. My 
role as a public defender I suppose would have some influence 
upon me if I were fortunate enough to be appointed to the 
bench. More influential would be my service as a State district 
court judge because there I served for 16 years and tried 
numerous cases of all different kinds. And so I feel like the 
influence of my service on the district court bench would 
influence my service on the Federal district court bench, if I 
were appointed to that, more so than my service as a public 
defender.
    I had a great time serving as a public defender. I enjoyed 
that work, but it has been over 16 years since I represented a 
criminal defendant.
    Senator Blumenthal. And you have served as a magistrate 
judge, which in many respects is a similar role to the U.S. 
district court judge, isn't it?
    Judge Guaderrama. Yes, sir. We play a minor role. We are a 
servant to the district court judge, and we see all the 
criminal cases that come into the district court come through 
the doors of magistrate court.
    Senator Blumenthal. And I do not know how it works in your 
district, but I know in Connecticut magistrate judges write 
opinions, they take pleas, they hear motions, pretty much--
well, a great deal of the duties that a district court judge 
does.
    Judge Guaderrama. Yes, Senator, that is correct. Every 
jurisdiction uses their magistrates differently. In our 
jurisdiction, because of the large number of criminal cases, we 
are used primarily for criminal matters, so we do the initial 
appearances, bail and detention hearings, preliminary hearings, 
those matters. We do take felony pleas for the district courts, 
and we write reports and recommendations for them on those 
matters as well.
    Senator Blumenthal. Thank you.
    Senator Grassley.
    Senator Grassley. Mr. Costa, tell me what you learned from 
being a clerk for two distinguished judges, Chief Justice 
Rehnquist and Judge Randolph.
    Mr. Costa. Well, those were two of my first jobs in the 
law, two great mentors. Judge Randolph ran an incredibly 
efficient chambers, was a fantastic writer, and a brilliant 
judge. The experience with the Supreme Court was really the 
experience of a lifetime, and with respect to the Chief 
Justice, Chief Justice Rehnquist was probably the most 
efficient lawyer I have ever seen. He also had a wonderful 
sense of humor, and while he had serious disagreements with his 
colleagues, he never let those become personal disagreements 
and always interacted with his colleagues in a professional, 
civil manner and always with that great sense of humor.
    Chief Justice Rehnquist also knew every single employee in 
that Supreme Court building. He did not just know their names. 
He knew about their families. He knew who their favorite 
football team was, and that was whether it was one of the other 
Justices or one of the cafeteria workers. I think that is also 
just a great lesson for all lawyers and all people to treat 
everyone with respect and understand the important role 
everyone plays in a courtroom or out in society.
    Senator Grassley. Do you think all those experiences have 
stayed with you and will help you be a good district judge?
    Mr. Costa. Absolutely. I hope so.
    Senator Grassley. I want to ask you something about Justice 
Rehnquist. He was often considered a conservative judge who 
relied heavily on the text of the Constitution and statutes to 
determine their meaning. And then we have Harvard law professor 
Larry Tribe taking this view: ``All fundamental constitutional 
principles require an elaborate process of inference and 
construction far beyond anything that is simply deductible or 
even readily inferable from the fixed text.''
    So to what extent would you agree with Professor Tribe?
    Mr. Costa. I am not too familiar with all those remarks in 
their context. You mentioned Chief Justice Rehnquist's approach 
to constitutional analysis. He would give the text considerable 
deference and focus, but he would not exclusively look at that. 
He would consider certainly precedent, certainly the history of 
that constitutional provision, and the structure of the 
Constitution, how that provision might interact with other 
provisions.
    So judges do have those different tools that Chief Justice 
Rehnquist and other Justices use to interpret constitutional 
provisions, and if I were fortunate enough to be confirmed, I 
would use those tools to try to come up with the most 
consistent ruling consistent with the intent of that provision.
    Senator Grassley. You sound closer to Justice Rehnquist 
then than what I quoted from Larry Tribe. Is that a fair 
conclusion?
    Mr. Costa. I do not know where I would be on that spectrum. 
Again, I am not too familiar. But I obviously would use the 
commonly accepted tools of interpretation when faced with those 
types of issues.
    Senator Grassley. You told me a lot about Justice Rehnquist 
and his personal life and interrelations with other people. 
What influence did he have in the development of your views of 
constitutional and statutory interpretation?
    Mr. Costa. I think certainly seeing how the Court worked, I 
would say not just Chief Justice Rehnquist, but you get to 
interact as a clerk with other Justices. I learned a great deal 
from all of them, and certainly the seriousness which they all 
approached their job with. Bringing an open mind to cases and 
not having preconceived notions is something that I think the 
Justices all try to do, and it is certainly how I would hope to 
approach those issues if fortunate enough to be confirmed.
    Senator Grassley. Well, if confirmed--and you probably will 
be--what will you look to when interpreting provisions of the 
Constitution or Federal statutes?
    Mr. Costa. I think you start with the text. You also want 
to look at, again, the Constitution, the history behind that 
amendment or provision. You want to look at, concerning 
constitutional cases, the structure. In statutory cases you 
want to look, again, first at the text and the plain language. 
There are also well-accepted canons of statutory interpretation 
that should be applied if there is ambiguous language. And 
then, of course, you want to look--especially as a district 
court judge, you are bound by precedent from both the Supreme 
Court and the circuit court of appeals, and you would want to 
look at that precedent as well as perhaps authority from other 
courts that might not be binding precedent. They might be from 
other circuits or other district courts, but you would 
certainly look at that as persuasive authority.
    Senator Grassley. Judge, let me ask you a few questions. 
Prior to becoming a judge, you were primarily a defense counsel 
in your private practice as well as public defender. What was 
most difficult for you in transitioning from your role as an 
advocate to that of a neutral arbiter? Do you believe that you 
have successfully made that transition?
    Judge Guaderrama. Yes, thank you, Senator. I do believe I 
have successfully made that transition, and I am not so sure 
that it was a hard thing to do, but I had to step out of my 
role as an advocate and step into the role of being a fair and 
neutral and detached magistrate or determiner of the law. So 
that was the most difficult thing, just to be able to give an 
opportunity to be heard to both sides and to consider both 
sides before reaching any kind of a decision. I did not find 
that particularly difficult. I thought it was actually fairly 
easy.
    Senator Grassley. OK. As chief public defender there in El 
Paso, you defended your office in one particular case where 
there were accusations that your office violated its duty of 
candor to the court. The Texas Committee on Professional Ethics 
agreed with you that there was no violation of duty. Having now 
been a judge, would you share with the Committee your 
perspective on the view you took as chief public defender?
    Judge Guaderrama. Yes, sir, Senator. Thank you. In that 
particular case it involved a sentencing hearing in which the 
prosecution had a rap sheet of our client's criminal history, 
and that rap sheet did not include a prior conviction that our 
client had. So at the sentencing, I believe--I am going from 
memory here, and I am hoping this is correct. But I believe the 
court asked the prosecution whether or not he had a criminal 
history. The prosecutor, looking at the rap sheet, said, ``No, 
he has no convictions.'' He turns to the lawyer from our office 
and says, ``Right? '' And our lawyer knew full well that he did 
have a prior conviction, and so he stood mute. He did not say 
anything. He just stood mute because he as a lawyer cannot give 
up his client's secrets and tell the prosecutor, ``Yes, he does 
have these convictions.'' So in order to live by his oath as an 
attorney to hold his client's confidences, he stood mute, which 
is what he is required to do. He did not in any affirmative way 
assist in the misinformation that was being given to the court.
    Once the case was over, the judge had heard about the 
client had a prior conviction, contacted me, and was concerned 
about that. So then we contacted the Ethics Commission, asking 
them for some guidance, because we knew this situation would 
repeat itself. And we understood that the client's Fifth 
Amendment privilege, his right to counsel, and some Texas Code 
of Criminal Procedure sections would be violated if we were to 
give up the information that the Canons of Ethics required. And 
so we sought the advice of the Ethics Commission, and they 
decided that our position was correct, to stand mute and not 
encourage the misinformation.
    Senator Grassley. You sat by designation of the Texas Court 
of Appeals in State v. Alderete, I believe is the name of it.
    Judge Guaderrama. Yes, sir.
    Senator Grassley. At issue in that case was whether 
officers had reasonable suspicion to make an investigatory stop 
of a suspected drunk driver. While the majority found 
reasonable suspicion, you dissented. The majority criticized 
your analysis for engaging in ``a divide and conquer approach, 
arguing assumptions that were not presented to the trial court, 
which the United States Supreme Court and Court of Criminal 
Appeals have condemned.''
    Would you mind addressing the majority's criticism of your 
analysis?
    Judge Guaderrama. Yes, Senator, thank you. That was the 
word that was used in the opinion. I certainly recognize that 
that is the majority opinion. I do not have any conflicting 
things to say about that.
    My opinion was different. I do not believe that I engaged 
in a divide and conquer type of analysis; rather, I thought I 
was applying the Gates totality of circumstances test exactly 
the way the Supreme Court had set it out, which is you consider 
the entire circumstances, all the circumstances, not just one 
particular fact. And so the point of my dissent was considering 
the entirety of the circumstances, then there is not sufficient 
reasonable suspicion for the stop at the point they made the 
stop.
    Senator Grassley. I have one more question, and then I 
might submit a couple for answer in writing.
    In 2000, you presided over a drunk driving case of David 
Renteria. This case was the third instance Mr. Renteria was 
caught driving under the influence while on probation for the 
previous crime, the fondling of a 6-year-old girl. Despite 
recommendations from the county's Adult Probation Department 
that Mr. Renteria be sent to prison to serve his 10-year 
sentence, you went along with the prosecutor's request for 
continued probation. Approximately 1 year later, Mr. Renteria 
was charged with the murder of a 5-year-old girl. Learning 
about that arrest, you stated, ``Obviously our whole community 
feels terrible about the death of the 5-year-old girl, and 
those of us who were close to this case are losing sleep over 
it, wondering where did we go wrong and what would we do 
differently next time.''
    Could you explain your rationale behind letting the three-
time parole violator continue his probation? Second, during 
this period of reflection, what, if anything, did you determine 
you did wrong? And, three, what did you change to ensure that a 
similar circumstance would not occur in a later case?
    Judge Guaderrama. Yes, sir, thank you, Senator. First, I 
would like to say that to this day I am very regretful for what 
happened to Alexandra Flores as a result of that case. In that 
case, the probation that I extended to that defendant was 
recommended by the prosecution. This was a prosecutor's plea 
bargain with the defendant, and it was not a plea bargain that 
was outside the norm of those bargains that are given to 
defendants who are similarly situated. And so there was not 
anything unusual about that case that would somehow foretell to 
us that this drunk driver was going to be a future killer.
    And looking back, I have had numerous cases that were 
similar in nature and similar circumstances where nothing bad 
happened. In this one case, a disaster happened.
    I am not sure, looking back, that there is anything that we 
would change in that the plea bargaining process is something 
that is important to the criminal justice system. It is 
something that is freely engaged in by the prosecution and the 
defense. And I certainly regret what happened; however, I 
probably did the same thing in numerous other cases where we 
did not have these poor results.
    Senator Grassley. Thank you, Judge.
    Judge Guaderrama. Thank you, sir.
    Senator Grassley. Thank you, Mr. Chairman.
    Senator Blumenthal. Thank you, Senator Grassley.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Mr. Costa, as you might know, I am a copyright holder, and 
I care a tremendous amount about preventing and prosecuting 
intellectual property theft. You successfully prosecuted a case 
where two brothers in Texas were selling counterfeit Cisco 
products manufactured in China. As I understand it, you won an 
award for your work in that case, and I first just want to say 
thank you for that. We need more prosecutors like you who are 
aggressively pursuing intellectual property theft.
    From where I sit, it seems that China has an entire segment 
of its economy dedicated to IP theft, and I fear we will never 
be able to halt this problem with prosecutions alone. Do you 
think that that is a fair statement? And do you have any ideas 
of what we could do to put more pressure on China to address 
its piracy problems?
    Mr. Costa. You are correct, Senator. It is a large problem 
that threatens Americans who own this intellectual property, a 
large number of American workers. The case you mentioned, it 
was a Cisco product. Cisco employs thousands of Americans in 
California. There are a number of tools to combat it, in the 
extreme cases criminal prosecution, and I think the customs 
officials have stepped up that enforcement. There is a new 
Federal task force the last couple of years. My prosecution was 
part of that.
    I also had another prosecution where an individual in 
Houston was importing counterfeit Cisco parts again, and he was 
planning to fulfill a contract for the Marines in Iraq. And, 
fortunately, he was caught before he transmitted those to the 
Marines because in that situation it could have caused security 
harm for the Marines who were relying on that computer network 
and thinking they were getting genuine safe parts.
    In addition to the criminal remedies, there are civil 
actions, obviously, that can be taken. It is difficult in China 
because--obviously, the reach of the law does not extend that 
far. In both of the cases I prosecuted, we had some information 
about the Chinese manufacturers and suppliers. Obviously, we 
would like to bring them to justice, but China does not 
extradite--it does not have an extradition treaty with the 
United States.
    So I think some of those challenges of actually reaching 
the manufacturers in China would really have to be dealt with 
at the diplomatic level and through maybe 1 day having 
extradition rights with China.
    Senator Franken. Thank you.
    Judge, I am interested in learning about alternatives to a 
traditional adversarial criminal justice system, and I am a 
proud cosponsor of Senator Webb's National Criminal Justice 
Commission Act, which I hope we take up again because it 
narrowly--it was filibustered. And that would provide us with a 
comprehensive review of the entire justice system.
    I understand that you implemented the first drug court in 
El Paso. You wrote in the El Paso Bar Journal that drug courts 
``are successful in many cases.'' Can you elaborate on your 
experience in that and on your experience with drug courts?
    Judge Guaderrama. Yes, sir, thank you, Senator. The drug 
court experience in the world of the State district court judge 
was very rewarding because in the drug court we are able to see 
successes that we did not normally see in the regular business 
that we did at the court. Drug courts, of course, are for--
there is a national model, and there are some requirements for 
those individuals that come into drug court. One, they cannot 
have a violent criminal history. They cannot be drug dealers of 
any kind. They need to be drub abusers or addicts. And they 
have to have a criminal history of the nature that the district 
attorney would not feel uncomfortable in recommending those 
individuals for the drug court.
    But once we have them in the drug court, as you mentioned, 
it is an alternative to the adversarial system. It is a 
therapeutic system where basically everyone on the team--and 
there is a team of an assistant district attorney and assistant 
public defender, a police officer or sheriff's deputy, a 
probation officer, and a number of treatment providers that 
come together to form a therapeutic unit where we are trying to 
address this individual's drug use.
    We also try to address their life problems, which 
oftentimes dictate their drug use. We found often that many of 
the people in our drug courts were dually diagnosed and that 
they had mental illness as well as an addiction. And so we had 
a number of challenges in the drug court trying to address 
these things, but it was a very rewarding challenge.
    One of the most rewarding things I did on the district 
court bench was to operate that drug court. When you saw 
successes, when you saw people turn their life around, when you 
saw people start to care about themselves again and their 
families that they had alienated before, start drifting back 
into their lives and making them whole and productive members 
of our society, it was a great thing.
    They are time-consuming, they are expensive, but for those 
successes that we had, they were worth it.
    Senator Franken. You say they were time-consuming and 
expensive, but would you say that on balance the use of drug 
courts saves society money or is more expensive than not?
    Judge Guaderrama. I would think we need more research into 
that. My gut feeling is that the money we would save from 
incarcerating this individual, which current estimates are 
between $30,000 and $50,000 to incarcerate that person for 1 
year, if we spend $6,000 or $7,000 up front in treatment, we 
might be able to save society that extra cost on the back side. 
And so that basically was the premise that we were operating 
under, and I just do not have any hard facts----
    Senator Franken. How long were you involved in the drug 
court?
    Judge Guaderrama. Ten years.
    Senator Franken. OK. Well, over a 10-year period, you must 
have taken some kind of--you must have an opinion on those. I 
am not asking you for data. I am asking you for your opinion.
    Judge Guaderrama. My opinion is that drug courts work and 
do save society money. I do not have any hard facts about that. 
It would have been nice to have had the money to do that sort 
of study, but the few resources we had, we plowed them into 
services for our clients.
    Senator Franken. Well, thank you both, and you are both 
very impressive, and I thank you, Mr. Chairman.
    Senator Blumenthal. Thank you, Senator Franken.
    Again, thank you both, and especially your families and 
friends for being here today. I want to just close by observing 
I was a law clerk to Justice Blackmun on the Supreme Court. 
Before that, I was a law clerk to a district court judge, and 
the clerkship on the Supreme Court was, as you have observed, 
Mr. Costa, life-changing. But the district court I think 
changed my perspective equally so and in my view is, without 
meaning any disrespect, as important a job as being a Supreme 
Court Justice because of the lives that you affect and the 
people you touch. So I join in the hope and belief that you 
will be confirmed, speaking just personally, and I wish you 
well and, again, thank you very much for your service and thank 
your families for being here. Thank you so much.
    Mr. Costa. Thank you, Senator.
    Judge Guaderrama. Thank you, Senator.
    Senator Blumenthal. I am going to adjourn this hearing and 
leave the record open for 1 week in case there are additional 
questions from any of the Senators. Thank you very much.
    [Whereupon, at 11:29 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



