[Senate Hearing 112-72, Part 7]
[From the U.S. Government Publishing Office]
S. Hrg. 112-72, pt7
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
----------
MARCH 14, MARCH 28, AND MAY 9, 2012
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Serial No. J-112-4
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PART 7
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 112-72, Pt. 7
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
MARCH 14, MARCH 28, AND MAY 9, 2012
__________
Serial No. J-112-4
__________
PART 7
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
76-131 WASHINGTON : 2012
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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
----------
MARCH 14, 2012
STATEMENTS OF COMMITTEE MEMBERS
Page
Klobuchar, Hon. Amy, A U.S. Senator from the State of Minnesota.. 1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement............................................. 299
PRESENTERS
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee
presenting John Thomas Fowlkes, Jr., Nominee to be U.S.
District Judge for the Western District of Tennessee........... 10
Collins, Hon. Susan M., a U.S. Senator from the State of Maine
presenting William J. Kayatta, Jr., Nominee to be U.S. Circuit
Judge.......................................................... 3
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
presenting Stephanie Marie Rose, Nominee to be U.S. District
Judge for the Southern District of Iowa........................ 8
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa,
presenting Stephanie Marie Rose, Nominee to be U.S. District
Judge for the Southern District of Iowa........................ 7
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey presenting Kevin McNulty, Nominee to be U.S. District
Judge for the District of New Jersey........................... 5
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey presenting Michael S. Shipp, Nominee to be U.S. District
Judge for the District of New Jersey........................... 6
Snowe, Hon. Olympia, a U.S. Senator from the State of Maine
presenting William J. Kayatta, Jr., Nominee to be U.S. Circuit
Judge.......................................................... 2
STATEMENT OF THE NOMINEES
Fowlkes, John Thomas, Jr., Nominee to be U.S. District Judge for
the Western District of Tennessee.............................. 68
biographical information..................................... 69
Kayatta, William J., Jr., Nominee to be U.S. District Judge for
the First Circuit.............................................. 11
biographical information..................................... 20
McNulty, Kevin, Nominee to be U.S. District Judge for the
District of New Jersey......................................... 125
biographical information..................................... 126
Rose, Stephanie Marie, Nominee to be U.S. Judge for the Southern
District of Iowa............................................... 210
biographical information..................................... 215
Shipp, Michael S., Nominee to be U.S. District Judge for the
District of New Jersey......................................... 161
biographical information..................................... 162
QUESTIONS AND ANSWERS
Responses of John Thomas Fowlkes, Jr. to questions submitted by
Senator Grassley............................................... 262
Responses of William J. Kayatta, Jr. to questions submitted by
Senator Grassley............................................... 266
Responses of Kevin McNulty to questions submitted by Senator
Grassley....................................................... 275
Responses of Stephanie Marie Rose to questions submitted by
Senator Grassley............................................... 280
Responses of Michael A. Shipp to questions submitted by Senator
Grassley....................................................... 283
SUBMISSIONS FOR THE RECORD
American Bar Association (ABA), Allan J. Joseph, Chair, and
Benjamin H. Hill, III, Chair, Washington, DC:
John T. Fowlkes, Jr, December 19, 2011, letter............... 286
William J. Kayatta, Jr., January 24, 2012, letter............ 287
Kevin McNulty, December 19, 2011, letter..................... 288
Stephanie M. Rose, February 6, 2012, letter.................. 289
Michael A. Shipp, August 10, 2011, letter.................... 291
Collins, Susan M., a U.S. Senator from the State of Maine,
prepared statement............................................. 292
Cohen, Hon. Steve, a Representatives in Congress from the State
of Tennessee, letter........................................... 295
Criminal Justice Act Panel, Alfred E. Willett, John D. Jacobsen,
John Bishop, Michael Lindeman, Stephen A. Swift, Braian D.
Johnson, Anne Laverty, Michael K. Lahammer, Chris Clausen, Rick
L. Sole, and David Mullin, April 17, 2009, joint letter........ 297
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, prepared
statement...................................................... 309
Hispanic National Bar Association (HNBA), Benny Agosto, Jr.,
National President, Washington, DC, April 13, 2012, letter..... 315
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New
Jersey, prepared statement..................................... 317
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MARCH 28, 2012
STATEMENTS OF COMMITTEE MEMBERS
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 319
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 319
prepared statement........................................... 486
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 491
PRESENTERS
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut presenting Gozalo P. Curiel, Nominee to be U.S.
District Judge for the District of Connecticut................. 322
Lieberman, Hon. Joe, a U.S. Senator from the State of Connecticut
presenting Michael P. Shea, Nominee to be U.S. District Judge
for the District of Connecticut................................ 320
Lee, Hon. Mike, a U.S. Senator from the State of Utah presenting
Robert J. Shelby, Nominee to be U.S. District Judge for the
District of Utah............................................... 323
STATEMENT OF THE NOMINEES
Curiel, Gonzalo P., Nominee to be U.S. District Judge for the
Southern District of California................................ 367
biographical information..................................... 368
Shea, Michael P., Nominee to be U.S. District Judge for the
District of Connecticut........................................ 324
biographical information..................................... 325
Shelby, Robert J. Shelby, Nominee to be U.S. District Judge for
the District of Utah........................................... 423
biographical information..................................... 424
QUESTIONS AND ANSWERS
Responses of Gonzalo P. Curiel to questions submitted by Senators
Grassley and Klobuchar......................................... 465
Responses of Michael P. Shea to questions submitted by Senators
Grassley and Klobuchar......................................... 471
Responses of Robert J. Shelby to questions submitted by Senators
Grassley and Klobuchar......................................... 477
SUBMISSIONS FOR THE RECORD
American Bar Association (ABA), Allan J. Joseph, Chair and
Benjamin H. Hill, III, Chair, Washington, DC:
Gonzalo P. Curiel, November 10, 2011, letter................. 481
Michael P. Shea, February 6, 2012, letter.................... 482
Robert J. Shelby, December 1, 2011, letter................... 484
Connecticut Bar Association, Keith Bradoc Gallant, New Britain,
Connecticut, March 23, 2012, letter............................ 485
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MAY 9, 2012
STATEMENTS OF COMMITTEE MEMBERS
Lee, Hon. Mike, a U.S. Senator from the State of Utah............ 494
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 493
PRESENTERS
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland presenting Paul William Grimm, Nominee to be U.S.
District Judge for the District of Maryland.................... 497
Inhofe, Hon. Jim, a U.S. Senator from the State of Oklahoma
presenting John E. Dowell, Nominee to be U.S. District Judge
for the Northern District of Oklahoma.......................... 498
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland
presenting Paul William Grimm, Nominee to be U.S. District
Judge for the District of Maryland............................. 495
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting Mark E. Walker, Nominee to be U.S. District Judge
for the Northern District of Florida; and Brian J. Davis,
Nominee to be U.S. District Judge for the Middle District of
Florida........................................................ 500
Rubio, Hon. Marco, a U.S. Senator from the State of Florida
presenting Mark E. Walker, Nominee to be U.S. District Judge
for the Northern District of Florida; and Brian J. Davis,
Nominee to be U.S. District Judge for the Middle District of
Florida........................................................ 502
NOMINEES
Bacharach, Robert E., Nominee to be U.S. Circuit Judge for the
Tenth Circuit.................................................. 503
Questionnaire................................................ 509
Davis, Brian J., Nominee to be U.S District Judge for the Middle
District of Florida............................................ 775
Questionnaire................................................ 776
Dowdell, John E., Nominee to be U.S. District Judge for the
Northern District of Oklahoma.................................. 689
Questionnaire................................................ 690
Grimm, Paul William, Nominee to be U.S. District Judge for the
District of Maryland........................................... 576
Questionnaire................................................ 577
Walker, Mark E., Nominee to be U.S. District Judge for the
Northern District of Florida................................... 729
Questionnaire................................................ 730
QUESTIONS AND ANSWERS
Responses of Robert Bacharach to questions submitted by Senators
Grassley and Klobuchar......................................... 841
Responses of Brian Davis to questions submitted by Senators
Coburn, Grassley and Klobuchar................................. 846
Responses of John Dowdell to questions submitted by Senators
Coburn, Grassley and Klobuchar................................. 856
Responses of Paul Grimm to questions submitted by Senators
Coburn, Grassley and Klobuchar................................. 862
Responses of Mark Walker to questions submitted by Senators
Coburn, Grassley and Klobuchar................................. 871
SUBMISSIONS FOR THE RECORD
American Bar Association, Allan J. Joseph, Chair, Washington, DC:
Robert E. Bacharach, January 24, 2012, letter................ 876
Brian J. Davis, March 1, 2012, letter........................ 877
John E. Dowdell, March 1, 2012, letter....................... 878
Paul W. Grimm, February 16, 2012, letter..................... 879
Mark E. Walker, February 16, 2012, letter.................... 880
Baca, Lawrence R., Federal Bar Association, San Diego,
California, February 9, 2012, letter........................... 881
Bomchill, Fern C., Mayer Brown LLP, Chicago, Illinois, March 7,
2012........................................................... 883
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland, prepared statement................................... 885
Christensen, Cathy M., President, Oklahoma Bar Association,
Oklahoma City, Oklahoma:
Robert E. Bacharach, Resolution.............................. 890
John E. Dowdell, Resolution.................................. 892
Academy of Managed Care Pharmacy (AMCP), David L. Clark,
President, Murray, Uath, March 21, 2012, letter................ 893
Conger, J. William, Oklahoma City University General Counsel and
Distinguished Lectured in Law, Oklahoma City, Oklahoma,
February 13, 2012, letter...................................... 898
Harroz, Joseph, Jr., Norman, Oklahoma, March 19, 2012, letter.... 899
Hellman, Lawrence K., Dean Emeritus and Professor of Law,
Oklahoma City, Oklahoma, March 21, 2012, letter................ 901
McConnell-Corbyn, Laura, Hartzog Conger Cason & Neville, Oklahoma
City, Oklahoma, February 28, 2012, letter...................... 902
Miles-Lagrange, Vicki, Chief Judge, U.S. Courthouse, Western
District of Oklahoma, Oklahoma City, Oklahoma, March 7, 2012,
letter......................................................... 904
Paul, William G., Crowe & Dunlevy, Oklahoma City, Oklahoma, March
19, 2012, letter............................................... 906
Woods, Harry A., Crowe & Dunlevy, Oklahoma City, Oklahoma,
February 6, 2012, letter....................................... 908
ALPHABETICAL LIST OF NOMINEES
Bacharach, Robert E., Nominee to be U.S. Circuit Judge for the
Tenth Circuit.................................................. 503
Curiel, Gonzalo P., Nominee to be U.S. District Judge for the
Southern District of California................................ 367
Davis, Brian J., Nominee to be U.S District Judge for the Middle
District of Florida............................................ 775
Dowdell, John E., Nominee to be U.S. District Judge for the
Northern District of Oklahoma.................................. 689
Fowlkes, John Thomas, Jr., Nominee to be U.S. District Judge for
the Western District of Tennessee.............................. 68
Grimm, Paul William, Nominee to be U.S. District Judge for the
District of Maryland........................................... 576
Kayatta, William J., Jr., Nominee to be U.S. District Judge for
the First Circuit.............................................. 11
McNulty, Kevin, Nominee to be U.S. District Judge for the
District of New Jersey......................................... 125
Rose, Stephanie Marie, Nominee to be U.S. Judge for the Southern
District of Iowa............................................... 210
Shea, Michael P., Nominee to be U.S. District Judge for the
District of Connecticut........................................ 324
Shelby, Robert J. Shelby, Nominee to be U.S. District Judge for
the District of Utah........................................... 423
Shipp, Michael S., Nominee to be U.S. District Judge for the
District of New Jersey......................................... 161
Walker, Mark E., Nominee to be U.S. District Judge for the
Northern District of Florida................................... 729
NOMINATIONS OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U. S. CIRCUIT
JUDGE FOR THE FIRST CIRCUIT; JOHN THOMAS FOWLKES, JR., NOMINEE TO BE
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE; KEVIN
McNULTY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW
JERSEY; MICHAEL A. SHIPP, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE
DISTRICT OF NEW JERSEY; AND, STEPHANIE MARIE ROSE, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA
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WEDNESDAY, MARCH 14, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:50 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar
presiding.
Present: Senators Franken, Grassley, and Lee.
OPENING STATEMENT OF HON. AMY KLOBUCHAR,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. (Off microphone) welcome the family and
friends that have accompanied all of you today. It looks like a
full crowd out there, and I know that you are going to--the
nominees will be able to introduce their friends and family
shortly.
We are considering, as you know, five judicial nominees
today. And, first, I would like to call upon my colleagues, who
are all gathered here, excited to introduce the nominees from
their home State.
So I think we will start here with Senator Snowe, and then
Senator Collins, Senator Menendez, and Senator Harkin.
So, Senator Snowe, please begin.
PRESENTATION OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U.S.
CIRCUIT JUDGE BY THE HON. OLYMPIA SNOWE, A U.S. SENATOR FROM
THE STATE OF MAINE
Senator Snowe. Thank you, Chair Klobuchar and Ranking
Member Grassley, for holding this hearing today to consider the
nomination of Mr. William J. Kayatta, Jr., to succeed the
honorable Kermit Lipez on the United States Court of Appeals
for the First Circuit.
I join my colleague, Senator Collins, in enthusiastically
endorsing this nomination, and I urge the Committee to
recommend confirmation of Bill Kayatta to this critical
position on the Federal bench.
Today is certainly one the Kayatta family will always
remember. So I also want to welcome Bill's wife, Anne Swift-
Kayatta, and their daughter, Katherine. And I know their
younger daughter, Elizabeth, could not be here today due to a
job interview, which is sort of what her father is doing today,
as well.
Let me begin with a story Bill's family likely knows well.
When Bill held his first hearing with counsel at the Special
Master for the U.S. Supreme Court, a distinguished assignment,
he assumed the bench and asked 20 or so lawyers to identify
themselves for the record.
When they were finished, Bill began to explain the order of
proceeding, only to be interrupted by the court reporter, who
asked, ``And who are you? ''
So with that, let me tell you more about who this stellar
nominee is.
First, I want to commend President Obama for his decision
to nominate Bill Kayatta for a seat on the first circuit. This
is a case of the President selecting a superbly qualified
nominee who can and should attract strong bipartisan support in
the Committee.
Educated at Amherst College and Harvard Law School, Bill
has now practiced law for 32 years. Before beginning his career
as a litigator, he clerked for former first circuit court of
appeals Judge Frank Coffin, a true pillar of the law and a
former Congressman from Maine who became Bill's lifelong
mentor, as well.
There is ample evidence of the professional respect for
Bill's intellectual acumen and legal accomplishments for the
Committee to consider. To name just a few, he is an elected
member of the American Law Institute, a fellow and regent of
the American College of Trial Lawyers, a member of the American
Bar Foundation, and past president of the Maine Bar Foundation.
He was also asked to co-edit the first, entirely new
edition of the treatise Maine Civil Practice, led by the late
Charles Harvey, Jr., one of Maine's most respected legal
practitioners.
Through his reputation for excellence in handling
complicated matters, Bill Kayatta has developed a law practice
national in scope. He is admitted to practice in no fewer than
five Federal circuits and has been lead counsel in
sophisticated class action liability cases from Maine to
Florida to Delaware to California, involving both major
corporations, as well as individuals.
Bill has prevailed in every trial but two in the last 32
years of his practice and has won 31 of 37 appellate arguments.
He has litigated $43 billion in energy contracts, handled 23
State class actions against the world's largest car
manufacturers, and certified a class of 500 to 800 disabled
children seeking in-home mental health services.
He also has experience in the U.S. Supreme Court, where he
has argued two cases, submitted merit briefs on three cases,
and worked on cert briefs in six additional cases.
But nothing stands out more than Bill's current honor which
I mentioned earlier, to serve as a Special Master for the U.S.
Supreme Court in a dispute among the States of Kansas, Nebraska
and Colorado. Selected by the Supreme Court from the
approximately one million lawyers in the country, Bill was
chosen for his keen intellect, experience and integrity to hear
and recommend a decision to the Court. In short, there is no
higher tribute for a practicing lawyer in America.
A tremendous steward of the common good, especially the
cause of access to justice for all, Bill has been bestowed with
many well earned accolades, such as a Champion of Children by
the Maine Children's Alliance. Moreover, he has garnered the
Maine Equal Justice Partners Appreciation Award, and received a
Disability Rights Center special recognition award.
For all of these reasons I have discussed, Bill Kayatta has
rightly earned the American Bar Association's highest rating of
unanimous well qualified.
As you know, this is the gold standard of ABA ratings,
reflecting the highest level of intellect, character, and
judicial temperament. It is a rating reserved only for those
who warrant the ABA's strongest endorsement.
So thank you, again, Madam Chair and members of the
Committee, for this privilege and opportunity to recommend a
candidate of Bill Kayatta's caliber.
Upon your consideration and review of his exceptional
merits, his record and qualifications, I would hope that you
would review and report out his nomination favorably.
Thank you.
Senator Klobuchar. Well, thank you very much, Senator
Snowe.
Mr. Kayatta is lucky to have not one, but two Senators here
on his behalf today. We have Senator Collins of Maine.
PRESENTATION OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U.S.
CIRCUIT JUDGE BY THE HON. SUSAN M. COLLINS, A U.S. SENATOR FROM
THE STATE OF MAINE
Senator Collins. Thank you very much, Madam Chairman,
Senator Grassley, Senator Franken. I am extremely pleased to
join Senator Snowe before this distinguished Committee today to
wholeheartedly recommend to you William Kayatta of Cape Willow
Smith, Maine, who has been nominated to serve in the U.S. Court
of Appeals for the First Circuit.
Bill is an attorney of exceptional intelligence, extensive
experience, and demonstrated integrity. He is very highly
respected in Maine's legal community.
While I know that the Committee is already familiar with
his many qualifications and Senator Snowe has already outlined
many of them, let me just emphasize a few.
In 1980, Bill joined the firm of Pierce Atwood in Portland,
Maine, where, over the subsequent 32 years, he has specialized
in complex civil litigation at both the trial and the appellate
level. He has served as chairman of both the Maine Professional
Ethics Commission and the Maine Board of Bar Examiners, as well
as president of the Maine Bar Association.
In 2002, Bill was inducted into the American College of
Trial Lawyers. And in the year 2010, he was selected by his
peers to the college's board of regents.
Simultaneously, Bill has maintained a substantial pro bono
practice. In 2010, he received the Maine Bar Foundation's
Howard H. Dana award for career-long pro bono service on behalf
of low income Mainers.
As Senator Snowe has mentioned, in 2011, the U.S. Supreme
Court appointed him as Special Master in Kansas v. Nebraska and
Colorado, an original water rights case, an indicator of the
Court's confidence in his legal abilities.
Finally, as Senator Snowe has also mentioned, he has earned
the American Bar Association's highest rating--unanimously well
qualified--reflecting the ABA's assessment of his credentials,
his experience, and his temperament.
Bill's impressive background makes him eminently qualified
for the seat on the first circuit. His 30-plus years of real
world litigation experience would bring a needed perspective to
this prestigious court.
Madam Chairman, the first circuit has the fewest judges of
any circuit, and, consequently, any vacancy there is felt most
acutely.
In January of this year, Judge Kermit Lipez took active
senior status after decades of outstanding public service to
Maine and the Nation, for which I would like to thank him.
While Judge Lipez has agreed to carry a full caseload over to
his senior status, he has made it very clear that he will carry
that load only until the beginning of September. At that point,
the caseload would have to be distributed among the remaining
five judges.
For this reason, as well as in recognition of the nominee's
extraordinary qualifications, I urge the Committee to act
expeditiously on Mr. Kayatta's nomination in order to avoid a
real problem for the first circuit in handling its caseload.
Madam Chairman, members of the Committee, the State of
Maine has a long, proud history of supplying superb jurists to
the Federal bench. I know that, if confirmed, Mr. Kayatta will
continue in that fine tradition.
I urge the Committee to act as quickly as possible on the
nomination and to move it forward to the Senate floor, for he
deserves overwhelming bipartisan support.
