[Senate Hearing 112-72, Part 7]
[From the U.S. Government Publishing Office]

                                                    S. Hrg. 112-72, pt7




                               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


                                                  S. Hrg. 112-72, Pt. 7




                               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

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
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
            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


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


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


                             MARCH 28, 2012

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


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


                              MAY 9, 2012

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


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


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


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



                       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 
    Present: Senators Franken, Grassley, and Lee.


    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 
    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.

                       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 
    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 
    Mr. Kayatta is lucky to have not one, but two Senators here 
on his behalf today. We have Senator Collins of Maine.

                       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 
    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.


    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 
    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 
    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.


    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 
    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 
    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.


    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 
    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 
    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.


    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 
    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.


    Senator Alexander. Thank you, Madam Chairman. I note the 
perfect attendance of the Senators from Minnesota for this 
    Senator Klobuchar. We heard there was somewhat up from 
Tennessee, so we thought we would come.
    Senator Alexander. That is good. You are hard to get ahead 
    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 
    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 
    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 
    [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.


    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 
    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.
    Mr. Kayatta. And with that, I know how busy the members of 
this Committee are, and so I will refrain from any further 
    Senator Klobuchar. Very good.
    Do you want to begin, Senator Grassley.
    Senator Grassley. Usually, I do not get that right very 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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, 
    Mr. Kayatta. That means every member of the Committee 
selected that evaluation, yes.
    Senator Franken. That was not a trick question.
    Senator Franken. Sometimes overlooking the obvious is a bad 
    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 
    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 
    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 
    Beyond that, you would then look at precedent, and I would 
be bound by the precedent both of the Supreme Court and of the 
    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 
    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 
    Senator Klobuchar. Very good. Well, thank you very much, 
Mr. Kayatta, and thank you for your testimony, and you are 
    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.


    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 
    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 
    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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    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 
    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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    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 
    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 
    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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    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 
    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 
    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 
    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 
    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 
    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 
    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.
    Senator Klobuchar. That was meant in a really good-natured 
    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 
    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 
    I don't anticipate too many problems from my vast financial 
holdings, the----
    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 
    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.
    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 
    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 




























































                       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 
    Present: Senators Grassley and Lee.


    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 
    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.

                         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.


    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 
    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.


    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 
    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.

                     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 
    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 
    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 
    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. 


    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 
    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 
    Mr. Shea. Thank you, Senator.
    Senator Blumenthal. So, thank you for reminding me about 
that fact.
    [The biographical information follows.]

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    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 
    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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    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 
    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.
    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.
    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 
    Mr. Shelby. Thank you, Mr. Chairman.
    Senator Blumenthal. And you have a right to remain silent.
    Mr. Shelby. Well, if that's true I think it'd be best if I 
invoked that.
    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 




























                          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.


    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 
    With that, I turn to my Ranking Member, Senator Mike Lee.


    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 
    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 
    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 
    With that introduction, I welcome today's nominees and 
their families and look forward to a lively discussion with you 
    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 


    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 
    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 
    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 
    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.


    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 
    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 
    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.


    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 
    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 
    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 
    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 
    Senator Coburn. Mr. Chairman, thank you. I would ask that 
my written statements be part of the record, and, also, ask 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    Senator Rubio.


    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.
    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.


    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 
    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 
    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 
    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 
    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 
    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.''
    Senator Coburn. I would tell the Committee I did not prep 
the witness for that question.
    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.
    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.
    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.


    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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    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 
    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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    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, 
    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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    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    The hearing is concluded.
    [Whereupon, at 3:50 p.m., the hearing was concluded.]
    [Questions and answers and submissions for the record