 NOMINATIONS OF KATHRYN KENEALLY, NOMINEE TO BE AN ASSISTANT ATTORNEY 
  GENERAL; AND, BRIAN C. WIMES, NOMINEE TO BE UNITED STATES DISTRICT 
        JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF MISSOURI

                              ----------                              


                      WEDNESDAY, NOVEMBER 16, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:34 p.m., Room 
226, Dirksen Senate Office Building, Hon. Herb Kohl, presiding.
    Present: Senators Schumer and Grassley.

 OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Kohl. Good afternoon. Today we meet regarding two 
important nominations before this committee.
    Ms. Kathryn Keneally, nominated to be the Assistant 
Attorney General in the Tax Division at the Department of 
Justice, and Brian Wimes, nominated to be District Court Judge 
for the Eastern and Western Districts of Missouri.
    We welcome these distinguished nominees and their families 
and friends who have come here in support. We also thank 
Senator McCaskill, and possibly Senators Schumer and Blunt, who 
will be here to introduce them.
    We can all agree on the importance of the tax division.
    Senator Schumer. It is more possible than you think, Mr. 
Chairman.
    Senator Kohl. It sure is. Ever present.
    [Laughter.]
    Senator Kohl. We can all agree on the importance of the tax 
division. It carries out a critical mission on behalf of all 
taxpayers to fairly and consistently enforce our tax laws. In 
doing so, the division collects hundreds of millions of dollars 
in restitution and fraudulent refunds every year. It also 
promotes voluntary compliance with the law and maintains the 
public's confidence and the integrity of our tax system.
    The division has been without a confirmed head for more 
than 2 years now. And so we look forward, Ms. Keneally, to 
hearing from you about the values you will bring to the 
division and the priorities that you will set.
    Judge Wimes, just as our top Department of Justice 
officials are charged with maintaining public confidence and 
the enforcement of our laws, judges have a solemn duty to 
uphold the public's trust in our justice system.
    Day in and day out, our Federal district court judges are 
the faces of the justice system for all types of litigants, 
from businesses with commercial disputes to victims and 
defendants in criminal cases.
    Judge Wimes, this will be our only opportunity to hear from 
you and learn about what sort of judge you will be, should you 
be confirmed for this lifetime appointment to the Federal 
bench.
    The Senate takes its duty seriously to advise and consent 
on executive and judicial nominees and to ensure that each 
nominee possesses the qualifications, the integrity, and the 
intellect to carry out his or her responsibilities.
    This hearing is an important step in that process. We thank 
you for being here. We look forward to your testimony.
    We turn now to my friend and colleague, Senator Grassley, 
for his remarks.
    Senator Grassley. You know what I am going to do? I am 
going to let our two colleagues go ahead of me, if that is OK 
with you, Mr. Chairman, Senator McCaskill, and you have a 
nominee you want to introduce. So why do not either one of you 
go ahead of me?
    Senator Kohl. Terrific. Senator McCaskill? And then Senator 
Schumer.