Thank you very much.
Senator Klobuchar. Thank you very much, Senator Collins.
Not everyone has to stick around, if any of you--I just
wanted to let you know that.
We now have--we have many things to do--Senator Menendez,
who is here on behalf of Kevin McNulty. Whenever I see a New
Jersey name, I always remember Senator Menendez telling me that
they had tee shirts in New Jersey that say ``Only the strong
survive.'' And so I am sure that is true of your judicial
nomination process.
Senator Menendez.
PRESENTATION OF KEVIN McNULTY, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY BY THE HON. ROBERT
MENENDEZ, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you, Madam Chair. I will not
continue on that story. But let me thank you, as well as the
Ranking Member and the distinguished members of the Committee.
I actually have two New Jerseyans to introduce to the
Committee today, and I am privileged to do so. Let me first
introduce Kevin McNulty for consideration as the next United
States District Judge for the District of New Jersey.
Both of these nominees have family and friends here,
including a former justice of the New Jersey Supreme Court,
Justice Visalli. We are pleased to have him with us.
A district judge must possess exemplary analytical skills,
a strong work ethic, an extraordinary knowledge of the law. Mr.
NcNulty has demonstrated these qualities on countless
occasions.
He is the chair of the appeals group in the prestigious law
firm of Gibbons P.C. At Gibbons, he has been directly involved
in approximately 100 appeals related to a wide variety of legal
issues, including pharmaceutical, intellectual property,
commercial, and criminal matters.
He has tirelessly fought for his clients' interests. His
hard work and dedication earned him the New Jersey Law
Journal's Lawyer of the Year award.
Before joining Gibbons, Mr. McNulty served as the chief of
the appeals division of the United States Attorney's office. He
was the lead attorney for the Organized Crime and Drug
Enforcement Task Force, as well as the ethics officer and grand
jury coordinator.
And while serving at the U.S. Attorney's office, Mr.
McNulty was honored with a Federal Law Enforcement Officers
Association award.
He began his professional career as a law clerk for the
honorable Frederick B. Lacey, U.S. district judge for the
district of New Jersey. He graduated cum laude and was third in
his class at New York University School of Law. His academic
achievement also earned him membership in the New York
University law review, where he served as articles editor,
membership in the honor society, and Order of the Coif. And
while at New York University School of Law, he was awarded the
American Judicial Society prize, the Pomeroy prize, and the
Moot Court Advocacy Award.
Outside of his professional career, he has demonstrated an
admirable commitment to public service. He is a member of the
board of trustees at the Urban League of Essex County, former
member of the third circuit lawyers advisory committee, co-
author of the Pennsylvania Bar Institute Guide to Third Circuit
Practice, and he has written and spoken on a host of legal
topics.
He is an active member of the New Jersey, Federal and
American Bar Associations. And throughout his career, he has
demonstrated a strong analytical ability, rapid research
skills, and an outstanding work ethic, integrity, and he is
well equipped to serve with distinction as a district court
judge for the district of New Jersey.
PRESENTATION OF MICHAEL S. SHIPP, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY BY THE HON. ROBERT
MENENDEZ, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Madam Chair, members of the Committee, I also want to
introduce and express my strong support for Judge Michael
Shipp, for the United States District Court of New Jersey.
All of us in New Jersey are very familiar with Judge
Shipp's qualifications. He is an exceptional candidate for the
Federal bench. He is an accomplished jurist, with impressive
qualifications. With almost 5 years experience as a Federal
magistrate judge for the district of New Jersey, he is well
prepared to be a Federal district judge.
He has successfully managed significant and complex cases
as a magistrate, and has, on occasion, served as a district
court judge in cases with magistrate jurisdiction.
The first 8 years of his distinguished legal career were
spent in the litigation department at the law firm of Skadden
Arps. In 2003, he left the firm to serve in the public sector
as an assistant attorney general for consumer protection in the
office of the attorney general of New Jersey, where he honed
his expertise in consumer fraud prosecution, insurance fraud
prosecution, security fraud prosecution, professional boards
prosecution, and debt recovery.
Judge Shipp excelled at the office of the attorney general
and was twice promoted within the office, first as liaison to
the attorney general and, second, as counsel to the attorney
general. And in that context, he was in charge of day-to-day
operations of the department of law and public safety, a
department with over 10,000 employees and 800 attorneys.
Judge Shipp is also deeply involved in the legal community.
Beyond his leadership role with the New Jersey State Bar
Association, his membership in the Garden State Bar
Association, he has served as a faculty member of Seton Hall
University School of Law Summer Institute for Pre-Legal
Studies, which helps disadvantaged students develop their
interest in law.
He has also served on the faculty of the New Jersey
Attorney General's Advocacy Institute, which ensures that
attorneys representing the State of New Jersey maintain the
highest possible levels of professionalism.
He is a proud New Jerseyan, with deep roots in our State, a
native of Patterson, New Jersey. I say that because if Senator
Lautenberg were here, he would tell you that, and I feel
compelled to do so in his absence.
He grew up in New Jersey. He lives in New Jersey. He earned
his degree from Rutgers State University, Seton Hall Law
School, and went on to clerk for the honorable James Coleman, a
former justice of the Supreme Court of New Jersey.
He is an extraordinary jurist with a tremendous
opportunity, a judicial temperament, extraordinary legal
experience, and a deep and abiding commitment to the rule of
law.
These are two exceptional nominees, and I would urge the
Committee's quick and positive nomination to the floor. And I
am sure Senator Grassley is going to feel that way after he
hears from him.
Senator Klobuchar. Very good. Thank you very much, Senator
Menendez.
Judge Shipp, I apologize for not mentioning you earlier,
but there was some confusion with Senator Lautenberg. And you
know he would love to be here, but he could not be here because
he was at the funeral for Representative Payne.
But he did ask that I submit his statement for the record.
And without objection, we will put it on the record.
[The prepared statement of Senator Lautenberg appears as a
submission for the record.]
Senator Klobuchar. And thank you for both of the nominees,
extremely qualified.
We now move closer to my home, the State of Iowa, with
Senator Harkin, who is going to speak, as is our Ranking Member
here, Senator Grassley, for Stephanie Marie Rose.
Thank you. And thank you, Senator Menendez.
PRESENTATION OF STEPHANIE MARIE ROSE, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA BY THE HON.
TOM HARKIN, A U.S. SENATOR FROM THE STATE OF IOWA
Senator Harkin. Thank you very much, Madam Chair and
Ranking Member Grassley, Senator Franken. It is a great
privilege for me to be here to introduce U.S. Attorney
Stephanie Rose to serve as a district court judge in Iowa's
southern district.
I was honored to recommend this outstanding attorney to the
President, and I thank him for nominating her.
Let me begin first by thanking you, Senator Leahy, for
agreement to such a prompt hearing, and to thank my senior
colleague from Iowa, Senator Grassley, for his assistance in
making this prompt hearing possible.
For many years, Senator Grassley and I have cooperated in a
collaborative spirit on judicial nominations in our State, and
I am glad that we are continuing Iowa's fine tradition
regarding Iowa's judicial selections.
Madam Chair, a U.S. Senator has few more important
responsibilities than recommending to the President the person
best qualified to serve in a lifetime position as a Federal
judge.
I believe Stephanie Rose possesses all of the
qualifications necessary to assume the very serious
responsibilities carried out by a Federal judge. In fact, the
American Bar Association gave Ms. Rose a unanimous well
qualified rating, their highest.
A little over 2 years ago, in 2009, this same Committee and
the Senate unanimously confirmed Ms. Rose to become U.S.
attorney in the northern district of Iowa, having previously
served 12 years as an assistant U.S. attorney.
She is a superb attorney. And among jurists, prosecutors,
and the Defense Bar, she has a reputation as someone who is
unfailingly fair and ethical and who possesses exceptional
legal ability, intellect, and judgment.
It is no surprise she enjoys wide bipartisan support from
the Iowa legal community. In fact, Charles Larsen, former
United States attorney for the northern district of Iowa, under
President George W. Bush, recently wrote this Committee,
stating that Ms. Rose, ``has all the requisite abilities and
traits to serve all litigations for the southern district of
Iowa in the manner expected of a Federal judge. Ms. Rose would
be a distinguished member of the judiciary.''
Finally, Ms. Rose reflects very proudly on all of us who
have chosen to be public servants. She earned her master's
degree with honors from the University of Iowa in just 3 years.
She earned her J.D. from the University of Iowa College of Law
in just 2 years, graduating in the top 5 percent of her class.
She could easily have commanded a big salary with a top law
firm. Instead she opted for public service and long hours as a
Federal prosecutor, working to uphold the rule of law, making
our neighborhoods safer, and advancing the cause of justice.
We are fortunate that she seeks to continue her public
service to Iowa and our Nation by serving as a Federal judge.
Madam Chair, it is often helpful to know some more personal
background on a nominee. Ms. Rose was born in Topeka, Kansas,
and later moved to Mason City, Iowa when she was 4. Both of her
parents were public school teachers.
She and her husband, Rob, have two children, Kyle, age 13,
and Missy, who is 10. Ms. Rose has two sisters, one of whom was
adopted after coming to the family as a foster child, one of
five foster children her parents welcomed into their home.
While I do not know that family personally, I am told by
others who do know them and who associate with them in their
church activities and community activities that this is a
wonderful, supportive, and very close-knit family.
Before recommending Ms. Rose to the President, I reviewed
an unusually strong field of candidates for this position. She
stood out as a person of truly outstanding intellect and
character. Stephanie Rose is exceptionally qualified to serve
as United States District Judge for the Southern District of
Iowa.
I urge this Committee to swiftly and unanimously approve
her and send her to the Senate floor as soon as possible.
Madam Chair, I would also ask that the three articles, two
that appeared in the Des Moines Register, one that appeared in
the Cedar Rapids Gazette today, also be included with my
statement in the record.
Senator Klobuchar. They will be included.
[The prepared statement of Senator Harkin appears as a
submission for the record.]
Senator Klobuchar. And now, Senator Grassley.
PRESENTATION OF STEPHANIE MARIE ROSE, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA BY THE HON.
CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you. I compliment Senator Harkin
for his recommendations of Ms. Rose to the White House and the
White House making the selection.
Senator Harkin has spoken correctly that during the 24
years and the 31 years that he and I have been in the U.S.
Senate that we have cooperated very closely on selection of
people for the judicial and executive branch of government.
So it is a pleasure for me to recommend to this Committee
Stephanie Marie Rose. Her husband, Mr. Robert Rose, as well as
other family and friends in attendance today and viewing the
hearing elsewhere.
The President has nominated Ms. Rose to serve as U.S.
District Judge for the Southern District of Iowa. Ms. Rose is a
hawk-eye through and through, receiving two degrees from the
University of Iowa; as Senator Harkin said, her BA and her law
degree in a short period of time.
Ms Rose, I guess, you were on a fast track through law
school, obviously.
Thankfully, after graduation from law school, she chose to
stay in the State of Iowa. She first served as a law clerk,
U.S. attorney's office, northern district of Iowa, In 1997, she
was hired as a full-time attorney in that office, where she has
risen through the ranks and now heads that office.
She served as special assistant to the U.S. attorney from
1997 to 1999, and has been assistant U.S. attorney 1999 through
the year 2009. During this time, she was the lead counsel in
prosecutions of more than 250 cases. These cases spanned a wide
range of legal issue from violent crimes and drug abuses and
offenses to immigration violation and money laundering.
Additionally, she has handled approximately 45 Federal
civil cases. These cases have included post-conviction relief,
an asset for venture mattress, as well as Freedom of
Information Act and property return lawsuits.
In 2009, she was confirmed by the Senate and appointed by
President Obama to serve as U.S. attorney, northern district of
Iowa. In this role, she oversees most every aspect of the
office. This includes overseeing civil and criminal work
completed by office staff and making final determinations
regarding charging decisions, plea offers, and civil
settlements.
The American Bar Association standing committee on the
Federal judiciary unanimously rated Ms. Rose as well qualified
for this position.
So, obviously, as Senator Harkin deserves congratulations,
she is the one that has worked very hard to attain the
notoriety that she has and has risen to now be nominated.
So I congratulate Ms. Rose and, at the same time, I am
going to congratulate the other nominees, but not take the time
of the Committee to go into their backgrounds, and I will put
that in the record, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Grassley.
That will be included in the record.
[The information referred to appears as a submission for
the record.]
Senator Klobuchar. Now, we continue our tour around the
country to the south, and Senator Alexander is here on behalf
of Judge John Thomas Fowlkes, who is a nominee for the district
court for the western district of Tennessee.
PRESENTATION OF JOHN THOMAS FOWLKES, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE, BY THE
HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE STATE OF
TENNESSEE
Senator Alexander. Thank you, Madam Chairman. I note the
perfect attendance of the Senators from Minnesota for this
hearing.
Senator Klobuchar. We heard there was somewhat up from
Tennessee, so we thought we would come.
[Laughter.]
Senator Alexander. That is good. You are hard to get ahead
of.
Madam Chairman, Senator Grassley, it is a real honor to
introduce Judge John Fowlkes, who is sitting over here in the
right. He is a State judge in Memphis. The President has
nominated him to fill a vacancy for the United States History
judgship for the western district of Tennessee, and the
President has made an excellent nomination.
As Governor of Tennessee, I appointed about 50 judges and
as I look back on it, I find out that they have lasted a lot
longer than most of the things that I tried to do when I was
Governor. So one has to appoint judges carefully. And I try not
to inquire too far into their views on things, but really into
their intellect, their character, their demeanor, their
capacity for fairness, and especially the respect they would
have for the litigants and the lawyers who appear before them.
By that test, Judge Fowlkes passes with flying colors. He
is already a judge. He is well known in Shelby County and in
Memphis, Tennessee. And he is deeply involved in his community.
I received a number of letters from citizens of Memphis and
Shelby County talking about his, ``creative mind and his
independent work ethic.''
I knew his reputation, but I took some time after the
President nominated him to study his qualifications further and
to meet personally with him, and I am impressed.
He devotes 50 hours a year of service to the Port of
Memphis Area Legal Services. He is active in support of the Boy
Scouts. He has devoted himself to the community in which he
lives.
So I am sure the Committee will carefully examine his
judicial qualifications, but from my vantage point, his
reputation is excellent. He has served well as a judge for our
State. He is well respected in his community. And I would
recommend that the Committee approve him and move him on to the
Senate for full consideration.
I also should note--I will let him do the introducing--he
has pretty good family support. He has got a wife, father, two
sisters, a niece, two cousins, and a nephew all here today, and
I imagine he will want to introduce them when the time comes.
Senator Klobuchar. Very good. Thank you very much, Senator
Alexander.
Do you want to say anything, Senator Grassley, more before
we start with our first nominee?
We will ask our first nominee, Mr. Kayatta, to come
forward. And if you could remain standing and raise your right
hand, Mr. Kayatta--thank you so much--and I will administer the
oath.
[Nominee sworn.]
Senator Klobuchar. Now, Mr. Kayatta, if you would like to
introduce--we have heard a lot about you from the Senators from
Maine, and we would love to see if you want to introduce anyone
who is here, friends or family.
STATEMENT OF WILLIAM J. KAYATTA, JR., NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE FIRST CIRCUIT
Mr. Kayatta. Thank you, Madam Chair and Ranking Member
Grassley and Senator Franken, for giving me this opportunity to
be here today. It is a tremendous and inspiring privilege for
someone who has grown up and spent his life working in Maine to
be introduced to this Committee by Senator Snowe and Senator
Collins.
Maine is a small state. We get to know each other pretty
well. And there is no one in Maine who is more widely respected
than these two extraordinary women. So I am very honored by
their introduction today.
I would also like to thank Representative Mike Michaud and
Representative Chellie Pingree and their selection committee
for suggesting my name to the President. And, obviously, I
would like to thank very much the President for having the
confidence in me to make this nomination.
Senator Snowe was very gracious to introduce my family, my
wife, Anne, and daughter, Katherine, and her fiance, Ian
Gilbert, who were able to come here today. My daughter,
Elizabeth, as Senator Snowe mentioned, is doing her own job
interview as we sit here today.
My parents, I know, wish very much that they could come,
but they, together with my colleagues and friends at my law
firm, Pierce Atwood, will take advantage of the Web broadcast.
Senator Klobuchar. Always exciting.
Mr. Kayatta. Yes. Although I might be fearful of watching
it myself.
[Laughter.]
Mr. Kayatta. And with that, I know how busy the members of
this Committee are, and so I will refrain from any further
comments.
Senator Klobuchar. Very good.
Do you want to begin, Senator Grassley.
Senator Grassley. Usually, I do not get that right very
much.
Senator Klobuchar. Well, I thought I would do that to be
nice and bipartisan. We just passed a bill today.
Before you--Senator Corker, do you want to----
Senator Grassley. Yes. Let us start with Senator Corker.
Senator Klobuchar. Right. Do you want to go and talk about
your--could we just take a break to do this? All the people
involved in Rules.
Do you mind, Mr. Kayatta.
Mr. Kayatta. Not at all.
Senator Klobuchar. You are not under oath, Senator Corker.
Senator Corker. Thank you. It makes me very nervous. Now,
Lamar has already been in, is that correct?
Senator Klobuchar. Right. He just spoke and we would love
to hear from you about your nominee, John Thomas Fowlkes.
Senator Corker. Listen, I know that this Committee is going
to look into the various judicial proceedings that he has been
involved in. I know this Committee does an outstanding job with
that.
But when the White House began looking for someone in the
Memphis area to become a Federal judge, every civic and
respected political leader, the first name that came out was
Judge Fowlkes.
I have been involved in many of these, as have so many of
you. I do not believe I have come across someone who has come
before this Committee that has been more highly recommended by
people that I respect.
Our former Governor, a Democrat, a friend of mine, Phil
Bredesen, appointed him to a State judge post, the mayor of
Shelby County, A.C. Wharton, both of these gentlemen highly
respected, but he served as his chief administrative officer
prior to that.
And I just want to say to this Committee, I went to Shelby
County, to Memphis, to meet with this gentleman so that these
proceedings could move on quickly. I am very, very highly
impressed with him and highly recommend him to this Committee
to have its proceedings.
And I thank you for letting me come in late and interrupt
this fine gentleman's testimony. Thank you very much.
Senator Klobuchar. Very good. Thank you very much, Senator
Corker.
Senator Grassley.
Senator Grassley. The first question comes in regard to the
fact that in your position, you will probably be considering
some cases of crime, but you seem to lack experience with
criminal cases. In answer to your questionnaire, your private
practice has not included any criminal cases.
So I give you a chance to tell us and share with us about
your legal background to ease concerns that we might have about
lack of criminal law experience.
Mr. Kayatta. Yes, Senator. Thank you. And it is correct, I
have had no experience in representing parties in criminal
proceedings, either the State or the defendants.
I have had--and I do think that is an area where I will
come in with a fair amount of work to do to bring myself
appropriately up to speed.
Now, I have had some exposure to criminal law in several
respects. My year clerking, I obviously saw a full year's worth
of cases that the first circuit had, including all the criminal
cases.
I also had the privilege for 8 or 9 years of representing
quite a few police officers who were sued in suits that raised
issues of Fourth or Fifth Amendment procedure, excessive force,
other type issues, and that required me, even though I was not
representing parties in criminal proceedings, it required me to
get a pretty good understanding of the rules of procedure both
under the Fourth Amendment, the Fifth Amendment, the Eighth
Amendment, and other issues that arise, and to also spend a
fair amount of time understanding how the law enforcement
process worked.
Finally, my civil practice involves--I have not specialized
in any one particular area in my civil practice. I have moved--
one year, it would be an antitrust case; another year, it would
be an energy regulation case; another year, a securities case.
And so that has given me an opportunity to learn how to become
familiar with the body of law that I had not previously been
familiar with, and I would hope that that training would be
something that I could bring to bear to supplement the limited
experience in criminal law that I have described.
Senator Grassley. There is nothing wrong with a nominee
like you being involved in parsing politics, but prior to
serving on the standing committee, you participated in Obama
for President meetings and, also, donated.
Did politics affect your evaluations in any way of anything
you have done?
Mr. Kayatta. I can think of nothing I did on the standing
committee or, frankly, not much I will expect that had been
affected by that.
Senator Grassley. As a young attorney, in 1984, you
represented the city council of Portland in a suit alleging the
city violated an individual's Second Amendment rights by
denying him a gun permit.
A three-judge panel on the first circuit held that there
was no Second Amendment.
Among the cases cited was by the first circuit to support
his opinion. It was a 1976 case of U.S. v. Warin that held,
``The Second Amendment guarantees a collective rather than an
individual right.''
Do you recall, in defending the city council, whether you
argued the Second Amendment only provided a collective right?
Mr. Kayatta. I don't specifically recall that, Senator.
However, I'm quite sure that as a lawyer for the city, having
the ethical duties that a lawyer would have in representing a
municipal government in litigation, I certainly--it's highly
likely I would have raised the law as it existed at that time
in any briefing.
And I'm sure the first circuit followed that law then as
today. The first circuit would follow the materially different
law that we now have.
Senator Grassley. If you had any briefs in that case, would
you be willing to provide my staff and me with a copy of any
brief you filed?
Mr. Kayatta. Yes, I would, Senator.
Senator Grassley. In Heller, as well as in McDonald v.
Chicago, the Supreme Court held that the Second Amendment is an
individual right.
Do you personally agree that the Second Amendment confers
an individual right rather than a collective right?
Mr. Kayatta. Senator, I don't think it's appropriate that I
express my personal beliefs. Among other reasons, I don't think
my personal beliefs would be something that I would bring to
bear in deciding cases as a judge.
I am familiar with Heller and with the current state of the
law and would certainly have no hesitancy in following and
enforcing that precedent.
Senator Grassley. That is good. Thank you.
In McDonald, the Supreme Court further held that individual
rights apply to the States. Would your same answer apply there,
that the precedent set by McDonald you would follow as a judge?
Mr. Kayatta. Yes, it would, Senator Grassley.
Senator Grassley. Let me ask one more question. Then I will
move on.
You were a member of the American College of Trial Lawyers'
ad hoc committee on judicial compensation that issued a report
that was highly critical of the current pay of Federal judges.
Knowing what you know about judicial pay, are you sure that
you are able to accept the pay for judges as currently set by
Congress?
Mr. Kayatta. I confess, Senator Grassley, I'm probably an
even more enthusiastic proponent of increased judicial pay than
I was then.
Yes. I certainly--you know, I don't come from a large
metropolitan area and the amount of judicial pay for someone
like me is a very substantial--in the State of Maine, it is an
extraordinary amount, and I would be privileged to take this
position.
I do continue to believe, on a national level, that the
prolonged reduction in judicial pay that has occurred as a
result of the combination of no pay increases and inflation
over time is a serious matter for Congress to consider.
Senator Klobuchar. Very good. Thank you very much, Senator
Grassley.
You should know, as he asked about that pay issue, that I
once called Senator Grassley and he was in a cafe eating apple
pie that he claimed was like $1.29 or something like that. So
very careful with the money.
Mr. Kayatta. Perhaps I'll need the name of that.
Senator Klobuchar. I wanted to, first of all, just--I know
Senator Grassley had asked appropriately about the question
about politics, but I also would note that you have the support
of both Republican Senators from the State of Maine. And I also
notice that you actually were a classmate of Justice Roberts
and have spoken of him positively.
And then, also, in 1981, he identified you as a potential
candidate for the special assistant attorney general during the
Bush Administration. So I just wanted to put that on the
record. It appears as though you have worked well with people
of both parties.
So I wanted to ask you some questions about your
experience, first of all. I think for most lawyers, the
opportunity to argue a case before the Supreme Court represents
the ultimate career highlight, and you have argued two cases
there.
Can you tell me about how your experiences as an appellate
advocate will inform you in how you approach the job for which
you are nominated?
Mr. Kayatta. Yes, Madam Chair. One, a sense of humility, I
managed to, with one small exception, lose both cases 9-0.
Senator Klobuchar. I did not note that. I might not have
asked that question. I was trying to ask an easy question. But
go ahead.
Mr. Kayatta. On one of the cases, my dear dad, who always
rooted for me in every case, asked me how I could lose a case
9-0 and I told him it was because there were not 10 justices on
the court.
For a lawyer who reveres the rule of law, who regards this
country as an exceptional country that is built on the rule of
law, to appear before the Supreme court is inspiration, it's
emotionally moving, and it left me with an even higher regard
for what an extraordinary system we have in this country.
And I think that would heighten my sense of responsibility
as a judge to live up to those expectations and to understand
the responsibility that every judge has to stand for the rule
of law and to protect the great institutions that have in this
country.
Senator Klobuchar. Thank you. I noted that Senator Collins
and Senator Snowe talked about your pro bono work, and I think
that is such an important part of being a lawyer.
Do you want to talk about why you got started with pro bono
work and how you think we can make sure that that continues as
part of the practice of law?
Mr. Kayatta. I'm hesitant to talk about my own pro bono
work. I don't think it's something that one crows about. I
think every lawyer--as a lawyer, you're actually given by the
government a license, a monopoly of a sort, to practice law,
and I've always thought that with that privilege comes some
responsibility to do more than use that license solely for your
self.
In that respect, though, I've done much less than many
people I know who dedicate themselves full-time to those
causes. So I feel what I did was something that every lawyer
should do.
Senator Klobuchar. I just have one last question. If
confirmed, you will be serving on the circuit court, as we
know, and you will be hearing cases wit a panel of judges.
Could you talk about the importance of seeking out
agreement with your colleagues? Is there value in finding
common ground, even if it is a slightly narrower ground than
you might like to get a unanimous opinion on appellate cases?
Mr. Kayatta. My experience in virtually everything I have
done is that several people on a common mission, if they listen
to each other, if they have respect for each other and they
work hard, are probably likely to come up with a better, more
informed decision than someone working on his or her own.
So I do think an important part of serving on a circuit
court is communicating with the other judges on that court
regarding decisions and listening to their different
perspectives.
Senator Klobuchar. Very good. Thank you very much.
I think Senator Franken was next. Thank you.
Senator Franken. Thank you, Madam Chair.
Mr. Kayatta, congratulations on your nomination. My wife is
from Portland and my in-laws are all still in Maine, and I love
the State and I recognize your accent.
[Laughter.]
Senator Franken. You were the American Bar Association's
lead evaluator during Elena Kagan's nomination to the U.S.
Supreme Court. What types of things did you look for or do you
look for when you are evaluating a judicial nominee?
Mr. Kayatta. I actually had no personal input or choice as
to what I would look for. The criteria are basically that we
look for ethics, judicial temperament, and professional
competence. And those are the three criteria that are to be
applied. And when I was on----
Senator Franken. Would you repeat those? Ethics, what?
Mr. Kayatta. Temperament.
Senator Franken. Temperament.
Mr. Kayatta. And professional competence.
Senator Franken. Well, within those you must have some
certain personal criteria that you apply.
Mr. Kayatta. I think the--in terms of digging into each of
those areas, I think that what I looked for was what other
lawyers and judges would look for. And I say that because the
ABA process, as it was implemented while I was on the ABA
standing committee, in many respects, simply channeled a peer
review of a nominee.
And by that, I mean we would speak to, in that case,
hundreds of people familiar with the nominee and ask them what
their assessment was under those criteria and ask them to
provide examples and facts that would substantiate that. And it
was then putting together the whole body of that.
Often, that peer review that would get back would speak for
itself and did not require a large interpretative undertaking
by the person doing the evaluation.
Senator Franken. Got it. And you received--your
recommendation was unanimously well qualified. Is that correct?
Mr. Kayatta. I did, yes.
Senator Franken. That means everyone agreed, right,
unanimously?
Mr. Kayatta. That means every member of the Committee
selected that evaluation, yes.
Senator Franken. That was not a trick question.
[Laughter.]
Senator Franken. Sometimes overlooking the obvious is a bad
thing.
After graduating from law school, you served as a law clerk
on the first circuit court of appeals, the court to which you
are now nominated.
Did you learn any lessons as a law clerk that will help you
as a judge on the court?
Mr. Kayatta. Yes, I did. I learned that a lot of hard work
was involved. I also learned something I think is good for
every law student. There's a tendency sometimes when you're in
law school to become impressed with one's own perception of
one's intellectual prowess.
And serving a year for Judge Coffin of the first circuit, I
realized that there is a lot more wisdom involved in the job
than I had, and I hd a lot to learn and needed a lot of
experience to learn.
Senator Franken. And, finally, I hate to return to your pro
bono work, but I just wanted to ask you--one case that you did
that, you were lead counsel I a lawsuit on behalf of 800
Medicaid-eligible children who had been denied in-home mental
health services.
That seems like a lot of work. Why did you decide to take
that case?
Mr. Kayatta. I had been involved in a group that was trying
to encourage members of the private bar to spend more time and,
also, to devote their particular talents and resources to
assisting those who were full time helping those who not afford
a lawyer.
And one of the major groups in the State came to me and
said, ``We have this very large, very complex case that we
believe the law is not being enforced and that if it were
enforced, it would be a win-win both for the children and for
the government's budget.
But they couldn't take it on--they didn't have the
resources--and they asked if I would take it on. And with the
permission of my partners, one partner in particular, Margate
O'Keefe and a number of other lawyers who agreed to work with
me, we took that one for many years.
Senator Franken. Thank you and, once again, congratulations
to you and to your family.
Mr. Kayatta. Thank you, Senator.
Senator Franken. Thank you.
Senator Klobuchar. Very good. Senator Lee.
Senator Lee. I would not let anybody give you a hard time
about the 9-0 losses.
Your former classmate, Chief Justice Roberts, had a 9-0
loss not too long before you went onto the Supreme Court.
Sometimes the court gets it wrong.
In any event, you have got one of those quill pens, I am
sure, each time you argued that.
Mr. Kayatta. Yes, I did.
Senator Lee. And that is a victory in and of itself.
As a Federal judge, you will be called upon on an almost
constant basis to evaluate what could potentially be defects in
any case. When you come across a case in which Article 3
standing is, arguably, deficient, what factors would you look
to in deciding whether or not there is standing and what might
you do in a case in which you are in doubt, you are sort of
wondering which way the scales tip?
Mr. Kayatta. Well, not profession to be an expert on
standing, let me say that it's my impression that as a judge, I
would actually be obligated in every case, whether the issue of
standing has been raised or not., to make a determination that
I have been given the power and the court I am on have been
given the power to do anything at all. And without standing, a
Federal court--- if the parties who come before the court who
had brought the case lacks standing, then the court lacks
jurisdiction, generally, other than some odd unusual
circumstances.
Senator Lee. Regardless of whether they raise it.
Mr. Kayatta. That's correct. I think it's one of those
issues that the court could--we are--the Federal courts are
courts of limited hours and limited jurisdiction, and pat of
being a good Federal judge is to always ask yourself, ``Am I
operating within those limits? ''
And so standing is one of the important limits because it
ensures that the party who comes before the court has a stake
in the outcome. And if we didn't have standing requirements,
then courts, instead of deciding cases and controversy, would
start deciding issues, and our courts are not set up to decide
issues. They decide actual cases and controversy where there is
an injury, in fact, or an imminent injury, in fact, and where a
judgment would actually have an effect on the litigants before
the court.
Senator Lee. And when you are in doubt as to weighing those
elements of standing along with the element of whether or not
they are fairly traceable to the conduct of the defendants, how
would you sort of decide how to balance a close case?
How do you just say whether or not there is standing if you
are really on the fence?
Mr. Kayatta. Right. Let me address the process, because as
a practicing attorney, one of the first things I would say is
that when a court sua sponte, as us lawyers say, raise
something of themselves, I think the court should generally ask
the parties to weigh in on the issue.
And sometimes the courts don't do that and I think it's a
mistake not to get the benefit of the adversarial process.
Having done that and having looked at the case, I would
obviously be bound by the precedent. Having come to the end of
the process of reading the precedent, if I didn't know what the
decision was, I think I would certainly engage in the process
that the chair has suggested of consulting with the other
judges on the court, and, ultimately, one has to make a
decision.
Senator Lee. You indicated a minute ago that the Federal
courts are government bodies with limited jurisdiction. We,
too, as a Congress, we are a legislative body with limited
jurisdiction, even though we do not always act like it.
We have exercised a lot of power under the commerce clause
of the Constitution. I was wondering if you could tell us what,
in your opinion, are the limits on what we can enact under the
commerce clause?
Mr. Kayatta. Well, given the currency of high profile
litigation exploring the reach of the commerce clause could----
Senator Lee. And I am not asking you to weigh in on
anything pending across the street, sir.
Mr. Kayatta. Well, I think one starts with the presumption
of--I think it's Madison in the Federalist Papers, I think he
used the term that the powers of the Federal Government are few
and defined.
So one starts, I think, with the presumption that for our
government to exercise powers, those powers must have their
source in the Constitution. In other words, that the people
have granted the government that power. So one looks in the
Constitution.
Beyond that, you would then look at precedent, and I would
be bound by the precedent both of the Supreme Court and of the
circuit.
Senator Lee. Is there anything in our precedents beyond
what is found in U.S. v. Lopez and U.S. v. Morrison that is
outside of that power? Is there any real limit?
Mr. Kayatta. Well, those cases discussed certain aspects of
the limit. Just knowing how complex the issue of the breadth of
Congress' power is, I would be surprised if there weren't other
issues that could arise outside the context of those, but I do
not profess to be familiar with that.
Senator Lee. I see my time has expired unfortunately. Thank
you.
Senator Klobuchar. Thank you very much, Senator Lee.
Senator Grassley has a followup.
Senator Grassley. Just one question following-up on
something Senator Franken asked you about, the standards that
you applied. I have one followup to that.
I would like to have you explain--well, based upon what you
said about your respect for rule of law, I presume that applies
to respect for standards that you apply for judicial nominees.
Would you mind explaining the standing committee's
conclusion in regard to Ms. Kagan's nomination of being well
qualified. The conclusion given, its stated standard that
judicial nominees should have, ``have at least 12 years''
experience in the practice of law and, ``a substantial
courtroom and trial experience as a lawyer or trial judge,''
considering the fact that Ms. Kagan had spent only a couple
years as a lawyer in private practice and did not have the
experiences talked about here in the standard.
Mr. Kayatta. Let me see if I can address that without
stepping outside of proper role, because since I'm no longer a
member of the standing committee and I've never been authorized
to speak on behalf of the committee, other than the particular
testimony that was put forth.
But I do have enough familiarity with the standards to know
that the trial practice, in particular, which is mentioned in
the Committee's backgrounder, is a factor that diminishes the
higher one goes.
In other words, it's a very significant factor for a
district court nominee; important, but less so, in practice. It
was my understanding, if memory serves me correctly. That that
was not a requirement for a position on the Supreme Court.
And in that particular incidence, we had the rather
extraordinary fact that we had an individual who had served as
solicitor general for the United States.
This is a position often referred to as the 10th justice.
So it's quite an extraordinary and unusual litigation-related
qualification.
Senator Klobuchar. Very good. Well, thank you very much,
Mr. Kayatta, and thank you for your testimony, and you are
done.
Mr. Kayatta. Thank you very much.
[The biographical information follows.]
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Senator Klobuchar. I want to bring the next group up, if
you could all come up, please. You want to keep standing there.
Very good. Will you please raise your right hand and stand to
be sworn?
[Nominees sworn.]
Senator Klobuchar. Thank you very much. That oath went a
little more smoothly. I did not make it up that time.
We will start. We are looking forward to having you
introduce the people that are here with you. We will start with
Judge Fowlkes. You had good recommendations from both of your
Senators, Senator Lamar Alexander and Senator Corker, and we
welcome you today.
STATEMENT OF JOHN THOMAS FOWLKES, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE
Mr. Fowlkes. Good afternoon, Senator. Thank you. And the
other Senators, thank you for being here and giving us the
opportunity to speak before you. It is truly an honor to be
here.
Special thanks to the Senators who gave some very kind
words for me. Of course, they had to leave. Also,
Representative Steve Cohen who submitted my name in the first
place. Of course, a special thanks to the President for
nominating me.
I have with me, as was said, several family members. Of
course, my wife of 40 years, Michelle, is with me today, just
sitting just behind me.
Senator Klobuchar. I see her.
Mr. Fowlkes. My father is also with me, John Thomas
Fowlkes, Sr. He's sitting just behind my wife. He's here from
Raleigh, North Carolina, along with my two sisters who are
here, Alisa Washington and Deidre Taylor.
I have also here cousins, Edward Montgomery, Dr. Montgomery
is here. William Baltimore, he's a battalion chief here in the
District. And also I have a nephew who is here, 15 years old,
Owen Davis, here from Raleigh, North Carolina. He has to write
a paper about his experience here.
Senator Klobuchar. Where is he?
Mr. Fowlkes. He's sitting just----
Senator Klobuchar. There we go. We can talk to him later,
Senator Grassley, do a little interview. All right.
Mr. Fowlkes. Thank you very much. I have no further opening
statement.
Senator Klobuchar. Thank you.
Mr. Fowlkes. I appreciate your being here and listening.
Senator Klobuchar. Thank you for being here. Very good.
Mr. McNulty.
[The biographical information follows.]
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STATEMENT OF KEVIN McNULTY, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY
Mr. McNulty. Thank you. With me today are, of course, first
and foremost, my family members. My wife, we will be married 25
years in June, is back there; and next to her, my daughter,
Tess, who's a junior at Yale and is giving up part of her
spring vacation to be here today.
Senator Klobuchar. What a sacrifice.
Mr. McNulty. Yes, indeed. I would also like to acknowledge
my dear friends who have taken time out of their busy lives to
come down here today. Just in order of seating, behind me is
James Zazzali, formerly chief justice of New Jersey Supreme
Court.
Next to him is one of the lions of the New Jersey bar,
Michael Griffinger. And behind them is Paul Weissman, a dear
old friend and also an attorney with one of the pharmaceutical
firms in New Jersey.
I'd also like to acknowledge Judge John Gibbons, who could
not be here today, but I know is watching on the Webcast.
Having said that, I would like to thank the President for
forwarding my nomination, and my two home State Senators,
Senator Lautenberg and Senator Menendez, and Senator Menendez
especially for his kind words at the beginning of this process.
And I almost forgot, of course, my son, Jake, who could not
be here today, is also on the Webcast. He's in England, and so
was a little too far away to make it.
Thank you.
Senator Klobuchar. Very, very good. Welcome, everyone.
Thank you for being here.
Judge Shipp.
[The biographical information follows.]
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STATEMENT OF MICHAEL A. SHIPP, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY
Mr. Shipp. Thank you.
Senator Klobuchar. Judge Shipp, is that your son that was
sitting next to you over there?
Mr. Shipp. That's my youngest son.
Senator Klobuchar. I especially enjoyed when Senator
Menendez was going through glowing references to your biography
and your son looked very bored and put his head on your
shoulder.
[Laughter.]
Senator Klobuchar. Good thing that maybe not everyone
captured on the Webcast, but I saw it.
Mr. Shipp. Thank you so much, Senator Klobuchar. I would
like to thank the panel for conducting this hearing here today.
I also would like to thank President Obama for nominating me
for this position.
I would like to thank my hometown Senators, Senator
Lautenberg and Senator Menendez.
Along with me today I have here my three sons; my oldest
son, Miles, age 13; Marcus, age 11; and, my youngest son, who
you referenced already, Mason, age 9. The three of them are
also sacrificing by missing school for a couple of days to be
here. They, too, are obligated to take pictures and to write a
paper.
I also have my mother, Ida, here from North Carolina. My
brother, Marcel, who I would like to specifically thank. He
flew in all night on a redeye from Arizona to be here. My
sister, Pamela Shipp-Jackson, and her husband, James, as well
as their daughter, Jasmine, are here. My aunt, Doris Fox, from
Stanford, North Carolina, is here. My brother-in-law, Al Bess,
from Loudoun County, Virginia is here. And my good friend,
Raquel Straud and Anthony Thomas are here.
And I'm also very delighted to be joined by an incredibly
talented group of young lawyers who have worked with me over
the past 5 years and served as my law clerks and courtroom
deputy, and they are here with me, as well, today.