PRESENTATION OF BRIAN WIMES, NOMINEE TO BE U.S. DISTRICT JUDGE 
   FOR THE EASTERN AND WESTERN DISTRICTS OF MISSOURI BY HON. 
  CLAIRE MCCASKILL, A U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator McCaskill. Thank you, Mr. Chairman. And thank you, 
Senator Grassley. It is a pleasure to be with you today.
    I was reviewing the nominee's resume and it brought back 
such pleasant memories for me, because what jumped out at me, 
looking at his resume, was the fact that in 1995 he received 
the Rookie of The Year Prosecutor Award in the Jackson County 
prosecutor's office, and I remember deciding that Brian Wimes 
should be the Rookie of the Year and why he got that award. And 
it was because he stood out immediately as a very young 
prosecutor as a leader; as someone who his follow prosecutors 
looked to even though he was a brand new attorney in the 
office; and, someone who I could rely on and be confident of 
his judgment. And, clearly, his character was reflected in the 
work that he did.
    He went on from being an assistant line prosecutor in the 
office, having major felony responsibility, to being a Drug 
Abatement Response Team coordinator, which meant that I put him 
out in the community, where he worked with communities trying 
to identify and use creative strategies to shut down drug 
houses and make neighborhoods whole again that had been 
decimated by unfortunate, too frequent occurrences of drug 
houses in our community.
    He then went on to be a community prosecutor, where he 
worked with communities doing even more than shutting down drug 
houses, looking at all of the concerns a neighborhood had that 
related to crime and public safety; a senior prosecuting 
attorney; and, then, by judges of the circuit, he was selected 
to be a drug court commissioner. And that is important because 
he had appeared in front of all these judges as a prosecutor.
    And for the judges to select Brian Wimes to be a 
commissioner to run the drug court was a very high honor, 
because it meant that they saw in him his ability to be fair 
and have the right kind of demeanor and attitude on the bench.
    From drug court commissioner, he went on to be appointed a 
circuit judge in Kansas City, where he has been a trial judge 
for a number of years, presiding over a trial docket and having 
some 300 different cases that may be going at one time; 
obviously, presiding over dozens and dozens and dozens and 
dozens of jury trials.
    So this will be a Federal judge that knows what it is like 
to be in the courtroom and knows what it is like to be on the 
bench, letting the lawyers try their cases, being swift and 
efficient, but also very fair.
    He is here with his wife, Michelle, who is the brains of 
the operation. She is also an attorney and has a very 
successful law practice in Kansas City. And their three 
beautiful daughters--I cannot believe they are this grown up--
Sydney, Gabby & Saige are all here with them today.
    This is a great family. This is a good man. He will wear a 
lifetime appointment with the kind of humble attitude that we 
so desperately need on the Federal bench. This is not someone 
who will ever get robeitis. This is not someone who will ever 
take his position for granted. This is someone who will treat a 
lifetime appointment with the respect that it deserves.
    I am so thrilled that he is here today, and I hope the 
Committee gives him very quick and favorable consideration.
    Thank you Mr. Chairman.
    Senator Kohl. Thank you for that great introduction.
    Senator Schumer.
    Senator Schumer. Thank you. And I want to thank my friend 
and colleague from Missouri for her wonderful introduction. I 
always learn something. I have never heard of the expression 
``Robeitus.'' I guess that is a prosecutor's term. I guess you 
take Robitussin to get rid of it.
    [Laughter.]
    Senator McCaskill. Change of judge.
    Senator Schumer. Change of judge, we cannot do that in 
Washington at the Federal level. So that is why your comments 
are so important. But thank you, and I welcome your nominee 
here and his beautiful family, including those beautiful girls 
here, as well.
    And now it is my honor to introduce a great New Yorker, 
Kathryn Keneally. She is a lifelong New Yorker, unless you 
count her first 6 months of life when her father was stationed 
at the Wright Patterson Air Force Base near Dayton, Ohio. And 
her roots are deep.
    Her mother--her grandmother was a garment worker. So was 
mine. Her grandfather was a taxi driver. So was my father-in-
law. So we are sort of a little similar that way.
    Ms. Keneally's mother retired from teaching sixth grade in 
Hicksville, Long Island, which is a great school district, and 
now has become the minister of the Unity Church of Christianity 
in Valley Stream, where we are trying to get the flood zones 
changed, I want to let you know, Ms. Keneally, so they do not 
have to pay in their houses.
    I do not know if it is in your part of Valley Stream where 
your church is, but the flood insurance was just tacked onto a 
whole lot of people there, and we are working to get it back.
    Her father, who has passed away, I am sure he is looking 
down from Heaven very proud of his daughter, was an engineer at 
Sperry Rand on Long Island. So you were really a vintage Long 
Islander to have a mother as a school teacher, a father an 
engineer at Sperry Rand, now your mother a minister, that is 
great.
    Anyway, Ms. Keneally stayed in New York for her higher 
education from two of the best institutions in New York and the 
country. She graduated from Cornell University and was first in 
her class at Fordham Law School, and that is a very competitive 
law school. So that is extremely impressive.
    Although New York will miss her, though we hope you keep 
your legal residence in New York, Ms. Keneally is imminently 
qualified to head DOJ's tax division, and I am proud to support 
her. She received her LLM in tax law from New York University 
School of Law, another outstanding New York institution; has 
spent over 25 years representing clients in tax controversies.
    She is currently a partner in Fulbright & Jaworski's New 
York office. She serves as vice chair of the ABA taxation 
section. She has represented clients in every area of tax law 
from making presentations to the IRS on tax treatment issues to 
try in criminal tax enforcement matters.
    Now, maybe more than ever as we face these difficult 
economic times, it is really important to have someone in this 
position who is fully dedicated to making sure that our tax 
laws are enforced firmly and evenly and who has the expertise 
to make it happen.
    I look forward to Ms. Keneally's leadership in this 
important area, when she is confirmed, as I am sure she will 
be.
    Thank you, Mr. Chairman, Mr. Ranking Member, for the 
opportunity to introduce her today.
    Senator Kohl. Thank you. Thank you very much for that great 
introduction.
    Senator Grassley? I am sorry. Senator Schumer, now we turn 
to Senator Grassley.

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

    Senator Grassley. Well, of course, like everybody else, I 
welcome the nominees before us today, and I particularly 
enjoyed a conversation with Ms. Keneally yesterday in my 
office. She is nominated to be an assistant attorney general.
    I am pleased that Chairman Leahy and I were able to reach 
an agreement on the timing and format for her hearing today. I 
express my appreciation to Chairman Leahy for the way that we 
are proceeding on the nomination.
    If confirmed, Ms. Keneally will head the tax division. The 
mission of that division is to enforce the Nation's tax laws 
fully, fairly, consistently, through both criminal and civil 
litigation. It has a duty to ensure compliance with the tax 
laws, maintain public confidence and the integrity of our 
system, and promote the sound development of law.
    The assistant attorney general for tax is an important and 
unique position. In order to be effective, this person must 
have a strong command of the tax laws and maintain a strong 
working relationship with the IRS.
    Given the severe debt and deficit situation facing our 
country, it is imperative that the IRS collect every dollar of 
tax that is owed to the government.
    I have always said that taxpayers should pay what they owe, 
not a penny more, not a penny less. The assistant attorney 
general for tax plays an important role in helping the IRS 
collect their taxes.
    It is disappointing that we have not been able to get a 
qualified candidate into this position for 3 years. The first 
nominee for this position, while very qualified for any number 
of other legal positions, had no tax experience and was wholly 
unqualified for this tax position.
    After her nomination was withdrawn, it took over a year for 
the President to submit Ms. Keneally's nomination. In contrast 
to the first nominee, Ms. Keneally has significant tax 
experience and will hopefully be a valuable addition to the 
Department of Justice.
    I was pleased to meet with her yesterday, as I just said. 
We had a good visit, and I will look forward to her testimony 
and my opportunity to question her.
    In addition, we will be considering the nomination of Brian 
Wimes, nominated to be a U.S. District Judge for the Eastern 
and Western Districts of Missouri.
    I would note that we are making real progress with regard 
to the nominations of President Obama, to the Federal 
judiciary. Today marks the 18th nominations hearing held in 
this Committee this year, and we will have heard from 70 
judicial nominees.
    All in all, nearly 89 percent of President Obama's judicial 
nominees have received a hearing. The Senate has confirmed 20 
Article 3 judicial nominees during the past month and a half, 
and we have now confirmed 58 judicial nominees in this Congress 
alone.
    With the confirmation of two judges yesterday, over 70 
percent of the President's nominees have been confirmed.
    I am going to have a full statement for the record, and I 
yield the floor.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Kohl. Thank you very much.
    Ms. Keneally, will you step forward, please? Raise your 
right hand and take the oath.
    [Witness sworn.]
    Senator Kohl. So we will now accept your recognition and 
introduction of your family, as well as a statement, and then 
we will get on to the questions.