Not physically here, but here with me always, my late
father, the Cleon Shipp, and one of my best friends, the late
Will Haines.
And then, finally, watching live, we have a host of friends
back at the district court of New Jersey watching it live via
the Webcast.
Thank you.
Senator Klobuchar. Very, very good. Thank you, Judge Shipp.
Judge Rose.
[The biographical information follows.]
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STATEMENT OF STEPHANIE MARIE ROSE, TO BE U.S. DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF IOWA
Ms. Rose. Thank you. As with my fellow nominees, I offer my
thanks to a number of people, including President Obama for the
nomination, Senator Harkin for sending my name forward and for
his enduring and seemingly boundless faith in me these last 3
years; Senator Grassley for his kind words today and his long-
term support of my office and its work.
Chairman Klobuchar, Senator Lee, Senator Grassley, Senator
Franken, who are here and whose work on this committee is so
important.
I offer my thanks to my husband who is here with me today,
our kids back in Iowa who are probably out of school and
watching on a Webcast.
My parents, I would note. I am sure my dad is wearing his
lucky tie. My mom, my mother-in-law, my sisters; unknown and
I'm sure a large number of people who are watching the Webcast
that are friends, family, coworkers, judges, colleagues; and,
then, a number of friends who traveled long distances and short
distances to be here with me today in the audience.
I offer all of them my gratitude for their help and making
me the person I am and getting me to this place before you. And
I look forward to any questions the Committee may have.
Senator Klobuchar. Thank you very much.
Senator Grassley will begin.
Senator Grassley. You three on the left will not mind if I
only ask questions of the Iowan.
What I would like to do is--because you were involved in
what was a fairly controversial case at one time, I think we
need to get some things on the record. And just so you know
that I am not trying to play ``catch you.''
I would like to read all the questions and then come back
and read them and have you answer them one-by-one so you do not
have to repeat yourself. This is in regard to the wholesale
immigration prosecutions.
At the time of the prosecutions, you were deputy chief,
criminal division, U.S. Attorney's office. So I would like to
have you describe your responsibilities and duties.
Two, what was your specific role in the Postville case?
Three, how much involvement did you have with each of the
following: A, the planning of the raid; B, the pre-raid
ratified plea agreements; and, C, the prosecution of cases?
Four, who had ultimate decision-making authority within
your office? What was the nature of main Justice's involvement
with the various states of the Postville raid and criminal
cases?
Six, what was the specific crime the government charged the
workers with? What were the specific crimes in the pre-ratified
plea deal offered by the government?
Reports indicate that all--this is eight--reports indicate
that almost 400 individuals who were in the United States
unlawfully were charged with crimes. Reports also seemed to
indicate that about 300 of them pled guilty.
A, could you please tell us what legal process those who
did not plead guilty underwent? What was the conclusion of
those who pled not guilty?
And then nine and ten are in regard to living conditions.
What government agency was responsible for treatment and care
of the accused following the raid, and have you personally seen
the accommodations? How would you describe them? Were they
comparable to conditions found in Iowa detention facilities?
So let me start over again. At the time of the prosecution,
you were the deputy chief----
Senator Klobuchar. Thank you.
Senator Grassley. At the time of the prosecution, you were
deputy chief, criminal division, U.S. Attorney's office.
Kind of give us a brief description of your
responsibilities and duties in that position.
Ms. Rose. Thank you, Senator Grassley. I think there is
some misnomer to the term deputy criminal chief and it has
caused a fair amount of confusion.
What my role was largely to do back in 2008 and 2009, until
I became U.S. attorney, was to handle and oversee the guns and
drugs prosecutions being done on behalf of the northern
district of Iowa.
That meant that I generally mentored and supervised the
drug attorneys in Cedar Rapids and those attorneys who were
handling the violent crime cases. I was not the criminal chief.
I was not the FOUS (ph) and I was not the U.S. attorney. Each
one of those individuals were above me in the chain of command.
At the time of the Postville operation, I was overseeing
the supervision of law students, legal assistants, paralegals,
SOUSES (ph), and criminal attorneys, all of whom were involved
in drugs and gun prosecutions.
Senator Grassley. Number two, what was your specific role
in the Postville case?
Ms. Rose. I was involved over a 2-week period when the
operation was in Waterloo, Iowa. My job was to serve as a
liaison between my office, the defense attorneys, the court,
the probation office, the clerk's office, the marshals, and the
agents involved.
That generally meant that I spent a lot of time on the
phone. I had three phones at the time. I got my records back.
On just one of those phones, I had 687 calls in a 12-day
window, and the other two phones rang about as often.
So I spent 24 hours a day onsite for the first 2 days. I
was there all but may 4 hours to sleep on the third day. And
during that time, I was literally running around ensuring that
the hearings were covered, that the defense attorneys had the
materials they needed, that they had access to their clients,
that the probation office got what they needed, that our office
was getting things moving through as soon as possible.
And so my role was really as a key problem-solver during
that raid.
Senator Grassley. What involvement did you have with the
planning of the raid?
Ms. Rose. None.
Senator Grassley. What involvement did you have with the
pre-raid ratified plea agreements?
Ms. Rose. None.
Senator Grassley. What role did you have with the
prosecution of the cases?
Ms. Rose. To the extent it was going on when I was in
Waterloo, I was there to make sure there were attorneys
covering those hearings. We had four SOUSES (ph) brought in to
assist with that.
In the middle of one of the operations, I think we were in
the middle of initial appearances, the chief judge became upset
with two of the SOUSES (ph), didn't like how they were handling
cases, asked that I be paged and come down and take over them
myself.
I immediately went to the courtroom, which was the ballroom
of this facility, and I stayed throughout the rest of those
hearings to ensure things were going smoothly.
So to the extent that's part of the prosecution, I was
involved in that way.
After May 23, which was when we left Waterloo, I wasn't
involved again in the prosecutions.
Senator Grassley. Who had ultimate decision-making
authority within your office?
Ms. Rose. Within my office, the U.S. attorney at the time
was Matt Dummermuth. I know much of this--and I don't know all
the details because I wasn't involved in the planning, but much
of the approvals were being done at the Department of Justice
level and I don't know all of the people involved in those
decisions.
Senator Grassley. I think you touched on this next
question. What was the nature of main Justice's involvement
with various stages of the Postville raid and criminal cases?
Ms. Rose. It's my understanding--and, again, I wasn't
involved--that the planning took place from the fall of 2007
until the operation began in May 2008. I know there was daily
and regular contact during parts of that time.
Certainly, the major decisions about what charges to offer,
what kinds of provisions were going to go into those plea
agreements I understand were made with Department of Justice,
either at their direction or with their blessing.
This was an approved fast-track program and, as such, it
had to have the endorsement of the Department of Justice.
Senator Grassley. Number six, what was the specific crime
the government charged the workers with?
Ms. Rose. There were a handful, but the most predominant
one was use of somebody else's Social Security card or use of
somebody else's alien registration number.
Senator Grassley. Seven, what was the specific crime in the
pre-ratified plea deal offered by the government?
Ms. Rose. It was those. There was, in fact, a matrix set up
as part of the fast-track approved plea agreement, where, if
certain facts were present, the plea offer would be X. If a
different set of facts were present, the plea offer would be Y.
There was very little--in fact, no, that I'm aware of,
movement off of what had been pre-approved, other than to apply
whatever the facts were to the particular plea agreement that
fit that situation.
Senator Grassley. Number eight, reports indicate that
almost 400 individuals who were in the United States unlawfully
were charged with crimes. Reports also seem to indicate that
while 300 of them pled guilty, A, can you please tell us what
legal process those who did not plead guilty underwent?
Ms. Rose. There were a number of workers who were
encountered at the site of Agri Processors who were released on
humanitarian grounds. Any worker who identified that they were
caring for minor children, when they were encountered at Agri
Processors, if there was only one person--in other words, if we
found a couple, one of the parents went off for further
processing and one parent was turned loose to go home and care
for the children.
Those were put into ICE custody and I don't know all of the
arrangements that happened with them. Those folks were not
ultimately prosecuted by us.
Three hundred and six were prosecuted through the operation
in Waterloo. We had a number of people who made it to the
operation site in Waterloo and then, for the first time, told
us, ``OK, I really do have children.'' Those were immediately
then released to go back home to care for those children.
And then we had a handful of defendants who had initially
identified themselves as adults whose paperwork with the
company indicated they were adults, but during the course of
the 3 days we were in Waterloo, advised that they were, in
fact, minors. We immediately and I personally immediately went
to the judge and had those particular people--the cases against
them dismissed and they were moved into juvenile custody
through ICE.
Beyond that, I don't know what arrangements were made.
Senator Grassley. B on eight was, what was the conclusion
of those who pled not guilty?
Ms. Rose. We had initial not guilty pleas, but all 306 who
charged during those days did plead guilty. There was not a
single trial held.
Senator Grassley. Nine, which government agency was
responsible for the treatment and care of the accused following
the raid?
Ms. Rose. A handful of them, ICE predominantly. But
certainly those who came into U.S. Marshal custody, it would
have been U.S. Marshal responsibility.
Senator Grassley. Ten and final. Have you personally seen
the accommodations? How would you describe them? Were they
comparable to the conditions found in Iowa detention
facilities?
Ms. Rose. I did personally see them. As I said, I was
onsite 24 hours a day for the first 2 days and then nearly 24
hours that third day.
The restrooms that all of us had to use were in the
facility where the defendants were being housed. And so I was
in and out of that building over those 72 hours.
Every person I saw had a cot, they had a blanket, they had
clean clothing. They had meals catered by High V, which is a
grocery store chain in Iowa. They had televisions, they had
games. I never saw them playing the games, but they were
sitting there.
And so I don't know what all the conditions are at the
prisons. I would guess there was more limited access to things
like showers and things that were easier to provide in the jail
setting. But during the 48 to 72 hours they were held in
Waterloo, accommodations were everything you would and should
expect.
People were moved as soon as we could move them out of site
in Waterloo and into the real or more permanent detention
facilities, and I have every reason to believe they were
treated well throughout the time they were in our custody.
Senator Grassley. Thank you. Thank you, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Grassley.
Senator Harkin has asked that I submit this on his behalf.
It is a letter of support for Ms. Rose to Senator Harkin from a
group of defense attorneys involved in the case that Senator
Grassley just discussed with you, and it was submitted during
Ms. Rose's confirmation as U.S. attorney for the northern
district of Iowa.
So without objection, I will include this in the record.
[The biographical Information follows.]
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[The letter appears as a submission for the record.]
Senator Klobuchar. I wanted to ask--I notice you are all
former prosecutors. Is that right?
Mr. Shipp. Not really.
Senator Klobuchar. Thank you for answering that correctly
under oath.
But for those of you that are, that was my former job, and
I just ask if you would discuss how that experience will affect
your work. I am sure you will be fair, but how will that affect
your experience, either the experience you have already had on
the bench, for those of you that are judges, or your experience
going forward.
We will start with you, Judge Fowlkes.
Mr. Fowlkes. Thank you, Senator. My experience--well, I've
actually had experience on both sides. For a time, I was also
assistant public defender. So I handled cases on both sides. I
was a state prosecutor for about 10 years and in the United
States Attorney's office for about 13 years.
So I tried a large number of Federal jury trials as well as
State trials, and I know my way around the courtroom. I'm very
familiar with what goes on in a courtroom. That has really
prepared me, the knowledge and experience that I have in court
has prepared me, as well as my other community activities, to
handle the responsibilities of a judge, I think, in a fair and
competent manner.
So my experience as a prosecutor has helped me handle the
job of being a trial judge. Those things that I have learned,
the experience, the work ethic I will carry forward with me,
assuming I'm confirmed in this process.
Senator Klobuchar. Very good. Mr. McNulty.
Mr. McNulty. Yes. I, too, have been a Federal prosecutor
and have, in private practice, seen the criminal practice from
the other side, as well as civil practice, of course.
Being a prosecutor exposes you to a lot of courtroom work,
to a lot of courtroom issues, and is a valuable experience for
that reason.
Another valuable aspect, though, in terms of how it feels
to be in a judiciary position is that when you're a prosecutor,
you are an advocate, but not only an advocate. That is, it is
impressed upon you, and rightly so, that you have to seek
justice in each case and not just see what you can get away
with in front of a judge. That is a valuable lesson to learn
early in your career, and I think I learned it.
Senator Klobuchar. Now, you had some. I mean, you were
overseeing--should I go through it? It was pretty impressive.
You managed five practice groups of the assistant attorney
general, consumer fraud prosecution, insurance fraud
prosecution, civil, securities fraud prosecution, professional
boards prosecution.
Mr. Shipp. All in a civil context. It was more managerial,
if anything. I started off supervising directly the consumer
fraud area and then expanded into those other areas.
When I became counsel to the attorney general, it was
supervisory again. But I think all those skills there I
acquired at the State of New Jersey by heading up the State's
efforts in consumer fraud, insurance fraud and all those areas.
It was an incredibly large volume of work, and I think
managing a docket on that size and that scale was a readily
transferrable skill set when I came on board as a magistrate
judge 5 years ago. And managing a large docket is a tremendous
part of the work that a judge is called to do.
And I think that understanding and prioritizing, as well as
going through each case and being familiar with the necessary
facts and the law, all of those skills I think were honed and
born through my work on the prosecutorial side, civil, albeit,
at the State of New Jersey.
Senator Klobuchar. Very good. Thank you.
Ms. Rose, I have 10 points I am going to ask you about.
[Laughter.]
Senator Klobuchar. That was meant in a really good-natured
way.
Ms. Rose. I agree with the things my fellow nominees have
said. The interesting thing about being a prosecutor is your
obligation is not only to ensure that the government side is
covered, but that the defense attorneys are doing what they
need to do to protect the rights of their clients; both for
practical reasons, you don't want the 2255, but for reasons of
fairness and constitutionality.
So as a prosecutor, I'm used to looking at both sides to
ensure that everything is being done to ensure a defendant's
rights are protected and that the proceedings are fair.
Senator Klobuchar. Right. I think we always called it
ministers of justice. That's how we had to think of ourselves.
Actually, we had one of your Supreme Court justices from
Iowa, at the State level, testify in this room--Senator Lee was
there and others--about televising U.S. Supreme Court hearings.
Senator Grassley and I are both in favor of that, and I
know that Justice Kagan, when she testified at her confirmation
hearing, was in favor of that on the Supreme Court level.
And I just wondered if you had any views on how that has
gone in Iowa, not to take it out to whether you think it should
happen on the Supreme Court level.
Ms. Rose. Judges everywhere are facing a number of
difficulties, budget and shortages being two of them.
Certainly, our experience with the use of BTC equipment or even
conference call equipment is that it's a very effective method
to use in certain types of cases, where there's not going to be
adversarial proceedings, for instance, a sentencing where
everything is uncontested, a plea hearing where there aren't
particularly thorny issues, provided the defense attorney and
defendant are in the same place so that they can communicate
confidentially and provided that the judge agrees.
Senator Klobuchar. I have a lot of issues having it done at
the trial court level or having it mandated in any way. I just
think we might have a different thing with the Supreme Court
that already releases audio tapes.
Along those lines, I saw something in Minnesota 2 days ago
and I was actually asked this question about the recusal
standard for Federal judges. I had not been asked it before as
a Senator.
And I would just ask all of you, we will start with you,
Ms. Rose, how do you interpret that standard? What types of
cases do you plan to recuse yourself from?
Ms. Rose. I know of none right now that I would need to
step away from. But, certainly, if I am fortunate enough to be
confirmed, the types of cases I would anticipate recusals being
necessary and would be things that might involve threats
against me or my family, against other members of the staff,
cases that were transferred from northern district of Iowa
where I'm the U.S. attorney now to southern district of Iowa
because of conflicts. I would have to bounce those somewhere
else, I guess.
And then, certainly, any case that either had the actual
conflict of interest or the appearance of a conflict of
interest.
Senator Klobuchar. Judge Shipp.
Mr. Shipp. Mine is pretty easy. I've been doing this for a
while and I would continue to abide by the same recusal
standards that I've been abiding by for the last 5 years.
Fortunately, by this point in my career, I don't have very
many conflicts as a result of representation and that sort. But
I've continued to abide by the current rules as to recusals.
Senator Klobuchar. Very good. Mr. McNulty.
Mr. McNulty. Under Section 455 of Title 28 of the U.S. Code
and, also, judicial ethics standards, I would find myself, of
course, recusing myself from any matter in which I had the
slightest involvement, whether supervisory or personal,
anything involving someone whose connection to me was close
enough to give rise to even an appearance of possible
favoritism.
I don't anticipate too many problems from my vast financial
holdings, the----
[Laughter.]
Senator Klobuchar. I can relate.
Mr. McNulty. There are a few and, of course, I would not
engage in any case that would affect my personal finances in
any way.
Senator Klobuchar. Very good. Judge Fowlkes.
Mr. Fowlkes. Basically, the same answers. I face those
circumstances in court from time to time, the code of ethics
that we have to follow, as well as case law and rules.
And really the appearance of any impropriety, any conflicts
must be considered and put openly on the record. And if there
is even that appearance, then recusal may be in order.
I've followed those rules before. I'll follow, obviously,
the Federal standards and Federal rules, if confirmed.
Senator Klobuchar. Very good. Just one last question. I
think this relates to how people are feeling right now about
their institutions and the government in general.
As you know, there is a lot of distrust in politics and in
people in leadership roles. And I just wonder whether
assurances can you give to people that appear before you, if
you receive the votes of the Senate, which I hope you all will,
what assurances can you give that they will be treated fairly
regardless of their political beliefs or whether they are rich,
poor, defendant or plaintiff?
Judge Fowlkes.
Judge Fowlkes. Well, again, I've been ad just for about 5
years. Really the judge sets the standard in the court, how
people are treated, with respect, professionalism and courtesy
are the call of the day.
Whether it is a defendant that is difficult, a juror, the
counsel that are there, people in the audience, really the
standards are set by the judge who is the model and sets the
tone for what happens in court.
All persons in my court have been treated fairly, with
respect, and with courtesy. Obviously, that will continue, if
I'm confirmed.
Senator Klobuchar. Very good. Mr. McNulty.
Mr. McNulty. I, as I mentioned, have been on both sides of
a lot of those divides in terms of legal issues and have also
worked successfully under both Democratic and Republican
officials in my career, particularly my public service career.
I regard it as a sacred trust that any judge should ensure,
both the appearance and reality, that every party before that
judge, win or lose, got a fair hearing for their point of view,
and I would certainly try to comport myself in that way.
Senator Klobuchar. Very good. Judge Shipp.
Mr. Shipp. I would continue to treat all parties,
litigants, jurors, court personnel with the same respect that
I've always treated them with, and I believe that that
courteous nature and that approachable demeanor allows everyone
to leave the courtroom feeling that they've had an opportunity
to be heard.
And my goal is to make sure that they have confidence in
the system, confidence that the court has been prepared, has
read the materials submitted, and has properly evaluated the
case being put before them, and that they feel like they
received equal justice under the law.
Senator Klobuchar. Thank you very much. Ms. Rose.
Ms. Rose. I'm fortunate to be last here. I agree with
everything my fellow nominees have said.
Senator Klobuchar. I am sure we could ask you some more
questions.
Ms. Rose. Sure.
Senator Klobuchar. All right. Well, very good. This has
been an informative hearing. I hope it is--I thought that was
another Senator coming in to ask questions. You all looked very
concerned up there.
[Laughter.]
Senator Klobuchar. It has gone very well, and I think we
had four Senators here, which is good for one of these
hearings, and certainly even more than that that were here on
your behalf.
So I want to thank you for all of your answers and also for
your family. Your son has done very well on the front row. I
think he has not moved since I called him out. I point that
out.
I know that we have some students out there that we will
talk to. Right? So you can get your--I can sign something that
you were really here.
And I just want to thank everyone for being here.
We will keep the record open for 1 week. And with that,
this hearing is adjourned. Have a great day.
[Whereupon, at 4:20 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follows.]
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NOMINATION OF MICHAEL P. SHEA, NOMINEE TO BE U.S. DISTRICT JUDGE FOR
THE DISTRICT OF CONNECTICUT; GONZALO P. CURIEL, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; ROBERT J.
SHELBY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF UTAH
----------
WEDNESDAY, MARCH 28, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 3:07 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Richard Blumenthal
presiding.
Present: Senators Grassley and Lee.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR
FROM THE STATE OF CONNECTICUT
Senator Blumenthal. I am very pleased. Good afternoon. I'm
honored to preside at this meeting of the Senate Judiciary
Committee, and I want to call this nominations hearing to
order.
I'm grateful to the committee chairman, Senator Patrick
Leahy, for asking me to chair it, and particularly glad to do
my part in advancing the judicial nomination process, which has
been so important to our country.
We need to move forward even more expeditiously than we
have, and I think there is a growing sense, a bipartisan spirit
of cooperation, thanks in no small part to Senator Grassley,
the Ranking Member, who is here today and I want to thank him
for his part in doing so. Nearly 1 out of every 10 Federal
judgeships is vacant, and Republicans and Democrats, frankly,
are working harder, and should work harder, to do more to fill
those positions.
Having said that, I'd like to call on Senator Grassley to
say whatever he might wish to do in opening the hearing.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Yes. Later on this hour Senator Lee is
going to be here and take over as ranking position so I can go
do other things, but until he comes I am going to be here,
because that is my responsibility, and I take that opportunity
to welcome the nominees who are appearing before us today, and
of course their family and friends who are very proud of them
for their selection by the President.
I note that we're making good progress on judicial
nominations. Including this very day, we have been in session
for 35 days this year. We have had five nomination hearings.
This is an average of one hearing every seven of those days.
This year we have heard from 20 nominees and I consider this
excellent progress.
So, I welcome our nominees today and I put the rest of my
statement in the record. The rest of the statement is things
that you are going to hear about each of them anyway because it
is their biography and their qualifications for the
Presidential appointment.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Blumenthal. Our first nominee to be welcomed today
is Michael Shea. He happens to be from the State of
Connecticut. I want to call on Senator Lieberman to introduce
him to the committee.
PRESENTATION OF MICHAEL P. SHEA, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF CONNECTICUT, BY HON. JOE LIEBERMAN, A
U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thank you, Mr. Chairman, Senator
Grassley. It's an honor to be before you to introduce Michael
Shea to the committee as the president's nominee to be the U.S.
District Judge for the District of Connecticut.
You'll forgive me if, on a point of personal privilege, I
say that I have a tendency this year--which my colleagues I
hope will understand--to view everything not only in the
moment, but retrospectively as I go through my final year of
privilege of serving in the Senate.
I know it's often said of presidents that in some ways the
most important decisions they make are the people they put on
the Federal bench, particularly the Supreme Court, because they
go on and serve long after them.
To some extent I think we might say that of our own service
as Senators, to the extent particularly with regard to the
District Court, where Senators tend to have more influence in
the selection than in the Circuit Court. This is a very
important responsibility that we have.
As I look back over these 24 years, over the first part of
it of course with Senator Dodd, and now with Senator
Blumenthal, I'm grateful for the opportunities we've had, and
frankly proud of the people that we've brought to service on
the District Court of Connecticut. It's a strong,
distinguished, and quite diverse group.
And so it is with this nominee, Michael Shea. Senator
Blumenthal and I took this responsibility seriously. We brought
together an advisory committee. It was actually a committee
that mostly, but we added some that had performed a similar
function for Senator Dodd and me.
We had over 20 very serious candidates applying. They were
interviewed, their records were reviewed. This nominee is
really a merit selection, which is to say that he ranked right
at the top based on the rankings of the group of people we had
on the advisory committee. It's with that sense of background
and confidence that I'm very proud to introduce him to you.
Michael Shea is from West Hartford, Connecticut. He's a
graduate of Amherst College and Yale Law School, which the
chairman and I will not hold against him, shall we say,
speaking diplomatically. Since his graduation from law school
he's served as a clerk for the Honorable James Buckley of the
U.S. Court of Appeals for the District of Columbia, who sent a
really obviously sincere letter of recommendation on Mr. Shea's
behalf, which meant a lot to me.
He worked as an associate in anti-trust law, both here in
Washington and for a while in Belgium. I gather he imported
somewhat from Belgium, to the great benefit of the country and
our country, his family, which is to say his lovely wife.
He is currently--and has been for quite a while--a partner
in the Hartford law firm of Day Pitney. As such, he's argued in
State and Federal courts across a range of civil and criminal
cases and is highly regarded in the State for his extensive
writing on legal matters. He's also been active in public
service organizations, such as the Nutmeg Big Brothers and Big
Sisters, and serves as treasurer of the Connecticut Supreme
Court Historical Society.
He's been involved in some pro bono legal matters,
representing indigent criminal defendants. In the particular
case that earned him recognition from the Connecticut Bar
Association, he protected a young mother from having to return
her children to an abusive father who happened to have been
abroad. So bottom line, Michael Shea is exceptionally well
qualified, in my opinion, to serve on the Federal bench.
I don't want to end my introduction without expressing
gratitude to President Obama for having nominated him for this
position, and I proudly introduce him to the committee with
great confidence that, if confirmed--and I hope when
confirmed--he will be an outstanding member of the District
Court and that our country and our system of justice will
benefit from his service.
Thank you very much, Mr. Chairman, Senator Grassley,
Senator Lee.
Senator Blumenthal. Thank you, Senator Lieberman. I should
say to everyone in attendance that Senator Lieberman, I
understand, may have other commitments and he may have to leave
before we finish this proceeding. I want to add to that
introduction just briefly to say that Mr. Shea is a Hartford
native, attended Amherst College before Yale Law School, and
graduated summa cum laude from that excellent school.
I know that he has been extraordinarily highly regarded in
his work as a lawyer. I know personally because I worked with
him as Attorney General, served with him in a number of those
pro bono groups, but also worked with him when he represented,
for example, the Roman Catholic diocese of Bridgeport in a
number of matters, and also St. Francis Hospital and Medical
Center.
So, he comes to this process with a lot of really
practical, hands-on experience and I would say to him and all
the nominees and to their families, there is nothing more
important than this job in our justice system. You will be the
voice and face of justice for the people who come to your
courtroom, as one who has practiced for a few decades and been
in those courtrooms.
As Senator Lieberman knows also from his personal
experience, people will be coming to you for justice, and for
many of them you will be the final word in this process. So,
both you and your families should be very, very proud of the
service that you've given and the service that you will give,
and I'm hopeful that we will move quickly to confirm every one
of you.
PRESENTATION OF GONZALO P. CURIEL, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF CONNECTICUT BY HON. RICHARD
BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF CONNECTICUT
I want to introduce now Judge Gonzalo Curiel, who also has
been nominated to the United States District Court for the
Southern District of California. I'm going to be introducing
you because the two Senators from California could not be here.
I know he's joined today by his family, as is Mr. Shea.
He was born in East Chicago, Indiana. He's the son of
immigrant parents from Mexico, who came to this country with an
elementary school education. He attended college in-state at
the University of Indiana, graduated in 1976, and received his
J.D. degree from the university 3 years later.
After graduating from law school, Judge Curiel worked for a
decade as an associate in private practice, and he then spent
17 years as a Federal prosecutor in California. During his 27
years in practice he tried over 300 cases, the vast majority of
them Federal criminal jury trials where he served as the sole
or lead counsel. That's extraordinary experience.
One of the most significant cases involved the successful
prosecution of the Arellano Felix drug cartel, a multi-billion
dollar drug trafficking ring responsible for more than 100
murders in the United States and Mexico. He was also the lead
attorney on the Presidential Organized Crime Drug Enforcement
Task Force in 1999 to 2002.
Governor Schwarzenegger appointed Judge Curiel to the
Superior Court of San Diego in November, 2006, and he was
reelected to that position in 2008. During his tenure he has
been exposed to a wide variety of cases, assigned to domestic
violence, criminal cases, family court cases, civil cases,
presiding over more than 40 that have gone to verdict or
judgment.
He's also spent time giving back to his community. He
serves as vice president of the board of trustees of the Urban
Discovery Academy Charter School, and from 2003 to 2006 he
participated in the Legal Enrichment and Decision-Making--it's
called the LEAD program--organized by the Los Angeles District
Attorney's Office.
He comes to us, in short, as a nominee with impressive--
indeed, extraordinary--record of experience, public service,
and I look forward to his swift confirmation. As Senator
Lieberman did with Mr. Shea, I want to join in thanking
President Obama for his nomination and for the nomination of
Robert Shelby, who will be introduced to this committee by
Senator Lee.
PRESENTATION OF ROBERT J. SHELBY, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF UTAH BY HON. MIKE LEE, A U.S. SENATOR
FROM THE STATE OF UTAH
Senator Lee. Thank you very much, Mr. Chairman, and thanks
to all of you for joining us today. It's my pleasure to say a
few words in support of the nomination of Robert Shelby to be a
Federal District Court judge in the State of Utah.
Mr. Shelby is a preeminently qualified lawyer and he has a
distinguished career of service, both within and outside of the
legal profession. Mr. Shelby graduated from Utah State
University and earned a law degree from the University of
Virginia.
He served for nearly a decade in the Utah Army National
Guard, the 19th Special Forces Group, 1457th Combat Engineer
Battalion. At various times during his service Mr. Shelby
entered active duty, including during Operation Desert Storm in
1991, during which he served in Germany as combat engineer.
In recognition of his service, Mr. Shelby received a number
of military awards, including the United States Army
Achievement Medal for Desert Storm and the National Defense
Service Medal, and he was honorably discharged with the rank of
Specialist 4th Class, E4.
After law school, Mr. Shelby served as a law clerk for the
Honorable J. Thomas Green of the U.S. District Court for the
District of Utah, the very same court for which he's now been
nominated to serve.
His legal practice has included a wide range of both civil
and criminal litigation, including white collar and criminal
defense and catastrophic personal injury, and complex
commercial litigation. He's an accomplished litigator and one
who has tried about 35 cases to verdict. He has experience
before Federal, State, and appellate courts.
In recognition of his distinguished status as an exception
litigator, Mr. Shelby has received a number of awards and
honors, including being named an Up and Coming Litigator by
Chambers & Partners, and also including the coveted AV
Preeminent rating from Martindale Hubble.
Over the course of his career Mr. Shelby has worked with
distinction to serve the bar and the bench. He's served on the
Salt Lake County Bar Association's Executive Committee since
2002, and he's also served as its vice chairman since 2011.
He's served on the David. K. Watkiss Southerland 2 American
Inn of Courts since 1992, and also as its president from 2010
to 2011. That's significant in and of itself because I'm quite
sure that that Inn of Court has the longest and most difficult-
to-pronounce name of any Inn of Court in Utah, if not the
entire intermountain west. He's also served on the Utah Supreme
Court's Advisory Committee for Rules of Civil Procedure since
2010.
I'm confident of Mr. Shelby's qualifications, his
experience, and his judgment and I'm certain that those will
serve our country's judiciary well. I ask for your full
consideration of this very outstanding nominee from the
President.
Mr. Chairman, I'd also like to note that my friend and
colleague, Senator Hatch, who was not able to be here with us
today likewise supports Mr. Shelby's nomination, as I do, and I
ask that his written statement be placed in the record.
Senator Blumenthal. Hearing no objection, it is so ordered.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Senator Blumenthal. I'd like to ask the nominees to now
come forward and take your places at the witness table. We have
a tradition. We have a rule that we swear our witnesses. So if
you could please raise your right hand.
[Whereupon, the witness was duly sworn.]
Senator Blumenthal. Please be seated. Each of you is
afforded the opportunity to make a brief opening statement.
We'll hear first from Mr. Shea, then go to Mr. Curiel and Mr.
Shelby.
STATEMENT OF MICHAEL P. SHEA, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE DISTRICT OF CONNECTICUT
Mr. Shea. Thank you, Senator Blumenthal, and thank you,
Senator Lee, for giving me the opportunity to speak to you
today. I'd like to begin also by thanking Senator Leahy and
Ranking Member Grassley for convening this hearing. I would
like to thank Senator Lieberman for his generous remarks in
introducing me, and also you again, Senator Blumenthal. I would
also like to thank the President for the honor of this
nomination.
Briefly, I'd like to introduce the members of my family and
some friends who are here today. With me today is my wife of 21
years, the love of my life, Frederique. Also with us today are
our children, our twins Kevin and Lisa, age 16, and our
daughter Annabelle, age 10.
Also with me today are my friends from college, Stu and
Jamie Rennert, and my friend and law partner, David Doot.
Briefly, I'd like to just acknowledge some folks who may be
watching on the webcast. First and foremost, my mother, whose
80th birthday we celebrated recently, and also my seven
sisters: Susan, Kathleen, Margaret, Christina, Rosemary, Maura,
and Julie.
I'd also like to acknowledge briefly someone who's no
longer with us, my father, in whose footsteps as a judge I am
hoping to follow.
Finally, I'd like to acknowledge my friends and colleagues
at Day Pitney who are watching on the webcast as well.
Thank you very much. I'd be happy to answer any questions
that you may have.
Senator Blumenthal. We're going to go now to Judge Curiel.
I just want to wish Mrs. Shea a very happy birthday, a happy
80th birthday. I was actually remiss. I should have mentioned
that I appeared before your father, who was an extraordinarily
distinguished member of our Bar and our court in the State of
Connecticut.
Mr. Shea. Thank you, Senator.
Senator Blumenthal. So, thank you for reminding me about
that fact.
Judge.
[The biographical information follows.]
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STATEMENT OF GONZALO P. CURIEL, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Curiel. Thank you. Good afternoon. Senator
Blumenthal, thank you for presiding over this hearing. Thank
you for the Ranking Member; Senator Lee also for being present.
Mostly I'd like to thank also President Obama for giving
this honor to me, to my family. As I indicated previously, my
parents came here from Mexico with a dream of providing their
children opportunities and they've been able to do that with
the opportunities that this country has to offer.
I'd like to thank Senator Boxer and Senator Feinstein for
their support, for the Advisory Committee that recommended my
name to Senator Boxer to pass forward. I'd like to take the
time to introduce my family that was able to come today: my
wife Trisha and my daughter Natalie.
Also, I'd like to acknowledge family members that weren't
able to attend that were not able to travel here. That includes
my brother in Indiana, Raul, my sister in Ohio, Maria, my
father-in-law, Thomas Yamauchi, and a host of friends who are
watching on the webcast.
Thank you for this distinction, this honor. With that, I'll
conclude.
Senator Blumenthal. Mr. Shelby. I want to add my thanks to
you for your service to our Nation as a member of the military,
as well as in the life of--the civic life of your community and
professional life.
[The biographical information follows.]
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STATEMENT OF ROBERT J. SHELBY, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF UTAH
Mr. Shelby. That's very kind of you, Senator. Thank you.
Good afternoon.
In lieu of formal statement this afternoon I'd like to take
just a moment and thank the President for the honor of this
nomination. I'd also like to thank Senator Hatch for
recommending me to the President and for the support he and his
staff have shown to me throughout this process.
Senator Lee, also thank you to you and your staff, who have
been tremendous. We appreciate--I very much appreciate you
supporting my nomination and the support that your staff has--
has shown to me. Also, thank you very much for those kind words
this afternoon.
I'd like to thank all of the members of the committee for
their consideration. Finally, I'd like to thank the members of
the District Court at home in Utah, the judges and their
staffs, the Clerk of Court and his staff. Everyone has really
just been terrific and very supportive of this nomination, and
that's particularly true of our chief judge, Ted Stewart, and
the newest member of our District Court bench, David Nufer.
Judge Nufer was elevated by the Senate with his confirmation
hearing last week.
I, too, have some family members with me, some special
guests, and am honored to introduce them today. My college
sweetheart and wife of almost 20 years, Angela, is here, as are
our children: my 8-year-old daughter Amelia and my 6-year-old
son George. Also with us today is my dear, dear friend, my law
partner and my colleague, Juli Blanch.
My parents are unable to be here today, but George and
Marla are at home watching on the webcast, along with many
other friends and colleagues. Senators, I'm honored and humbled
to be here this afternoon and I look forward to answering any
questions you may have.
[The biographical information follows.]
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Senator Blumenthal. Thank you to each of you. I have just a
few questions. You should understand that the brevity of our
questions is sometimes a very good thing, not a bad thing,
because it may indicate--I don't want to speak for anyone else
on the panel who's here now or who may come--that we're
satisfied about your qualifications.
But let me just begin. Mr. Shea, you've had a lot of
experience as a lawyer in litigation. Maybe you could say for
the record how you think that experience will help you as a
member of the court.
Mr. Shea. Sure.
Senator Blumenthal. Or will help you, if you are confirmed
as a member of the court.
Mr. Shea. Sure, Senator. Thank you. I've been fortunate in
my career to have worked on a wide variety of cases, cases both
on the criminal side and on the civil side. And on the civil
side, also a broad array, ranging from commercial cases to
personal injury cases to civil rights cases and other types of
cases.
I think that the breadth of that litigation experience
would serve me well as a District Court judge if I were
fortunate enough to be confirmed, because of course judges too
face a broad array of cases and must in many ways be
generalists. So I think that background would serve me well, if
I were confirmed.
Senator Blumenthal. And Judge Curiel, let me ask you as
someone who has served as a judge, whether you--how you see the
role of a district judge versus the appellate court, and
whether you would have any trouble following the rulings of the
Federal appellate court, the 9th Circuit in the case of your
U.S. District court, if you are confirmed.
Judge Curiel. Well, as a trial judge I recognize that I'm
not there to make the law, I'm not there to interpret the law,
I'm there to follow the law as established by the precedent of
our Supreme Court. The Court of Appeals in the State of
California, if I became a District Court--if I was that
fortunate, I would then be bound by the opinions of the 9th
Circuit and the U.S. Supreme Court.
I've done that in terms of following precedent in my
present position, and I would be in a position to continue to
do that, Senator.
Senator Blumenthal. And Mr. Shelby, if I may ask you how
your involvement, both in the military and in civic life of
your community, and also your service in private practice would
affect your philosophy of judging as well as your
qualifications when you have, as I expect you will be, the
honor of serving in the U.S. District Court?
Mr. Shelby. Well, thank you, Senator. I have a deep love of
this country and it's part of what motivated me to join the
military in the 1980's in a time when I think it wasn't
particularly popular to do so. It's the same spirit that I
bring with me into this endeavor. If I'm fortunate enough to be
confirmed, I look forward to serving the citizens of the State
of Utah.
That experience would have no impact on my duties as a
judge as I see it, except of course to work hard to make sure I
can do the best job that I can. As I see it, the role of a
trial court is to decide only those cases and issues before the
court based on the factual record developed, and while
demonstrating a strict adherence and fidelity to the rule of
law. That's exactly how I would intend to operate, if I'm
fortunate enough to be confirmed.
Senator Blumenthal. Thank you. That concludes my questions.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
Mr. Shea, you wrote an amicus brief that was submitted in
connection with Kelo vs. City of New London a few years ago. In
that brief you make a number of arguments about the need of
municipal governments to be able to exercise their eminent
domain powers.
Much of your argument focused on the need to defer to
legislative bodies. I just want to talk about sort of the
limits on that. Is there risk inherent in deferring too much to
a legislative body in connection with litigation involving the
constitutionality of an act undertaken by a legislative body?
Mr. Shea. Senator, with regard to determinations as to
constitutionality of statutes, each statute carries with it a
presumption of constitutionality and the burden rests on the
party challenging the statute to establish that it is
unconstitutional, if in fact that's what the claim is.
In addition, of course, courts use the canon of
Constitutional Avoidance in dealing with challenges--
constitutional challenges to statutes, by which I mean, of
course, that if the statute is ambiguous then--and capable or
susceptible reasonably of two interpretations, then it's the
court's obligation to adopt an interpretation that would render
the statute constitutional.
But if the plain language of the statute contravenes the
text of a constitutional provision as interpreted by the
Supreme Court, or if I were confirmed the 2nd Circuit, then of
course the duty of the District Court judge, or any judge, is
in those circumstances to declare the statute unconstitutional.