STATEMENT OF KATHRYN KENEALLY, NOMINEE TO BE ASSISTANT ATTORNEY 
                            GENERAL

    Ms. Keneally. Thank you, Senator Kohl and Senator Grassley.
    I just want to state that I am appreciative of the 
comments, the very, very kind and generous comments that 
Senator Schumer made. I'm deeply grateful, also, to my 
wonderful husband, Tom Marshall, who is here today, for his 
constant love and support. He is joined here today by my 
mother, Reverend Joanna Keneally, who's constant guidance is 
central in my life.
    I'm also grateful for this moment to acknowledge my father, 
who we lost many years ago, but who I know would be proud 
today.
    I would also appreciate the opportunity to acknowledge my 
sister, Theresa Palmisano, who is a charter school teacher in 
Florida, and my nephew, Billy, and my niece, Katie. I believe 
that they are watching with some of my students--my sister's 
students at the Franklin Academy on the committee's Webcast.
    And I would like to express my gratitude to my colleagues 
at Fulbright & Jaworski who I also believe are watching the 
committee's Webcast.
    I also want to express my profound gratitude to the 
President for his confidence and the confidence he's shown in 
nominating me to the attorney general, for his strong support, 
and to the members of the Committee for holding this hearing 
and for considering my nomination.
    If I am confirmed, I will do my very best to be worthy of 
the privilege of serving as the assistant attorney general for 
the tax division. And I look forward to the committee's 
questions.
    Thank you.
    Senator Kohl. Thank you so much.
    [The biographical information follow.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Keneally, the tax division has been operating, as you 
know, without a confirmed head for more than 2 years now. What 
challenge does this pose? And should you be confirmed, what 
priorities will you set for the division?
    Ms. Keneally. Thank you, Senator, for that question. I have 
the greatest of respect for the tax division. I believe it is 
doing very good work today.
    In terms of priorities, my very first priority will be to 
listen and to learn what the tax division is currently doing, 
if I'm fortunate enough to be confirmed.
    I do understand that a current priority is offshore tax 
compliance and the offshore tax compliance initiative, and I 
think that is a very important priority. And if I'm fortunate 
enough to serve, I would be very supportive of that priority.
    In addition, I think it is always important that the tax 
division pursue enforcement against fraudulent tax schemes and 
those who promote fraudulent tax schemes, including 
professionals who lead taxpayers into false returns or 
fraudulent positions. And if I'm fortunate enough to serve, I 
would see that as a priority. And I understand it is always a 
priority that we enforce the laws against tax defiers.
    Senator Kohl. What is your background that brings you here 
today in terms of your professional experience?
    Ms. Keneally. My practice area is in representing taxpayers 
both in civil and criminal tax matters. I've been doing that 
for well over 25 years.
    My education is in tax law. I have an LLM in tax. I've also 
served in various capacities at the ABA tax section. I chaired 
the Committee on Civil and Criminal Tax Penalties. I chaired 
the Committee on Standards of Tax Practice, which is the ethics 
Committee of the tax section. And I'm now a vice chair of the 
tax section. And in those capacities, I have worked with the 
IRS, with the tax division, with the Treasury Department in 
terms of making recommendations on tax enforcement policies.
    Senator Kohl. Ms. Keneally, last year, the tax division 
collected $566 million in unpaid taxes, and, yet, the IRS data 
suggested that the annual tax gap between taxes paid and the 
amount of remaining unpaid tax revenue in this country is close 
to $300 billion a year.
    I understand now that the tax division's role is limited to 
certain civil litigation and criminal cases that are referred 
to you or to it by the IRS.
    Nevertheless, what more can or would your division do, 
working with the IRS, to help close that tremendous tax gap?
    Ms. Keneally. I appreciate that issue, Senator, very much. 
I believe that it is important that the tax laws be enforced so 
that those taxpayers who are in compliance have confidence in 
the integrity of the tax system and that it is--that they are 
treated fairly because those who are not in compliance are 
pursued.
    I believe that the selection of cases, in order to get the 
message out and to create the deterrence and voluntary 
compliance by everyone else, is a very effective way to close 
the tax gap.
    So if I am fortunate enough to be confirmed, I believe a 
commitment to full enforcement is important and priority.
    Senator Kohl. How many lawyers are there in this part of 
the DOJ?
    Ms. Keneally. My understanding is that it is--I've seen 
numbers that say between 350 and 400, if the numbers that I've 
seen----
    Senator Kohl. Well, you have a great staff there, at least 
in terms of numbers and, I am sure, quality to pursue 
collection of unpaid taxes.
    Ms. Keneally. Senator, I've had the privilege of 
representing taxpayers in matters where--well, I've been on the 
other side of the table from the Department of Justice tax 
division. I know them to be great and dedicated lawyers.
    Senator Kohl. All right. The tax division has recently made 
a major push to prosecute individuals and corporations that 
hide their income and assets in offshore bank accounts to avoid 
paying taxes.
    This costs the government, according to some estimates, up 
to $100 billion a year in lost revenue.
    In written commentary, you've been critical of certain 
enforcement efforts against citizens and corporations accused 
of hiding profits in foreign tax shelters.
    Given these views, can we count on you to continue the 
division's efforts and to do an even better job in aggressively 
pursuing offshore tax shelters?
    Ms. Keneally. Absolutely, Senator. I applaud the work done 
by the Internal Revenue Service and by the tax division in its 
offshore enforcement. I have made some comments that were 
directed to certain aspects of how matters were handled, some 
of which have resulted--both the IRS and the division have made 
certain changes over time in the practices as result of some 
things that the private bar has called to its attention, but I 
absolutely applaud that effort and would be committed, 
absolutely, to the enforcement in the offshore tax matters. I 
view that as an absolute priority.
    Senator Kohl. Thank you. Finally, what leads you to this 
job possibly here today? You have been a successful 
practitioner in private litigation and, I am sure, making a lot 
more than you are going to make as a public servant.
    So what brings you here today?
    Ms. Keneally. It is an absolute privilege to serve one's 
country and I would value that privilege, if I am fortunate 
enough to be confirmed. This is an area that has been the heart 
of my career and it is a place where I think I can bring 
experience and skill to serve my country, and I would welcome 
that opportunity.
    Senator Kohl. Thank you.
    Senator Grassley.
    Senator Grassley. Thank you once again for coming to my 
office yesterday. A couple questions I am going to ask you 
first are questions that I ask every assistant attorney general 
and maybe other people in other departments.
    Would you commit to working with Congress, the Government 
Accountability Office, and any inspector general, where 
applicable, in a timely and constructive manner, to address the 
oversight and other needs of Congress and would you also 
encourage others to do so, even in, in encouraging others to do 
so, yo might not get them to do it?
    Ms. Keneally. I am sorry, Senator, I----
    Senator Grassley. Maybe I should not have ad libbed the 
details.
    [Laughter.]
    Ms. Keneally. I am sorry, Senator. I just want to make sure 
I understand the question, because I would take any Committee 
seriously.
    Senator Grassley. Let me just repeat it, please. Will you 
commit to working with Congress, the Government Accountability 
Office, and any IG, where applicable, in a timely and 
constructive manner to address the oversight and other needs of 
Congress, and will you encourage others to do so?
    Ms. Keneally. Senator, I understand this question from our 
discussion yesterday. I would certainly, as I said to you 
yesterday, be responsive to any inquiries, absolutely, from 
your office or from the Senate or any other branch of the 
government, as appropriate.
    Senator Grassley. Thank you. The second question that I ask 
everybody is along the same lines, but be a little more 
specific, because a lot of times, we do not get correct 
answers; sometimes, not ever, but generally not in the first 
response.
    Would you respond in a timely and substantive manner to any 
requests that I make?
    Ms. Keneally. Senator, I cannot imagine that I would not 
respond to an inquiry that would come from a Senator.
    Senator Grassley. Why not stop there?
    [Laughter.]
    Senator Grassley. As we also discussed yesterday, for more 
than 10 years as Chairman and then Ranking Member of the Senate 
Finance Committee, I joined Chairman Baucus to close the tax 
gap.
    In addition to closing loopholes, we also provided the IRS 
with tools to root out tax evasion, including mandatory 
disclosure of possible tax shelters. In the April-May 2007 
edition of the Journal of Tax Practices and Procedures, you 
expressed concern that, ``The war on tax shelters will give 
rise to entrenched enforcement mindset.''
    Later that year, in the October-November 2007 edition of 
the same publication, you published another article titled, 
``The Increasing Risky Business of Tax Gap Evasion and 
Voluntary Disclosure.''
    I would like to better understand your position, so I would 
ask these questions. One, over the course of your long career 
as a tax professional, apart from your tax controversy work, 
did you ever conduct tax planning for clients?
    Ms. Keneally. No, sir.
    Senator Grassley. No, sir. You said no.
    Ms. Keneally. No, Senator. I did not conduct tax planning 
and----
    Senator Grassley. That is OK. Did you help develop any tax 
shelters or advise your clients to participate in them or in 
any listed transactions?
    Ms. Keneally. Certainly not, Senator.
    Senator Grassley. It seems from the April-May 2007 article 
that you believe that the IRS is focusing too much on tax 
shelters and listed transactions. How would you reconcile this 
position with the fact that many of us in Congress and, 
particularly, the public at large, believe just the opposite?
    Ms. Keneally. Senator, thank you for the opportunity to 
clarify. I believe that the IRS and the tax division accorded 
necessary resources to the enforcement against the tax shelter 
industry. I believe that that was an essential battle for tax 
enforcement and that the IRS and the tax division should be 
commended for the very good work that they did.
    My article was directed at the need for fairness to all 
taxpayers who come before the IRS. There were certain 
mechanisms that were put in place that were important and 
useful in tax shelter enforcement that may be a bit much in the 
average examination of the ordinary taxpayer, and my article 
was intended to get at that. And we have recently seen that the 
IRS has made some changes along the lines that were suggested 
in that article. But I am firmly committed to tax shelter 
enforcement and, frankly, it has been my experience as a 
private practitioner that you see it arise in the vacuum of 
enforcement, and I think there always needs to be diligent 
enforcement in that area.
    Senator Grassley. Do you want your second round now?
    Senator Kohl. Go ahead.
    Senator Grassley. Thank you. I would like to ask about the 
Internal Revenue Service whistleblower program. While there is 
a longstanding whistleblower reward program at the IRS, I 
authored changes to those provisions in 2006. The changes were 
made to incentivize whistleblowing on big dollar tax fraud.
    A recent Government Accountability Office report indicates 
that my efforts were successful. The IRS has received tips on 
more than 9,500 taxpayers from 1,400 whistleblowers in just 5 
years.
    However, I remain concerned that the IRS, like the Justice 
Department, with the False Claims Act revisions that I did in 
1986, continue to treat whistleblowers kind of like skunks at a 
picnic.
    For example, the IRS' offshore compliance program likely 
would not have achieved the success it has without the 
knowledge it received from foreign bank employees. Yet, as I 
stated in a letter to the IRS commissioner, June last year, I 
have serious doubts that the IRS effectively utilized the 
information provided to it by a UBS whistleblower.
    Information from whistleblowers should result in easy money 
for the IRS, which is really easy money then for the Federal 
Government.
    My first question. Many practitioners and corporations are 
opposed to the IRS whistleblower program. Do you support the 
IRS whistleblower program? What concerns, if any, would you 
have about it, if you have any concerns?
    Ms. Keneally. Senator, I support the IRS whistleblower 
program. I have actually had the privilege of doing at least 
one panel presentation on the whistleblower program. I think it 
is an excellent program and I think we will see rewards in the 
years to come from it.
    Senator Grassley. In the UBS case, the Department of 
Justice sat on the information provided by the whistleblower 
for a very long time before acting on it. The IRS has a policy 
that whistleblower cases will not be prioritized over other 
audits.
    Do you agree with this policy?
    Ms. Keneally. Senator, I am not familiar with that policy.
    Senator Grassley. OK. Then could you study it and answer it 
in writing?
    Ms. Keneally. I would be delighted to take a look at that 
policy and to respond in writing, yes, Senator.
    Senator Grassley. OK. I think we will submit two more 
subsets to that. I think I will have you answer each of them in 
writing. OK?
    Ms. Keneally. I look forward to that. Thank you.
    Senator Grassley. The IRS is currently in the midst of a 
historic enforcement action against offshore tax evasion and 
the Justice Department is playing a key role. These questions, 
I think, are a little more pointed than what Senator Kohl just 
asked.
    Is your opinion regarding the offshore voluntary compliance 
effort the same as your opinion regarding efforts regarding the 
disclosure of tax shelters and listed transactions? If not, 
please explain why they should be considered differently.
    Ms. Keneally. As with tax shelters and listed transactions, 
I believe that the IRS' initiatives and the tax division's 
initiatives in offshore voluntary compliance are important, 
vital, and have been very effective to date.
    Senator Grassley. In other words, I think you just answered 
then, in regard to my last statement, that you do not--that 
they should not be considered differently.
    Ms. Keneally. I view them as equally important goals for 
the Service and tax enforcement.
    Senator Grassley. Another pointed question. Are you now 
representing or have you represented any clients that are 
participating or have participated in the IRS amnesty program?
    Ms. Keneally. Yes, I have.
    Senator Grassley. Last year, this Committee considered a 
bill to reauthorize an earmark for the Boys' and Girls' Club of 
America, the national umbrella group for hundreds of clubs 
around the country.
    After learning about the executive compensation of the 
organization's CEO, I joined some of my colleagues on this 
Committee in asking questions about this organization's 
activity.
    As a result, we learned that this National umbrella group 
held tens of millions of dollars offshore to avoid taxes on the 
income generated by these investments.
    Let me say, parenthetically, here that that is specifically 
what the organization said that they--that they put the money 
offshore to avoid taxes. So, question.
    Have you set up any offshore blocker entities or advised 
clients to invest in such vehicles?
    Ms. Keneally. Never, Senator.
    Senator Grassley. Do you believe it is appropriate for 
Federal grants to be awarded to entities that utilize such 
blocker entities? And let me say, in regard to that, Boys' and 
Girls' Clubs get a lot of Federal money. So, obviously, we are 
asking the question, why should we give Federal money to them 
if they have got money offshore, $50 million or $60 million 
offshore, that is not paying taxes or why would they not be 
using that for the good of the organization. But you heard my 
question.
    Ms. Keneally. Yes, Senator.
    Senator Grassley. Do you want me to re-read it?
    Ms. Keneally. No. I understand the question. I am a very 
firm believer in tax compliance. In my representation of 
clients with offshore bank accounts, my efforts have been to 
bring them back into tax compliance. I do not feel qualified to 
comment either specifically on the situation that you are 
describing or----
    Senator Grassley. And I am not asking you to comment on the 
Boys' and Girls' Club. I just was using that as an example.
    Ms. Keneally. It is also outside my own experience or 
expertise, I believe, to comment on how grant money should be 
accorded. But I do believe that tax compliance is important and 
that offshore--the use of offshore accounts and offshore assets 
for non-tax compliance is something that is vital to law 
enforcement.
    Senator Grassley. And I can understand maybe why you would 
want to not comment on the Federal grant.
    This will be my last question. It involves revolving door 
and conflict of interest.
    In your discussion yesterday, you mentioned that you have 
good working relationships with many at the IRS and the 
Department of Justice Tax Division. The Committee has also 
received letters of support from a distinguished group of 
bipartisan tax attorneys, including several who have served in 
the position for which you are nominated.
    I have been concerned for many years about the revolving 
door at the Securities and Exchange Commission. Professionals 
frequently move from industry to the SEC and then back to the 
industry where they came from.
    I am increasingly concerned about the phenomenon at IRS, 
Justice Tax Division, and, also, the Treasury Department. I 
appreciate that the government benefits from the experience of 
the professionals that are on the ground and vice versa. 
However, I remained concerned about equal enforcement of the 
laws; in this case, the tax laws.
    It is difficult for individuals to set aside prior 
relationships when they move into government positions. I would 
appreciate your thoughts on how you intend to balance the 
demands of this new position that you are going to with your 
longstanding relationships with the tax practitioner community.
    Ms. Keneally. Senator, I appreciate that question. Thank 
you. I am aware of the ethical obligations. I have been an 
advocate my entire career. I will be as strong or stronger an 
advocate, if I am given the opportunity to serve my country in 
this position.
    I have served in the past, as I stated, as the chair of the 
Standards of Tax Practice Committee of the ABA tax section, 
which is the ethics Committee of the tax section.
    I will remain very aware of all conflict issues, both the 
written ones and the others that come up through personal 
relationships, and will always remain conscious, if I am given 
this opportunity, that my duties lie toward law enforcement and 
to the division.
    Senator Grassley. Thank you, Ms. Keneally.
    Thank you, Mr. Chairman, for your courtesy.
    Senator Kohl. Thank you, Senator Grassley.
    Ms. Keneally, as a defense attorney for tax and white 
collar crime, you will bring a unique perspective to the 
division's criminal enforcement activities.
    How will this experience inform your decisions and your 
strategy to make you even better at the job than someone 
without your experience might be?
    Ms. Keneally. Senator, I have had a large number of years 
of knowing the cases from the other side. I believe I will have 
an appreciation for what arguments will be made, what 
strategies may be taken in cases, and, frankly, an appreciation 
for how tax evasion and tax avoidance occurs, because I have 
been deep in it for many, many years.
    Senator Kohl. All right. Ms. Keneally, effective 
enforcement of tax laws requires close coordination between the 
IRS and the tax division. From your perspective, having 
represented individuals and businesses on tax matters both 
before the IRS and the tax division, do you think that current 
coordination between these two organizations is sufficiently 
effective?
    How can it be better and what will you intend to do to see 
that the coordination is better?
    Ms. Keneally. Senator, I am neither at the IRS nor the tax 
division at the moment, so I can't speak directly to what their 
coordination efforts are.
    As a private practitioner, it appears to be a very good 
working relationship. I have every understanding that there is 
mutual respect and cooperation between the Service and the tax 
division. I would do everything in my power, if I am fortunate 
enough to be confirmed, to foster that.
    I have, through both my practice and my role at the ABA tax 
section, developed some very good relationships with various 
people at the Internal Revenue Service, as well as in the tax 
division, and I would work to encourage those relationships and 
good working relationships.
    Senator Kohl. All right. At this time, I would like to ask 
consent to add to the record a statement in support of Ms. 
Keneally's nomination from Senator Gillibrand, and, also, a 
letter from top tax officials from previous Democratic and 
Republican administrations.
    [The letters appears as a submission for the record.]
    Senator Kohl. You have done a very good job here today. We 
appreciate your coming, and we will allow you to leave the 
stand at this time.
    Ms. Keneally. Thank you.
    Senator Kohl. Now, we would like to ask Judge Wimes to step 
forward, please. Please raise your right hand and repeat after 
me.
    [Witness sworn.]
    Senator Kohl. Thank you. You may be seated.
    Judge Wimes, we will be happy to take your introductions of 
your family members who are with you, as well as your 
statement, before we ask you questions.