Senator Lee. Which one presents the greater threat of
violence to the Constitution, excessively aggressive review of
legislative bodies' power or inadequate review? I mean, is one
worse than the other or are they both the same?
Mr. Shea. Senator, I don't think--I think that U.S. Supreme
Court precedent, 2nd Circuit precedent, set forth the standard
for review of statutes, which I indicated involves a
presumption of constitutionality. I don't think it would be
appropriate for a judge to deviate either way with regard to
the strength of that presumption.
Senator Lee. Right.
Mr. Shelby, you served under a great District Judge in
Utah, Judge Green, who was loved by all who knew him, I think,
and worked with him. Do you have a judicial role model other
than Judge Green, who obviously is somebody whose friendship
you cherish to this day?
Do you have a judicial role model who has served on the
Supreme Court, let's say, just to make it interesting? Somebody
who's served in the last 100 years, but is not still alive?
That way we avoid Chief Justice Marshall. Everyone will refer
to Chief Justice Marshall if we allow you to go all the way
back to the 1790's.
Mr. Shelby. Well, you've stolen my thunder, Senator.
[Laughter.]
Mr. Shelby. You know, I really don't think I could identify
a single justice. I have--I think the judges that I have--have
most admired and respected have been those that I worked most
closely with, either Judge Green of course in my clerkship, and
other judges in Utah that I've seen and interacted with
regularly, including Judge Winder, who I think you know well
from your experience in Utah as well.
Senator Lee. What is about, say, Judge Winder, who--what is
it about his jurisprudential approach that you admire so much?
Mr. Shelby. Well, I think--I think Chairman Blumenthal has
it correct. I think that for most litigants, the trial court
judge, in State court or in Federal court, is really the face
of the judiciary. For the reason, I think it's imperative that
a trial court judge conduct himself or herself at all times in
a manner that inspires trust and confidence in the judicial
system and in the judiciary. Of course, that was Judge Winder.
He was eminently well-prepared. He was unbiased and
impartial and respectful toward the parties and their lawyers,
and rigorously adhered to the rule of law. I think that was
apparent to everyone who went before him. So, litigants felt
they had a full and fair opportunity to be heard and a judge
who would hear them out.
Senator Lee. Have you ever--have you ever heard people
refer to the risk of ``trial by attrition'', referring to the
tendency of trial court judges to avoid wherever possible the
granting of a dispositive motion, recognizing that it's a lot
easier to allow the case to move forward, perhaps to trial,
perhaps to settlement, than it is to issue a lengthy summary
judgment ruling or other dispositive motion ruling that has to
be written, possibly published, inevitably challenged on
appeal, and possibly reversed?
Mr. Shelby. Well, I don't know that I've heard that phrase
associated with that. As a practitioner, of course----
Senator Lee. It has a lot of names. Some people use much
less flattering terminology.
[Laughter.]
Mr. Shelby. As a practitioner, of course, I've witnessed
firsthand that some courts seem more inclined to grant summary
judgment than others. If I have the good fortune of being
confirmed I think I'll be guided exclusively by Rule 56 and the
standard established therein, and the case law interpreting it.
Senator Lee. That's a great answer. I wish we could explore
that more. My time has expired. Maybe next time around.
Mr. Shelby. Thank you, Senator.
Senator Lee. The benevolent Chairman has given me a little
bit more time.
So is there--is there any way to identify which is worse?
In other words, being too trigger happy on a Rule 12 B6 or a
Rule 56, or something else, too happy to grant the Motion to
Dismiss or for summary judgment, or too reluctant? Is one worse
than the other? If so, why is one worse?
Senator Blumenthal. You may regret his having taken more
time.
[Laughter.]
Mr. Shelby. Thank you, Mr. Chairman.
Senator Blumenthal. And you have a right to remain silent.
[Laughter.]
Mr. Shelby. Well, if that's true I think it'd be best if I
invoked that.
[Laughter.]
Senator Blumenthal. Just kidding.
Mr. Shelby. I don't know that I think one is better or
worse than the other. I just think that a court is charged with
applying the law as it's written and it's interpreted by the
courts and the appellate courts above that trial court.
I do think that, having represented parties, that granting
summary judgment oftentimes enables the parties to better
direct their conduct going forward rather than sort of waiting
or hearing it out and putting off some resolution of those
factual disputes--well, not the factual disputes, but the
dispute in general--until the end of the litigation.
It seems to me that many parties with whom I've worked
can--can deal with a win or a loss. They just hope to get a
ruling and then they can move forward.
Senator Lee. That's great. Thank you very much.
Thank you, Chairman.
Senator Blumenthal. Thank you, Senator Lee.
No other members of the panel have come, but I want to say
to you and your families how much we appreciate your being
here. This is an essential part of the process, and I'm
particularly glad that you have brought your families.
Thank your families because, if you have the honor to be
confirmed as I hope you will be, you'll be spending a lot of
time in the courthouse rather than at home, and even at home, a
lot of time working rather than with your family. So I thank
you and your families in advance, should you have that honor.
With that, I will close this hearing and keep the record
open for a week. Thank you, Senator Lee and Senator Grassley,
for being here.
This hearing is adjourned. Thank you.
[Whereupon, at 3:40 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF ROBERT E. BACHARACH, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE TENTH CIRCUIT; PAUL WILLIAM GRIMM, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND; JOHN E. DOWDELL, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA; MARK E. WALKER,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA;
AND, BRIAN J. DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE
DISTRICT OF FLORIDA
----------
WEDNESDAY, MAY 9, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:30 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senators Lee and Coburn.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. This hearing will come to order. And I
wish everyone good afternoon.
Today we will consider five nominees to the Federal bench.
Judge Robert E. Bacharach has been nominated to the U.S. Court
of Appeals for the Tenth Circuit. Judge Paul William Grimm has
been nominated to the U.S. District Court for the District of
Maryland. John E. Dowdell has been nominated to the U.S.
District Court for the Northern District of Oklahoma.
Judge Mark E. Walker has been nominated to the U.S.
District Court for the Northern District of Florida. And, Judge
Brian J. Davis has been nominated to the U.S. District Court
for the Middle District of Florida.
I welcome each of the nominees and their families and
friends to the U.S. Senate and to the Judiciary Committee.
I also would like to welcome my colleagues who are here to
introduce their home state nominees.
Voting to confirm an individual to the Federal bench is one
of the most important and lasting decisions that a Senator can
make. Every day Federal judges make decisions that affect the
lives of Americans in all walks of life. In doing so, judges
must respect the role of Congress as representatives of the
American people, decide cases based on the law and the facts,
not prejudge any case, but listen to every party that comes
before them, respect precedent, and limit themselves to the
issues that the court must decide.
I hope that each judicial nominee we hear from today
understands the importance of those core principles.
Judicial nominees also must have the requisite legal skill
to serve as a Federal judge. Each of today's nominees has an
impressive record of achievement.
As a result, I believe that each nomination deserves prompt
consideration. We need good judges in adequate number for our
system of justice to function.
In the interest of logistics, let me outline how the
hearing will proceed. After the Ranking Member's remarks, home
State Senators in attendance will, by almost order of
seniority, introduce the nominees. We then will have two
panels. The first will be Judge Bacharach, the circuit court
nominee, and the second will be the four nominees for district
court judgeships.
Senators on the Committee will have 5-minute rounds in
which to question each panel.
I would like to have the Senators from the home States
speak together. So I am going to jump the junior member to tail
their senior member. So it will go Mikulski, Cardin, Inhofe,
Coburn, and then Nelson, Rubio, if that is agreeable to
everyone.
With that, I turn to my Ranking Member, Senator Mike Lee.
STATEMENT OF HON. MIKE LEE, A U.S. SENATOR FROM THE STATE OF
UTAH
Senator Lee. Thank you, Mr. Chairman.
As we begin today, I would like to say just a brief word
about some statements made in recent days by the White House
and by some of my Democratic colleagues regarding judicial
nominations.
There has been some suggestion of record judicial vacancies
resulting from unwarranted obstruction in the Senate by means
of unprecedented delays and filibusters. Of course, none of
this happens to be true.
I would like to set the record straight. The reality is
that judicial vacancies are down by 20 percent from last year
and, in fact, they are at their lowest level in nearly 3 years.
The vast majority of current vacancies remain for one
reason--President Obama simply has not nominated individuals
for those judgeships.
With respect to the current 76 judicial vacancies in our
Federal judicial system, the Obama Administration has made only
29 nominations. And I would note that a number of those
nominations are so recent that the Judiciary Committee has yet
to have even the chance of holding hearings. We are doing so
today for five recent nominees.
The Senate has already confirmed more than 80 percent of
President Obama's judicial nominees, approving a larger share
without a roll call vote than the Senate did under President
Bush.
To date, the Senate has confirmed 143 of President Obama's
district and circuit court judges. That is significantly more
judicial confirmations in the first 3 or so years of the Obama
Administration than the 120 that this body confirmed during the
previous years of President Bush's second term. And we
continue, moreover, to confirm more as we move on.
So far this year, we are well above the historical
standards. The average number of confirmations by May 9 for a
Presidential election year is 11. We have already confirmed 21
judges this year. That is almost double the normal pace.
Finally, the suggestion of unprecedented filibusters is
simply ridiculous. During President Bush's first 3 years,
Senate Democrats forced 19 cloture votes on judicial nominees,
19 votes to filibuster judges. During President Obama's first 3
years, the Senate took only six such votes.
We have treated President Obama's nominees better than the
Democrats treated President Bush's nominees. For the White
House or Senate Democrats to suggest otherwise is false and
hypocritical.
With that introduction, I welcome today's nominees and
their families and look forward to a lively discussion with you
today.
Thank you.
Senator Whitehouse. Suffice it to say that there are
differing views with regard to the Minority Leader's point of
view that, but I do not think this forum is the appropriate
venue to continue that discussion.
So I will yield now to Senator Mikulski, followed by
Senator Cardin, to introduce the Maryland nominee, Paul William
Grimm.
PRESENTATION OF PAUL WILLIAM GRIMM, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND BY HON. BARBARA MIKULSKI, A
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Mikulski. Thank you very much, Senator Whitehouse,
Senator Lee, Senator Coburn.
It is with a great deal of enthusiasm and pride that I am
here to both introduce really highly recommend Judge Paul Grimm
to serve on the district court of Maryland, to nominate him for
a seat to be soon vacated by Judge Benson Legg, a distinguished
Federal jurist who has chosen to move to senior status.
Mr. Chairman and colleagues, I take this honor to recommend
people for the Federal judiciary, to both President Obama and
to bring them to you, very seriously.
I have four criteria. Our judicial nominee must have
absolutely high personal integrity, must bring judicial
competence and temperament, have a commitment to core
constitutional principles, and a history of civic engagement in
Maryland.
I outline these standards because I believe that Judge Paul
Grimm brings these standards to this job. He is, first of all,
a person of incredible competence and temperament. The ABA has
given him the highest rating by stating that he is unanimously
well qualified.
Judge Grimm has come to Maryland really by a route--he is
not a native-born Maryland guy. He comes with a background in
public service. His father was in the United States Military.
He grew up outside of Maryland, but also went to law school at
the University of--he went to school on attending ROTC
scholarships.
He then joined the Army and served in the JAG corps. That
brought him to Maryland, where, for 3 years, he worked at
Aberdeen Proving Ground and even was so highly sought out for
his skills, worked at the Pentagon.
He went on to serve as a JAG officer for 22 years while
maintaining full employment as a practicing attorney and on to
other judicial duties.
His life and resume really speak for themselves. He has
been a trailblazer in the Maryland legal community, well
respected for not only his extensive writing and teaching, but
his commitment to the improvement of the practice of law and
the administration of justice.
He has already served the court by working for 16 years as
a U.S. magistrate. Six of these last years he spent as the
chief magistrate.
Prior to this, he spent 13 years as a litigator in private
practice and, also, served as assistant attorney general. Most
recently, he has served on the advisory Committee on the
Federal Rules of Civil Procedure and was later designated as
the chair of the discovery subcommittee.
He has been honored by just about every legal professional
organization in Maryland. This speaks to his incredible
competence.
But I also want to make a note about his background in
terms of civic engagement. And why is this important? We do not
want our judges to have lived in a bubble. They have to be in
touch with the fabric of our society. And Judge Grimm has been
a church volunteer. He has been active in the Boy Scouts. He
has worked in terms of improving the legal community by giving
courses to everyone from paralegals all the way up to these
professional associations.
You can ask anyone in the Maryland legal community and they
point to--if you say, ``Name the top three who you would say
really belong on the Federal bench,'' Paul Grimm is at the top
of this list.
I am honored to bring him to you today, and I know he will
introduce his own wife here. But behind every great guy there
is an entire family that supports them, and I am sure you will
note the presence of it.
I would hope that the Committee would confirm and recommend
to the full Committee the approval of Judge Grimm and that we
are able to move expeditiously to confirm him in the Senate.
Senator Whitehouse. Thank you, Senator Mikulski.
I will now recognize your junior colleague, Senator Cardin,
to complete the Maryland delegation.
PRESENTATION OF PAUL WILLIAM GRIMM, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND BY HON. BENJAMIN CARDIN, A
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Senator Whitehouse, Senator Lee, Senator
Coburn, thank you very much. And I am honored to join Senator
Mikulski in highly recommending Judge Grimm for confirmation to
the district court for Maryland.
Let me first thank Judge Grimm for his public service. He
has been a distinguished magistrate judge in Maryland for over
15 years. I want to thank him, and I want to thank his family,
because we all know public service is a sacrifice for a family
and cannot be done without the support he has from his family
and I want to thank them all.
Mr. Chairman, I would ask that my written statement be made
part of the record.
Senator Whitehouse. Without objection.
Senator Cardin. And let me just underscore some of the
points that Senator Mikulski made about Judge Grimm.
His military record is distinguished, and, to me, that is
an important point raised to the Committee. He was a captain in
the U.S. Army. He has given back greatly to his community. He
has served in the private sector as a lawyer. He is an
assistant attorney general. He has been a magistrate judge now
for over 15 years, and he is the chief magistrate judge in the
Maryland division.
He has demonstrated the judicial temperament, the
competency, the integrity, and the good judgment. His
reputation among judges, among lawyers is of the highest order.
He has received the highest rating from the Bar Association on
recommending that he be confirmed as a district court judge.
As Senator Mikulski pointed out, Chief Justice Roberts
appointed Judge Grimm to serve as a member of the advisory
Committee for the Federal Rules of Civil Procedure in 2010. He
was designated as chair of the civil rules committee's
discovery subcommittee.
Now, for those of us who have gone through law school,
someone who can specialize in civil procedures has our greatest
respect. So I just want to acknowledge his expertise in this
area of law that does not get the type of publicity that it
deserves.
He has written numerous authoritative opinions, books and
articles on the subjects of evidence, civil procedures, and
trial advocacy. In other words, he is a judge's judge. He
understands what this is about and he has a proven record of
being able to achieve the type of respect in the legal
community that I think we all want from our district court
judges.
But it goes beyond that. He has taught classes at both of
our two law schools in Maryland, and has been awarded the title
as an outstanding adjutant faculty member. So he has
demonstrated himself, also, in taking responsibility to train
the next group of attorneys.
I think he is highly qualified. I am proud to recommend his
confirmation and do so on behalf of the people of Maryland.
[The prepared statement of Senator Cardin appears as a
submission for the record.]
Senator Whitehouse. Thank you, Senator Cardin.
I am now honored to recognize my Ranking Member on the
Environment and Public Works Committee and the senior member of
the Oklahoma Senate Delegation, Senator Jim Inhofe.
PRESENTATION OF JOHN E. DOWDELL, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA BY HON. JIM INHOFE,
A U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman, Senator Lee, and
Senator Coburn.
I am here actually to introduce two, Judge Robert Bacharach
and John Dowdell. It is unusual we get two at the same time,
but I am very pleased.
Judge Bacharach has been nominated for the vacancy of the
tenth circuit court, which has been traditionally held by an
Oklahoman. I believe that Judge Bacharach would continue the
strong service Oklahomans have provided the tenth circuit.
Throughout his career and education, he has distinguished
himself. In 2007, the Oklahoma City Journal Record profiled
Judge Bacharach as an example of leadership in law, where he
simply stated that as a future goal, he intends to improve.
Always working to improve has defined Judge Bacharach.
He graduated in the top 4 percent of his class, received
multiple academic awards, and maintained memberships in the
highest orders of law school students.
He began his legal scholarship on law review and has
continued writing in a number of law reviews. Judge Bacharach
has multiple years of litigation experience, working for Crowe
& Dunlevy, a very large firm in Oklahoma City, and in service
as a Federal magistrate for the U.S. District Court for the
Western District in Oklahoma City.
However, he actually began his legal career with service to
the tenth circuit, working as a law clerk for the chief judge
of the tenth circuit. As evidence of his career of distinction,
when Judge Bacharach was chosen as a magistrate for the western
district, among many good candidates, in 1999, the chief judge
for the western district characterized the decision to choose
Judge Bacharach as an easy one.
Since that time, his colleagues have characterized his
service as remarkable, demonstrating superb judicial
temperament, and a real asset to the western district court
family and their legal community.
So I appreciate the opportunity to introduce him this
afternoon.
Also, Mr. Dowdell has been nominated for the vacancy of the
U.S. District Court for the Northern District of Oklahoma,
which sits in my hometown of Tulsa. After graduating from the
University of Tulsa's College of Law, Mr. Dowdell also began
his legal career as a clerk to the chief justice of the tenth
circuit court of appeals.
Since 1983, Mr. Dowdell has accumulated extensive State and
Federal litigation experience, representing a variety of
clients, working at the same Tulsa firm in which he is a named
partner.
Mr. Dowdell is a native Tulsan, has been extensively
involved in the community, in addition to being widely
recognized for his work on behalf of his clients.
I received a number of letters from members of the legal
community through Tulsa highlighting Mr. Dowdell's work ethic,
his character, his abilities as an advocate for his clients.
Mr. Dowdell already has experience as a mediator and
arbitrator and has served as an adjunct settlement judge in the
northern district for the past nearly 14 years.
He and his wife of 24 years, Rochelle--like my wife, Kay,
we have--he has four kids and when he is my age, he may have 20
kids and grandkids like I do, in which case he will continue to
improve.
So it is my honor to recommend him to this Committee.
Senator Whitehouse. Thank you, Senator Inhofe.
With Senator Nelson's kind permission, I will now turn to
the junior member of the Oklahoma delegation, Senator Tom
Coburn.
Senator Coburn. Mr. Chairman, thank you. I would ask that
my written statements be part of the record, and, also, ask
that----
Senator Whitehouse. Without objection.
Senator Coburn [continue.] Into the record be placed the
recommendations of various and sundry significant individuals
from Oklahoma, as well as bar associations, in terms of their
commendations in support of this nomination, including that of
Judge Lagrange in Oklahoma City.
Senator Whitehouse. Also, without objection.
[The information referred to appears as a submission for
the record.]
Senator Coburn. I think our two nominees are a great
example of how we have chosen to work with the Administration
on getting quality candidates for Federal positions.
I am pleased to support both of these nominations not
because of their legal excellence necessarily, not because of
what other people have said about them in terms of their legal
capability, but what other people have said about their
character and their integrity. And if there is one quality that
I believe is most important in terms of capturing the essence
of what it means to be American, a free and plentiful access to
the rule of law for everybody, that has to come when you have
character and integrity in those that are making those
decisions.
So I am very pleased. There is only one drawback on John
Dowdell in that he has a friendship and relationship with
Senator Burr, as they played football together at Wake Forest.
I told him that was the only negative that I knew of him.
However, I say that in jest.
I have had great conversations with both of these nominees
and I have talked to literally hundreds of people in Oklahoma
who sincerely back and believe in their character and
integrity, as well as their unqualified support by the ABA.
So with that, I would tell you that I support their
nominations and hope that we can move them through the process.
[The prepared statement of Senator Coburn appears as a
submission for the record.]
Senator Whitehouse. Thank you, Senator Coburn.
For the record, Senator Burr actually came to this hearing
in order to let me know of his longstanding friendship with Mr.