   STATEMENT OF BRIAN C. WIMES, NOMINEE TO BE UNITED STATES 
    DISTRICT JUDGE FOR THE EASTERN AND WESTERN DISTRICTS OF 
                            MISSOURI

    Mr. Wimes. Thank you, Senator. First, I would like to thank 
this body, the Judiciary Committee, Senator Kohl, Senator 
Grassley, for holding this hearing. I am truly grateful and 
honored to be here and look forward to answering your 
questions.
    I would like to thank the President, President Obama, for 
the nomination. Again, I am truly grateful and humbled by that.
    I want to acknowledge my home State Senators, Senator 
Claire McCaskill for her introduction. She's had an impact on 
my career. Also, I would like to acknowledge Senator Blunt for 
his support and whose family has had an impact.
    His son, former Governor Matt Blunt, appointed me to my 
current position I hold now.
    I'd like to introduce my family. I have my wife here. I 
have my youngest right next to her, Saige, she's 7 years old. I 
have my middle child, Gabrielle, who is 12. Here, also, Sydney, 
my oldest, she's 14, a freshman. Thank you.
    I'd like to acknowledge my dad, who's here with me; my 
great uncle, Charles Wimes; my great uncle, Uncle John, he 
turned 90 this May and he made it down from New York this 
morning. Him and my cousin, Jill, his daughter, and they're 
representing our family from New York.
    Further, I'd like to acknowledge I have my other cousin, 
who is here locally from Virginia, our good friend, Patricia 
Campbell, who sits on the bench. She's here with her daughter, 
supportive.
    And, last, here with me, my current law clerk, Matthew 
Sparks, who wanted to make this trip and I'm glad he did, and 
my incoming law clerk, Maggie, or Margaret, Boyd, who also 
joined us here today.
    And, last, Senators, I want to thank those family and 
friends and colleagues who are viewing on the Webcast.
    Thank you.
    Senator Kohl. Would you like to make any remarks, a 
statement of any sort?
    Mr. Wimes. None other than those, Senator.
    Senator Kohl. All right.
    Mr. Wimes. Thank you.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Kohl. Judge Wimes, as you know, district court 
judges are bound by precedent of their circuit and the 
precedent established by the Supreme Court.
    Should you be confirmed, from time to time, you will be 
called upon to decide cases where there is no precedent or 
where there is no Supreme Court decisions in the matters that 
you would have under your consideration.
    So how do you intend to approach these kinds of cases where 
there is no clear precedent?
    Mr. Wimes. Well, thank you for the question, Senator Kohl. 
First, you would look to the plain language of the statute, if 
that's the case. Then, certainly--and see if you can determine 
from the plain language of the statute.
    Then you would look to an analogous situation from the 
United States Supreme Court. Then I would look to what would be 
the eighth circuit, where the district court for Missouri sits, 
to analogy in terms of the law. And, last, Senator, you would 
look to persuasive law from any of the other circuits in terms 
of making a determination on your decision-making process.
    Senator Kohl. Is it fair to say you would try just as hard 
as you can in every case to find precedent to work with?
    Mr. Wimes. Yes. I would say that. I can tell you, I've sat 
on the bench for 10 years on the state court, 6 years as a 
commissioner, and 4.5 years as a general jurisdiction judge, 
and I think that's incumbent upon lower courts, district 
courts, to rely on the precedent of higher courts. And if I was 
so fortunate to be confirmed, I would do the same on the 
Federal bench.
    Senator Kohl. Good. How would you describe your judicial 
philosophy in a very general way?
    Mr. Wimes. I think it's very important for a judge to have 
integrity. That means they're fair, impartial. I think some 
characteristics of judges, they are open-minded, even 
temperament, decisive. But overall, the philosophy is you apply 
the facts of the case, the particulars, to the applicable law, 
and I think that would sum up how I approach it and how I 
believe I've been on the bench.
    Senator Kohl. What is it about being a judge that appeals 
to you?
    Mr. Wimes. Senator, that's a good question. I think from a 
very young age, my parents taught me the value in public 
service. I always took the public service interest in our 
government. I think as I grew and developed, I really had 
enthusiasm and a passion for the law, and I think because of 
that, I knew that public service and I knew that sitting on the 
bench was something I wanted to do. And I think to serve--if 
I'm fortunate enough to serve on the Federal level, that would 
be the highest honor for me in representing the citizens of the 
United States and doing it is something that I've always had an 
enthusiasm and a passion for doing.
    Senator Kohl. Judge Wimes, I believe that life experiences 
do influence the decisions that people make, but judges, more 
than anyone else, have a duty to ensure that they do not cross 
the line to allow their background to inappropriately influence 
the outcome of cases.
    Where do you draw this line and at what point does personal 
experience, in your opinion, improperly impact judging? How 
have you and how will you ensure that your personal experiences 
do not improperly influence your judicial decisions?
    Judge Wimes. Well, thank you for the question, Senator. I 
don't believe--in my 10 years that I have sat on the bench, I 
don't think my personal views or any biases I may have play any 
role in my decision-making process.
    Certainly, having a background in certain areas brings a 
certain level of sensitivity to a particular issue, if you have 
a background. But I think, ultimately, what rules the day is 
the facts and circumstances of the particular case and the law 
that applies.
    Again, I would like to think over my time on the bench that 
I have done that and, if confirmed, I would continue to do that 
on the Federal bench.
    Senator Kohl. All right. Before I turn it over to Senator 
Grassley, I would like to ask your three daughters a question 
and they could just raise their hand. Is your daddy a fair man? 
Could we count on him to be a fair judge? Raise your hand if it 
is yes. All right. That is the strongest affirmation of your 
candidacy.
    Judge Wimes. Well, thank you, Senator.
    Senator Kohl. Senator Grassley.
    Senator Grassley. Yes, and congratulations, sir.
    Judge Wimes. Thank you, Senator.
    Senator Grassley. As a circuit court judge, you served on a 
16th judicial district strategic planning committee. In 2008, 
this Committee produced a strategic plan, including factors 
which the Committee believed would affect the successful 
implementation of the plan.
    One factor identified was, ``challenges to the judiciary 
and oversight by the Supreme Court.''
    You and the Committee expressed concern regarding the 
Supreme Court noting it will, ``increasingly attempt to 
influence and become more heavily involved in local state court 
matters, decreasing autonomy of Missouri courts.''
    I am not sure which Supreme Court you were referring to, of 
the State of Missouri or the U.S. But regardless, I would like 
to have you explain how either Supreme Court is, ``increasingly 
attempting to influence courts in the Missouri 16th judicial 
district.''
    And let me follow-up with a second question, and answer 
both of them at the same time, of whether or not you think it 
is inappropriate for a Supreme Court to influence lower 
appellate or trial courts.
    Judge Wimes. Senator, I will attempt to answer your last 
question first. No, I don't think it's improper for a Supreme 
Court, because that is the governing body for the judiciary and 
the State of Missouri.
    I think in the context of that report which we put out, it 
was a report that not only the judges who were involved or one 
of the Committee members that were involved, it also involved 
the other judges of the circuit. It involved our stakeholders, 
who we believe and we interviewed, the public at large. We also 
interviewed attorneys who utilized the court system.
    And what we attempted to do throughout that report is to 
put together a plan that encompassed all those different 
individuals.
    Now, more specifically to your question of the influence, 
I'm not sure, Senator, the context of how we represented that. 
I'd be more than happy to look at that report.
    Senator Grassley. Why do we not make it easy for you----
    Judge Wimes Sure.
    Senator Grassley [continuing]. And ask you to respond to 
that point in writing.
    Judge Wimes. That would be fine. I'd be more than happy to 
do so.
    Senator Grassley. A follow-up of the second question I 
asked you, which you have answered already. How would you 
describe the proper relationship between a Federal district 
court and the circuit court of appeals, a Federal district 
court and the Supreme Court of the United States? So that is 
kind of two questions, the Federal district court and the 
circuit court of appeals, and the Federal district court and 
the Supreme Court of the United States.
    Judge Wimes. And the question is how would I describe or 
how would I see that relationship?
    Senator Grassley. Yes. Yes.
    Judge Wimes. I would see it--I suspect I would see it in 
much the same way that I see the relationship on the state 
court in terms of our district court, our appeals court, and 
our Supreme Court, and that is this. I believe, those three 
bodies, we have a great working relationship, but I will tell 
you, Senator, with respect to the Supreme Court and procedure 
and rules, that is the body--and I think they do or at least in 
Missouri they do so in communication with the other courts, 
promulgate rules and whatever rules they establish, obviously, 
as a lower court, we would follow that.
    So we have a great amount of respect, and, obviously, the 
Supreme Court in the State of Missouri, I think, in putting 
together rules and procedures, they work with the lower courts 
and, ultimately, their decisions the lower courts would follow.
    Senator Grassley. Would that statement you just made apply 
to the Federal district court and the courts of appeal and the 
Supreme Court?
    Judge Wimes. Most certainly, Senator.
    Senator Grassley. You and the Committee also listed as a 
concern that, ``hostility towards criticism and the 
politicization of the judiciary by legislatures.''
    How do legislatures show hostility toward a judiciary?
    Judge Wimes. I think in terms of that report and the State 
of Missouri, I think the focus was--in the State of Missouri, 
there's the nonpartisan court plan and there had been some 
criticism of the nonpartisan court plan.
    The urban areas or larger area in the State of Missouri are 
appointed. The out-state of Missouri are elected. There has 
been a movement in terms of that all the positions in the State 
of Missouri should be elected, and they have--they have looked 
at the nonpartisan court plan or eliminating the nonpartisan 
court plan.
    So in the context of the bigger scheme, that's what we were 
referring to. And I don't believe it refers to the legislature 
itself, because there are a great number of the legislature 
that is supportive of the current court plan that we have, 
Senator.
    Senator Grassley. Is it your view that the U.S. Congress 
has politicized the Federal judiciary, and, if so, how?
    Judge Wimes. That's not my belief.
    Senator Grassley. In your view, what is the proper 
relationship between the Federal judiciary and the Congress?
    Judge Wimes. Senator, I believe three branches of 
government. I think the judiciary certainly is one branch, the 
legislative is another branch, and, obviously, the executive is 
their branch.
    There is a relationship to the extent that funding for the 
judiciary is through Congress. So there is that relationship in 
that sense in terms of appropriations.
    But I think in terms of--legislators make the law and the 
court follows the law.
    Senator Grassley. I am concerned by your lack of Federal 
court experience. According to your questionnaire, you have 
practically no Federal court experience in your legal career.
    As a state court judge in Missouri, you do have the 
opportunity to review Federal issues. What assurances can you 
provide to this Committee and to future litigants that your 
judgment on Federal law and procedure will be sound and 
informed?
    Judge Wimes. Senator, I appreciate that question. Starting 
my legal career, I worked in the Department of Justice Bureau 
of Prisons. At that time, I handled actions that were filed 
against the Bureau of Prisons by way of Federal Tort Claim Act, 
habeas corpus actions, and Bivens actions.
    As a circuit judge, you are correct, Senator, I do have 
issues that involve Federal issues, whether it's Title 7 in 
some of the employment cases that I have; certainly, in 
criminal cases, the Fourth Amendment and the Sixth Amendment. 
And I can tell you this, Senator. When I took the bench on the 
state court, there were certainly those matters which, coming 
from the background in criminal court, some matters civilly I 
hadn't dealt with.
    But I've had the opportunity to interpret Missouri 
statutes. I had the opportunity to interpret provisions of the 
Missouri constitution, and I have done so. I have ruled and 
those rulings have been reviewed by higher courts and I have 
been affirmed on those decisions.
    So I believe I would take that same competence level to the 
issues that I face on the Federal level in terms of the 
preparedness on those matters and issues that appear in front 
of me.
    Senator Grassley. This is my last question. There are a 
number of different theories explaining how judges should 
interpret the Constitution. Some theories emphasize original 
understanding. Some emphasize literal meaning, and some focus 
on general principles underlying the Constitution and applying 
a contemporary meaning to those principles.
    While all nominees recite the mantra that they will apply 
the law to the facts, I am looking for an answer with a little 
bit more thought behind it. So this question.
    What constitutional interpretation model will guide you 
when faced with constitutional questions?
    Judge Wimes. Thank you, Senator. That's an important 
question and I'll try and answer it as thoughtful----
    Senator Grassley. Would you like to answer it in writing?
    Judge Wimes. If you'd like me to, I would.
    Senator Grassley. I want to do what you want to do. Do you 
want to answer it now or do you want to answer it in writing?
    Judge Wimes. Well, I could answer it now and----
    Senator Grassley. Go ahead and answer it now, then.
    Judge Wimes. OK. Well, I'll attempt to answer it now. 
Senator, I think it's important, especially as a district 
judge, when you're asked, ``What is your interpretation,'' I 
follow precedent. I follow the precedent of the Supreme Court 
of--it would be of the eighth circuit. And as a circuit judge, 
that's my determination on what the law--the applicable law to 
facts and circumstances of any particular case that I may have 
in front of me, and I think that the work of a district judge 
is just that.
    The decisions you make are based upon precedent and based 
upon the higher courts.
    Senator, I don't know if that addressed your question. I 
can still address it maybe fuller in writing, if you like.
    Senator Grassley. When I review the record and if it does 
not answer, I will ask you a question for answer in writing.
    Thank you, Mr. Chairman.
    Judge Wimes. Thank you, sir.
    Senator Kohl. Thank you very much, Senator Grassley.
    Judge Wimes, Federal judges serve a meaningful role in 
their communities beyond hearing and deciding cases. Our vision 
of a trial court judge today is a person who is actively 
involved beyond his courtroom and understands the importance of 
such things as drug diversion programs and alternative 
punishments for juvenile offenders, as you well know.
    Would you take a moment to discuss your own vision of what 
it means to be a Federal judge with a focus on the importance 
of each judge in their community?
    Judge Wimes. Thank you for the question, Senator.
    I have always tried in my career to be involved in the 
community as a prosecutor, as a drug court commissioner, and as 
a circuit judge.
    I think to the extent--and I would carry that over, if I'm 
fortunate enough to be confirmed on the Federal district court, 
I think that is important for the bench to be active within the 
community, obviously, within the--nothing that would create an 
appearance of impropriety.
    So I can tell you, if confirmed, I would continue to be and 
I think it's important to be active in the community, visible 
in the community, to the extent I could.
    Senator Kohl. Tell us a little bit about some of your 
activities, visibility in your community right now.
    Judge Wimes. Well, I've been involved in many things over 
time. The Hope House, which is a domestic violence shelter, the 
mental health, Association of the Heartland, I have been a Big 
Brother, I'm a watchdog at my kids' school, which means a dad 
of great students and it gets dads involved.
    Overall, what I've attempted to do is to, one, especially 
as it relates to students and students in school, to inspire 
them to maybe think beyond what--their possibilities.
    So oftentimes I talk to students. I have students in my 
courtroom. I prepare and have them put mock arguments. And I've 
done that because the influence in my life are those folks who 
took the time--took the time to talk with me, and I want to 
make sure, to the extent I can, to continue to be actively 
involved, especially in young people's lives, to get them to 
maybe aspire to do what I do or to aspire to do something 
bigger than what they thought.
    Senator Kohl. All right. I would like to ask that Chairman 
Leahy's statement be inserted in the record.
    [The prepared statement of Chairman Leahy appears in the 
appendix.]
    Senator Kohl. And this hearing will remain open for a week 
for any follow-up, written questions and responses.
    Judge Wimes, you have done a great job. We appreciate you 
being here today, and we look forward, should you be confirmed, 
to a long and honorable career in the Federal judiciary.
    Thank you so much.
    Judge Wimes. Thank you, Senator Kohl.
    Senator Kohl. The hearing is adjourned.
    [Whereupon, at 3:34 p.m., the hearing was concluded.]
    [Quesions and answers and submissions for the record 
follow.] 