Dowdell and his absolute support for his candidacy, as well. So
I was delighted that Senator Burr took that trouble for his
friend and classmate.
And I now turn to the senior Senator of the Florida
Delegation, Senator Bill Nelson.
PRESENTATION OF MARK E. WALKER, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; AND BRIAN J. DAVIS,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
FLORIDA BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Nelson. Thank you, Mr. Chairman. And as you and the
Ranking Member, Senator Lee, know, we have a process in Florida
that is not only bipartisan, it is nonpartisan.
Senator Rubio and I appoint a judicial nominating
commission for each of the three Federal judicial districts and
they do all of the applications. They do the interviews and
they do the selection of at least three.
Well, because of that process, what comes to us are three
nominees that any one of them would be an excellent Federal
judge, and we have an agreement with the White House whereas
the President can accept--he can pick whoever he wanted to--he
will agree to pick from among the names that Senator Rubio and
I send to him.
This has been done now for several decades in Florida
between the two Senators. And so Senator Rubio and I come to
you in that vein now with two vacancies, one in the middle
district and one in the northern district.
And we want you to know that this is an important time and
it is an important time, as said by Senator Coburn, that the
rule of law is upheld. And that is what makes our country so
much different from so many other countries on the face of
Planet Earth.
So I am pleased to introduce Judge Mark Walker and Judge
Brian Davis. Judge Walker is nominated in the northern
district. He was born in Wintergarden, which is in central
Florida. He received his bachelor's degree from the University
of Florida, graduating first in his class.
He continued and earned his law degree at the University of
Florida. He has clerked for a Supreme Court justice in the
Florida Supreme Court and Judge Hinkle of the northern
district. And if the Senate confirms Judge Walker, he will sit
with the very judge that he clerked for in the northern
district.
He served as an assistant public defender of Florida's
second judicial circuit from 1997 to 1999, before then spending
a decade in private practice, where he specialized in civil
litigation and criminal defense. And since 2009, he has had an
outstanding record as a circuit judge, living in Tallahassee.
And he is joined by many of his family, including his wife,
Karen; his daughters, Sarah and Emily; his parents, Joe and
Dorothy; his sister, Elizabeth, and her husband, Tom Conway;
and, also, joined by a close family friend, Ryan Andrews.
His brother, an active duty lieutenant colonel, Larry
Walker, is on active duty and, therefore, not able to attend.
Our second vacancy is in the middle district, and that is
Judge Brian Davis. He is a native of Florida, born in
Jacksonville. He attended Princeton, which was no little task,
coming out of the schools of Florida back in the 1960s and
going to the Ivy League.
He studied psychology and then he went to the University of
Florida for his law degree, where he was a member of the law
review. He practiced law first and then in the state attorney's
office in Jacksonville. And Judge Davis was the first African-
American to be the chief assistant state attorney in the State
of Florida.
A little personal note. The former state attorney--and in
our State, they are elected--came to Judge Davis back then and
said, ``I want you to be my chief assistant,'' when Judge Davis
had already been an assistant state attorney and was getting
ready to go back into private law practice and make some money.
And because of the call of public service, Judge Davis accepted
the state attorney's insistence and he came on as chief
assistant.
Since 1994--so this is a long time, 18 years--he has served
as a circuit judge in Nassau County, which is just to the north
of Jacksonville, where he presides over family law, civil, and
juvenile cases. And he is a member, of course, of the
Jacksonville Bar Association and so many other organizations.
And he is here today with his family, his wife, Tanya; his
daughter, Cicely; his granddaughter, Brynne; his god daughter,
Sonya; his cousin, Roberta Balthrop; his niece and nephew,
Natasha and Reginald, and their daughter, Gabrielle. And that
is the best behaved baby back there, as well as this one right
here.
So it is a pleasure for Senator Rubio and me to be here on
behalf of these two outstanding nominees.
Senator Whitehouse. Well, Senator Nelson, we particularly
appreciate your recommendation of these folks, as someone who
sat next to you on the Intelligence Committee for 4 years.
We went to the same law school, and I was always very proud
of Senator Nelson's abilities, because you would get a witness
in from time to time and the Intelligence Committee is, of
course, very private, there is no audience, but we learned
about each other and every once in a while you would hear
Senator Nelson say, ``I am just a country lawyer from
Florida.''
[Laughter.]
Senator Whitehouse. And all of the members' ears would perk
up and they would start paying particular attention, because
they knew they were about to be treated to a particularly
classic, rigorous, pointed cross-examination of a witness.
I will turn to your junior colleague now, Senator Marco
Rubio.
Senator Rubio.
PRESENTATION OF MARK E. WALKER, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; AND BRIAN J. DAVIS,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
FLORIDA BY HON. MARCO RUBIO, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Rubio. Thank you. And Florida's favorite country
lawyer has covered well the nominees that we have here today.
So I just wanted to add to that a couple of things.
First, this Committee has an extraordinary calming effect
on children.
[Laughter.]
Senator Rubio. So I may need you from time to time in my
own home. But thank you for this opportunity to be here.
Just to be brief, Senator Nelson has done a great job of
outlining the process we have in the State. And one of the
pleasant surprises in this job is the quality of individuals
that offer themselves for public service and the quality of
individuals that we have been able to forward to the President
and to the White House, today being no exception.
Senator Nelson has covered both of these gentlemen's
backgrounds, and I would just point out that we are pretty
proud of the kind of folks that offer themselves up for
judicial nominations out of our State.
As you can see, their records are pretty impressive, and I
encourage you to give them full consideration. They are pretty
typical of the kind of nominees we have been able to bring
before this Committee, both in their educational backgrounds
and then in their private practice or as lawyers,
practitioners, as clerks, and, obviously, experience that they
have on the bench, both of whom now are currently bringing to
the table experience on the bench.
So it is typical of the kind of nominees we have been able
to bring. And I am bragging on our State a little bit and on
our bar, but we are proud to have that kind of lawyer coming
out of our State, as you have experienced firsthand in the
Intelligence Committee.
So with that, I just want to thank you all for the
consideration you are going to give to our nominees, and I am
proud to be here with them today and with their families.
Thank you.
Senator Whitehouse. Let me thank the panel of Senators for
coming forward to speak on behalf of their nominees. I hope
people who are watching this understand how very busy it is to
be in the Senate while the Senate is in session and for each of
them to come and give their time to support their nominees is a
powerful testament to the quality of the different nominees and
their commitment to getting them passed rapidly through this
Committee and through the floor, as well.
So I will excuse my colleagues now so that we can reset for
our first witness, who will be Judge Bacharach, followed by a
panel of the four district court nominees.
Before you are seated, would you raise your right hand?
[Nominee sworn.]
Senator Whitehouse. Thank you, Judge Bacharach. Please be
seated. And welcome to the Committee. If you would like to make
any form of opening statement or, as is the tradition,
introduce friends and family who are here with you, we would be
delighted to have you do that now.
STATEMENT OF JUDGE ROBERT E. BACHARACH, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE TENTH CIRCUIT
Judge Bacharach. Thank you, Mr. Chairman.
First, I would like to express my gratitude to the
President of the United States for the great and awesome honor
and responsibility from his nomination.
I would also like to thank you, Mr. Chairman, Senator Lee,
Dr. Coburn, and each member of this Committee for the
opportunity to appear before you today.
I would also like to express my deepest gratitude to
Senator Inhofe and Senator Coburn for their fairness in their
consideration of my nomination, their great courtesy, and, of
course, their support and their very generous remarks this
afternoon.
I would also like to briefly introduce my family and
friends that are here today, starting with my wonderful wife,
Rhonda Bacharach. And at the risk of waking up my 3.5-year-old
little girl, I'd like to introduce her, as well. She is a great
blessing in our lives. Her name is Olivia Harper Bacharach. She
is 3.5. And this is a great moment in our family's life.
I would also like to introduce, briefly, some wonderful
friends that are here today, starting with the honorable Ralph
Thompson. For some 32 years, Judge Thompson served as a true
exemplar of what every Federal judge should strive to be, and I
am greatly honored by his presence today.
I also have some other wonderful friends that are present
today. Jack Lockridge, Bill LaForge, Bruce Moyer, Lauren
Fuller, and Jim Scott, and I am grateful for their great
friendship, and, also, for the meaningful gesture that they
have taken in appearing as my guests today.
I have a number of friends and family back home that are
watching this via Webcast.
And with that, Mr. Chairman, I would be delighted to answer
whatever questions you and other members of the Committee might
have.
Senator Whitehouse. Thank you, Judge Bacharach.
I just want to let you know that I was the attorney general
of Rhode Island for 4 years and I have done some independent
research on you through my attorneys general network. I was
actually an attorney general while your attorney general, Drew
Edmondson, was the head of the National Association of
Attorneys General, and he thinks very highly of you, I want you
to know. And so I am delighted to pass on his good wishes and
goodwill on this nomination.
In my opening statement, I mentioned a couple of what I
think are baseline notions that judges should respect; that
judges are obliged to recognize the role of Congress as the
elected representatives of the American people; that they are
obligated to decide cases based on the law and the facts; that
they are obligated to not prejudge any case, but listen fairly
to every party who comes before them; that they are obliged to
respect precedent; and, that they are obliged to limit
themselves to the issues properly presented to the court in the
matter that is presently before them.
And I said I hope each judicial nominee will respect and
adhere to those principles. And I would like to ask you if you
have any disagreement with any of that. That seems pretty
baseline stuff, but I think it is worth hearing from you on
that.
Judge Bacharach. Absolutely. Senator Whitehouse, I
completely subscribe to the ideal that you identified. A
judge's function is not to write the law, not to impose his or
her own ideology or philosophy, but simply to abide by the
statute, by the Constitution, and I completely agree with the
remarks that you made.
Senator Whitehouse. And let me ask you just a quick
question about juries. The Constitution and the Bill or Rights
recognize the American jury in three separate places. And the
great commentator on American democracy, de Tocqueville, in
Democracy in America, reflected on the jury as one of the means
of the sovereignty of the people.
So it has not only a fact-finding function, but, also,
according to de Tocqueville and Blackstone and others, a
function in the structure of American government and democracy.
And I wonder if you have any comment on that view of the
American jury.
Judge Bacharach. I agree, Senator. I am always struck when
individuals sacrifice their time to serve on juries, how
impressed they are with the judicial system, and how they take
their responsibilities so seriously.
And it is an indispensable attribute of our judicial
system. I completely agree that it is an honor. It is a
responsibility that every citizen has, and it is indispensable
to our criminal and civil justice system.
It is an attribute that sets our system apart from many
other countries and it is very important.
Senator Whitehouse. With that, I will turn to my Ranking
Member, Senator Lee, and then I will recognize your home State
Senator, Senator Coburn.
Senator Lee. Thank you very much, Judge Bacharach, for
joining us today.
You have been appointed to the U.S. Court of Appeals for
the Tenth Circuit, a court that I know well and have appeared
many times before, and I commend you for that and wish you well
in that endeavor, should you be confirmed.
I notice you clerked for Judge Holloway for 2 years, as I
recall; is that right?
Judge Bacharach. Yes.
Senator Lee. My late father, who was also a lawyer, used to
say that that is a particularly good deal for the judge if you
can get a clerk to stay for 2 years. I assume it was a good
deal for Judge Holloway, in your case.
Judge Bacharach. I hope so.
Senator Lee. I always found him to be very well prepared
for oral argument, and I am sure you helped set the stage for
that, although I guess we could point out he had been on the
bench almost 20 years by the time you got there. Probably one
of the longest-serving judges in the Federal judiciary. I think
he was put on there in 1968, took senior status in 1992, but
still sits.
I think I argued a case in front of him just a few years
ago. That is quite a legacy.
Anything in particular that you learned from Judge Holloway
that you would take to the bench with you?
Judge Bacharach. Senator Lee, there are so many things that
I learned from my first and greatest mentor, Judge Holloway,
but I would mention two. The first are his qualities as a human
being. He has an unparalleled humility, modesty, gentility, and
respect for every human being.
I think that enables him to take to the bench many personal
qualities that do facilitate his ability to adjudicate cases,
his ability to listen, his ability to respect the views of his
colleagues for whom he may disagree.
Those are qualities that set him apart as a human being,
but it also enables him to decide cases in a superior way.
The second quality that I would mention, Senator Lee, is
simply his ability to carry out the simple, but indispensable
tasks of any good judge; his ability to apply the law to the
facts in every case, without regard to his ideology or
philosophy or his personal sympathies; his ability to simply
apply the law to the facts, albeit simple, is important. It is
a defining characteristic of a judge, and he did that in a
remarkable way.
And those two qualities are things that I feel very
privileged to have witnessed firsthand for those 2 years.
Senator Lee. There is one aspect of your job that will be
new, that will be different both from the manner in which you
have served as a magistrate judge and that will be one of the
few things you did not get to see as a law clerk, and that is
the part of your job that would involve sitting on a panel,
generally a three-judge panel, except in those rare instances
where the tenth circuit is sitting en banc.
How do you approach that as a potential member of this
court, the idea of serving with more senior judges? Initially,
you will be the most junior member of that court. How will you
approach that without surrendering your own individual view of
a case?
I assume it is inevitable that there will be times even in
your first year on the court where you will disagree with two
more senior colleagues. How will you approach that in such a
way that will ensure that you do not give in?
Judge Bacharach. Well, I think one of the important
attributes of any good judge, whether it's a senior judge or a
young judge, is the ability to listen, the ability to learn.
I am honored by what Senator Inhofe mentioned, my lifelong
ideal is to improve, and I plan--if I were so fortunate as to
be reported out of this Committee and confirmed by the U.S.
Senate--to continue to improve, to continue to listen, to
collaborate with other judges, senior or junior to myself. And
when I think they are right, I think that it is important for a
judge to surrender one's ego and to do what they believe
ultimately is correct.
If a judge, after applying the law to the facts, after
listening intently and considering the views that may be
expressed contrary to one's own expressed views, continues to
believe that he or she is correct, it is the responsibility of
any judge to abide by his or her oath and to do what they
ultimately conclude is the legally correct decision after the
application of the law to the facts.
So it is a long-winded way, Senator, of saying I would
listen to others, but ultimately I would make my own
independent decision, as is my oath.
Senator Lee. Just a quick follow-on, yes or no question. I
assume from your answer you would agree with me that the law
generally supplies an answer, a right answer to a case. The
answer may be difficult to find, but there is a right answer.
It may be one that your colleagues disagree with you on,
but there is a right answer.
Judge Bacharach. That is my view, Senator.
Senator Lee. Thank you.
Senator Whitehouse. Senator Coburn.
Senator Coburn. Thank you. Welcome, again.
Judge Bacharach. Thank you.
Senator Coburn. Welcome to your family, and
congratulations.
I have had conversations with you, so my questions are
going to be really limited.
In your questionnaire, you noted that you drafted a section
on appeals in civil and habeas cases in the tenth circuit court
of appeals for a treatise on Oklahoma appellate practice.
You also participated in the Suiter v. Mitchell Motorcoach
Sales and Burkhart v. Restaurants and McAllister v. McAllister,
among other cases.
Can you discuss your appellate experience further and how
will that experience help you if you are voted out of the
Committee and confirmed by the full Senate?
Judge Bacharach. During my career at Crowe & Dunlevy, for
12.5 years, I had the great fortune to spend a great deal of
time both at the State court level and at the Federal court
level in participating in a number of appeals.
The cases that you mention are cases in which I conducted
the oral argument as lead counsel in the tenth circuit court of
appeals. I think there were several cases that you mentioned.
In addition, I had a number of opportunities to participate in
drafting briefs.
Typically, the State appellate courts, the Oklahoma Court
of Civil Appeals and the Oklahoma Supreme Court, generally do
not entertain oral argument. So in a number of cases, in the
State appeals, both at the intermediate appellate level and the
State's highest court, I participated by submitting briefs.
I also, of course, submitted a number of briefs in other
cases in the tenth circuit court of appeals, in addition to the
ones that I orally argued.
I also, as you mentioned, did the principal drafting for
the--I would say a draft that was edited by the two authors of
that treatise that you mentioned, Clyde Muchmore and Harvey
Ellis, and I don't recall exactly how long it was. I know it
was a lot of pages. But I did the work, the principal work for
the first draft of that.
And that, I think, is a fair summary of my appellate
practice, and, of course, in addition, as Senator Lee
mentioned, my 2 years under the mentorship of Judge Holloway.
Senator Coburn. In Federalist 45, James Madison wrote,
``The powers delegated by the proposed Constitution to the
Federal Government are few and defined. Those which are to
remain in the State governments are numerous and infinite.''
Do you agree with Madison that the powers of the Congress
are fundamentally limited?
Judge Bacharach. Absolutely, Dr. Coburn.
Senator Coburn. What do you see as those limits?
Judge Bacharach. Well, there are nine sources of
legislative power in the Constitution. There is, of course, the
first 17 clauses of Article 1, Section A. There are the eight
enforcement provisions, the 13th Amendment, Section 2, the 14th
Amendment, Section 5, the 15th Amendment, Section 2, the 18th
Amendment, the 19th Amendment, the 23rd Amendment, and the 24th
Amendment, and, last, the 26th Amendment.
Those are all of the sources of legislative power in the
Constitution.
The text of the Tenth Amendment reserves the powers that
are not enumerated in those--at the time that the Tenth
Amendment was drafted, of course, there was only Article 1,
Section A. But the text of the Tenth Amendment reserves all
powers not enumerated in the Constitution or prohibited to the
States--to the States, respectively, or the people. And that is
the guidepost that implements essentially what Madison said in
Federalist 45.
Of course, Madison was the principal architect of the Tenth
Amendment. And in addition to Madison's prescription, of
course, Chief Justice Marshall expressed much of the same thing
in Marbury v. Madison, when he said the powers of the
legislature are limited.
So I completely agree with what you express, Doctor.
Senator Coburn. Thank you. One other question, and I ask
every judge this question. In your view, is it ever proper for
judges to rely on contemporary foreign or international laws or
decisions in determining the meaning of the U.S. Constitution?
Judge Bacharach. Without criticizing other judges, for me,
I do not believe that it is appropriate for Bob Bacharach to
ever rely on any foreign source to determine the meaning of the
Constitution. So in my view, it is unequivocally improper for
me to do that.
Senator Coburn. Thank you very much, Mr. Chairman.
Senator Whitehouse. Judge Bacharach, congratulations on
your nomination. Mike Lee and I looked at each other as you
rattled off without notes the enumerated powers in the
Constitution and thought, ``You know, that's not bad.''
[Laughter.]
Senator Coburn. I would tell the Committee I did not prep
the witness for that question.
[Laughter.]
Senator Whitehouse. Even if he knew that question was
coming, that was still a pretty good answer.
So congratulations to you. Thanks to your family for
attending. It is always important to us when family can attend.
Your daughter has been both adorable and quiet, a new personal
best for me in terms of youthful behavior in this Committee.
And I want to make sure that you do not feel discouraged
that there has not been greater attendance at the Judiciary
Committee hearing. What you want is uneventfulness, and the
perfect set of attendees for you is a chairman, a ranking
member, and your home State Senator.
[Laughter.]
Senator Whitehouse. So may your nomination continue to be
uneventful, and best wishes as you go forward.
Judge Bacharach. Thank you, Mr. Chairman.
[The biographical information follows.]
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Senator Whitehouse. You are excused.
We will take just 1 minute and call up the next panel.
[Pause.]
Senator Whitehouse. I welcome all the nominees, and ask
that you all stand to be sworn.
[Nominees sworn.]
Senator Whitehouse. Thank you very much. Please be seated.
And welcome.
In no particular order of rank or seniority or priority,
but simply going across the panel, let me ask, first, Judge
Grimm, then Mr. Dowdell, then Judge Walker, and then Judge
Davis to offer any opening remarks that they may wish to make
and to take this opportunity to introduce any family or friends
who may be visiting with you today.
STATEMENT OF JUDGE PAUL WILLIAM GRIMM, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND
Judge Grimm. Thank you, Mr. Chairman, Senator Whitehouse,
Ranking Member Lee, and Senator Coburn.