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



NOMINATION OF PAUL J. WATFORD, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE 
                             NINTH CIRCUIT

                              ----------                              


                       TUESDAY, DECEMBER 13, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:01 a.m., Room 
226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, 
presiding.
    Present: Senators Feinstein and Grassley.

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

    Senator Whitehouse. Good morning. The hearing will come to 
order.
    We are here today to consider the nomination of Paul J. 
Watford to the United States Court of Appeals for the Ninth 
Circuit. I welcome Mr. Watford and his family and friends to 
the U.S. Senate.
    We have a statement for the record from Senator Boxer in 
support of the nominee, and she has mentioned to me her 
confidence in him. But given the week that we are about to have 
and the role of the Environment and Public Works Committee, 
which she chairs, and trying to defend against some, what many 
of us consider, extremely ill-advised attacks on our pollution 
control regimes, our environmental policies, she is unable to 
be here. So with unanimous consent, her statement will be 
admitted to the record.
    [The prepared statement of Senator Boxer appears as a 
submission for the record.]
    Senator Whitehouse. I will simply say that voting to 
confirm an individual to the Federal bench is one of the most 
important decisions that a Senator can make. Every day of our 
lives, Federal judges make decisions that affect Americans' 
lives in all walks of life.
    In doing so, judges must respect the role of Congress as 
representatives of the American people. They must decide cases 
based on the law and the facts, and not prejudge any case. They 
must listen to every party that comes before them fairly. They 
must respect precedent, and they must limit themselves to the 
issues that are before the court to decide.
    Judicial nominees also must have the requisite legal skill 
to serve as a Federal judge. Mr. Watford has an impressive 
record of achievement that has earned him a unanimous Well 
Qualified rating from the American Bar Association.
    It is important to fill this seat on the Ninth Circuit in a 
timely manner. There are currently four judicial emergency 
vacancies on the Ninth Circuit. The Chief Judge of the Ninth 
Circuit, Alex Kozinski, along with the members of the Judicial 
Council of the Ninth Circuit, have written to this Committee, 
describing the Ninth Circuit's ``desperate need for judges'' 
and urging the Senate to ``act on judicial nominees without 
delay.'' Chief Judge Kozinski wrote of the extensive vacancies 
on the Ninth Circuit: ``We fear that the public will suffer 
unless our vacancies are filled very promptly.''
    In the interest of efficiency, let me outline how this 
hearing will proceed. The Ranking Member will make his remarks, 
Senator Feinstein will then introduce Mr. Watford, and Senators 
who are here for the hearing will have 5-minute rounds for 
questioning of the nominee.
    With that, I turn to our distinguished Ranking Member, 
Senator Grassley.

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

    Senator Grassley. Thank you to Chairman Leahy, because he 
worked very closely with us on scheduling this hearing and the 
agenda for the hearing, and I am pleased that we were able to 
reach an agreement. Today as you have said, Paul Watford is 
before our Committee as a nominee for the Ninth Circuit. We 
have gone over his biography so I am not going to go into that, 
but I am going to have a full statement I am going to put in 
the record.
    Before that statement goes in the record, I would note that 
we are making real progress in regard to the nominations of 
President Obama to the Federal judiciary. Today marks the 19th 
nomination hearing held in this Committee this year, and we 
will have heard from 71 judicial nominees. That would be nearly 
88 percent of President Obama's judicial nominees that have 
received a hearing. We have confirmed 63 judicial nominees in 
this Congress alone, and in total that would be 72 percent of 
President Obama's nominees being confirmed on the Senate floor.
    Again, I welcome the nominee, his family, and look forward 
to the testimony. I will have a few questions, and maybe some 
questions to submit in writing. But I would like to have a full 
statement put in the record.
    Senator Whitehouse. Without objection, that will be so.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Whitehouse. Now to introduce the nominee from her 
home State, I turn to the distinguished Chairman of the 
Intelligence Committee and a senior member of this Committee, 
Senator Dianne Feinstein.