I would like to take the opportunity to thank the President
of the United States for the honor of nominating me for this
position; my home State Senators, Senators Mikulski and Cardin,
for recommending my name and, also, being here today to speak
on my behalf and for the example of public service that they
set for every public servant in Maryland, and me particularly,
in terms of what it means to dedicate your all in the service
to the people of this country and your State.
I am very pleased to introduce some family members and some
friends who are here. My wife, Lynne, without whose love and
support for many, many years it would be impossible for me to
be here, sitting here with me today. My son, John, who, in
about 2 weeks, will start as an assistant public defender in
Baltimore County, Maryland; my daughter, Gia, who is graduating
from high school shortly and will be heading down to Clemson to
study law and legal policy down there. My daughter, Samantha,
is not here today corporeally, but in spirit perhaps, because
she is taking exams and getting ready to start Air Force ROTC
summer camp in about 10 days. So she is eating power bars and
doing pushups right now probably.
In addition, my brother-in-law, Tommy Ward, is here. Two of
my dearest friends, Dave Gilliss and Ray Peroutka. Lisa
Bergstrom and Heather Williams, my extraordinary law clerks,
are here, as well. And some other family and friends are here,
but in deference to time, I won't introduce them.
I want to thank, last, but by no means least, you and
Ranking Member Lee and Senator Coburn for allowing this hearing
to take place and for your service to the people of the United
States of America.
Senator Whitehouse. Thank you, Judge Grimm.
Mr. Dowdell, you are recognized.
[The biographical information follows.]
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STATEMENT OF MR. JOHN E. DOWDELL, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA
Mr. Dowdell. Thank you, Chairman Whitehouse. Thank you, in
particular, for presiding over these proceedings. Thank you, as
well, for Ranking Member Lee's and for Dr. Coburn's presence
and their scheduling of this hearing.
In particular, I would like to thank both Senator Inhofe
and Senator Coburn for their kind remarks on my behalf. And, as
well, I would like to thank Senator Coburn and Senator Inhofe
for forwarding my name to the White House and for supporting my
nomination.
I would also like to thank Representative Dan Boren of the
second district of Oklahoma for supporting my nomination.
And I would thank principally the President for the honor
of being nominated and of his confidence in me.
I do have a few family members and friends to introduce.
Senator Inhofe introduced my wife of 24 years. She is the
mother of my four sons. My oldest son, Jack, is graduating this
weekend from the University of Kansas. So he has traveled here
from Lawrence.
My second oldest son, Joe, is a sophomore at Dartmouth
College and traveled here today for the hearing. My third son,
Ned, is a freshman at the University of Redlands in California
and he traveled a long way to be here. And my youngest son,
Gabe, is a junior in high school in Tulsa, Oklahoma.
I want to also thank many people back in Oklahoma who are
watching this via Webcast, including two brothers, Tom and
Richard, and a sister, Jean, and their families. And I also
want to thank the support of my colleagues at my law firm,
where I have worked for the past 30 years, and other family and
friends elsewhere in Oklahoma and around the country.
I have a friend here, Chris Redding, that I am going to
announce in light of Senator Lee's affection for Judge
Holloway. So whatever I can do, I will use it. Chris Redding
and I clerked together with Judge Holloway, as well.
Thank you very much.
Senator Whitehouse. Judge Walker.
[The biographical information follows.]
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STATEMENT OF JUDGE MARK E. WALKER, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA
Judge Walker. Thank you, Chairman. I thank the Chairman,
the Ranking Member, and Senator Coburn for your time and
attention this afternoon.
I would also like to, of course, thank the President for
nominating me and forwarding my name to you. And I thank
Senator Nelson and Senator Rubio for their kind remarks.
I will introduce my family, having previously been
introduced by Senator Nelson. My wife of 18 years, Karen
Walker, is here with me; our daughters, Sarah and Emily; my
folks, Joe and Dotty Walker; my sister, Elizabeth, and her
husband, Tom Conway. Unfortunately, my brother, Lieutenant
Colonel Larry Walker, just recently retired, and his wife, also
Lieutenant Colonel Walker, in that case, Julie Walker, also
retired, could not be with us today.
Also, with us today are my cousin, Amy Rhodes; family
friends, Ryan Andrews, Special Agent Josh Doyle and his wife,
Kate.
I have two judges from the first district court of appeal
in north Florida who actually grade my papers, Judge Roberts
and Judge Rowe, who are both here, as well as Judge Rowe's law
clerk, Tim Moore.
With that, I thank you for your time and consideration.
Senator Whitehouse. Thank you, Judge.
Now, Judge Davis.
[The biographical information follows.]
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STATEMENT OF JUDGE BRIAN J. DAVIS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Davis. Thank you, Chairman Whitehouse. I, too, want
to join the panel in expressing gratitude to you, Ranking
Member Lee and Senator Coburn for the opportunity to be heard
today and convening this Committee for that purpose.
I'd like to also extend my appreciation to Senator Nelson
and Senator Rubio for putting my name forward and for their
introduction today.
I extend, as well, gratitude to the Florida nominating
commission for reporting me to the Senators; and, of course,
will be ever grateful to the President of the United States for
his nomination for this great honor.
I have visiting with me today, as Senator Nelson kindly
began to explain, family members, not all of whom are here, but
certainly, most importantly, my wife of 35 years, Tanya, is
with me; my daughter, Cicely Davis, who has my favorite third-
grader and granddaughter with her, Brynne Davis.
I have visiting from Jacksonville a god-daughter, Sonya
Speights, as well as relatives from South Carolina, a cousin,
Roberta Balthrop. I have, as well, from New York, a niece and
her husband, Natasha Jules-Taylor and Reginald Taylor; and, the
newest member of our family, Gabrielle Elizabeth Taylor, who is
soon to be a 2-year-old and has, as has been observed, been
remarkably well behaved during the hearing, for which I thank
her.
[Laughter.]
Judge Davis. I would also like to thank family members for
being present through the Webcast. My sister in New Orleans I'm
sure is in attendance, as is my son and daughter-in-law, Brian
and Ebony Davis, with my two grandsons; my sister in New
Orleans, Sheila St. Etienne (ph).
I'm sure I have a number of friends joining and associates
and colleagues joining by Webcast from Jacksonville, Florida,
and Nassau and Clay Counties, and I thank them for being here
with me, as well.
Thank you.
[The biographical information follows.]
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Senator Whitehouse. Thank you, Judge Davis.
In deference to Senator Coburn's pressing schedule, Senator
Lee and I have agreed to defer so that he may proceed with his
questions.
Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman.
I would just ask for unanimous consent that my questions
for these nominees be placed into the record.
Senator Whitehouse. Without objection.
Senator Coburn. And the ability to submit additional
questions on the basis of the responses to those questions.
Senator Whitehouse. Consistent with whatever the protocol
is of the Judiciary Committee. I do not want to trump that.
Senator Coburn. You sound like a lawyer.
[Laughter.]
Senator Coburn. Thank you, Mr. Chairman.
Congratulations to all of you.
Senator Whitehouse. Welcome. We are delighted that you are
here and I congratulate you on the great honor of having been
nominated by the President to a lifetime position on the
Federal judiciary.
I have practiced before Federal judges. I have been
inspired by them, terrified by them, various things. And it is
a position of great importance that you will be entering into,
assuming a successful and rapid conclusion of the nomination
process.
As I noted to Judge Bacharach, do not be discouraged that
there is not a lot of turnout. What you want is uneventfulness,
and, so far, it looks so good.
As I said before, judges must respect the role of Congress
as the duly elected representatives of the American people. You
must decide cases based on the law and the facts. You must not
prejudge any case, but give fair and equal hearing to all
parties who come before you.
You must respect the precedent that provides the framework
for your decision, and you must limit yourself to the issues
that are properly presented to you by the case at hand.
Can each of you satisfy that standard?
Judge Grimm. Senator Whitehouse, let me just say that it is
my opportunity to be terrified of a U.S. Senator instead of
having it the other way around.
Senator Whitehouse. Our bark is a lot worse than our bite.
Do not worry about us.
Judge Grimm. Absolutely, the criteria----
Senator Whitehouse. We do not have power of contempt the
way judges do.
Judge Grimm. And what I can assure you, Senator Whitehouse,
if I am fortunate enough to be confirmed, that those criteria
that you have identified will be essential to the way in which
I approach the job.
Mr. Dowdell. I concur, Mr. Chairman. The factors that you
have set forth here and in the prior hearing really are a
roadmap for the obligations of and the temperament of and the
success of the rule of law, and I fully agree with your
description.
Judge Walker. Likewise, Chairman, I certainly agree with
your description and I would like to think that that is how I
have conducted myself since I have been a State court judge.
Senator Whitehouse. Judge Davis.
Judge Davis. Chairman Whitehouse, my answer wouldn't be any
different than any of my colleagues. I agree with those
principles. I believe I have applied them during my term on the
bench and my intention would be to continue to do that.
Senator Whitehouse. And let me ask you the same question
that I asked Judge Bacharach about juries. A jury trial can be
an inconvenience. It can press on the schedule of the court.
Particularly in criminal matters, very often there is enormous
incentive applied to try to avoid a trial and, at the same
time, the jury of peers no less than three times in the
Constitution and Bill of Rights.
And as I said, none other than de Tocqueville described it
as a means of the sovereignty of the American people. I
consider it to be not just a fact-finding tool, but an
important institution in the American system of government, and
would like to hear your thoughts on that, as you will be in a
position to encourage or discourage access to a jury in the
course of your duties.
Judge Grimm.
Judge Grimm. Thank you, Senator Whitehouse. In my 15.5
years as a magistrate judge, I have had the honor to preside
over many jury trials, both civil and criminal, and it has
always humbled me and amazed me at the skill and the
seriousness with which they do their job.
Our juries are judges of the fact. Judges are judges of the
law. In my courtroom, we all stand when the jury walks in
because if they stand for the judge, then we stand for the
jury.
And I talk to every jury after every jury trial and I
continue to be absolutely amazed at the way eight ordinary
citizens in a civil case and 12 in a criminal case can find out
what is fair and right and take their job seriously. It is
nothing short of inspirational, and it is a feature of our
system.
In Great Britain, where we took our common law tradition,
civil jury trials have all but disappeared and it is central to
the fabric of what our country is that we rely upon ordinary
citizens not only in the determination of guilt or innocence,
but also in the decision to charge felonies by service on a
grand jury.
It is an honor to work with them in that process.
Mr. Dowdell. I concur with Judge Grimm's comments. I feel,
as you do, Chairman Whitehouse, that it is an important
institution. It is a structural component of our system of law,
of our rule of law. Indeed, the absence of jury in certain
settings is considered to be structural error for a reason, and
it would be my practice to intend to foster jury trials, not to
limit them.
Senator Whitehouse. Judge Walker.
Judge Walker. As a sitting judge, I can tell you that it is
not unusual for me to have a jury return a verdict at midnight
or 1 a.m. and return to the courthouse the next morning to
start a jury trial and have a charging conference with the
second group of lawyers at 7 a.m.
And I can assure you, just as I have done as a State court
judge, if I am fortunate enough to be reported out of Committee
and become a Federal trial judge, that I will--my interest and
my calendar will be subordinated to the interest of ensuring
access to the courts and moving jury trials forward.
As I tell every jury that I select, as Thomas Jefferson
said, ``The right to trial by jury is the only anchor yet
imagined by man by which a government can be held to the
principles of its constitution.'' I think Thomas Jefferson was
spot on and I--that is how I conduct myself.
Senator Whitehouse. Thank you, Judge Walker. I will add
that quote to my jury list.
Judge Davis.
Judge Davis. Senator, I have had an opportunity to interact
with juries in the civil arena, in the criminal arena, as a
lawyer, as a prosecutor, and as a practitioner, and I have
also, obviously, observed them and interacted with them as a
judge.
I am fond of telling them, because I believe it to be true,
that next to military service, there is no greater service that
a citizen of the United States or the State of Florida can
contribute to our democracy.
I have found juries to be amazingly attentive to their
duties to serve and serve consistent with the oath that they
take, despite the inconvenience, and I believe that it is both
a fundamental right and responsibility of citizenship and am
honored to be a part of the process in which that citizenship
duty is exercised.
Senator Whitehouse. And, Judge Davis, is it true that you
have been nominated to fill a judicial position that is a
designated judicial emergency?
Judge Davis. Yes, that is correct, Senator.
Senator Whitehouse. Good to know.
Let me just conclude by mentioning to Mr. Dowdell that your
friend, Richard Burr, was here earlier. I know I made that a
matter of record, but while you are here, I wanted to pass on
his very good wishes toward you from your days at Wake Forest
and, as well, my former colleague and head of the organization
that I was then a part of, the National Association of
Attorneys General.
I had the chance to work with Attorney General Edmondson
quite closely and developed a very high regard for him, and he
speaks very highly of you, as well, and I want to make sure
those complements are a part of this part of the hearing, as
well.
So I wish you all well. Your level of uneventfulness is so
far very promising. I hope it continues and that we can see you
through to a rapid and successful confirmation.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
Judge Davis, I had a couple questions for you regarding a
speech you gave on December 16, 1995 to the Clay County NAACP
luncheon.
In this speech, you refer to a number of historical events
and try to describe the significance of those events as they
relate to race relations in the world.
There are a couple segments of the speech that I just
wanted to talk to you about and make sure I understand
correctly.
One of the statements began with an event that occurred on
December 9, 1994 and in summarizing that event, you said, ``Dr.
Jocelyn Elders, Surgeon General of the United States, is asked
by the President to resign after being misinterpreted about
student sex education, reminding us, lest we forget, that
politically correct is spelled with capital letters for melanin
impregnated females.''
Just a few paragraphs later, you refer to another event
related to a surgeon general nominee, where you said, on
February 2, 1995, President Clinton nominates Dr. Henry W.
Foster, Jr., former chair of the department of obstetrics and
gynecology at Mary Medical College as surgeon general, but the
Senate filibustered so as not to confirm the doctor because of
a controversy over the number of abortions the doctor performed
early in his career, reminding us, again, lest we forget, that
politically correct is also spelled with capital letters for
melanin impregnated males.
Can you tell us sort of what you meant by those two
statements, what you were referring to?
Judge Davis. Thank you, Senator, for posing that question.
I actually have given some thought to those comments and
others in connection with this hearing. As a preface, let me
say that I've given a number of speeches. I think I have
submitted about 178 pages of speeches to this Committee.
I didn't realize until this process that I had given this
many speeches and I had never taken the opportunity to look
back on them as a whole with an objective and critical eye.
I've had an opportunity to do that now. The speeches--the
comments that you refer to, as well as some others and
sprinkled through other speeches that I've given over some 30
years of--since my graduation from law school, have been part
of a body of work, speeches that have been designed primarily
to engage people in the community in which I live around issues
concerning matters of race.
My heritage and my experience causes me to believe that
matters of race remain among some of the most serious issues
that we face in America, and that was no less true in the
community in which I lived, practiced law, and sat as a judge.
If you look at the body of work over the years that I have
been publicly speaking, I think what will be discerned is that
the thrust of those was to get people engaged in trying to
address problems surrounding racial issues in their community.
The thrust was to--when directed to children, for example,
was to have them embrace education as a means of being part of
the solution to some of the problems as opposed to part of the
problems.
I had the distinct pleasure around this subject to co-chair
a citizen study that involved over 9 months of consideration
every week for 2 to 3 hours a week, matters of face, from
people of all walks of life in the community, white, black,
Hispanic, Asian, men and women, who volunteered to come address
this subject. The result of that effort was to present a report
in the community in which I live about racial matters and their
impact and solutions that might be found.
One of the things that came out of it, for example, was an
annual report in which the community actually looks at and
examines solutions to problems and identifies ways to do that
on an annual basis.
Having said all that, if you will allow me, Senator,
because it is a sensitive subject and one that I would like to
get some clarity to, if I could, having said all that, I have
come to the conclusion, in looking at those specific remarks
and others, that despite my use of rhetoric and hyperbole and
exaggeration as a means of persuading and motivating people to
be involved, that some of the comments--and the tools that I
just identified are tools trial lawyers learn to motivate and
persuade people--that despite that, I have found that some of
the comments were inappropriate.
The ones that you mention were inappropriate for the reason
that an impression could be gotten from them that somehow the
court maintained a racial prejudice. I have concluded, in the
future, that I will not make those kinds of comments. I will
not use those kinds of tools to motivate and persuade people,
because I don't believe it's fair for possible participants in
the court process to have to wonder about whether the court has
a bias or not.
Having said that, I don't intend to stop the work in the
community that I've begun and have worked around for very many
years, because I think it's important for judges to be involved
in their community around issues that are important to the
community.
Finally, if you will give me this last opportunity, what I
would hope would happen in the Committee, Senator, is that you
would look at my entire record of public service, both as a
prosecutor and as a judge, and find in it, as I have, that
there has not been one formal complaint or informal suggestion
of racial bias on my part and that if you look and find, as I
did when I looked, that what exists is a reputation that I have
been a fair, impartial, informed and respectful judge and that
if I'm reported out of this Committee and confirmed, I can
assure you that that's a reputation I will continue to earn.
Senator Lee. Thank you.
With the Chair's indulgence, I would like to just follow-up
on this a little bit more and make sure we have covered the
ground. Thank you for your answer and I appreciate and agree
with the fact that there are few issues that have been more
contentious in American history or that are more important to
our day-to-day lives than those issues that involve race
relations. And so I appreciate your concern for this issue.
I also appreciate your statement to the effect that as a
sitting judge, it would not be your inclination to make
statements like those ones again.
But I want to follow-up on another statement made in the
same speech on kind of a different vein. You refer to the fact
that on September 12, 1995, ``400 people protest outside the
home of Supreme Court Justice Clarence Thomas because of his
opinions in rulings affecting affirmative action and voting
rights, reminding us, lest we forget, how easy it is for some
of us to forget history.''
So to some extent, I think what this is insinuating is that
that particular member of the Court, Justice Thomas, has
forgotten history.
So my question to you is, as an Article 3 judge within the
Federal judiciary, does this statement reflect or would you
otherwise experience difficulty employing decisions rendered by
the Supreme Court authored by Justice Thomas?
Judge Davis. Not at all, Senator. Actually, that particular
reference was to the sentiment as being expressed by the
protestors. I respect Justice Thomas as a sitting member of the
United States Supreme Court. When he is in the majority, his
decisions are the law of this land. And as a sitting judge,
Article 3 or otherwise, I'm bound to support and apply that
law, and that would be my--that has been understanding and that
would continue to be my intention, whether I am confirmed or
not.
As a judge, I think the Supreme Court's authority, when
applicable, is controlling.
Senator Lee. So your criticism in there was not directed
toward the Justice, it was directed toward the protestors. Do I
understand that correctly?
Judge Davis. I was echoing the--I was echoing the criticism
of the protestors in trying to motivate an audience to action
around matters of race.
Senator Lee. Does this also fit into the category of
statements that, as an Article 3 Federal judge, you might not
be inclined to make?
Judge Davis. I think it does only because I am confident it
is improper for sitting judges to comment on the decisions and
disagreement with the decisions of sitting judges.
It not only would be proper as an Article 3 judge, my
acknowledgment to you today is that it was probably improper
for me to do it then.
Senator Lee. Thank you. Thank you. I appreciate that.
Senator Whitehouse. Well, I will call this hearing to a
conclusion. We are delighted, I think, as a Committee to see
folks of your caliber and your integrity and your experience
come before us. It is not an easy task to be a district judge.
There are times when it is the loneliest job in town. And I
know that you are aware of that responsibility as you embark on
it, and I salute you for your willingness to dedicate yourself
to this particular path.
And as I said before, I wish you well as your nomination
process goes forward. It is advisable to be as rapid as you can
with the strictures of thoroughness applying in responding to
the questions that the members of the Committee may send you as
a matter of record and as soon as your files are complete, we
will do our very best to make sure that you are brought up at
the Committee for Committee vote and then to the floor and
then, with any luck, confirmation.
I wish you well in that process and congratulate you on
this honor, and thank your families for having taken the
trouble to join you here and to grace this chamber with their
presence.
The hearing is concluded.
[Whereupon, at 3:50 p.m., the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
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