PRESENTATION OF PAUL WATFORD, NOMINEE TO BE U.S. CIRCUIT JUDGE 
FOR THE NINTH CIRCUIT BY HON. DIANNE FEINSTEIN, A U.S. SENATOR 
                  FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman. 
Welcome, Mr. Watford.
    I am very pleased to express my strong support for the 
nomination of Paul Watford to the United States Court of 
Appeals for the Ninth Circuit. If confirmed, Mr. Watford would 
be only the fourth African-American ever to sit on the Ninth 
Circuit. He would also be one of only two African-American 
active judges on a 26-member court.
    He has a distinguished record that has prepared him well 
for the Circuit: he served as a Federal prosecutor in Los 
Angeles, and has over a decade of appellate experience in 
private practice. He has earned the respect from attorneys on 
both sides of the aisle, and I am confident that, if confirmed, 
he is going to serve with distinction on the court. I urge my 
colleagues to support his nomination.
    He is a native Californian, born in Garden Grove, and has 
had a 17-year legal career. He has earned degrees from two of 
California's finest public universities: his bachelor's from 
U.C. Berkeley in 1989, and his law degree from the University 
of California Los Angeles School of Law in 1994. He was an 
editor of the UCLA Law Review and graduated Order of the Coif.
    After finishing law school, Mr. Watford clerked for Ninth 
Circuit Judge Alex Kozinski, an appointee of President 
Reagan's, and he then clerked for Justice Ruth Bader Ginsburg 
on the Supreme Court.
    Following his two clerkships he spent a year in private 
practice at a very prestigious law firm, Munger, Tolles & 
Olson, and then moved into public service as a Federal 
prosecutor in 1997. He has prosecuted a broad array of crimes, 
including bank robberies, firearms offenses, immigration 
violations, alien smuggling, and various types of fraud.
    He has served in the Major Fraud section of the Criminal 
Division, focusing on white collar crime. Among his many cases, 
he successfully prosecuted the first case for online auction 
fraud on Ebay in California. As a Federal prosecutor, he tried 
seven cases to verdict. He appeared in court frequently, 
typically several times a week.
    He also argued for cases before the Ninth Circuit. In one 
such case, a cocaine dealer had already convinced a State court 
that a drug seizure had violated his Fourth Amendment rights. 
But Mr. Watford prevailed on appeal, forcing the dealer to 
forfeit over $100,000 in drug proceeds.
    In 2000, he rejoined the firm Munger, Tolles & Olson, where 
he is a current partner. This is one of the premier appellate 
law firms in California. Mr. Watford has focused on appellate 
litigation at Munger for the last 10 years. In total, he has 
argued 21 cases in the appellate courts. He has also appeared 
as counsel in over 20 cases in the United States Supreme Court.
    Like most law firms, Munger's docket is dominated by 
business litigation, thus, the focus of his work has been 
appellate litigation for business clients. For example, Mr. 
Watford represents Verizon Communications in a consumer class 
action that has already seen one appeal to the Ninth Circuit.
    He represented the technology company Rambus in two complex 
patent infringement cases, including on appeal. He also 
represented Shell Oil in an antitrust case. After Shell lost in 
the Ninth Circuit, Watford and his colleagues at Munger won a 
9-0 reversal in the United States Supreme Court.
    He has also represented numerous other American businesses: 
the Coca-Cola Company, Berkshire Hathaway, as well as business 
executives, nonprofits, and municipal government agencies. His 
extensive appellate experience will serve him well on the Ninth 
Circuit.
    Beyond his legal practice he has shown an admirable 
dedication to the community, as well as to the judiciary. He 
has been a board member and treasurer of Neighborhood Legal 
Services of Los Angeles County, an organization that provides 
legal representation to more than 100,000 people each year.
    He has been an active member of the American Bar. He was 
co-chair of the ABA's Appellate Practice Committee, and he 
served on the Amicus Committee, as well as the Practitioners' 
Reading Group of the Standing Committee on the Federal 
Judiciary.
    For 6 years, he served on the Magistrate Judge Merit 
Selection Panel in the Central District of California, 
assisting the District Court in choosing highly qualified 
lawyers to serve as magistrate judges. He is also well-regarded 
by attorneys on both sides of the aisle.
    Jeremy Rosen, former president of the Los Angeles chapter 
of the Federalist Society says that Watford is ``open-minded 
and fair'' and that he is ``a brilliant person and a gifted 
appellate lawyer.''
    Daniel Collins, a colleague of Mr. Watford, clerked for 
Justice Antonin Scalia and worked in the Justice Department 
during the administration of President George W. Bush. Mr. 
Collins says Watford is ``incredibly intelligent and has solid 
integrity and great judgment.'' He says that Watford ``embodies 
the definition of judicial temperament: very level-headed and 
even-keeled.'' I believe that Paul Watford will make an 
excellent addition to the Ninth Circuit and I urge my 
colleagues to support his nomination.
    Thank you very much, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator.
    May I ask now for Mr. Watford to come forward to be sworn?
    [Whereupon, the nominee was duly sworn.]
    Senator Whitehouse. Please be seated.
    We have the happy tradition in these hearings of beginning 
by allowing the nominee to make introduction of family and 
friends who are present, and I would invite you, Mr. Watford, 
to do that now.

   STATEMENT OF PAUL T. WATFORD, NOMINEE TO BE UNITED STATES 
              CIRCUIT JUDGE FOR THE NINTH DISTRICT

    Mr. Watford. Thank you very much, Mr. Chairman.
    Senator Whitehouse. Is your microphone on?
    Mr. Watford. Thank you very much. I would like to first 
thank Senator Feinstein for that very kind introduction. I 
would like to thank Senator Feinstein, as well as Senator 
Boxer, for their strong support of my nomination. I am very 
grateful for that.
    I would like to thank the Committee for scheduling this 
hearing. It is a tremendous honor to be here. And I would of 
course also like to thank the President for nominating me for 
this position.
    I have a couple of introductions I would like to make, if I 
could. I have several close friends and two of my former 
partners, in fact, who are here with me at the hearing. I'm 
very grateful for their support. I have a number of family 
members, friends, and colleagues who are watching via the 
webcast that are up early in California this morning to watch. 
I am happy that they were able to see the proceedings.
    But most significantly, I would like to introduce my wife 
Sherry, who is seated just to my right. We have been married 
for 22 years now and she is just the most supportive spouse 
anyone could ask for. I am very lucky to be married to her and 
I am thrilled that she could be here.
    And other than that, I don't have any further introductory 
remarks. I'd be happy to answer the Committee's questions.
    Senator Whitehouse. Thank you, Mr. Watford. Well, you 
certainly come with a gold-plated appellate resume, from an 
editor of your Law Review, to the Order of the Coif, to 
clerking for a Circuit Court of Appeals judge, to clerking for 
a Supreme Court judge, to co-chairing the ABA Appellate 
Practice Committee. It would be hard to quarrel with those 
qualifications, and so I am very delighted that you're here. I 
note that there is not a significant attendance, which for 
somebody in your position is a very good sign.
    Senator Feinstein. Yes, it is.
    Senator Whitehouse. Non-conversy. That's what you want. You 
want the Chairman, the Ranking Member, and the member on the 
Committee from your home State, and that is what you have and 
no more. So, don't be discouraged by the fact that you haven't 
attracted a bigger crowd, be encouraged by that fact.
    I want to just ask you two questions. One has to do with 
the role of appellate courts with respect to findings of fact. 
Could you describe what role appellate courts have in making 
findings of fact, and if an appellate court does make findings 
of fact, what sort of deference those findings are entitled to 
higher up in the appellate spectrum or on review or with 
respect to later precedent?
    Mr. Watford. Sure. Well, I think as a general matter 
appellate courts don't have any role in finding facts. The 
facts are usually found at the District Court level and the 
appellate court would typically review the record when it comes 
up on appeal and, again, typically would give great deference 
to the factual findings that the trial court made.
    I can't think of really any circumstance where an appellate 
court in the first instance would be called upon to make its 
own findings of fact.
    Senator Whitehouse. At least not properly.
    Mr. Watford. At least not properly. That's exactly right.
    Senator Whitehouse. Very good.
    The other thing I'd like to ask you about is the role of 
the jury, not just as a fact finder--and it is one of the ways 
in which finding of fact takes place in our judicial system--
but also more broadly within the constellation of government 
institutions that are constitution established. What is your 
view about the role of the jury as an institution of 
government, of liberty, of protecting rights, as a part of the 
Constitutional process, not just a part of the legal process?
    Mr. Watford. Well, I think the jury has an extremely 
important role to play in our system of government. It is one 
of the reasons why the right to jury trial was protected in the 
Bill of Rights. The Founders viewed it as an essential 
protector of liberty. I, you know, had the privilege of 
appearing before juries on behalf of the United States and have 
seen the jury system work up close, and it's one of the most 
awesome institutions to see in action because you take, 
literally, 12 random people from the community who don't know 
one another, don't know any of the parties involved, and at 
least in criminal cases are charged with a very significant 
responsibility of deciding whether somebody should be deprived 
of their liberty.
    And it's--again, as you--as you indicated, it's one of the 
real foundational protections our system of government provides 
for--especially for people accused of crimes, that there is 
this intermediary between the government and them being 
deprived of their liberty, and that's the jury.
    Senator Whitehouse. Good. Well, I can't ask you to make any 
promises or pledges about what you will do as a member of the 
Ninth Circuit, but given what I think is that common and 
accepted understanding of the role of jury, I hope that as you 
serve the people of the Ninth Circuit in this role, assuming 
that you are confirmed, that you will not view with equanimity 
efforts that deprive people of access to the jury, given its 
core constitutional role.
    Can you just say a quick word about what you did as an 
AUSA? I was a U.S. Attorney and I always admired the 
professional staff that I had the chance to work with. Where 
did you work, and what were you assigned to, and what did you 
do?
    Mr. Watford. Well, I was an Assistant U.S. Attorney in Los 
Angeles for the Central District of California. The rotation we 
have in that office, is you spend a year on what's called 
Rookie Row, handling just pretty much anything that comes in 
the door, all post-indictment cases.
    Senator Whitehouse. Yes.
    Mr. Watford. So I handled a wide, wide variety of----
    Senator Whitehouse. Gun cases, drug cases, the sort of 
standard----
    Mr. Watford. Exactly.
    Senator Whitehouse. Yes.
    Mr. Watford. We then at that time moved into a section 
called Complaints, where pretty much for about 6 months all you 
did were search warrants, arrest warrants, indictments, that 
kind of thing. You didn't actually try any cases. And after 
that, I moved to the Major Fraud section, where I focused 
primarily on white collar crime.
    Senator Whitehouse. As a line prosecutor, not as an 
appellate advocate?
    Mr. Watford. That's right. That's right. We did have a 
separate appellate section within the office, but I was not a 
member of that section. I got to know the people quite well in 
that section because I had a real strong interest even then in 
appellate work and often asked to be assigned to additional 
appeals.
    Senator Whitehouse. Good. Well, I wish you well as you go 
forward. I will ask unanimous consent that Chairman Leahy's 
statement in support of your nomination be incorporated into 
the record. Without objection, it will be.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Whitehouse. I turn to the distinguished Ranking 
Member, Senator Grassley.
    Senator Grassley. You signified you don't have any more 
questions. If I take more than 10 minutes, or I mean more than 
5 minutes, is that OK?
    Senator Whitehouse. OK.
    Senator Grassley. OK. Thank you.
    Senator Whitehouse. We can have multiple rounds and I'll 
just have not much in my round.
    Senator Grassley. OK. OK. Well, I'm not saying you 
shouldn't have. I just wanted to know. I know we want to get 
this done quickly.
    I want to ask some of your thinking about some of the 
immigration cases that you've argued. On July 14th last year 
you gave a speech on why the notable Arizona statutes were 
unconstitutional.
    This was in addition to your work as pro bono counsel for 
the plaintiffs of Friendly House v. Whiting that opposed that 
Arizona law. You also worked on a brief for Friendly House 
plaintiffs in U.S. v. Arizona. In Friendly House v. Whiting you 
argued the statute violated the First Amendment by making it 
illegal for persons in the U.S. unlawfully to apply for work, 
solicit employment, or accept any work in Arizona.
    The District Court dismissed the claim, stating 
``individuals who are unlawfully present in the United States 
and unauthorized to work do not have a right to solicit work.'' 
So I have four questions that follow on this entry.
    Could you explain your legal reasoning behind the argument 
that prohibiting people here illegally from soliciting work is 
a First Amendment violation?
    Mr. Watford. Sure, Senator. I'd be happy to address that. 
The work solicitation provisions there that we challenged in 
the lawsuit were--they were in fact directed just at immigrants 
who were unauthorized to work, but the arguments that were 
presented there actually overlapped quite a bit with another 
Ninth Circuit case.
    The City of Redondo Beach case was another case directed 
not specifically at people who were in the country unauthorized 
to work, but who would gather at day laborer sites to try to 
solicit work. There was quite an ongoing battle within the 
Ninth Circuit over whether those types of laws, as a general 
matter, violated the First Amendment.
    Initially a panel of the Ninth Circuit ruled that those 
laws were OK, and in fact when we first filed the complaint in 
the Friendly House case we actually withdrew the First 
Amendment claims in light of this recent Ninth Circuit panel 
decision that came down.
    What happened, though, was that the Ninth Circuit granted 
en banc review in that case and ultimately reversed the three-
judge panel's decision. At that point we asked the judge to 
reinstate the First Amendment claims, and I believe those 
claims are now still pending.
    I will be honest with you, Senator, my involvement in the 
case lasted pretty much only through the filing of the 
preliminary injunction motion. I was brought in at the request 
of one of our senior partners at the firm, really to help him 
think through the legal issues and to help edit that particular 
brief.
    Once we filed the preliminary injunction motion, however, 
as you know, the United States filed its own action and at that 
point the District Court really paid--focused all of its 
attention on the Federal Government's suit.
    Senator Grassley. OK. My second question in regard to that 
opening I gave: what constitutional protections do you think 
that undocumented persons should be afforded in U.S. courts?
    Mr. Watford. Well, as a--I guess I won't try to offer any 
kind of a personal view. I would obviously have to follow 
whatever binding precedent was established by the Supreme Court 
or the Ninth Circuit in addressing that question.
    I don't know--I can't tell you off the top of my head the 
full range of constitutional rights undocumented immigrants 
might have, but I do know that at least with respect to the 
preemption arguments that we made in the Friendly House suit, 
that there is, at least under existing Supreme Court 
precedent--I think there are strong arguments that an 
individual State doesn't have the authority to set its own 
immigration policy, and those are really--the preemption 
arguments were the main focus of the lawsuit.
    Senator Grassley. I think the most important part of the 
answer you just gave me, if I could bring emphasis to it, is 
that you feel very much compelled to follow Ninth--or Supreme 
Court precedents as a member of the Ninth Circuit Court of 
Appeals?
    Mr. Watford. Absolutely.
    Senator Grassley. And the reason I might say that, as you 
probably know, and I don't know the exact figures, but one time 
it was 37 out of 39 appeals from the Ninth Circuit went to the 
Supreme Court that were overturned.
    Mr. Watford. Yes.
    Senator Grassley. And I would think people in the Ninth 
Circuit wouldn't be particularly proud of that. But I don't 
know how they feel about it, but that's just how I view it as a 
non-lawyer.
    Mr. Watford. Sure.
    Senator Grassley. Following up then on the same 
introduction I gave, do you believe States lack the right to 
police their own borders and detain or investigate persons who 
may be residing there illegally?
    Mr. Watford. Well, again, let me just speak in terms of 
what existing law provides. There are certain respects in which 
States can cooperate with the Federal Government in enforcing 
Federal immigration law. There's no question about that. 
Congress has enacted several statutes that provide for the 
mechanisms through which that kind of cooperation can take 
place.
    I think the arguments that we were making in the Friendly 
House case, though, turned on the fact that Arizona was not 
attempting to cooperate with the Federal Government, Arizona 
felt--perhaps rightly--I don't take any position on that--that 
the Federal Government's immigration policy was not working for 
the State and therefore attempted to establish its own 
immigration policy.
    That is really the focus of the argument we made, is that 
immigration policy has to be established at the national level. 
That's what Congress has directed. It has allowed the States to 
participate in the enforcement of immigration law, but only in 
certain very narrow circumstances that didn't apply in the 
Friendly House case.
    Senator Grassley. OK. Following on the same introduction I 
gave to this series of questions and getting to the point of 
your decision to recuse or not recuse, the Supreme Court 
recently agreed to hear the appeal on U.S. v. Arizona. Justice 
Kagan recused herself, assumedly due to her work as Solicitor 
General when the Federal Government originally filed the case.
    If a challenge to a State immigration statute or practice 
were to come before you in the Ninth Circuit, how would you 
handle it, considering your past experiences litigating and 
commenting on these cases? Would you recuse yourself?
    Mr. Watford. Well, certainly if any aspect of the Arizona 
law came back before the Ninth Circuit, and it may well, I 
would certainly have to recuse myself from any involvement in 
that case, I have no doubt about that. If another State passed 
a very similar law that raised the same sorts of preemption 
issues, I would have to consider very carefully whether to 
recuse myself.
    I know that there are statutes and codes of conduct that 
govern that. The main question would be whether my impartiality 
could reasonably be subject to question, and if it could I 
would have no hesitation in recusing myself. I know that there 
is a Committee within the Ninth Circuit that one can consult on 
questions of that sort, and I would certainly take advantage of 
that if the question came up.
    Senator Grassley. Now I will defer to the Chairman. I've 
got----
    Senator Whitehouse. Go ahead.
    Senator Grassley. I've only got one other series of 
questions.
    Senator Whitehouse. Go ahead.
    Senator Grassley. Go ahead?
    Senator Whitehouse. Proceed.
    Senator Grassley. OK.
    The brief filed by your client, Friendly House v. Whiting, 
cited reaction from the international community to the passage 
of the Senate bill--or this Arizona bill 1070. Specifically, it 
noted two travel advisories enacted by Mexico and El Salvador 
that said SB 1070 ``threatens basic notions of justice.''
    So three follow-up questions to that introduction: do you 
think the opinions of foreign leaders should have an impact on 
judicial decisions in U.S. Federal courts?
    Mr. Watford. No. As a general matter, no.
    Senator Grassley. OK.
    Then let me follow up then. Why did you include statements 
by those foreign governments in your brief?
    Mr. Watford. Well, I'm hesitating only because when you say 
``why did I include them''----
    Senator Grassley. OK.
    Mr. Watford. My role really was to edit that brief.
    Senator Grassley. OK.
    Mr. Watford. I was not the principal drafter of it, so I 
don't want to take responsibility, I guess, in my own right for 
including them. But I can tell you that one of the arguments 
that the United States made in its own motion and that echoed--
or our arguments echoed some of the arguments the United States 
made, was that the reason immigration law needs to be 
established at the national level is that it has very serious 
foreign affairs or foreign relations implications, some of 
those being, how are our citizens treated when they're in a 
foreign country and don't have legal status, obviously, to be 
here.
    The concern, I think, was that if Arizona's law were 
applied to the maximum extent it could be, there were folks who 
were here in the country lawfully, right, who we had allowed 
from other countries to come here and stay, either temporarily 
or as permanent residents, who would be subjected to adverse 
treatment under the law, and in return that could cause foreign 
countries to retaliate against our citizens when our citizens 
were in their countries.
    Senator Grassley. OK.
    Then I could add to that part of my question, taking off on 
what you said. I'm sorry, I lost my train of thought.
    Mr. Watford. OK.
    Senator Grassley. So I may come back to it.
    C, here. If the international community had an 
overwhelmingly negative reaction to a challenge to a Federal or 
State statute that found its way to your court, how strongly 
would you consider the international community's opinion in 
your decision-making process?
    Mr. Watford. I would not consider the international 
community's reaction in any way. What I would consider, 
however, is if the United States itself, the Federal 
Government, came in and said this law, or at least applications 
of this law, are going to have serious foreign affairs 
implications for our Nation, if the Federal Government 
expressed that concern I think that is a relevant consideration 
that needs to be taken into account in some situations, some 
circumstances. But I don't think the fact that foreign leaders 
themselves are voicing concerns, standing on its own, should 
have any impact on a United States judge--a United States 
judge--judge's decision.
    Senator Grassley. I will submit some questions for answer 
in writing, please.
    Mr. Watford. OK.
    Senator Grassley. And let me suggest to you, you'll 
probably do it anyway, and answer them as forthrightly as you 
can and as completely as you can. But sometimes, needlessly, 
nominees are held up just because they don't answer questions 
or answer them fully. So try to get that done. And even after 
your nomination might go to the floor, you need to consider 
that for members that maybe aren't on this Committee.
    Mr. Watford. OK.
    Senator Grassley. Although it doesn't happen too often, but 
it does happen sometimes.
    [The questions appear under the questions and answers.]
    Senator Whitehouse. So just to--I'd like to just follow-up 
briefly on the exchange that you just had with Senator 
Grassley. Would it be fair to characterize your answer as 
saying that as a judicial matter the opinion of foreign 
governments carries no weight, but to the extent that as a 
judge you would be evaluating the position, the authorities, 
the determinations made by the executive branch of government, 
you could take into account as a fact what the executive branch 
is telling you about the consequences of actions or the 
importance of whatever is happening internationally to the 
discharge of executive authorities?
    Mr. Watford. Yes. That is an exact summary of the position 
I tried to articulate----
    Senator Whitehouse. Yes.
    Mr. Watford [continuing]. Maybe not as well as you did. And 
Senator--Mr. Chairman, I would just add to that, I've been 
involved in cases in which the courts have actually invited the 
State Department to submit its views when a particular issue 
came up that seemed to have very serious foreign affairs 
implications. That's something that I've seen the courts do, 
and it does seem to me that it's appropriate in that 
circumstance.
    Senator Whitehouse. Because there are times when the 
Constitution obliges the judiciary to defer to the executive 
branch of government, and at those times the opinion of the 
executive branch of government is of significance, of 
relevance.
    Mr. Watford. That's exactly right.
    Senator Whitehouse. And with respect to constitutional 
rights for undocumented persons, when you were prosecuting 
folks as an AUSA there was no separate standard for 
undocumented persons with respect to their constitutional right 
to a trial, the constitutional right to have search and seizure 
restrictions, the various constitutional boundaries that 
prosecutors operate within.
    Mr. Watford. That's correct.
    Senator Whitehouse. OK.
    Senator Grassley. I remember now what I wanted to ask you 
on that second part. You said you edited that document and 
didn't write it. I don't know what authority editors have, but 
would you have thought about at the time of saying that these 
statements in regard to foreign points of view and foreign law 
shouldn't have been--or in this case was travel advisories--
maybe shouldn't have been referenced?
    Mr. Watford. I certainly could have. If that's what you're 
asking, yes, I certainly could have in my role as an editor.
    Senator Grassley. Yes. But you didn't find it important to 
do that?
    Mr. Watford. No, Senator, I did not. And as I said, the 
reason for that is that the United States itself had asserted 
there that there were foreign affairs implications that arose 
from enforcement of this law and those statements that we 
referenced, I think, in the brief were indicative of that.
    Senator Grassley. OK. Thank you. And I'll appreciate 
answers in writing.
    Mr. Watford. Thank you, Senator.
    Senator Whitehouse. Well, Mr. Watford, thank you. I 
appreciate this. I would highlight, emphasize, and double 
underline what Senator Grassley warned you about the importance 
of prompt answers. The more quickly the written answers can be 
provided to us, the more quickly your nomination can move 
forward.
    Let me congratulate you on your period of service to our 
country. Let me hope that it is precedent to a longer period of 
service to our country as a judge on the Ninth Circuit Court of 
Appeals. As I said, you are as gold-plated on the record and on 
your resume a candidate as one could hope for for United States 
Circuit Court of Appeals judge. I think you've acquitted 
yourself very well in this hearing and I look forward to 
supporting your nomination as we go forward. May the rest of it 
be as uneventful as today's hearing.
    Thank you very much. We'll keep the record open for 1 week 
in the event of any further questions or statements that 
anybody wants to put into the record, but subject to that, the 
hearing is adjourned.
    [Whereupon, at 10:40 a.m. the hearing was adjourned.]
    [The Biographical information, questions and answers and 
submission follow.]

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